More discovery needed to review expert's statements.
Byline: Jill Miller
Daily Record (Rochester, NY), Wednesday, February 5, 2003
Should the petition for a writ of habeas corpus be granted on the
grounds that his due process rights under the Fourteenth Amendment were
violated because the prosecution knew or should have known that its
expert witness committed perjury?
This was the central issue before the U.S. Court of Appeals for the
Second Circuit in Robie J. Drake v. L.A. Portuondo, Superintendent,
Shawangunk Correctional Facility. The petitioner appeals a judgment of
the U.S. District Court for the Western District of New York that denied
his writ of habeas corpus pursuant to 28 U.S.C. u 2254. The petitioner
asserts that his due process rights under the Fourteenth Amendment and
his Sixth Amendment rights were violated after the trial court failed to
grant the defense's request for a continuance and because the
prosecution knew or should have known that its witness committed
After a review of the facts, the Second Circuit vacated the district
court's judgment and remanded the case back to the district court for
discovery and a hearing, if necessary, on whether the prosecution knew
or should have known that its expert was committing perjury.
The petitioner, Robie J. Drake, was convicted of two counts of Murder
in the Second Degree in connection with the shooting of a teenage
couple, Amy Smith and Stephen Rosenthal, in Niagara County.
In December 1981, the victims were parked in a 1969 Chevy Nova in the
parking lot of a factory in Tonawanda. The factory parking lot was
adjacent to a junkyard filled with abandoned vehicles.
Sometime that evening, the petitioner, armed with a loaded Marlin .22
caliber semi-automatic rifle, a loaded Winchester .22 caliber high
powered rifle, extra ammunition and two hunting knives, went to the
junkyard to look for abandoned vehicles to use for target practice.
According to the petitioner, the first car he found was the Nova.
Believing that the car was empty the petitioner, opened fire on the
passenger side window. He fired 19 rounds of ammunition from the
The petitioner claimed he did not intend to kill the victims and only
found out that they were in the car when, he heard a groan from the car.
He opened the car door and discovered the two bodies.
According to the petitioner, he then stabbed Rosenthal in a fit of
panic because he thought that Rosenthal was still alive. The petitioner
then drove the car to a secluded spot down the road from the parking lot
and he was discovered by two police officers on routine patrol.
The issue at trial was whether the petitioner had met the requirement
for Murder in the Second Degree. A classmate who attended high school
with both the petitioner and the victims testified that a few weeks
before the incident, the petitioner and Rosenthal had an argument at
The physical evidence supported the prosecution's theory that it was a
sex crime. Forensic experts testified that bite marks found on Smith's
body were inflicted post-mortem. In fact, one of the experts stated that
these type of bite marks are often present in "sexually [sic] or
demented type[s] of crimes."
Judge Aldo L. DiFlorio informed the parties during pre-trial that the
trial would have to conclude no later than Tuesday of the week following
its start, due to an out of town judicial commitment. The prosecution
notified defense counsel on Thursday evening that it planned to call a
psychologist named Richard D. Walter to testify about psychological
The next morning the prosecution successfully moved to add Walter as a
witness. Under the schedule, the defense would only have a weekend to
get a competing expert and to prepare for cross examination.
Walter stated that he did not examine the petitioner or his medical
records and was relying on his review of the Grand Jury testimony,
medical evidence and the police record. Walter offered the opinion that
the couple had been the victims of a specific type of "lust murder"
called "picquerism." According to Walter, "picquerists achieve sexual
gratification by biting, shooting, stabbing and sodomizing their
Walter also stated that he had extensive experience in the field of
psychological profiling. This included working on 5,000 to 7,500 cases
over a number of years in the Los Angeles County Medical Examiner's
Office; an adjunct professorship at Northern Michigan University and
four years as a prison psychologist with the Michigan Department of
Corrections. He also stated that he had given expert testimony in
hundreds of criminal trials in Los Angeles and Michigan.
The following Monday, defense counsel informed the judge that it had
searched over the weekend to retain a rebuttal psychologist but could
not find an expert who had ever heard of "picquerism." The defense
requested a two week continuance to find a psychologist and the request
The petitioner was convicted and sentenced to two consecutive terms of
20 years to life. The Appellate Division, Fourth Department affirmed the
conviction and the New York State Court of Appeals denied leave to
A number of years later, the petitioner discovered evidence, through his own research in prison, that Walter had lied about his credentials.
Even though Walter is a prison psychologist with the Michigan Department
of Corrections, he never conducted any criminal profiling for the Los
Angeles County Medical Examiners Office. There is no record that Walter
was ever on the payroll at the University of Michigan and the Los
Angeles County District Attorney's office did not have any record of
Walter testifying as an expert witness in a criminal proceeding between
October 1975 and May 1978.
In 1995, the petitioner moved to vacate his conviction and sentence
pursuant to NYCPL u 440.10. New York State Supreme Court, Niagara County
denied the motion and the Fourth Department affirmed the order.
The petitioner commenced this habeas petition. Specifically, he
asserts that "his right to due process under the Fourteenth Amendment
and his Sixth Amendment right to compulsory process were violated
because the surprise testimony, coupled with the denial of a
continuance, deprived him of the opportunity to present a meaningful
defense; and that his due process rights under the Fourteenth Amendment
were violated because the prosecution knew or should have known of the
Did the state trial court err by allowing the surprise testimony and
denying the defense's request for a continuance to counter the
"The rights to confront and cross examine witnesses ... in one's own
behalf have long been recognized as essential to due process,' Chambers
v. Mississippi, 410 U.S. 284, 294 (1973); Washington v. Schriver, 255
F.3d 45, 56 (2d Cir. 2001)," wrote Judge Dennis Jacobs in the decision
for the court. "Drake's disadvantage flowed from a refusal to grant a
continuance, which is a matter Cytraditionally within the discretion of
the trial judge.' Ungar v. Sarafite, 376 U.S. 575, 589 (1964); Morris v.
Slappy, U.S. 461 1, 11 (1983)."
The Second Circuit then noted that the petitioner did not name any
Supreme Court authority that would allow for a two-week continuance on a
jury trial, or a new trial by reason of the denial.
"Of course, the state trial court could have provided a shorter
continuance than the two weeks Drake sought; but it does not appear to
be an unreasonable application of federal constitutional law to fail to
provide a shorter continuance than requested. Under Anti-Terrorism and
Effective Death Penalty Act (AEDPA), a reasonable application of
Supreme Court precedent includes an application of law that we consider
to be erroneous. Williams v. Taylor, 529 U.S. 362, 411."
Did the prosecution know or should it have known that Walter committed
"In earlier proceedings, both the state trial court and the Appellate
Division, Fourth Department, found that Drake had made no showing that
the prosecution knew or should have known about Walter's perjury," Judge
Jacobs found. "Under AEDPA, a state court's factual findings enjoy a
presumption of correctness and may not be disturbed expect upon a
showing of Cyclear and convincing evidence.' 28 U.S.C. u 2254(e)(1).
Here, however, the state court summarily denied without a hearing
Drake's u 440.10 motion to vacate, and thus there are no findings of
fact requiring deference."
Judge Jacobs went on to find, "The Appellate Division offered only its
bare conclusion that the record failed to establish the prosecution
was aware, or should be charged with knowledge that [Walter] was
misrepresenting his credentials.' Drake, 684 NYS2d at 102. But because
the state courts did not permit the development of the factual record,
and because the Appellate Division relied on that incomplete record,
there is at present no way for a federal habeas court to assess whether
the Appellate Division's conclusion represented an unreasonable
application of federal law Co i.e., whether the prosecution knew
Walter's testimony to be perjured, or "should have known' as much,
whatever degree of complicity or negligence (or worse) that phrase may
The Second Circuit determined that the petitioner must be allowed to
develop the record further.
"If Drake can successfully establish that the prosecution knew or
should have known of the perjured testimony, he may be able to establish
a Cyreasonable likelihood that the false testimony could have affected
the judgment of the jury.' U.S. v. Agurs, 427 U.S. at 103," Judge
The Second Circuit vacated the district court's judgment denying the
petitioner's request for habeas relief and remanded the case to the
district court for discovery and a hearing, if necessary, to determine
whether the prosecution knew (or should have known) that its expert was