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 Facts

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

semi-automatic rifle.



  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.


Trial Issues

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

was denied.



  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




Court Ruling

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

Jacobs found.



  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

committing perjury.