Faulder v. Johnson
| Decision Date | 10 April 1996 |
| Docket Number | No. 95-40512,95-40512 |
| Citation | 81 F.3d 515 |
| Parties | Joseph Stanley FAULDER, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Sandra Lynn Babcock, Office of the Public Defender, Hennepin County, Minneapolis, MN, for petitioner-appellant.
William Charles Zapalac, Asst. Atty. Gen., Dan Morales, Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for respondent-appellee.
Marjorie A. Meyers, Bennett, Secrest & Meyers, Houston, TX, for amicus curiae.
Appeal from the United States District Court for the Eastern District of Texas.
Before JONES, DUHE and WIENER, Circuit Judges.
Petitioner appeals from denial of his petition for writ of habeas corpus seeking relief from his death sentence. We affirm.
Petitioner, Joseph Stanley Faulder, is a Canadian citizen who was twice convicted and sentenced to death for the murder of Inez Phillips, an elderly widow, during the armed robbery of her home. The first conviction was reversed by the Texas Court of Criminal Appeals because Faulder's confession, which was admitted into evidence, was obtained in violation of the Fifth Amendment. Faulder v. State, 611 S.W.2d 630 (Tex.Crim.App.1979), cert. denied 449 U.S. 874, 101 S.Ct. 215, 66 L.Ed.2d 95 (1980). The second conviction was obtained with testimony from Faulder's accomplice, Lynda McCann, who did not testify at the first trial. Because no physical evidence connects Faulder to the murder, McCann's testimony was critical.
After unsuccessful direct appeals, Faulder filed a petition for habeas corpus and a motion for stay of execution in state court. The court held an evidentiary hearing on Faulder's ineffective assistance of counsel claim and recommended that relief be denied. The Court of Criminal Appeals denied Faulder's petition.
Faulder now seeks relief from the federal courts. He filed a petition for writ of habeas corpus and motion for stay of execution. The district court granted the stay of execution and held an evidentiary hearing on the use of special prosecutors and whether the prosecution allowed McCann to testify falsely. After the hearing, the court denied Faulder's petition but granted a certificate of probable cause to appeal. Faulder claims he is entitled to relief because: (1) the use of special prosecutors violated the Eighth and Fourteenth Amendments, (2) the prosecution allowed its chief witness, Lynda McCann, to testify falsely in violation of Faulder's Fifth, Sixth and Fourteenth Amendment rights, (3) Faulder received ineffective assistance of counsel, and (4) Faulder's right to compulsory and due process was violated when law enforcement officials violated the Vienna Convention on Consular Relations.
We review the district court's findings of fact for clear error, but review issues of law de novo. Williams v. Collins, 16 F.3d 626 (5th Cir.1994). A finding of fact is clearly erroneous only when the reviewing court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id.
There is no per se constitutional prohibition against the use of special prosecutors. Powers v. Hauck, 399 F.2d 322 (5th Cir.1968). However, the use of special prosecutors raises concerns that the prosecutor's loyalty to the person who pays the special prosecutor may override the interests of society in justice and a fair trial for the accused. We require, therefore, that the district attorney retain control of the prosecution, the special prosecutor not be guilty of conduct prejudicial to the defendant, and the rights of the defendant be duly observed. Id. at 325.
Faulder argues that the special prosecutors controlled his prosecution. Control of the prosecution means control of crucial prosecutorial decisions, such as whether to prosecute, what targets of prosecution to select, what investigative powers to utilize, what sanctions to seek, plea bargains to strike or immunities to grant. East v. Scott, 55 F.3d 996 (5th Cir.1995). Control is not determined according to a quantitative analysis or a determination of who was lead counsel at trial. Person v. Miller, 854 F.2d 656 (4th Cir.1988) (cited East, 55 F.3d at 1001). In fact, "[w]e can conceive of situations in which without ever relinquishing effective control of the prosecution government counsel might for tactical reasons give over even more substantial portions of the actual conduct of trial to particularly skilled or knowledgeable private counsel." Person, 854 F.2d at 663.
The special prosecutors in the second trial were Odis Hill, the former district attorney who prosecuted Faulder at his first trial and Phil Burleson, a former prosecutor and well known criminal defense attorney. Mr. Hill resigned from his position as district attorney between Faulder's first and second trial. After the new district attorney, Robert Foster, was appointed, Hill offered to assist in retrying Faulder. Within thirty days of taking office, Foster faced two other demanding trials and the death of his mother. Considering his professional and personal demands and the relative inexperience of his remaining staff, Foster accepted Hill's offer. Five months later, the victim's son agreed to pay fees to Hill's law firm. 1
After the first conviction was overturned, Burleson was hired by the victim's son to determine whether a second prosecution was possible without the use of Faulder's confession. Burleson retained investigators and a Canadian law firm to aid in rendering his opinion that a second prosecution could proceed provided McCann would testify. All of Burleson's fees and expenses were paid by the victim's son.
Foster assigned Jim McCoy, an assistant district attorney with two years experience, to be his representative. McCoy kept a low public profile both before and at trial and allowed Hill and Burleson to take the lead in the proceedings. At the district court evidentiary hearing, however, Hill testified that he always understood that the district attorney had the final word and would maintain control and management of the case. Hill maintained contact with Foster and he and Foster were in agreement on decisions made throughout the case. Burleson worked with Hill and Hill in turn made the necessary contacts with Foster. Further, Hill, Burleson and McCoy testified that they made decisions together, prepared witnesses together, were in agreement on most issues and worked out the differences on all others.
In light of Hill's prior relationship with the district attorney's office, the frequent communication between counsel and clear understanding of the district attorney's final decision-making authority, we agree with the district court's conclusion that the district attorney controlled Faulder's prosecution.
Faulder claims that Burleson's investigative activities were conducted without the involvement or knowledge of the district attorney's office and therefore, he is entitled to relief. This argument does not merit reversal. First, use of investigative resources is only one of several prosecutorial decisions which we must consider in determining control. Second, even if Burleson's actions were violative of our standard, the violations were corrected once Hill began to assist in the prosecution and McCoy was assigned by Foster. 2 From at least that point on, the district attorney was in control of the prosecution. See Woods v. Linahan, 648 F.2d 973 (5th Cir. Unit B June 1981).
Faulder also contends that the use of special prosecutors violates the Eighth Amendment and causes arbitrary and capricious imposition of the death penalty. He reasons that defendants who kill wealthy victims are more likely to receive the death penalty because their cases are more vigorously prosecuted by special prosecutors hired by family and friends of the victim. We find no merit in Faulder's argument. To accept this argument would mean that prosecutions involving special prosecutors would be per se unconstitutional in direct opposition to the rule of Powers.
Faulder argues that he was denied due process when the prosecution did not correct McCann's false testimony. At trial, defense counsel asked whether McCann was promised $10,000 to $15,000 in return for her testimony. McCann stated, under vigorous cross examination, that she had not been promised money in return for her testimony. She said she expected relocation expenses although not in the form of cash payment. The government's witnesses corroborate McCann's testimony that McCann would be provided relocation expenses by the victim's son to protect McCann from Faulder should he be acquitted.
A state denies a criminal defendant due process when it...
To continue reading
Request your trial
-
Hernandez v. Thaler
...in violation of a defendant's right to consular notification under Article 36), cert. denied, 531 U.S. 987 (2000); Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir.)(holding violation of a criminal defendant's consular notification rights under the Vienna Convention was harmless error), cert. ......
-
Goodwin v. Johnson
...defendant due process when it knowingly uses perjured testimony at trial or allows untrue testimony to go uncorrected." Faulder v. Johnson, 81 F.3d 515, 519 (5th Cir.) (citing Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)), cert. denied, --- U.S. ----, 117 S.Ct. 487,......
-
U.S. v. O'Keefe
...Napue v. Illinois, 360 U.S. at 269, 79 S.Ct. 1173; Miller v. Pate, 386 U.S. 1, 7, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Faulder v. Johnson, 81 F.3d 515, 519 (5th Cir.), cert. denied, 519 U.S. 995, 117 S.Ct. 487, 136 L.Ed.2d 380 (1996); Pyles v. Johnson, 136 F.3d 986, 996 (5th Cir.1998); (2) ......
-
Garcia v. Thaler
...right to consular notification under Article 36), cert. denied, 531 U.S. 987, 121 S.Ct. 445, 148 L.Ed.2d 449 (2000); Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir.) (holding violation of a criminal defendant's consular notification rights under the Vienna Convention was harmless error), cer......