Brown v. Farwell
| Decision Date | 05 May 2008 |
| Docket Number | No. 07-15592.,07-15592. |
| Parties | Troy Don BROWN, Petitioner-Appellee, v. Craig FARWELL, Warden, and The Attorney General of The State of Nevada, Respondents-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Catherine Cortez Masto, Attorney General, Erik A. Levin, Deputy Attorney General, Criminal Justice Division, Carson City, NV, for the respondent-appellant.
Franny Forsman, Federal Public Defender, Paul G. Turner, Assistant Federal Public Defender, Las Vegas, NV, for the petitioner-appellee.
Appeal from the United States District Court for the District of Nevada; Philip M. Pro, District Judge, Presiding. D.C. No. CV-03-00712-PMP/VPC.
Before: DIARMUID F. O'SCANNLAIN, HAWKINS, and KIM McLANE WARDLAW, Circuit Judges.
At Petitioner Troy Brown's trial for sexual assault, the Warden and State's ("Respondents") deoxyribonucleic acid ("DNA") expert provided critical testimony that was later proved to be inaccurate and misleading. Respondents have conceded at least twice that, absent this faulty DNA testimony, there was not sufficient evidence to sustain Troy's conviction.1 In light of these extraordinary circumstances, we agree with District Judge Philip M. Pro's conclusions that Troy was denied due process, and we affirm the district court's grant of Troy's petition for writ of habeas corpus.
In the early morning of January 29, 1994, Jane Doe,3 a nine-year-old girl, was sexually assaulted in the bedroom of her trailer home in Carlin, Nevada. At the time, Jane was home alone with her four-year-old sister while their mother, Pam, was drinking at a bar and their step-father, Wayne Henle, was working the night shift. Troy was arrested, tried, and convicted for this crime.
Earlier that night, Pam received a phone call from Raquel Brown, who is married to Troy's brother, Trent, inviting Pam to join her and Trent for a drink at the local bar, CG's, and asking if Jane could babysit Raquel's children while they were at the bar. At 6:30 p.m., Pam took Jane and her sister to Raquel's house, which is located across the street; Pam and Raquel left to meet Trent at CG's. Raquel and Trent left CG's at 7:30 p.m., and Pam remained at the bar. Raquel and Trent returned home and found Jane and her sister watching a movie. When the movie concluded at 9:30 p.m., Raquel took the children home. Jane, wanting to let Pam know they arrived home safely, first called CG's, where the line was busy. Jane then called Peacock Bar, where Troy answered the phone and stated that Pam was at CG's but that he would deliver the message. By the time Troy arrived at CG's, Pam was on the phone with Jane.
When the conversation ended, Pam accompanied Troy to Peacock Bar where they had a drink. Troy was clearly drunk, but "he behaved like a gentleman and made no sexual advances toward" Pam. Pam stated that the last time she saw Troy was between 11 p.m. and midnight. However, one bartender stated that Troy left the bar no later than 12:20 a.m., and another bartender stated that she believed she saw Troy at the bar at 1:30 a.m. Between midnight and 12:30 a.m.,4 Jane called Pam at the bar and explained that some man was at the trailer looking for Pam and had hurt her. When Pam arrived home, she found Jane covered in blood from the waist down and called 911. A police officer and the paramedics responded. Jane stated to the paramedic that she felt pain in her vaginal area, and Pam responded that her ex-husband had done this because he threatened to "f____ [Pam's] daughter in order to get back at [Pam]."
Later at the hospital, vaginal and anal penetration were confirmed. Jane had bruises on her neck and scratches on her face. A vaginal smear was taken because sperm was present. Debris was collected from her teeth because she stated she had bitten the assailant's hands.
Jane described the assailant to the police that night as follows:
[H]e did not wear a hat and had blonde or sandy-colored hair which was curly at the bottom and thinning on top; she thought he had a small moustache; he was wearing dark jeans, a black jacket with "a zipper for sure," a western type shirt, boots, and a watch which scraped her face. . . . [She] stated that the assailant smelled like cologne but that it was an "awful smell" . . . [like] "beer or puke or something."
That night, Troy was wearing a cowboy hat, dark jeans, a black satin jacket with an orange and yellow CG's logo on the back, and boots. Two witnesses testified that, at 1:05 a.m. that morning, they saw near Jane's trailer a man wearing a cowboy hat, dark jeans, and a black satin jacket with a bright green emblem on the back that looked like a skull or bandit.
Troy stated that he had been drinking steadily that night and, while walking home to his trailer located ten trailers away from Jane's, had vomited several times, soiling his pants and shirt. When he arrived home, Troy's brother, Travis, awoke from sleeping on the couch. Travis stated that it was 1:32 a.m. when he awoke and that he did not see any traces of blood in the house. Troy washed his clothes as soon as he returned home because he was leaving that day to go to Utah for a week and all of his clothes were already packed. When a police officer arrived at 5 a.m. to question Troy, he saw no blood on Troy or his boots; he also checked Troy's hands, which did not have any evidence of bite marks.
Jane also stated that she fell asleep with a night light on, but that the man who assaulted her must have turned it off because it was off when the man left. Troy's fingerprints were not found anywhere in Jane's trailer, and the one fingerprint found on the night light did not match Troy's.
When the police pressed Jane to tell them who the assailant reminded her of, Jane stated "Troy," and when the police responded "Who?," Jane stated Jane explained that Trent was Raquel's husband. Jane also stated that the assailant's hair looked like Troy's but then changed her mind and said it looked like Trent's hair. A number of days after the assault, Jane witnessed a television report of Troy's arrest and stated that "she knew that the man on television was her assailant." Jane also told the police officers that the man she had seen on television had sent her flowers. The card that came with the flowers was signed by Raquel and Trent, not Troy. When the police showed Jane pictures that included Troy's picture and other people that she did not know, Jane was unable to identify Troy as her attacker.
After Troy left for Utah, he contacted the Carlin police to inquire whether he was wanted for arrest, but he was told that he was not. Knowing that he was under suspicion, Troy requested a full-body examination to be conducted by a nurse in order to record his physical condition. On or about February 7, 1994, Troy voluntarily surrendered to the police and was arrested. During the interrogation and throughout all proceedings, Troy has repeatedly denied involvement in the crime.
At trial, Respondents presented the testimony of DNA expert Renee Romero of the Washoe County Sheriff's Office Crime Lab. Romero testified that, among other things, there was a 99.99967 percent chance that Troy was the assailant.
The jury found Troy guilty of two counts of sexual assault on a child under the age of fourteen, in violation of Nevada Revised Statutes 200.366, and one count of abuse or neglect of a child resulting in substantial bodily harm, in violation of Nevada Revised Statutes sections 200.508, 432B.020, and 432B.070. Troy appealed to the Nevada Supreme Court, claiming, inter alia, the district court abused its discretion when sentencing him, the bar against double jeopardy was violated by the duplicative convictions for sexual assault and abuse or neglect of a child, the DNA evidence was improperly admitted, and the evidence was insufficient to sustain his conviction. The Nevada Supreme Court vacated the third charge and remanded for resentencing on the second sexual assault count. The trial court resentenced Troy to life with the possibility of parole after ten years on both sexual assault counts, to run consecutively. Troy again appealed to the Nevada Supreme Court, which rejected his appeal. Troy next filed a state petition for post-conviction relief, and, after holding an evidentiary hearing, the state courts denied relief.
On February 6, 2004, Troy filed his federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing, inter alia, violations of due process and ineffective assistance of counsel. Judge Pro permitted Troy to expand the record, admitting, among other things, an uncontested report discrediting Romero's testimony by Dr. Laurence Mueller (the "Mueller Report"), a professor of Ecology and Evolutionary Biology at the University of California, Irvine.
The district court granted Troy's petition. First, the district court concluded that, in light of the Mueller Report, Romero's testimony was unreliable. Absent that testimony, no rational trier of fact could conclude beyond a reasonable doubt that Troy was guilty of each and every element of the offenses with which he was charged. The district court also concluded that Troy's attorney's failure to diligently defend against Respondents' DNA testimony, as well as his failure to investigate the alibi of Henle, a potential suspect, amounted to ineffective assistance of counsel. Respondents timely appealed.
Because Troy filed his petition after April 24, 1996, it is governed by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d). Section (d)(1) of that provision provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was...
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