Davis v. Pitchess, Civ. No. 71-2288-F(T).

• Decision Date: 09 January 1974
• Docket Number: Civ. No. 71-2288-F(T).
• Citation: 388 F. Supp. 105
• Court: U.S. District Court — Central District of California
• Parties: Charles Edward DAVIS, Petitioner, v. Peter J. PITCHESS, Sheriff of Los Angeles County, Respondent,

388 F. Supp. 105

Charles Edward DAVIS, Petitioner, v. Peter J. PITCHESS, Sheriff of Los Angeles County, Respondent,

Civ. No. 71-2288-F(T).

United States District Court, C. D. California.

January 9, 1974.

Richard Wasserstrom, Letwin & Wasserstrom, Santa Monica, Cal., for petitioner.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Norman H. Sokolow, Lawrence P. Scherb, II, Deputy Attys. Gen., Los Angeles, Cal., for respondent.

OPINION AND ORDER MODIFYING WRIT OF HABEAS CORPUS

FERGUSON, District Judge.

This opinion and order is made with reference to the following facts:

1. Following his conviction for rape in the Los Angeles Superior Court and exhaustion of state remedies, petitioner filed in this court a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

2. This court on September 22, 1972 found that the Due Process Clause was violated at his state court trial when police laboratory reports which analyzed vaginal smear slides and an undergarment of the prosecuting witness were wrongfully suppressed by the prosecutor. A copy of the findings of fact and conclusions of law are appended hereto as Exhibit A.

3. The court then issued a conditional writ of habeas corpus which provided that the petitioner shall be discharged unless the State shall institute proceedings to retry the petitioner within 60 days from the date the conditional writ became final. A copy of that conditional writ is appended hereto as Exhibit B.

4. On March 2, 1973 the Court of Appeals for the Ninth Circuit affirmed the conditional writ by a Memorandum of Affirmance, a copy of which is apended hereto as Exhibit C.

5. Thereafter the State elected to retry petitioner.

6. At a pretrial discovery proceeding in the state court it was determined that the slides and undergarment had been destroyed by the Los Angeles Police Department and were therefore no longer available to petitioner in his defense to the prosecution.

7. Petitioner filed a motion in the Superior Court to dismiss the action because of the unavailability of the items, claiming that the original misconduct of the State in suppressing the laboratory reports was now incurable and irremediable.

8. A hearing was held in the Superior Court at which time that court made an express finding of fact that petitioner had shown a reasonable possibility that the slides and undergarment, if shown to a jury as demonstrative evidence, would have aided the petitioner in the presentation of his defense.

9. However, the Superior Court denied the motion to dismiss.

10. Petitioner then applied to the California Court of Appeal for a writ to prohibit the retrial. That court denied the application without opinion on September 25, 1973.

11. On October 1, 1973 petitioner filed his motion in this court to modify the conditional writ heretofore granted and make it absolute.

12. This court issued its preliminary injunction enjoining the State from commencing or continuing with the reprosecution of the petitioner until further order of this court.

13. The State then petitioned the Court of Appeals for the Ninth Circuit for a writ of prohibition and mandamus to direct this court not to interfere in the state court proceedings.

14. On November 13, 1973 the Court of Appeals denied the petition for such a writ. A copy of the order of the Court of Appeals is appended hereto as Exhibit D.

15. Then the State filed an application to the United States Supreme Court that all proceedings in this matter in this court be stayed.

16. Mr. Justice Douglas denied the application. A copy of the order of denial is appended hereto as Exhibit E.

17. The state Supreme Court denied petitioner's petition for writ of prohibition to prohibit his retrial. All state remedies have, therefore, been exhausted.

18. On January 4, 1974 the court conducted an evidentiary hearing and received evidence from Dr. Eli Sercarz, a professor of microbiology and immunology at U.C.L.A. and from Mr. John Cockenham, a criminologist at the State of California Crime Laboratory.

19. The evidence produced at that hearing reveals the following:

a. All human secretions such as saliva, semen, vaginal secretion and tears contain a number of protein substances that are common to all such secretions.

b. Each of these human secretions also contain some protein substances that are peculiar to that secretion. This makes it possible to test a slide, which contains a human secretion, to determine what particular secretion is on the slide.

c. More than 80% of all human beings secrete blood group substances in their secretions. Such persons are called "secretors." The human secretions of secretors of blood group substances contain substances which make it possible to determine the ABO blood type of the person whose secretion it is.

d. A slide containing a human secretion can be tested to determine whether the secretion came from a secretor. If it did, then the secretion can be further tested to determine the ABO blood type of the person whose secretion it is.

e. This test for ABO blood type makes it possible absolutely to exclude classes of persons as having been the source of a particular human secretion.

f. This type of test for ABO blood type based upon human secretions is a test regularly and routinely employed by the State of California to exclude suspected rapists from criminal prosecution.

g. It is a scientific probability that such tests can be made with scientific certainty on material placed on a slide over 6 years ago.

h. Dried protein substances in order to make such tests need not be kept refrigerated but need only be kept in a standard atmospheric climate.

i. If the slides taken from the victim were in existence today, accurate scientific tests could be performed which could exclude the respondent as the alleged rapist.

It thus appears that the misconduct of the State in suppressing evidence favorable to the petitioner at his trial has now been made incurable by the destruction of the slides and undergarments.

It does little to our Constitution to contend that the petitioner, if he were to be retried, has a right to present all these facts before a jury and argue with all the fervor his attorneys can command that he should be found not guilty. The State by its conduct simply has prevented him from having a constitutionally fair trial.

At the time the court granted the conditional writ of habeas corpus, neither it nor the petitioner knew that the slides and undergarments had been destroyed by the State. It was not until the process for the retrial began did the State disclose their destruction. It may be true that the destruction was not intentional; but the fact remains there was a destruction. It may be true, further, that counsel for the State did not know of such destruction sooner, the fact is that it is the State of California which seeks to try the petitioner and it was the State acting through its agents which destroyed evidence which was favorable and exculpatory to the petitioner. See Giglio v. United States, 405 U.S. 150 (1972).

The court would have made its writ absolute originally if the true and total facts had been presented to it at that time. It is a gross miscarriage of justice to contend that such nondisclosure could prohibit a federal court from upholding the Constitution and laws of the United States when the true facts are presented to it.

It is true as the Supreme Court has stated in Fay v. Noia, 372 U.S. 391, footnote 45 at p. 440 (1963) that the typical order of a district court in state prisoner cases is a conditional release, permitting the state to rearrest and retry the petitioner without actually discharging him from custody. However, there is no limitation in the statute, 28 U.S.C. §§ 2241-2254, which restricts the federal courts to that remedy. Jurisdiction exists to grant an absolute writ when demanded by the Constitution. 28 U.S.C. § 2243 provides that, "The court shall . . . dispose of the matter as law and justice require."

United States ex rel. Miller v. Pate, 429 F.2d 1001 (7th Cir. 1970) is not controlling. There the issue was whether a federal court had jurisdiction to restrain the retrial of a state prisoner after the granting of a conditional writ on the basis of the prisoner's claim of being "denied a speedy trial and other related matters." The district court did not have jurisdiction for the obvious reason that he had not exhausted his state remedies on that issue, and further that the issue of a speedy trial was an issue extraneous to the reasons why the conditional writ was granted in the first place.

Here, petitioner has exhausted his state remedies, and more importantly the issues which he now raises are explicitly interwoven within the due process claim that caused this court and the Ninth Circuit to grant and approve the conditional writ.

Further, the petitioner here is seeking to obtain the relief to which he would have been entitled originally if this court had been made aware then of the true facts. In Miller the speedy trial issue upon retrial, of course, was a fact outside and removed from the granting of the writ of habeas corpus originally.

The matter is before the court pursuant to a motion made pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. See 7 Moore, Federal Practice 60.22 pp. 246-247. However, for all purposes the motion could be considered as a new petition for writ of habeas corpus, as the petitioner has exhausted all his state remedies.

It is never an easy matter to foreclose a criminal trial. Both society and the defendant are entitled to a conviction or exoneration after a fair trial. It is only in rare instances that a fair trial cannot be held. This case presents one of them. The Court of Appeals of the State of California, in Harris v. Superior Court, 35 Cal.App.3d 24, 110 Cal. Rptr. 400 (1973) where the court prohibited the retrial of a defendant after the...