Jackson v. Marshall

• Decision Date: 18 June 2009
• Docket Number: Civil Action No. 99-11837-WGY.
• Citation: 634 F.Supp.2d 146
• Parties: David JACKSON, Petitioner v. John MARSHALL, Respondent.
• Court: U.S. District Court — District of Massachusetts

634 F.Supp.2d 146

David JACKSON, Petitioner v. John MARSHALL, Respondent.

Civil Action No. 99-11837-WGY.

United States District Court, D. Massachusetts.

June 18, 2009.

COPYRIGHT MATERIAL OMITTED

James J. Arguin, Susanne G. Reardon, Office of the Attorney General, Boston, MA, for Respondent.

Jeanne M. Kempthorne, Law Office of Jeanne M. Kempthorne, Salem, MA, Mark L. Stevens, Law Office of Mark Steves, Salem, NH, for Petitioner.

MEMORANDUM AND ORDER

YOUNG, District Judge.

I. INTRODUCTION

Petitioner David Jackson ("Jackson") brings a petition asking the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking reversal of his convictions in the Massachusetts Superior Court sitting in and for the County of Suffolk of murder in the first degree, armed robbery, and burglary. He contends that he was deprived of his federal constitutional right to due process when the Commonwealth failed to disclose material promises, rewards, and inducements made to its key witness, Stephen Olbinsky ("Olbinsky"); when the state prosecutor elicited and failed to correct Olbinsky's testimony that he had received no promises or inducements; and when the prosecutor improperly vouched for Olbinsky's credibility.¹

As described in an earlier ruling by this Court, Olbinsky testified at Jackson's trial that he was present on the night of the crime, traveled with Jackson to the location of the crime (to complete a drug purchase), and witnessed Jackson load a weapon before entering the location. See July 24, 2007 Memorandum and Order ("July 2007 Order") [Doc. No. 78] at 2. At the time of trial, Jackson's counsel attempted to impeach Olbinsky in the following ways: 1) by eliciting testimony from Olbinsky on cross-examination that he (Olbinsky) also faced murder charges for the same killing, 2) by cross-examining Olbinsky about his earlier statements to the police in a manner that revealed minor inconsistencies between what Olbinsky testified he had said and what the police reports indicated, and 3) by getting Olbinsky to acknowledge that at the time Olbinsky first made statements to the police in July 1990, he faced pending charges of, inter alia, larceny, assault and battery, and breaking and entering in the daytime. Jackson also sought to introduce evidence of pending charges against Olbinsky on a drug case in Oregon, which the judge excluded on the ground that Olbinsky's testimony at trial had not deviated from those statements "in any substantial and material way." Trial Tr. vol. 2, 139. See Commonwealth v. Haywood, 377 Mass. 755, 388 N.E.2d 648 (1979). In his closing argument, Jackson's counsel focused on the murder charge, arguing that Olbinsky was testifying to "save his own neck." Trial Tr. vol. 5, 40. He asked the jurors to use their "common sense" and argued that Olbinsky "would do anything, absolutely anything to please the government and convict [Jackson]." Trial Tr. vol. 5, 37.

Jackson now argues, pointing to information about Olbinsky's Massachusetts murder case and Oregon drug case that he has gathered since the trial, that the Court should grant a writ of habeas corpus because the new information supports Jackson's initial hunch that Olbinsky was induced to testify against him. What Jackson has learned and when he learned it is set forth below. First, a timeline of the events after the murder as now supported by the record.

The murder occurred in April 1990. Three months later, in July 1990, Olbinsky gave two separate statements to the police that were consistent with his later trial testimony. See Commonwealth v. Jackson, No. SJ-2003-0065, slip op. at 2 n.1 (Mass. Oct. 23, 2003) (Sosman, J.) ("Single Justice Order") [Doc 64-2]. The next month, Olbinsky left Massachusetts and went to Oregon because, he later testified, he was "scared." Trial Tr. vol. 2, 76.

On March 13, 1992, Jackson and Olbinsky both were indicted for murder in the first degree and warrants were issued for their arrest. Ten days later, Oregon police arrested Olbinsky at his Oregon residence pursuant to the Massachusetts warrant. At the same time, as a result of an unrelated drug investigation, they executed a search warrant on his residence and found methamphetamine.

Olbinsky was extradited by Massachusetts and arraigned here on the murder charge on April 13, 1992. Bail initially was set at $25,000 cash, but was reduced to $5,000 after a hearing on June 2, 1992. The positions taken by the parties at that hearing are not in the record here. Olbinsky satisfied bail that day and was ordered to report in person weekly to the probation department.

Shortly thereafter, on June 23, 1992, Olbinsky was indicted in Oregon for possession and delivery of methamphetamine and an arrest warrant issued. That same day, in Massachusetts, Olbinsky and the Suffolk County District Attorney entered into a bail agreement providing that Olbinsky would wear an electronic monitor as a condition of his release on bail. See Broker Deposition Exhibit 6 [Doc. No. 85]. Also that day, Olbinsky filed a motion to dismiss his murder indictment for lack of evidence.

Three days later, at the request of an assistant district attorney in Suffolk County, an Oregon district attorney requested that Olbinsky's Oregon arrest warrant be recalled. The Oregon district attorney file notes explain: "[e]vidently we're trying to work w[ith] prosecutors in Boston to treat this [defendant] nicely, as he's a material witness in a murder case there." Oregon's Response to Olbinsky's Motion to Dismiss [Doc. No. 74] at 5. Were the Oregon warrant not lifted, Olbinsky could not have been released on bail pending his Massachusetts trial.

Jackson was convicted of murder on April 16, 1993, based in part on Olbinsky's testimony. Prosecutor James Coffey ("Coffey") tried the case, after receiving the assignment approximately three weeks earlier.² Coffey Deposition [Doc. No. 82 Attach. 2] at 11. Approximately two weeks after Jackson's conviction, on April 30, 1993, Olbinsky's unopposed motion to dismiss his Massachusetts indictment was allowed. Olbinsky later pled guilty to the Oregon drug charge.

Jackson now argues, pointing to the Oregon district attorney file notes and related materials in that case, that in exchange for Olbinsky's promise to testify against Jackson, the Suffolk County District Attorney's office asked Oregon to lift its warrant so that Olbinsky could remain out on bail pending trial and that it later encouraged Oregon authorities to treat Olbinsky leniently in light of his cooperation. See Petitioner's Memorandum in Support of Petition for Habeas Corpus ("Jackson Mem.") [Doc. No. 83] at 26. He further contends that the Commonwealth "reached an understanding with Olbinsky, through his counsel, that he was not a genuine defendant facing first degree murder charges, but rather was merely a material witness for the prosecution." Jackson Mem. at 26. In support, Jackson has submitted an affidavit from his counsel, Jeanne Kempthorne, in which she describes a conversation she had on March 5, 2007, with the attorney defending Olbinsky on the murder charge, John Ruby ("Ruby"). Kempthorne avers that Ruby told her it was his understanding that Olbinsky was never anything more than a material witness and that the prosecutor had charged Olbinsky with murder in the first degree because he did not believe that out-of-state authorities would pay attention to a material witness warrant. See Kempthorne Affidavit [Doc. No. 72] at ¶ 7.

The procedural history of this case is lengthy and was described in detail in the July 2007 Order. See July 2007 Order at 1-7. A truncated version follows. After Jackson was convicted and Olbinsky's indictment was dismissed, Jackson moved for a new trial, arguing that the Commonwealth had never intended to prosecute Olbinsky and that it had induced his (Olbinsky's) testimony. The motion judge found, without taking evidence, that the Commonwealth did not offer Olbinsky any inducement for his testimony. Commonwealth v. Jackson, 428 Mass. 455, 458, 702 N.E.2d 1158 (1998). On December 10, 1998, the Massachusetts Supreme Judicial Court affirmed Jackson's convictions and the denial of his motion for a new trial. Id. The court concluded that the circumstances relied upon by Jackson to show inducement (the continuances of Olbinsky's case, his release on bail, and the Commonwealth's failure to oppose his motion to dismiss) were "insufficient to overturn the judge's finding that the Commonwealth did not offer [Olbinsky] any inducement for his testimony." Id. As to Jackson's claim that the prosecutor concealed from the jury the fact that the Commonwealth did not intend to prosecute Olbinsky, the court concluded that the "concealment, even if proved, would not have served to bolster [Olbinsky's] testimony." Id. at 459, 702 N.E.2d 1158. Rather, the court concluded, "[h]ad the prosecutor revealed that Olbinksky was no longer in danger of being tried for this crime and that he knew it, that would have done far more for Olbinsky's credibility than did the silence to which [Jackson] now objects." Id.

On September 24, 1999, Jackson filed a petition for habeas corpus, raising, inter alia, the prosecutor's remarks that no promises or inducements had been made to Olbinsky in exchange for his testimony. [Doc. No. 4]. He also requested an evidentiary hearing to determine whether Olbinsky received any promises or inducements. Id. The case was randomly drawn to Judge Keeton, who, by Memorandum and Order dated August 7, 2001, concluded that Jackson was not entitled to an evidentiary hearing because the facts underlying his inducement claim were fully developed in the state court proceedings. [Doc. No. 23] at 11. Judge Keeton also denied Jackson's petition on the merits. Id. at 36. With respect to the inducement claim, Judge Keeton emphasized that the state courts explicitly found that no promises or inducements were made, as a result of which he concluded that "the prosecutor's...