Drake v. Portuondo

• Decision Date: 31 January 2003
• Docket Number: Docket No. 01-2217.
• Parties: Robie J. DRAKE, Petitioner-Appellant, v. L.A. PORTUONDO, Superintendent, Shawangunk Correctional Facility, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

321 F.3d 338

Robie J. DRAKE, Petitioner-Appellant, v. L.A. PORTUONDO, Superintendent, Shawangunk Correctional Facility, Respondent-Appellee.

Docket No. 01-2217.

United States Court of Appeals, Second Circuit.

Argued: September 9, 2002.

Decided: January 31, 2003.

COPYRIGHT MATERIAL OMITTED

Sally Wasserman, New York, NY, for Petitioner-Appellant.

Thomas H. Brandt, Assistant District Attorney of Niagara County, Lockport, NY, (Matthew J. Murphy, III, District Attorney, on brief), for Respondent-Appellee.

Before: JACOBS, POOLER, Circuit Judges, BAER, District Judge.^*

JACOBS, Circuit Judge.

Robie J. Drake appeals from a judgment of the United States District Court for the Western District of New York (Elfvin, J.) denying a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 1982, Drake was convicted by a jury in New York State Supreme Court, Niagara County, on two counts of second degree murder for the shooting of a young couple in a parked car in an isolated area near a junkyard. The defense theory was that Drake often used abandoned cars for target practice, that he shot up the victims' car without realizing it was occupied, and afterward in panic stabbed the young man (who was dying), and drove the car to a nearby dump. To aid the prosecution of a crime that was seemingly without motive, the prosecutor at the last minute called to the witness stand a putative expert who testified about a syndrome of sexual dysfunction that appeared to account for the particular, gruesome circumstances of the crime. Far-fetched as the defense theory was, the prosecution concedes that the expert was recruited late in the trial to plug a perceived hole in its case concerning intent. It is now clear that the expert's qualifications were largely perjured, and that the syndrome, dubbed "picquerism," is referenced nowhere but in a true-crime paperback. The prosecution successfully opposed a continuance sought by Drake's counsel, who protested that he had been unable to find a psychologist who had even heard of "picquerism."

Drake claims on habeas that (i) 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 (ii) his due process rights under the Fourteenth Amendment were violated because the prosecution knew or should have known of the perjury.

BACKGROUND

On the night of December 5-6, 1981, teenagers Amy Smith and Stephen Rosenthal were in Rosenthal's rusty 1969 Chevy Nova in the parking lot of a factory in the Town of North Townawanda, New York. The factory parking lot was adjacent to a junkyard with abandoned vehicles. The teenagers were using the spot as a lovers' lane. It is undisputed that Drake shot them to death shortly after midnight.

In a confession, Drake said that he left home at approximately 11:30 p.m., dressed in military fatigues and armed with a loaded Marlin .22 caliber semi-automatic rifle, a loaded Winchester .22 caliber high powered rifle, extra ammunition and two hunting knives, and that he went to the junkyard looking for abandoned vehicles to use in target practice. He said that the first vehicle he came across was the parked Nova, that he believed the car to be abandoned because the engine was off and no noise came from within, and that he opened fire on the passenger side window of the car with his semi-automatic rifle.

Drake claimed that he did not intend to kill Smith and Rosenthal, and insisted that he learned of their deaths only when he inspected the car, heard Rosenthal groaning, and opened the door to find the two bodies. According to Drake, he stabbed Rosenthal twice, in a fit of panic, to stop him from groaning, but that he "didn't mean to kill him or anything." Trial Transcript at 267. According to Drake, Rosenthal was fully clothed, Smith not. Unsure of what to do, he drove the Nova car to a secluded spot down the road from the parking lot, and put Rosenthal's body in the trunk. Surprised by a passing car, Drake got back in the car and drove to the Niagara County dump in the neighboring town of Wheatfield, where he was putting Smith's body into the trunk when he was spotted by two police officers on routine patrol.

The only issue at trial was whether Drake had the intent requisite for second degree murder. The prosecution's case was supported by a good deal of circumstantial evidence. Drake stated in his confession that he could not see into the car because the windows were fogged up, an indication that the car may have been occupied. Drake's semi-automatic rifle could fire nineteen rounds of ammunition in a single clip, and Drake fired them all. The autopsies showed that Smith died from two gunshot wounds to the head, and that Rosenthal died from fourteen gunshot wounds to his face, neck and chest. (The stab wounds were not the cause of Rosenthal's death.) A student at the high school attended by Drake and the victims testified that, a few weeks prior to the shooting, Drake and Rosenthal argued while passing each other in the hallway.

Physical evidence supported the prosecution's theory that this was a sex-crime. The emergency room physician who pronounced the victims dead testified concerning sexual trauma to Smith, including a bruised rectum, and mud near her private parts. The medical examiner who performed the autopsies noted a bite-mark on Smith's left breast, with hemorrhaging so minor as to indicate that the bite had been inflicted post-mortem. The prosecution's medical forensic witness found no evidence of semen anywhere except on Drake's underwear. Forensic experts who performed a second autopsy following the exhumation of Smith's body a month after her death, confirmed that the bite on Smith's right breast was inflicted postmortem, and also found a post-mortem bite mark on the other breast. Dr. Lowell Levine, a dentist and forensic odontologist with experience in bite marks, confirmed the presence of the two post-mortem marks on each breast. Over a defense objection, Dr. Levine opined that bite marks are often present in "sexually [sic] or demented type[s] of crimes." Trial Transcript at 671.

Justice Aldo L. DiFlorio had advised the parties pretrial that because of an out-of-town judicial commitment, the trial would have to conclude no later than Tuesday of the week following its commencement. The prosecution informed defense counsel on the Thursday evening that it intended to call a psychologist named Richard D. Walter to testify about psychological profiling. On the Friday, the prosecution successfully moved to add Walter as a witness, and Walter mounted the stand. Under the announced schedule, defense counsel would have no more than a weekend to get a competing expert, if needed, or for that matter to prepare his cross-examination.

The prosecution concedes that Walter's testimony was intended to reinforce what it perceived as weaknesses in the evidence supporting its theory of intent. The prosecution also concedes that Walter was referred to them by Dr. Levine, the forensic dentist, and that the prosecution did not independently investigate Walter's qualifications.

Walter conceded at the outset that he had not examined Drake or reviewed his medical records, and would rely on his review of grand jury testimony, medical evidence and the police record. Walter opined on that basis that Smith and Rosenthal had been the victims of a specific type of "lust-murder" called "picquerism" (a derivative misspelling of the French verb "piquer," which means, among other things, to stick or poke). See Trial Transcript at 794. According to Walter, picquerists achieve sexual gratification by biting, shooting, stabbing, and sodomizing their victims (though not all picquerists do all these things). This supposed syndrome accounted for much of the physical evidence in medical terms that dovetailed with the prosecution's theory of intent.

It is now apparent that Walter's testimony concerning his qualifications was perjurious. He claimed extensive experience in the field of psychological profiling, including: work on 5000 to 7500 cases over several years in the Los Angeles County Medical Examiner's Office; an adjunct professorship at Northern Michigan University; more than four years as a prison psychologist with the Michigan Department of Corrections; and expert testimony given at hundreds of criminal trials in Los Angeles and Michigan.

On the Monday following Walter's testimony, defense counsel told Justice DiFlorio that the defense had searched over the weekend to retain a rebuttal psychologist, but could not find any expert who had ever heard of "picquerism." The defense requested a two-week continuance to find a psychologist with the expertise required. The prosecution successfully opposed a continuance.

The trial concluded on schedule. Drake was convicted and sentenced to two consecutive terms of twenty years to life. The Appellate Division, Fourth Department, affirmed the conviction, and the Court of Appeals denied leave to appeal. Drake's petition for a writ of error coram nobis, arguing ineffective assistance of appellate counsel, was denied by the Appellate Division.

Years after exhausting his direct appeals, Drake discovered evidence, through his own research in prison, that Walter had lied about his credentials. Although Walter is a prison psychologist with the Michigan Department of Corrections,= Drake found suggestive evidence that Walter lied about his other credentials. As the prosecution now concedes, Walter performed no criminal profiling in the Los Angeles County Medical Examiner's Office. According to Walter's supervisors there, he was employed as a lab assistant responsible for cleaning and maintaining the forensic lab. There seems to be no record that Walter was ever on the payroll of Northern Michigan University, where he claimed to be an adjunct...