Examples of Serious Error
Warranting Federal Habeas Corpus Relief
1. Amadeo v. Zant, 486 U.S. 214 (1988) (Georgia) (prosecutor
unconstitutionally instructed jury commissioner to under-represent African-Americans on
the jury venire).
2. Banks v. Reynolds, 54 F.3d 1508 (10th Cir. 1995) (Oklahoma)
(prosecution suppressed evidence that at least three other men were previously arrested
for the crime with which petitioner was charged, that two of them had been positively
identified by eyewitnesses, and that the cell-mate of one of the previously arrested
suspects claimed that THE suspect had confessed to the crime).
3. Beam v. Paskett, 3 F.3d 1301 (9th Cir. 1993), cert denied, 511 U.S. 1060
(1994) (Idaho) (death sentence premised in part on trial judge's distaste for
peti-tioner's prior history of nonviolent "abnormal sexual relation-ships,"
including homosexuality and relation-ships with women substantially younger and older than
4. Bowen v. Maynard, 799 F.2d 593 (10th Cir.), cert denied, 479 U.S. 962
(1986) (Oklahoma) (prosecutors suppressed a sheaf of investigative reports that a
suspect other than the capitally sentenced petitioner had murdered the victim and that an
investigating officer with a grudge against the petitioner had maliciously framed him;
Bowen was subsequently released from prison for lack of any evidence of his guilt).
5. Brown v. Wainwright, 785 F.2d 1457 (11th Cir. 1986) (Florida) (state
deliberately withheld fact that chief witness against Brown lied on the stand about not
having been granted leniency in return for testifying against Brown; on retrial, Brown was
released from prison after the charges against him were dropped).
6. Buttrum v. Black, 908 F.2d 965 (11th Cir. 1990) and 721 F. Supp. 1261
(N.D. Ga. 1989) (Georgia) (prosecutor unconstitutionally secured death sentence based
on a plethora of errors, including (1) insisting on going to trial before a jury saturated
with prejudicial pretrial publicity; (2) employing a private psychiatrist to testify
against Buttrum but insisting that she be limited to the services of a psychiatrist
employed by and beholden to the state, rather than the independent expert the Constitution
requires; (3) blatantly and unconstitutionally inviting the jurors to use against Buttrum
the fact that she had exercised her right not to testify; (4) urging the jury, whatever
its qualms about a death sentence might be, to impose that punishment because the decision
would later be reviewed by appellate courts that would bear the real responsibility for
Buttrum's fate; (5) urging the jury to ignore factors warranting mercy, notwithstanding
that the Constitution makes those very factors the crux of the sentencing decision; (6)
relying on a vague and overbroad aggravating circumstance as a basis for a death sentence)
7. Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997) (en banc), cert. denied,
118 S. Ct. 1827 (1998) (Arizona) (prosecutor failed to disclose information in state's
files showing that prosecution's central witness-who later confessed to the murder he
theretofore had successfully pinned on petitioner at trial-had a "long history"
of prior crimes and assaultive acts and "of lying to the police and blaming others to
cover up his own guilt"; Carriger subsequently pled guilty to a lesser offense in
return for the state's agreement that he be immediately released, see generally Samuel R.
Gross, Lost Lives: Miscarriages of Justice in Capital Cases, 61 L. & CONTEMP. PROB.
125, 139-40 (1998)(providing additional details on Carriger case)).
8. Cervi v. Kemp, 855 F.2d 702 (11th Cir. 1988), cert. denied, 489 U.S. 1033
(1989) (Georgia) (after Cervi informed the judge at an initial hearing that he wanted
a lawyer, thus giving him a constitutional right to the assistance of counsel before and
while being questioned by police-and during the very period when Cervi's lawyer was in the
police station repeatedly demanding to see his client, but was denied the
opportunity-police interrogated Cervi until he confessed; Cervi was resentenced to life).
9. Chambers v. Armontrout, 907 F.2d 825 (8th Cir.), cert. denied, 498 U.S.
950 (1990) (Missouri) (counsel incompetently failed to inter-view and call witness who
would have supported peti-tioner's claim that he did not deserve the death penalty because
he acted in self-defense).
10. Clemons v. Bowersox, 124 F.3d 944 (8th Cir. 1997) (Missouri) (on
rehearing after relief initially had been denied, conviction and death sentence were
overturned due to the state's suppression of an eye-witness report identifying as the
actual killer another man whom Clemons had all along claimed was the culprit; on retrial
in February 2000, Clemons was acquitted)
11. Christy v. Horn, 28 F. Supp. 2d 307 (W.D. Pa. 1998) (Pennsylvania)
(prosecutor violated due process by disparaging petitioner's mental illness defense
despite the prosecutor's awareness of inadmissible evidence substantiating the defense and
by implicitly encouraging the jury to believe, erroneously, that petitioner might be
eligible for parole if sentenced to life imprisonment; in addition, the trial court
unconstitutionally denied a defense request for an independent psychiatrist at guilt and
penalty stages and instead limited the accused to a court-appointed psychiatrists who was
not competent to marshal the necessary facts; in addition, Christy's attorneys provided
prejudicially incompetent representation at the penalty phase by "fail[ing] to
investigate the mountain of mitigating evidence readily available to them," failing
to seek psychiatric testimony, failing to object to the prosecutor's improper closing
argument, and incorrectly advising the jury about Pennsylvania law in a manner that was
highly prejudicial to Christy).
12. United States ex rel. Collins v. Wellborn and United States ex rel.
Bracy v. Gramley, 79 F. Supp. 898 (N.D. Ill. 1999) (Illinois) (death sentences
overturned based on proof that trial judge, who repeatedly took bribes to acquit in other
cases, exhibited compensatory pro-prosecution bias against Collins and Bracy and other
defendants who did not bribe him).
13. Crivens v. Roth, 172 F.3d 991 (7th Cir. 1999) (Illinois) (prosecutor
failed to disclose that its key eyewitness had a criminal history and had used an alias in
past, thereby "demonstrat[ing] a propensity to lie to police officers, prosecutors,
and even judges").
14. Davis v. Zant, 36 F.3d 1538 (11th Cir. 1994) (Georgia) (conviction
and death sentence overturned due to blatant prosecutorial misrepresentations to the jury
in the course of objections and closing argument: having successfully objected to Davis'
effort to inform the jury that another person had confessed to the killing for which Davis
was convicted and sentenced to die, and having known that Davis for months before trial
had hinged his defense on his claim that the other person was the killer, the prosecutor
repeatedly vouched to the jury that there was no evidence that the other person had
committed the crime and that Davis had "fabricated" the defense at the last
minute, during the course of the trial).
15. Felder v. McCotter, 765 F.2d 1245 (5th Cir. 1985), cert. denied, 484 U.S.
1077 (1986) (Texas) (after Felder was appointed counsel, giving him a constitutional
right to have his lawyer present when the police questioned him, and after the appointed
lawyer told the police he wanted to be present at any interrogation, the police proceeded
to interrogate Felder (a man of low intelligence) outside the presence of counsel, using a
variety of strategems designed to make Felder believe the police knew he was guilty, until
16. Ford v. Norris, 67 F.3d 162 (8th Cir. 1995) (Arkansas) (conviction
and death sentence overturned because of "overwhelming record evidence . . . that the
prosecutor routinely attempted to pervert the peremptory challenge system by using it to
exclude black venirepersons for reasons wholly unrelated to the trial" and did so at
Ford's trial, striking every potential black juror, and giving an explanation in each case
that was blatantly pretextual because it was either a false statement of the facts
regarding the prospective juror or, if true, would have required the prosecutor to strike
white jurors whom he left on the jury; district judge also found ineffective assistance of
trial counsel at the sentencing phase).
17. Francis v. Franklin, 471 U.S. 307 (1985) (Georgia) (trial judge
instructed jury to "presume" that defendant was guilty of murder unless
defendant proved otherwise).
18. Groseclose v. Bell, 130 F.3d 1161 (6th Cir. 1997), cert. denied, 118 S.
Ct. 1826 (1998) (Tennessee) (counsel failed to develop defense theory and "to
conduct any meaningful adversarial challenge, as shown by his failure to cross-examine
more than half of the prosecutions' witnesses, to object to any evidence, to put on any
defense witnesses, to make a closing argument, and, at sentencing, to put only any
meaningful mitigation evidence"; instead, counsel abdicated client's case to counsel
for codefendant who presented a defense that was antagonistic to Groseclose).
19. Guerra v. Johnson, 916 F. Supp. 620 (S.D. Tex. 1995), aff'd, 90 F.3d 1075
(5th Cir. 1996) (Texas) (police and prosecutors, among other things,
"intimidated" numerous eyewitnesses, who initially said that petitioner's
companion fired the fatal shots, into corroborating the prosecution's theory that Guerra
had fired the shots-in the process coercing witnesses into giving testimony and into
signing affidavits that the police and witnesses knew were false; police told one witness
that her common-law husband was at risk of parole revocation if she did not cooperate and
told another witness that her infant daughter could be taken from her if she refused to
cooperate; district judge concluded that the defendant would surely have been acquitted if
he had received a fair trial; on retrial, the D.A. demanded that the state trial judge
reconsider all of the federal courts' findings about prosecutorial misconduct, which the
trial judge did, concluding that the findings were accurate in all respects; in April
1997, the D.A. dropped all charges against Guerra, and he was released).
20. Harris v. Wood, 64 F.3d 1432 (9th Cir. 1995) (Washington) (counsel
incompetently failed to interview a majority of the witnesses, advised the defendant to
confess to the prosecutor without receiving any promise of reduced charges in return, and
failed to file potentially meritorious suppression motions, to propose or object to
improper jury instructions, and to raise and preserve meritorious issues for appeal).
21. Houston v. Dutton, 50 F.3d 381 (6th Cir.), cert. denied, 516 U.S. 905
(1995) (Tennessee) (capital conviction overturned because-in a trial at which the
single, decisive issue was whether the defendant deliberately killed the victim or whether
the killing was an accident, and at which the state's evidence on that decisive issue was
so weak that it raised a substantial question whether it was even barely sufficient to
avoid a directed verdict in favor of the defense-the trial judge instructed the jury that
it was required to "presume" that the killing was intentional).
22. Jones v. Thigpen, 788 F.2d 1101 (5th Cir. 1986), cert. denied, 479 U.S.
1087 (1987) (Mississippi) (counsel conducted no investigation in mitigation of death
penalty and did not realize, nor inform jury, that his client had an I.Q. below 41).
23. Jurek v. Estelle, 623 F.2d 929 (5th Cir. 1980) (en banc), cert. denied,
450 U.S. 1001 (1981) (Texas) (habeas decision overturning a capital conviction after
police obtained two very different confessions from the mentally deficient petitioner
during a 42-hour period of interrogation without counsel; the exculpatory version of the
confession, not admitted at trial, appeared to be in the defendant's words; the
inculpatory version, used at trial, had prose beyond defendant's ken).
24. Kordenbrock v. Scroggy, 919 F.2d 1091 (6th Cir. 1990) (en banc), cert.
denied, 499 U.S. 970 (1991) (Kentucky) (police obtained confession after (1) ignoring
petitioner's statements that he wanted the interrogation to stop, (2) threatening to
arrest petitioner's girlfriend (against whom they had no evidence) and (3) threatening to
send petitioner to Ohio, where, police said, he could be held incommunicado and put
through "an ordeal [he] may not forget for a long time," then (4) suppressed the
tape-recorded version of the confession and pieced together a written statement giving a
far more inculpatory account than the actual confession).
25. Kyles v. Whitley, 514 U.S. 419 (1995) (Louisiana) (in investigating
robbery-murder of supermarket customer in store's parking lot, New Orleans police (1)
accepted the word of a long-time criminal and police informant Beanie, whom police found
in possession of the victim's car, that Curtis Kyles had sold him the car, while
suppressing a variety of statements by Beanie that (a) were inculpatory,
self-contradictory and inconsistent with Beanie's trial testimony, (b) suggested that
Beanie (in his own words) had "'set up'" Kyles, and (c) revealed a course of
dealings between Beanie and the police that strongly impugned the investigation, then (2)
manipulated eyewitnesses into identifying Kyles at trial, inconsistently with their
initial but thereafter suppressed descriptions that much more closely matched Beanie; a
majority of jurors in three successive retrials voted to acquit Kyles, whom prosecutors
finally released from custody).
26. Martinez-Macias v. Collins, 810 F. Supp. 782 (W.D. Tex. 1991), aff'd, 979
F.2d 1067 (5th Cir. 1992) (Texas) (conviction and death sentence overturned due to
egregious, comprehensive, prejudicial incompetence by trial lawyer who (1) failed to call
disinterested alibi witness who was available at time of trial and whose testimony would
have established that Macias could not have committed the offense; (2) failed to impeach a
crucial prosecution witness with her contradictory statements before trial to a private
investigator and by calling witnesses who were with the witness at the critical time and
did not see what she saw; (3) failed to investigate and present evidence from defendant's
family members regarding Macias's good character traits, failed to prepare defendant's
wife for testimony, and failed to utilize records from a California rehabilitation center
to demonstrate the defendant's good behavior and attempts to rehabilitate while in
custody; (4) failed to utilize an expert witness to introduce important mitigating
information-all of which, taken together, left the federal court of appeals "with the
firm conviction that Macias was denied his constitutional right to adequate counsel in a
capital case in which actual innocence was a close question" and that the "state
[having] paid defense counsel $11.84 per hour[,] [u]nfortunately . . . got only what it
paid for"; on remand, Macias was released after a grand jury determined that there
was not even enough evidence of guilt to justify indicting him).
27. United States ex rel. Maxwell v. Gilmore, 37 F. Supp. 2d 1078 (N.D. Ill.
1999) (Illinois) (granting evidentiary hearing to capitally sentenced habeas
petitioner and denying presumption of correctness to state court's voluntary-confession
finding because the state suppression-hearing judge "did not have access to the
voluminous [subsequently disclosed] information about the systematic . . . [physical]
abuse [of suspects by the police unit that interrogated and secured a confession from
Maxwell], . . . and Maxwell's attorney never had the opportunity to use that information
to cross-examine the officers who testified at the suppression hearing"). In regard
to the police unit that took the confession in Maxwell's case, see Sasha Abramsky, Trial
by Torture, Mother Jones, March 3, 2000 ("Dozens of other prisoners [including 10
death row inmates] have come forward saying they were tortured into confessing by police
officers from . . . Area Two" and presenting "hair-raising and remarkably
consistent [claims] . . . of alligator clips attached to their ears, noses, mouths,
penises, and testicles; of electric shocks to the genitals; of being burned atop
radiators" and of "mock executions" and "bags put over their heads for
minutes at a time, a technique known as the 'Dry Submarino'").
28. McDowell v. Dixon, 858 F.2d 945 (4th Cir. 1988), cert. denied, 489 U.S. 1033
(1989) (North Carolina) (police withheld the fact that before petitioner's arrest for
the offense, the chief prosecution witness-who at trial identified petitioner, a
dark-skinned African American man sentenced to die for the offense, as the assailant-had
told police that the assailant was white).
29. Miller and Jent v. Wainwright, Nos. 86-98-Vic.-T-13 and 85-1910-Civ.-T-13
(M.D. Fla. Nov. 13, 1987) (Florida) (prosecutor exhibited "callous and deliberate
disregard for ... truth" by suppressing police reports identifying numerous witnesses
who were fishing at the location where the victim's body was found at the only time the
two capitally sentenced petitioners (who otherwise had an airtight alibi defense) could
have deposited the victim's body and who saw nothing amiss; Jent and Miller pled to a
lesser offense and were immediately released on time served).
30. Monroe v. Blackburn, 748 F.2d 958 (5th Cir. 1984), cert. denied, 476 U.S.
1145 (1985) (Louisiana) (state failed to disclose that police obtained information
after trial that someone other than petitioner may have committed the murder).
31. Orndorff v. Lockhart, 998 F.2d 1426 (8th Cir. 1993), cert. denied, 511
U.S. 1063 (1994) (Arkansas) (prosecutor failed to inform defense that key witness in
favor of death penalty was hypnotized prior to trial, preventing fair cross-examination
concerning discrep-ancies between witness's prehypnotic and posthypnotic statements to
32. Parker v. Bowersox, 188 F.3d 923 (8th Cir. 1999) (Missouri) (defense
counsel failed to respond to state's argument in aggravation-that defendant killed his
girlfriend to eliminate her as a witness against him in a criminal proceeding-by
presenting accessible evidence proving that petitioner knew for certain prior to the
murder that the victim could and would not testify against him).
33. Parker v. Dugger, 498 U.S. 308 (1991) (Florida) and Richmond v.
Lewis, 506 U.S. 40, 48 (1992) (Arizona) and Stringer v. Black, 503 U.S. 222 (1992)
(Mississippi) (state appellate court struck down an aggravating circumstance on which a
death sentence was based without determining whether a death sentence remained appropriate
absent the faulty aggravating circumstance).
34. Paxton v. Ward, 199 F.3d 1197 (10th Cir. 1999) (Oklahoma)
(overturning judgment because D.A. "clearly and deliberately made two critical
misrepresentations to the jury" as an "an integral part of the deprivation of
Mr. Paxton's constitutional rights to present mitigating evidence, to rebut evidence and
argument used against him, and to confront and cross-examine the state's witnesses")
35. Rickman v. Bell, 131 F.3d 1150 (6th Cir. 1997), cert. denied , 118 S. Ct.
1827 (1998) (Tennessee) (counsel's "total failure to actively advocate his
client's cause" and "repeated expressions of contempt for his client for his
alleged actions" had the effect of "provid[ing] [petitioner] not with a defense
counsel, but with a second prosecutor").
36. Shillinger v. Haworth, 70 F.3d 1132 (10th Cir. 1995) (Wyoming)
(deputy sheriff's listening in on and reporting to prosecutor substance of defense
counsel's jailhouse conversations with client violated Sixth Amendment right to counsel).
37. >Estelle v. Smith, 451 U.S. 454 (1981) (Texas) (state-employed
psychiatrist was permitted to testify at death penalty phase based on petitioner's
pretrial statements that were not freely and voluntarily given and that were made without
counsel or waiver of counsel).
38. Smith v. McCormick, 914 F.2d 1153 (9th Cir. 1990) (Montana) (state
unconstitutionally secured a death sentence against an indigent defendant with mental
disorders when the trial judge (1) forced the defense to rely on the psychiatric
evaluation of a doctor acting under the direction of the judge (who had previously
sentenced Smith to die), rather than appointing the independent psychiatrist required by
law in a case in which doing so would have generated substantial mitigating evidence; (2)
refused to consider most of the mitigating circumstances that Smith did manage to present;
and, (3) as to the limited set of mitigating factors the judge did take into
consideration, he refused to assess their overall effect in mitigation, instead insisting
that each individual factor be sufficient in itself to warrant a life sentence).
39. Stockton v. Virginia, 852 F.2d 740 (4th Cir. 1988), cert. denied, 489
U.S. 1071 (1989) (Virginia) (in lunch break during jury's death sentenc-ing
delibera-tions, courtroom deputies allowed owner of restaurant in which jurors were eating
to tell jurors "they ought to fry the son of a bitch").
40. Strickland v. Francis, 738 F.2d 1542 (11th Cir. 1984) (Georgia)
(state court violated Strickland's due process rights by forcing him to trial despite
mental disorders so severe and unequivocal that he had no idea what the proceedings were
about and could not assist his attorney).
41. Troedel v. Dugger, 828 F.2d 670 (11th Cir. 1987), aff'g 667 F. Supp. 1426
(S.D. Fla. 1986) (Florida) (prosecutor suborned testimony of expert witness at
separate trials of two codefendants that each codefendant had to have been sole triggerman
in single killing with which both were charged and for which Troedel was sentenced to
42. Turner v. Murray, 476 U.S. 28 (1986) (Virginia) (trial court forbade
capital defendant charged with interracial crime to question prospective jurors in order
to discover possible racial biases)
43. Wade v. Calderon, 29 F.3d 1312 (9th Cir. 1994) (California) (sentence
of death based on unconstitutionally vague special circumstance of torture-mur-der and
based on prejudicially ineffective representation at penalty phase due to counsel's
failure to present any significant evidence of defendant's child abuse and his argument to
the jury that executing defendant would benefit him by freeing him of his mental illness).
44. Wallace v. Kemp, 757 F.2d 1102 (11th Cir. 1985) (Georgia) (capitally
sentenced petitioner found to have been incompetent to assist attorney at trial; on
retrial, after being restored to sanity, Wallace was acquitted).
45. Wheat v. Thigpen, 793 F.2d 621 (5th Cir. 1986), cert. denied, 480 U.S.
930 (1987) (Mississippi) (prosecutor encouraged jurors to exercise less than full
responsibility for death sentence by telling jurors that any mistake they made in
sentencing the defendant to die would be corrected by an appellate court).
46. Wilkins v. Bowersox, 145 F.3d 1006 (8th Cir. 1998), cert. denied 119 S.
Ct. 852 (1999) (Missouri) (conviction and death sentence overturned because the trial
court permitted the 16-year old defendant-who "from infancy through his teenage years
[had] suffered severe physical and emotional abuse at the hands of his mother and other
adults in his life," who "began abusing drugs as a kindergartner on his way to
school," who was diagnosed at age 10 "as a severely depressed boy with homicidal
and suicidal tendencies," who "was transferred in and out of mental health
facilities" between ages 10 and 16, and who court-appointed psychiatrists at trial,
on direct appeal and during state post-conviction proceedings had unanimously and
consistently concluded could not make voluntary, knowing and intelligent decisions about
important matters in his case, and who was never advised by the court or counsel about
"his possible defenses to the charges against him . . . or the full range of
punishments that he might receive"- to fire his lawyer, represent himself at trial
(as a 16-year-old), waive all his rights and plead guilty, and then waive his right to
present any evidence in mitigation of the death penalty).
47. Williams v. Taylor, 120 S. Ct. 1495 (2000) (Virginia) (death sentence
overturned due to incompetence of Williams' trial attorneys who "did not begin to
prepare for [the penalty trial] until a week before" it took place, "failed to
conduct an investigation that would have uncovered extensive records graphically
describing Williams' nightmarish childhood, not because of any strategic calculation but
because they incorrectly thought that state law barred access to such records,"
thereby kept "the jury [from] learn[ing] that Williams' parents had been imprisoned
for the criminal neglect of Williams and his siblings, that Williams had been severely and
repeatedly beaten by his father, that he had been committed to the custody of the social
services bureau for two years during his parents' incarceration (including one stint in an
abusive foster home), and then, after his parents were released from prison, had been
returned to his parents' custody"; concluding that "there existed 'a reasonable
probability that the result of the sentencing phase would have been different' if the jury
had heard that evidence").
48. Williamson v. Ward, 904 F. Supp. 1529 (E.D. Okla. 1995) (Oklahoma)
(overturning capital conviction based on faulty hair analysis which was so
"scientifically unreliable" that it should not have been be permitted as
evidence of guilt and based on claims that hairs found at the crime scene
"matched" the defendant's, although hair analysis can never support that
categorical a claim), aff'd, 110 F.3d 1508 (10th Cir. 1997) (affirming reversal of capital
conviction on habeas because appointed counsel, who received no funding for expert or
investigative services and was paid the statutory maximum of $3200, failed to investigate
a videotaped statement by another person confessing to the crime and extensive evidence of
petitioner's mental illness and likely incompetence to stand trial) ( DNA testing
subsequently established that Williamson was innocent, and he was released from prison,
see Bill Dedman, DNA Evidence Frees Two in Murder Case, Milwaukee J. Sentinel, Apr. 25,
1999, at 20; Barry Scheck, Peter Neufeld & Jim Dwyer, Actual Innocence: Five Days to
Execution, and Other Dispatches from the Wrongly Convicted 126-27, 130-57, 251-54 (2000)).