no. ap-75,363 in the court of criminal appeals of texas … · assistant district attorneys, 1201...

NO. AP-75,363

IN THE COURT OF CRIMINAL APPEALSOF TEXAS AT AUSTIN

MAX ALEXANDER SOFFAR,Appellant

VS.

THE STATE OF TEXAS,Appellee

Trial Court Cause No. 319724Appeal from the 23nd Judicial District

Harris County, Texas

The Honorable MARY LOU KEEL, Judge presiding

BRIEF FOR APPELLANT

DAVID R. DOWBar No. [email protected]

JARED P. TYLERBar No. [email protected] Defender Service412 Main St. # 1150 Houston, Texas 77002 Voice: (713) 222-7788 Fax: (713) 222-0260

BRIAN W. STULLPracticing Pro Hac [email protected] Capital Punishment Project201 W. Main Street, Suite 402Durham, NC 27701Voice: (919) 682-9469Fax: 919-682-5961

ORAL ARGUMENT REQUESTED ATTORNEYS FOR APPELLANT

mailto:[email protected]

Identity of Parties and Counsel

Pursuant to TEX. R. APP. P. 38.1(a) (2005), the parties to this suit are as follows:

(1) MAX SOFFAR, TDCJ # 000685, TDCJ Polunsky Unit, 3872 FM 30 South,

Livingston, Texas 77351, is the appellant and was the defendant in the trial court.

(2) The STATE OF TEXAS, by and through the Harris County District

Attorney’s Office, 1201 Franklin Street, Suite 600, Houston, TX 77002-1923, is the

appelle and prosecuted this case in the trial court.

The trial attorneys were as follows:

(1) Max Soffar was represented by KATHRYN M. KASE and JOHN P. NILAND

of the TEXAS DEFENDER SERVICE, 412 Main Street, Suite 1150, Houston, Texas

78704.

(2) The State of Texas was represented by CHARLES A. ROSENTHAL, Jr.,

District Attorney, and LYN MCCLELLAN, DENISE NASSAR, AND ALAN CURRY,

Assistant District Attorneys, 1201 Franklin Street, Suite 600, Houston, TX 77002-1923.

The appellate attorneys are as follows:

(1) Max Soffar is represented by DAVID R. DOW and JARED P. TYLER of the

TEXAS DEFENDER SERVICE, 412 Main Street, Suite 1150, Houston, Texas 78704,

and BRIAN W. STULL of the American Civil Liberties Union Capital Punishment

Project, 201 W. Main Street, Suite 402, Durham, NC 27707.

(2) The State of Texas is represented by CHARLES A. ROSENTHAL, Jr., District

Attorney, and the Harris County District Attorney’s Office, ALAN CURRY, Appellate

Division Chief, 1201 Franklin Street, Suite 600, Houston, TX 77002-1923.

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TABLE OF CONTENTS Page

Identity of Parties and Counsel ......................................................................................... ii

Table of Contents ............................................................................................................. iii

Index of Authorities ......................................................................................................... ix

Statement of the Case .................................................................................................... xxvi

Statement Concerning Oral Argument ......................................................................... xxix

Statement of Facts ............................................................................................................. 1

Summary of the Argument .............................................................................................. 25

Appellant’s First Point of Error .................................................................................. 27

(a) The trial court erred under TEX. R. EVID. 803 (24) in excluding statementsagainst interest establishing that Paul Reid told an accomplice during a Houstonrobbery that he had previously shot four people in a bowling alley on Route 290. . 31

(b) The trial court violated Max Soffar’s federal and state constitutional rights todue process, compulsory process, and to present a defense by precluding evidence ofReid’s admission to shooting four people in a bowling alley on Route 290. ............ 36

Appellant’s Second Point of Error .............................................................................. 47

(a) The trial court violated Appellant’s constitutional right to present a defense byrefusing to grant immunity to a witness who would have testified that Paul Reid toldhim during a crime that Reid had shot four people in a bowling alley on Route 290. ........................................................................................................................................... 48

(b) The trial court violated Appellant’s constitutional right to present a defense byfailing to compel Cook to testify because his invocation of the right against selfincrimination was improper. ......................................................................................... 51

Appellant’s Third Point of Error ................................................................................. 54

The trial court denied Max Soffar his constitutional right to present a defense by

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precluding evidence of Paul Reid’s distinctive modus operandi in his brutal Texasand Tennessee crimes, which marked him as the perpetrator of the remarkablysimilar Fairlanes robbery-murders. ............................................................................ 54

Appellant’s Fourth Point of Error .............................................................................. 65

The trial court violated Max Soffar’s constitutional right to present a defense andbasic evidentiary rules by precluding evidence showing that the Houston mediabroadcast details of the crime contained in Soffar’s putative confession which theprosecutor claimed only the perpetrator could have known. ................................... 65

Appellant’s Fifth Point of Error .................................................................................. 74

(a) The trial court committed reversible error by denying Max Soffar’s motion toquash the indictment because the grand jury selection process violated equalprotection. ...................................................................................................................... 75

(b) The trial court committed reversible error by denying Max Soffar’s motion toquash the indictment because the grand jury selection process violated due processand Appellant’s right to a fair cross section. .............................................................. 82

Appellant’s Sixth Point of Error ................................................................................. 86

(a) The State’s failure to preserve exculpatory evidence violated Appellant’s rightsto due process and a fair trial under the United States Constitution. ....................... 87

(b) The State’s failure to preserve exculpatory and valuable evidence violatedAppellant’s rights to due course of law under the Texas Constitution. .................... 90

Appellant’s Seventh Point of Error ............................................................................. 91

Rooted in a completely unreliable confession, Appellant’s conviction rests on legallyand factually insufficient evidence and violates his right to due process of law. .... 91

Appellant’s Eighth Point of Error ............................................................................... 93

The trial court violated Appellant’s constitutional right to present a defense byrepeatedly precluding evidence which undermined the prosecution's case andimpeached the police investigation. ............................................................................. 93

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Appellant’s Ninth Point of Error ................................................................................. 95

The court deprived Appellant of his rights under the Confrontation Clause byadmitting testimonial hearsay evidence never properly tested in the crucible of crossexamination. .................................................................................................................. 95

Appellant’s Tenth Point of Error ................................................................................ 97

(a) Sgt. Clawson’s misleading answers to Soffar’s question rendered invalid anypurported waiver of his right to counsel. ................................................................... 101

(b) The police obtained Soffar’s statements by failing to honor his invocation of theright to counsel under the Fifth Amendment. ........................................................... 102

(c) The police violated Soffar’s Fifth Amendment rights by continuing theircustodial interrogation after he invoked his right to remain silent. ....................... 104

(d) Under Texas law, the police were required to clarify whether Soffar wantedcounsel, if his invocation was ambiguous. ................................................................. 104

(e) Soffar’s statements were involuntary and should have been suppressed. ...... 105

Appellant’s Eleventh Point of Error ......................................................................... 106

The trial court committed reversible error by admitting Appellant’s alleged oralstatements in violation of Texas Code of Criminal Procedure 38.22. ..................... 106

Appellant’s Twelfth Point of Error ........................................................................... 108

The prosecution deprived Appellant of a fair trial by making several factuallyinaccurate or misleading arguments to the jury. ..................................................... 108

Appellant’s Thirteenth Point of Error ....................................................................... 110

(a) The trial court committed reversible error by refusing to instruct the jury that itshould disregard Appellant’s putative confession if the State failed to prove hewaived his right to remain silent and to counsel during custodial interrogation. . 111 (b) The trial court committed reversible error by refusing to instruct the jury todisregard Appellant’s putative confession if it found the confession untruthful. . 112

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(c) The trial court committed reversible error by refusing to instruct the jury todisregard Soffar’s putative confession if it found that intoxication rendered hisconfession involuntary. ............................................................................................... 113

(d) The trial court committed reversible error by refusing to instruct the jury todisregard Appellant’s confession if it was the fruit of an illegal police threat. ..... 114

(e) The trial court committed reversible error by refusing to instruct the jury not tohold against Appellant any delay in prosecuting this case. ..................................... 115

(f) The trial court committed reversible error by refusing to instruct the jury that itcould draw an adverse inference against the State if its explanation for losingimportant evidence was inadequate. ......................................................................... 115

(g) The trial court denied Max Soffar his constitutional right to avoid ex post factopunishment by refusing to instruct the jury on the more demanding standard ofproof for circumstantial evidence applicable at the time of the crime. .................. 116

Appellant’s Fourteenth Point of Error ..................................................................... 118

(a) The court deprived Appellant of his Eighth and Fourteenth Amendment rights topresent relevant mitigating evidence under a residual doubt theory by precludingevidence that Paul Reid was responsible for the Fairlanes robbery murders. ...... 120

(b) The court deprived Appellant of his rights under Texas law to present mitigatingevidence under a residual doubt theory by precluding evidence that Paul Reid wasresponsible for the Fairlanes robbery murders. ...................................................... 122

(c) The court deprived Appellant of his constitutional rights to present powerfulmitigating evidence when it precluded the introduction of sworn affidavits fromwitnesses who had died since the first trial. ............................................................. 123

(d) The court deprived Appellant of his constitutional right to present relevantmitigating and rebuttal evidence when it repeatedly precluded such evidence. ... 124

Appellant’s Fifteenth Point of Error .......................................................................... 127

The trial court violated Appellant’s constitutional and statutory rights by allowingvictim impact evidence related to a victim not named in the indictment. .............. 127

Appellant’s Sixteenth Point of Error ........................................................................ 128

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(a) The trial court committed reversible errors by refusing Appellant’s charge thatthe jurors could not give “no weight” to the mitigating circumstances they foundand by charging them that “[i]f you find that there are any mitigating circumstancesin this case, you must decide how much weight they deserve, if any . . . ” ............. 129

(b) The trial court committed reversible error by charging the jurors that they haddiscretion to decide whether a circumstance was mitigating. ................................. 130

(c) The trial court committed reversible error by charging the jurors that a “yes”vote to Special Issue Four required ten votes. .......................................................... 131

(d) The trial court committed reversible error by charging the jurors that theiranswer to Special Issues One, Two, and Three, which presented factual questions,“should reflect an individualized determination by each juror of the personalculpability of the defendant.” ..................................................................................... 132

(e) The trial court committed reversible error by denying the Appellant’s writtenand oral objections to the court’s charge and verdict form on the ground that theindictment did not allege special issues one, two and three. ................................... 134

(f) The trial court committed reversible error by charging the jury on special issuethree (i.e., future dangerousness). .............................................................................. 135

(g) The trial court committed reversible error by failing to instruct the jury todisregard victim impact evidence not shown to be within the knowledge orreasonable expectation of the defendant. .................................................................. 137

(h) The trial court committed reversible error by refusing to charge on residualdoubt as mitigating evidence. ..................................................................................... 138

Appellant’s Seventeenth Point of Error ..................................................................... 138

(a) The trial court committed reversible error under the common law and thisCourt’s case law when it reassembled the jury to render a verdict after dismissal.139

(b) The trial court’s reassembly of the jury violated Appellant’s federal and stateconstitutional rights to due process of law, to be free of cruel and unusualpunishment and against double jeopardy. ................................................................ 140

(c) In the alternative, this Court should order an evidentiary hearing on any facts it

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deems in dispute and dispositive of the issue. ........................................................... 141

Appellant’s Eighteenth Point of Error ....................................................................... 142

Prosecutors’ unfettered, standardless and unreviewable discretion under Article37.0711 violates equal protection, due process and the Eighth Amendment. ........ 142

Appellant’s Nineteenth Point of Error ....................................................................... 145

The Eighth Amendment’s Prohibition Against Cruel and Unusual Punishment andthe Fourteenth Amendment’s Due Process Clause Prohibit Max Soffar’s Execution,Given that He Has Spent Close to Twenty-Five Years Awaiting it. ....................... 145

Appellant’s Twentieth Point of Error ........................................................................ 146

Appellant was denied the effective assistance of counsel because of counsel’sprejudicial failures to object and protect Appellant’s rights. ................................. 146

Appellant’s Twenty-first Point of ErrorThis Court should reverse due to the cumulative harm of the errors. ................... 150

Conclusion and Prayer .................................................................................................. 151

Certificate of Service .................................................................................................... 152

Chart Summarizing Similarities in Reid Crimes ............................................. Appendix A

ix

TABLE OF AUTHORITIES

FEDERAL CASES

Alston v. Manson, 791 F.2d 255 (2d Cir. 1986) ................................................... 77

Apprendi v. New Jersey, 530 U.S. 466 (2000) ................................... 133, 134, 136

Arizona v. Fulminante, 499 U.S. 279 (1991) ................................... 42, 47, 97, 118

Arizona v. Youngblood, 488 U.S. 51 (1988) .................................. 87, 90, 115, 116

Atkins v. Virginia, 536 U.S. 304 (2002) ............................................................. 144

Autry v. Estelle, 706 F.2d 1394 (5th Cir. 1983) ............................................. 49, 50

Barker v. Yukins, 199 F.3d 867 (6th Cir. 1999) ................................................. 111

In re Beef Indus. Antitrust Litig., 600 F.2d 1148 (5th Cir. 1979) ......................... 69

Berger v. United States, 295 U.S. 78 (1935) ........................................................ 34

Blakely v. Washington, 542 U.S. 296 (2004) ............................................. 134, 136

Boyde v. California, 494 U.S. 370 (1990) .......................................................... 119

Buchanan v. Angelone, 522 U.S. 269 (1998) ..................................................... 131

Bush v. Gore, 531 U.S. 98 (2000) .............................................................. 143, 144

Cage v. Louisiana, 498 U.S. 39 (1990) .............................................................. 136

Calder v. Bull, 3 U.S. 386 (1798) ....................................................................... 117

Campbell v. Louisiana, 523 U.S. 392 (1998) ....................................................... 76

Carmell v. Texas, 529 U.S. 513 (2000) .............................................................. 117

Carter v. Jury Comm. of Greene County, 396 U.S. 320 (1970) ........................... 83

x

Cassell v. Texas, 339 U.S. 282 (1950) ................................................................. 81

Castaneda v. Partida, 430 U.S. 482 (1977) .................................................. passim

Chambers v. Mississippi, 410 U.S. 284 (1973) ........................ 34, 36, 37, 119, 120

Chapman v. California, 386 U.S. 18 (1967) ................................................. passim

Coates v. Johnson & Johnson, 756 F.2d 524 (7th Cir.1985) ................... 77, 78, 85

Coleman v. Balkcom, 451 U.S. 949 (1981) ........................................................ 146

Colorado v. Connelly, 479 U.S. 157 (1986) ....................................................... 105

Culombe v. Connecticut, 367 U.S. 568 (1961) ................................................... 105

Crane v. Kentucky, 476 U.S. 683 (1986) ....................................................... passim

Crawford v. Washington, 541 U.S. 36 (2004) ...................................................... 95

Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993) ................... 1

Davis v. United States, 512 U.S. 452 (1994) ...................................... 102, 103, 104

DeGarmo v. Texas, 474 U.S. 973 (1985) ........................................................... 145

Duren v. Missouri, 439 U.S. 357 (1979) ...................................... 76, 83, 84, 85, 86

Eddings v. Oklahoma, 455 U.S. 104 (1982) ............................................... 130, 131

Elledge v. Florida, 525 U.S. 944 (1998) ........................................................... 146

Estelle v. McGuire, 502 U.S. 62 (1991) ............................................................. 137

Foster v. Florida, 537 U.S. 990 (2002) .............................................................. 146

Franklin v. Lynaugh, 487 U.S. 164 (1988) ......................................................... 120

Fuentes v. Shevin, 407 U.S. 67 (1972) ............................................................... 140

Furman v. Georgia, 408 U.S. 238 (1972) .................................................. 143, 146

xi

Giglio v. United States, 405 U.S. 150 (1959) ..................................................... 108

Green v. Georgia, 442 U.S. 95 (1979) ....................................... 119, 121, 123, 125

Gregg v. Georgia, 428 U.S. 153 (1976) ............................................................. 145

Griffin v. California, 380 U.S. 609 (1965) ......................................................... 110

Griffith v. Kentucky, 479 U.S. 314 (1987) ............................................................ 37

Hazelwood School District v. United States, 433 U.S. 299 (1977) ...................... 77

Hernandez v. Texas, 347 U.S. 475 (1954) ...................................................... 82, 83

Hobby v. United States, 468 U.S. 339 (1984) .......................................... 78, 83, 84

Hoffman v. United States, 341 U.S. 479 (1951) ................................................... 52

Holmes v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727(2006) ....................................................................................................... passim

House v. Bell, __ U.S. __, 126 S. Ct. 2064 (2006) ............................................... 46

Illinois v. Fisher, 540 U.S. 544 (2004) ................................................................. 87

J.E.B. v. Alabama ex rel. T. B., 511 U.S. 127 (1994) ..................................... 76, 77

Jackson v. Virginia, 443 U.S. 307 (1979) ............................................................ 92

Jefferson v. Morgan, 962 F.2d 1185 (6th Cir. 1992) ............................................ 77

Johnson v. Mississippi, 486 U.S. 578 (1988) ..................................................... 141

Johnson v. Puckett, 929 F.2d 1067 (5th Cir. 1991) ............................ 76, 81, 82, 83

Jones v. Georgia, 389 U.S. 24 (1967) ...................................................... 78, 79, 85

Jurek v. Estelle, 623 F.2d 929 (5th Cir. 1980) ........................................... 105, 106

Kansas v. Marsh, 544 U.S. 1060 (2006) ............................................................ 121

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Kelly v. Lynaugh, 862 F.2d 1126 (5th Cir. 1988) ............................................... 104

Kelly v. South Carolina, 534 U.S. 246 (2002) ...................................................... 72

Kyles v. Whitley, 514 U.S. 419 (1995) ................................................................. 94

Lackey v. Texas, 514 U.S. 1045 (1995) .............................................................. 146

Lilly v. Virginia, 527 U.S. 116 (1999) ........................................................... passim

Lockett v. Ohio, 438 U.S. 586 (1978) ................................................................. 119

Lord v. Wood, 184 F.3d 1083 (9th Cir. 1999) ...................................................... 70

Luchenburg v. Smith, 79 F.3d 388 (4th Cir. 1996) ............................................. 149

Mancusi v. Stubbs, 408 U.S. 204 (1972) ........................................................ 95, 96

Mathews v. Eldridge, 424 U.S. 319 (1976) ........................................................ 144

McKinney v. Rees, 993 F.2d 1378 (9th Cir. 1993) ............................................. 134

McKoy v. North Carolina, 494 U.S. 433 (1990) ................................................ 132

Michigan v. Mosley, 423 U.S. 96 (1975) ............................................................ 104

Miller-el v. Cockrell, 537 U.S. 322 (2003) ........................................................... 80

Miller v. Pate, 386 U.S. 1 (1967) ....................................................................... 108

Mills v. Maryland, 486 U.S. 467 (1988) ............................................................. 132

Miranda v. Arizona, 384 U.S. 436 (1966) ..................................................... passim

Missouri v. Seibert, 542 U.S. 600 (2004) ........................................................... 101

Mooney v. Holohan, 294 U.S. 103 (1935) .......................................................... 108

Mosley v. Dretke, 370 F.3d 467 (5th Cir. 2004) ..................... 75, 76, 78, 81, 82, 83

xiii

Napue v. Illinois, 360 U.S. 264 (1959) ....................................................... 108, 147

Nelson v. Quarterman, 472 F.3d 287 (5th Cir. 2006) ................................ 121, 124

Oregon v. Guzek, 546 U.S. 517, 126 S. Ct. 1226 (2006) ................................... 120

Ornelas v. United States, 517 U.S. 690 (1996) .................................................... 32

Paxton v. Ward, 199 F.3d 1197 (10th Cir. 1999) ............................................... 109

Payne v. Tennessee, 501 U.S. 808 (1991) .......................................................... 137

Powel v. Nevada, 511 U.S. 79 (1994) .................................................................. 37

Ramseur v. Beyer, 983 F.2d 1215 (3d Cir. 1992) ................................................. 78

Rhode Island v. Innis, 446 U.S. 291 (1980) ....................................................... 107

Rideau v. Whitley, 237 F.3d 472 (5th Cir. 2000) ...................................... 78, 79, 85

Ring v. Arizona, 536 U.S. 584 (2002) ........................................ 133, 134, 135, 136

Roberts v. Louisiana, 431 U.S. 633 (1977) ........................................................ 131

Rock v. Arkansas, 483 U.S. 44 (1987) ............................................................ 36, 72

Roper v. Simmons, 543 U.S. 551 (2005) ............................................................ 121

Rose v. Mitchell, 443 U.S. 545 (1979) ........................................................... 75, 76

Sattazahn v. Pennsylvania, 537 U.S. 101 (2003) ............................................... 135

Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984) .................................................. 78

Shafer v. South Carolina, 532 U.S. 36 (2001) ...................................................... 72

Skipper v. South Carolina, 476 U.S. 1 (1986) ............................................... passim

Smith v. Black, 904 F.2d 950 (5th Cir. 1990) ..................................................... 122

Soffar v. Cockrell, 300 F.3d 588 (5th Cir. 2002) .................................... 9, 102, 112

xiv

Soffar v. Dretke, 368 F.3d 441 (5th Cir. 2004) .............................................. passim

Solesbee v. Balkcom, 339 U.S. 9 (1950) ............................................................. 146

Stirone v. United States, 361 U.S. 212 (1960) .................................................... 133

Strickland v. Washington, 466 U.S. 668 (1984) ......................................... 146, 150

Summers v. United States, 11 F.2d 583 (4th Cir. 1926) ..................................... 141

Taylor v. Louisiana, 419 U.S. 522 (1975) ............................................................ 83

Tennard v. Dretke, 542 U.S. 274 (2004) .................................................... 119, 131

Thompson v. Wainwright, 601 F.2d 768 (5th Cir. 1979) .................................... 102

United States v. Allen, 406 F.3d 940 (8th Cir. 2005) ......................................... 135

United States v. Blueford, 312 F.3d 962 (9th Cir. 2002) .................................... 108

United States v. Cohen, 171 F.3d 796 (3d Cir. 1999) .......................................... 50

United States v. Cohen, 888 F.2d 770 (11th Cir. 1989) ....................................... 60

United States v. Cooper, 983 F.2d 928 (9th Cir. 1993) ........................................ 89

United States v. Cronic, 466 U.S. 648 (1984) ...................................................... 73

United States v. Dailey, 524 F.2d 911 (8th Cir. 1975) ....................................... 108

United States v. Davis, 132 F. Supp. 2d 455 (E.D. La. 2001) ............................ 122

United States v. Deering, 179 F.3d 592 (8th Cir. 1999) ....................................... 83

United States v. Doerr, 886 F.2d 944 (7th Cir. 1989) .................................... 33, 37

United States v. Fields, __ F.3d __, 2007 WL 926864 (5th Cir. Mar. 29,2007) ............................................................................................................. 119

United States v. Honken, 378 F. Supp. 2d 1040 (N.D. Iowa 2004) .................... 122

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United States v. Lewis, 592 F.2d 1282 (5th Cir. 1979) ...................................... 113

United States v. McClure, 546 F.2d 670 (5th Cir. 1977) ................................ 41, 60

United States v. Milstein, 401 F.3d 53 (2nd Cir. 2005) ...................................... 133

United States v. Moore, 452 F.3d 382 (5th Cir. 2006) ......................................... 87

United States v. Resendiz-Ponce, __ U.S. __, 127 S. Ct. 782 (2007) ............... 135

United States v. Resendiz-Ponce, 425 F.3d 729 (9th Cir. 2005) ........................ 135

United States v. Stamper, 766 F. Supp. 1396 (W.D. N.C. 1991) ......................... 60

United States v. Stevens, 935 F.2d 1380 (3d Cir. 1991) ................................. 60, 62

United States v. Tuttle, 729 F.2d 1325 (11th Cir. 1984) .......................... 78, 79, 85

United States v. Udechukwu, 11 F.3d 1101 (1st Cir. 1993) ............................... 108

United States v. Waddell, 507 F.2d 1226 (5th Cir. 1975) .................................... 53

United States v. Webb, 755 F.2d 382 (5th Cir. 1985) ......................................... 108

United States v. Wise, 221 F.3d 140 (5th Cir. 2000) ............................................ 89

Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980) .......................................... 50

Waisome v. Port Authority, 948 F.2d 1370 (2d Cir. 1991) .................................. 77

Walton v. Arizona, 497 U.S. 639 (1990) ............................................................ 133

Washington v. Texas, 388 U.S. 14 (1967) ..................................................... passim

Wiggins v. Maryland, 539 U.S. 510 (2004) ........................................................ 123

Williamson v. United States, 512 U.S. 594 (1994) ............................. 32, 33, 35, 39

Wilson v. Firkus, 457 F. Supp. 2d 865 (N.D. Ill. 2006) ................................. 46, 60

xvi

STATE CASES

Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. 1994) ......................................... 129

Adams v. Adams, 787 S.W.2d 619 (Tex. App. - San Antonio 1990, no pet.) ...... 64

Aldrich v. State, 928 S.W.2d 558 (Tex. Crim. App. 1996) .................................. 83

Alford v. State, 866 S.W.2d 619 (1993) ............................................................... 69

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) ...................... 112, 114

Alsonso v. State, 158 S.W.3d 515 (Tex. Crim. App. 2005) .................................. 34

Alonso v. State, 67 S.W.3d 346 (Tex. App. - Waco 2001) ........................... passim

Anderson v. State, 717 S.W.2d 622 (Tex. Crim. App. 1986) ............................... 42

Anzaldua v. State, 502 S.W.2d 19 (Tex. Crim. App. 1973) ............................... 113

Balentine v. State, 71 S.W.3d 763 (Tex. Crim. App. 2002) ............................... 101

Bandy v. State, 159 S.W.2d 507 (Tex. Crim. App. 1942) .................................. 112

Barnes v. State, 496 S.E.2d 674 (Ga. 1998) ....................................................... 122

Beathard v. State, 767 S.W.2d 423 (Tex. Crim. App. 1989) ............................. 115

Bethany v. State, 152 S.W.3d 660 (Tex. App. - Texarkana 2004) ....................... 70

Bigby v. State, 892 S.W.2d 864 (Tex. Crim. App. 1994) ................................... 125

Blue v. State, 125 S.W.3d 491 (Tex. Crim. App. 2003) ..................................... 120

Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002) ...................................... 147

Ex parte Brandley, 781 S.W.2d 886 (Tex. Crim. App. 1989) .............................. 24

xvii

Bufkin v. State, 207 S.W.3d 779 (Tex. Crim. App. 2006) .................................. 111

Burks v. State, 876 S.W.2d 877 (Tex. Crim. App. 1994) ............................... 32, 35

Bush v. State, 697 S.W.2d 397 (Tex. Crim. App. 1985) .................................... 107

Cantu v. State, 939 S.W.2d 627 (Tex. Crim. App. 1997) ........................... 127, 128

Carver v. State, 510 S.W.2d 349 (Tex. Crim. App. 1974) ................................... 95

Cates v. State, 120 S.W.3d 352 (Tex. Crim. App. 2003) ................................... 123

Chamberlain v. State, 998 S.W.2d 230 (Tex. Crim. App. 1999) ....................... 150

Chapman v. State, 921 S.W.2d 694 (Tex. Crim. App. 1996) ............................. 130

Coleman v. State, 966 S.W.3d 525 (Tex. Crim. App. 1998) ................................ 37

Commonwealth v. Johnson, 59 A.2d 128 (Pa. 1948) ......................................... 140

Corwin v. State, 870 S.W.2d 23 (Tex. Crim. App. 1993) .................................. 111

Crank v. State, 761 S.W.2d 328 (Tex. Crim. App. 1988) .................................... 69

Cunningham v. State, 877 S.W.2d 310 (Tex. Crim. App. 1994) .................... 32, 33

Davis v. State, 872 S.W.2d 743 (Tex. Crim. App. 1994) .............................. passim

Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999) .................................. 35

Dinkins v. State, 894 S.W.2d 330 (Tex. Crim. App. 1995) ................................ 103

Ex parte Drinkert, 821 S.W.2d 953 (Tex. Crim. App. 1991) ............................. 149

Drury v. State, 793 A.2d 567 (Md. 2002) .......................................................... 108

Forsythe v. State, 664 S.W.2d 109 (Tex. App. - Beaumont 1983, pet ref'd) ....... 69

Fox v. State, 115 S.W.3d 550 (Tex. App. - Houston 2002, pet. ref'd) ................. 60

xviii

Ex Parte Gingo, 605 So. 2d 1237 (Ala. 1992) ..................................................... 90

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ............................ passim

Haley v. State, 173 S.W.3d 510 (Tex. Crim. App. 2005) ................................... 127

Halprin v. State, 170 S.W.3d 111 (Tex. Crim. App. 2005) ................................ 122

Hankins v. State, 646 S.W.2d 191 (Tex. Crim. App. 1981) ....................... 116, 117

Hearne v. State, 534 S.W.2d 703 (Tex. Crim. App. 1976) ................................ 104

Hernandez v. State, 24 S.W.3d 846 (Tex. App. - El Paso 2000, pet. ref'd) ......... 83

Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) ............................. 146

Hulit v. State, 982 S.W.2d 431 (Tex. Crim. App. 1998) ...................... 90, 122, 138

Jackson v. State, 50 S.W.3d 579 (Tex. App. - Ft. Worth 2001, pet. ref'd) ........... 87

Johnson v. Texas, 68 S.W.3d 644 (Tex. Crim. App. 2002) ............................ 59, 63

Keeter v. State, 74 S.W.3d 31 (Tex. Crim. App. 2002) ...................................... 124

Kipp v. State, 876 S.W.2d 330 (Tex. Crim. App. 1994) ..................................... 127

Lane v. State, 933 S.W.2d 504 (Tex. Crim. App. 1996) .......................... 59, 60, 63

Lanier Mem'l Hosp. v. Andrews, 809 So. 2d 802 (Ala. 2001) ............................ 133

Livingston v. State, 739 S.W.2d 311 (Tex. Crim. App. 1987) ........................... 110

Lolly v. State, 611 A.2d 956 (Del. 1992) .............................................................. 90

Maestas v. State, 987 S.W.2d 59 (Tex. Crim. App. 1999) ................................. 104

Mann v. State, 964 S.W.2d 639 (Tex. Crim. App. 1998) ................................... 129

Marshall v. State, 210 S.W.3d 618 (Tex. Crim. App. 2006) ................................ 92

Martin v. State, 553 S.E.2d 827 (Ga. Ct. App. 2001) ......................................... 133

xix

Matamoros v. State, 901 S.W.2d 470 (Tex. Crim. App. 1995) .......................... 143

McKenzie v. State, 617 S.W.2d 211 (Tex. Crim. App. 1981) .................... 109, 147

McVeigh v. State, 62 S.W. 757 (Tex. Crim. App. 1901) .................................... 105

Miller v. State, 36 S.W.3d 503 (Tex. Crim. App. 2001) .......................... 32, 41, 48

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) .......................... 69

Moon v. State, 607 S.W.2d 569 (Tex. Crim. App. 1980) ................................... 111

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) ........................... 84, 137

Murray v. State, 505 S.W.2d 589 (Tex. Crim. App. 1974) ................................ 113

Myre v. State, 545 S.W.2d 820 (Tex. Crim. App. 1977) .................................... 112

Ex parte Nailor, 149 S.W.3d 125 (Tex. Crim. App. 2004) ........................ 147, 150

Norman v. State, 588 S.W.2d 340 (Tex. Crim. App. 1979) ........................... 48, 52

Ochoa v. State, 573 S.W.2d 796 (Tex. Crim. App. 1978) .......................... 102, 103

Ovalle v. State, 13 S.W.3d 774 (Tex. Crim. App. 2000) .................... 75, 77, 78, 79

Pacheco v. State, 757 S.W.2d 729 (Tex. Crim. App. 1988) ............................... 125

Patterson v. State, 847 S.W.2d 349 (Tex. App. - El Paso 1983, pet. ref'd) ....... 114

Pena v. State, 191 S.W.3d 133 (Tex. Crim. App. 2006) ...................................... 91

Pena v. State, 166 S.W.3d 274 (Tex. App. - Waco 2005) .................................... 91

Penry v. State, 903 S.W.2d 715 (Tex. Crim. App. 1995) ................................... 105

People v. Brensic, 509 N.E.2d 1226 (N.Y. 1987) ................................................ 92

People v. Burgener, 62 P.3d 1 (Cal. 2003) ........................................................... 85

xx

People v. Dominick, 182 Cal. App. 3d 1174 (1986) ............................................. 70

People v. Ferro, 472 N.E.2d 13 (N.Y. 1984) ..................................................... 108

People v. Henry, 639 N.W.2d 285 (Mich. Ct. App. 2001) ................................. 141

People v. Moya, 529 N.E.2d 657 (Ill. App. 1 Dist. 1988) .................................. 108

People v. Rushin, 194 N.W.2d 718 (Mich. Ct. App. 1971) ................................ 141

Periu v. State, 490 So. 2d 1327 (Fla App. 3d Dist. 1986) .................................. 108

Potier v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002) ...................................... 41

Ransom v. State, 503 S.W.2d 810 (Tex. Crim. App. 1974) ................................. 63

Ray v. State, 178 S.W.3d 833 (Tex. Crim. App. 2005) ................................. passim

Rayford v. State, 125 S.W.3d 521 (Tex. Crim. App. 2003) ............................... 136

Reese v. State, 151 S.W.2d 828 (Tex. Crim. App.1941) .................................... 105

Reese v. State, 877 S.W.2d 328 (Tex. Crim. App. 1994) ..................................... 52

Reid v. State, 197 S.W.3d 694 (Tenn. 2006) ........................................................ 29

Renfro v. State, 822 S.W.2d 757 (Tex. App. - Houston 1992, pet. ref'd) ............. 60

Renteria v. State, 206 S.W.3d 689 (Tex. Crim. App. 2006) ....................... 124, 127

Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993) ............................. 134

Rubio v. State, 607 S.W.2d 498 (Tex. Crim. App. 1980) ..................................... 64

Russeau v. State, 171 S.W.3d 871 (Tex. Crim. App. 2005) ............................... 135

Russell v. State, 604 S.W.2d 914 (Tex. Crim. App. 1980) ............................. 95, 96

Russell v. State, 727 S.W.2d 573 (Tex. Crim. App. 1987) ................................. 102

Salazar v. State, 90 S.W.3d 330 (Tex. Crim. App. 2002) .................................. 137

xxi

Smith v. State, 70 S.W.3d 848 (Tex. Crim. App. 2002) ................................. 48, 49

Smith v. State, 708 S.W.2d 518 (Tex. Crim. App. - Houston 1986, pet ref'd) ..... 49

Soffar v. State, 742 S.W.2d 371 (Tex. Crim. App. 1987) ..................................... 12

Stahl v. State, 749 S.W.2d 826 (Tex. Crim. App. 1988) .................................... 150

Stanton v. State, 953 S.W.2d 832 (Tex. App. -Amarillo 1997, no pet.) ............. 103

State v. Anderson, 182 S.W.3d 914 (Tex. Crim. App. 2006) ........................ passim

State v. Barnett, 543 N.W.2d 774 (N.D. 1996) .................................................... 90

State v. Cheeseboro, 552 S.E.2d 300 (S.C. 2001) ................................................ 90

State v. Chew, 695 A.2d 1301 (N.J. 1997) ......................................................... 104

State v. Chouinard, 634 P.2d 680 (1981) ............................................................. 90

State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999) .................................................... 90

State v. Fortin, 843 A.2d 974 (N.J. 2004) .......................................................... 135

State v. Garfole, 388 A.2d 587 (N.J. 1978) .......................................................... 60

State v. Gibney, 825 A.2d 32 (Vt. 2003) .............................................................. 90

State v. Green, 995 S.W.2d 591 (Tenn. Crim. App. 1998) ................................ 140

State v. Hartman, 42 S.W.3d 44 (Tenn. 2001) ................................................... 122

State v. Hoey, 881 P.2d 504 (Haw. 1994) .......................................................... 104

State v. Kleypas, 40 P.3d 139 (Kan. 2001) ........................................................ 121

State v. LeClair, 425 A.2d 182 (Me. 1981) ........................................................ 117

State v. Marsh, 102 P.3d 445 (Kan. 2004) ........................................................ 121

xxii

State v. Matafeo, 787 P.2d 671 (Haw. 1990) ....................................................... 90

State v. McCormick, 778 S.W.2d 48 (Tenn. 1989) ............................................... 70

State v. Moff, 154 S.W.3d 599 (2004) ........................................................... passim

State v. Morales, 657 A.2d 585 (Conn. 1995) ...................................................... 90

State v. Osakalumi, 461 S.E.2d 504 (W. Va. 1999) ............................................. 90

State v. Pena, 191 S.W.3d 133 (Tex. Crim. App. 2006) ................................ 90, 91

State v. Pena, 192 S.W.3d 684 (Tex. App. - Waco 2006) ............................. .90, 91

State v. Reid, 2005 WL 1315689 (Tenn. Crim. App. Nashville 2005) .... 58, 59, 64

State v. Reid ("Reid I"), 91 S.W.3d 247 (Tenn. 2002) .................................. passim

State v. Reid ("Reid II"), 164 S.W.3d 286 (Tenn. 2005) ............................ 5, 56, 62

State v. Reid ("Reid III"), 213 S.W.3d 792 (Tenn. 2006) .............................. passim

State v. Tucker, 759 P.2d 579 (Ariz. 1988) ........................................................ 116

State v. Webb, 680 A.2d 147 (Conn. 1996) ........................................................ 122

State v. Wiley, 74 S.W.3d 399 (Tex. Crim. App. 2002) ....................................... 62

State v. Willits, 393 P.2d 274 (1964) .................................................................. 116

Thomas v. State, 126 S.W.3d 138 (Tex. App. - Houston 2003, pet ref'd) ...... 61, 62

Thomas v. State, 812 S.W.2d 346 (Tex. App. - Dallas 1991, pet. ref'd) ............ 148

Thompson v. State, 521 S.W.2d 621 (Tex. Crim. App. 1974) .................... 111, 114

Thorne v. Dept. of Public Safety, 774 P.2d 1326 (Alaska 1989) .......................... 90

Threadgill v. State, 146 S.W.3d 654 (Tex. Crim. App. 2004) ........................... 143

Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998) ... 69

xxiii

Vasquez v. State, 919 S.W.2d 433 (Tex. Crim. App.1996) ................................ 130

Villarreal v. State, 935 S.W.2d 134 (Tex. Crim. App. 1996) ............................... 32

Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718 (Tex. 2003) ....................... 116

Walker v. State, 588 S.W.2d 920 (Tex. Crim. App. 1979) ................................... 61

Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006) .................................. 93

Weaver v. State, 823 S.W.2d 371 (Tex. App. - Dallas, 1992, pet. ref'd) .............. 83

Webber v. State, 652 S.W.2d 781 (Tex. Crim. App. 1983) ........................ 139, 140

Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000) .............................. 109

West v. State, 92 N.E.2d 852 (Ind. 1950) ........................................................... 140

West v. State, 340 S.W.2d 813 (Tex. Crim. App. 1960) ..................................... 140

White v. State, 289 S.W.2d 279 (Tex. Crim. App. 1956) ........................... 105, 112

White v. State, 779 S.W.2d 809 (Tex. Crim. App. 1989) ................................... 112

Williams v. State, 50 P.3d 1116 (2002) ................................................................ 90

Willis v. State, 785 S.W.2d 378 (Tex. Crim. App. 1989) ................... 109, 110, 147

Wilson v. State, 451 So. 2d 724 (Miss. 1984) ..................................................... 113

Woods v. State, 696 P.2d 464 (Nev. 1985) ..................................................... 69, 70

Wortham v. State, 704 S.W.2d 586 (Tex. App. - Austin 1986, no pet.) ............. 108

DOCKETED CASES

State v. Reid, Cause No. 274209 (179th Dist. Ct., Harris Cty.) ........................... 28

FEDERAL STATUTES AND RULES

xxiv

FED. R. EVID. 404 ................................................................................................ 60

FED. R. EVID. 804 .......................................................................................... 31, 32

HOBBS ACT, 18 U.S.C. § 1951 ........................................................................... 133

FEDERAL CONSTITUTIONAL PROVISIONS

U.S. CONST. amend. V ................................................................................... passim

U.S. CONST. amend. VI ................................................................................. passim

U.S. CONST. amend. VIII ............................................................................... passim

U.S. CONST. amend. XIV .............................................................................. passim

U.S. CONST. Art. I .............................................................................. 118, 129, 133

TEXAS CONSTITUTIONAL PROVISIONS

TEX. CONST. Art. 1, § 3 ................................................................................ passim

TEX. CONST. Art. 1, § 3a ............................................................................... passim

TEX. CONST. Art. 1, § 10 ............................................................................... passim


TEX. CONST. Art. 1, § 15 .............................................................................. passim



TEXAS STATUTES AND RULES

TEX. CODE OF CRIM. PROC. Art. 12.01 ..................................................... 30, 31, 50

TEX. CODE OF CRIM. PROC. Art. 12.03 ..................................................... 30, 31, 50

TEX. CODE OF CRIM. PROC. Art. 19.01 ................................................................. 81

xxv





TEX. CODE OF CRIM. PROC. Art. 36.29 ............................................................... 139



TEX. CODE OF CRIM. PROC. Art. 38.22 .......................................................... passim

TEX. CODE OF CRIM. PROC. Art. 37.071 ............................................. 121, 127, 133

TEX. CODE OF CRIM. PROC. Art. 37.0711 ...................................................... passim

TEX. CODE OF CRIM. PROC. Art. 38.22 ................................. 102, 105, 107, 111, 149


TEX. CODE OF CRIM. PROC. Art. 44.2 ................................................................... 42

TEX. CODE OF CRIM. PROC. Art. 727 (Vernon 1956) ........................................... 105

TEX. RULE OF EVIDENCE 401 .............................................................................. 133


TEX. RULE OF EVIDENCE 404 ............................................................ 26, 59, 60, 133

TEX. RULE OF EVIDENCE 703 ............................................................................. 126


TEX. RULE OF EVIDENCE 803 .................................................. 27, 30, 31, 32, 34, 94

TEX. RULE OF EVIDENCE 806 .............................................................. 30, 31, 39, 40

xxvi


TEX. RULE OF APP. PROC. 38.1 ............................................................................. 27

Tex. Crim. Jury Charge § 12:900.14 .................................................. 111, 113, 114

MISCELLANEOUS

Chuck Lindell, The Great Writ and Some Who Were Exonerated, Austin American- Statesman, Oct. 29, 2006 ................................................................................ 24

Gisli Gudjonsson, The Psychology of Interrogations and Confessions: A Handbook (2003) ........................................................................................... 44

Jonathan R. Sorensen & James W. Marquart, Prosecutorial and JuryDecision-Making in Post-Furman Texas Capital Cases, 18 N.Y.U. Rev.L. & Soc. Change 743 (1990/91) .................................................................. 145

Judge Cathy Cochran, Texas Rules of Evidence Handbook 238, (6 ed. 2005) ..th 59

Laurence Benner et. al., Criminal Justice in the Supreme Court: AnAnalysis of United States Supreme Court Criminal and Habeas CorpusDecisions (October 2, 2000 - September 30, 2001), 38 Cal. W. L. Rev.87 (2002) ....................................................................................................... 144

Linda E. Carter, Harmless Error in the Penalty Phase of a Capital Case:A Doctrine Misunderstood and Misapplied, 28 Ga. L. Rev. 125(1993) ............................................................................................................ 121

Louis D. Bilionis, Moral Appropriateness, Capital Punishment, and theLockett Doctrine, 82 J. Crim. L. & Criminology 283 (1991) ....................... 121

Soering v. United Kingdom, 11 Eur. Hum. Rts. Rep. 439 (1989) ...................... 147

Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: WhatDo Jurors Think?, 98 Colum. L. Rev. 1538 (1998) ...................................... 122

The citations to the record in this brief refer to the record volumes as follows: “RR” - Reporter’s Record; “CR” -1

Clerk’s Record; “SCR” - Supplemental Clerk’s Record, filed on December 20, 2006; “SCR2" – Supplemental

clerk’s record, filed on March 28, 2007; “SE” - Supplemental Exhibits, filed January 26, 2007.

xxvii

TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

This brief is filed on behalf of Appellant, Max Alexander Soffar, by Professor

David R. Dow of the University of Houston Law Center, Jared P. Tyler of the Texas

Defender Service, and Brian W. Stull of the American Civil Liberties Union’s Capital

Punishment Project.

On August 7, 1980, Max Soffar was indicted on one count of capital murder. (SCR

4). The indictment alleged that, while in the course of committing and attempting to1

commit the robbery of Stephen Allen Sims, he intentionally caused the death of Arden

Alane Felsher by shooting her with a gun. (2 RR 3). The offense was alleged to have

been committed in Harris County, Texas, on or about July 13, 1980. The cause number

case was 319724, and the case was docketed into the 232nd District Court of Harris

County, Texas. (1 CR 1).

In 1981, Appellant was convicted and sentenced to death in connection with these

allegations. On direct appeal, this Court affirmed. See Soffar v. State, 742 S.W.2d 371

(Tex. Crim. App. 1987). In 1992, Appellant filed a state application for a writ of habeas

corpus, alleging several claims, including ineffective assistance of counsel. Soffar v.

Dretke, 368 F.3d 441, 461 (5th Cir. 2004). In 2004, the Fifth Circuit overturned his

conviction and death sentence due to the constitutional ineffectiveness of his trial counsel.

Id. at 478-80. The Fifth Circuit found counsel ineffective primarily because they failed to

xxviii

utilize the detailed statements of the only surviving victim, Greg Garner, to cast doubt on

the only piece of evidence pointing to Max Soffar’s guilt, his putative confession after

three days in custody without an attorney. Id. at 475-76.

After the case returned to the District Court, an evidentiary hearing on the defense’s

motion to suppress Max Soffar’s putative statements and physical evidence was held on

October 19, 20, 21, and 24, 2005. (4 RR 19 - 7 RR 184). The trial court denied the

motion in a written order setting forth its findings of facts and conclusions of law. (8 CR

2140-44). An evidentiary hearing on the defense’s motion to dismiss the indictment due

to lost evidence was held on October 21 and 24, 2005. (6 RR 45-91; 7 RR 6-25). The

motion was denied on December 1, 2005. (9 RR 19). An evidentiary hearing concerning

the exclusion of people of Hispanic origin and women in grand jury selection was held on

October 24, 2005. (7 RR 129-158). The motion was denied the same day. (7 RR 158).

On October 20, 21, 24, 25, and December 1 and 19, 2005, the court also addressed various

defense motions for which no evidentiary hearings were held. See generally (5-10 RR).

Jury selection commenced on January 6, 2006, (11 RR 3), and the jury was sworn

on February 6, 2006. (26 RR 6). The trial commenced on February 6, 2006, id., and

Appellant was found guilty as charged on February 22, 2006. (36 RR 4). The sentencing

phase commenced the same day as the guilt- phase verdict. (36 RR 6). The court

presented four special issues to the jury. On March 2, 2006, the jury answered special

issue No. 1, the "deliberateness" issue, "Yes." (14 CR 4160). It answered special issue No.

2, the causation/intent issue required for parties liability, “Yes.” (14 CR 4162). It also

xxix

answered special issue No. 3, the "future dangerousness" issue, "Yes." (14 CR 4164). The

jury answered special issue No. 4, the "mitigating circumstances" issue, "No." (14 CR

4166). The Honorable Mary Lou Keel sentenced Appellant to death the same day. (14

CR 4168-69). A Motion for New Trial was filed on March 31, 2006. (14 CR 4185).

Appeal in this case is automatic, pursuant to Tex. Code Crim. Proc. Art. 37.071 § 2 (h);

Tex. R. App. P. 25.2(b), and this brief is filed accordingly.

xxx

STATEMENT CONCERNING ORAL ARGUMENT

Pursuant to Texas Rule of Appellate Procedure 39.7, Appellant Max Soffar hereby

requests oral argument. This is a capital case. Among the issues presented are:

The trial court erred under TEX. R. EVID. 803 (24) in excluding statements against interestestablishing that Paul Reid told an accomplice during a Houston armed robbery that he hadpreviously shot four people in a bowling alley on Route 290 (Subpoint (a) of Appellant’sFirst Point of Error).

The trial court violated Max Soffar’s federal and state constitutional rights to due process,compulsory process, and to present a defense by precluding evidence of Reid’s admissionto shooting four people in a bowling alley on Route 290 (Subpoint (b) of Appellant’s FirstPoint of Error).

The trial court denied Max Soffar his constitutional right to present a defense byprecluding evidence of Paul Reid’s distinctive modus operandi in his brutal Texas andTennessee crimes, which marked him as the perpetrator of the similar Fairlanesrobbery-murders (Appellant’s Third Point of Error).

The trial court violated Max Soffar’s constitutional right to present a defense and basicevidentiary rules by precluding evidence showing that the Houston media broadcast detailsof the crime contained in Soffar’s putative confession which the prosecutor claimed onlythe perpetrator could have known (Appellant’s Fourth Point of Error).

The trial court committed reversible error by denying Max Soffar’s Motion to Quash theIndictment on Account of the Violation of Equal Protection in the grand jury selectionprocess (Subpoint (a) of Appellant’s Fifth Point of Error).

The trial court committed reversible error by denying Max Soffar’s Motion to Quash theIndictment Based on the Violation of Due Process and the right to a Fair Cross Section inthe grand jury Selection Process (Subpoint (b) of Appellant’s Fifth Point of Error).

It is upon these issues that oral argument is particularly sought. Undersigned

counsel are of the opinion that oral argument would serve to emphasize and clarify these

issues.

(30 RR 21-23; 26 RR 183 (testimony of manager Peters), 43 RR Defense Exhibit 59 (summary of media exhibits),2

43 RR State Exhibit 108).

Garner also provided similar details in an interview of July 30, 1980, but the police did not record that interview3

and the court precluded admission of its contents. See (2 SE Defense Exhibit 61).

The details of Garner’s statements are set forth in detail in the text which follows because they differed from4

Appellant’s putative confession in numerous respects, including as to the number of perpetrators, how the

perpetrator(s) entered the bowling alley, whether the door to Fairlanes was locked, whether the perpetrator(s) wore

disguises, whether any victim was kicked or had screamed, the number of shots fired, and when the money was

taken. At the retrial, the prosecution sought to discredit Garner’s numerous statements to the police as the product of

“potential” amnesia because the statements were inconsistent with Soffar’s putative confession. (28 RR 108-48).

Over defense objections pursuant to Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), (25 RR

66-71), the neurosurgeon who had operated on Garner testified that his injury was “potentially” sufficient to affect

his memory and that such an injury “could affect [the] memory” of any person sustaining such an injury. (28 RR

113-15). The expert was forced to concede that the length of time that Garner was unconscious was not indicative

of memory loss, that his activities and level of consciousness at the scene (as documented by the paramedics and

Life Flight team, (27 RR 10, 15-18, 21; 31 RR 85-87)) demonstrated a high level of functioning, that he did not note

any memory loss in Garner’s charts, and that he scored a one hundred on an amnesia test, the highest possible score.

(28 RR 121-23, 127-28). A defense expert refuted any suggestion that Garner had lost his memory and noted that

the only test during Garner’s treatment suggesting memory loss indicated difficulty only with verbal tasks. (28 RR

1

STATEMENT OF FACTS

Midnight on July 13, 1980: Four Youths Shot and Only Greg Garner Survives

At around midnight on July 13, 1980, someone shot four youths in the Windfern

Fairlanes Bowling Center (“Fairlanes”) near Houston on Route 290. (26 RR 48). Three of

the youths died, including bowling alley manager Stephen Sims, employee Thomas

Temple, and Temple’s girlfriend, Alane Felsher. (27 RR 217, 219, 223; 32 RR 100). The

fourth victim, Greg Garner, survived. Fairlanes had been burglarized the previous night,

and the crimes were initially thought to be linked. 2

July 17-20, 1980: Greg Garner Provides Police With Detailed Information

During his medical treatment at Hermann Hospital, Garner provided the police

with information in at least five different interviews. (32 RR 62-149 (quoting 45 RR3

Joint Exhibits 1 (police interview of Greg Garner, July 17, 1980); 2 (interview of July 18);

4 (interview of July 19); and 5 (interview of July 20))). In general, this narrative 4

135, 147; 32 RR 207-19). Subsequent footnotes in this section cite repeated instances where other witnesses and

evidence corroborated Garner’s recollection of events.

One exception occurred during Garner’s initial interview at the hospital when, perhaps due to difficulties with his5

language, Garner responded “yeah,” when the police asked whether his assailant was a black man, and said that his

assailant was close to his own height, twenty “foot” [sic] tall. (32 RR 63-64). Garner would later say that the lone

perpetrator was white and over six feet tall. (32 RR 83, 131-32).

The police later corroborated this aspect of Garner’s statement when they recovered Garner’s rings between these6

lanes. (26 RR 84-85; 32 RR 47-49).

Photographs taken by crime scene investigators confirmed the presence of a water jug on the control booth counter7

near the entrance. (27 RR 90; 43 RR State Exhibit 39). In his trial testimony, Garner confirmed that employees

never kept a water jug on the control booth. (28 RR 189). Manager Jim Peters testified that he did not know why

that jug would be there. (26 RR 184).

The forensic evidence was completely consistent with Garner’s description. The bullet wounding Garner passed8

through his head. (28 RR 110-11). The location of a bullet hole found in the carpet corroborated Garner’s

description of where his head was on the floor when he was shot. (31 RR 154-55 (testimony of Detective Kenny

Williamson); 33 RR 87-88 (testimony of defense crime-scene expert)). A police photograph of this location does

not include Garner himself because he had been removed for medical treatment, but it depicts the victims in a

semi-circle in the positions Garner had described. Compare (43 RR State's Exhibit 5) with (45 RR Joint Exhibit 3).

The position of the bodies when the police and other witnesses arrived, however, was different from Garner’s

description of where he was when shot because, unbeknownst to the police at the scene, Garner had changed

positions on the floor after the shooting. Thus, when witnesses arrived, they saw the two injured victims (Garner

and then Felsher) nearest the door. (26 RR 105-07).

2

was consistent and detailed.5

Garner explained that as he was bowling on lanes 25 and 26, a single assailant6

gained entry to the closed and locked bowling alley by convincing assistant manager

Stephen Sims that he needed water (or air) to remedy a problem with his automobile. (32

RR 66, 71-74, 75, 79-80, 83, 101, 104, 136-38, 144). The assailant carried a pitcher for

the water. (32 RR 72-74, 79-80, 83, 104-06). Sims then went outside with the assailant. 7

(32 RR 73, 80, 104, 137, 139, 145). The assailant reentered the bowling alley with Sims,

brandished a gun, made the victims lie on the floor, and obtained money by ordering Sims

to open a cash register. (32 RR 69, 80, 84, 106-07, 112, 124, 126-27).

Garner lay between Tommy Temple and Steve Sims, with Temple to his right. Ms.

Felsher was next to Sims. (32 RR 109). In a semi-circle, the order of the victims from the8

In their testimonies, parents Nellie and Ira Garner and bowling alley manager Jim Peters all corroborated this part9

of Greg Garner’s statement. (26 RR 43, 46, 66, 130-31).

3

front doors was Felsher (the only female), Sims, Garner and Temple. Id.

As the four victims lay on the floor, none screamed or tried to run, and the assailant

did not physically touch or hit them. (32 RR 69, 84, 86, 110-11, 130). The assailant then

shot each victim once (for a total of four shots), took billfolds from the three men, and

fled. (32 RR 70, 82, 113, 129, 130).

Garner lost consciousness for a few moments, got up, and walked to the control

booth and telephoned his parents. (32 RR 82-83, 87-88, 113-14). While Garner was on

this call, Fairlanes manager Jim Peters telephoned the bowling alley. (32 RR 87-88, 114). 9

When Garner completed the two calls, he lay on the floor next to Alane Felsher because

she was the only other victim still alive. (32 RR 114-15). This location was different

from where Garner originally had lain down and been shot. (32 RR 114-15).

Garner testified at the retrial, but did not provide much detail because he no longer

remembered most of what had occurred. (28 RR 152-53, 159-73, 180-81, 190). Garner

did recall being present with the three other victims before the shooting, that he was

bowling when he saw a man speaking with Sims, and that it was “standard procedure” for

Sims to lock the doors when the bowling alley closed at 11:30 p.m. (28 RR 151-53).

Garner remembered that the single assailant had a gun and asked him whether he could

open the cash register. (28 RR 156). He also remembered handing his wallet to the

perpetrator before being shot, and calling his parents afterward. (28 RR 158, 160, 162).

Detective Leonard Cooper, the latent finger print examiner offered conflicting and insufficient explanations as to10

whether the jug had been dusted for fingerprints and, if not, why not. (27 RR 166-171, 175).

4

Police Investigation

The perpetrator of the Fairlanes robbery murders left no clues at the crime scene as

to his identity, at least none the investigators thought to check.

Crime scene investigators dusted various areas for fingerprints, including the front

door area and around the cash register in the control booth. (27 RR 142). None of the

collected fingerprints led to a suspect. (27 RR 160, 194, 203). Police photographs show a

white jug on the control counter. (43 RR State Exhibit 39). Although the police had the

manager, Peters, available to them at the scene to explain that the jug was out of place, (26

RR 184), they did not recover the jug because “it did not appear to be evidence at the

time.” (27 RR 91). By the time the police spoke with Garner, realized the significance of

the jug and called Peters, Peters had already had the bowling alley cleaned and he did not

know what had happened to the jug. (26 RR 183-85). 10

With no fingerprints, DNA, or other physical evidence, the police used Garner’s

information to attempt to solve the crime. Garner described his assailant as white and just

over six feet tall. (32 RR 83, 131-32). He told the police that the assailant had light brown

hair, combed back to reveal his entire forehead, and cut just below the ears on the side and

reaching the collar on the back. (32 RR 132, 135). The shooter did not have any facial

hair, and was stronger and heavier than Garner, who weighed 155 pounds. (32 RR

132-34). The shooter wore neither a mask nor a hat. (32 RR 89-90, 134). Garner told the

At least 50 copies of the composite and press release were distributed to the media. (32 RR 173-74). A volunteer11

“portrait artist” created a second composite with Garner, but it was never distributed. (32 RR 180). The portrait is

too dark to reproduce here, but can be found in the volume of exhibits. (45 RR Joint Exhibit 7).

See State v. Reid (“Reid I”), 91 S.W.3d 247, 261-62 (Tenn. 2002); State v. Reid (“Reid II”), 164 S.W.3d 286, 29812

(Tenn. 2005); State v. Reid (“Reid III”), 213 S.W.3d 792, 805 (Tenn. 2006).

5

police he could probably identify him. (32 RR 68, 118; 2 SE Defense Exhibit 61)). The

police officers were confident enough in Garner’s description to prepare a composite, later

distributed to various media outlets. See (32 RR 170-74). The composite is set forth in

Joint Exhibit 6 (43 RR) and below:11

Houston Man Resembling Composite Commits Similar Crimes

A dangerous criminal resembling this composite was living in his native Houston at

the time of the robbery murders. Now on Tennessee’s death row for killing seven people

in three different robbery murders at retail fast-food establishments, Paul Reid was12

married in Houston on July 23, 1980, just over a week after the Fairlanes robbery murders.

(45 RR Defense Exhibits 37-39). The following photograph, (45 RR Defense Exhibit 37)

is from Reid’s wedding:

6

The robbery murders Reid would later commit in Tennessee were strikingly similar

to the Fairlanes robbery murders. As described by a Tennessee detective, “Reid displayed

a distinctive modus operandi in his crimes in Tennessee – he would gain entry to an

establish[ment] at a time when the establishment was closed but employees were still

present, by causing employees to let him in. [] Reid would steal cash and coins, often

having an employee access the register or safe. [] Reid would then kill or attempt to kill all

employees present at the time of the robbery, with a preference for forcing the employees

to lie on the floor, face down, and then shooting them execution style, with a gun shot to

the head.” (9 CR 2561).

Reid and his long-time friend, Stewart Cook, also committed a series of robberies

in Houston. During one of them, in 1982, Reid fired his pistol and Cook asked him why.

As Cook has explained in an affidavit, “Paul [Reid] brushed it off, telling [Cook] he’d

done much worse during a robbery he had committed before [they had] started working

together. Specifically, [Reid] said that he once had a ‘problem’ while he was robbing a

bowling alley out on Route 290, and he had shot ‘four people.’” (6 CR 1485).

7

At Max Soffar’s retrial, the trial court refused to allow the jury to hear any of this

evidence showing that Reid committed the Fairlanes robbery murders. (26 RR 97-99; 30

RR 76-85; 32 RR 38-45). Taking full advantage of the court’s ruling, the prosecution

argued in summation that the defense had not “br[ought the jury] any evidence that

someone other than the Defendant committed this crime.” (35 RR 9).

The Media Informs the Public About the Details of the Fairlanes Robbery murders

Between July 14, 1980, and August 1, 1980, the Houston television and print media

widely publicized various details of the robbery murders. Numerous stories reported that

reward money had been offered for information leading to the arrest of the perpetrator.

See (43 RR Defense Exhibit 59). Numerous stories also reported that four people had

been shot execution style, that one man had lived, that one of the victims was a female,

that money was taken from a cash register and that the shootings took place at the

Fairlanes Windfern bowling center. See (43 RR Defense Exhibit 59 (chart summarizing

media sources and information provided)). Several stories reported that the bowling alley

had been burglarized the night before. Id. On July 15, 1980, the Houston Post reported

that the female victim had been shot in the cheek. Id.; see also (43 RR Defense Exhibit

66). A Channel 13 News Report stated that a .357 magnum was thought to have been

used. (43 RR Defense Exhibit 59). Television media repeatedly broadcast key images to

the public, including the interior and exterior of the building, the Fairlanes Windfern road

sign, a closeup of Greg Garner’s gunshot wound and the other victims’ bodies inside the

bowling alley, and the composite drawing prepared by the police and Garner. (43 RR

Several stories explained where the building was situated in the parking lot and the location of the front doors. 13

(43 RR Defense Exhibit 60).

Over defense objections based on Max Soffar’s Sixth Amendment right to present a defense, the court also14

precluded cross examination of interrogating officers regarding these details and introduction of evidence that any of

these stories appeared in the media. (30 RR 101-06; 33 RR 4-5). The defense theory of admissibility of the media

evidence was that the information in Max Soffar putative confession reflected nothing more than information

broadcast to the general public. Id. See also (31 RR 4-8).

8

Defense Exhibit 58). See also Defense Exhibit 71 (article including composite)). The13

court blocked all defense attempts to introduce this evidence. Capitalizing on the court’s14

ruling, the prosecution misleadingly argued in summation that the only way Soffar could

have known certain details was if he were responsible for the crime. (35 RR 11, 22-23).

Looking for a Reward, Max Soffar Becomes a Suspect

Jackie Soffar Butler, Max Soffar’s sister, learned about the bowling alley murders

around the first of August, 1980, from her brother, Max, as they were driving to the

doctor’s office together. (32 RR 236). Soffar told her there was a cash reward and that the

composite looked a lot like his friend Latt Bloomfield. Id. Soffar said he wanted to turn

in Bloomfield. (32 RR 236-37).

Although Ms. Butler did not live at home with her parents and her brother, Max,

she was a frequent visitor. (32 RR 238). The Soffar family typically watched Channel 13

News (32 RR 239), and her parents subscribed to the Houston Post. Id.

On August 5, 1980, Soffar was arrested after stealing a motorcycle in League City

and providing a false name to the police. (29 RR 22, 25). Soffar told his arresting officer

that he had information about the widely-publicized bowling alley murders in Houston.

(29 RR 31). He said he wanted to speak with a Sergeant Clawson, which the arresting

The details of Clawson’s responses are discussed in detail in the 5 Circuit opinion and in Appellant’s Ninth Pointth15

of Error.

9

officer interpreted as meaning that Soffar was an informant. Id. The arresting officer

noted that Soffar’s eyes were dilated, his speech slurred, his body smelled of alcohol, all

indicative of someone under the influence of alcohol or drugs. (29 RR 42-43).

Thereafter, Soffar spoke with a number of different police officers and law

enforcement officials. Soffar’s initial interrogation, by Detective Gil Schultz, was tape

recorded and transcribed, revealing that Soffar had learned about the case and the fifteen

thousand dollars in reward money from the “news” and the “paper.” (43 RR State’s

Exhibit 1A at 9, 25, 28, 36; 30 RR 94-95).

In the course of the interrogation by Det. Schultz, Sergeant Bruce Clawson of the

Galveston County Sheriff’s Department was called when Soffar “refused to talk.” (29 RR

106; 43 RR Defense Exhibit 25). Sgt. Clawson formed the impression that the police had

hit a “brick wall” with Soffar and understood he was there to get Soffar to talk. (29 RR

182, 188). When Soffar asked Sgt. Clawson how long it would take to get an appointed

lawyer, (29 RR 114-15), Clawson provided what the Fifth Circuit called “misleading”

answers. Soffar v. Cockrell, 300 F.3d 588, 596 (5th Cir. 2002). 15

Sgt. Clawson observed some of the interrogation performed by Det. Schultz. Sgt.

Clawson noted that it did not appear that Soffar knew the part of Houston where the

bowling alley was located or anything about the building, the roadway, or the “turn

around” near the bowling alley. (29 RR 150-51). In a diagram Det. Schultz worked on

Similarly, Detective Kenny Williamson drew most of the parts of the diagram he used in his subsequent16

interrogation with Soffar. (31 RR 61-62, 128-29, 131). See Soffar, 368 F.3d at 479 (summarizing lack of evidence linking Soffar to crime in terms equally applicable to

17

facts of retrial); (35 RR 25 (prosecution summation argument: “The Defendant tells you that he did it. What other

evidence do you need? That’s the best kind of evidence you’ll ever have in a case. What’s the one thing that can

ensure that you have no doubt. Words from a person. You don’t say you were some place if you weren’t. You don’t

ever say you shot somebody if you didn’t.”)).

10

with Soffar, Schultz had to draw in much of the crime scene, including the counter inside

the bowling alley. (29 RR 151). Det. Schultz’s interrogation made Sgt. Clawson16

concerned about whether the police were obtaining accurate information. (29 RR 166).

Sgt. Clawson knew Max Soffar well as a police informant. (29 RR 103, 105-06).

Sgt. Clawson explained that Soffar’s information was “just not trustworthy,” and could

“never” be used to get a search warrant. (29 RR 128-29). According to Sgt. Clawson,

Max Soffar was always looking for “the big score” in life. (29 RR 131). Ten to fifteen

thousand dollars, Sgt. Clawson believed, would be a big score for Max Soffar. Id. Sgt.

Clawson came to know Soffar as having brains “fried” from the use of drug and alcohol,

and as like a ten or eleven year-old child. (29 RR 134).

Content of Max Soffar’s Putative Confessions

Soffar signed three written statements, prepared by detectives, in which he first

implicated Latt Bloomfield and then himself in robbery-murders at a bowling alley. He

was convicted based solely upon these statements. Consistent with the prevailing view17

that the robbery murders at the Fairlanes and the burglary there the night before were

linked, in Soffar’s first statement, on August 5, 1980, he told the police that he and Latt

Bloomfield burglarized a bowling alley and that the next night they drove to the same

Det. Schultz, who took this statement, knew that the burglary, which had been publicized in connection with the18

search for the murder suspect, was not committed by Soffar and Bloomfield. (30 RR 25). Other suspects had

already been arrested and charged for that offense by the time Soffar made his statement. Id. See also (30 RR 189).

By the time Soffar signed his third written statement, he had been interrogated several times, including the19

interrogation before each typewritten statement and during a drive around the Houston area when detectives

attempted to collect more evidence. See, e.g., (29 RR 191-92; 30 RR 173-78). Out of all of these conversations and

contacts between the police and Soffar, only the initial interrogation was taped or transcribed, even though the

Houston Police Department possessed tape recording devices. (30 RR 176-78). Detective James Ladd conceded the

benefits of recording such interactions, including that a tape preserves precisely what was said for years, and

captures the change in tone and pace of voice of speakers, none of which is accomplished by a written statement. (30

RR 180). As the Fifth Circuit noted in reviewing the evidence, the interrogation sessions were “neither transcribed

nor recorded;” their “substance . . . was summarized by detectives and presented to Soffar in the form of written

statements for his signature.” Soffar, 368 F.3d at 453, n.19.

11

bowling alley and Bloomfield entered with his pistol while Soffar waited outside. (30 RR

21-23). The police knew the statement about the burglary the preceding night was false. 18

In his first statement, Soffar also claimed to have heard several shots and seen young

people getting on their knees at Bloomfield’s direction. Bloomfield emerged with “a

whole lot of money.” Id.

In his second statement, on August 6, 1980, Soffar again falsely claimed that he and

Bloomfield had burglarized the bowling alley the night before the robbery murders and

embellished that story even further. (43 State’s Exhibit 109; 30 RR 140-48). Soffar also

stated that the next night he waited outside and heard shots while Bloomfield went inside

the bowling alley. Id. Several details were added to the first statement, including that

Bloomfield wore a lady’s stocking over his head as a disguise. (30 RR 146).

In his third statement, signed at 9:25 p.m. on August 7, 1980, Soffar gave his third19

different rendition of what happened the night of the robbery murders. Soffar claimed that

he and Bloomfield both entered the bowling alley in partial disguise: Soffar with a T-shirt

pulled over his mouth and Bloomfield wearing a lady’s stocking over his head. (30 RR

The statement is reproduced exactly as typewritten by the police; errors and omissions are in the original. As this20

Court noted on Appellant’s appeal from Soffar’s original conviction and the Fifth Circuit noted on habeas review,

neither this statement nor Max Soffar’s two previous statements, set out “‘the date, county, city, state, nation, street

address or name of the bowling alley, the name of any victim, or any other fact which might expressly reflect that

appellant’s statement relates to the offense for which he was tried, convicted, and given the death sentence.’” Soffar,

368 F.3d at 456 n.25 (quoting Soffar, 742 S.W.2d at 375).

12

161). After walking through the open door to the bowling alley, a “guy” asked what they

were doing. Id. The statement continued:

Lat pulled the revolver and stuck it in this guys face and said, “This is a robbery.” Latpulled this guy by the hair and made him get down on his knees. Three other peoplewere over by the snack bar and they saw the man on his knees and xx [sic] walked up.This was two dudes and a girl. Lat told them to get on the floor and if they didn't dowhat he told them that he would shoot this first guy who was already on the floor. . . .They were laying from the door so that there was a dude and then a girl and thenanother dude and then the last dude. The second dude was trying to look up and Lattold him not to be looking and to turn around and lay facing the way all the otherswere. . . . The second dude kept looking around so Lat fired a warning shot into thefloor. The girl screamed and then Lat told her to shut up and she kept screaming. Latkicked the girl in the back and then the second dude who was the one who kept lookingup started to raise up. He was about half way up when Lat shot him in the back of thehead. Then Lat just turned around and shot the third dude. This third dude was the firstone Lat grabbed and made get on the floor. He shot him the same way as the first onethat he shot. Lat threw me the gun and told me to shoot the other two. I hesitated andthen he said, “Shoot them now.” I aimed the gun and the other guy who was still leftwho was closest to the door and fired one time. I hit him in the back of the head behindthe ear. I walked around the other side of them and hesitated [sic] and Lat said, “Shoother.” She had her face down and she just looked up at me and I aimed and turned myhead and shot her. I think I hit her in the cheek.

(43 State’s Exhibit 110, 30 RR 161-62). The positioning of the victims from the door20

was “dude and then a girl and then another dude and then the last dude.” (30 RR 161).

The statement continued that Soffar took money from the cash registers by the bowling

shoes and the snack bar. (30 RR 162-63). Meanwhile, Bloomfield took 50 to 60 dollars

from money bags under the counter, and then rummaged through the victims’ pockets and

No doubt aware that the difference between Max Soffar’s diagram and the one prepared by Greg Garner cast21

serious doubts on Soffar’s guilt, the prosecutor implausibly argued to the jury that Max Soffar did not prepare the

diagram. (35 RR 99). The prosecution itself, however, introduced the diagram into evidence (31 RR 90), and did

not seriously dispute that the exhibit was prepared from information provided by Max Soffar.

The map shows a box, indicating the building, the “feeder” road leading to the bowling alley from the freeway,22

and the parking lot lines in front of the entrance. Id. Det. Williamson drew all of these areas. (31 RR 60-66,

128-29). According to Det. Williamson, Soffar “may have” drawn in lines indicating where he and Bloomfield had

parked the car. (31 RR 131).

13

took their wallets. (30 RR 163). After they left, Soffar and Bloomfield bought

“preludins,” went to Soffar’s house, took all of the pills, stayed up all night, and went to

the park the next day. (30 RR 164).

At 9:33 p.m., Detectives M.F. Kardatzke and R.D. Cain signed a diagram with Max

Soffar’s name on it, containing claims in the first-person such as “I shot the girl last.” (43

RR State’s Exhibit 207/Defense Exhibit 32). The diagram depicts the scene of the crime

as described by Soffar in his third statement. Id.; see also (30 RR 161). The positioning

of the victims was a straight line of people ordered male, female, male, male. (43 RR

State’s Exhibit 207/Defense Exhibit 32).21

Tour of Crime Scene, Places Soffar Falsely Claimed to Have Robbed, and Other Places

After Soffar’s third statement, the police took him for a ride to show him the

various places mentioned in his statements. (30 RR 150). But before doing so, Detective

Kenny Williamson drew a map of Fairlanes Windfern and showed it to Soffar. (31 RR

61-62; 43 RR State’s Exhibit 206). After Soffar’s exposure to that map, and to the22

images of the outside of Fairlanes Windfern broadcast by the media, (43 RR Defense

Exhibits 58, 63, 66) (which the jury was precluded from hearing about), the police drove

Max Soffar to a different Fairlanes bowling alley, the Bunker Hill location, to see “what

Papa, whose real name was Lawrence Bryant, testified at the 1981 trial, and the prosecution read his testimony23

into the record at the retrial over defense confrontation objections. (32 RR 4).

14

his reaction would be . . . ” (30 RR 151). Over a defense objection based on CRIMINAL

CODE OF PROCEDURE ARTICLE 38.22, the prosecution elicited testimony that Soffar said it

“did not look like the place.” (30 RR 151-52). The police then drove to Fairlanes

Windfern, which is marked on Highway 290 by a large red sign bearing its name. (43 RR

Defense Exhibits 1-3). Over the same defense objection, the prosecution elicited that

Soffar then said that “this looked right.” (30 RR 152).

After the bowling alley visits, the police drove to find a man named “Pops,” from

whom Soffar had said he and Bloomfield had bought narcotics after the crime. (30 RR

153-54). The police never found “Pops,” but did find someone, allegedly pointed out by

Soffar, named “Papa” and his girlfriend, Mable Cass. (30 RR 155-56). The police

interviewed Papa on the side of the road for two to three hours and then at the station for23

six to seven hours. (32 RR 20). Papa claimed that Soffar (whom he knew only as Max), a

fat guy, and a slim guy drove up and the three talked about selling Papa a gun. (32 RR

10). They then had a conversation about a robbery in Galveston or Texas City that Papa

had heard about on the news. (32 RR 12). As Papa claimed to the police in his written

statement, Max allegedly said “if I told you who did it, you wouldn’t believe me.” At the

retrial, Mable Cass testified that she overheard a conversation in which someone named

“Max” claimed to have shot four people in a bowling alley. (31 RR 194). The bowling

alley was in Galveston, and Max said it had been on television. (31 RR 183, 194). Max

Contrary to Cass’s story (or the story she purported to recount from “Max”), the prosecution’s own firearm expert24

believed that the shooter did not use a semi-automatic because no casings had been left at the scene and because the

bullets recovered lacked the characteristic lead “melting” caused by a semi-automatic. (28 RR 92, 96).

The police claimed that information Soffar provided about non-specified other crimes was correct. (31 RR 45). 25

15

then allegedly showed them the gun he had used, a semi-automatic, which had a clip24

which came out the bottom. (31 RR 178, 184-85). When she allegedly heard about this

crime, she did not report it to the police; instead, she “let it slide.” (31 RR 196).

The police then took Soffar to a number of locations which he claimed he and/or

Bloomfield had robbed before and after the bowling alley murders. First, they went to a

Weingarten’s store which Soffar had claimed Bloomfield had robbed some six months

earlier. (31 RR 26-27). Police investigated and found that the claim, too, was false. Id.

Then, Soffar took them to a U-Totem store in Galveston which Soffar had claimed he and

Bloomfield had robbed after they left the Fairlanes on July 14, 1980. (31 RR 27). Police

investigated and found that the claim was false. (31 RR 28). 25

Prosecution and Defense Evidence Contradicting Soffar’s Putative Confession

Soffar’s “confession” was inconsistent with virtually all of the other evidence

introduced by both the prosecution and the defense. As the defense argued, Soffar’s

statements were implausible in light of the crime-scene evidence, the forensic evidence,

the ballistics evidence, and the statements of the only surviving witness, Garner, provided

to the police shortly after the shootings:

1) Contrary to Soffar’s “confession,” (30 RR 162-63), the perpetrator took no moneyfrom the snack bar cash drawer. The bowling alley manager testified that no moneywas taken from the snack bar and its cash drawer was found locked safely in the office. (26 RR 177-78).

The police and paramedics entered to find Garner lying closest to the door, the spot to which he had moved after26

calling his parents. (32 RR 114-15). The Fifth Circuit found that “the arguably incorrect pattern of the shootings

16

2) Contrary to Soffar’s “confession,” (30 RR 163), the perpetrator did not take “fifty orsixty dollars” from a money bag underneath the counter. Money was stored in the cashregisters or in the office at Fairlanes, never under the counter. (26 RR 178-79).

3) Contrary to Soffar’s putative claim that he and Latt Bloomfield committed theoffense, (30 RR 161), Garner reported only a single perpetrator. (32 RR 63, 79, 101).

4) Contrary to the Soffar claim that the perpetrators wore disguises, including lady’sstockings over Bloomfield’s head and a T-shirt over his own face, (30 RR 161), Garnerreported that the perpetrator wore no disguise. (32 RR 89, 134).

5) Contrary to Soffar’s claims that the young woman screamed and was kicked, (30 RR162), the medical evidence established none of the shooting victims had been kicked,beaten, or injured apart from their shooting wounds. (32 RR 69, 84, 86, 110-11, 130). Similarly, Garner reported that no one screamed, and that the assailant did notphysically touch or hit them. (32 RR 69, 84, 86, 110-11, 130).

6) Contrary to Soffar’s claim that the perpetrators simply walked right in the bowlingalley with a gun and immediately confronted the victims, (30 RR 161), Garner reportedthat the door of the bowling alley was locked and that the assistant manager, SteveSims, had to unlock the door for the single perpetrator who entered with a waterpitcher, not a gun. (32 RR 71-72, 79-80, 101, 138, 144). Only after Sims steppedoutside with the perpetrator and they returned inside did the perpetrator brandish a gunand commence the robbery. (32 RR 80, 105-06, 125). 7) Contrary to Soffar’s claim that five shots were fired, (30 RR 162), only four shotswere fired, as determined by the prosecution’s own firearms expert, (28 RR 90), themedical examiner on the scene, a detective on the scene, and the defense crime sceneexpert. (33 RR 65-66, 125). Garner also reported that only four shots were fired. (32RR 70, 129).

8) Contrary to Soffar’s putative placement of the victims in a straight line from thefront doors in the following order: male, female, male, male, (30 RR 161; 43 RRState’s Exhibit 207/Defense Exhibit 32 (Soffar’s diagram)), Garner and the crime-scene evidence demonstrated that the victims were situated in a semi-circle in thefollowing order from the front doors: female, male, male, male. (33 RR 109-10; 45 RRJoint Exhibit 3 (Garner’s diagram); 31 RR 155-56 (testimony of Det. Williamson); 33RR 87-88 (testimony of defense crime-scene expert)). 26

deduced by the police from the victim’s ultimate floor positions led to statements by Soffar fitting that pattern.”

Soffar, 368 F.3d at 479.

Garner consistently said that a single assailant committed the crime, and told the police that he would be able to27

identify him. (32 RR 68, 118). Garner said he was not sure whether his assailant appeared in either of the two

lineups. (32 RR 193-94). A police witness testified that Garner said that his single assailant “might be” Soffar or

another man in the first lineup of five men, id. at 193, and that he was not positive but his assailant “would look like”

Bloomfield, who appeared in the second lineup. Id. at 194; (43 RR State’s Exhibits 201-202).

17

9) Soffar did not mention the ruse Garner reported the perpetrator used to gain entry –the supposed need to fill the jug with water (or get some air) to remedy a car problem. (32 RR 72-74, 79-80, 83, 104-06, 137-38, 144-46). The crime scene investigatorsdiscovered a jug, otherwise out of place, on the control counter. (26 RR 184; 27 RR90-91, 101; 43 RR State Exhibit 39).

10) Contrary to Soffar’s putative claim that the perpetrators obtained the money fromthe cash registers only after all of the shootings, (30 RR 162), Garner reported that theperpetrator ordered Steve Sims to open the cash register before anyone was shot. (32RR 69, 84, 107, 112, 124, 126-27).

See also Soffar, 368 F.3d at 474 (reviewing seven of these inconsistencies).

Other evidence, too, was inconsistent with Soffar’s guilt. Between Soffar’s first

and second statement, he and Latt Bloomfield were placed in separate lineups. See (43 RR

State’s Exhibits 201 (Soffar lineup), 202 (Bloomfield lineup)). Greg Garner was unable to

positively identify either of them. (32 RR 193-94). 27

In the afternoon on August 7, 1980, the police released Latt Bloomfield from

custody at the direction of the Harris County District Attorney’s Office because they

possessed no evidence to hold him. (31 RR 29-30). The police informed Soffar of this

development, and Soffar was upset because he wanted to see Bloomfield implicated in the

murders. (31 RR 30). Unlike Bloomfield, Soffar was charged with the murders. (31 RR

30). Soffar then made his third statement, set forth supra at 10-12, the only one in which

he implicated himself as a shooter inside the bowling alley.

Mrs. Soffar died before the retrial. 28

At the penalty phase, the defense called Carol Ann Schaub, who testified that Soffar assisted her family member29

moving all day on July 12 and 13, 1980. (39 RR 58-67). Soffar and all of the movers were very tired at the end of

two full days of moving in the middle of summer. (39 RR 66). Soffar did not receive any pay, but did receive some

long neck beer bottles for his help. (39 RR 66-67). Soffar received a ride home on July 13 at around 7:00 or 7:30

p.m. (39 RR 66).

18

According to the testimony of Appellant’s mother, Zelda Soffar, from his first

trial, “Max” came home in the evening on July 13, 1980, tired from helping a friend move28

over the previous two days. (32 RR 244-45). He watched television and went to bed in

his room. (32 RR 257). Because his bedroom had a door to the outside, Mrs. Soffar could

not say with complete certainty that he never left home. (32 RR 266-68). Nevertheless,

she slept lightly because her sick husband needed her assistance, (32 RR 247, 252-53),

and she did not hear Max leave his nearby room, did not give him access to her

tightly-monitored vehicle, and did not hear any vehicle approach her home (the only one

on the block) or any other unusual noises. (32 RR 246-47, 249, 253). She noted that the

family dog had barked at Latt Bloomfield on previous occasions. (32 RR 270-71).

The people Soffar helped move gave him “long neck” beer bottles for which he

hoped to collect a deposit. (32 RR 249-50). The next morning, July 14, 1980, he drove

with his mom to his sister’s home in Alvin and tried to return the bottles. (32 RR 250-51).

They were unable to return the bottles that day, but they were successful two days later.

(32 RR 251). The defense presented testimony from the distributor verifying that Max

Soffar returned the bottles on July 16, 1980, and a receipt for $2.52 to prove it. (43 RR

Defense Exhibit 41; 33 RR 6-8). 29

Jackie Soffar Butler corroborated that her brother and mother came to her home in

See also (43 RR State’s Exhibit 103). 30

19

Alvin at approximately 9 or 10:00 a.m. on July 14, 1980. (32 RR 234). Butler

remembered this occasion because Soffar had brought her a birthday card that morning.

(32 RR 235). In those days, Soffar wore his hair a little longer than shoulder length, a

beard and moustache. (32 RR 235-36). A photograph of Soffar after his arrest is set forth

in Defense Exhibit 19 (43 RR) and below:30

Conviction: Unable to present the evidence inculpating Paul Reid and of the media

broadcast of details that the prosecutor claimed Soffar could have known only if he had

been at the scene, Soffar was convicted of capital murder as charged. (36 RR 4).

Sentencing Phase: As a result of original trial counsel’s ineffective assistance of

counsel, and the 23 year delay before the Fifth Circuit granted habeas relief, the defense

faced a daunting task at sentencing in attempting to unearth mitigating evidence and

Soffar’s life history, including investigation as far back as Soffar’s childhood in the 1950's

Citing various legal arguments, the defense unsuccessfully moved to preclude the death penalty due to the31

inherent unfairness in forcing Appellant to defend against the death penalty 26 years after the alleged capital crime.

(2 CR 499-718). See also Appellant’s Sixth Point of Error and Twenty-Second Point of Error (in proffer brief).

The probation officer came to the conclusion that young Max could not help his behavior. (36 RR 97). 32

20

and 1960's. Many of the witnesses who knew the most about Soffar’s life, including his31

mother, had died by the time of the retrial, (2 CR 500, 531-34), and the court precluded

introduction of their affidavits into evidence. (40 RR 64-65). The few defense witnesses

available to testify were subject to prosecution attacks on their ability to recall decades-old

events. (38 RR 82-85; 39 RR 41-43, 47-48).

Doctors noted at birth hard neurological signs of brain dysfunction and damage,

including an abnormal palate and facial asymmetry. (39 RR 114-15). Soffar was adopted

by older parents who ran a business and did not have the wherewithal or time to care for

him. (36 RR 96; 38 RR 150; 39 RR 139, 233). As an infant, he was irritable and agitated.

(39 RR 119-20). Incompetent as a parent, his mother put phenobarbital, a barbiturate and

central nervous system depressant, in his bottle. Id. Soffar’s father was a heavy drinker,

addicted to sleeping pills, and was mostly absent from his life. (38 RR 25-26, 31-32; 39

RR 140, 169-170). A relative of Soffar’s father noted that the Soffar family home lacked

any discipline. (38 RR 20-21). Soffar’s juvenile probation officer, who had known the

Soffar family for years, believed that his parents were unable to provide the discipline and

structure that he desperately needed. (36 RR 95-96). 32

Soffar began ingesting dangerous substances at a young age. He sniffed modeling

glue and leaded gasoline, and took his mother’s blood pressure pills and anything else he

As the defense expert noted, exposure to lead and other solvents causes severe damage to the neural pathways in a33

developing brain. (39 RR 128).

Dr. Stone was a former Associate Medical Director of the Texas Department of Mental Health and Retardation34

and former Ethics Advisor for the Texas Department of Criminal Justice. (39 RR 104-06).

Soffar had psychotic episodes leading to the hospitalization, including hallucinations that monsters were in his35

window and other strange perceptions. (39 RR 142). His diagnosis on admission said to “rule out” childhood

schizophrenia. (39 RR 187-89).

21

could find in the family’s medicine cabinet. (38 RR 129-31; 39 RR 127-28). According33

to Dr. Susan Stone, a board-certified psychiatrist, Soffar was self medicating his brain

damage. (39 RR 128-29). Due to these and other behavioral difficulties as well as34

problems at school, Soffar’s parents took him to psychiatrists beginning at age six. (36

RR 42-43; 38 RR 152-53; 39 RR 107). The first psychiatrist prescribed Ritalin. (39 RR

107). Soffar was psychiatrically hospitalized at St. Mary’s Hospital at age 11, and at the

University of Texas Medical Branch and Austin State Hospital at age 12. (39 RR 108-35

09). The diagnoses were attention deficit hyperactivity disorder and organic brain

syndrome. (39 RR 108, 117-19, 131, 133-34, 226).

Max Soffar stayed at Austin State Hospital until age 14. (36 RR 42; 39 RR 109).

According to Dr. Stone, this hospital was a “warehouse” for children with “really severe

problems.” (39 RR 109). Rick Laminack, a child care worker there during Soffar’s

hospitalization, (39 RR 4-6), described its conditions. It was “dark, drab, [and] lifeless,”

and smelled of urine and defecation left in the hallways and never cleaned. (39 RR 9-10).

There was “nothing on the walls [and] no furniture to speak of.” Id. The bed linens were

not laundered for weeks at a time. Id. The hospital had a “quiet room,” in which

misbehaving children were placed, usually naked. (39 RR 11-12, 15). A 10 feet by 10

Assisted by Laminack’s information, the State legislature investigated Austin State Hospital for its mistreatment36

of patients at the time Soffar was there. (39 RR 32-34). The jury never heard this evidence, however, because the

court precluded its admission. Id.

22

feet “solitary confinement cell [with] hard floors, hard walls, high ceilings,” the room had

a big wooden door with a grate through which to pass meals. (39 RR 11-12). There were

no toilet facilities, no shower, and “not a stick of furniture.” (39 RR 12). In Laminack’s

opinion, putting a child in this room was “the most dehumanizing, horrible, ugly and

horrible thing” to do to the child. (39 RR 15).

Laminack first met Soffar when a fellow worker called him to help stop Soffar

from banging his head against the floor in the quiet room. (39 RR 10-11). He found the

child bruised, red, scratched, scabbed, tense all over, and crying uncontrollably. (39 RR

11). Laminack worked the afternoon shift and arrived to find Soffar confined in the quiet

room eight to twelve times, (39 RR 44), for several days without clothes. (39 RR 47). See

also (39 RR 148 (expert reviewing documentation of use of quiet room on Soffar)).

Laminack did not see Soffar or the other children receiving any treatment. (39 RR 29).

Hospital records revealed that Soffar received such age-inappropriate and risky treatments

as electroconvulsive therapy and powerful psychotropic medication. (39 RR 144-47). 36

Laminack assisted Soffar with his homework, and observed that Soffar struggled

and performed several grade levels lower than appropriate for his age. (39 RR 25-27).

Soffar was known to tell “whoppers,” tall tales about the adventures he supposedly had on

the several occasions when he and other children fled from the hospital grounds. (39 RR

20-21, 27). He saw Soffar act out, mutilate himself and start fights. (39 RR 18-20, 25).

Michael Clawson is Sgt. Bruce Clawson’s brother; they worked for different police agencies. (38 RR 109).37

23

When Soffar was given positive attention and reinforcement, Laminack saw him do quite

well, working hard on his school work and helping with the younger children during

recreational activities. (39 RR 26).

After Soffar left Austin State Hospital, he continued to have behavioral problems

and, at age 16, was placed in a program called Boy’s Country. (36 RR 77). He was

ultimately expelled from that program. (36 RR 88). Still 16, Soffar was then sent to Gulf

Coast Trade Center, a vocational school. (36 RR 89-90). The executive director there

remembered Soffar well and testified that the teenager succeeded in the shops and did

poorly in the classroom. (38 RR 67-68, 79). Soffar was not violent (violent students were

removed from the program), but had a serious substance abuse problem: he sniffed paint,

paint thinner and anything else at hand. (38 RR 72-73). When the executive director drew

the line for him, Soffar learned to respond well to authority. (38 RR 71). Although most

students stayed three months, Soffar stayed nine. (38 RR 74).

After Gulf Coast, Soffar became a police informant. (38 R 109). Officer Michael

Clawson testified that Soffar had mental health problems, a drug-“fried” brain, and was37

not very smart. (38 RR 105-06). During this period, Soffar saved Sgt. Bruce Clawson’s

life when his cover was blown during an undercover narcotics purchase. (40 RR 5-6).

Soffar went to state prison in 1981 and eventually matured. He participated in a

religious ministry programs for over 20 years, and formed strong bonds with the people

who ministered to him. (39 RR 70-87, 91-95). Clarence Brandley, once imprisoned on

See, e.g., Ex parte Brandley, 781 S.W.2d 886, 894-95 (Tex. Crim. App. 1989). See also Chuck Lindell, The38

Great Writ and Some Who Were Exonerated, AUSTIN AM ERICAN-STATESMAN , Oct. 29, 2006, at A1.

The prosecution introduced evidence alleging that the reckless conduct conviction arose out of an incident where39

Appellant threatened the police with a gun when they came to his sister’s home during a Christmas party in 1979.

See, e.g., (37 RR 19-29).

24

Texas’s death row but ultimately exonerated, worked with Soffar in a prison factory and38

observed him during recreation time over a four-year period. (40 RR 11-13). Brandley

never saw Soffar have trouble with inmates or guards. (40 RR 10-13). Soffar made

handicrafts for a cousin, Carol Schaub, and impressed her with his new-found faith and

mature manner. (38 RR 40-47). Acclaimed writer Kinky Friedman was working on a

news story when he met Soffar in prison, and they formed a friendship sustained through

correspondence. (40 RR 17-23). Soffar eventually married, and formed a loving

relationship with his wife, Sandra Soffar. (40 RR 24-35).

To convince the jury that Max Soffar “would commit criminal acts of violence that

would constitute a continuing threat to society,” TEX. CODE CRIM. PROC. 37.0711 § 3 (b),

the prosecution introduced 26 year-old and older allegations of violence for which he had

never been charged or convicted. These allegations included a rape in 1979, and

threatening a girlfriend with a gun in 1980. (37 RR 96-117; 146-52). The last allegation

was a 1996 disciplinary infraction based on an alleged verbal threat to inflict harm on a

corrections officer. (38 RR 12). The prosecution also relied on prior low-level

convictions for marijuana possession, reckless conduct, resisting arrest, enticing a child,39

making a “terroristic” threat, burglary, and burglary of a coin-operated machine. (38 RR

37-38; 45 RR State’s Punishment Exhibits 7-12, 16-18). The prosecution went as far back

The most serious prison allegations were from 1984 and 1985, when Appellant allegedly threw urine at a40

corrections officer and possessed a shank. (37 RR 183-84; 38 RR 6-8). The other violations not addressed in the

text were for possession of contraband in 1982, indecent language and threatening an officer in 1984, failure to obey

orders in 1984, disobeying an order in 1984, level one possession of weapon in 1985, damaging or destroying

property and refusal or failure to obey orders in 1985, refusal to obey order in 1985, threatening to inflict harm on

inmate in 1987, being out of place in 1987, refusing or failure to obey order in 1989, damaging or destroying

property and threatening to inflict harm on inmate in 1990, possession of contraband in 1995, and use of intoxicating

inhalant, paint thinner, in 1997. (38 RR 10-12). See also (45 State’s Punishment Exhibit 33).

25

as Soffar’s childhood, focusing on incidents when Soffar ran away, and when he was

referred to juvenile probation for what his probation officer referred to as “several minor

offenses,” including misdemeanor thefts. (36 RR 70-77). Finally, the prosecution relied

on a series of similarly-stale prison disciplinary infractions clustered around the mid-

eighties, the latest of which was for possession of marijuana and tobacco in 1998. (38 RR

12). The vast majority of the infractions did not involve allegations of violence.40

Over defense objection, the prosecution introduced victim-impact evidence related

to Steve Sims, even though Soffar was neither indicted nor convicted of killing Sims. (40

RR 37-44). The verdict sheet indicated a sentence of death, but the jury was discharged

“from further duties” by the court before its foreperson had signed the last page of the

verdict sheet. (15 CR 4678; 42 RR 6-7). Over defense objection, the court reconstituted

the jury so that the foreperson could sign the last page of the verdict sheet. (42 RR 7-8).

Summary of Argument

At his 2006 retrial, in addition to eliciting the “stark inconsistencies between [the

sole witness Greg] Garner’s description of the” robbery murders at a bowling alley on

Route 290 in Houston “and the one that the officers testified that Soffar gave them,”

Soffar, 368 F.3d at 471, Max Soffar attempted to defend himself in two principal ways.

26

First, he attempted to introduce compelling evidence that Paul Reid, a dangerous Houston

criminal in 1980, was responsible for the crime. Second, Soffar – a former police

informant known to be unreliable, unintelligent and a drug addict – sought to attack his

putative confession by introducing evidence that it consisted only of details disseminated

to the public through the media. The trial judge committed reversible errors and rendered

Soffar’s retrial fundamentally unfair by blocking both of these lines of defense.

Jurors are truth seekers, and they cannot determine where the “truth lies” when they

hear only one side’s evidence. Washington v. Texas, 388 U.S. 14, 19 (1967). For these

reasons, among the others set forth in this brief, under the Constitution, a court may not

prevent an accused from presenting evidence in support of his chosen defense unless the

state demonstrates a legitimate justification. Holmes v. South Carolina, 547 U.S. 319, 126

S. Ct. 1727, 1731 (2006).

At Max Soffar’s retrial, he had a constitutional right to present evidence that Paul

Reid was the guilty party and the state offered no legitimate justification for preventing

him from doing so. As demonstrated, infra, Reid: (1) admitted to Stewart Cook that he

shot four people in a bowling alley on Route 290; (2) strongly resembled the composite

prepared from Garner’s description; and (3) was convicted in Tennessee of a series of

execution-style multiple robbery murders remarkably similar to the 1980 Houston triple

robbery murders. See, e.g., (9 CR 2553, 2561; Appendix A to Brief). Evidence of Reid’s

statement against interest and modus operandi were admissible under Texas evidentiary

rules, TEX. R. EVID. 803 (24), 404 (b), and the State had absolutely no legitimate

In the interests of economy, Appellant seeks leave to file this summary focusing only on the above issues instead41

of a discussion of all 21 Points of Error raised. See Tex. R. App. P. 38.1 (g). In addition, with leave of the Court,

the issues listed in the Table of Contents will serve as the “Issues Presented.” Tex. R. App. P. 38.1 (e).

27

justification to block its admission. Holmes, 126 S. Ct. at 1731. Similarly, evidence of the

media dissemination of information contained in Soffar’s confession – which the

prosecutor argued only the perpetrator could have known – was highly relevant and the

jury should have been permitted to hear it. Again, the State had absolutely no legitimate

justification to block its admission.

Due to these and the other errors discussed below, Soffar’s retrial was grossly and41

fundamentally unfair. It was also thoroughly inconsistent with constitutional, statutory

and common law mandates. Reversal is required.

Appellant’s First Point of Error

(a) The trial court erred under TEX. R. EVID. 803 (24) in excluding statements againstinterest establishing that Paul Reid told an accomplice during a Houston robberythat he had previously shot four people in a bowling alley on Route 290.(b) The trial court violated Max Soffar’s federal and state constitutional rights to dueprocess, compulsory process, and to present a defense by precluding evidence ofReid’s admission to shooting four people in a bowling alley on Route 290.

Max Soffar sought to defend himself against the State’s capital murder charge by

offering evidence that Paul Reid was the guilty party. In addition to erroneously-

precluded evidence that Paul Reid’s modus operandi in a spree of Tennessee robbery

murders identified him as the perpetrator in the present case, see Appellant’s Third Point

of Error, infra, Soffar sought to introduce evidence that Reid admitted to Stewart Cook

during their joint 1981 or 1982 Houston robbery/shooting that Reid had shot four people in

See (5 CR 1507-09 (State v. Reid, Cause No. 274209 (179th Dist. Ct., Harris Cty.)); 6 CR 1531-4342

(Supplementary Offense Report, # 82-6304 (Pasadena Police Dept.) (“Having received his magistrate’s warning,

Reid was then interviewed about a series of robberies which he advised that he and Stewart Cook had committed”));

5 CR 1481-85 (affidavit of Stewart Cook); 5 RR 230; 30 RR 84 (prosecution acknowledging this history); 6 CR

1544 (article documenting Reid’s history); 9 CR 2302-04 (Corrections Social and Criminal History)).

For example, they feigned car trouble or a desire to obtain an employment application. (5 CR 1483). 43

28

a bowling alley on Route 290. (43 RR Defense Exhibit 40, ¶ 12; 5 CR 1485). The trial

court’s preclusion of this evidence violated Texas law and denied Soffar a “‘meaningful

opportunity to present a complete defense,’” as guaranteed by the United States

Constitution. Holmes v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727, 1731 (2006)

(quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). The result was a blatantly unfair

and one-sided trial, in which the jury heard only the prosecution’s evidence.

Factual Background. Paul Reid is on death row in Tennessee for killing seven

people in three different robbery-murders at restaurant establishments in that state. He

was living in his native Houston in July of 1980. (45 RR Defense Exhibit P-39; 6 CR

1648, 1654, 1660-61). In the early 1980’s, Reid committed numerous armed robberies in

the Houston area, many with Stewart Cook. By Cook’s estimate, they committed thirty42

to forty robberies together in 1981 and 1982. (5 CR 1483). Their method was to target

businesses on the weekends, believing that more cash would be available. Id. They often

entered the businesses under some pretext near closing time, and forced the employees to43

get on the floor before they fled. Id. See, e.g., (8 CR 2304) (Reid admitting such a crime

to corrections official).

Following their robbery of a home improvement store, an employee chased Reid

and Cook on a bicycle. (6 CR 1536-38; 10 RR 10). When the employee caught up, Reid

As explained in detail in Appellant’s Third Point of Error, Reid was finally caught and pleaded guilty to three44

robberies. (6 CR 1515-27). Following an incarceration of approximately eight years in Texas, he was released early

on parole, moved to Tennessee, and resumed his pattern of robberies and murder robberies. See generally (6 CR

1549-50. Reid, who had successfully pleaded insanity in his 1977 robbery, (5 CR 1507-09; 6 CR 1656-57), is now

on death row in Tennessee, but his execution has been delayed due to mental competency issues. (5 RR 227-28).

See also Reid v. State, 197 S.W.3d 694 (Tenn. 2006).

The trial court also ruled admissible evidence showing Reid’s presence in Houston at the time of Fairlanes crimes,45

and his physical similarity in 1980 to the Fairlanes perpetrator described by Greg Garner. (5 RR 234; 10 RR 12; 6

CR 1671-72).

29

shot him. Id. In his sworn affidavit to Fried Frank Harris Shriver & Jacobson LLP (“Fried

Frank”), Soffar’s pro bono post-conviction counsel, Cook explained that he demanded to

know why Reid had used his gun. (5 CR 1484). “Paul [Reid] brushed it off, telling [Cook]

he’d done much worse during a robbery he had committed before [they had] started

working together. Specifically, [Reid] said that he once had a ‘problem’ while he was

robbing a bowling alley out on Route 290, and he had shot ‘four people.’” (43 RR Defense

Exhibit 40, ¶ 12; 5 CR 1484-85). 44

At his 2006 trial, Soffar sought to introduce Reid’s statement against interest

through the testimony of Cook. Initially, the trial court ruled the statement admissible. (5

RR 234; 10 RR 12; 6 CR 1671-72). On the first day of trial, however, Stewart Cook45

stated under oath (and subpoena) that although his sworn affidavit to Soffar’s attorney was

true, he would plead the Fifth Amendment if asked about its contents or his conversation

with Reid. (26 RR 91-94). Cook testified openly about the circumstances under which he

signed his affidavit, and even swore it was true without pleading the Fifth Amendment.

(26 RR 91; 93-94). Despite this ambiguity, the prosecution did not attempt to cross

examine Cook on any topic, or to test whether Cook would plead the Fifth Amendment if

asked about how and why he came to sign it. (26 RR 94). The State refused to grant Cook

The attempted murder with which Reid and Cook could be charged carries no statute of limitations. See TEX.46

CODE CRIM . PROC. Arts. 12.01 § 1 (A), 12.03 (a).

A federal habeas court ordered the deposition during the pendency of Soffar’s habeas appeal when Reid’s47

execution appeared imminent. (5 RR 227-28). Using Reid’s sworn denial that he had committed the Fairlanes

robbery-murders (at a deposition where the State was represented by the Attorney General’s Office) was at least one

option for attacking the Reid admission in front of the jury (5 RR 233), as the prosecution did in arguments to the

trial judge. (30 RR 82 (prosecution arguing from Reid’s deposition); 6 CR 1646-70 (the deposition)).

By the time of the court’s ruling precluding Reid’s admission, it had already precluded evidence of Reid’s modus48

operandi in his Tennessee and Texas crimes. (10 RR 11).

30

immunity, as did the trial court. (24 RR 4-5; 26 RR 99). The defense then proposed to46

call a Fried Frank attorney to introduce Cook’s statement, explaining that both Cook and

Reid’s admissions were declarations against interest under TEXAS RULE OF EVIDENCE 803

(24). The defense explained that the prosecution could impeach Cook and Reid’s

credibility as contemplated by TEXAS RULE OF EVIDENCE 806, and could use a sworn Reid

deposition, in which he denied committing the crime, to do so. (5 RR 233; 26 RR 99; 3047

RR 83; 13 CR 3809-14). Over defense objections that the court was denying Max Soffar

his right to due process, compulsory process, and to present a defense, the court precluded

the proffered evidence at the prosecution’s urging. (5 RR 233-34; 30 RR 79, 84; 32 RR

37, 44; 5 CR 1474-78; 13 CR 3796-3801).

The defense proffer of evidence included not only the Cook affidavit, (32 RR 39;

43 RR Defense Exhibit 40), but also additional evidence Appellant would have presented

had the court permitted admission of Cook’s affidavit, including: 1) the testimony of

Edwin Cook, Stewart Cook’s brother, who would have identified the composite created

from Garner’s description as resembling Reid in 1980, (32 RR 38-40); and 2) the48

testimony of Reid’s ex-wife, who would have testified that they were married in July of

Reid’s ex-wife would also have testified that their wedding photograph precisely portrays how Reid appeared in49

July of 1980 and that although he was living in Houston the night of the Fairlanes robbery murders, he was not with

her. (30 RR 78). Of course none of the evidence about Reid or his appearance in 1980 would have been persuasive

without the court’s either allowing in the modus operandi evidence it excluded or Reid’s admission.

TEXAS RULE OF EVIDENCE 803 (24) allows the admission of hearsay statements which make the declarant50

subject to criminal liability so long as they are accompanied by “corroborating circumstances . . .”

Interpreting TEXAS RULE OF EVIDENCE 803 (24), this Court has looked to federal authority interpreting the rule’s51

federal counterpart (FED . R. EVID . 804 (b) (3)), which is “virtually identical.” Davis, 872 S.W.2d at 748 n.13.

31

1980, providing a foundation for introducing Reid’s wedding photograph and marriage

license. (32 RR 38; 45 RR Defense Exhibits 37-39). 49

(a) The trial court erred under TEX. R. EVID. 803 (24) in excluding statements againstinterest establishing that Paul Reid told an accomplice during a Houston robberythat he had previously shot four people in a bowling alley on Route 290.

Determining admissibility under TEXAS RULE OF EVIDENCE 803 (24) requires a50

two-step inquiry. Davis v. State, 872 S.W.2d 743, 747-48 (Tex. Crim. App. 1994). The

first step addresses “whether the statement tended to expose the declarant to criminal

liability.” Id. at 747. One indication of such exposure is an invocation of the Fifth

Amendment claim against self incrimination. Id. Another is a lack of “evidence

indicating that [the speaker] would necessarily have been immune from prosecution.” Id.

The second step requires a determination whether corroborating circumstances “‘clearly

indicate the trustworthiness of the statement.’” Id. at 747-48 (quoting TEXAS RULE OF

EVIDENCE 803 (24)). Such corroborating circumstances include “when the guilt of [the

hearsay declarant] is inconsistent with the guilt of the accused, [and] when the facts show

that such party was so situated that he might have committed the crime.” The very fact

that a statement is “genuinely self-inculpatory” is itself an indication of its trustworthiness.

Williamson v. United States, 512 U.S. 594, 605 (1994). 51

Standard of Review: Because the admissibility of Reid’s statement against interest was a legal and constitutional52

issue not turning on an evaluation of the credibility and demeanor of live witnesses, de novo review applies. “When

the resolution of a question of law does not turn on an evaluation of the credibility and demeanor of a witness, then

the trial court is not in a better position to make the determination, so appellate courts should conduct a de novo

review of the issue.” State v. Moff, 154 S.W.3d 599, 601 (2004). See also Guzman v. State, 955 S.W.2d 85, 89

(Tex. Crim. App. 1997) (same) (citing Villarreal v. State, 935 S.W.2d 134, 139-41 (Tex. Crim. App. 1996)

(McCormick, P.J., concurring)). Moreover, appellate courts “independently” decide questions of constitutional

dimension. Lilly v. Virginia, 527 U.S. 116, 137 (1999); Ornelas v. United States, 517 U.S. 690, 697 (1996). But see

Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001) (noting a defendant’s constitutional right to present a

defense, but reviewing the preclusion of defense evidence employing an analysis of state evidentiary law and an

abuse of discretion standard). Id. at 508 (Womack, J., concurring) (noting that constitutional principles discussed

were “not implicated in this case”); Cunningham v. State, 877 S.W.2d 310, 312 (Tex. Crim. App. 1994) (reviewing a

trial court’s decision whether to admit a statement against interest under an abuse of discretion standard when a

defendant’s right to present a defense was not at issue).

32

As shown below, both Reid’s statement to Cook and Cook’s statement to the Fried

Frank attorneys were admissible as statements against penal interest.

Cook’s Statement Was Admissible under TEXAS RULE OF EVIDENCE 803 (24).52

Cook’s statement that Reid admitted to shooting four people in a bowling alley on

Route 290 while he and Cook were committing a Pasadena robbery and shooting for

which both men were responsible obviously “tended to expose [Cook] to criminal

liability.” Davis, 872 SW.2d at 747. First, Cook admitted to being a party to an attempted

murder, for which there is no statute of limitations. See TEX. CODE CRIM. PROC. Arts.

12.01 § 1 (A), 12.03 (a). Second, Cook stated in court that he would invoke his Fifth

Amendment right against self incrimination if asked about this incident. Third, immunity

from prosecution was not forthcoming. (26 RR 91-94; 24 RR 4-5; 26 RR 99). Each of

these factors shows that Cook’s statement tended to expose him to criminal liability.

Cook’s statement is also accompanied by numerous corroborating circumstances

clearly demonstrating its trustworthiness. Cook had nothing to gain by making his

statement to Soffar’s post-conviction attorney, who had nothing of benefit to offer him.

Cook was neither being sought for his robbery/murder with Reid nor the Fairlanes robbery murders when he gave53

his statement, further eliminating the possibility that he was trying to “shift blame or curry favor.” Williamson, 512

U.S. at 603.

Although Cook’s statement could be characterized as “eleventh hour,” Cook explained in his affidavit that he was54

coming forward out of a genuine feeling of remorse for failing to “make an earlier effort to turn Paul into the

authorities before he committed the Tennessee murders,” (5 CR 1488), and, in any event, the late nature of his

statement does not in and of itself defeat the numerous indicia of its reliability. Davis, 872 S.W.2d at 749 (rejecting

argument that “eleventh hour” nature of statement defeated other indicia of reliability).

Compare with Cunningham v. State, 877 S.W.2d 310, 314 (Tex. Crim. App. 1994) (finding statement against55

interest untrustworthy because it conflicted in “significant aspects” with other evidence).

See also United States v. Doerr, 886 F.2d 944, 956 (7th Cir. 1989) (finding “circumstantial guarantee[] of56

trustworthiness” in part because hearsay statement at issue was made under oath).

33

Burks, 876 S.W.2d at 904-05. Cook did not know Soffar, eliminating any inference that53

the statement was made out of affection for him. (30 RR 80). Cf. Skipper v. South54

Carolina, 476 U.S. 1, 8 (1986) (noting that disinterested testimony “would quite naturally

be given much greater weight by the jury”). Independent facts also corroborate Cook’s

statement, including the extensive police report, setting forth the details of the crime Cook

described. (6 CR 1531-43). The police report also contains Reid’s admission that he and

Cook “committed . . . a series of robberies” in the Houston area around the time when this

incident occurred. (6 CR 1539). In fact, every available piece of evidence corroborates

Cook’s statements, and nothing but Reid’s spurious deposition refutes it.55

Cook’s affidavit was sworn, exposing him to the threat of perjury charges.

Williamson, 512 U.S. at 598 (emphasizing importance of “the oath”). Moreover, the56

prosecution strictly controlled Cook’s availability for the jury to “observe [his] demeanor”

and the “right . . . to cross examine.” Id. The prosecution could have “immunized [him],

called him to testify at trial, and examined him.” Alonso v. State, 67 S.W.3d 346, 360

(Tex. App. – Waco 2001), petition for discretionary review granted but dismissed as

Cook’s affidavit was executed in 2000, (5 CR 1488), and was provided to the State during post-conviction57

litigation around that time. (5 RR 227; 30 RR 80-81). At trial, the Harris County District Attorney’s Office

acknowledged that it knew about the crime Cook referred to in his statement (and other crimes) when Reid and Cook

pleaded guilty to another robbery. (30 RR 84). By never charging Cook in the first instance or even when it

received his affidavit during the Soffar post-conviction litigation, yet declining to extend immunity to Cook so that

he could answer questions, the prosecution has amply demonstrated that its only interest in this twenty-four-year old

matter is to use it to dissuade Cook from testifying to Reid’s admission. Far from fulfilling its obligation to seek

justice and the truth, Berger v. United States, 295 U.S. 78, 88 (1935), the prosecution was bent on winning a

conviction against Max Soffar. Moreover, the issue here is not whether the prosecution was required to provide

immunity (which is addressed as an alternative argument in Appellant’s Second Point of Error) but only whether it

could easily have granted immunity, allowing Cook to testify on direct and under the state’s cross examination.

Defense counsel relayed to the court that she knew of no other bowling alley murder “at that time,” and no “other58

crime from July 14, 1980 through the present in Houston at a bowling alley where 4 people were shot and 3 people

died other than this one.” (30 RR 79). The prosecution did not dispute this information. Id.

34

improvidently granted by 158 S.W.3d 515 (Tex. Crim. App. 2005).57

Clearly, Cook’s statement was admissible as a declaration against interest.

Reid’s Statement Was Admissible under TEXAS RULE OF EVIDENCE 803 (24).

Reid’s statement to Cook that he shot four people in a bowling alley on Route 290

also was admissible as a statement against interest. Indeed, the trial court ruled that this

layer of hearsay could be introduced through Cook, (5 RR 234; 10 RR 12; 6 CR 1671-72),

and the appellate prosecutor who had the last word on the issue conceded that Reid’s

statement was a statement against interest. (30 RR 83-84). The prosecution’s concession

is not surprising. Reid admitted to a very serious crime, which certainly “tended to58

expose him to criminal liability.” Davis, 872 SW.2d at 747. Reid stood nothing to gain

and “must have been aware of the possibility that disclosure would lead to criminal

prosecution.” Chambers, 410 U.S. at 299, 301.

Corroborating circumstances clearly demonstrate the trustworthiness of Reid’s

statement as well. Reid’s admission was “inconsistent with the guilt of the accused.”

Davis. 872 S.W.2d at 748. Furthermore, Reid made the statement in response to a casual

35

inquiry by Cook, who had no connection to the Fairlanes robbery-murder. Dewberry v.

State, 4 S.W.3d 735, 751 (Tex. Crim. App. 1999) (finding casual and spontaneous

statements to declarant’s friend trustworthy). Reid was not then under suspicion for the

crime, was not shifting blame, and certainly had no incentive to curry favor with Cook.

Williamson, 512 U.S. at 603; Burks, 876 S.W.2d at 904-05.

In addition, independent corroborating facts showed that Reid was in a position to

have committed the crime. Davis, 872 SW.2d at 749. Reid was in Houston in July of

1980, was married there only days after the robbery murders, (45 RR Defense Exhibit 39;

6 CR 1648, 1654, 1660-61), and his wife could not account for his whereabouts on the

night of the crime. (30 RR 79). These salient facts supported the defense theory that Reid

committed the crime. See Holmes, 126 S. Ct. at 1731 (reversing due to preclusion of

evidence of third party guilt where third party’s alibi was refuted). Witnesses would have

established that Reid’s appearance during that time period strongly resembled the Garner

composite. (32 RR 38-40 (Edwin Cook); 30 RR 78 (Reid’s ex-wife)). So, too, would

have Reid’s wedding photograph. Compare Joint Exhibit 6 with Defense Exhibit 37:

As described by a Tennessee detective, “Reid displayed a distinctive modus operandi in his crimes in Tennessee –59

he would gain entry to an establish[ment] at a time when the establishment was closed but employees were still

present, by causing employees to let him in. [] Reid would steal cash and coins, often having an employee access the

register or safe. [] Reid would then kill or attempt to kill all employees present at the time of the robbery, with a

preference for forcing the employees to lie on the floor, face down, and then shooting them execution style, with a

gun shot to the head.” (9 CR 2561). Cook’s affidavit sketched out a similar modus operandi, but Reid was

generally not shooting the victims in those robberies. (5 CR 1483).

The opinion reviewed the Supreme Court’s long history of upholding the right to present a defense. Holmes, 12660

S. Ct. at 1731-32 (citing Rock v. Arkansas, 483 U.S. 44 (1987); Crane, 476 U.S. at 690 (finding violation of right to

present defense where the defendant was prevented from introducing evidence to show at trial that his confession

was unreliable, and neither the state court nor the prosecution “advanced any rational justification”); Chambers v.

Mississippi, 410 U.S. 284 (1973) (finding violation of right to present defense, in part, because court precluded

statement against penal interest inculpating an alternative perpetrator); Washington v. Texas, 388 U.S. 14 (1967)

(noting that the “right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain

36

Finally, Reid’s modus operandi during numerous robberies in Houston and later in

Tennessee strongly corroborated his guilt, and indeed indelibly marked him as the

perpetrator of the Fairlanes robbery murders. See Appellant’s Third Point of Error, infra,

incorporated herein. Even if this Court rules that the trial court did not err in keeping this59

crucial modus operandi evidence from the jury, the evidence still corroborates his

admission to shooting four people in a bowling alley on Route 290.

Thus, all of these circumstances clearly show that Reid’s statement against interest

was trustworthy and admissible. Davis, 872 S.W.2d at 747-48.

(b) The trial court violated Max Soffar’s federal and state constitutional rights to dueprocess, compulsory process, and to present a defense by precluding evidence ofReid’s admission to shooting four people in a bowling alley on Route 290.

The United States Supreme recently reaffirmed that “[w]hether rooted directly in

the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or

Confrontation Clause of the Sixth Amendment, the Constitution guarantees criminal

defendants a meaningful opportunity to present a complete defense.” Holmes, 126 S. Ct.

at 1731 (internal quotation omitted). The Court reversed a conviction where the trial60

terms the right to present a defense, the right to present the defendant’s version of the facts as well as the

prosecution’s to the jury so it may decide where the truth lies”) (emphasis added)).

The Court reversed despite substantial forensic evidence that the petitioner was guilty, including DNA evidence,61

palm print and fiber evidence. Holmes, 126 S. Ct. at 1730.

Not unlike Paul Reid, (6 CR 1650-51), when brought before the trial court, the third party in Holmes denied62

having made these admissions. 126 S. Ct. at 1730-31.

See Powel v. Nevada, 511 U.S. 79, 80 (1994) (a “‘rule for the conduct of criminal prosecutions is to be applied63

retroactively to all cases . . . not yet final’ when the rule is announced” (quoting Griffith v. Kentucky, 479 U.S. 314,

328 (1987))); Griffith, 479 U.S. at 321 n.6 (noting that a criminal case is not final until the defendant is sentenced,

takes a direct appeal, and files a petition for certiorari or the time for such a petition has expired).

Holmes, 126 S. Ct. at 1731; Coleman v. State, 966 S.W.3d 525, 527-28 (Tex. Crim. App. 1998) (reversing64

conviction and recognizing the defendant’s right to compulsory process in order to obtain the attendance and

testimony of witnesses favorable to his defense); Alonso, 67 S.W.3d at 359-60. Summarizing the requirements of

the same right-to-defense precedents the Supreme Court reviewed in Holmes, the Alonso court developed the

following useful five-factor test for determining whether a defendant’s right to present a defense required the

admission of hearsay evidence proffered by the defense: [1] what was the inherent trustworthiness of the hearsay; [2]

was there corroborating evidence that the hearsay is truthful; [3] how important to the determination of

guilt/innocence is the hearsay; [4] did the State have an opportunity to examine the declarant of the hearsay; [5] did

the State demonstrate the unreliability of the hearsay? Id. at 359-60.

37

court had relied on state evidentiary law to preclude admission of evidence that someone

else had committed the rape/robbery/murder for which petitioner stood trial. Id. at 1735. 61

Notably, like here, the evidence of the third party’s guilt included admissions that he was

responsible for the crime. Id. at 1730-31. Although Holmes was decided after62

Appellant’s retrial and thus the trial court could not have been aware of its precise

language and holding, Holmes applies to this case. Reversal is required.63

Appellant’s constitutional right to present a defense required admission of Cook’s vitalstatement.

Exclusion of Cook’s statement certainly violated Max Soffar’s constitutional right

to present a defense. First, Cook’s statement was under oath, Doerr, 886 F.2d at 956,64

and its self-incriminating nature provides it with an inherent guarantee of trustworthiness.

Chambers, 410 U.S. at 299. Second, as explained above, ample evidence, including

contemporaneous police reports, strongly corroborated Cook’s affidavit. Id.

38

Third, and crucially, Cook’s statement was essential to Soffar’s defense that his

own putative confession should not have been credited because Paul Reid was responsible

for the crime. Without his “alternative perpetrator” defense, Soffar was left only with an

“easily discounted alibi defense composed of . . . family.” Alonso, 67 S.W.3d at 360.

Given that the court precluded evidence of Reid’s modus operandi in other crimes to show

his identity as the Fairlanes perpetrator, Cook’s affidavit was the only remaining avenue

available for Soffar to present his defense that Reid committed the robbery murders. Cf.

Ray v. State, 178 S.W.3d 833, 836 n.1 (Tex. Crim. App. 2005) (“Had appellant chosen not

to testify in her own defense, we would be faced with exclusion of clearly vital evidence,

precluding altogether the presentation of the defensive theory.”). Without Cook’s

affidavit, the prosecution was able to obtain its conviction by improperly arguing to the

jury that the defense “didn’t bring you any evidence that someone other than the

Defendant committed this crime.” (35 RR 9). Thus, the jury was left with a thoroughly

misleading picture: the prosecution’s theory of the case countered not by evidence of an

alternative perpetrator, but by an alibi defense from a family member that was plausible

yet uncorroborated.

Fourth, as noted, the prosecution could have cross examined Cook by

“immuniz[ing] [him], call[ing] him to testify at trial, and examin[ing] him.” Alonso, 67

S.W.3d at 360. In addition, the prosecution declined to take the opportunity to cross

examine Cook under oath about subject areas for which he did not invoke his privilege

against self incrimination – including the circumstances under which he executed the

TEXAS RULE OF EVIDENCE 806 provides in relevant part: “When a hearsay statement . . . has been admitted in65

evidence, the credibility of the declarant may be attacked, and if attacked may be supported by any evidence which

would be admissible for that purpose if declarant had testified as a witness.”

The prosecution attempted to cast doubt on Cook’s statements in arguments before the judge by referring to his66

refusal to talk and to Reid’s claim that Cook set up the whole story to win a book deal. (26 RR 98; 30 RR 82).

While demonstrating the type of arguments it could have made before the jury to confront Cook’s statement, these

arguments do not establish that Cook’s statement was not reliable. The prosecution made no effort to counter

Cook’s (police corroborated) rendition of the crime he and Reid committed when Reid made the statement. And

neither Reid’s claim about a book deal (among other fanciful, grandiose, and unsubstantiated claims in his

deposition) nor Cook’s refusal to talk to the prosecution’s agent created anything more than a question for the jury

about the reliability of Cook’s statements. See Holmes, 126 S. Ct. at 1731 (noting that third party whose guilt the

defense tried to establish denied making incriminating statements when brought before the trial court).

39

affidavit. (26 RR 91-94). The prosecution knew about Cook’s affidavit and could not

claim “unfair surprise.” Alonso, 67 S.W.3d at 360. In fact, the prosecution acknowledged

that it had sent an agent to speak with Cook, but he refused to talk. (26 RR 98). Under

TEXAS RULE OF EVIDENCE 806, which defense counsel cited and referred to as a means65

for the prosecution to confront Cook and Reid’s hearsay statements, (5 RR 233; 26 RR 99;

30 RR 83), the prosecution could have introduced Cook’s refusal to cooperate to raise an

inference of bias and to thereby impeach Cook’s statement; it also could have relied on

Reid’s deposition in which he denied making the statement to Cook. (6 CR 1650-51).

Combined, the numerous opportunities the prosecution had to cross examine and confront

Cook’s assertions weigh heavily towards their admission. The predominant purpose of the

hearsay rule is to prevent juries from hearing statements not tested in the crucible of cross

examination. Williamson, 512 U.S. at 598. Applying the hearsay rule wholesale in this

case was “arbitrary” because the purpose of the rule was not served where the prosecution

had both actual opportunities to cross examine Cook, as well as practical substitutes for

cross examination. Holmes, 126 S. Ct. at 1731. 66

The prosecution did nothing to call into question Reid’s admission to killing four people in a bowling alley on67

Route 290. Whether Soffar’s putative admission to the crime (with Bloomfield) or Reid’s admission was true was

purely a question for the jury. Cf. Holmes, 126 S. Ct. at 1731 (reversing conviction obtained through preclusion of

evidence of third-party guilt, despite that third party denied his guilt and self incriminating statements).

40

A state cannot apply its hearsay rule to deprive a defendant of a right to present a

defense. Max Soffar had a constitutional right to introduce the Cook statement.

Appellant’s constitutional right to present a defense required admission of Reid’s vitaladmission to the crime.

Appellant also had a constitutional right to introduce the Reid statement to Cook.

As an admission to an extremely serious crime, Reid’s statement was: (1) inherently

trustworthy, Alonso, 67 S.W.3d at 359-60; (2) substantially corroborated by other

evidence; (3) critical to Soffar’s right to present a defense, id., particularly where, without

it, the prosecution was able to argue to the jury that the defense had not introduced

evidence of an alternative perpetrator; and (4) subject to the State’s cross examination at

Reid’s deposition, which would have been available to the jury had Reid’s hearsay

admission been permitted into evidence. Id. TEX. R. EVID. 806. 67

The prosecution had an opportunity to and in fact did cross examine Reid. (6 CR

1646-70). Thus, barring his admission did not serve the purpose of the hearsay rule. The

ruling was “arbitrary” in the same sense that the rules Justice Alito reviewed in Holmes

were arbitrary. The rules reviewed in Holmes, like the rule applied to exclude Reid’s

statements, arbitrarily deprived the defendant of his constitutional right to present a

defense. 126 S. Ct. at 1731-32, 1735. Specifically, just as in Holmes, the trial court’s

arbitrary evidentiary ruling completely prevented Soffar from presenting an “alternative

This Court has stated that the exclusion of evidence may establish a constitutional violation: “(1) when a state68

evidentiary rule categorically or arbitrarily prohibits the defendant from offering relevant evidence that is vital to his

defense; or (2) when a trial court erroneously excludes relevant evidence that it is a vital portion of the case and the

exclusion effectively precludes the defendant from presenting a defense.” Ray v. State, 178 S.W.3d 833, 835 (2005)

(citing Potier v. State, 68 S.W.3d 657, 659-62 (Tex. Crim. App. 2002). Appellant has demonstrated a constitutional

violation under the second test, and the first is no longer an accurate statement of the law. Potier focused on whether

the rule itself was arbitrary, rather than whether the court’s application of the rule was arbitrary. 68 S.W.3d at 666

(rejecting constitutional claim because the trial court’s action barring non-hearsay was merely the

“misinterpretation” of a non-arbitrary rule). Holmes, decided after both Potier and Ray, rejected this type of

analysis. See Holmes, 126 S. Ct. at 1735 (“Interpreted in this way, the rule applied by the State Supreme Court [but

which was otherwise permissible] does not rationally serve the end that the . . . rule and its analogues in other

jurisdictions were designed to promote . . . .”) (emphasis added). Clearly, the arbitrary application of an otherwise

permissible rule to preclude defense evidence is just as detrimental to a defendant’s rights and to the trial’s truth-

seeking process as an inherently arbitrary rule.

41

perpetrator” theory. 68

The one-sided presentation of evidence resulting from the court’s rulings was the

picture of an unfair trial. Although appellate counsel contends that the Reid evidence

demonstrates that Max Soffar is not guilty, that is not the issue for this Court to decide.

Instead of opining on “whether it believe[s] the defendant’s defense was credible,” this

Court should consider whether “‘a jury could . . . properly convict [Soffar] absent the

opportunity to hear the proffered testimony bearing upon the theory of defense and weigh

its credibility along with the other evidence in the case.’” Miller, 36 S.W.3d at 506

(quoting United States v. McClure, 546 F.2d 670, 673 (5 Cir. 1977) (emphasis added)). th

Clearly, the answer is no.

The Deprivation of Appellant’s Right to Present a Defense Was Not Harmless.

The trial court’s error in precluding the introduction of Paul Reid’s admission

violated Soffar’s constitutional rights and was not harmless beyond a reasonable doubt.

Under the test for constitutional error, this Court must reverse Soffar’s conviction “unless

[it] determines beyond a reasonable doubt that the error did not contribute to the

In Arizona v. Fulminante, 499 U.S. 279 (1991), the Supreme Court made clear that the burden of proving harmless69

error falls on the prosecution. Id. at 297 (holding that “the State has failed to meet its burden of establishing, beyond

a reasonable doubt, that the [constitutional error] was harmless”).

42

conviction or punishment.” TEX. R. APP. P. 44.2 (a). See also Chapman v. California,

386 U.S. 18, 24 (1967) (same). Further, even if this court finds only non-constitutional69

error, the error was not harmless. For non-constitutional error, the question is whether

the error affected substantial rights . . . . No party should have a burden to prove harmfrom an error, and there ordinarily is no way to prove “actual harm.” . . . In general, welook to the severity of the error . . . , to measures taken to cure the error, and to thecertainty of conviction without the error.

State v. Anderson, 182 S.W.3d 914, 918-19 (Tex. Crim. App. 2006) (emphasis added). As

demonstrated below, here, no measures were taken to cure the error, it was severe, and the

state cannot now show any certainty of conviction absent the error in excluding Reid’s

admission – particularly when combined with Reid’s strong resemblance to the perpetrator

and his presence in Houston on the night of the robbery murders.

The trial court’s preclusion of Reid’s admission to the Fairlanes robbery-murder

was not harmless under any standard. Constitutional error can be “harmless if [the

admissible] evidence of the defendant’s guilt is overwhelming.” Anderson v. State, 717

S.W.2d 622, 628 (Tex. Crim. App. 1986). The prosecution’s case against Soffar was far

from overwhelming. On the contrary, it was extraordinarily weak. As the Fifth Circuit

stated after reviewing virtually identical evidence from Soffar’s first trial:

No eyewitness testimony placed either Soffar or Bloomfield at the crime scene. Nofingerprints lifted from the crime scene matched the fingerprints of either Soffar orBloomfield. Nothing was taken from the crime scene and later found in the possessionof either Soffar or Bloomfield. No blood or hair samples were found at the crime

See (30 RR 161).70

See (32 RR 63, 79, 100-01).71

See (30 RR 161). 72

See (32 RR 89-90, 134-35).73

See (30 RR 161). 74

See (32 RR 71-75, 79-80, 83, 10-06, 137-38, 144-46; 26 RR 184; 27 RR 90-91, 101; 43 RR State’s Exhibit 39).75

See (30 RR 162-63).76

See (26 RR 177-79).77

43

scene that matched those of Soffar or Bloomfield. The gun used to commit this crimewas neither found nor introduced into evidence. Neither Soffar nor Bloomfield werelinked to a weapon of the same caliber as the bullets recovered from the crime scene. Nothing Soffar told the police in his statements led the police to discover any evidencethey did not already have relating to the bowling alley murders.

Soffar, 368 F.3d at 479. These observations are equally true of the second trial, where the

only evidence against Soffar were his own highly questionable statements.

Soffar’s statements themselves were implausible in light of the crime-scene

evidence, the forensic evidence, the ballistics evidence, and the statements that the only

surviving witness, Garner, provided to the police shortly after the shootings. As

demonstrated more fully in the Statement of Facts, all of this evidence, as summarized in

the following chart, conflicted with Soffar’s putative confession.

Varying Fact Putative Soffar Confession The credible evidence, includingGarner’s statements

Number ofperpetrator(s)?

2 170 71

Use ofDisguises?

T-shirt and ladies stockings used tohide perpetrators’ faces. 72

Lone perpetrator wore nodisguise.73

Howperpetrator(s)entered?

Perpetrators walked through open doorwith gun.74

Manager opened locked door tohelp lone perpetrator feigning cartrouble using a white jug/pitcher. 75

Location ofCash Taken?

Snack bar and underneath counter. Neither from snack bar nor under76

counter; only from control boothcash register.77

See (30 RR 162). 78

See (32 RR 69, 84, 86, 110-11, 130).79

See (28 RR 18-21; 27 RR 234).80

See (30 RR 162). 81

See (28 RR 90; 33 RR 65-66, 127-28; 32 RR 69-70, 129). 82

See (30 RR 162).83

See (32 RR 69, 84-85, 107-08, 111-12, 126-28).84

See (30 RR 161).85

See (33 RR 86-89; 109-10; 31 RR 155-56). 86

False confessions are amongst the leading causes of wrongful convictions. See http://www.innocenceproject.org/87

understand/False-Confessions.php (Last visited April 19, 2007) (noting that 25% of DNA exonerations involve

convictions based upon false confessions). Empirical evidence suggests that persons, like Soffar, who are

impulsive, have low intelligence, have low self esteem, are prone to fantasy and disassociation, and/or are addicted

to drugs, (6 RR 33-37; 4 RR 80-81, 88-89), are the most likely candidates for false confessions. GISLI GUDJONSSON ,

The Psychology of Interrogations and Confessions: A Handbook, 381, 388, 390, 396, 418-30 (2003).

44

Victim kicked? Young woman kicked in head. No one kicked. No one injured78 79

apart from bullet wounds.80

Number ofshots fired?

5 481 82

When moneytaken?

After shooting victims Before shooting victims83 84

Configurationof victims onfloor whenshot?

Straight line from the front doors infollowing order: male, female, male,male.85

Victims in semi-circle in followingorder from front door: female,male, male, male.86

The unreliability of the Soffar statements was predictable. Knowing Soffar from

his time as an informant, Sgt. Clawson believed that he was “just not trustworthy,” and his

assertions could never be relied upon to obtain a warrant. (29 RR 103-05; 129, 134).

Soffar’s brains were “fried” from drug use. (29 RR 134). He was like a ten- or eleven-

year-old child. Id. Soffar did not appear to understand that this was a serious case, a

capital case. (29 RR 163). Soffar asked Sgt. Clawson about possible reward money early

on during the interrogation, (29 RR 186), consistent with Soffar’s perpetual search for the

“big score” in his life. (29 RR 131). 87

Similarly, Det. Williamson drew most of the parts of the diagram he used in his interrogation with Soffar. (31 RR88

61-62, 128-29, 131).

45

Other evidence confirmed that Soffar was the type of person who would falsely

confess. Soffar falsely claimed responsibility for a well-publicized burglary the night

before the robbery murders, which the media had reported was possibly connected to the

Fairlanes robbery murders. (30 RR 25, 189; 26 RR 183; 43 RR Defense Exhibit 59). By

the time Soffar had made this claim, other suspects had already been arrested and charged

with the burglary. Id. Similarly, the police learned that Soffar’s confessions to other area

robberies, in which he again inculpated Bloomfield as an accomplice, were also false. (31

RR 26-28). During the police interrogation regarding the Fairlanes crime, Sgt. Clawson

observed Det. Schultz interviewing Soffar and noted that Soffar was unable to say

anything about the building, the roadway, or the “turn around” near the bowling alley. (29

RR 150-51). In a diagram Det. Schultz worked on with Soffar, Schultz had to draw in

much of the crime scene, including the counter inside the bowling alley. (29 RR 151). 88

Det. Schultz’s interrogation made Sgt. Clawson concerned whether the police were

obtaining accurate information. (29 RR 166). After the Schultz interrogation, in which

Soffar inculpated Bloomfield and not himself, no other interrogations were recorded,

raising the question whether unreliable interrogation tactics continued. (30 RR 176-78).

Against the backdrop of a prosecution case lacking “clear objective evidence of

Soffar’s guilt,” 368 F.3d at 478-79, any additional relevant evidence the defense could

offer was likely to tip the scales enough to create a reasonable doubt. Chapman, 386 U.S.

See Wilson v. Firkus, 457 F. Supp. 2d 865, 891 (N.D. Ill. 2006) (finding unconstitutional preclusion of third89

party’s similar modus operandi in other crimes and resemblance to description of assailant not harmless where

habeas “[p]etitioner’s confession did not match the victim’s testimony in a very key aspect . . .” and where

admission of the evidence “would have lent credibility to Petitioner’s contentions that someone else committed the

crime and may very well have tipped the scale in his favor”).

46

at 25-26 (observing that an error is less likely to be harmless if the case is a close one).

And a confession by a third party to the crime is particularly powerful evidence in favor of

the accused. See House v. Bell, __ U.S. __, 126 S. Ct. 2064, 2084 (2006) (finding

sufficient showing of “actual innocence” based in part on evidence of a third party

confession). A third party’s resemblance to the possible perpetrator and other evidence of

his guilt combine even more powerfully as a defense.89

Here, when combined with evidence that: 1) Reid’s July 1980 photograph was a

virtual match with the composite prepared by Garner, compare (43 RR Defense Exhibit

38) with (45 RR Joint Exhibit 6), as set forth, supra, at 35, 2) Reid was in Houston at the

time of the Fairlanes robbery murders, and 3) Reid’s wife could not account for his

whereabouts on the night of the crime, Reid’s admission to killing four people in a

bowling on Route 290 might well have created a reasonable doubt, leading to acquittal.

Without this error permeating the trial, conviction would have been far from certain –

indeed it would have been unlikely. Anderson, 182 S.W.3d at 918-19. This Court simply

cannot conclude that preclusion of this evidence did not make any difference, beyond a

reasonable doubt or otherwise. Chapman, 386 U.S. at 24.

Moreover, by successfully moving to exclude the Reid evidence, the prosecution

was able to argue to the jury that the defense “didn’t bring you any evidence that someone

This harmless error analysis presented above assumes that the trial court’s ruling precluding evidence of Reid’s90

modus operandi in the highly similar Tennessee crimes was correct. If, as Appellant argues in Appellant’s Third

Point of Error, infra, those rulings were wrong, the cumulative harm of precluding all of the Reid evidence further

supports the conclusion that the court’s error was not harmless. See Appellant’s Twenty-first Point of Error, infra.

47

other than the Defendant committed this crime.” (35 RR 9). This argument alone shows

that the exclusion of the Reid evidence was not harmless by either standard because the

prosecution would not have made it were it not for the reasonable possibility that lack of

alternative perpetrator evidence would affect the outcome. See Fulminante, 499 U.S. at

297-98 (citing prosecution’s argument in summation as evidence that error was not

harmless); Chapman, 386 U.S. at 25 (similar).

The court’s ruling, the lack of any measures to cure the error, Anderson, 182

S.W.3d at 919, and the prosecution’s argument, all combined to leave the jury with the

following picture: that there was no credible evidence that the offense was committed by

an alternative perpetrator. This picture was false. Kept from the jury was evidence that

Reid – not Max Soffar – committed the crime. It is impossible to eliminate the reasonable

possibility that this constitutional and evidentiary error substantially contributed to the

verdict. This Court must reverse. 90

Appellant’s Second Point of Error

(a) The trial court violated Appellant’s constitutional right to present a defense byrefusing to grant immunity to a witness who would have testified that Paul Reid toldhim during a crime that Reid had shot four people in a bowling alley on Route 290.(b) The trial court violated Appellant’s constitutional right to present a defense byfailing to compel Cook to testify because his invocation of the right against selfincrimination was improper.

Assuming arguendo that this Court rejects Appellant’s First Point of Error, this

Although Norman’s rationale might have been that the invocation of the right against self incrimination in that91

case was ill founded, 588 S.W.2d at 344, by its own terms, Norman spoke of granting immunity to uphold a

defendant’s right to present a defense, as did the Miller opinion when it cited Norman in 2001. Miller, 36 S.W.3d at

506 n.4.

Standard of Review: The trial court’s refusal to grant immunity or to rule that Cook’s invocation of his right92

against self incrimination was improper implicated Appellant’s Constitutional right to present a defense. Review of

this question of constitutional law is de novo. See Lilly v. Virginia, 527 U.S. 116, 137 (1999); Guzman, 955 S.W.2d

48

Court should find that the trial court erroneously failed to uphold Soffar’s right to present

a defense by refusing to require Stewart Cook to testify. The court had two legal means to

obtain such testimony. First, the court could have ordered “use immunity” for Cook.

Smith v. State, 70 S.W.3d 848, 860 (Tex. Crim. App. 2002) (defining “use immunity”).

Second, even if the court determined that Cook’s statement was not against interest and

immunity was not warranted, it should have ruled that Cook’s invocation of the right

against self incrimination was improper. The court’s failure to utilize either option was

prejudicial error. Reversal is required.

(a) The trial court violated Appellant’s constitutional right to present a defense byrefusing to grant immunity to a witness who would have testified that Reid statedduring a Houston armed robbery that he had shot four people in a bowling alley onRoute 290.

A trial court must grant immunity without the prosecution’s consent if it is

necessary to uphold a defendant’s right to compulsory process. See U.S. Const. amends.

VI; XIV; Norman v. State, 588 S.W.2d 340, 345 (Tex. Crim. App. 1979) (finding error in

refusal to grant “immunity for [the] informant” and a “denial of appellant’s Sixth

Amendment right to compulsory process and [to] present[] a defense”); Miller v. State,91

36 S.W.3d 503, 506 n.4 (2001) (citing Norman). This case falls within the narrow class of

cases where ordering immunity was required to uphold the right to present a defense.92

at 87. De novo review is also appropriate because “the resolution of [this] question of law [did] not turn on an

evaluation of the credibility and demeanor of a witness.” Moff, 154 S.W.3d at 601.

By contrast, “transactional immunity” is immunity from prosecution for any crime related to the compelled93

testimony. Id. TEXAS CODE OF CRIM INAL PROCEDURE Article 32.02, addresses, if anything, transactional immunity.

Article 32.02 states that “the State may, by permission of the court, dismiss a criminal action . . .” “Transactional

immunity” refers to the State refraining from bringing charges, rather than dropping them. Apparently, however,

courts cite the statute in refusing to grant immunity because providing transactional immunity would sometimes

require dismissing a criminal action already commenced. See, e.g., Smith v. State, 708 S.W.2d 518, 520 (Tex. Crim.

App. – Houston 1986, pet ref’d) (citing Art. 32.02). “Use immunity,” however, is clearly not implicated by TEXAS

CODE OF CRIM INAL PROCEDURE ARTICLE 32.02, and neither requires the dismissal of a criminal action nor even

requires a prosecutor to refrain from prosecution. No other provision of the Code of Criminal Procedure addresses

immunity.

49

Defense counsel’s request was for “use immunity,” not transactional immunity. (13

CR 3793, 3796-3797, 3799, 3802). “Use immunity” is immunity from the State’s use of

self-incriminating statements (and their fruits) made during a witness’s compelled

testimony. Smith, 70 S.W.3d at 860. In Autry v. Estelle, 706 F.2d 1394, 1401 (5th Cir.93

1983), the Fifth Circuit stated that a constitutional right to immunized testimony would

exist to remedy prosecutorial “abuse of the immunity process.” The Autry ruling requires

a showing that “the state had no legitimate purpose for refusing immunity and did so to

deprive the defense of essential exculpatory testimony.” Id. at 1402.

Appellant easily meets the Autry test. At trial, the prosecution acknowledged that

the State knew about the attempted capital murder/attempted robbery about which Cook

would testify (during which Reid made his admission) when Reid and Cook pleaded guilty

to a robbery in 1982. (30 RR 84). Moreover, the prosecution received Cook’s affidavit in

2000. (5 RR 227; 30 RR 80-81). By never prosecuting him during the twenty-four years

since he committed the crime, the State proved it had no legitimate purpose for refusing

Cook immunity.

50

When asked its position, the prosecution offered no legitimate reason for

withholding immunity. (24 RR 4-5). Instead, it merely argued that the court could not

grant immunity over its objection. Id. The State wholly lacked a legitimate justification

for withholding immunity. It claimed no prosecutorial interest in a crime it had known

about for twenty-four years because it had none. The State then capitalized on the Court’s

refusal to grant immunity by arguing to the jury that the defense failed to prove that

someone else was responsible for the Fairlanes robbery murders. (35 RR 9). The

inescapable inference from its conduct and words is that the prosecution withheld

immunity from Stewart Cook to keep him from relaying to the jury that someone else had

admitted to the crime. See Virgin Islands v. Smith, 615 F.2d 964, 969 (3d Cir. 1980)

(finding deliberate intent to distort fact-finding process because the witness would have

been “severely damaging” and the prosecution gave no justification for not immunizing

the witness). Such an abuse of the immunity process required the trial court to intervene

and uphold Appellant’s constitutional rights. The trial court’s failure to do so was error.

Moreover, even absent abuse of the immunity process, granting immunity is

required when: 1) immunity is properly sought; 2) the witness is available; 3) the witness’s

testimony is exculpatory; 4) the testimony is essential; and 5) the prosecution has no

strong countervailing interest. See United States v. Cohen, 171 F.3d 796, 801-02 (3d Cir.

1999). Cook’s testimony clearly meets this test. Immunity was properly sought for

testimony which could have inculpated him in an attempted capital murder, which has no

statute of limitations. See TEX. CODE CRIM. PROC. Arts. 12.01 §§ 1 (A), 12.03 (a). Cook

Defense counsel’s perseverance underscores the crucial nature of Reid’s admission to the defense case.94

51

was available. (26 RR 91-94). His testimony was certainly exculpatory and essential to

Soffar’s case where Soffar’s attempted defense was that someone else was guilty of the

offense, and where the prosecution specifically argued to the jury that the defense had

failed to bring forth evidence of an alternative perpetrator. (35 RR 9). Finally, the State

has shown absolutely no interest in prosecuting Cook for either the Fairlanes murders (in

which he was not a suspect) or for his 1982 crime with Reid.

Thus, even if the Court finds no abuse of the immunity process, this Court should

hold that the trial court erred in denying Appellant’s request to order immunity for Cook.

(b) The trial court violated Appellant’s constitutional right to present a defense byfailing to compel Cook to testify because his invocation of the right against selfincrimination was improper.

In arguing against immunity, the prosecution suggested that Cook no longer was in

jeopardy of prosecution for his 1982 robbery and attempted murder. (30 RR 84-85).

Defense counsel responded by seeking an order directing Cook to testify and a ruling that

he had no Fifth Amendment privilege. Id. After the trial court refused to grant immunity

and refused to allow admission of Cook’s affidavit as a declaration against interest,

defense counsel again asked the trial court to declare that Cook’s invocation of the right

against incrimination was improper and to compel him to testify. (32 RR 40-44). Defense

counsel cited Max Soffar’s constitutional rights to compulsory process and to present a

defense. (32 RR 44). The court denied Appellant’s motion without ever determining94

whether Cook’s invocation of his Fifth Amendment rights was proper. (30 RR 84-85; 32

52

RR 43-44).

A witness’s ability to rely on the Fifth Amendment privilege against self

incrimination to avoid testifying is not absolute. Hoffman v. United States, 341 U.S. 479,

486 (1951). “The witness is not exonerated from answering merely because he declares

that in so doing he would incriminate himself[;] his say-so does not of itself establish the

hazard of incrimination. It is for the court to say whether his silence is justified . . . and to

require him to answer if it clearly appears to the court that he is mistaken.” Id. (internal

citations and quotation marks omitted) (emphasis added). A trial court’s role in

determining whether the privilege is properly invoked is crucial when the privilege

threatens “‘the right to present a defense.’” Norman, 588 S.W.2d at 345 (quoting

Washington v. Texas, 388 U.S. 14, 19 (1967)). See also Reese v. State, 877 S.W.2d 328,

337 (Tex. Crim. App. 1994) (finding error where trial court sustained witness’s claim

against self-incrimination because it was “too broad and therefore . . . spurious”).

In Norman, this Court criticized the trial court’s failure to determine whether a

witness properly invoked the right against self incrimination. 588 S.W.2d at 344. As in

Norman, the court below erred in accepting Cook’s invocation of his right against

incrimination without the necessary inquiry and without finding that the invocation was

proper. Cook’s invocation of his Fifth Amendment rights did not “itself establish the

hazard of incrimination.” Hoffman, 341 U.S. at 486. It was for the trial court to say

whether his “silence [was] justified.” Id. And it could not do so without conducting “a

searching inquiry into the validity and extent of [Cook’s] Fifth Amendment claims.”

53

United States v. Waddell, 507 F.2d 1226, 1228 (5th Cir. 1975). However, the trial court

here made no inquiry. When Cook testified that he “believe[d] that any testimony might

incriminate [him] regarding possible acts that were committed back in 1982, 83,” (26 RR

92), the court asked him nothing about this belief or anything else. (26 RR 91-94).

Moreover, the court failed to ask the prosecution, which had authority both over

Soffar and Cook’s Harris County cases, whether Cook had a legitimate basis for fearing

prosecution for a 24 year-old crime. The prosecutors were duplicitous about Cook’s

exposure. When the issue was whether Cook’s statement was against his penal interests,

the prosecution implied that Cook would not be prosecuted because the “State was aware

of those aggravated robberies” when Cook pleaded guilty to them. (30 RR 84). When the

issue was the propriety of Cook’s invocation of his Fifth Amendment rights, however, the

prosecution argued that “based upon the advice of counsel . . . [Cook has] invoked [the]

Fifth Amendment privilege [and] does have liabilities in that situation.” (30 RR 85). The

trial court should have directly asked the State for its position on Cook’s exposure and

required a straight answer. By not doing so, the court enabled the prosecution to take

contradictory positions. It could successfully oppose both Appellant’s motion to introduce

Cook’s statement as a declaration against interest and his alternative motion for a ruling

that Cook’s invocation of his right against self incrimination was improper. This type of

gamesmanship must not be countenanced.

The court’s failure to rule on the validity of Cook’s invocation of his Fifth

Amendment rights and failure to conduct a searching inquiry by asking Cook and the State

54

about Cook’s perceived criminal exposure for the 1982 crime violated Max Soffar’s

constitutional right to present a defense and to compulsory process.

For the reasons stated in Appellant’s First Point of Error, the court’s constitutional

error was not harmless beyond a reasonable doubt. This Court must reverse.

Appellant’s Third Point of Error

The trial court denied Max Soffar his constitutional right to present a defense byprecluding evidence of Paul Reid’s distinctive modus operandi in his brutal Texas andTennessee crimes, which marked him as the perpetrator of the remarkably similarFairlanes robbery-murders.

Paul Reid is on death row for killing seven people in Tennessee in three different

robbery-murders at business establishments. Reid’s modus operandi in those cases was

remarkably similar to the Fairlanes robbery-murders, which were committed: 1) in a

nearly identical way, 2) on a night when Reid was living in Houston and his wife could not

account for his whereabouts, (30 RR 78) and 3) by a perpetrator strongly meeting Reid’s

description. Compare (43 RR Defense Exhibit 38) with (45 RR Joint Exhibit 6). The trial

court violated Max Soffar’s constitutional right to present a defense by precluding this

compelling evidence. Holmes, 126 S. Ct. at 1731. Without this evidence, Max Soffar did

not have a fair trial and the jury lacked the information it needed to determine where the

truth lies. Washington, 388 U.S. at 19.

Factual Background. The Fairlanes robbery murders occurred on a Sunday. (26

RR 42). By feigning car trouble, a single perpetrator entered the bowling alley after it had

been closed. (32 RR 66, 71-74, 75, 79-80, 83, 101, 103-04, 136-38, 144). The perpetrator

Reid’s method with Cook in their thirty to forty robberies was similar. (5 CR 1483). The two men would target95

businesses on the weekends, believing that more cash would be available. Id. They often entered businesses under

some pretext and near closing time, and the businesses’ employees were often forced to get on the floor before they

fled. Id. See, e.g., (8 CR 2304) (describing Reid’s admission to law enforcement to such a crime).

55

wore no mask or disguise. (32 RR 89-91, 131-34). He made each of his victims lie face

down and shot them in the head only after completing his robbery. (32 RR 69-70, 80, 84-

85, 106-07, 112, 124, 126-29). The perpetrator discarded their wallets on a nearby

roadway. (27 RR 119). The perpetrator was white, just over six feet tall, (32 RR 83, 131-

32). His hair was light brown, worn combed back, revealing his complete forehead, and

cut just below the ears on the side and at the collar on the back. (32 RR 132-33; 135). He

was stronger and heavier than the surviving victim, Garner, who weighed one hundred and

fifty-five pounds. (32 RR 133).

Paul Reid’s crimes in Tennessee possessed remarkably similar characteristics. As

described by Det. Postiglione, who investigated his crimes there, “Reid displayed a

distinctive modus operandi in his crimes in Tennessee – he would gain entry to an

establish[ment] at a time when the establishment was closed but employees were still

present, by causing employees to let him in. [] Reid would steal cash and coins, often

having an employee access the register or safe. [] Reid would then kill or attempt to kill all

employees present at the time of the robbery, with a preference for forcing the employees

to lie on the floor, face down, and then shooting them execution style, with a gun shot to

the head.” (9 CR 2553, 2561 (affidavit of Det. Patrick Postiglione)). See also Appendix95

A (chart summarizing similarities amongst Reid’s robbery murders).

Reid I, 91 S.W.3d at 261 (witness found doors locked when he appeared for work at Captain D’s before bodies96

discovered); Reid II, 164 S.W.3d at 297 (witness arrived to find door unlocked after business closed and employees

missing); Reid III, 213 S.W.3d at 805.

Reid I, 91 S.W.3d at 263 (eyewitness saw Reid standing outside Captain D’s talking to one of the victims with a97

white paper in his hand at 8:50 a.m.); Reid III, 213 S.W.3d at 805. Reid II, 164 S.W.3d at 298 (eyewitness account showed Reid committed robbery of Basking-Robbins store after

98

it closed at 10:00 p.m.); Reid III, 213 S.W.3d at 805-06 (Reid robbed the McDonald’s in Tennessee after the late

night shift on a Saturday). See also Reid II, 164 S.W.3d at 300 (Reid suggested to coworker robbing fast food

establishment in the middle of the night, when there were no witnesses); Reid III, 213 S.W.3d at 806 (same).

Reid I, 91 S.W.3d at 261-62 (Captain D’s robbery in Tennessee occurred before opening time on a Sunday, the99

morning after Reid had attempted to enter at night under the guise of applying for a job).

Reid I, 91 S.W.3d at 263 (observing that Reid was seen outside without a mask on); Reid II, 164 S.W.3d at 298100

(stating that Reid was observed in the store without a mask on prior to the robbery’s occurring); Reid III, 213 S.W.3d

at 805; (5 CR 1484).

56

None of the three Tennessee businesses Reid robbed were open to the public or

showed signs of forced entry. Thus, as at Fairlanes, Reid devised a way to either force or96

deceive his way into these businesses. Like the Fairlanes, two of the Tennessee97

businesses, Baskin-Robbins and McDonald’s, were robbed after closing time at night. 98

Reid also had initially attempted to rob the other one, Captain D’s, at night, but this plan

failed, and he had to return and rob that business the next morning, before it had opened

for business. Like the Fairlanes, the Captain D’s and McDonald’s were robbed on99

weekends, which was also consistent with Reid’s methodology when he was committing

robberies in Houston in the late 1970’s and early 1980’s. (5 CR 1483).

Reid never wore a mask or shielded his face during his robbery-murders. He was100

described in his Tennessee crimes much the same as the Fairlanes perpetrator was

described: a large white male, with slicked or pushed back hair, long in the back. Reid I,

91 S.W.3d at 262-63; Reid III, 213 S.W.3d at 805. Reid would use a gun to force people

Reid I, 91 S.W.3d at 261 (stating that both victims were found shot dead and lying face down on the floor in the101

walk-in cooler); Reid III, 213 S.W.3d at 805 (observing that the four victims were ordered at gunpoint to lie

face-down on the floor before they were shot). See also (5 CR 1483-84 (Cook affidavit reporting that this was Reid’s

tactic in Houston, although they did not typically shoot)).

Subsequently, the court reversed itself, not on the merits of the question, but based solely on the danger that102

admission of this evidence would be found to be unduly prejudicial on appeal. (8 CR 2276-77).

57

to lie in a group, either in a walk-in freezer or on the floor. As at the Fairlanes, the101

victims were “probably” shot with a revolver. Reid I, 91 S.W.3d at 261, 264. At the

Tennessee trial relating to the shooting of the McDonald’s employees, testimony

established that Reid owned a small caliber handgun. Reid III, 213 S.W.3d at 806. As at

the Fairlanes, the robbery witnesses were shot in the head execution style. Reid I, 91

S.W.3d at 261; Reid III, 213 S.W.3d at 805.

Reid’s “signature” on the Captain D’s and McDonald’s robbery/murders was so

strong that the Tennessee trial judge trying the Captain D’s case ruled that the testimony of

an eyewitness of the as yet untried McDonald’s robbery/murder could be introduced in the

Captain D’s trial on the issue of identity. (8 CR 2349-57). In support of this ruling, the

Tennessee court cited the testimony of Det. Postiglione, (8 CR 2354), and emphasized the

similarities: the description of the suspect (“[o]ne large male, white, dark hair”); both

robberies “occurred on Sunday”; both businesses were closed as well as locked at the time

of the robberies; “[n]o forced entry was used at either locations”; and all six victims were

“required to lay on stomach” and were shot in the head. Id. The Tennessee court found

that the McDonald’s evidence was “highly probative on the issue of identity in the Captain

D’s trial.” (8 CR 2355). 102

At the sentencing phase of Reid’s trial on the McDonald’s crime, the jury heard

Tennessee would undoubtedly disagree with the Soffar prosecution’s arguments that not even the Tennessee103

crimes were similar. (9 CR 2548). See also State v. Reid, 2005 WL 1315689, *49 (Tenn. Crim. App. Nashville

2005) (“The State cited to fourteen similarities between the Captain D’s crimes and the McDonald’s crimes to

establish that the crimes were committed in a similar fashion in a common scheme or plan. The trial court did not err

in permitting Det. Postiglione to testify as to the similarities in the crimes to establish the . . . aggravating

circumstance.”), aff’d, 213 S.W.3d 792 (2006).

58

about Reid’s 1984 Texas robbery conviction from a Texas Assistant Attorney General.

Reid III, 213 S.W.3d at 806. In addition,

Detective Postiglione pointed out the similarities between the crimes in this case andthose that the defendant had committed earlier at a nearby Captain D’s restaurant.According to the officer, the two separate criminal episodes took place at fast foodrestaurants. Both occurred on a Sunday while the restaurants were closed. In eachinstance, the restaurants had been locked following the crimes. In addition, there wasno sign of forced entry at either restaurant. The defendant had used a small caliberweapon and in each incident, the victims were forced to lie face down in an isolatedarea of the restaurant before they were murdered. Each of the murder victims sufferedtwo gunshot wounds to the head. Detective Postiglione testified that the modusoperandi in each case was unlike any other that had been used in Davidson County inat least fifteen years.

Id. at 806-07. 103

Soffar’s counsel sought to introduce evidence of Reid’s modus operandi to show

that Reid committed the Fairlanes crime. Emphasizing Soffar’s constitutional right to

present a defense, (5 RR 233-34; 9 RR 20-23), counsel provided the information about

Reid set forth above in written motions, accompanied by extensive documentation in

supporting exhibits. (5 CR 1442- 6 CR 1672; 8 CR 2227-2366). To serve judicial

economy, the defense proposed to introduce the voluminous information about Reid’s

criminal history in Tennessee and Texas through two “summary” witnesses, see TEX. R.

EVID. 1006, one for each state. (5 RR 230-34). As an example, defense counsel presented

an affidavit from Det. Postiglione. (10 RR 3; 9 CR 2553-61). Defense counsel also

See also Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996) (allowing the state to introduce 404 (b)104

evidence of murder in a different state to establish identity); JUDGE CATHY COCHRAN, TEXAS RULES OF EVIDENCE

HANDBOOK 238 (6th ed. 2005).

59

proposed a crime-scene expert who could testify about the similarities between the

Tennessee crimes and the Houston crime. (10 RR 3). The court’s ruling precluding the

admission of such evidence appeared to be based on hearsay, rather than any question

about whether Reid’s crimes in Tennessee were sufficiently similar. (5 RR 234; 6 CR

1671-72; 9 RR 20 (noting that its concern was about hearsay, “not how similar [the

crimes] are”). Thereafter, defense counsel offered two alternatives solutions, some six

weeks before the trial commenced. (10 RR 11). First, counsel proposed bringing in

witnesses with direct knowledge of the crimes in Tennessee. Id. Second, counsel

proposed that the court could take judicial notice of the facts found by the Tennessee

courts on appellate review and allow an expert to testify about such facts. Id. The court,

however, announced that it would not reconsider its ruling. Id. As a result, the jury

convicted Max Soffar of capital murder without ever hearing evidence that a Houston man

who fit the description of the perpetrator had committed crimes strikingly similar to the

Fairlanes robbery murders.

Argument. Under TEXAS RULE OF EVIDENCE 404 (b), a party may introduce

evidence of a person’s “other crimes” to establish the identity of the actual perpetrator of a

crime where, as here, that issue is in dispute. See, e.g., Johnson v. Texas, 68 S.W.3d 644,

650-52 (Tex. Crim. App. 2002) (upholding the use of Rule 404 evidence to prove identity

during crime spree). The “extraneous offense must be so similar to the charged offense104

Here, where the events in question are very highly unusual, and the similarities to Reid’s crimes are105

overwhelming, the repetition of events also makes it likelier that Reid committed the Fairlanes murder than that the

similarities were caused by chance. See Fox v. State, 115 S.W.3d 550, 559-62 (Tex. App. – Houston 2002, pet.

ref’d) (noting that Texas courts accept the defendant’s use of the chances doctrine).

TEXAS RULE OF EVIDENCE 404 is derived from and shares many characteristics with FEDERAL RULE OF106

EVIDENCE 404. See COCHRAN, at 236-37.

See also United States v. Stevens, 935 F.2d 1380, 1404-05 (3d Cir. 1991) (allowing “reverse 404(b)” evidence to107

negate proof of identity and collecting cases); United States v. Cohen, 888 F.2d 770, 777 (11th Cir. 1989) (“When

the defendant offers similar acts evidence of a witness to prove a fact pertinent to the defense, the normal risk of

prejudice is absent”); United States v. McClure, 546 F.2d 670, 673 (5th Cir. 1970) (lower standard of admissibility

applies to defendant’s proffered other crimes evidence due to defendant’s “right to present a vigorous defense”);

Wilson v. Firkus, 457 F. Supp. 2d 865, 891 (N.D. Ill. 2006) (granting habeas relief where state court precluded third-

party guilt defense based on third party’s other similar crimes); United States v. Stamper, 766 F. Supp. 1396, 1406

(W.D. N.C. 1991) (noting lower standard); State v. Garfole, 388 A.2d 587, 591 (N.J. 1978) (similar).

Standard of review: De novo review is required because “the resolution of [this] question of law [did] not turn108

on an evaluation of the credibility and demeanor of a witness.” Moff, 154 S.W.3d at 601. In addition, the trial

60

as to mark the offenses as the” person’s “handiwork.” Id. at 650-51.

The rule is often applied to allow admission of other crimes evidence against a

defendant to prove identity. See, e.g., id.; Lane, 933 S.W2d at 519. As courts have105

noted, however, Rule 404 “should cut both ways and benefit an accused in appropriate

circumstances just as it does the State.” Renfro v. State, 822 S.W.2d 757, 759 (Tex. App.

– Houston 1992, pet. ref’d). Indeed, because “risks of unfair prejudice do not appear”

when it is the defense seeking to introduce the evidence, the burden of admissibility for

“other crimes” evidence is lower for defendants. 1 CHRISTOPHER B. MUELLER & LAIRD C.

KIRKPATRICK, FEDERAL EVIDENCE § 115, at 685, 684-87 (West 2005). See also106

COCHRAN at 264. This lowered burden unquestionably applies to cases, like this one,

where a third party suspect has “committed one or more additional offenses that are

strikingly similar to the charged offense[.]” MUELLER ET AL., § 115 at 685. 107

Under any burden of admissibility, Reid’s crimes in Tennessee mark him as the true

perpetrator of the Fairlanes robbery murders. His Tennessee and earlier Houston crimes108

court’s preclusion of the Reid evidence implicated appellant’s constitutional right to present a defense. Review of

this question of constitutional law is de novo. See Lilly, 527 U.S. at 137; Guzman, 955 S.W.2d at 87.

See Reid I, 91 S.W.3d at 262 (content of victim’s wallet found on roadside).109

61

were remarkably similar to the Fairlanes murders in: (1) selection of the target, (2) time of

the robbery, (3) method of entry, (4) position of victims on the floor, (5) manner of

execution of the victims, and (6) disposal of the victim’s wallets by the roadside. See109

Appendix A. The trial court appeared to agree, focusing its concerns only on a perceived

(though, as shown below, ultimately non-existent) hearsay problem. (9 RR 20). And the

Tennessee court that tried Reid found that the similarities of the crimes in Tennessee were

“highly probative on the issue of identity.” (8 CR 2355).

In the court below, the prosecution argued to the trial court that Reid’s Tennessee

robbery-murders were not “distinctively” similar to the Fairlanes robbery-murders. (9 CR

2544, 2547). The prosecution’s arguments addressed the weight, not the admissibility of

the Reid evidence. Mere differences between crimes do not defeat admissibility. Instead,

the requirement is “some distinguishing characteristic common to both [the other crime(s)]

and the offense for which the accused is on trial.” Walker v. State, 588 S.W.2d 920,

923-24 (Tex. Crim. App. 1979) (emphasis added) (citations omitted). “[R]emoteness or

dissimilarity do not per se render an extraneous offense irrelevant.” Thomas v. State, 126

S.W.3d 138, 144 (Tex. App. - Houston 2003, pet ref’d).

Therefore, the “extraneous offense and the charged offense can . . . be different

offenses, so long as the similarities between the two offenses are such that the evidence is

relevant.” Id. For example, it is irrelevant that in his Baskin Robbins robbery-murder,

In addition to using a gun, Reid was known to have used knives in connection with his murderous assaults. (8 CR110

2311; 2328; 2358; 2360-61).

As shown elsewhere, the Reid declaration against interest should have been permitted. Appellant’s First and111

Second Points of Error. Although Reid’s description, presence in Houston, and modus operandi were certainly

enough to establish a nexus, his declaration against interest even further strengthens the nexus. The present Point of

Error stands apart from the first two, but Appellant urges the Court to consider the powerful defense case which

could have been presented had both Reid’s declaration against interest and his modus operandi been admitted.

62

Reid departed from his ordinary modus operandi when he took the young counter workers

from the store and stabbed them in a park. Reid II, 164 S.W.3d at 297-98. Other parts110

of this crime remained similar, including the mode of entry, and that the crime took place

at night after the establishment had closed. Id. The differences in the Baskin Robbins

crime certainly did not render Reid’s “signature” illegible.

When combined with Reid’s resemblance to the perpetrator described by Greg

Garner, his crimes in Tennessee and Houston “show a nexus between the crime charged

and the alleged alternative perpetrator.” State v. Wiley, 74 S.W.3d 399, 406 (Tex. Crim.

App. 2002) (internal quotes and citations omitted). A sufficient nexus exists when

evidence shows that the alternative perpetrator exists, resembles the defendant, and his

other crimes were sufficiently similar to be introduced as reverse 404 (b) evidence. Id. at

407 n.20 (citing Stevens, 935 F.2d at 1401-06 (finding error in identification case to

exclude testimony by another victim that a different person resembling the defendant

assaulted her in similar manner in a nearby location)). Here, Reid fit the description of the

assailant, and his modus operandi fit the Fairlanes robbery murders like a glove. 111

The prosecution also argued that the difference in time and proximity between the

Fairlanes robbery murders and Reid’s Tennessee robbery murders rendered Reid’s modus

63

operandi inadmissible. This Court has allowed admission of 404(b) evidence based on

similarities between crimes despite time gaps and differences in location. Lane, 933

S.W.2d at 519 (allowing the state to introduce 404(b) modus operandi evidence from a

decade earlier in Kansas). As this Court has stated, “‘[t]he common distinguishing

characteristic may be the proximity in time and place or the common mode of the

commission of the offenses.’” Johnson, 68 S.W.3d at 651 n.25 (quoting Ransom v. State,

503 S.W.2d 810, 813 (Tex. Crim. App. 1974) (emphasis added in Johnson)). Here, the

“common mode” is certainly present. In any case, the prosecution below greatly

overstated the difference in time and proximity. (9 CR 2548). In fact, the proximity

criterion actually favored admissibility, for all four crimes occurred in the vicinity of

Reid’s whereabouts. As for the difference in time between the 1980 and 1997 crimes,

Reid spent at least eight of the intervening years in prison. (8 CR 2328). Subtracting the

time Reid was in prison and could not commit these types of crimes, as would be

appropriate in analogous contexts, see TEX. R. EVID. 609 (b), results in a shorter period of

time between the crimes occurring a decade apart in Lane. (17 years (period between

crimes) – 8 years (Reid’s time in prison) = 9 years).

Reid’s stamp is unmistakable. He left it in Texas. He left it in Tennessee. The jury

should have known about it before being asked to convict Max Soffar.

Furthermore, the court’s hearsay concerns were groundless. Responding to these

concerns (5 RR 234), defense counsel proposed to present the testimony of witnesses with

direct knowledge of Reid’s crimes. (10 RR 11-13). In other words, the defense proposed

For example, Det. Postiglione testified at Reid’s trial to the similarities amongst Reid’s crimes, including his112

Texas robbery from 1982. Reid III, 2005 WL 1315689, at *12.

64

to employ the method typically used by the prosecution, i.e., live witnesses. See, e.g.,

Rubio v. State, 607 S.W.2d 498, 501 (Tex. Crim. App. 1980). Obviously, testimony from

witnesses with direct knowledge would not implicate the hearsay rule.

Additionally, to the extent that the court wanted to minimize the amount of time the

jury would spend listening to such testimony, defense counsel proposed two viable

options. First, the court could have taken judicial notice of the facts found by the

Tennessee appellate courts. (10 RR 11). See, e.g., Adams v. Adams, 787 S.W.2d 619, 620

(Tex. App. - San Antonio 1990, no pet.) (taking judicial notice of Tennessee Supreme

Court decision). Second, the court could have permitted a summary witness with direct

knowledge of the investigation of Reid’s lengthy criminal history. See TEX. R. EVID.

1006. A summary witness to establish Reid’s signature would have been particularly112

appropriate given that the State has never challenged the reliability of the allegations

against Reid in Texas or Tennessee. See, e.g., (9 CR 2544-51) (arguing that Reid’s crimes

are not “distinctively similar,” not that they did not occur or that accounts of them are

unreliable). In short, the court had three eminently reasonable and appropriate options: it

could have allowed witnesses with direct knowledge of Reid’s criminal acts; it could have

allowed a summary witness; or, it could have taken judicial notice of facts found by the

Tennessee courts. Instead, it precluded this vital defense evidence.

The essential nature of the right to present a defense is explained in Appellant’s

65

First Point of Error. Precluding Reid’s modus operandi evidence for no legitimate reason

denied Max Soffar his right to present a defense. Holmes, 126 S. Ct. at 1731. Without

admitting evidence regarding either Reid’s modus operandi or his confession to Cook,

evidence of his presence in Houston in 1980 and resemblance to the perpetrator were

meaningless. The court’s ruling below was arbitrary because it served no legitimate state

interest or rule. Id. It was highly prejudicial because it deprived Soffar of a powerful

defense. See Ray, 178 S.W.3d at 835. The court’s rulings allowed the prosecutor to argue

to the jury that the defense had not presented evidence that someone else was responsible.

(35 RR 9). The one-sided result was not a fair trial. For the reasons stated in the harmless

error analysis in Appellant’s First Point of Error, the trial court’s constitutional error was

not harmless by any standard.

Appellant’s Fourth Point of Error

The trial court violated Max Soffar’s constitutional right to present a defense andbasic evidentiary rules by precluding evidence showing that the Houston mediabroadcast details of the crime contained in Soffar’s putative confession which theprosecutor claimed only the perpetrator could have known.

The credibility of Soffar’s purported confession was the most important question in

this case. The prosecution argued to the jury that the confession was credible because

Soffar knew details only the perpetrator could have known. (35 RR 11, 21-25). But the

jury never learned that in July and August of 1980 the Houston media widely broadcast

these details. (43 RR Defense Exhibits 58-60). Over defense objections citing

Appellant’s constitutional right to present a defense (30 RR 100-06; 31 RR 114-16; 33 RR

Notably, although knowledge of the type of gun used was disseminated to the public in 1980, the prosecution113

specifically argued that Soffar could not have known a .357 magnum was used if he were not guilty. (35 RR 22-23).

The defense proffered this evidence to explain how Soffar knew various details of the crime. The burglary the114

night before the robbery murders and the reward money were relevant for different reasons. The reward money was

relevant to the defense theory that Soffar began talking about the robbery murders and falsely accusing Bloomfield

in order to get the reward money. (29 RR 186). The coverage about the burglary was relevant to show that Soffar

falsely confessed to crimes he heard about in the media, like both the Fairlanes robbery murders and the Fairlanes

burglary the night before.

66

4-5), the trial court excluded this vital evidence, depriving the jury of the information it

needed to determine the truth. The court’s ruling deprived Appellant of “a meaningful

opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986)

(internal citation omitted). See also Appellant’s First, Second, and Third Points of Error,

incorporated herein. Reversal is required.

Factual Background: Between July 14, 1980, and August 1, 1980, the Houston

television and print media widely publicized details of the robbery murders, including the

following: 1) four people had been shot execution style; 2) one man had survived;

3) one of the victims was a female, who was shot in the cheek; 4) money was taken from a

cash register; 5) the shootings took place at the Fairlanes Windfern bowling center;

6) a .357 magnum was used; 7) reward money was available; and 8) the bowling alley113

was burglarized the night before. See (43 RR Defense Exhibit 58-60 (chart summarizing

media sources and information provided); 43 RR Defense Exhibit 66). The images114

broadcast by the media included the following: 1) the exterior of the bowling alley,

including the Fairlanes Windfern sign and how the building was situated on the parking

lot; 2) the interior of the building; 3) a closeup of Greg Garner’s gunshot wound, showing

its location; and 4) the bodies of the victims inside the bowling alley; (43 RR Defense

Videotapes of the television stories and photocopies of the newspaper stories had been authenticated in the state 115

habeas evidentiary hearing in 1994. (33 RR 4).

67

Exhibits 58, 60). See also (45 RR 3; 43 RR Defense Exhibits 63-71 (articles accompanied

by business record affidavits)).

Soffar’s statements include all the foregoing details. See, e.g., (29 RR 186-87; 30

RR 21-23; 150-52; 160-64; 43 RR State’s Exhibit 1A (p. 26-27)). They do not, however,

include information not publicly broadcast. They reflect only information that anyone

could have known from the extensive media coverage of this case.

Soffar repeatedly told Det. Schultz that he had heard about the Fairlanes robbery

murders in the “paper” and on the “news.” (43 RR State’s Exhibit 1A at 9, 25, 28, 36-37;

30 RR 95-96). Appellant’s sister, Jackie Soffar Butler, testified that Appellant’s family

typically watched Channel 13 eyewitness news on television and that the family

subscribed to the HOUSTON POST. (32 RR 238-40).

The defense theory of the case was that Max Soffar had falsely confessed and that

he had obtained the details of his confession from the media. Thus, the defense sought to

cross examine the interrogating police officers regarding the details of the crime broadcast

to the public (30 RR 100-09), and was prepared to introduce evidence that various media

sources broadcast these details through the testimony of a witness who could summarize

the voluminous information contained in the various media reports. (33 RR 4-5, 7). 115

The defense argued that the evidence was admissible to support the defense position that

the information Max Soffar provided to the police reflected nothing more than information

Standard of Review: De novo review is required because “the resolution of [this] question of law [did] not turn116

on an evaluation of the credibility and demeanor of a witness.” Moff, 154 S.W.3d at 601. In addition, the trial

court’s preclusion of this evidence implicated Appellant’s constitutional right to present a defense, also requiring de

68

broadcast to the general public. Id. See also (31 RR 4-8). Initially, the prosecution had

agreed to this witness, but it later changed its position. (31 RR 4). The trial court

precluded the evidence over defense objections that the court was violating Appellant’s

right to present a defense. (33 RR 5). Although the trial judge did not state the basis for

her ruling, see id., she had earlier suggested that the evidence would be irrelevant without

evidence that Max Soffar had specifically seen the media coverage. (31 RR 6). When the

court precluded the evidence (33 RR 4-5; 43 RR Defense Exhibits 58-60, 63-71), the

defense sought the alternative remedy of admitting only evidence of stories from the

HOUSTON POST and Channel 13 Eyewitness News. (33 RR 5). Defense testimony had

established that Max Soffar and his family regularly watched that newscast and read that

newspaper. (32 RR 238-40). The prosecution did not object to this alternative, (33 RR 4-

5), and had even suggested in an earlier proceeding that the applicable test was whether

Soffar had seen the media stories he sought to introduce. (31 RR 4-5). The court,

however, rejected this alternative remedy. (31 RR 8). In its summation, the prosecution

argued that Appellant’s confession was reliable because it contained details only the

perpetrator could have known. (35 RR 11; 22-23).

Argument: The trial court precluded evidence that was essential to the defense

theory that Appellant’s confession was unreliable. The court’s rulings violated basic state

evidentiary law and the constitutional right to present a defense. Without this evidence,116

novo review. See Lilly, 527 U.S. at 137; Guzman, 955 S.W.2d at 87.

See Crank v. State, 761 S.W.2d 328, 342 n.5 (Tex. Crim. App. 1988), overruled on other grounds, Alford v.117

State, 866 S.W.2d 619, 624 n.8 (Tex. Crim. App. 1993). See also Montgomery v. State, 810 S.W.2d 372, 375 (Tex.

Crim. App. 1990) (citing Crank).

See Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 759 (Tex. 1998) (“[W]hen the occurrence118

of criminal activity is widely publicized, a landlord can be expected to have knowledge of such crimes.”) (emphasis

added). See also In re Beef Indus. Antitrust Litig., 600 F.2d 1148, 1170-71 (5th Cir. 1979) (holding “that the

plaintiffs knew or should have known in 1968 and 1969 of the allegations of the Bray complaint [because it had been

] publicized in numerous issues of numerous trade publications”); Forsythe v. State, 664 S.W.2d 109, 115 (Tex.

App. – Beaumont 1983, pet ref’d) (“An exception to the hearsay rule is applicable when the proffered evidence tends

to show knowledge, intent, or belief of the party, when such evidence is material to the case”).

69

the defense could not point to the contents of media reports as the source of the

information in Soffar’s custodial statements. And due to the trial court’s erroneous

rulings, the prosecution was able to argue to the jury that Soffar’s statement contained

details known only to the perpetrator. (35 RR 11, 22-23). The court’s rulings were

fundamentally unfair and require reversal.

The TEXAS RULES OF EVIDENCE rules mandate the admission of all logically

relevant evidence. Newspaper articles not offered for the truth of the matters asserted117

are relevant and admissible to show public knowledge of those matters, and constitute

admissible non-hearsay evidence. 118

This basic evidentiary principle has been applied to precisely the same factual

circumstances at issue here. See Woods v. State, 696 P.2d 464, 470 (Nev. 1985). In

Woods, the defendant appealed the trial court’s “refusal to admit a set of newspaper

articles . . . to show that all the details provided [his confession] could have been gleaned

from news accounts of the murder.” Id. As here, the state argued in its summation that

the “confession . . . contained information which only the murderer could have known.”

Id. The Nevada Supreme Court reversed. It explained that newspaper articles are

Lord v. Wood, 184 F.3d 1083, 1088 (9th Cir. 1999) ("Trial counsel . . . suggested that [the accused] had come up119

with the details of the alleged confessions by reading newspaper stories about [the] murder"); People v. Dominick,

182 Cal. App. 3d 1174, 1199 n.17 (1986) (affirming where witness’s “testimony was corroborated by the wealth of

details he provided concerning the murders, details that could not have been provided by media accounts”); State v.

McCormick, 778 S.W.2d 48, 52 (Tenn. 1989) (finding defendant’s confession reliable because several “accurate

details were not released to the media, particularly the number of shell casings found, the precise location of the

wounds, the caliber of the weapon, and the check found on the victim”).

70

admissible if they are offered for the “fact of their publication.” Id. It also rejected the

trial court’s rationale “that there was no evidence that [the defendant], who did not testify,

had read any of the news accounts.” Id. The court held that the articles were relevant and

admissible because they showed that the details of the crime were public knowledge,

refuting the prosecution’s argument to the jury that defendant’s confession contained

details known only by the true perpetrator. Id.

Woods is by no means an anomaly. See, e.g., Bethany v. State, 152 S.W.3d 660,

669 (Tex. App. – Texarkana 2004), pet. ref’d) (“In his admissions to Miller and Bunn,

days after the murder, he gave details not released on television news reports.”). Evidence

of the publication of details of a crime, or lack thereof, is often introduced under the theory

that reliable accounts contain details not known to the public. None of these precedents,119

nor any discovered by counsel, requires direct evidence of exposure to a particular

publication before a jury may draw the reasonable inference that a person was on notice of

a widely-published fact. Indeed, under facts identical to the trial below, the Nevada

Supreme Court in Woods completely rejected such a requirement. 696 P.2d at 470.

Whether the evidence showed that Soffar had seen a particular story in the media bears on

the weight the jury should accord the media evidence, not its admissibility.

The numerous precedents reversing convictions due to a violation of the constitutional right to present a defense120

are reviewed in Appellant’s First Point of Error; they are incorporated here but, for efficiency and economy, will not

be repeated.

71

In any event, there was evidence showing Appellant’s exposure to the media

reports he sought to introduce at trial. The prosecution itself provided direct evidence that

Max Soffar had heard about the Fairlanes robbery murders in the “paper” and on the

“news” before his putative confessions. (43 RR State’s Exhibit 1A at 9, 25, 28, 36-37; 30

RR 95-96). This evidence provided a more than adequate basis for the jury to infer that

Soffar had heard about widely-published media reports of the crime. Therefore, the trial

court erred by not allowing evidence of the media reports Soffar sought to introduce.

Furthermore, even if this Court rejects the argument that all of the relevant

published media reports preceding Soffar’s confession were admissible, this Court should

hold that the trial court erred in precluding introduction of those media stories which the

evidence shows that Soffar saw, i.e., the HOUSTON POST and Channel 13 Eyewitness news

stories. (33 RR 4-5). It is beyond dispute that the testimony establishing the Soffar

household’s exposure to these media outlets supports a reasonable inference that Max

Soffar knew about the information.

The trial court’s preclusion of relevant evidence diminishing the reliability of

Soffar’s confession was constitutional error on two bases. First, the ruling violated

Appellant’s constitutional right to present a defense. See U.S. Const. amends. VI; XIV. 120

Showing that the details of Soffar’s putative confession were disseminated by the media

was crucial to his defense that his confession was not reliable and “defendant’s claim of

In Crane, the United States Supreme Court reversed a conviction because the jury was not allowed to consider121

proffered evidence that the defendant was a “young, uneducated boy” whose confession was obtained through

coercive circumstances. Id. As here, “[s]uch evidence was especially relevant . . . [because] [p]etitioner’s entire

defense was that there was no physical evidence to link him to the crime and that, for a variety of reasons, his earlier

admission of guilt was not to be believed.” Id. The “especially relevant” evidence precluded in Crane would have

provided that jury a basis to determine that the defendant’s confession was unreliable; similarly, the wide-spread

publication of the details contained in Soffar’s confession before Soffar ever gave his confession certainly would

have provided the jury a basis to find Soffar’s confession unreliable.

72

innocence.” Crane, 476 U.S. at 690. The trial court’s ruling precluding this evidence121

lacked “any rational justification,” id., because it precluded valuable defense evidence

without serving any legitimate end. Holmes, 126 S. Ct. at 1731. The impact of the ruling

was particularly harsh given that he was prohibited from presenting evidence of third-party

guilt. See Appellant’s First through Third Points of Error. See Ray, 178 S.W.3d at 836 n.1

(noting danger in “precluding altogether the presentation of the defensive theory”). Soffar

could neither argue that someone else was responsible for the crime nor that his confession

merely repeated details he had heard from the media.

Second, when the prosecution at a criminal trial asks the trier to infer facts on which

its case depends, the defendant cannot constitutionally be foreclosed from responding with

evidence and argument that factually throws the inference into doubt. Kelly v. South

Carolina, 534 U.S. 246, 248, 252 (2002); Shafer v. South Carolina, 532 U.S. 36, 51

(2001); Rock v. Arkansas, 483 U.S. 44, 51-55 (1987); Crane, 476 U.S. at 689-91; Skipper,

476 U.S. at 5 n.1. The trial court’s ruling foreclosed Appellant from casting doubt on the

prosecution’s assertion that his putative confession was reliable because it contained

details known only to the true perpetrator. (35 RR 11, 22-23). This ruling was a violation

of Appellant’s rights to due process, compulsory process, and to present a defense. The

The inherent weaknesses in the prosecution’s case are detailed at length in the harmless error section of122

Appellant’s First Point of Error; those weaknesses are incorporated here, and, for reasons of efficiency and economy,

will not be repeated. As the Fifth Circuit emphasized in reviewing the all but identical facts from Soffar’s first trial,

the prosecution’s case was built upon Soffar’s confession. Soffar, 368 F.3d at 479.

73

result was a prosecution case untested by the “‘crucible of meaningful adversarial

testing.’” Crane, 476 U.S. at 690-91 (quoting United States v. Cronic, 466 U.S. 648, 656

(1984)).

Erroneously precluding this crucial defense evidence was not harmless by any standard.

The error was not harmless under either the standard for constitutional error or the

standard for non-constitutional error. The defense’s theory that Soffar had falsely122

confessed had support in the recorded statements he made to the police that he had heard

about the crime on the news. (43 RR State’s Exhibit 1A at 9, 25, 28, 36-37; 30 RR 95-96).

It was also supported by: (1) Soffar’s false claim (which police witnesses conceded was

false) to have committed the burglary at the Fairlanes the night before the murders, (30 RR

25, 189); (2) Sgt. Clawson’s testimony that Soffar, a former paid police informant, (29 RR

105-06), was “just not trustworthy,” (29 RR 129); and (3) evidence that Soffar lacked

specific information about the crime. (29 RR 147-48; 164-66; 31 RR 60-66; 128-29).

Showing the jury that the content of the news stories was the same as the content of

Soffar’s statements would have transformed a plausible defense theory into one

overwhelmingly supported by compelling evidence.

Moreover, absent the court’s error, the prosecution would not have been able to

mislead the jury by arguing that Soffar’s confession was reliable because he was able to

74

give details about the inside of the bowling alley that could only be known by the

perpetrator. (35 RR 11, 22-23).

Given the prosecution’s argument in summation, the thin case on which it

prosecuted Appellant, and the importance of this evidence to the defense case, the

prosecution cannot demonstrate with any certainty that the court’s preclusion of this

crucial defense evidence did not have an impact on the jury’s finding. Anderson, 182

S.W.3d at 918-19. And the prosecution certainly cannot prove that this constitutional error

was harmless beyond a reasonable doubt. This Court must reverse.

Appellant’s Fifth Point of Error

(a) The trial court committed reversible error by denying Max Soffar’s motion toquash the indictment because the grand jury selection process violated equalprotection. (b) The trial court committed reversible error by denying Max Soffar’s motion toquash the indictment because the grand jury selection process violated due processand Appellant’s right to a fair cross section.

A Harris County grand jury selected by the “key man” system – a system long

recognized as “susceptible of abuse,” Castaneda v. Partida, 430 U.S. 482, 497 (1977) –

indicted Max Soffar in 1980. (SCR 4). Appellant sought to quash the indictment on the

ground that the grand jury selection system discriminated against women and Hispanics.

(6 CR 1738-1820). At a pretrial hearing, he introduced unchallenged evidence showing

that Harris County systematically discriminated against women and Hispanics in (1)

summoning individuals for grand jury service; (2) selecting individuals for grand jury

service; and (3) selecting forepersons and alternates. See (7 RR 126-58; 6 CR 1738-1820;

Standard of review and preservation. This Court reviews de novo mixed questions of fact and law, including123

constitutional challenges to the composition of grand juries. See Ovalle v. State, 13 S.W.3d 774 (Tex. Crim. App.

2000) (reviewing de novo grand jury equal protection claim and performing its own statistical analysis); Guzman,

955 S.W.2d at 87. Appellant preserved the claims set forth herein by filing the motion to quash in the court below

and by presenting compelling evidence demonstrating the merits of the claims. See (6 CR 1738-43; 7 RR 126-58).

The remedy mandated by the Supreme Court in Rose – that “the conviction be set aside and the indictment124

returned by the unconstitutionally constituted grand jury be quashed,” 443 U.S. at 551 – does not “depend on any

infringement of the petitioners’ right to fundamental fairness, nor on whether the defendant was prejudiced in fact”

because the “injury is to the jury system, to the law as an institution, to the community at large, and to the processes

of our courts.’” Johnson v. Puckett, 929 F.2d 1067, 1071 (5 Cir. 1991) (citing Rose, 443 U.S. at 556). See alsoth

J.E.B. v. Alabama ex rel. T. B., 511 U.S. 127, 128 (1994); Mosley v. Dretke, 370 F.3d 467, 477 (5 Cir. 2004). th

75

43 RR Defense Exhibits 7, 8, and 9 (Affidavits of Professor Harold J. Hietala and Lucille

A Stiffler, and Curriculum Vitae of Professor Hietala)). In addition, he demonstrated

systematic discrimination against women in selecting jury commissioners. Id.

The trial court denied the motion on the merits. (7 RR 158). This ruling violated

Max Soffar’s, Harris County women’s, and Harris County Hispanics’ equal protection and

due process rights, as well as Max Soffar’s due process and fair cross section rights. See

U.S. Const. amends. V, VI, VIII, XIV; Tex. Const. Art. 1, §§ 3, 3a, 10, 13, 15, 19.123

(a) The trial court committed reversible error by denying Max Soffar’s motion toquash the indictment because the grand jury selection process violated equalprotection.

The trial court’s rulings denying Soffar’s motion to quash violated the equal

protection and due process rights of Appellant, Harris County women, and Harris County

Hispanics. See Rose v. Mitchell, 443 U.S. 545, 554 (1979) (racial discrimination in

selection of grand jury forepersons poses potential for harm and requires reversal of

defendant’s conviction); Castaneda, 430 U.S. at 501. A prima facie case of a violation124

of the equal protection clauses of the federal and state constitutions is met by

demonstrating: “(1) the group is a recognizable, distinct class, singled out for different

76

treatment; (2) the degree of underrepresentation is calculable by comparing the proportion

of the group in the total population to those called to act . . . over ‘a significant period of

time’; [and] (3) the selection procedure is susceptible of abuse.” Mosley v. Dretke, 370

F.3d 467, 475-76 (5th Cir. 2004) (citing Rose, 443 U.S. at 565). As demonstrated below,

Appellant met each of these requirements.

“If the defendant makes such a prima facie showing, the burden shifts to the state to

rebut that showing.” Mosley, 370 F.3d at 476. See also Johnson, 929 F.2d at 1072. In this

case, the State made no attempt to rebut Appellant’s prima facie case, and accordingly

failed to overcome the showing of discrimination.

1. Prima Facie and Unrebutted Evidence of Exclusion of Women. Max

Soffar established that Harris County discriminated against women in the grand jury

selection process during the years 1970 through 1980, and the State offered nothing to

rebut this showing. Accordingly, the trial court committed reversible error by denying the

motion to quash.

(A). Women are a distinct class. Women are a recognizable, distinct class. See

J.E.B. v. Alabama ex rel. T. B., 511 U.S. 127, 128 (1994) (so holding); Duren v. Missouri,

439 U.S. 357, 364 (1979). Max Soffar has standing to assert the claims of women who

suffered this discrimination. See, e.g., Campbell v. Louisiana, 523 U.S. 392 (1998).

(B). Women were under-represented over a significant period of time. Soffar

satisfied the second prong of the Rose test by introducing statistical evidence of the under-

representation of women in the grand juror selection process. He presented the unrebutted

Alston v. Manson, 791 F.2d 255, 257-59 (2d Cir. 1986) (SDT is appropriate technique for analyzing equal125

protection claims and aims “to determine if chance alone could account for a meager representation of minorities”);

Jefferson v. Morgan, 962 F.2d 1185, 1189-90 (6th Cir. 1992) (same). See also Castaneda, 430 U.S. at 496 n.17

(employing SDT in equal protection case); Hietala Affidavit at 8 (43 RR Defense Ex. 8) (SDT calculates “the

probability that the under-representation is the result of random chance”).

Coates v. Johnson & Johnson, 756 F.2d 524, 536 n.11 (7th Cir.1985) (“The ‘standard deviation’ is a number that126

quantifies the degree to which disparities spread out above and below the mean of distribution, thus describing the

probability that chance is responsible for any difference between an expected outcome and the observed outcome in

a sample consisting of two groups (a binomial distribution). The greater the number of standard deviations, the less

likely it is that chance is the cause of any difference between the expected and observed results.”).

See also Waisome v. Port Authority, 948 F.2d 1370, 1376 (2d Cir. 1991) (noting that a finding of two standard127

deviations is statistically significant); Ovalle, 13 S.W.3d at 782-83 (concluding that three standard deviations is the

benchmark for statistical significance and performing its own statistical analysis); Hazelwood School District v.

United States, 433 U.S. 299, 311 n.17 (1977) (“a fluctuation of more than two or three standard deviations would

77

testimony (via admission through stipulation of an affidavit of fact attached to his motion

to quash) of Harold J. Hietala, professor emeritus in the Departments of Anthropology and

Statistical Science at Southern Methodist University. Dr. Hietala presented evidence of

statistically significant under-representation of women in the selection of commissioners,

in the grand jury pool, in the grand jury, and in the selection of forepersons in Harris

County in the period 1970 through 1980. See (43 RR Defense Ex. 8) (Under-

representation of Minority Groups); (6 CR 1738, 1805).

Courts accept Statistical Decision Theory (“SDT”) as a valid statistical technique

for analyzing equal protection claims. SDT determines whether an observed pattern of125

under-representation is “statistically significant,” or unlikely due to chance. One SDT

method is to examine whether the difference between the expected result and the observed

result is greater than two or three standard deviations. See, e.g., Castaneda, 430 U.S. at126

496-97 n.17 (“[I]f the difference between the expected value and the observed number is

greater than two or three standard deviations, then the hypothesis that the jury drawing

was random would be suspect to a social scientist.”). Another common SDT method is127

undercut the hypothesis that decisions were being made randomly with respect to race”) (citation omitted).

Another important statistical methodology courts use to assess equal protection claims is absolute disparity. 128

Absolute disparity measures the difference between the percentage of the protected class in the general population

and the percentage of the protected class selected. (6 CR 1751). An absolute disparity of 10% or more establishes a

prima facie showing of discrimination. See, e.g., Jones v. Georgia, 389 U.S. 24, 25 n* (1967) (14.7%); Rideau v.

Whitley, 237 F.3d 472, 486 (5 Cir. 2000) (noting Supreme Court decisions using 18% and 14.7%); United States v.th

Tuttle, 729 F.2d 1325, 1327 (11 Cir. 1984) (noting that 10% is the minimum necessary showing in 11 Circuit).th th

As explained further in the chart’s first row, the calculations of standard deviations and number of deviations129

between the expected and the observed are based on the data in the record and this Court’s formulae in Ovalle, 13

S.W.3d at 781-83, nn. 22-30, also used by the Supreme Court in Castenada, 430 U.S. at 496 n.17.

78

to calculate the probability value (the P value). “A (P) value below .05 is generally

considered to be statistically significant, i.e., when there is less than a 5% probability that

the disparity was due to chance.” Coates, 756 F.2d at 537 n.13; Segar v. Smith, 738 F.2d

1249, 1282-83 (D.C. Cir. 1984) (a 0.05 P value (a 5 percent chance that the occurrence is

random), which translates to 1.96 standard deviations, is sufficient to establish prima facie

case of discrimination).128

Equal protection analysis requires a statistical showing of discrimination “over a

significant period of time.” Mosley, 370 F.3d at 475-76. Here, Soffar presented data taken

from an eleven-year period, from 1970 through 1980. See Castaneda, 430 U.S. at 496

n.17 (finding 11-year period significant); Hobby v. United States, 468 U.S. 339, 341

(1984) (7 years significant). Cf. Ramseur v. Beyer, 983 F.2d 1215, 1233 (3d Cir. 1992)

(finding two-year period analysis insufficient). Application of statistical decision theory to

the data in this case indisputably establishes a violation of equal protection.

The following chart summarizes the statistical data demonstrating the drastic under-

representation of women in Harris County amongst jury commissioners, the grand jury

pool, actual grand jurors selected, and grand jury forepersons:129

See e.g., Castenda, 430 U.S. at 496 n.17 (calculating the expected number by multiplying the total number of130

persons by the percentage of the population that is Mexican-American). See also, Ovalle, 13 S.W.3d at 782 nn.23 &

24 (applying the same calculations to grand jury challenge in Hidalgo and Navarro counties).

See e.g., Castenda, 430 U.S. at 496 n.17 (defining the standard deviation for binomial distributions “as the square131

root of the product of the total number in the sample . . . times the probability of selecting a Mexican-American . . .

times the probability of selecting a non-Mexican-American”; Ovalle, 13 S.W. 3d at 782 n.29 (using same

calculation); see generally, Robert V. Hogg, Introduction to Mathematical Statistics, 59, 158 (6th ed. 2004).

See, e.g., Ovalle, 13 S.W.3d at 782 n.30 (calculating number of standard deviations by dividing the observed132

deviation (expected number minus observed number) by the standard of deviation for the comparison).

Here, the standard deviation, 12.58 (rounded), is the square root of the product of 633, the total number in the133

sample, times the probability of selecting a woman (0.50) times the probability of selecting a man (0.50).

The observed deviation, 208.5, is approximately 16.6 standard deviations (12.5797 x 16.5742 = 208.498). 134

There was a 32.94 % absolute disparity between the percentage of women in the Harris County population and135

the percentage who were selected as jury commissioners, id., another strong showing of an equal protection

violation. See, e.g., Jones v. Georgia, 389 U.S. 24 (1967); Rideau, 237 F.3d at 486; Tuttle, 729 F.2d at 1327.

The standard deviation, 24.90 (rounded), is the square root of the product of the total number in the sample136

(2,480) times the probability of selecting a woman (0.50) times the probability of selecting a man (0.50).

The observed deviation, 396, is approximately 15.9 deviations (24.8997 x 15.9037 = 395.9974). 137

The absolute disparity between the percentage of women in the population and the percentage of women138

summoned was 15.97%, id., another indisputable demonstration of an equal protection violation.

The standard deviation, 20.27, is the square root of the product of the sample size, 1,644, times 0.50 times 0.50. 139

The observed deviation, 259, is approximately 12.8 deviations (20.2731 x 12.7755 = 258.9989).140

The absolute disparity between the percentage of women in the population and the number of women selected as141

grand jurors in the years 1970 through 1980 was 15.75%. Id.

The standard deviation, 5.74, is the square root of the product of the sample size, 132, times 0.50 times 0.50. 142

The observed deviation, 55, is approximately 9.57 standard deviations (5.7446 x 9.5743 = 55.0005).143

The absolute disparity for this category was 41.67%. 144

79

1970-1980

Representation of

Women Among

Components of

Grand Jury System:

Number

Within

Category

(6 CR

1805):

Expected

Number

of

Women130

Observed

Number

of Women

(6 CR

1805):

Standard

Deviation

for

Comparison

131

No. of

Standard

Deviations

Between

Expected

and

Observed132

Probability

Absent

Purposeful

Discrim -

ination

(P-value) (6

CR 1805):

Jury

Commissioners

633 316

(.5 x 633)

108 12.58 16.6 less than133 134

0.0000001135

Grand Jury Pool 2,480 1,240

(.5 x

2,480)

844 24.90 15.9 less than136 137

0.0000001138

Selected for Grand

Jury

1,644 822

(.5 x

1,644)

563 20.27 12.8 less than139 140

0.0000001141

Grand Jury

Forepersons

132 66 (.5 x

132)

11 5.74 9.6 less than142 143

0.0000001144

80

The difference demonstrated between the expected and actual number of women in

the grand jury pool, among jury commissioners, among actual grand jurors selected, and

among grand jury forepersons ranges from between nine and sixteen-plus standard

deviations. These statistics overwhelmingly establish a prima facie case of discrimination

in each of the above categories. See Castenada, 430 U.S. at 496, n.17. Calculation of the

probability value (the P-value) for each of these categories also shows that the probability

that the under-representation of women in the period from 1970 through 1980 was due to

chance was less than 0.0000001. Aff. of H. J. Hietala, Exhibit 7 (6 CR 1805) (p <

.0000001). The P-values here of .0000001 translate to an approximately one in 10 million

chance that the occurrence was random. They are highly significant and far exceed the

level of significance generally considered significant. (6 CR 1751-52, 1805). These

statistics indisputably establish a prima facie case of discrimination against women in the

selection of jury commissioners, assembly of the grand jury pool, selection of the grand

jury, and selection of grand jury forepersons. Put plainly, “[h]appenstance is unlikely to

produce th[ese] disparit[ies].” Miller-el v. Cockrell, 537 U.S. 322, 342 (2003).

(B). System Susceptible to Abuse. As the United States Supreme Court has held, “a

selection procedure that is susceptible of abuse . . . supports the presumption of

discrimination raised by the statistical showing.” Castaneda, 430 U.S. at 494-95 (citation

omitted). During the years in question, Harris County employed a “key man” system

under which the district court judges had unfettered discretion to appoint jury

commissioners who in turn had unfettered discretion to select grand jurors. See TEX.

Castenada, 430 U.S. at 484, 494, 497 (“key man” system for selecting jurors, under which judge selects jury145

commissioners who in turn select prospective jurors, is susceptible to abuse); Cassell v. Texas, 339 U.S. 282, 287

(1950) (jury commissioners’ subjective selection of jury venire provided an opportunity for discrimination); Mosley,

370 F.3d at 478-70 (similar to Patrida); Johnson v. Puckett, 929 F.2d 1067, 1072 (5th Cir. 1991) (similar).

Dr. Hietala calculated the percentage of the population classified as Hispanic using census data and adjusting the146

data to include only those individuals over age 18. See Aff. of H.J. Hietala, Exhibit 6 (6 CR 1791-1804).

81

CODE CRIM. PROC. Arts. 19.01; 19.06; and 19.34; (6 CR 1740; 7 RR 135). As numerous

courts, including the Supreme Court, have held, this “key man” system is clearly

susceptible to abuse. 145

Because Appellant satisfied all three parts of the Rose test, the burden shifted to the

State to rebut the showing. Mosley, 370 F.3d at 475-76. The State made no attempt to do

so. Accordingly, the trial court committed reversible error by denying Appellant’s Motion

to Quash.

2. Prima Facie and Unrebutted Evidence of Exclusion of Hispanics

Appellant also established that Harris County’s system of selecting forepersons and

alternates discriminated against Hispanics during the years 1970 through 1980, and the

state offered nothing to rebut this showing.

Max Soffar satisfied the first prong of the Rose test because Hispanics are a

recognizable, distinct class. Castenada, 430 U.S. at 494; Hernandez v. Texas, 347 U.S.

475, 478-79 (1954). In addition, Soffar satisfied the second prong of the Rose test by

introducing unrebutted statistical evidence of the under-representation of Hispanics in the

selection of forepersons and alternates. (6 CR 1805). For the years 1970 through 1980,

Hispanics over the age of eighteen comprised approximately 13.72% of the population in

Harris County. During this period one hundred and thirty-two grand jury forepersons146

13.72% of 132 = 19. 147

The standard deviation is 4.07, which rounded is the square root of the sample size (140) times the probability of148

selecting a Hispanic person (0.1372) times the probability of selecting a non-Hispanic person (0.8628). See (6 CR

1805). The observed deviation, 12, is approximately 3 standard deviations (2.9988 x 4.0709 = 12.2078)). The

absolute disparity between the percentage of Hispanics in the population and the percentage of Hispanics selected as

forepersons or alternates was 8.72%. Id.

82

and alternates were selected in Harris County. Id. Of those 132, based on the population

data, it would be expected that approximately 19 of the selected forepersons or147

alternates would be Hispanic. In fact, there were only seven Hispanic forepersons during

this time period. Id. The difference between the expected number of Hispanics, 19, and

the observed number 7, is 12, approximately three standard deviations, a statistically

significant difference. Similarly, the P-value is less than 0.0008, again indicating the148

statistical significance of the under-representation. Id.

Appellant also satisfied the third prong of the Rose test because, as explained

above, the Harris County system of selecting forepersons from 1970 through 1980,

whereby the district court judges appointed grand jury forepersons who in turn selected

grand jurors, was susceptible to abuse. See TEX. CODE CRIM. PROC. Art. 19.34; (6 CR

1740); Mosley, 370 F.3d at 478-70; Johnson, 929 F.2d at 1072.

Because Appellant established under Rose a prima facie case of discrimination

against Hispanics in selection of forepersons and alternates, the burden shifted to the state

to rebut this showing. The state made no attempt to do so. Therefore, the trial court

committed reversible error by denying the Motion to Quash.

(b) The trial court committed reversible error by denying Max Soffar’s motion toquash the indictment because the grand jury selection process violated due process

Carter v. Jury Comm. of Greene County, 396 U.S. 320, 338 (1970) (“State[s] may no more exclude Negroes149

from service on the jury commission because of their race than from the juries themselves.”); Mosley, 370 F.3d at

478-70; Hobby v. United States, 468 U.S. 339, 346 (1984); Johnson, 929 F.2d at 1072.

See Hernandez v. State, 24 S.W.3d 846, 851 (Tex. App. - El Paso 2000, pet. ref'd) (“Sixth amendment requires150

that grand . . . juries be selected from a fair cross section of the community” (citing Taylor v. Louisiana, 419 U.S.

522, 530 (1975)); Weaver v. State, 823 S.W.2d 371, 372, n.5 (Tex. App. – Dallas, 1992, pet. ref’d) (both the Sixth

Amendment of the United States Constitution and article 1, section 10 of the Texas Constitution require that grand

jury venires represent a fair cross section of the community); see also United States v. Deering, 179 F.3d 592, 597

(8 Cir. 1999) (Sixth Amendment right to grand jury from fair cross section). Cf. Duren, 439 U.S. at 359 (applyingth

fair cross section of the community requirement to include women).

83

and Appellant’s right to a fair cross section.

The United States and Texas Constitutions guarantee criminal defendants that their

jury commissioners, grand jury forepersons and alternates, and grand jury pools will be

selected from a fair cross section of the community, in accordance with representational

due process values. See U.S. Const. amends. V, VI, VIII, XIV; Tex. Const. Art. 1, §§149

10, 13, 15, 19. 150

The test for establishing a prima facie case of a fair cross section violation is

“essentially the same” as the test for establishing a prima facie equal protection violation.

Hernandez, 24 S.W.3d at 851. An appellant must show: “1) that the group alleged to have

been excluded is a ‘distinctive group’ in the community; 2) that the representation of this

group in venires from which juries are selected is not fair and reasonable in relation to the

number of such persons in the community; and 3) that this underrepresentation is due to

systematic exclusion of the group in the jury-selection process.” Duren, 439 U.S. at 364;

Aldrich v. State, 928 S.W.2d 558, 560 (Tex. Crim. App. 1996). “[O]nce the defendant has

made a prima facie showing of an infringement of his constitutional right to a jury drawn

from a fair cross section of the community, it is the State that bears the burden of

But see Hobby v. United States, 468 U.S. 339 (1984) (defendant could not assert that discrimination in grand jury151

foreperson selection violated his due process rights in part because foreperson had only ministerial duties and was

selected from grand jurors already chosen); Mosley v. State, 983 S.W.2d 249, 256 (Tex. Crim. App. 1998) (“as in

Hobby, the foreman in this case was selected from grand jurors that had already been chosen, and the foreman

possessed only ministerial duties in addition to his normal duties as a grand juror”).

But see cases cited supra in the preceding footnote.152

As noted above, absolute disparity measures the difference between the percentage of the protected class in the153

general population and the percentage of the protected class selected. (6 CR 1751).

84

justifying this infringement by showing attainment of a fair cross section to be

incompatible with a significant state interest.” Duren, 439 U.S. at 368.

Max Soffar satisfied all three of these prongs with respect to (1) discrimination

against women in the selection of jury commissioners; (2) discrimination against women

when summoning grand jurors; (3) discrimination against women in the selection of grand

jury forepersons and alternates ; and (4) discrimination against Hispanics in the selection151

of grand jury forepersons and alternates. The State failed to meet its burden of152

justifying this infringement by showing attainment of a fair cross section to be

incompatible with a significant state interest. Accordingly, the trial court committed

reversible error by denying the Motion to Quash.

First, both women and Hispanics are distinctive groups. See, e.g., Duren, 439 U.S.

at 364; Castenada, 430 U.S. at 494. Second, the representation of each of these groups is

not fair and reasonable in relation to the number of such persons in the community. As

discussed in the section on Equal Protection, supra, Statistical Decision Theory analysis

powerfully shows significant under-representation of women and Hispanics in various

stages of the grand jury selection process discussed. The same conclusion is inescapable

under absolute disparity analysis, the methodology frequently used to assess fair cross153

The P-value, less than 0.02, (6 CR 1805), indicated that this difference was statistically significant. Coates, 756154

F.2d at 537 n.13 (7th Cir.1985) (“For large samples, statistical significance at a [P-value] in the range below 0.05 or

0.01 is ‘essentially equivalent' to significance at the 2 or 3 standard deviation level.”). The standard deviation, 8.70,

is the square root of the product of the sample size, 303, times .50 times .50. (6 CR 1805). The observed deviation,

18.5, id., is a statistically-significant 2.13 deviations (8.7034 x 2.1256 = 18.4999).

This under-representation is statistically significant. See subsection (a) (2) (B), supra, (discussing the P-value,155

<0.0008 and the fact that the observed difference was three standard deviations).

Although the absolute disparity for this category is high, this is the only category in which the number of156

standard deviations is under two. This is because the data for 1980 for this category had a very small sample size (N

= 15). Of the fifteen, it would be expected that 2 of the forepersons or alternates would be Hispanic. In fact, there

85

section and due process claims. See, e.g., People v. Burgener, 62 P.3d 1, 22 (Cal. 2003).

An absolute disparity of 10 percent or more indisputably satisfies Duren’s second prong.

See Jones, 389 U.S. at 25 n* (absolute disparity of 14.7% establishes violation); Rideau,

237 F.3d at 486 (noting Supreme Court decisions using 14.7% and 18%); Tuttle, 729 F.2d

at 1327 (holding that 10% is the minimum showing). Appellant satisfied Duren’s second

prong for women and Hispanics in the categories listed in the below chart:

Category Absolute Disparity (% of protected class ingeneral population – % of protected classselected)

Women Jury Commissioners1970-80

32.94% (50-17.06)

Women Jury Commissioners 1980 22.37% (50-27.63)

Women in Grand Jury Pool 1970-80 15.97% (50-34.03)

Women in Grand Jury Pool 1980 6.11% (50-43.89)154

Women Grand Jury Forepersons andalternates 1970-80

41.67% (50-8.33)

Women Grand Jury Forepersons andalternates 1980

16.67% (50-33.33)

Hispanic Forepersons and alternates

1970-80

8.72% (13.72-5)155

Hispanic Forepersons and alternates1980

13.72% (13.72-0)156

were no Hispanic forepersons. The P-value, less than 0.011, indicated statistical significance. The standard

deviation, the square root of 15 times 0.1372 times 0.8628, was 1.33. The difference between the expected number,

2.058 and the observed number, 0, was 2 – less than two standard deviations. Note, however, that this sample shows

the difficulty of testing with small sample sizes: it would be impossible for the difference to be greater than two

standard deviations, given that it is not possible to have a smaller number of Hispanics than zero.

86

Third, by showing that the key-man system utilized at the time of his grand jury

was a highly discretionary one, susceptible to abuse and open to discrimination, Max

Soffar also met his burden of demonstrating that the under-representation of women and

Hispanics was due to their systematic exclusion. Duren, 439 U.S. at 364.

Because Appellant established all three elements of the prima facie case with

respect to the under-representation of women (in the selection of jury commissioners, the

grand jury pool, and forepersons and alternates) and Hispanics (in the selection of

forepersons and alternates), the burden shifted to the State to rebut the discrimination. The

State failed to introduce any evidence rebutting the prima facie case and, accordingly, the

trial court erred by denying the Motion to Quash.

Conclusion. By denying the Motion to Quash, the court violated Appellant’s,

Harris County women’s, and Harris County Hispanics’ equal protection and due process

rights, and Appellant’s due process and fair cross section rights. Reversal is required.

Appellant’s Sixth Point of Error

(a) The State’s failure to preserve exculpatory evidence violated Appellant’srights to due process and a fair trial under the United States Constitution.

(b) The State’s failure to preserve exculpatory and valuable evidence violatedAppellant’s rights to due course of law under the Texas Constitution.

The trial court violated Max Soffar’s rights to due process and due course of law

when it overruled his objection to facing trial after the state had lost critical evidence. (9

87

RR 19). Because the State failed to preserve crucial defense evidence, Appellant was

denied his constitutional rights to due process, due course of law, and a fair trial. U.S.

Const. amends. VI, XIV; Tex. Const. Art. I, §§ 10, 19.

(a) The State’s failure to preserve exculpatory evidence violated Appellant’sright to due process and a fair trial under the United States Constitution.

The Fourteenth Amendment to the UNITED STATES CONSTITUTION forbids states

from destroying or losing exculpatory evidence, and forbids the bad-faith destruction or

loss of potentially exculpatory evidence. See Illinois v. Fisher, 540 U.S. 544 (2004); see

also Jackson v. State, 50 S.W.3d 579, 588-89 (Tex. App. – Ft. Worth 2001, pet. ref’d).

Where the State destroys or loses evidence which is both material and exculpatory on its

face, a due process violation is established. United States v. Moore, 452 F.3d 382, 388

(5th Cir. 2006) (citing Illinois v. Fisher). Where the lost or destroyed evidence is only

potentially exculpatory, a due process violation is established by showing bad faith on the

part of the state. Arizona v. Youngblood, 488 U.S. 51, 58 (1988); Moore, 452 F.3d at 388.

Here, the State lost or destroyed evidence that was both exculpatory and material to

Soffar’s case at the guilt and punishment phases. In fact, most of the missing exculpatory

evidence was directly related to the “stark inconsistencies between Garner’s description of

the shootings and the one that the officers testified that Soffar gave them.” Soffar, 368

F.3d at 471. See also id. at 456, 488 (Appendix A). Having won in the Fifth Circuit,

Soffar’s success in the retrial would turn on whether the jury believed the account

attributed to him or found a reasonable doubt based on Garner’s contrary statements. The

The trial court stated it was denying Appellant’s motion to dismiss (and for other alternative remedies) due to lost157

and missing evidence because it raised a “legal question.” (9 RR 19). The court made no findings of fact. The

standard of review is, thus, de novo. Moff, 154 S.W.3d at 601.

Testifying for the prosecution, Dr. Leon Gildenberg claimed that his reading of transcripts of Garner’s statements158

“demonstrated” the type of concern he had about Garner’s memory. (28 RR 114). Had the tape of those interviews

not been lost, the defense would have been able to test Dr. Gildenberg’s assertions by allowing the jury to hear how

Greg Garner spoke in those interviews, his level of certainty, and whether his voice betrayed confusion.

88

missing evidence went to the heart of resolving this conflict.157

The police lost four audiotapes of Garner’s statements. (8 RR 3-44; 28 RR 145-

46; 2 CR 507; 7 CR 1978). The tapes were exculpatory on their face because their

contents differed so “dramatically” with the theory of guilt propounded by the State.

Soffar, 368 F.3d at 456. The prosecution and its “expert” attacked Garner’s account as

confused and a product of “potential” amnesia. (28 RR 108-48). The missing tapes158

were critical to the jury’s adequate assessment of the State’s claim.

The police also failed to preserve the water jug officers found out of place on the

control counter at the bowling alley. (26 RR 183-85; 27 RR 91). The police should have

known of the jug’s potential relevance when they processed the scene because the

Fairlanes manager, Jim Peters, was present and could have told the police that the jug was

out of place and therefore significant. (26 RR 184). Because the police did not ascertain

its importance and preserve this jug, the defense could not test it for fingerprints or DNA

which the perpetrator, who wore no gloves, might well have left. (33 RR 30). The State’s

failure to preserve the jug prejudiced Soffar’s ability to exonerate himself.

Other missing evidence was relevant to whether there were four or five shots fired,

Sims’s shirt was also important because he spent a lot of time with the perpetrator. (32 RR 73, 80, 104, 137, 139,159

145). For example, he went outside with the perpetrator to deal with his car trouble, id., and emptied the cash

register at the perpetrator’s demand. (33 RR 84-85; 107-08). Because the shirt was lost, the defense could not have

the shirt tested to determine whether the perpetrator had left biological evidence, including DNA, on Sims’s shirt.

Such testing could not have been done in 1981 even if Soffar had then had effective counsel investigating the case.

By the time of Appellant’s retrial, the police had destroyed the larger piece of carpet from which the carpet160

squares had been cut. (8 RR 37-38; 2 CR 531). Because the smaller carpet squares had been cut around the bullet

holes in the carpet, this evidence would have been valuable to the defense to corroborate that Garner had correctly

described the position of the victims during the shooting, not Max Soffar. (Compare 45 RR Joint Exhibit 3 with 43

RR State’s Exhibit 207/Defense Exhibit 32; 30 RR 161). A chart the State admitted as Exhibit 129 in the first trial,

which demonstrated the position of the bullet holes in the carpet, would have served a similar purpose, but it too had

been lost. (2 CR 504, 6 RR 75-76; 7 RR 10).

Although during the argument on the lost evidence motion the prosecutor argued to the court that lost evidence161

bearing on whether there were four, five or more shots was completely irrelevant because the number of shots was

irrelevant, (9 RR 15), he argued to the jury that the issue was important and that the defense expert’s testimony that

five shots were fired (as Garner had said in his statements) represented a “magic bullet” theory. (35 RR 22, 96).

Whether there were four or five shots fired was an important factual issue for the jury. Soffar, 368 F.3d at 476

(citing importance of ballistics expert on this issue).

If this Court finds any of this evidence not exculpatory on its face, it should find a due process violation due to162

the State’s bad faith in losing “potentially” exculpatory evidence. The State knew at Soffar’s original trial that the

weight of the projectiles and fragments only added up to four bullets, not five. (7 CR 2133-34 (notes of assistant

district attorney who prosecuted the case in 1981); 7 CR 2100 (HPD Firearms Section Worksheet)). It also

possessed Greg Garner’s account, which so dramatically differed from its trial theory at the first trial.

89

including Sims’s shirt, bullets and bullet fragments. (33 RR 19, 58-59, 63,158; 35 RR159

43-56; 43 RR State’s Exhibit 192; 2 CR 514-16). In addition, pieces of carpet and160

carpet padding the police had cut out from around the four bullet holes had all been lost.

(43 RR State’s Exhibit 197). The prosecutor and defense expert agreed that this evidence

was relevant to whether four or five shots were fired. See (9 RR 16; 33 RR 84). 161

The State’s failure to preserve exculpatory evidence violated Max Soffar’s right to

due process. Remedies include dismissal, United States v. Cooper, 983 F.2d 928 (9th162

Cir. 1993), or, in less egregious cases, an adverse inference instruction where evidence is

lost or destroyed. See Youngblood, 488 U.S. at 51; United States v. Wise, 221 F.3d 140,

156 (5th Cir. 2000). This Court should reverse and render a judgment in Appellant’s favor

or order such other relief as justice may require.

See,e.g., Ex Parte Gingo, 605 So. 2d 1237, 1241 (Ala. 1992); Thorne v. Dept. of Public Safety, 774 P.2d 1326,163

1330-31 (Alaska 1989); State v. Morales, 657 A.2d 585, 591-92 (Conn. 1995); Lolly v. State, 611 A.2d 956, 960

(Del. 1992); State v. Matafeo, 787 P.2d 671, 673 (Haw. 1990); Williams v. State, 50 P.3d 1116, 1126 (2002); State v.

Chouinard, 634 P.2d 680, 683 (N.M. 1981); State v. Barnett, 543 N.W.2d 774, 777-778 (N.D. 1996); State v.

Cheeseboro, 552 S.E.2d 300, 307 (S.C. 2001); State v. Ferguson, 2 S.W.3d 912, 917 (Tenn. 1999); State v. Gibney,

825 A.2d 32, 42-43 (Vt. 2003); State v. Osakalumi, 461 S.E.2d 504, 512 (W. Va. 1999).

This Court reversed the intermediate appellate court in Pena, not on the merits, but because the parties never164

briefed the state constitutional issue in the intermediate court. State v. Pena, 191 S.W.3d 133 (Tex. Crim. App.

2006). The intermediate court is now considering briefing on the state constitutional issue. State v. Pena, 192

S.W.3d 684 (Tex. App. – Waco 2006). Even though the court did not allow full briefing, its reasoning remains

90

(b) The State’s failure to preserve exculpatory evidence violated Appellant’s right to due course of law under the Texas Constitution.

In his concurring opinion in Youngblood, 488 U.S. at 60-61, Justice John Paul

Stevens wrote that “there may well be cases in which the defendant is unable to prove that

the State acted in bad faith, but in which the loss or destruction of [potentially exculpatory]

evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally

unfair.” Id. Numerous states have adopted Justice Stevens’s rationale and rejected the

bad-faith standard when interpreting their state constitutions. 163

This Court, too, should abandon Youngblood’s impractical bad-faith test by

interpreting the Texas constitutional guarantee of due course of law to provide greater

protections. See Tex. Const. Art. I, §§ 10, 19. This Court is not bound by Youngblood,

see Hulit v. State, 982 S.W.2d 431, 437 (Tex. Crim. App. 1998), and should follow other

jurisdictions enunciating a standard that protects the rights of criminal defendants when

the state negligently loses or destroys important evidence. The appropriate approach

under the Texas due course of law provision was recently set forth by Pena v. State, 166

S.W.3d 274, 281-82 (Tex. App. – Waco 2005), rev’d 191 S.W.3d 133 (Tex. Crim. App.

2006). If “potentially useful” evidence is lost or destroyed, the court must balance the164

persuasive. The Pena court insightfully discussed the need for greater police incentives to preserve evidence and the

concomitant damage to defendants’ rights when they fail to do so, as evidenced by the rash of lost and disturbed

evidence in crime labs across the country, including Houston. Pena, 166 S.W.3d at 280-81.

The police witness called upon to find lost evidence stored in the police property room provided no other165

explanation than that the District Attorney’s Office had checked out some of the evidence and that all of the records

of the evidence, except log books, had been destroyed. (8 CR 33-39).

91

degree of negligence involved, the significance of the destroyed evidence, and the

sufficiency of the other evidence in support of the conviction. Id. at 282.

The missing evidence in this case is certainly exculpatory. It includes powerful

evidence going to the heart of whether the jury should have believed Garner’s statements

or Soffar’s statement. Moreover, even if this Court finds some or all of the evidence

merely “potentially useful,” reversal of Soffar’s conviction and dismissal of the indictment

is warranted given the volume of the lost evidence, the fact that only inexcusable neglect

could have led to its loss in this capital case, and that the remaining evidence in the case165

was far from overwhelming. Soffar, 368 F.3d at 478-79. This Court should reverse and

render, or order other appropriate relief.

Appellant’s Seventh Point of Error

Rooted in a completely unreliable confession, Appellant’s conviction rests on legallyand factually insufficient evidence and violates his right to due process of law.

Max Soffar’s conviction was built upon a confession dramatically at odds with the

sole eyewitness’s description of the crime and with the other testimonial and physical

evidence. Soffar, 368 F.3d at 456. Soffar’s putative confession came after he spent three

days of isolation in police custody and after he signed two substantially different and less-

inculpatory statements. None of Soffar’s putative statements was written in his own hand

See, e.g., People v. Brensic, 509 N.E.2d 1226, 1231-32 (N.Y. 1987) (finding confession “unreliable as a matter of166

law,” where it was “the product of the custodial questioning of a 15-year-old boy for six and a half hours, without

his parents’ knowledge, by two police detectives,” which contained “numerous versions of the events that led to

[victim’s] death”).

92

or stated in his own words; instead, the police typewrote the statements for his signature.

Only part of the first day of interrogation was recorded, and the little evidence available

about the police interrogations indicated that officers fed Soffar information, including a

description of the layout inside and outside of the bowling alley. (29 RR 147-51, 164-66;

31 RR 61-62, 128-29). The police officer who knew Soffar well as a police informant –

and who was called upon when other officers hit a “brick wall,” (29 RR 187-88) –

described him as “just not trustworthy” and as having “fried brains” and the mentality of a

ten-year-old child. (29 RR 129, 134).

This Court may reverse a conviction based upon legally insufficient evidence,

Jackson v. Virginia, 443 U.S. 307, 319, 326 (1979), or factually insufficient evidence.

Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). This Court should hold

the purported confession unreliable as a matter of law. Various factors, individually or in

combination, make it unreliable, including: (1) the circumstances under which it was

taken; (2) its failure to comport with the physical and testimonial evidence; (3) its failure

to contain any information not already known by the police; and (4) the fact that Soffar

gave numerous versions of the events. Moreover, because the State’s proof is not166

legally sufficient to identify Soffar as the perpetrator without his confessions, this Court

should reverse his conviction because it is based on legally insufficient evidence. In the

alternative, this Court should act as a “thirteenth juror” and reverse Appellant’s conviction

A de novo standard of review is required because “the resolution of [this] question of law [did] not turn on an167

evaluation of the credibility and demeanor of a witness,” Moff, 154 S.W.3d at 601, and because the trial court’s

preclusion of this evidence implicated Appellant’s constitutional right to present a defense. Lilly, 527 U.S. at 137;

Guzman, 955 S.W.2d at 87.

By contrast, defense objections to police officers testifying that it “appeared” that Max Soffar “understood” his168

Miranda rights were overruled. (29 RR 55-56).

93

because of factual insufficiency. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App.

2006). When a conviction appears “manifestly unjust” or “clearly wrong” because the

“great weight and preponderance of the (albeit legally sufficient) evidence contradicts the

jury’s verdict,” a new trial must be ordered. Id. For the reasons stated above, this is the

rare case which meets this exacting standard.

Appellant’s Eighth Point of Error

The trial court violated Appellant’s constitutional right to present a defense byrepeatedly precluding evidence which undermined the prosecution's case andimpeached the police investigation.

At Max Soffar’s trial, the trial court repeatedly violated his constitutional right to

present a defense, effectively blocking each new attempt to salvage what remained of the

defense that both his confession and the police investigation were unreliable. See also

U.S. Const. amends. VI; XIV; Appellant’s First Point of Error, incorporated herein

(collecting cases); Ray, 178 S.W.3d at 836 n.1 (cautioning against “precluding altogether

the presentation of the defensive theory”). 167

First, the court repeatedly blocked cross examination designed to vindicate Soffar’s

constitutional right to prove that his confession was unreliable. Crane, 476 U.S. at 690.

(29 RR 163-64 (precluding Clawson’s testimony that he was concerned that Soffar “could

not provide any details about the bowling alley” during custodial interrogation); 30 RR168

See (31 RR 15-16 (precluding testimony that the police “tip line” for the Fairlanes robbery murders, which had169

numerous callers, received no calls saying Max Soffar was the perpetrator); 31 RR 34 (precluding testimony that

Latt Bloomfield was never charged with the crime); 31 RR 157 (precluding police testimony that Greg Garner’s

diagram of the bodies showed his own body in the same position as unaccounted for bullet hole, corroborating his

own statements and undermining Soffar’s); 31 RR 158 (precluding police testimony comparing Soffar’s statement

with Greg Garner’s); 32 RR 169, 172, 174, 179; 34 RR 14-15 (precluding police testimony about Greg Garner’s

non-transcribed statements, introduced not for the truth of the matter asserted but to show that Garner’s earlier

transcribed statements were consistent with the answers he provided during weeks of police interviews)).

94

117-20 (precluding testimony from police witnesses about inconsistencies within Soffar’s

statements); 31 RR 157-58 (precluding police testimony that Soffar’s statement kept

changing from August 5 to 7, 1980)).

Second, the court refused to allow Soffar to attack the police investigation as

unreliable. Kyles v. Whitley, 514 U.S. 419, 446 (1995) (finding due process violation169

where prosecution suppressed evidence which defense could have used to “attack[] the

reliability of the [police] investigation”). The information provided in Garner’s police

statements should have been the foundation of their investigation. Instead, they focused

solely on Max Soffar, whose purported information was “dramatically at odds” with the

information from Garner. Soffar, 368 F.3d at 456. A proper police investigation may well

have led to someone else being charged with the crime.

Third, just as the court precluded the admission of evidence of Reid’s statement

against interest, Tex. R. Evid. 803 (24), the court precluded the admission of evidence that

people other than Reid and Soffar had admitted to the crime. (31 RR 17 (precluding

testimony that other people confessed to the Fairlanes robbery murders); 31 RR 101-03

(precluding evidence that other suspects admitted to the crime to authorities)).

The trial court’s rulings violated Appellant’s rights to due process of law and to

Russell v. State, 604 S.W.2d 914, 919-20 (Tex. Crim. App. 1980) (citing Carver v. State, 510 S.W.2d 349, 351170

(Tex. Crim. App. 1974)).

(32 RR 5; 2 CR 525-26; 6 CR 1717). Bryant’s testimony alleged that Soffar spoke about bowling alley murders171

during a drug transaction.

Because this is a purely legal question and raises a constitutional claim, the standard of review is de novo. 172

Guzman, 955 S.W.2d at 89.

95

present a defense. Because the prosecution’s evidence was extraordinarily thin, the court’s

error was not harmless under any standard. Chapman, 386 U.S. at 24; Anderson, 182

S.W.3d at 918-19.

Appellant’s Ninth Point of Error

The court deprived Appellant of his rights under the Confrontation Clause byadmitting testimonial hearsay evidence never properly tested in the crucible of crossexamination.

The Confrontation Clause forbids the introduction of an absent witness’s prior

testimony unless “the defendant had an adequate opportunity to cross-examine” the

witness in the prior proceeding. U.S. Const. amends. VI; XIV; Crawford v. Washington,

541 U.S. 36, 57 (2004) (citing Mancusi v. Stubbs, 408 U.S. 204, 213-216 (1972) (other

citations omitted)). Where the State seeks to introduce such testimony, it has the burden

of establishing that the prior opportunity to cross examine was adequate. The State170

failed to meet that burden when it introduced the testimony of Lawrence Bryant from the

first trial, and the trial court denied Max Soffar his right to confrontation when it171

admitted into evidence Bryant’s prior testimony over defense objections.172

Max Soffar did not have an adequate opportunity to cross examine Bryant in the

first trial because Soffar was represented by constitutionally-ineffective counsel. Soffar,

368 F.3d at 480. As this Court has stated, “[w]hether the requisite opportunity existed in a

Soffar never claimed in any of his putative statements to the police that any money was “laying” there or that173

someone got in his way while he was leaving.

96

particular proceeding depends upon” a number of factors, including “intimations of

ineffective assistance of counsel.” Russell, 604 S.W.2d at 921. See also Mancusi, 408

U.S. at 214-15 (stating that adequate prior opportunity would not exist if ineffectiveness

caused the omission of a“significantly material line of cross-examination”).

As the Fifth Circuit held, Appellant’s counsel was ineffective in 1981 by failing to

elicit the “readily evident stark inconsistencies between [Greg] Garner’s description of the

shootings and the one that the officers testified that Soffar gave them.” Soffar, 368 F.3d at

471. Counsel’s ineffectiveness led to the forfeiture of a significant line of cross

examination of Bryant. For example, ineffective counsel in 1981 missed the opportunity

to elicit that Soffar allegedly told Bryant that “as he was going out[,] somebody got in his

way or something like that.” (2 CR 681 (Bryant’s signed statement to the police)). Garner

reported nothing like this in any of his statements. Ineffective counsel also failed to elicit

that Soffar allegedly claimed to Bryant that “he seen the money laying there.” (2 CR 681).

In fact, the evidence establishes that no “money” was “laying” anywhere. On the contrary,

Garner reported that the perpetrator took the money from the cash register, (32 RR 69, 84-

85), and manager Jim Peters reported that money was never left anywhere but in the office

or in the cash registers. (26 RR 178-79). Eliciting these stark inconsistencies would not

only have shown that Appellant’s putative statements were false but also would have

established that his various alleged statements to the police and Bryant were all different

from one another, further undermining their credibility. 173

That “three people got shot in the back” is also inconsistent with the crime-scene evidence establishing that four174

people were shot in the head.

97

Finally, ineffective counsel missed the opportunity to impeach more forcefully and

clearly Bryant’s damaging claim on direct that Soffar said he shot three people and that he

was responsible for the robbery. (32 RR 12-13, 31-34). An adequate cross examination

would necessarily have elicited from Bryant in a clear way that Bryant’s actual statement

to the police was that Soffar stated “if I told you who did it you wouldn’t believe me,” and

that “three people got shot in the back.” (2 CR 681 (emphasis added)).174

Because a violation of the right to confrontation affects “the framework within

which the trial proceeds, rather than simply [causing] error in the trial process itself,”

Arizona v. Fulminante, 499 U.S. 279, 310 (1991), this Crawford violation was a

“structural error,” not subject to harmless error analysis. See id. In the alternative, the

State cannot prove that the admission of Bryant’s non-confronted testimony was harmless

beyond a reasonable doubt. Chapman, 386 U.S. at 24. The prosecution’s case was

extraordinarily weak. See Appellant’s First Point of Error (harmless error discussion),

supra. The State relied on Bryant’s testimony extensively in summation, underscoring its

importance to the prosecution case. (35 RR 13-14, 81-85, 88-89). This error was not

harmless. Reversal is required.

Appellant’s Tenth Point of Error

(a) The police violated Soffar’s Fifth Amendment rights by continuing their custodial interrogation after he invoked his right to remain silent.

(b) Sgt. Clawson’s misleading answers to Soffar’s question rendered invalid any purported waiver of his right to counsel.

(c) The police obtained Soffar’s statements by failing to honor his invocation of

All record citations are to the pretrial suppression hearing.175

Miranda v. Arizona, 384 U.S. 436 (1966). The police read Soffar his Miranda rights several times during176

subsequent interrogations. See, e.g., (5 RR 72).

Indeed, Soffar was a police informant for three to four police departments. (4 RR 120). 177

Sgt. Clawson’s brother, Detective Michael Clawson, also used Soffar as an informant. (6 RR 31-32). Michael178

Clawson found Soffar’s information useless because it was not truthful, and found Soffar amenable to suggestion

during interrogation. (6 RR 33-37). Officer James Palmire acknowledged that Appellant was impulsive, acted on

the spur of the moment, did not give thought to the consequences of his actions, and had a history of illegal drug use.

98

the right to counsel under the Fifth Amendment.(d) Under Texas law, the police were required to clarify whether Soffar wanted

counsel, if his invocation was ambiguous.(e) Soffar’s statements were involuntary and should have been suppressed.

Factual Background. On August 5, 1980, Officer Raymond Willoughby pulled

over Soffar, who was on a stolen motorcycle, in League City, Texas. (4 RR 20, 26).175

After Soffar was arrested and read his Miranda rights, he allegedly stated that he was176

not going to prison over any bike and that the police should check with Houston for

“bigger” things. (4 RR 74). See also (4 RR 37). Soffar claimed that he had information

about “the bowling alley murders” in Houston, and asked to speak with Sgt. Bruce

Clawson of the Galveston County Sheriff’s Office. (4 RR 37-39). Sgt. Clawson was

called to assist in Soffar’s interrogation, (4 RR 97), and his paper work indicated that he

was called due to Soffar’s refusal to talk. (5 CR 1296).

As Sgt. Clawson’s paid informant, (4 RR 94), Soffar provided information about

narcotics sales in exchange for money and for assistance when Soffar got into legal

trouble. (4 RR 95, 117). Sgt. Clawson knew that Soffar suffered from a drug problem,

acted impulsively and child-like, had a poor grasp of reality, and displayed an unusual

eagerness to please those in positions of authority. (4 RR 117-19). Sgt. Clawson knew177

that Max Soffar considered him a friend and trusted him. (4 RR 123-24). 178

(4 RR 80-81, 88-89).

99

Sgt. Clawson and Officer Willoughby escorted Soffar to a magistrate for his

“magistrate” warnings, (4 RR 42-44), which referred to the only charge at the time:

unauthorized use of a motor vehicle. (4 RR 62). Upon returning to the police station,

Officer Willoughby noticed that Soffar’s eyes were bloodshot, his pupils dilated, his

speech slurred, and he smelled of alcohol, (4 RR 53-54) – even though Soffar had been

pulled over approximately forty minutes before. (4 RR 58-59).

Soffar told Sgt. Clawson that he did not wish to talk to Officer James Palmire, who

had called Soffar a “punk” as part of a good cop/bad cop routine. (4 RR 76, 82, 91, 102).

Sgt. Clawson left with Officer Palmire and returned with Det. Schultz. (4 RR 104). Det.

Schultz noted that Soffar looked disheveled, as though recovering from intoxication. (4

RR 200-01). He knew that Soffar had spent three years in Austin State Mental Hospital.

(4 RR 204; 43 RR State’s Exhibit 1A at 10). Soffar told Det. Schultz that the police had

subjected him to a “little threat,” but Det. Schultz did not investigate it. (4 RR 208).

Det. Schultz spoke with Soffar until Soffar no longer desired to speak and the

interrogation “hit a brick wall.” (4 RR 131-32). Sgt. Bruce Clawson then took over,

questioning his informant in private. (4 RR 107-08). Soffar asked Sgt. Clawson how to

get an attorney. (4 RR 107-08; 7 RR 93-95). Sgt. Clawson responded by asking Soffar

whether he could afford an attorney, id., even though that he knew that Soffar could not

afford an attorney (7 RR 102-04). Soffar asked Sgt. Clawson how long it would take to

get a public defender. (4 RR 107). Clawson responded that he did not know, maybe a

Sgt. Clawson knew that in Harris County a suspect had to be released or charged within seventy-two hours, but179

claimed not to make any “correlation” between this fact and the availability of counsel. (4 RR 108-09).

100

day, a week, or a month. (4 RR 108). Soffar asked Sgt. Clawson whether he thought he179

should get an attorney and Clawson responded “if you’re guilty talk to the police and if

you’re not guilty you should get an attorney.” (4 RR 109). Finally, when Soffar asked

Sgt. Clawson if he was on his own, Sgt. Clawson confirmed that Soffar was on his own.

(4 RR 110). Soffar responded, “I’m on my own.” (7 RR 94).

After digesting Sgt. Clawson’s answers to his questions, Soffar spoke with Det.

Schultz again and provided his first statement, which was tape recorded. (4 RR 110).

This statement led to follow-up interrogations, yielding two additional typewritten

statements, as Soffar remained in isolation in police custody on August 6 and 7, 1980.

The interrogation sessions leading to the second two statements were neither tape recorded

nor transcribed. (5 RR 93). Instead, the substance of the sessions was summarized by

detectives and presented to Soffar as written statements for his signature. (5 RR 70-71; 7

RR 31-32, 39-40, 174-75; 43 RR State’s Exhibit 109, 110).

Soffar stated during his initial interrogation by Det. Schultz that he knew about the reward

for information in the bowling-alley murders case. (43 RR State’s Exhibit 1A at p. 36). In

addition, Det. Schultz answered Soffar’s questions about the details of the crime, including

how many people were shot, their ages, and whether anyone survived. Id. at 29-30.

Thereafter, in Soffar’s first signed statement, he claimed that he and Latt Bloomfield

burglarized a bowling alley and that they returned the next night when Bloomfield entered

the bowling alley with a pistol while Soffar waited outside and heard shots. (43 RR

A trial court’s ruling on a motion to suppress is generally reviewed for abuse of discretion. Balentine v. State, 71180

S.W.3d 763, 768 (Tex. Crim. App. 2002). Although a trial court’s determination of historical facts supported by the

record is entitled to deference, where, as here, the issues before the appellate court involve the constitutional

101

State’s Exhibit 108). The content of the second statement was similar. (43 RR State’s

Exhibit 109). When he asked Soffar to sign the statements, Det. Schultz knew that two

other suspect had confessed to the burglary of Fairlanes on the night before the robbery

murders. (4 RR 190-91). Similarly, the police knew that Soffar falsely confessed to other

robberies with Bloomfield when they took him for a ride around Houston after his second

statement. (5 RR 112; 7 RR 38, 69-71). After Soffar became upset when the police told

him that they had released Bloomfield for lack of evidence, Soffar signed his third

statement. (5 RR 86-87; 7 RR 41-43). In this detailed typewritten statement, Soffar for

the first time inculpated himself (as well as Bloomfield) in the shooting of four people

during a bowling alley robbery. (43 RR State’s Exhibit 110).

(a) Sgt. Clawson’s misleading answers to Soffar’s question rendered invalid anypurported waiver of his right to counsel.

As noted above, when Soffar asked about his right to counsel, Sgt. Clawson said on

the first day of interrogation that it could take up to a month to get an attorney, told Soffar

he was on his own, told him to get a lawyer only if he was innocent, and inappropriately

questioned whether Soffar could afford an attorney. As the Supreme Court has held, “any

evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course,

show that the defendant did not voluntarily waive his privilege.” Miranda, 384 U.S. at

476. Cf. Missouri v. Seibert, 542 U.S. 600, 613-14 n.5 (2004) (forbidding misleading

tactics which render the warnings ineffective). 180

implications of the undisputed facts, such deference is inapplicable. Guzman, 955 S.W.2d at 89.

See Thompson v. Wainwright, 601 F.2d 768, 770, 772 (5th Cir. 1979) (disapproving of an interrogating officer's181

statement to the defendant that “if he told an attorney [his story] first he would not be able to talk to [the officers]

and tell [them] his side of the story,” and warning that “any” explanation offered by an interrogating officer about

the consequences of speaking with counsel is “perilous and, if given, must not be materially incorrect” and that

“advice about what is best for the suspect to do is for counsel, not the interrogator, to give”); Russell v. State, 727

S.W.2d 573, 577 (Tex. Crim. App. 1987) (citing Thompson and holding that “an interrogating officer may not use

the guise of clarification in order to coerce or intimidate the accused into making a statement”). On habeas review,

the Fifth Circuit rejected Max Soffar’s claim that Clawson’s conduct violated his Miranda rights. Soffar v. Cockrell,

300 F.3d 588 (5th Cir. 2002).

Miranda, 384 U.S. at 444-45; Ochoa v. State, 573 S.W.2d 796, 800 (Tex. Crim. App. 1978) (holding that182

“Miranda [should be read] literally; where a defendant indicates in any way that he desires to invoke his right to

counsel, interrogation must cease”).

102

When faced with an ambiguous or equivocal statement regarding an attorney, a

police officer may “clarify whether or not he actually wants an attorney,” or continue

questioning him. Davis v. United States, 512 U.S. 452, 460-61 (1994). Neither Davis nor

any other authority, however, allows the government to respond to such a statement by

misleading the suspect about his right to counsel in violation of Miranda’s prohibition

against using trickery to obtain a waiver. Indeed, both this Court and the Fifth Circuit

expressly forbid such conduct. 181

Clawson’s statements rendered any purported waiver(s) unknowing, involuntary,

and unintelligent in violation of Soffar’s Fifth Amendment rights. Accordingly, the trial

court erred in failing to suppress the signed statements.

(b) The police obtained Soffar’s statements by failing to honor his invocation ofthe right to counsel under the Fifth Amendment.

If an accused “indicates in any manner and at any stage of [custodial interrogation]

that he wishes to consult with an attorney before speaking there can be no questioning.”182

See also U.S. Const. amends. V; XIV; TEX. CODE CRIM. PROC. Art. 38.22. The issue is

whether “‘a reasonable police officer in the circumstances would understand the

See Ochoa, 573 S.W.2d at 800-801 (recognizing that although the defendant did not make a “formal request” or183

absolute demand for a lawyer, he invoked his right to counsel by stating he “might possibly want to talk to an

attorney” or he “probably ought to talk to a lawyer”); Stanton v. State, 953 S.W.2d 832, 834-835 (Tex. App. –

Amarillo 1997, no pet.) (finding invocation of right to counsel when accused stated that “‘he was not doing any

tests’” and “‘you are trying to incriminate me and without an attorney’”; the Court held that there was “no question

that appellant plainly expressed his desire for an attorney”).

The request for counsel Soffar conveyed to Clawson (his sometime handler) during an entire conversation about184

getting an attorney was far clearer than the isolated and ambiguous statement in Davis, 512 U.S. at 462 (finding

insufficient invocation of right to counsel where suspect merely said once, “Maybe I should talk to a lawyer,” and

thereafter clarified that he did not want a lawyer).

103

[accused’s] statement to be a request for an attorney.’” Dinkins v. State, 894 S.W.2d 330,

352 (Tex. Crim. App. 1995) (quoting Davis, 512 U.S. at 459). Courts look to the totality

of the circumstances surrounding the interrogation, the suspect, and the invocation to

determine whether an accused’s statement can be construed as an invocation of his right to

counsel. See Dinkins, 894 S.W.2d at 351. Even without an explicit request for an

attorney, an accused’s statements may constitute an invocation of his right to counsel. 183

Max Soffar invoked his right to counsel. Soffar asked Sgt. Clawson how he could

get an attorney, how long it would take for a public defender to appear, and whether he

was “on his own.” (4 RR 107-10; 7 RR 94). Sgt. Clawson knew that Soffar trusted him

and considered him a friend. (4 RR 122-24). He also knew Soffar’s serious mental

limitations. (4 RR 117-19). Moreover, Sgt. Clawson came to speak with Soffar privately

when other officers had hit a “brick wall” with Soffar. (4 RR 131-32). Under “the184

totality of the circumstances,” Soffar invoked his right to counsel. Ochoa, 573 S.W.2d at

800-801; Stanton, 953 S.W.2d at 834-835. Because any reasonable police officer would

have interpreted Soffar’s statements as a request for counsel, the police were prohibited

from interrogating him until counsel was present. Miranda, 384 U.S. at 473-74. The

subsequent statements Soffar signed without counsel should have been suppressed.

See also Kelly v. Lynaugh, 862 F.2d 1126, 1130-31 (5th Cir. 1988) (holding that a suspect invoked his right to185

remain silent by declining to talk); Hearne v. State, 534 S.W.2d 703, 704 (Tex. Crim. App. 1976) (finding Miranda

violation where the accused did not want to talk to a police officer, but the police officer persisted in questioning the

accused until the accused confessed).

See, e.g., State v. Chew, 695 A.2d 1301, 1316-18 (N.J. 1997) (requiring police officers to clarify an ambiguous186

request for counsel or cease questioning as a matter of New Jersey constitutional law); State v. Hoey, 881 P.2d 504,

523 (Haw. 1994) (adopting four-judge concurrence in Davis which would require police to clarify an ambiguous

request for counsel or cease questioning as a matter of Hawaiian constitutional law).

104

(c) The police violated Soffar’s Fifth Amendment rights by continuing their custodial interrogation after he invoked his right to remain silent.

Hitting a “brick wall” with Soffar, (4 RR 131-32), Sgt. Clawson recorded in his

written report that Soffar “refused to talk.” (5 CR 1296). See also (7 RR 91 (“Max

stopped talking to” Det. Schultz and to Sgt. Clawson)). A defendant invokes his right to

cut off questioning during custodial interrogation merely by indicating that he does not

want to answer questions. See, e.g., Michigan v. Mosley, 423 U.S. 96, 101-02 (1975). 185

Once Soffar invoked that right, the police were obligated to “‘scrupulously honor’” it.

Maestas v. State, 987 S.W.2d 59, 61-62 (Tex. Crim. App. 1999) (quoting Mosley, 423 U.S.

at 103-04). Instead, the police sent Sgt. Clawson, whom Soffar trusted, to continue the

interrogation despite Soffar’s invocation of his right to remain silent. The resulting signed

statements obtained thereafter should have been suppressed as a violation of Soffar’s Fifth

Amendment rights.

(d) Under Texas law, the police were required to clarify whether Soffar wantedcounsel, if his invocation was ambiguous.

If this Court determines that Soffar did not invoke his right to counsel with

sufficient clarity under Davis, supra, it should hold as a matter of Texas law that the police

were required to clarify whether Soffar wanted counsel. Texas has a long history of186

White v. State, 289 S.W.2d 279, 281 (Tex. Crim. App. 1956) (citing, inter alia, TEX. CODE OF CRIM . PROC. Art.187

727; Reese v. State, 151 S.W.2d 828, 839 (Tex. Crim. App. 1941) (citing McVeigh v. State, 62 S.W. 757, 757 (Tex.

Crim. App. 1901))).

The United States Supreme Court has recognized that mental illness is a significant factor in the voluntariness188

calculus. Colorado v. Connelly, 479 U.S. 157, 181 (1986); see also Jurek, 623 F.2d at 937.

105

protecting the rights of suspects during custodial interrogation. The Texas legislature has

codified Miranda and, long before Miranda, required that suspects be forewarned that

their statements could be used against them. 187

This Court should continue its strong protection of the rights of suspects during

custodial interrogation, hold that Texas constitutional and statutory law required the police

to cease questioning or clarify whether Soffar wanted counsel, and suppress his

statements. See Tex. Const. Art. I, § 10; TEX. CODE OF CRIM. PROC. Art. 38.22.

(e) Soffar’s statements were involuntary and should have been suppressed.

To be voluntary, a confession must be “the product of an essentially free and

unconstrained choice.” Culombe v. Connecticut, 367 U.S. 568, 602 (1961). See also U.S.

Const. amends. V; XIV. To determine the voluntariness of a statement, courts look to the

totality of the circumstances surrounding the statement. Jurek v. Estelle, 623 F.2d 929,

939 (5th Cir. 1980); Penry v. State, 903 S.W.2d 715, 748 (Tex. Crim. App. 1995).

The totality of the circumstances here shows that: 1) the police knew that they were

dealing with a “child-like” suspect, with a poor grasp of reality, who was accustomed to188

seeking approval from authority figures as an informant; 2) when the police hit a “brick

wall” in the interrogation, they sent in the officer whom Soffar trusted the most, Sgt.

Clawson, his handler when he acted as an informant; 3) Soffar asked about his right to

counsel and only signed statements after being misled about that right;

106

4) Soffar was isolated in police custody during three days of on and off interrogation;

5) Soffar was intoxicated when he first mentioned the bowling-alley murders and was

coming down from the intoxication near the time the police hit the “brick wall;” 6) Soffar,

who was ordinarily paid for his information, knew about the reward money for

information about the robbery murders; and 7) Soffar’s third statement, in which he made

a detailed claim that he and Bloomfield were responsible for the robbery murders, was

dramatically different from his earlier statements that only Bloomfield was responsible,

substantially increased the possibility that he would be subjected to the death penalty, and

occurred only after the police purposefully notified Soffar that they had released

Bloomfield in an apparent attempt to goad Soffar into providing more information.

These circumstances directly mirror the circumstances under which the United States

Court of Appeals for the Fifth Circuit came to the “inescapable conclusion” that a

“mentally deficient” defendant’s confession was involuntary. Jurek, 623 F.2d at 942.

Soffar’s confession, too, was involuntary and should have been suppressed.

Harmless Error Analysis. Soffar’s signed statements were the lynchpin of the case

against him. Without them, there was absolutely no proof of his involvement in the

robbery murders. The court’s unconstitutional admission of his statements was clearly not

harmless beyond a reasonable doubt. Chapman, 386 U.S. at 24.

Appellant’s Eleventh Point of Error

The trial court committed reversible error by admitting Appellant’s alleged oralstatements in violation of Texas Code of Criminal Procedure 38.22.

Although defense counsel did not cite the recording requirement of Article 38.22 chapter and verse and failed to189

object the second time the oral statements were erroneously admitted, (31 RR 70), he certainly placed the court on

notice of the problem with admitting these oral statements in the first instance. To the extent that this Court finds

otherwise, it should find defense counsel ineffective because there could be no strategic reason for this error. See

Appellant’s Twentieth Point of Error.

107

Following Appellant’s second putative statement to the police, the police took

Appellant to two bowling alleys: (1) the Fairlanes-Bunker Hill; and (2) the Fairlanes-

Windfern, where the robbery murders had taken place. They went to Bunker Hill to “see

what his reaction would be,” (30 RR 151), and Appellant allegedly stated “that this did not

look like the right place.” (30 RR 152). The police then took Appellant to the Fairlanes-

Windfern “to see what his reaction would be,” and Appellant allegedly said that “this

looked like the correct location.” (30 RR 152-53). Because these oral statements resulted

from custodial interrogation and were not recorded, as required by TEXAS CODE OF

CRIMINAL PROCEDURE Article 38.22 § 3 (a)(1), the trial court erred in admitting them into

evidence over the defense’s objections. (30 RR 151, 153). See also (31 RR 70). 189

Under Texas statutory law, “[n]o oral [] statement of an accused made as a result of

custodial interrogation shall be admissible against the accused in a criminal proceeding

unless [] an electronic recording . . . is made of the statement.” TEX. CODE CRIM. PROC.

Art. 38.22 § 3 (a) (1). The police admitted to purposely eliciting Appellant’s putative oral

statements at the two bowling alleys during the course of a “tour” designed to collect

evidence. (30 RR 150-53). Thus, the oral statements were the product of custodial

interrogation. See Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980); Bush v. State, 697

S.W.2d 397, 403 (Tex. Crim. App. 1985) (finding custodial interrogation because “trip in

See also United States v. Webb, 755 F.2d 382, 389 (5th Cir. 1985) (finding statements not involving express190

questioning “reasonably likely to elicit an incriminating response, and [the officer] should have known that such a

response was reasonably likely”); Drury v. State, 793 A.2d 567, 571 (Md. 2002) (confronting accused with physical

evidence of crime is functional equivalent of interrogation); People v. Ferro, 472 N.E.2d 13, 17 (N.Y. 1984) (same).

See also Miller v. Pate, 386 U.S. 1, 6-7 (1967) (granting writ of habeas corpus where prosecutor falsely argued to191

jury, and presented evidence, that paint on article of clothing was actually blood); Giglio v. United States, 405 U.S.

150, 153 (1959) (similar); Mooney v. Holohan, 294 U.S. 103, 112-14 (1935); United States v. Blueford, 312 F.3d

962, 968 (9th Cir. 2002) (“[I]t is decidedly improper for the government to propound inferences that it knows to be

false, or has very strong reason to doubt[.]”); United States v. Udechukwu, 11 F.3d 1101, 1106 (1st Cir. 1993)

(granting new trial because prosecutor misled jury); United States v. Dailey, 524 F.2d 911, 917 (8th Cir. 1975)

(same); Periu v. State, 490 So. 2d 1327, 1328-29 (Fla App. 3d Dist. 1986) (same); People v. Moya, 529 N.E.2d 657,

659 (Ill. App. 1 Dist. 1988) (reversing where “prosecutor argued that defendant's mother was not in court because

she did not want to lie on his behalf,” when, in fact, the defense had been precluded from explaining her absence).

108

whole appeared to be geared to obtaining this information from the appellant”). 190

These oral statements were not recorded (30 RR 176-78), and “the trial court erred

in permitting [their] introduction as direct evidence of appellant’s guilt.” Wortham v. State,

704 S.W.2d 586, 589 (Tex. App. – Austin 1986, no pet.). Given the extraordinarily weak

nature of the prosecution’s case, the prosecution’s reliance on these oral statements in

summation, (35 RR 24, 61, 83, 85-86, 88), and that nothing was done to cure the error, the

error of admitting this evidence was not harmless. Anderson, 182 S.W.3d at 918-19.

Appellant’s Twelfth Point of Error

The prosecution deprived Appellant of a fair trial by making several factuallyinaccurate or misleading arguments to the jury.

The prosecution’s misleading lines of argument at Soffar’s trial violated his

constitutional right to due process of law and to a fair trial on several grounds, including:

1) they misrepresented the truth, see Napue v. Illinois, 360 U.S. 264, 269-72 (1959); and191

2) they impermissibly shifted the burden of proof to Soffar to prove that his statements

were unreliable and that someone else committed the crimes. See, e.g., McKenzie v. State,

Although the defense did not object to the prosecution remarks that only the perpetrator could have known the192

details in Soffar’s putative confession and that the defense presented no evidence of an alternative perpetrator, these

errors are not waived because the prosecution’s argument was “so egregious that no instruction to disregard could

possibly cure the harm.” Willis v. State, 785 S.W.2d 378, 385 (Tex. Crim. App. 1989).

Soffar’s Austin State Mental Hospital records were introduced in the penalty phase of the trial as a joint exhibit. 193

(45 RR Joint Exhibit No. P-1). The records establish that the commitment was civil. Id.

See, e.g., Paxton v. Ward, 199 F.3d 1197, 1213 (10th Cir. 1999) (granting habeas corpus relief where194

prosecutor’s “objections had prevented” defendant from presenting evidence which the prosecutor later argued in

summation that the defendant should have offered if his defense were credible).

109

617 S.W.2d 211, 221 (Tex. Crim. App. 1981); See also U.S. Const. amends. V, VI, XIV.

The prosecution’s argument fell far outside the permissible bounds of proper argument.

See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Moreover, the court

violated Max Soffar’s right to due process of law when it condoned the prosecution’s

improper argument over defense objection. (35 RR 82).192

First, during summation, the prosecution misled the jury by arguing that “with this

well prepared defense if” mental health records existed to support the defense contention

that Soffar had been admitted to Austin State Mental Hospital because of a mental

problem, “we would have them” and that Soffar’s commitment was a “criminal”

commitment. (35 RR 82). In fact, the prosecution knew full well that such records existed

and that the commitment was non-criminal: it had cited directly to Soffar’s Austin State

medical records in its pretrial submissions. (8 CR 2205, 2394). 193

Second, after precluding defense evidence that the media broadcast details about

the crime, see Appellant’s Fourth Point of Error, the prosecution argued to the jury that the

confession was credible because Soffar knew details known only to the perpetrator. (35

RR 11, 22-23). Third, unfairly capitalizing on the preclusion of the Paul Reid evidence,194

the prosecution argued in summation that the defense “didn’t bring you any evidence that

See also Griffin v. California, 380 U.S. 609 (1965) (forbidding comment on defendant’s failure to testify on Fifth195

Amendment grounds); Livingston v. State, 739 S.W.2d 311, 337 (Tex. Crim. App. 1987) (same).

110

someone other than the Defendant committed this crime.” (35 RR 9). Fourth, the

prosecution improperly commented on Soffar’s failure to testify with its comment about

Soffar’s failure to adduce evidence of a third party’s guilt and its claim that Soffar “didn’t

bring . . . any evidence that [he] falsely confessed to this. Id. 195

Because the prosecution’s evidence was thin and the issues of the reliability of the

confession and identity of the perpetrator were central, the court’s error was not harmless

under any standard. Chapman, 386 U.S. at 24; Anderson, 182 S.W.3d at 918-19.

Appellant’s Thirteenth Point of Error

(a) The trial court committed reversible error by refusing to instruct the jury that itshould disregard Appellant’s putative confession if the State failed to prove hewaived his right to remain silent and to counsel during custodial interrogation. (b) The trial court committed reversible error by refusing to instruct the jury todisregard Appellant’s putative confession if it found the confession untruthful. (c) The trial court committed reversible error by refusing to instruct the jury todisregard Soffar’s putative confession if it found that intoxication rendered hisconfession involuntary.(d) The trial court committed reversible error by refusing to instruct the jury todisregard Appellant’s confession if it was the fruit of an illegal police threat. (e) The trial court committed reversible error by refusing to instruct the jury not tohold against Appellant any delay in prosecuting this case. (f) The trial court committed reversible error by refusing to instruct the jury that itcould draw an adverse inference against the State if its explanation for losingimportant evidence was inadequate. (g) The trial court denied Max Soffar his constitutional right to avoid ex post factopunishment by refusing to instruct the jury on the more demanding standard ofproof for circumstantial evidence applicable at the time of the crime.

“[A] defendant is entitled to an instruction on every issue raised by the evidence,

whether produced by the State or the defendant, and whether it be strong, weak,

Defense counsel preserved these claims. (14 CR 4083-4103; 34 RR 3-11). The standard of review applied to a196

“trial court’s decision to deny a requested defensive instruction . . . [requires appellate courts to] view the evidence

in the light most favorable to the defendant’s requested submission,” rather than applying “the usual rule of appellate

deference to trial court rulings.” Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006) (emphasis added).

See also Corwin v. State, 870 S.W.2d 23, 34 n.15 (Tex. Crim. App. 1993); Moon v. State, 607 S.W.2d 569, 571197

(Tex. Crim. App. 1980); TEX. CRIM . JURY CHARGE § 12:900.14.

111

unimpeached, or contradicted.” Thompson v. State, 521 S.W.2d 621, 624 (Tex. Crim. App.

1974). Ignoring this principle, the trial committed reversible errors by refusing to instruct

the jury on the issues set forth below in violation of Soffar’s constitutional rights to

present a defense and to due process of law, as well as Texas statutory law. See U.S.

Const. amends. VI, XIV; Barker v. Yukins, 199 F.3d 867, 875-76 (6th Cir. 1999). 196

(a) The trial court committed reversible error by refusing to instruct the jury that itshould disregard Appellant’s putative confession if the State failed to prove hewaived his right to remain silent and to counsel during custodial interrogation.

TEXAS CODE OF CRIMINAL PROCEDURE Art. 38.22 § 7 requires trial judges to

instruct the jury that the prosecution must prove a defendant’s knowing, voluntary, and

intelligent waiver of his Miranda rights beyond a reasonable doubt, if the issue is raised by

the evidence. See, e.g., White v. State, 779 S.W.2d 809, 827 (Tex. Crim. App. 1989). A197

trial court’s refusal to do so when requested by the defense is reversible error. See White

v. State, 289 S.W.2d 279, 281 (Tex. Crim. App. 1956); Bandy v. State, 159 S.W.2d 507,

508 (Tex. Crim. App. 1942).

Here, the evidence clearly raised an issue as to the validity of the Soffar’s waiver of

his right to counsel and to remain silent. When the police “hit a brick wall” during

Soffar’s custodial interrogation because he refused to talk (43 RR Defense Exhibit 25),

they asked Sgt. Clawson – who knew Soffar as an informant – to persuade him to talk. (29

112

RR 182-83, 187-88). Soffar asked Sgt. Clawson a series of questions about his right to

counsel, (29 RR 114-17), and Sgt. Clawson provided “misleading” answers, Soffar, 300

F.3d at 596, including telling Soffar that it could take up to a month to get an appointed

lawyer. (29 RR 115). See also Appellant’s Tenth Point of Error.

Even if this Court should disagree with Appellant’s Tenth Point of Error, the

validity of Soffar’s purported waiver of his right to remain silent and to counsel remained

a factual issue for the jury under Texas law. Three judges on the Fifth Circuit found

Soffar’s waiver invalid, Soffar, 300 F.3d at 609-10 (DeMoss, J., dissenting), and the split

in the Fifth Circuit undeniably demonstrates that reasonable jurors could have found that

the State failed to prove that such waivers were valid beyond a reasonable doubt. The trial

court erred by refusing to submit this issue to the jury. (14 CR 4092).

Because Soffar suffered far more than “some harm” from the court’s instructional

error, and because his putative confession was the lynchpin of the prosecution’s case, this

error was not harmless under any standard. Chapman, 386 U.S. at 24; Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Reversal is required.

(b) The trial court committed reversible error by refusing to instruct the jury todisregard Appellant’s putative confession if it found the confession untruthful.

When the credibility of a defendant’s confession is central to his claim of

innocence, the jury must be permitted to pass on the credibility of the confession. See U.S.

Const. amends. VI; XIV; Crane, 476 U.S. at 690; Myre v. State, 545 S.W.2d 820, 825

See also Wilson v. State, 451 So. 2d 724, 726 (Miss. 1984) (noting defendant’s right to “have the jury pass upon198

the factual issues of [confession’s] truth and voluntariness and upon its weight and credibility”) (emphasis added)

(citation omitted).

113

(Tex. Crim. App. 1977). Failure to instruct the jury that it must find a confession “true198

[and] correct” is error. Anzaldua v. State, 502 S.W.2d 19, 23 (Tex. Crim. App. 1973).

Here, evidence of Soffar’s overall lack of credibility, his false confessions to burglarizing

the bowling alley the night before the robbery murders and to committing other robberies

with Bloomfield, and the dramatic inconsistencies between his putative confession and the

other evidence warranted such an instruction. By refusing to instruct the jury on this issue,

(9 CR 2458; 34 RR 3), the trial court deprived Appellant of his constitutional right to

present a defense, United States v. Lewis, 592 F.2d 1282, 1286 (5th Cir. 1979), and

deprived the jury of the guidance it needed to do its job. Because Soffar’s conviction is

rooted in his confession and because the court’s failure to give this instruction severely

harmed Soffar’s defense that the confession was false, the court’s error was not harmless

under any standard.

(c) The trial court committed reversible error by refusing to instruct the jury todisregard Soffar’s putative confession if it found that intoxication rendered hisconfession involuntary.

An instruction that the jury must disregard a confession rendered involuntary by

intoxication, when raised by the evidence, is crucial to a jury’s decision on voluntariness.

See, e.g., Murray v. State, 505 S.W.2d 589, 592 (Tex. Crim. App. 1974); TEX. CRIM. JURY

CHARGE. § 12.900.13. Here, the evidence clearly raised the issue of whether Soffar was

intoxicated. Soffar stated during his initial interview with Det. Schultz that he was then

114

“coming down” from a narcotic high. (30 RR 55-55). The trained police officer who

arrested Soffar stated that he had blood-shot eyes and slurred speech, and that he smelled

of alcohol. (29 RR 49-50). The officer suspected that Soffar was under the influence of

alcohol and some type of drug. (29 RR 42-43). These undisputed facts raised the issue of

intoxication. Thus, an instruction on the effect of intoxication on the voluntariness of

Soffar’s statements was required. See Thompson, 521 S.W.2d at 624. The court erred in

refusing to issue this instruction. (14 CR 4089). The error caused more than “some

harm,” Almanza, 686 S.W.2d at 171, and is not harmless under any standard. Properly

instructed, the jury could have disregarded Soffar’s initial statement on August 5, 1980,

and any fruits thereof, including his subsequent statements.

(d) The trial court committed reversible error by refusing to instruct the jury todisregard Appellant’s confession if it was the fruit of an illegal police threat.

Soffar told Det. Schultz that another officer had given him “a little verbal threat”

during his interrogation. (43 RR State’s Exhibit 1A at 22). TEXAS CODE OF CRIMINAL

PROCEDURE Art. 38.23 forbids the introduction of a confession (or any fruits thereof)

obtained through violations of Texas or federal law. Threatening a defendant to obtain a

confession violates both Texas and federal law, see. e.g., Miranda, 384 U.S. at 476, and

when evidence showing a threat is introduced, an instruction on this issue is required. See,

e.g., Patterson v. State, 847 S.W.2d 349, 351-53 (Tex. App. – El Paso 1983, pet. ref’d).

See also TEX. CRIM. JURY CHARGE § 12:900.16. Because the threat issued to Soffar

undoubtedly contributed to his decision to make a statement, the court’s erroneous refusal

Cf. Beathard v. State, 767 S.W.2d 423, 432 (Tex. Crim. App. 1989) (“Upon a timely request, a defendant who199

does not testify during the punishment phase is entitled to an instruction that the jury is not to draw any adverse

inference from his failure to testify.”).

115

to instruct the jury on this issue was reversible error under any standard.

(e) The trial court committed reversible error by refusing to instruct the jury not tohold against Appellant any delay in prosecuting this case.

Max Soffar was tried in 2006 for a 1980 crime. Because the jury might well have

improperly inferred that Soffar caused this 26-year delay, the defense requested that the

jury be instructed not to hold any delay in prosecuting the case against him. (14 CR

4086). The prosecution did not oppose this instruction, so long as the State was not

blamed for the delay. (34 RR 5-9). The trial court, however, refused this instruction. (34

RR 9). By so doing, the court created an impermissible risk of prejudice to Appellant,

denying him a fair trial on the facts in evidence. See U.S. Const. amends. VI; XIV. 199

This error was not harmless under any standard.

(f) The trial court committed reversible error by refusing to instruct the jury that itcould draw an adverse inference against the State if its explanation for losingimportant evidence was inadequate.

In Youngblood, 488 U.S. at 57-58, the Court held that the State’s loss of potentially

exculpatory evidence is not a due process violation unless the defense proves the loss was

caused by the State’s bad faith. Id. The instruction given in Youngblood informed the jury

that if it “found the State had destroyed or lost evidence, they might ‘infer that the true fact

is against the State’s interest.’” Id. at 54 (quoting trial transcript). Because the State lost or

destroyed important evidence in this case without an adequate explanation, (8 RR 325-41;

26 RR 183-87; 27 RR 90-91; 7 CR 1978), the defense requested an instruction, similar to

The Youngblood instruction is a version of standard instruction in Arizona. See, e.g., State v. Tucker, 759 P.2d200

579, 588 (Ariz. 1988) (citing State v. Willits, 393 P.2d 274 (1964)).

See Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 721-22 (Tex. 2003) (citing “roots going back to the201

English common law” and “Texas jurisprudence for over a century,” for the proposition that a “jury instruction

regarding spoliation is proper when a party has deliberately destroyed evidence or has failed to either produce

relevant evidence or explain its nonproduction”) (emphasis added).

116

the one given in Youngblood that required the jury to “weigh the explanation, if any, given

for the loss or unavailability of the evidence” and to draw an “inference unfavorable to the

State” if it found that “any such explanation [was] inadequate.” (14 CR 4102). Asking200

jurors to draw such an inference here was a legitimate defense raised by the evidence. 201

As but one example, while the State attempted to argue that Garner was confused or

suffering from amnesia during his police interviews, (28 RR 113-15; 35 RR 91), it lost

crucial evidence with a tendency to resolve this conflict – the actual tapes of Garner’s

interviews. (8 RR 35-41). Appellant should have received the benefit of a fair jury

instruction on whether the jury could infer that the tapes were favorable to the defendant if

it found the State’s explanation inadequate. The trial court’s erroneous preclusion of this

instruction denied Appellant his constitutional right to due process and to present a

defense, and was not harmless under any standard. See U.S. Const. amends. VI; XIV.

(g) The trial court denied Max Soffar his constitutional right to avoid ex post-factopunishment by refusing to instruct the jury on the more demanding standard ofproof for circumstantial evidence applicable at the time of the crime.

In Soffar’s 1981 trial, the jury was given a circumstantial evidence instruction, as

was then required under Texas law for cases like this one, built upon circumstantial

evidence. See Hankins v. State, 646 S.W.2d 191 (Tex. Crim. App. 1981) (abolishing

This Court decided Hankins in November of 1981. Soffar was convicted on March 31, 1981. 202

The facts of this case amply demonstrate why requiring all of the facts to be consistent is a higher burden of203

proof than that required in non-circumstantial cases. Given the dramatic difference between Garner’s statements and

those attributed to Soffar, the prosecution might well have failed to meet this standard in the retrial, even if it

technically met the lesser burden of merely showing proof beyond a reasonable doubt.

117

circumstantial evidence charge). The circumstantial evidence charge requires that “all202

the facts (that is, the facts necessary to the conclusion) must be consistent with each other

and with the main fact sought to be proved” and that the prosecution’s evidence “exclude,

to a moral certainty, every other reasonable hypothesis except the Defendant’s guilt.” (14

CR 4083 (quoting instruction from 1981 trial)). The trial court refused Appellant’s request

for this circumstantial evidence instruction, id., and instead told the jury to require proof

beyond a reasonable doubt, without defining that standard. (14 CR 4111).

The Ex Post Facto Clause of the United States Constitution forbids states from

applying laws which “alter[] the legal rules of evidence, and receive[] less, or different,

testimony, than the law required at the time of the commission of the offence, in order to

convict the offender.” Carmell v. Texas, 529 U.S. 513, 522 (2000) (quoting Calder v.

Bull, 3 U.S. 386, 390 (1798) (explaining U.S. Const., Art. I, § 10)). At the time of the

offense in 1980, the burden of proof for cases built solely on circumstantial evidence

required all of the facts to be consistent and the exclusion to “a moral certainty” of every

“reasonable hypothesis except the defendant’s guilt.” (14 CR 4083). Under the standard

applied at Appellant’s 2006 trial, however, the prosecution was neither required to prove

that all of the facts were consistent nor required to exclude to a moral certainty every203

reasonable hypothesis except guilt. This standard of proof is more “‘rigorous.’” Hankins,

646 S.W.2d at 198 (quoting State v. LeClair, 425 A.2d 182, 184 (Me. 1981)). The court’s

118

refusal to instruct the jury on circumstantial evidence lowered the prosecution’s burden of

proof from that required at the time of the offense, and violated the Ex Post Facto Clause

of the United States Constitution.

Because this constitutional error constituted a structural defect in the trial, reversal

is automatic. Arizona v. Fulminante, 499 U.S. 279, 309 (1991). In the alternative, the

prosecution cannot prove that the error was harmless beyond a reasonable doubt,

Chapman, 386 U.S. at 24, because it was impossible to eliminate every reasonable

hypothesis except the defendant’s guilt and to show that all of the facts are “consistent

with each other and with the main fact sought to be proved.” (14 CR 4083).

Appellant’s Fourteenth Point of Error

(a) The court deprived Appellant of his Eighth and Fourteenth Amendment rights topresent relevant mitigating evidence under a residual doubt theory by precludingevidence that Paul Reid was responsible for the Fairlanes robbery murders.(b) The court deprived Appellant of his rights under Texas law to present mitigatingevidence under a residual doubt theory by precluding evidence that Paul Reid wasresponsible for the Fairlanes robbery murders. (c) The court deprived Appellant of his constitutional rights to present powerfulmitigating evidence when it precluded the introduction of sworn affidavits fromwitnesses who had died since the first trial. (d) The court deprived Appellant of his constitutional right to present relevantmitigating and rebuttal evidence when it repeatedly precluded such evidence.

The trial court violated Max Soffar’s constitutional rights and rendered his

sentencing phase fundamentally unfair when it precluded the categories of mitigating

evidence set forth in the subheadings above.

Law of General Applicability. In Tennard v. Dretke, the Court reiterated that “a

State cannot preclude the sentencer from considering any relevant mitigating evidence that

119

the defendant proffers in support of a sentence less than death . . .” 542 U.S. 274, 285

(2004) (internal quotation marks and citation omitted)). Relevant mitigating evidence

includes “any aspect of a defendant’s character or record and any of the circumstances of

the offense that the defendant proffers as a basis for a sentence less than death.” Lockett v.

Ohio, 438 U.S. 586, 604 (1978) (plurality opinion). Once this “low threshold for

relevance is met, the ‘Eighth Amendment requires that” such evidence be admitted.

Tennard, 542 U.S. at 285 (quoting Boyde v. California, 494 U.S. 370, 377-378 (1990)).

In Green v. Georgia, after the defendant had been convicted of capital murder, he

sought during the sentencing phase to introduce a statement that his confederate had made

to a third party that he (the confederate) had alone committed the murder (i.e., without the

defendant). 442 U.S. 95, 97 (1979). The trial court precluded admission of the statement

as hearsay, and the defendant was sentenced to death. Id. The United States Supreme

Court noted that the confession was reliable, reaffirmed its holding in Chambers that the

Constitution forbids states from “‘mechanistically’” applying the hearsay rule “‘to defeat

the ends of justice,’” and held that the Constitution prohibited the State from barring use of

the confession at the defendant’s capital sentencing hearing. Green, 442 U.S. at 97

(quoting Chambers, 410 U.S. at 302). See also United States v. Fields, __ F.3d __, 2007

WL 926864, * 14 (5th Cir. Mar. 29, 2007) (holding that Confrontation Clause does not

apply to capital sentencing proceedings because of the “particular importance of

individualized sentences in capital cases[;] we will not free freeze the evidential procedure

of sentencing in the mold of trial procedure where, as here, challenged testimony is

The standard of review for the preclusion of mitigation evidence, a constitutional and legal issue not involving a204

credibility determination, is de novo. Moff, 154 S.W.3d at 601; Guzman, 955 S.W.2d at 87.

In 2003, this Court cited the plurality opinion in Franklin v. Lynaugh, 487 U.S. 164, 167 (1988), for the205

proposition that the “federal constitution does not require reconsideration by capital sentencing juries of ‘residual

doubts’ about a defendant’s guilt.” Blue v. State, 125 S.W.3d 491, 502 (Tex. Crim. App. 2003) (citing Franklin).

The Blue decision was before the Supreme Court in Guzek clarified that “Franklin did not resolve whether the

Eighth Amendment affords capital defendants such a right.” Guzek, 126 S. Ct. at 1232. Moreover, in Blue, this

Court did not address whether a defendant may introduce evidence of residual doubt or argue its significance to the

jury because the defendant in that case was permitted to do both. 125 S.W.3d at 502-03.

120

relevant only to a sentencing authority’s selection decision”) (internal quotation marks and

citation omitted). 204

(a) The court deprived Appellant of his Eighth and Fourteenth Amendment rights topresent relevant mitigating evidence under a residual doubt theory by precludingevidence that Paul Reid was responsible for the Fairlanes robbery murders.

The trial court violated Soffar’s constitutional right to present all relevant

mitigating evidence when it precluded him from introducing evidence that Paul Reid

committed the bowling alley murders at the sentencing phase of Soffar’s trial – including

Reid’s admission to shooting four people in a bowling alley on Route 290 and his modus

operandi in crimes strikingly similar to the Fairlanes robbery murders. (37 RR 38-41).

The Supreme Court recently left open whether capital defendants have a

constitutional right to introduce residual doubt evidence at sentencing. Oregon v. Guzek,

546 U.S. 517, 126 S. Ct. 1226 (2006). In Guzek, the Court declined to answer that205

question because, inter alia, the defendant had an opportunity to present the evidence

during the guilt phase but did not do so. Id. at 1233. By contrast, Soffar was prohibited

from introducing the Reid evidence at the guilt phase of his trial. See Appellant’s First,

Second, and Third Points of Error, supra. Thus, Soffar’s case squarely presents the

question left open in Guzek. The answer must be that defendants have a constitutional

Like the unconstitutionally-precluded evidence in Green, 442 U.S. at 97, the Reid evidence the defense sought to206

introduce was reliable. Appellant incorporates by reference all of the previous arguments demonstrating its

reliability and admissibility, set forth in Appellant’s First, Second, and Third Points of Error, as though set forth

completely in the present point of error.

See also Linda E. Carter, Harmless Error in the Penalty Phase of a Capital Case: A Doctrine Misunderstood207

and Misapplied, 28 Ga. L. Rev. 125, 149 (1993); Louis D. Bilionis, Moral Appropriateness, Capital Punishment,

and the Lockett Doctrine, 82 J. Crim. L. & Criminology 283, 316-326 (1991) (explaining that Lockett violation can

never be harmless). See also State v. Kleypas, 40 P.3d 139, 272-73 (Kan. 2001) (similar), overruled on other

grounds, State v. Marsh, 102 P.3d 445 (Kan. 2004), rev’d on other grounds, Kansas v. Marsh, 544 U.S. 1060

(2006). Although this Court recently indicated that the preclusion during the sentencing phase of relevant mitigation

121

right to present reliable evidence of innocence at the sentencing phase when the defense

was unable to present such evidence during the guilt phase, through no fault of its own.

Any other rule would violate the Eighth Amendment and offend “the evolving standards

of decency that mark a maturing society,” Roper v. Simmons, 543 U.S. 551, 561 (2005).

Under the constitution, capital defendants must be allowed to introduce reliable206

evidence tending to establish residual doubt during capital sentence proceedings if they

attempted and were unable to introduce the evidence at the guilt phase. This rule,

moreover, is constitutionally required in Texas where, to secure a sentence of death, the

state must prove future dangerousness, i.e. that “there is a probability that the defendant

would commit criminal acts of violence that would constitute a continuing threat to

society.” TEX. CODE CRIM. PROC. Art. 37.071, § 2 (b)(1). Any evidence offered by the

defense tending to disprove such future dangerousness – including evidence that the

defendant was not guilty – would certainly be relevant and admissible in a Texas

sentencing proceeding. Skipper v. South Carolina, 476 U.S. 1, 5 n.1 (1986).

This Court should hold under the federal constitution that the preclusion of relevant

mitigation evidence in a capital sentencing hearing is structural error and can never be

harmless. See Nelson v. Quarterman, 472 F.3d 287, 314-15 (5th Cir. 2006). See also207

evidence can be harmless, Halprin v. State, 170 S.W.3d 111, 116 (Tex. Crim. App. 2005), it did so without any

analysis of this question and only as an alternative holding to the primary holding that the preclusion of the

mitigation evidence was not error. Accordingly, the persuasive authorities cited above, including the recent Fifth

Circuit decision cited in the text, and not Halprin, should be followed.

See, e.g., Smith v. Black, 904 F.2d 950, 968-69 (5th Cir. 1990); United States v. Honken, 378 F. Supp. 2d 1040,208

1041 (N.D. Iowa 2004) (and cases cited therein); United States v. Davis, 132 F. Supp. 2d 455 (E.D. La. 2001)

(same); State v. Webb, 680 A.2d 147, 188-189 (Conn. 1996); Barnes v. State, 496 S.E.2d 674, 688 (Ga. 1998)

(holding that “evidence that concerns the defendant’s guilt or innocence cannot be excluded by the trial court, even

though a guilty verdict has already been rendered in the guilt/innocence phase”); State v. Hartman, 42 S.W.3d 44,

53-56 (Tenn. 2001) (reversing defendant’s death sentence due to preclusion of residual doubt evidence). See also

Recommendation 2, Chap. VII, Duty of Judge and Role of Jury, Mandatory Justice: Eighteen Reforms to the Death

Penalty, The Constitution Project, (judge should instruct jury that it may consider lingering doubt as mitigating

factor) (http://pewforum.org/deathpenalty/resources/reader/23.php3) (last visited April 19, 2007); Stephen P.

Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think?, 98 Colum. L. Rev. 1538, 1563

(1998) (demonstrating that “‘[r]esidual doubt’ over the defendant’s guilt is the most powerful ‘mitigating’ fact’” for

juries considering a death sentence).

122

U.S. Const. amends. VIII; XIV; Tex. Const. Art. I, §§ 10, 13. In the alternative, because

the State cannot prove beyond a reasonable doubt that the jury would have sentenced

Soffar to death if it had known about the Reid evidence, his death sentence must be set

aside. Chapman, 386 U.S. at 24.

(b) The court deprived Appellant of his rights under Texas law to present mitigatingevidence under a residual doubt theory by precluding evidence that Paul Reid wasresponsible for the Fairlanes robbery murders.

In the alternative, this Court should hold under Texas statutory and constitutional

law that residual doubt evidence is admissible at the sentencing phase of a capital trial.

See Tex. Const. art I, §§ 10, 13, 19; TEX. CODE. OF CRIM. PROC. 37.0711 § 3 (e). This

Court is not bound by the Supreme Court’s decisions on the issue of residual doubt, see

Hulit, 982 S.W.2d at 437, and should follow numerous of its sister jurisdictions in

allowing defendants to present residual doubt evidence in mitigation. Texas’s interests208

in minimizing the possibility of executing an innocent person would be served by

permitting residual doubt evidence at capital sentencing trials under Texas law. This

http://pewforum.org/deathpenalty/resources/reader/23.php3

The affidavit establishes that Soffar’s original trial attorneys never contacted Amdur. (7 CR 2120).209

Soffar objected on Sixth, Eighth and Fourteenth Amendment grounds to the prosecution seeking the death210

penalty twenty-six years after the crime because crucial witnesses, including Carl Amdur and Zelda Soffar, had died.

(2 CR 500, 532-44). The trial court overruled this objection. (9 RR 19-20). See also Appellant’s Twenty-Second

Point of Error (proffer brief).

In other contexts, this Court has generally viewed sworn affidavits as reliable evidence. See Cates v. State, 120211

S.W.3d 352, 355 (Tex. Crim. App. 2003) (setting forth requirement for evidentiary hearing on validity of warrant).

123

Court should set aside Soffar’s death sentence because the exclusion of the Reid evidence

cannot be deemed harmless under any standard.

(c) The court deprived Appellant of his constitutional rights to present powerfulmitigating evidence when it precluded the introduction of sworn affidavits fromwitnesses who had died since the first trial.

Had Zelda Soffar been alive for her son’s retrial in 2006, she would have testified at

the sentencing phase about Soffar’s psychological, toxin-sniffing, and academic problems,

important information which ineffective counsel did not elicit in the first trial. (45

Defense Punishment Exhibit 14 (affidavit of Ms. Soffar)). Carl Amdur, Soffar’s maternal

uncle, was also dead by the time of the retrial and had similarly executed an affidavit209

about Soffar’s difficult upbringing, psychological problems, and toxin sniffing as a child.

(45 Defense Punishment Exhibit 12)). The trial court violated Appellant’s constitutional210

rights by refusing his request to introduce these witnesses’ sworn affidavits into211

evidence during the sentencing phase. (40 RR 64; 45 Def. Punishment Exhibits 12-13).

See U.S. Const. amends. VI, VIII, XIV.

Rigid application of the hearsay rule cannot be used to block relevant hearsay

evidence. Wiggins, 539 U.S. 510, 537 (2004); Green, 442 U.S. at 97. Moreover, due

process of law and basic fairness demand an equitable solution when a litigant is unable to

Cf. Keeter v. State, 74 S.W.3d 31, 36-37 (Tex. Crim. App. 2002) (noting that new trial for newly discovered212

evidence is warranted, inter alia, whenever that evidence was unknown or unavailable through due diligence at the

time of trial).

See Renteria v. State, 206 S.W.3d 689, 697-98 (Tex. Crim. App. 2006) (holding that “with the State having213

opened the door to appellant’s remorse evidence, the exclusion of [his hearsay expression of remorse] violated due

process by preventing appellant from rebutting the State’s evidence and argument that appellant was unremorseful”

and citing, inter alia, Skipper v. South Carolina, 476 U.S. 1, 9-15 (1986) (Powell, J., concurring) (finding reversible

error because the defendant “was not allowed to rebut evidence and argument used against him”) (internal quotes

omitted)).

124

protect his rights through no fault of his or her own. Max Soffar was on trial for his life212

twenty-six years after the crime and, through no fault of his own, was unable to present

crucial mitigation evidence via the testimony of live witnesses. Basic notions of fairness,

due process of law, and the Eighth Amendment required that the court afford him an

alternative opportunity to present this evidence. Thus, the court’s rulings violated

Appellant’s constitutional rights. The preclusion of relevant mitigation evidence

constitutes structural error and can never be harmless. See Nelson, 472 F.3d at 314-15. In

the alternative, because the precluded mitigation evidence was crucial to Soffar’s defense

against the death penalty, the court’s error was not harmless beyond a reasonable doubt.

Chapman, 386 U.S. at 24.

(d) The court deprived Appellant of his constitutional right to present relevantmitigating and rebuttal evidence when it repeatedly precluded such evidence.

A capital defendant has a constitutional right to present mitigating evidence.

Moreover, when the State creates a false impression about an issue relevant to capital

sentencing, the defense must be permitted to rebut the State’s claim, even if the defense

may only do so through hearsay evidence and even if the defense does not have a Eighth

Amendment right to present the evidence. The trial court violated these basic precepts,213

and the Eighth and Fourteenth Amendments, by repeatedly blocking Soffar’s attempts to

Although the probation officer was trained and much more familiar with mental health issues than lay persons, it214

is perfectly permissible even for lay witnesses with personal knowledge to testify that another person appeared

mentally ill or insane. See, e.g., Bigby v. State, 892 S.W.2d 864, 888-89 (Tex. Crim. App. 1994); Pacheco v. State,

757 S.W.2d 729, 733 (Tex. Crim. App. 1988) (citations omitted).

Soffar objected on Sixth, Eighth and Fourteenth Amendment grounds to the prosecution seeking the death215

penalty twenty-six years after the crime because crucial mitigating evidence had been lost and crucial witnesses,

including Rabbi Ted Sanders, had died. (2 CR 499, 534). Thus, he had no other means of introducing evidence

about his rabbi. Moreover, evidence of Soffar’s feelings about his sentence of death was not offered for the truth of

the matter asserted but to show his inherent humanity. In any event, under Green, 442 U.S. at 97, the hearsay rule

did not trump Soffar’s Due Process and Eighth Amendment right to present this relevant mitigating evidence.

125

introduce relevant mitigating evidence and evidence introduced to rebut the prosecution’s

case for death:

• 36 RR 98-100 (precluding testimony from probation officer trained in rehabilitation andtreatment that Appellant needed in-house psychiatric treatment as a child); 214

• 37 RR 36-37; 14 CR 4122-23 (precluding evidence that the State’s method of executionwould cause undue pain and suffering by using a three-drug protocol previously outlawed for the euthanasia of animals);

• 38 RR 46-47 (precluding testimony from Soffar’s cousin concerning whether Soffar hadcontact with his rabbi and Soffar’s feeling about his sentence of death);215

• 38 RR 52-53 (precluding testimony about conditions at Austin State Hospital, whereSoffar was hospitalized as a child, including details about its cockroach infestation);

•38 RR 75 (precluding testimony that Soffar’s admission records at Gulf Coast TradeCenter reflected heroic acts by Soffar prior to his admission), see Green, 442 U.S. at 97;

•38 RR 109-10 (precluding testimony offered under residual doubt defense, see subpoints(a) & (b), supra, from trained police officer that police can impart information to suspectsabout a crime through interrogation);

• 38 RR 118 (precluding testimony from Soffar’s sister, who attended school with him,about his poor performance in elementary school);

• 38 RR 130 (precluding testimony from Soffar’s sister concerning why he did not learnfrom his mistakes as well as she did);

• 38 RR 160 (precluding testimony from Soffar’s sister concerning why she did better inschool than he did);

See TEX. R. EVID . 705 (a) (allowing experts to disclose underlying facts or data supporting their opinion). See216

also TEX. R. EVID . 703 (allowing experts to base opinions on otherwise inadmissible evidence if of the type

reasonably relied upon by an expert in that field).

See Executed Offender Information (http://www.tdcj.state.tx.us/statistics/deathrow/executed/dmochete.jpg (last217

checked April 19, 2007)).

126

• 39 RR 8 (precluding testimony from Austin State Hospital worker that hospital was likea “bad dream”);

• 39 RR 12-13 (precluding testimony about conditions of children placed in punitive “quietroom,” in which Soffar had also been placed);

• 39 RR 20 (precluding testimony of child-care worker who had cared for Soffar on whySoffar had picked fights with larger children);

• 39 RR 31-32 (precluding testimony from child-care worker that children could have beentreated better in Austin State Hospital in that the hospital could have “quit locking kidsnaked in . . . solitary confinement . . . [and begun] feed[ing] them good”);

• 39 RR 94 (precluding testimony from nun who ministered to prisoners about lettersSoffar wrote to her indicating his spirituality and redeeming characteristics);

• 39 RR 96-102 (precluding use during mental health expert’s testimony of chartsummarizing toxins Soffar ingested as a child, which was derived from medical records,prior testimony and affidavits of people with personal knowledge, and which was reliedupon by expert in forming in her opinion, and precluding testimony about such toxin useas hearsay); 216

• 39 RR 156 (precluding expert testimony about the relationship of Soffar’s therapeuticneed for structure and his work as a police informant);

• 39 RR 228-29 (precluding mental-health expert testimony on the type of parentingneeded by a “child with attention deficit hyperactive disorder”);

• 39 RR 266-67 (precluding testimony by former Texas Department of Criminal Justice(TDCJ) official that notorious inmate James Dumachete, who was housed with Soffarwhen Soffar was alleged to have possessed shanks in prison, was a violent inmate on deathrow for killing two men, and later killed a fellow inmate with a knife);217

•39 RR 267-69 & 273 (precluding testimony to rebut evidence elicited by prosecution thatSoffar had a prison disciplinary charge for an “escape attempt,” including expert testimonyfrom former TDCJ official: (1) about the types of conduct which can lead to such a charge;(2) that the charge did not mean that Soffar tried to escape (but rather that he was merely

The defense certainly had a due-process right to rebut the prosecution’s assertion that Soffar had attempted to218

escape. Renteria, 206 S.W.3d at 697-98. Moreover, to the extent that any portion of the expert’s testimony is

deemed hearsay, it was “invited hearsay.” See id. at 698 n.6 (citing Kipp v. State, 876 S.W.2d 330, 337, n.11 (Tex.

Crim. App. 1994) (discussing rule of optimal completeness as example of invited hearsay). See also Motion for a

New Trial (14 CR 4185-98) (discussing same doctrine).

127

out of place) and (3) that the attempted escape charge was never sustained);218

• 40 RR 32-33 (precluding evidence concerning Soffar’s correspondence with his wifefrom which the jury could have inferred his strong relationship with his wife, hisredeeming qualities and inherent humanity).

As established, supra, the preclusion of this evidence constitutes structural error

and can never be harmless. Alternatively, because the mitigating and rebuttal evidence

precluded by the trial court was crucial to Soffar’s defense against the death penalty, the

court’s error was not harmless beyond a reasonable doubt. Chapman, 386 U.S. at 24.

Appellant’s Fifteenth Point of Error

The trial court violated Appellant’s constitutional and statutory rights by allowingvictim impact evidence related to a victim not named in the indictment.

For purposes of admissible victim impact testimony, a victim is the person named

in the indictment. See Cantu v. State, 939 S.W.2d 627, 637 (Tex. Crim. App. 1997). In

Cantu, this Court stated that impact evidence about a victim not named in the indictment

“serves no purpose other than to inflame the jury” and “that such evidence is irrelevant . . .

in the context of the special issues under Art. 37.071.” See also Haley v. State, 173

S.W.3d 510, 518 (Tex. Crim. App. 2005) (precluding victim impact testimony about a

victim of an extraneous offense); see also Tex. Code Crim. Proc. 37.0711. Here, Soffar

was convicted of the capital murder of Ms. Felsher, and was not charged with or convicted

of the murder of Mr. Sims. By allowing impact evidence related to Mr. Sims over defense

128

counsel’s objection. (40 RR 43), the trial court violated Soffar’s constitutional rights to a

fair and reliable sentencing hearing. See U.S. Const. amends. VIII, XIV.

The testimony of Mr. Sims’s widow, Brenda Moebius, was highly prejudicial to the

defense. A young wife and mother of a one year-old at the time of Mr. Sims’s death, Mrs.

Moebius described Mr. Sims as follows:

He was a very kind person, very fun loving. When he was in high school he was onthe football team and the track team. . . . He [had been] a member of the StudentsParks and Recreation Society and in fact when [our son] was born [he] became theyoungest honorary member cause his dad would take him up there to the meetings andplay with him and be very active with him. He was just – he was my best friend; notonly my husband but my best friend.

(40 RR 43-44). Unlike in Cantu, 939 S.W.2d at 637, where, “the State did not even

mention [the victim impact testimony], much less emphasize it,” the State emphasized the

Sims victim impact evidence in summation. See also (41 RR 47, 57 (“Steve Sims never

got to see his son graduate, marry and [sic] him Steve become a [g]randfather.”)). Thus,

the prosecution cannot now prove that the introduction of this irrelevant and prejudicial

victim-impact evidence was harmless under any standard. Cantu, 939 S.W.2d at 637

(applying constitutional harmless error standard). See also Chapman, 386 U.S. at 24.

Appellant’s Sixteenth Point of Error

(a) The trial court committed reversible errors by refusing Appellant’s charge thatthe jurors could not give “no weight” to the mitigating circumstances they found andby charging them that “[i]f you find that there are any mitigating circumstances inthis case, you must decide how much weight they deserve, if any . . . ”(b) The trial court committed reversible error by charging the jurors that they haddiscretion to decide whether a circumstance was mitigating. (c) The trial court committed reversible error by charging the jurors that a “yes”vote to Special Issue Four required ten votes.

Standard of Review applying to all subpoints. A “reviewing court must [first] determine whether the jury219

charge contains error. Second, the court must determine whether sufficient harm resulted from the error to require

reversal.” Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998). “The standard to determine whether

sufficient harm resulted from the charging error to require reversal depends upon whether appellant objected. Where

there has been a timely objection made at trial, an appellate court will search for only ‘some harm.’ By contrast,

where the error is urged for the first time on appeal, a reviewing court will search for ‘egregious harm.’” Abdnor v.

State, 871 S.W.2d 726, 731, 732 (Tex. Crim. 1994). To the extent that the Court finds any of these requests

unpreserved, counsel's assistance was constitutionally ineffective. See Appellant’s Twentieth Point of Error, infra.

129

(d) The trial court committed reversible error by charging the jurors that theiranswer to Special Issues One, Two, and Three, which presented factual questions,“should reflect an individualized determination by each juror of the personalculpability of the defendant.”(e) The trial court committed reversible error by denying the Appellant’s writtenand oral objections to the court’s charge and verdict form on the ground that theindictment did not allege special issues one, two and three.(f) The trial court committed reversible error by charging the jury on special issuethree (i.e., future dangerousness). (g) The trial court committed reversible error by failing to instruct the jury todisregard victim impact evidence not shown to be within the knowledge orreasonable expectation of the defendant.(h) The trial court committed reversible error by refusing to charge on residualdoubt as mitigating evidence.

As shown below, the trial court’s charge at Soffar’s penalty phase contained

numerous errors which, individually and cumulatively, violated his rights under the Sixth,

Eighth and Fourteenth Amendments to the U.S. Constitution, Article 1, §§ 10, 3, 3a, 13,

15 and 19 of the Texas Constitution, and this Court’s decisions.219

(a) The trial court committed reversible errors by refusing Appellant’s charge thatthe jurors could not give “no weight” to the mitigating circumstances they found andby charging them that “[i]f you find that there are any mitigating circumstances inthis case, you must decide how much weight they deserve, if any . . . ”

The trial court committed reversible error by failing to give Appellant’s proposed

instruction charging the jurors that they could not give the mitigating circumstances found

by them “no weight.” (7 CR 2522; 40 RR 62). The trial court also committed reversible

Appellant preserved his objection to the error by proposing an instruction containing a correct statement of the220

law. See TEXAS CODE OF CRIM . PROC. Article 36.15; Chapman v. State, 921 S.W.2d 694, 695 (Tex. Crim. App.

1996); Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App.1996) (holding that preservation of error relating to

defensive issue in jury charge is made by objection or submission of requested charge to court).

130

error by charging the jurors: “[i]f you find that there are any mitigating circumstances in

this case, you must decide how much weight they deserve, if any . . .” (14 CR 4155).220

Under the Eighth Amendment, although jurors may decide what weight to give a

mitigating circumstance, “they may not give it no weight by excluding such evidence from

their consideration.” See Eddings v. Oklahoma, 455 U.S. 104, 114-115 (1982) (emphasis

added)). The trial court’s errors caused Soffar “some harm” – indeed, egregious harm – by

unconstitutionally informing the jurors that they did not have to give any weight to his

proven mitigating circumstances. Reversal is required.

(b) The trial court committed reversible error by charging the jurors that they haddiscretion to decide whether a circumstance was mitigating.

The trial court erroneously informed the jurors that “[a] mitigating circumstance

may include, but is not limited to, any aspect of the defendant’s character, background or

record or a circumstance of the crime that you believe could make a life sentence

appropriate in this case” and that “[y]ou shall consider mitigating evidence to be any

evidence that a juror might regard as justifying a life sentence.” (14 CR 4154-4156). In

other words, the trial court informed the jurors that they were legally entitled to decide

whether Max Soffar’s mitigating evidence was mitigating. The prosecutor, in closing

argument, made the same error. See (41 RR 10-11).

The Eighth Amendment gives jurors no such discretion. The United States

Supreme Court’s “cases have established that the sentencer may not be precluded from

Special Issue Four in the verdict form asked the jury to consider whether sufficient “mitigating circumstance or221

circumstances [existed] to warrant that a sentence of life imprisonment rather than a death sentence be imposed?”

(14 CR 4166).

131

considering, and may not refuse to consider, any constitutionally relevant mitigating

evidence.” Buchanan v. Angelone, 522 U.S. 269, 276 (1998) (emphasis added) (citations

omitted). Indeed, the Court has held that such mitigating circumstances as a defendant’s

troubled childhood (Eddings, supra) and drug use (Roberts v. Louisiana, 431 U.S. 633,

637 (1977)) are mitigating under the Eighth Amendment, that “evidence of good conduct

in jail …is …by its nature relevant to the sentencing determination,” and that impaired

intelligence is inherently mitigating.” Tennard, 542 U.S. at 285, 287 (citing Skipper, 476

U.S at 5). Here, Appellant presented inherently mitigating evidence of impaired

intelligence, a troubled childhood, drug addiction, and good conduct in jail.

Thus, the trial court committed errors by misinforming jurors that they could refuse

to treat Soffar’s mitigating evidence as mitigating. The error caused him egregious harm

by permitting the jury to refuse to consider mitigation. Reversal is required.

(c) The trial court committed reversible error by charging the jurors that a “yes”vote to Special Issue Four required ten votes.

As Appellant objected below (14 CR 4139), the trial court’s charge that at least ten

jurors had to agree that the answer to Special Issue Four was “yes” before the jury could221

find this issue violated his rights under the Sixth, Eighth, and Fourteenth Amendments,

which require that “each juror . . . be allowed to consider all mitigating evidence . . .[and

that] such consideration . . . may not be foreclosed by one or more jurors’ failure to find a

mitigating circumstance.” McKoy v. North Carolina, 494 U.S. 433, 443 (1990) (citing

132

Mills v. Maryland, 486 U.S. 467 (1988)). But see Rousseau v. State, 855 S.W.2d 666, 687,

n.26 (Tex. Crim. App. 1993) (rejecting this claim).

The error clearly was not harmless because the jury was unconstitutionally misled

about whether a single juror could find and give effect to Appellant’s mitigating

circumstances. Therefore, Soffar must receive a new punishment trial.

(d) The trial court committed reversible error by charging the jurors that theiranswer to Special Issues One, Two, and Three, which presented factual questions,“should reflect an individualized determination by each juror of the personalculpability of the defendant.”

Special Issues One, Two, and Three in the verdict form required the jury to answer

three factual questions: (1) whether Appellant’s “conduct . . . that caused the death of

Arden Alane Felsher was committed deliberately and with the reasonable expectation that

the death . . . would result?”; (2) whether the appellant “actually caused the [the victim’s]

death . . . , or if [not whether] he intended to kill Arden Alane Felsher or another or that he

anticipated that a human life would be taken?”; and (3) whether “there is a probability that

the defendant . . . would commit criminal acts of violence that would constitute a

continuing threat to society?” (14 CR 4160-65).

Despite the factual nature of these questions, the trial court charged the jurors that

“[y]our answers to the special issues should reflect an individualized determination by

each juror of the personal culpability of the defendant.” (14 CR 4156). This charge

lessened the state’s burden of proving the factual questions presented by special issues

one, two, and three beyond a reasonable doubt, as required by TEXAS CODE OF CRIMINAL

See Lanier Mem’l Hosp. v. Andrews, 809 So. 2d 802, 806-07 (Ala. 2001) (reversing because trial court’s222

“statement did not contain the elements of the action” before the jury but instead “ introduced extraneous elements

and an extraneous duty that was not at issue”) (emphasis added); Martin v. State, 553 S.E.2d 827, 829 (Ga. Ct.

App. 2001) (forbidding “deliberate introduction of extraneous issues”). Cf. Stirone v. U.S., 361 U.S. 212 (1960)

(reversing conviction for obstruction of interstate commerce under the Hobbs Act, 18 U.S.C. § 1951, because the

indictment was improperly amended and the offense charged was impermissibly enlarged by the trial court’s jury

instructions); United States v. Milstein, 401 F.3d 53, 65 (2nd Cir. 2005) (“When the trial evidence or the jury charge

operates to broaden the possible bases for conviction from that which appeared in the indictment, the indictment has

been constructively amended. . . . Constructive amendment is a per se violation of the Fifth Amendment.”) (internal

quotation marks, brackets and citations omitted).

133

PROCEDURE Article 37.071, by the Sixth, Eighth, and Fourteenth Amendments to the

United States Constitution and by Article 1, Sections 10, 3, 3a, 13, 15 and 19 of the Texas

Constitution. See Ring v. Arizona, 536 U.S. 584, 609 (2002); Apprendi v. New Jersey, 530

U.S. 466, 477 (2000); Walton v. Arizona, 497 U.S. 639, 650 (1990) (statute may not

“lessen the State’s burden to prove every element of the offense charged, or in this case to

prove the existence of aggravating circumstances . . .”), rev’d on other grounds, Ring v.

Arizona, supra. That is, the instruction allowed the State to meet its factual burden with

irrelevant evidence regarding the defendant’s “personal culpability.”

Additionally, the instruction charged the jury to decide an extraneous issue not

contained in TEX. CODE OF CRIM. PROC. Art. 37.071. By its terms, this statute does not

permit the jury to decide the three special issues based upon “an individualized

determination by each juror of the personal culpability of the defendant.” Thus, the charge

was contrary to the intent of the Texas Legislature, infected the jury’s deliberative process

with an issue extraneous to the statute, and requires reversal. Moreover, the charge222

permitted the jurors to decide the three issues through consideration of highly irrelevant

evidence (i.e., the defendant’s personal culpability) in violation of Texas Rules of

Evidence 401, 403 and 404, and due process. See McKinney v. Rees, 993 F.2d 1378, 1379

134

(9th Cir. 1993) (introduction of irrelevant evidence can violate due process).

The error caused Soffar egregious harm because the charge lessened the State’s

burden of proving the three issues, interjected an extraneous issue, and allowed

consideration of irrelevant evidence. Reversal is required.

(e) The trial court committed reversible error by denying the Appellant’s writtenand oral objections to the court’s charge and verdict form on the ground that theindictment did not allege special issues one, two and three.

The trial court committed reversible error by denying Appellant’s written and oral

objections to the court’s jury charge and verdict form regarding special issues one, two,

and three. See (1 CR 264-278; 6 RR 127-130; 14 CR 4141, 4147; 40 RR 62-63). As

Appellant argued below, his indictment was legally deficient because it did not contain

grand jury findings of these special issues. See Tex. Const. Art I, § 10; Ring v. Arizona,

536 U.S. 584 (2002); Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v.

Washington, 542 U.S. 296 (2004). But see Russeau v. State, 171 S.W.3d 871, 886 (Tex.

Crim. App. 2005) (holding that neither Apprendi nor Ring requires the state to allege

special issues in indictment), cert. denied, 126 S. Ct. 2982 (2006).

Under Article 1, § 10, in general, a criminal defendant need not “answer for a

criminal offense, unless on an indictment of a grand jury.” Under TEXAS CODE OF

CRIMINAL PROCEDURE Article 37.0711, a capital defendant can receive a death sentence

only if his jury finds the requisite special issues. Therefore, before the State may seek a

death sentence at a capital trial, a grand jury must find all charged special issues because

such issues (most often labeled aggravating factors) are “the functional equivalent of an

Because of Ring, federal courts now agree that aggravating circumstances must be found by a grand jury under223

the Fifth Amendment. See, e.g., United States v. Allen, 406 F.3d 940, 943 (8th Cir. 2005) (en banc).

In Sattazahn v. Pennsylvania, 537 U.S. 101, 111 (2003), the Court ruled that “if the existence of any fact (other224

than a prior conviction) increases the maximum punishment that may be imposed on a defendant, that fact – no

matter how the State labels it – constitutes an element, and must be found by a jury beyond a reasonable doubt.”

135

element of a greater offense.” Ring v. Arizona, 536 U.S. 584, 609 (2002) (internal

quotation marks omitted). In Ring, the Court held that statutory aggravating factors223

making a defendant death eligible are elements of the charged capital offense. See also224

State v. Fortin, 843 A.2d 974, 1033-35 (N.J. 2004) (holding that New Jersey Constitution

requires aggravating factors to be submitted to a grand jury in a capital case).

This Court must remand this case for imposition of a life sentence because the

State’s error in failing to obtain an indictment charging the special issues cannot be subject

to harmless error analysis and, even if it can be, the State cannot prove the error harmless

beyond a reasonable doubt. See United States v. Resendiz-Ponce, 425 F.3d 729 (9 Cir.th

2005), rev’d on other grounds, __ U.S. __, 127 S. Ct. 782 (2007). Alternatively, this

Court should remand to allow the State to attempt to obtain a grand jury indictment

charging the requisite special issues. If the State were to obtain such an indictment, then

the Appellant would be subject to another punishment trial.

(f) The trial court committed reversible error by charging the jury on special issuethree (i.e., future dangerousness).

The trial court committed reversible error by overruling Appellant’s objection to

charging the jury that it had to find beyond a reasonable doubt a “reasonable probability

that the defendant would commit criminal acts of violence that would constitute a threat to

society.” TEX. CODE CRIM. PROC. Art. 37.0711 (3)(b)(2). See (1 CR 250-63; 6 CR 117-20;

136

40 RR 62-63). Appellant correctly argued that this instruction diluted the reasonable

doubt standard. Id. See also Ring, 536 U.S. at 609; Apprendi, 530 U.S. at 477, and

Blakely v. Washington, 542 U.S. 296 (2004). But see Rayford v. State, 125 S.W.3d 521,

534 (Tex. Crim. App. 2003) (rejecting this claim).

In Cage v. Louisiana, 498 U.S. 39, 41 (1990) (per curiam), the Supreme Court held

that jury instructions violate due process when they dilute the state’s burden of proving

every element beyond a reasonable doubt. In Estelle v. McGuire, 502 U.S. 62, 72 (1991),

the Court held that the proper inquiry is whether there is a reasonable likelihood that the

jury applied the challenged instruction unconstitutionally.

Thus, the question here is whether there is a reasonable likelihood that the jury

applied the challenged instruction in a manner that diluted the State’s burden. There

clearly is. When non-lawyer jurors are faced with an illogical instruction like the one

mandated by Article 37.0711, they would naturally focus on the more familiar concept of

probability, to the detriment of a less familiar, legal term of art like “reasonable doubt.”

Moreover, non-lawyer jurors (and many lawyers) would find it impossible to figure out

how they were to determine if they were persuaded beyond a reasonable doubt that

something is more likely than not. Indeed, determining beyond a reasonable doubt that

something is more likely than not is an oxymoron. The end result is a reasonable

likelihood that jurors would answer yes to the future danger special issue if they were

merely persuaded that it was more likely than not that the defendant would be a danger in

the future. And that would substantially dilute the State’s burden of proving this issue

137

beyond a reasonable doubt.

The trial court erred by overruling Appellant’s objections to this instruction. The

State cannot prove the error harmless beyond a reasonable doubt. Reversal is required.

(g) The trial court committed reversible error by failing to instruct the jury todisregard victim impact evidence not shown to be within the knowledge orreasonable expectation of the defendant.

Over defense objection, the trial court failed to instruct the jury to disregard victim

impact evidence not shown to be within the knowledge or reasonable expectation of the

defendant. (14 CR 4145; 40 RR 62). The court’s failure was reversible error. See U.S.

Const. amends. V, VI, VIII, XIV; Payne v. Tennessee, 501 U.S. 808, 845 (1991) (Marshal,

J., dissenting) (arguing that introduction of victim impact evidence outside the knowledge

or reasonable expectation of defendant violates the Eighth Amendment); Tex. Const. Art.

1, §§ 3, 3a, 10, 13, 15, 19.

In Salazar v. State, 90 S.W.3d 330 (Tex. Crim. App. 2002), this Court upheld the

admissibility of victim impact evidence “when that evidence has some bearing on the

defendant’s personal responsibility and moral culpability.” Id. at 335 (citing Mosley v.

State, 983 S.W.2d 249, 261-62 (Tex. Crim. App. 1998) (emphasis added)). In other

words, victim impact evidence is relevant only insofar as it has some bearing on the

defendant’s personal responsibility and moral culpability. If the defendant had no

knowledge or reasonable expectation of the character of the victim or of the impact of the

death on the survivors, the evidence does not speak to his personal responsibility and

moral culpability. The trial court’s failure to so instruct the jury was not harmless.

This Court is not bound by the Supreme Court’s decisions on the issue of residual doubt. Hulit, 982 S.W.2d at225

437. Cf. note 208, supra (collecting cases in which state courts allowed residual doubt evidence under state law).

138

(h) The trial court committed reversible error by refusing to charge on residualdoubt as mitigating evidence.

Appellant requested an instruction that the jury could consider any residual doubt

about his guilt as a mitigating circumstance. (2 CR 401-405; 8 RR 59). The court

committed reversible error by refusing the instruction.

As Appellant argued below, see id., he had a right under Texas law to this

instruction. See Tex. Const. art 1, §§ 10, 13, 19, 29; TEX. CODE. OF CRIM. PROC. 37.0711

§ 3 (e) (requiring capital sentencing juries to determine whether “sufficient mitigating

circumstance or circumstances [exist] to warrant a sentence of life imprisonment,”

including “the circumstances of the offense”). This Court should find as a matter of state

law that capital defendants have a right to a residual doubt instruction. Texas has a225

compelling interest in minimizing the possibility of executing an innocent person.

Permitting jurors to consider residual doubt when deciding whether a defendant should be

executed will serve this crucial interest. This Court should reverse.

Appellant’s Seventeenth Point of Error

(a) The trial court committed reversible error under the common law and thisCourt’s case law when it reassembled the jury to render a verdict after dismissal.(b) The trial court’s reassembly of the jury violated Appellant’s federal and stateconstitutional rights to due process of law, to be free of cruel and unusualpunishment and against double jeopardy.(c) In the alternative, this Court should order an evidentiary hearing on any facts itdeems in dispute and dispositive of the issue.

Factual Background. After a death verdict was read, the jurors were individually

See TEXAS CODE CRIM . PROC. Art. 36.29 (a) (“Not less than twelve jurors can render and return a verdict in a226

felony case. It must be concurred in by each juror and signed by the foreman.”).

See also (15 CR 4678) (docket sheet noting that the “jury was [] released from any further duties” and then227

“brought . . . back into open court [for court] to admonish them to complete the jury . . . [and] was seated again [to]

turn[] over the completed charge”).

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polled and stated unanimous agreement with it. (42 RR 4-5). The trial court ordered that

Appellant be delivered to State prison and “confined until the date of execution is

imposed.” Id. at 6. The trial court then discharged the jury: “Ladies and Gentlemen

you’re now released from the instructions of the Court and . . . you’re free to go.” Id. The

jury left the courtroom. Id. at 5-6 (“Jury excused”). After the jury departed, at the

prosecution’s urging and over defense objection, the trial court directed court personnel:

“Would you ask them to come back out.” Id. at 6-7.

Once the jury had returned and been reseated, the trial court told the reassembled

jury: “I’m sorry but I didn’t turn to the last page of the verdict form and it must be signed

also, if this is indeed your verdict. So if I could send you back with instructions to226

complete the paperwork I would appreciate it.” Id. The jury left the courtroom and then

returned, with the last page of the verdict signed by the foreperson. Id. at 7-8. The trial

court once again discharged the jury, and the ex-jurors left the courtroom for a second

time. Id. at 8. (“Thank you again for your service and ya’ll truly are free to go now.”). 227

(a) The trial court committed reversible error under the common law and thisCourt’s case law when it reassembled the jury to render a verdict after dismissal.

A discharged jury may be reassembled only if its members remain in the judge’s

actual presence and under his or her control. See Webber v. State, 652 S.W.2d 781, 782

(Tex. Crim. App. 1983) (“[w]hen the jury has not separated or have only momentarily

The long-standing traditional view is even stricter. See, e.g., West v. State, 92 N.E.2d 852, 855 (Ind. 1950).228

140

separated and are still in the presence of the court and it appears that no one has talked to

the jurors about the case, the court may recall the jurors to correct their verdict . . .”)

(emphasis added); West v. State, 340 S.W.2d 813, 815 (Tex. Crim. App. 1960) (same).

See also State v. Green, 995 S.W.2d 591, 612-13 (Tenn. Crim. App. 1998) (reversing and

emphasizing separation from the presence of the trial court and the opportunity for outside

contacts or influence and finding it irrelevant that less than two minutes passed before

jury's initial dismissal and jury's return to jury box). 228

Here, the trial court ordered the former jurors reassembled after they had left the

courtroom and left the court’s presence. In so doing, the court committed reversible error.

Webber, 652 S.W.2d at 782; West, 340 S.W.2d at 815.

(b) The trial court’s reassembly of the jury violated Appellant’s federal and stateconstitutional rights to due process of law, to be free of cruel and unusualpunishment and against double jeopardy.

The jury’s reassembly also violated Soffar’s constitutional rights. See U.S. Const.

amends. V, VI, VIII, XIV; Tex. Const. Art. 1, §§ 3, 10, 13, 14, 15, 19. The reassembly of

a discharged jury violates the procedural fairness demanded by due process. See Fuentes

v. Shevin, 407 U.S. 67, 82 (1972). It is unfair to criminal defendants to discharge the jury,

allow the jurors to leave the courtroom and the court’s presence, and then reassembly them

as a jury. Commonwealth v. Johnson, 59 A.2d 128, 129, 131 (Pa. 1948).

In addition, regardless of how this Court would resolve this issue in a non-capital

case, this Court must resolve it in Max Soffar’s favor here because the resolution means

141

the difference between life and death. As the United States Supreme Court has

emphasized, “[th]e fundamental respect for humanity underlying the Eighth Amendment’s

prohibition against cruel and unusual punishment gives rise to a special ‘need for

reliability in the determination that death is the appropriate punishment' in any capital

case." Johnson v. Mississippi, 486 U.S. 578, 584 (1988) (quotations omitted).

Furthermore, the reassembly of a discharged jury violates a criminal defendant’s

double jeopardy rights. See, e.g., People v. Henry, 639 N.W.2d 285, 317, 320 (Mich. Ct.

App. 2001) (affirming trial court’s refusal to reconvene jury because “the jeopardy that

had attached at the selection and swearing of the jury terminated with that panel’s

discharge”); People v. Rushin, 194 N.W.2d 718 (Mich. Ct. App. 1971) (same).

Because the trial court’s reassembly of the jury violated Appellant’s right against

double jeopardy, this Court should remand this case for imposition of a sentence of life

imprisonment. Alternatively, this Court should remand for another punishment trial. See

TEX. CODE CRIM. PROC. Art. 36.33.

(c) In the alternative, this Court should order an evidentiary hearing on any facts itdeems in dispute and dispositive of the issue.

If this Court for some reason decides not to remand this case for imposition of a

sentence of life imprisonment or for a new punishment trial, it should remand the case for

an evidentiary hearing on whether the jurors, after leaving the courtroom, remained an

undispersed unit within the control of the court and with no opportunity to mingle with or

discuss the case with others, including court personnel. See Summers v. United States, 11

F.2d 583, 586 (4 Cir. 1926) (setting forth this standard). th

See Lena G. Roberts, All over the Map: How an Accident of Geography Turns Texas' Death Penalty Scheme Into229

Lethal Lottery (April 2003) (unpublished, on file with the Texas Defender Service).

The Harris County written policy provides that the District Attorney shall “personally” make the final decision230

on whether to seek death without providing any guidance for that decision. Id.

142

Appellant’s Eighteenth Point of Error

Prosecutors’ unfettered, standardless and unreviewable discretion under Article37.0711 violates equal protection, due process and the Eighth Amendment.

Texas lacks statewide standards governing the discretion of local prosecutors to

seek or decline to seek the execution of death-eligible defendants, TEX. CODE CRIM. PROC.

Art. 37.0711, and only a few of Texas’s 254 counties purport to have such standards. 229

Harris County is not among them. (6 CR 1685, 1710). As a result, the decision whether230

to seek the death penalty turns on “the willingness of the local prosecutor” to seek death.

Richard Willing and Gary Fields, Geography of the Death Penalty, USA TODAY, Dec. 20,

1999 at A1.

Harris County provides a glaring example of the disparities in Texas’s system. The

current and former Harris County District Attorneys have sought a death sentence

whenever there has been a “better than average chance” of a jury returning one. Mike

Tolson & Steve Brewer, Harris County is a Pipeline to Death Row, HOUSTON CHRONICLE,

Feb. 4, 2001 at A1. At a pretrial hearing in this case, the prosecution conceded that Harris

County District Attorneys seek the death penalty more often than other prosecutors as a

matter of personal opinion. (7 RR 186). As a result, Harris County has returned a vastly

disproportionate number of death sentences. Although the county has a similar per capita

murder rate as Dallas and San Antonio, it has 324% more death-row inmates than Dallas

See (6 CR 1691-92 (basing calculations of statistics from the Federal Bureau of Investigation, FBI Uniform231

Crime Reports by Metropolitan Statistical Area, available at http://www.fbi.gov/ucr/ucr.htm#cius (last visited April

19, 2007), from the Texas Department of Criminal Justice, Offenders on Death Row, available at

http://www.tdcj.state.tx.us/stat/deathrow.htm (last visited April 19, 2007), and from the 2000 Census, U.S. Census

Bureau, Population 2000, available at http://quickfacts.census.gov/qfd/states/48000.html (last visited April 19,

2007).

FBI Uniform Crime Reports, supra note 229, reports 1407 murders for all of Texas and 166 in Harris County232

(166/1407 = 0.117982). The Texas Department of Criminal Justice, supra note 231, reports a total of 962 persons

sentenced to death row in Texas since 1976, and 282 persons from Harris County (282/962 = 0.293139). TDCJ,

Total Number of Offenders Sentenced to Death from Each County, available at

http://www.tdcj.state.tx.us/stat/countysentenced.htm (last visited April 19, 2007).

But see Threadgill v. State, 146 S.W.3d 654, 671 (Tex. Crim. App. 2004) (rejecting argument that unguided233

prosecutorial discretion and variance among counties violates equal protection); Matamoros v. State, 901 S.W.2d

470, 478 (Tex. Crim. App. 1995) (en banc) (prosecutorial discretion to seek or forgo death penalty not

unconstitutional). Furman v. Georgia, 408 U.S. 238, 359 (1972) (Marshall, J., concurring).234

143

and 430% more than San Antonio. And although it accounts for only about 12% of231

Texas’s murders, Harris County has sentenced to death 29% of all death-sentenced

prisoners. 232

The trial court committed reversible constitutional errors by denying Appellant’s

motion to preclude application of the death penalty on equal protection, due process, and

Eighth Amendment grounds, and by denying his request for discovery to prove his233

selective prosecution claim. (6 CR 1673-1712; 7 RR 187). See U.S. Const. amends. V,

VI, VIII, XIV; Tex. Const., Art. 1, §§ 13 & 19.

Equal protection. “[U]niform” and “specific” vote-counting standards are required

to prevent the arbitrary and disparate treatment of similarly situated people whose

fundamental right to vote is at stake. Bush v. Gore, 531 U.S. 98, 102, 106 (2000).

Because Texas’s death penalty system concerns a more fundamental right – the right to

life – the system must satisfy the equal protection principles enunciated in Bush and234

must value the lives of all citizen equally. Just as a State may not, “by arbitrary and

disparate treatment, value one person’s vote over that of another,” Bush, 531 U.S. at 104-

http://quickfacts.census.gov/qfd/states/48000.html

http://www.tdcj.state.tx.us/stat/countysentenced.htm

Since Bush, numerous commentators have recognized that its logic prohibits standardless prosecutorial discretion235

to seek or not to seek the death penalty against statutorily death-eligible defendants. See, e.g., Laurence Benner et.

al., Criminal Justice in the Supreme Court: An Analysis of United States Supreme Court Criminal and Habeas

Corpus Decisions (October 2, 2000 - September 30, 2001), 38 Cal. W. L. Rev. 87, 90-94 (2002).

144

05, a state may not, by arbitrary and disparate treatment, value one person’s life over that

of another. Texas fails this test. Its law does not even provide an “abstract proposition”235

or a “starting principle,” Bush, 531 U.S. at 106, as to how local prosecutors should make

these life-and-death decisions.

Due process. In determining the scope of the constitutional due process

protections, three factors must be balanced: (1) the private interest affected by the official

action; (2) the risk of an erroneous deprivation of such interest through the procedures

used and the probable value, if any, of additional or substitute procedural safeguards; and

(3) the state’s interest, including the function involved and the fiscal and administrative

burdens that the additional or substitute procedural requirement would entail. Mathews v.

Eldridge, 424 U.S. 319, 334 (1976). Under this test, the discretion granted to Texas

prosecutors to seek or decline to seek a death sentence violates Appellant’s due process

rights. The interest at stake, the right to life, is the most fundamental of all. The lack of

standards increases the risk of an erroneous deprivation by failing to ensure that the death

penalty is applied only to individuals “who act with the level of moral culpability that

characterizes the most serious adult criminal conduct.” Atkins v. Virginia, 536 U.S. 304,

306 (2002). Statewide standards would reduce the risk of arbitrary application and could

be adopted with relative ease. Additionally, the State’s interest in granting prosecutors

unbridled discretion is minimal. Therefore, the standardless prosecutorial discretion to

See, e.g., Jonathan R. Sorensen & James W. Marquart, Prosecutorial and Jury Decision-Making in Post-Furman236

Texas Capital Cases, 18 N.Y.U. Rev. L. & Soc. Change 743, 765 (1990/91) (after controlling for other factors,

Texas prosecutors are five times as likely to seek death sentences against defendants accused of murdering white

victims as those accused of murdering African-American victims, and twice as likely to seek death sentences against

defendants accused of murdering white victims as those accused of murdering Hispanic victims).

145

seek the execution of death-eligible defendants in Texas violates due process.

Cruel and unusual punishment. Capital sentencers’ decisions must be guided by

standards that narrow and guide their discretion. In his trial testimony, Garner confirmed

that employees never kept a water jug on the control booth. (28 RR 189). See, e.g., Gregg

v. Georgia, 428 U.S. 153, 195 (1976). Because a prosecutor’s “decision whether or not to

seek capital punishment is no less important than the jury’s, . . . [his or her] ‘discretion

must be suitably directed and limited so as to minimize the risk of wholly arbitrary and

capricious action.’” DeGarmo v. Texas, 474 U.S. 973, 974-975 (1985) (Brennan, J.,

dissenting from denial of cert.) (emphasis added) (quoting Gregg, 428 U.S. at 189).

“Absent facts to the contrary,” Justice White would not assume that prosecutors would

“exercise [their] power in a standardless fashion.” Gregg, 428 U.S. at 225 (White, J.,

concurring). The arbitrary and capricious nature of standardless prosecutorial discretion to

seek or not to seek the death penalty, however, has now been demonstrated empirically. 236

The death penalty continues to be imposed in an arbitrary, freakish and discriminatory

manner in violation of the Eighth Amendment and the Texas Constitution. This Court

should reverse. Alternatively, this Court should remand for a hearing and order the

discovery on this issue sought by Appellant. (6 CR 1677-78).

Appellant’s Nineteenth Point of Error

The Eighth Amendment’s Prohibition Against Cruel and Unusual Punishment and

Appellant was sentenced to death in March of 1981. (1 CR 15). In December of 2004, he won habeas relief, and237

was sentenced to death again in March of 2006.

Defense counsel preserved this argument in a written pretrial motion. (2 CR 538-54). 238

See, e.g., Coleman v. Balkcom , 451 U.S. 949, 952 (1981) (Stevens, J., concurring in the denial of certiorari);239

Solesbee v. Balkcom , 339 U.S. 9, 14 (1950) (Frankfurter, J., dissenting) (“In the history of murder, the onset of

insanity while awaiting execution of a death sentence is not a rare phenomenon.”); Furman v. Georgia, 408 U.S.

238, 288-89 (1972) (Brennan, J., concurring).

See, e.g., Soering v. United Kingdom, 11 EUR. HUM . RTS. REP. 439 (1989) (refusing to extradite a German240

national to face capital charges because of anticipated time that he would have to spend on death row).

146

the Fourteenth Amendment’s Due Process Clause Prohibit Max Soffar’s Execution,Given that He Has Spent Close to Twenty-Five Years Awaiting it.

Soffar has been on death row for close to 25 years. His lengthy and torturous237

incarceration amounts to cruel and unusual punishment and violates his due process rights.

See U.S. Const. amends. VIII & XIV. See also Lackey v. Texas, 514 U.S. 1045 (1995)238

(opinion of Stevens, J., respecting denial of certiorari); Foster v. Florida, 537 U.S. 990

(2002) (Breyer, J., dissenting from denial of certiorari); Elledge v. Florida, 525 U.S. 944

(1998) (Breyer, J., dissenting from denial of certiorari). At the time the U.S. Constitution

was written, over twenty-five years under sentence of death was clearly “unusual.” Id. at

944. During the past three decades, a number of jurists have recognized the torturous

effects of “death-row phenomenon.” Additionally, several foreign courts have found239

death-row phenomenon cruel and inhumane. Thus, this Court must reform Soffar’s240

death sentence to a sentence of life imprisonment.

Appellant’s Twentieth Point of Error

Appellant was denied the effective assistance of counsel because of counsel’sprejudicial failures to object and protect Appellant’s rights.

Max Soffar was entitled to the effective assistance of counsel at trial. Strickland v.

Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.

147

Crim. App. 1986). Where a preponderance of the evidence in the record demonstrates that

there “is no plausible professional reason for a specific act or omission,” a claim of

ineffective assistance of counsel may be raised on direct appeal and sustained if there is

sufficient prejudice. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Here, the

“totality” of counsel’s errors prejudiced Appellant’s rights to a fair trial and requires

reversal. Ex parte Nailor, 149 S.W.3d 125, 130 (Tex. Crim. App. 2004).

First, counsel failed to object, or state all of the proper grounds for objection, to

some of the prosecution’s most blatantly unfair and impermissible arguments during its

guilt summation. As discussed in Appellant’s Twelfth Point of Error, supra, incorporated

herein, the prosecution argued that: 1) the defense had not presented any evidence of an

alternative perpetrator or false confession, (35 RR 9); 2) details in Soffar’s putative

confession could only have been known by the perpetrator, (35 RR 11, 22-23); and 3) that

there were no medical records to support the defense argument that Soffar’s

hospitalization in a mental hospital contributed to the likelihood of a false confession. (35

RR 82). All of these misleading arguments impermissibly shifted the burden of proof to

Soffar and misrepresented the truth. See, e.g., Napue v. Illinois, 360 U.S. 264, 269-72

(1959); McKenzie v. State, 617 S.W.2d 211, 221 (Tex. Crim. App. 1981). Counsel

objected only to the prosecution’s comment about the missing medical records, and then

cited only the burden-shifting grounds. (35 RR 82). If this Court rejects the argument in

Appellant’s Twelfth Point of Error that the prosecution’s arguments were so egregious that

“no instruction to disregard could possibly cure the harm,” Willis, 785 S.W.2d at 385, this

See Appellant’s Fourth Point of Error, supra, incorporated herein. See also Skipper, 476 U.S. at 5 n.1. 241

Counsel’s ineffectiveness is an alternative argument to the argument that counsel preserved the argument set242

forth in subpoint (a) of Appellant’s Sixteenth Point of Error.

148

Court should find counsel ineffective for failing to object and/or failing to object on all

possibly meritorious grounds. Moreover, when the prosecution argued that the defense

had not presented evidence of an alternative perpetrator or of a false confession and that

details of Soffar’s “confession” could only have been known by the perpetrator, counsel

was ineffective for failing to move for a mistrial or to reopen the defense case to present

evidence of Reid’s guilt and the media dissemination of details of the crime. There was241

no plausible professional reason for these failures because counsel had everything to gain

and nothing to lose by responding as an advocate to the prosecution’s improper arguments.

Counsel’s failures were constitutionally deficient and prejudicial. See, e.g., Thomas v.

State, 812 S.W.2d 346, 450 (Tex. App. – Dallas 1991, pet. ref’d) (finding ineffective

assistance due to failure to object to improper prosecution argument). Had counsel

objected successfully, there is more than a reasonable probability that the jury would have

found Soffar not guilty. Had counsel’s objection been overruled (or had the court

sustained the objection but denied a mistrial motion), counsel would have preserved a

meritorious appellate argument. Appellant’s Twelfth Point of Error, supra.

Second, counsel failed to object to penalty-phase instructions that violated

Appellant’s constitutional rights by nullifying the value of mitigation evidence,

introducing irrelevant factors, and reducing the prosecution’s burden of proof. See

Appellant’s Sixteenth Point of Error, subpoints (a), (b), and (d), supra. Ignorance of the242

See Ex parte Drinkert, 821 S.W.2d 953, 956 (Tex. Crim. App. 1991) (“Trial counsel’s failure to object to the243

indictment, jury charge, and jury argument were not the result of a reasonable professional judgment, but rather of

ignorance of criminal procedure.”). See also Luchenburg v. Smith, 79 F.3d 388, 393 (4th Cir. 1996) (finding counsel

ineffective for failure to request an expanded jury instruction that more accurately described state law).

149

law was the only plausible reason for counsel’s quiet acquiescence. Counsel had243

everything to gain and nothing to lose by objecting. No valid strategic reason can exist for

allowing a court to misinstruct a capital jury in a manner that makes it more difficult for

the defendant to win a life sentence. Had counsel objected successfully, there is a

reasonable probability that Soffar would have received a life sentence. Had counsel’s

objection been overruled, he would have preserved a meritorious issue for appeal.

Counsel’s ineffectiveness was prejudicial to Soffar’s right to a fair sentencing trial.

Third, if this Court finds that counsel waived the claim that the trial court erred

under TEXAS CODE OF CRIMINAL PROCEDURE Article 38.22 § 3 (a)(1) in admitting Max

Soffar’s oral statements, (30 RR 151-53; 31 RR 70), but see Appellant’s Eleventh Point of

Error, this Court should find counsel ineffective. Counsel’s purpose in the first instance in

lodging a statutory objection to the statements was to suppress them. Any failures in

articulation and follow-through were due to counsel’s ignorance of the law, not a strategic

purpose. But for counsel’s error, Soffar would have: (1) persuaded the court to suppress

the statements; or (2) preserved a meritorious appellate issue. See id.

Fourth, even though defense counsel clearly preserved an equal protection

challenge to the systemic discrimination against women and Hispanics in the selection of

the grand jury (see Appellant’s Fifth Point of Error, supra), if this Court rules otherwise,

defense counsel was ineffective for failing to do so. There could have been no plausible

150

reason for such a failure. Had counsel succeeded in convincing the court, based on the

Equal Protection claim, the indictment would have been dismissed – clearly the goal of

counsel’s motion in the first instance. Had counsel failed, he would have preserved a

meritorious appellate issue. See id. But for counsel’s failure, there is more than a

reasonable probability of a different outcome on the motion to quash. But for counsel’s

unprofessional errors, there is a reasonable probability of either dismissal of the

indictment, an acquittal or a life sentence. Strickland, 466 U.S. at 687. When the

prejudice of counsel’s errors is combined, it is even clearer that the “totality” of counsel’s

errors prejudiced Appellant’s rights to a fair trial. Ex parte Nailor, 149 S.W.3d at 130.

Appellant’s Twenty-first Point of Error

This Court should reverse due to the cumulative harm of the errors.

If the Court finds two or more errors harmless, Appellant is entitled to reversal

due to the cumulative harm of the errors. See Chamberlain v. State, 998 S.W.2d 230, 238

(Tex. Crim. App. 1999) (citing Stahl v. State, 749 S.W.2d 826, 832 (Tex. Crim. App.

1988) (considering cumulative effect of errors)).

151

Conclusion and Prayer

WHEREFORE, PREMISES CONSIDERED, the Appellant, Max Soffar, prays

the Court of Criminal Appeals to uphold these points of error, reverse the judgement, and

enter an order barring further prosecution. In the alternative, the Court should reverse the

judgment and remand this case for a new trial. In the second alternative, the Court should

reverse the judgment and reform the sentence of death to a sentence of life imprisonment.

In the third alternative, the Court should reverse the judgment and remand this case for a

new sentencing hearing, or for such other relief as justice may require.

Respectfully submitted,

____________________________BRIAN W. STULLPracticing Pro Hac [email protected] Capital Punishment Project201 W. Main Street, Suite 402Durham, NC 27701Voice: (919) 682-9469Fax: 919-682-5961

DAVID R. DOWBar No. [email protected]

JARED P. TYLERBar No. [email protected] Defender Service412 Main St. # 1150 Houston, Texas 77002 Voice: (713) 222-7788 Fax: (713) 222-0260

ATTORNEYS FOR APPELLANT

mailto:[email protected]

152

Certificate of Service

I HEREBY CERTIFY that a true and correct copy of the above and foregoing Brief forAppellant has been mailed by First Class U.S. mail to:

Harris County District Attorney’s Office, Appellate Division1201 Franklin Street, Suite 600Houston, TX 77002-1923

On this 30th day of April, 2007.

_________________________________BRIAN W. STULLStaff AttorneyACLU Capital Punishment Project

Appendix A

Shared Characteristics

Captain D’s RobberyMurders

Baskin-RobbinsRobberyMurders

McDonald’sRobberyMurders

FairlanesRobberyMurders

Single perpetrator? Yes Yes Yes Yes1 2 3 4

Mask or disguise? No No No No5 6 7 8

Employees forced to lie face-down on floor? Yes9 No Yes Yes10 11 12

Victims shot execution style? Yes No Yes13 14 15 Yes16

Signs of forced entry? No No No No17 18 19 20

Establishment closed to thepublic at time of crime? Yes Yes21 22 Yes23 Yes24

Crime committed on weekend? Yes No Yes Yes25 26 27 28

Crime committed at night?No29

Yes Yes30 31 Yes32

Perpetrator description?

Large whitemale, longhair in back, slicked orpushed back.33

Unknown

Tall, thin,long hair,baseball cap,mustache.34

White male,over six feettall, with hairworn combback and tothe collar inthe back.35

Multiple Victims Yes Yes Yes Yes

Vicinity of Robbery MurdersWhere Reidthen lived

WhereReid thenlived

Where Reidthen lived

Where Reidthen lived

Disposal of victim’s wallets bythe roadside?

Yes36 Unknown Unknown Yes37

Appendix A

1. See, e.g., State v. Reid (“Reid I”), 91 S.W.3d 247, 261-62 (Tenn. 2002).

2. State v. Reid (“Reid II”), 164 S.W.3d 286, 298-99 (Tenn. 2005)

3. State v. Reid (“Reid III”), 213 S.W.3d 792, 805 (Tenn. 2005).

4. (32 RR 66, 71-74, 75, 79-80, 83, 101, 104, 136-138, 144.)

5. Reid I, 91 S.W.3d at 263.

6. Reid II, 164 S.W.3d at 298.

7. Reid III, 213 S.W.3d at 805-06.

8. (32 RR 89, 134).

9. Reid I, 91 S.W.3d at 261.

10. Reid II, 164 S.W.3d at 297.

11. Reid III, 213 S.W.3d at 805.

12. (32 RR 69-70, 80, 84, 106-07, 112, 124, 126-29).

13. Reid I, 91 S.W.3d at 261.

14. Reid II, 164 S.W.3d at 297.

15. Reid III, 213 S.W.3d at 805.

16. (32 RR 70, 129; 27 RR 217-24).

17. Reid I, 91 S.W.3d at 261.

18. Reid II, 164 S.W.3d at 297.

19. Reid III, 213 S.W.3d at 805.

20. (32 RR 66, 71-74, 75, 79-80, 83, 101, 104, 136-138, 144).

21. Reid I, 91 S.W.3d at 261.

22. Reid II, 164 S.W.3d at 297-98. 23. Reid III, 213 S.W.3d at 805.

24. (32 RR 66, 71-74, 75, 79-80, 83, 101, 104, 136-138, 144).

25. Reid I, 91 S.W.3d at 261-62

26. Reid II, 164 S.W.3d at 297.

27. Reid III, 213 S.W.3d at 806.

28. (26 RR 42).

29. Reid I, 91 S.W.3d at 261-62. Although the robbery murders were committed around 8:50 a.m., Reid attempted

to gain entry into the establishment using a ruse the night before the crime. Id. In both instances, the establishment

was closed to the public. Id. 30. Reid II, 164 S.W.3d at 298. 31. Reid III, 213 S.W.3d at 805. 32. (32 RR 66, 71-74, 75, 79-80, 83, 101, 104, 136-138, 144.)

33. Reid I, 91 S.W.3d at 262-63. 34. Reid III, 213 S.W.3d at 805. Reid was also described as of possible Hispanic dissent. Id.

35. (32 RR 83, 131-135).

36. Reid I, 91 S.W.3d at 262.37. (27 RR 119).

no. ap-75,363 in the court of criminal appeals of texas … · assistant district attorneys, 1201...

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