Dobbert v. Wainwright

• Decision Date: 07 September 1984
• Docket Number: No. 84-5378,84-5378
• Citation: 82 L.Ed.2d 925,105 S.Ct. 34,468 U.S. 1231
• Parties: Ernest John DOBBERT, Jr. v. Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections
• Court: U.S. Supreme Court

468 U.S. 1231

105 S.Ct. 34

82 L.Ed.2d 925

Ernest John DOBBERT, Jr.

v Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections

No. 84-5378

Supreme Court of the United States

September 7, 1984

On petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit.

The application for stay of execution of the sentence of death presented to Justice POWELL, and by him referred to the Court, is denied. The petition for a writ of certiorari is denied.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

The State of Florida intends to electrocute the applicant Ernest John Dobbert, Jr. in several hours. Dobbert seeks a stay of his execution pending the orderly disposition of a petition for a writ of certiorari. He raises substantial issues concerning the constitutionality of his death sentence and the proper measure of federal deference to state-court factfinding under 28 U.S.C. § 2254(d). I would grant Dobbert's application and stay his execution.

I

Dobbert was convicted in 1974 of the first-degree murder of his 9-year-old daughter Kelly. Although the jury recommended a life sentence by a vote of 10-2, the presiding judge, R. Hudson Olliff, overrode the recommendation and imposed the death sentence.

Dobbert's 13-year-old son, John III, testified at trial that he saw Dobbert kick Kelly in the stomach several times on the night before her death and that, on the subsequent evening, he saw Dobbert choke the girl until she stopped breathing. John III was "the State's key witness" at trial. Dobbert v. State, 414 So.2d 518, 519 (Fla.1982). There was abundant evidence that Dobbert had committed unspeakably brutal acts toward his children, but John III's testimony was the sole evidence that Dobbert had actually and deliberately strangled Kelly to death. "While the evidence presented without his testimony was adequate to convict of second-degree murder, young Dobbert's testimony supplied the sole basis for finding premeditation. There is no doubt that Dobbert inflicted injuries that caused the death of his daughter, but only through the trial testimony of young Dobbert is there evidence of his intent to cause that death." Dobbert v. State, 456 So.2d 424, 431 (1984) (McDonald, J., dissenting in part).

In 1982, eight years after his father had been convicted and sentenced to death, John III recanted his trial testimony. His affidavit, set forth in full as an appendix to this opinion, is direct and to the point: "I did not testify truthfully about the cause of my sister Kelly's death at the trial. . . . My father did not kill Kelly." John III stated that, in fact, the "kicking incident" had occurred two weeks before Kelly's death. With respect to the fatal night, John III now states that he remembers Kelly "sitting in bed eating some soup. She started vomiting, and then choking on her own vomit and food. My father tried to give her mouth to mouth resuscitation, but it didn't work. Kelly was not killed by my father; she died accidentally, choking on food or vomit."

Why had John III earlier testified that Dobbert choked Kelly to death? First, at the time of the trial "I was still deathly afraid of my father after all I'd been through and seen, and wanted to be sure he'd be locked up where I'd be safe from him." Second, in the time leading up to and following the trial, John III was living at a children's home in Wisconsin where he was undergoing hypnosis and kept "heavily medicated" on Thorazine. Finally, "[a]lthough no one ever said it directly," John III "knew" that the staff at the children's home "wanted me to testify that my father killed my sister. I looked up to these people and wanted desperately to please them—they were good to me and concerned about me in a way I hadn't known for years."

Dobbert has twice argued in state court that his capital conviction and sentence are unconstitutional in light of John III's perjured testimony. The first time, in connection with his request to file a petition for a writ of error coram nobis, the Supreme Court of Florida held that John III's recantation is not "new evidence" and therefore does not deserve judicial attention. Dobbert v. State, 414 So.2d, at 520. The court argued that, because John III had given a statement to the police after Kelly's death which contradicted the testimony he later gave at trial, defense counsel could have cross-examined the boy at trial on the inconsistencies between the earlier statement and his testimony. Ibid.

The second time, in connection with a motion to vacate the conviction, Circuit Judge R. Hudson Olliff held that, even in the face of the recantation, there is no "evidence or proof" to support Dobbert's claim of perjured testimony. State v. Dobbert, No. 73-5068, p. 81 (Fla. 4th Cir.Ct., May 1, 1984), aff'd, 456 So.2d 424 (1984). Judge Olliff, who had presided over the original trial, reviewed John III's statements to the police, deposition testimony, trial testimony, and subsequent deposition testimony in a civil proceeding. Although John III's initial statements to the police contradicted his subsequent trial testimony, Judge Olliff found that the inconsistencies were easily explained away in light of the boy's terror of the father. Judge Olliff then reviewed John III's other prerecantation statements and held that they "are all consistent and each corroborates the other." Thus, he concluded, even in the face of the recantation "it is obvious that the murder conviction was not based solely—or in part—upon perjured testimony. Nor is there any evidence or proof to support [Dobbert's] allegation of perjury." State v. Dobbert, No. 73-5068, at 81. Judge Olliff made this conclusion without any discussion or analysis of John III's recantation. The Supreme Court of Florida affirmed, holding that Dobbert's claim of perjury is "without merit" because "there is no evidence or proof to support present counsel's allegation of perjury." 456 So.2d, at 429.

Dobbert then filed a successive petition for federal habeas relief in the United States District Court for the Middle District of Florida. Although there is no question that Dobbert was not abusing the writ on this issue—John III's recantation had come after Dobbert's first federal petition had been denied—the District Court denied the petition because Judge Olliff had found that "even in light of the 1982 recantation John's trial testimony was not perjured. Judge Olliff found, instead, that there was 'no evidence or proof to support [petitioner's] allegation of perjury.' " 593 F.Supp. 1418, 1427 (1984). This finding, the District Court concluded, commands deference under 28 U.S.C. § 2254(d). See Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). The Eleventh Circuit, 742 F.2d 1274, has now affirmed 2-1. 742 F.2d 1274 (1984). (Clark, J., dissenting).

II

Recantation testimony is properly viewed with great suspicion. It upsets society's interest in the finality of convictions, is very often unreliable and given for suspect motives, and most often serves merely to impeach cumulative evidence rather than to undermine confidence in the accuracy of the conviction. For these reasons, a witness' recantation of trial testimony typically will justify a new trial only where the reviewing judge after analyzing the recantation is satisfied that it is true and that it will "render probable a different verdict." See, e.g., Brown v. State, 381 So.2d 690, 692-693 (Fla.1980).

Dobbert argues that, notwithstanding the strong presumption against recanting testimony, the circumstances of John III's recantation in this capital case raise important constitutional issues that demand sober and measured reflection. First, although federal courts traditionally have held that a conviction supported by perjured testimony is not unconstitutional unless the prosecutor or judge knew or had reason to know that the testimony was perjured, Dobbert argues that this approach is no longer valid after Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Dobbert correctly notes a split among the Circuits concerning the authority of federal courts to grant habeas relief when "newly available evidence conclusively shows that a vital mistake ha[s] been made." Grace v. Butterworth, 586 F.2d 878, 880 (CA1 1978). Compare Grace (such claims are cognizable); United States ex rel. Sostre v. Festa, 513 F.2d 1313 (CA2) (same), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975) with Drake v. Francis, 727 F.2d 990 (CA11 1984) (such claims are not cognizable because habeas is not concerned with questions of guilt or innocence), rehearing en banc granted id., at 1003.

Second, Dobbert argues that the federal courts should give attention to formulating proper standards for evaluating the materiality and credibility of recantations. He notes that the need for such consideration is especially great where, as here, the recanted testimony was the sole evidence supporting a conviction of first-degree murder.

Dobbert argues finally that, whatever the usual procedural rules regarding the consideration of a recantation, those rules must bend in the face of the Eighth Amendment. He notes that this Court has repeatedly invalidated procedural rules that " 'diminish the reliability of the guilt determination' " in capital cases, Application for Stay of Execution 16, quoting Beck v. Alabama, 447 U.S. 625, 638, 100 S.Ct. 2382, 2390, 65 L.Ed.2d 392 (1980), and argues that Eighth Amendment scrutiny should be applied to rules barring postconviction reconsideration of guilt as well as to procedural rules employed at trial.

However we ultimately might resolve these issues after research, argument, and reflection, they certainly are not frivolous. Yet the federal courts are about to let Dobbert go to the electric chair out of misplaced deference to an unexplained, and palpably inexplicable, state-court "factual" finding that there is, in fact, no "evidence or...