Jackson v. Wainwright
| Decision Date | 26 February 1968 |
| Docket Number | No. 24233.,24233. |
| Citation | 390 F.2d 288 |
| Parties | Herman JACKSON, Jr., Appellant, v. L. L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Walter G. Arnold, Jacksonville, Fla., for appellant.
Earl Faircloth, Atty. Gen., James G. Mahorner, David U. Tumin, Asst. Attys. Gen., Tallahassee, Fla., for appellee.
Before TUTTLE and WISDOM, Circuit Judges, and HEEBE, District Judge.
In this habeas proceeding we hold that the prosecutor's failure to disclose exculpatory evidence violated the duty of candor imposed on a prosecutor in dealing with a criminal accused. The undisclosed evidence related to the critical issue of the identification of the accused as the guilty party, and the exculpatory evidence came from the only eyewitness to the alleged criminal act. In these circumstances, the effect of the nondisclosure was to deprive the defendant of a fair trial.
* * *
In the early evening of February 26, 1960, in the Lake Worth Section of West Palm Beach, Florida, near Dixie Highway, Herman Jackson, the petitioner — so the State of Florida charged — pulled a thirteen year old girl from a telephone booth, dragged her across the road into some bushes, and at the point of a knife raped her.
In investigating the crime, local officers learned that Jackson's father had a home in the neighborhood near where the act had occurred; that Jackson visited his father's home on the day in question and he had been seen at a saloon in the area playing cards and drinking beer. Jackson was arrested March 3, 1960. He was exhibited to the victim, through a one-way mirror, with one other man, a Puerto Rican. She identified Jackson as her attacker.
The officers who interrogated Jackson testified that he denied his guilt and permitted them to search his house.1 He told them, "I ain't got nothing to hide". As a result of the search, the officers seized certain clothing, including a pair of trousers, later introduced at the trial, which allegedly contained traces of semen and blood. At the trial, Jackson acknowledged that on February 26 he had been in the general area where the rape occurred, but asserted that he had been there to visit his father and to play cards and have some drinks with friends. In addition to the spots on Jackson's trousers, there was other circumstantial evidence. The State contended that molds of shoe tracks taken from the ground near the telephone booth and where the crime occurred matched tracks of the shoes Jackson wore February 26, 1960. The State introduced in evidence fibers of cloth, taken from the bushes in the area, allegedly similar to the fibers in the clothes Jackson was wearing February 26. The identification of the shoe tracks and the fibers was not positive. The defense sought to explain the spots on his trousers by Mrs. Jackson's testimony that she and her husband had intercourse that evening when he returned home; that since the birth of her child five months before, she had been subject to vaginal bleeding. The blood samples were not positively identified as to type.
There was one eyewitness. This witness, Mrs. Alta Elberty, saw the preliminary struggle as she was driving by on the highway at about eight o'clock at night. At a hearing on a motion for a new trial she testified that "it seemed as though it was quite lit up for that time of the evening, I noticed that it was quite light compared to what it usually is". She saw what appeared to her to be a young blond girl about three feet from the curb struggling with an "older brother or an older member of the family twisting her arm" or "some teenagers horsing around."2 Mrs. Elberty, feeling that there was nothing amiss, did not stop her car or then report the incident. The next day, however, on reading the newspapers she concluded that she had witnessed part of the crime. As she testified later, "it didn't dawn on me until the papers came out, and in the papers it said a Negro boy assaulted a white girl, and I said, well I said that isn't the thing I saw, because he wasn't a Negro, and I said this to different people. * * *" Mrs. Elberty, a beautician, stated that she was especially conscious of complexions and hair coloring.
March 9 Mrs. Elberty went to the Lake Worth Police Station, where she was shown photographs of five young girls. She immediately picked out the girl that she had seen the previous Friday night, the victim, and described her as having "light blonde short hair".
In a signed statement to the Lake Worth Police Department dated March 28, 1960, Mrs. Elberty stated: But she had no doubts that his skin was light. Testifying at the first hearing on the motion for a new trial, Mrs. Elberty said that she had told the police:
Under vigorous cross-examination, Mrs. Elberty was uncertain just how to characterize the man, but she never wavered in her conclusion that he was too light-skinned to be Jackson. She stated that "from the front he looked white and from the back he looked colored". And she admitted that the man she saw might have been a white man with a sun tan, a Puerto Rican, or a light-skinned Negro — but she invariably described him in terms that could not have fitted Jackson.
Before the trial Jackson's attorney, court-appointed, was put on notice only that Mrs. Elberty could not identify the attacker. The record contains the affidavit of George W. Greer who is not identified but appears to have been a deputy sheriff. The affidavit states that about one week before the trial defense counsel called at Greer's office to inspect the physical evidence against Jackson and to obtain a list of witnesses.4 Greer gave him a list of witnesses that included Mrs. Elberty's name and address. But Greer informed the attorney that Mrs. Elberty saw the incident and could identify the girl but not the attacker. In his motion for a new trial, Smith alleged that on several occasions he had attempted to reach Mrs. Elberty by telephone, but had been unable to do so.5
The State subpoenaed Mrs. Elberty and she was present when the case was called. She was not put on the witness stand.6 At about four o'clock in the afternoon of the first day of the trial, Mrs. Elberty spoke with the prosecutor in the witness room. Apparently this was the first time he had seen her. She complained about losing time from her work, and sought to be excused. She later testified that she informed him, as she had informed the police, that the man she had seen — who could have been the brother of the blonde victim — was "lighter" than the defendant whom she had seen in the courtroom that morning. She specifically "brought to his the prosecutor's attention that his color, that the color of the man that I saw that night at that moment with the girl was not a dark person."
Jackson maintained his innocence throughout the trial and at his sentencing. His unsuccessful defense was an alibi. The trial judge, in his charge to the jury regarding the weight to be given to the testimony of the prosecutrix, instructed the jury that "no other person was an immediate witness to the alleged act."
Shortly after the trial, defense counsel moved for a new trial based on newly discovered evidence.7 On direct examination at the hearing on this motion, July 28, 1960, Mrs. Elberty testified that she thought the man she saw was "an older brother or an elder member of the family" of the young light blonde girl; that "he wasn't a Negro"; that "his complexion did not in any way look like the complexion of the defendant" but "was light, no, it wasn't the defendant because he wasn't as dark as this boy * * * so, I dismissed it from my mind". On cross-examination Mrs. Elberty testified:
As the record indicates, local newspapers picked up the significance of Mrs. Elberty's testimony and published articles on the hearing. Thereupon the prosecutor initiated a second hearing August 2, 1960. At this hearing he presented the affidavit, previously referred to, of George Greer, then in military service. And he recalled Mrs. Elberty. Defense counsel objected to the hearing "to rebut any extra-judicial statements that have been made by the papers about * * * what went into the record here as of last Thursday". The prosecutor stated that he was not concerned with the newspapers; he wished to rebut the rebuttal and he wanted the court to have the full picture....
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