The Hunt - Chapter 6: The Errant Pube
A long story gets short and curly.
This is Chapter 6 in The Hunt, our ongoing serial. Read Chapter 4 here.
Justin hadn’t given much background on why he was looking into an old case in Stanislaus County.1 He shared his notes, a lovely timeline2, and the decision from the California Court of Appeal, 5th District.
That wasn’t quite enough.3
Facts, as recounted in appellate decisions, are exactly as accurate, explicit, and specific as the judge who drafted the opinion — and those who join it — require them to be. These facts are most often drawn from briefs, which are very formal, excruciatingly-formatted, length-constrained documents authored by lawyers far fancier than me.4
Briefs summarize only the evidence, testimony, arguments, and proceedings below5 necessary to allow a panel of judges to determine if the trial court erred in a very specific and outcome-determinative way. The appeals court will take the facts summarized in the briefs, and occasionally as set forth in the record, and further compress them while filtering out anything not necessary to their decision.
We needed more. We needed transcripts. Exhibits. An understanding of how this case was investigated and “solved,” not just how it was tried.
The Mouser case was decades old and worse, from California. California courts are notoriously stingy with records. California law enforcement agencies, even more so. And Westlaw is nice, but it’s not magic. No transcripts, of course. Definitely no exhibits. Not even the briefs.
Pacer, though. Pacer had the habeas filings.
Small digression: Fuck AEDPA, a reeking fatty turd smeared across the face of the great writ.
“Habeas corpus” is a common-law remedy. Older6 than the United States7 and Canada8, but not condoms9 or microscopes10, a writ of habeas corpus is a demand that a jailer bring forth a prisoner so that the court can determine whether their detention is lawful.
In the United States, until the mid-1990s, a writ of habeas corpus was a wrongfully convicted person’s first- or second-best chance at winning their freedom.
But because we can’t fucking have nice things – ever – a statute called the “Antiterrorism and Effective Death Penalty Act of 199611” took a giant greasy beer shit on the great writ, then set it on fire.
Before AEDPA, a prisoner could seek relief via habeas at any time after appeal. Post-AEDPA habeas is a one-shot deal, with a ticking clock. AEDPA requires habeas petitions to be filed within one year of the exhaustion of direct appeals.
A difficult calculation to make. And one that depends on a number of factors, the intersection of state and federal procedure, implicates rules on appeals, filing, mailing, calculation of dates, finality of judgments, “direct review” vs. “collateral proceedings,” statutory and equitable tolling, resulting in a patchwork clusterfuck that varies, state to state, and circumstance by circumstance.
We’ll discuss, in a later post, the story of Ryan Madden, a young man who died in prison because an experienced appellate attorney erred in his analysis of whether certain post-conviction motions would toll12 that critical one-year period.
Meaning, if a prisoner failed to discover and deliver evidence of corrupt prosecutors, Brady violations13, bad science, vanishing forensics, missing witnesses, lost alibis, etc., and craft a convincing and bullet-proof argument concerning how being framed is a constitutional violation in that too-short and ill-defined window after getting a final, for-real “no” from a high court, tough shit. No remedy. No options. Die in prison, friend.
Doug Mouser was convicted after AEDPA. He appealed and lost. He petitioned for habeas and lost. Meaning, more than likely, no matter what the habeas petition revealed – even if it was somehow irrefutable evidence of innocence somehow discernable to me, a nobody’s nobody, while escaping the notice of a federal judge – Mr. Mouser was screwed.
The habeas petition: What did the jury hear, and why?
Setting aside the legal arguments – I’m not licensed in California, not a criminal attorney, and Justin wasn’t looking for my legal analysis14, anyway– I wanted the facts. I wanted to know what the jury heard, from who, and why. The habeas filings did a better job than the appeals court at filling in the blanks.
Mr. Mouser’s habeas counsel described the prosecution’s theory of the case at trial, as follows:
The prosecution's theory of the case was that petitioner strangled Genna in the family home in Modesto on the morning of October 14, 1995, after Genna had defied petitioner by talking on the phone after having been prohibited from doing so. According to the prosecution, Genna's body was then placed in petitioner's car and driven to Tim Bell Road, where it was thrown down into a ravine.
No eyewitnesses were produced and no murder weapon was found. Neighbors and strangers testified to sighting of Genna at times and in places that were inconsistent with the prosecution's theory of the case. Despite the fact that Genna's body showed signs of struggle, petitioner's body contained no marks or signs of injury, no blood, hair or other physical evidence was found in petitioner's car, and no DNA of any kind was introduced against petitioner.
Although the prosecution emphatically contended at trial that the homicide was not a sex crime, Genna, a rebellious adolescent, had three boyfriends, some of whom had records for sex offenses and had actually lied to the police about their whereabouts on the day of the homicide.
A pubic hair found under Genna’s fingernail was not subjected to DNA testing by the prosecution once it was determined by other means that it could not have come from petitioner.
A footnote provided further concerning the untested hair:
The prosecution never subjected the hair found under Genna’s fingernail to DNA testing. Petitioner Mouser recently petitioned the trial judge to permit such testing under a California statute enacted subsequent to Mouser’s trial. Cal. Pen. Code section 1405. The court refused to permit the testing, and that order is being challenged in the state appellate courts.
This footnote was not a throw away.
If I did that kind of thing15, I’d take any bet that it was sweated over, crafted over hours, rewritten time after time, deleted, debated, replaced, put into petition text, considered as an endnote, before it took final form. If there is a single thing in the entire petition to rely on, it’s this footnote.
It’s just too critical to fuck up.
As discussed supra16 the window for habeas opens only after appeals are exhausted. It was likely unclear, at that time, whether the hair motion would render the habeas petition premature, but non-disclosure of critical procedural information is foolhardy. Wise counsel would describe the issue as clearly as possible, cross their fingers, and hope they hadn’t just doomed their client to life in prison. Mr. Mouser had wise counsel.
So the hair, at least as of 2005, existed.
The hair, at least as of 2005, remained untested.
And the court, at least as of 2005, refused to permit testing.
No eyewitnesses, one or more sex offenders, and a pube.
Cool.
All we’d have to do was track down the suspects, get their DNA, test the pube, demonstrate actual innocence, and get a legit lawyer to turn that into both newly-discovered evidence and a constitutional violation, and the miscarriage of justice would be undone.
Even better, we’d do it without ever having to learn what this “photogrammetry” shit was, or why that shady Canadian was freezing pigs.
Easy as pie.
Access to Pacer.
Timelines. Never. Stop. Timelining.
Again, I am nosy as fuck.
Most lawyers who work indoors are fancier than me.
“Below,” when referring to appeals, means the court proceedings that came before, at a lower level court or tribunal.
The writ was codified by the Habeas Corpus Act of 1679.
Most scholars agree that the United States was founded on July 4, 1776, in Philadelphia, Pennsylvania.
Most scholars agree that Canada was founded on May 17, 1964, in Hamilton, Ontario.
Gabriele Falliopio’s work describing the use of condoms for prevention of syphilis was published posthumously in 1564.
Dutch spectacle maker and inventor Zacharias Janssen made his first compound microscope around 1600.
The history, heartbreaks, and human costs of AEDPA will be addressed in a future post.
“Toll” means “pause,” here.
A “Brady violation” occurs when the prosecution withholds exculpatory evidence from the defense. If you don’t understand how this works, that’s fine. With the current 5-4 court, it won’t be a factor much longer.
Again, Westlaw, Pacer, etc.
Gambling has stakes. I hate stakes.
Supra is lawyer for “above.” As in, the reference to “Canada” in FN 8, supra, refers not to the largest nation on the North American continent, but to noted cultural institution Tim Hortons.