Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01235-WYD

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I N THE U NITED S TATES D ISTRICT C OURT F OR THE D ISTRICT OF C OLORADO

Civil Action No. 04-cv-01235-WYD J ASON A LAN C APPELLI, Applicant, v. JOE ORTIZ, Executive Director, and T HE A TTORNEY G ENERAL FOR THE S TATE OF C OLORADO, Respondents.

PETITIONER'S REPLY RE: MOTION TO RECONSIDER PURSUANT TO RULE 59, FEDERAL RULES OF CIVIL PROCEDURE, WITH ALTERNATE REQUEST FOR CERTIFICATION OF APPEALABILITY [015] Applicant, by and through Counsel, Paul Grant, submits Petitioner's Reply Re: Motion to Reconsider Pursuant to Rule 59, Federal Rules of Civil Procedure, With Alternate Request for certification of Appealability [015], With Alternate Request for certification of Appealability [015]: 1. While the Colorado Attorney General claims that this claim is

properly construed under Estelle v. McGuire, 502 U.S. 62, 72 (1991), that case deals with attacks on the admissibility of prosecution evidence, not, as Mr. Cappelli argues herein, with the trial court's interference with a defendant's ability to show the jury the motive and bias of the prosecution's key witness, Rivers. Nothing in the Attorney General's Response (Respondent's Response to Motion to Reconsider Pursuant to Rule 59, Federal Rules of Civil Procedure [016]) explains why the

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information relating to the very real jeopardy Mr. Rivers faced due to his noncompliance with the terms of his deferred judgment and sentence agreement and his conviction by guilty plea during the term of that agreement of a misdemeanor offense, did not establish a very strong motivation for Rivers to provide testimony designed to please the prosecutor and, thus, to avoid revocation. 2. The Attorney General's reliance upon Richmond v. Embry, 122 F.3d

866, 871 (10th Cir. 1997) is misplaced; that case dealt with the right to compulsory process in a "rape shield" context where the rape shield law was not complied with. There is no claim here that Cappelli failed to comply with the appropriate procedures under Colorado law to obtain and impeach Rivers with evidence that he faced revocation of a deferred judgment and sentence for which he had no defense and was thus at the mercy of the prosecutor. Cappelli was precluded from challenging Rivers by the trial judge's holding that anything relating to Mr. River's status after the date of the [alleged] offense was irrelevant to the proceedings, prohibiting the introduction of any evidence of the witness's current perception of his need to curry the prosecution's favor. 3. It is clear that Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39

L.Ed.2d 347 (1974), makes the refusal of Cappelli's trial court to permit him to explore the current vulnerability of the witness to prosecutorial influence a denial of Cappelli's Sixth Amendment right to confront witnesses: In the instant case, defense counsel sought to show the existence of possible bias and prejudice of Green, causing him to make a faulty initial identification of petitioner, which in turn could have affected his later incourt identification of petitioner.

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We cannot speculate as to whether the jury, as sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to fully present it. But we do conclude that the jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on Green's testimony which provided "a crucial link in the proof . . . of petitioner's act." Douglas v. Alabama, 380 U.S., at 419 . The accuracy and truthfulness of Green's testimony were key elements in the State's case against petitioner. The claim of bias which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of Green's vulnerable status as a probationer, cf. Alford v. United States, 282 U.S. 687 (1931), as well as of Green's possible concern that he might be a suspect in the investigation. We cannot accept the Alaska Supreme Court's conclusion that the cross-examination that was permitted defense counsel was adequate to develop the issue of bias properly to the jury. While counsel was permitted to ask Green whether he was biased, counsel was unable to make a record from which to argue why Green might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness or, as the prosecutor's objection put it, a "rehash" of prior cross-examination. On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts

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from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Petitioner was thus denied the right of effective cross-examination which "`would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.' Brookhart v. Janis, 384 U.S. 1, 3 ." Smith v. Illinois, 390 U.S. 129, 131 (1968). Davis v. Alaska, supra at 317-318. (Footnotes omitted, emphasis added). 4. Contrary to the Attorney General's argument, the fact that Boller

was called by the defense does nothing to change this analysis. Boller was questioned for the purpose of providing evidence to impeach Rivers, after Cappelli had been prevented from questioning Rivers about anything occurring after the incident in this case, and after Boller's testimony presented the false picture that Rivers was a "model probationer." Cappelli sought to question Boller further, and that line of questioning was denied because the trial court again ruled that what happened after the incident was irrelevant. In the 10 th Circuit case (Richmond v. Embry, 122 F3d. 866, 871 (10 th Cir. 1997)) cited by the Attorney General, the court there noted the significance of the fact that the defendant had tried to put in evidence through his own witness, what he had not first sought to introduce through cross-examination of the accuser-victim and other prosecution witnesses. Richmond v. Embry, 122 F3d. 866, 871 (10 th Cir. 1997). The 10 th Circuit stated that made the petitioner's claim a claim that he was denied his right to present his defense, not a Confrontation Clause claim. Id. Cappelli was first denied the right to cross-examine Rivers about his status, then again denied the right to explore that same area with Boller, even after the prosecution had "opened the door" with Boller's testimony that Rivers had always been a "model probationer."

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Certainly if Green, the witness in Davis v. Alaska, supra, had denied his status and his motive, the Constitutional error would have been as just as great if the Defense there had been prohibited from confronting Green by introducing through other sources evidence of Green's motive and bias. 5. It should also be noted that, in the event that this Court does not

revisit its ORDER DENYING 28 U.S.C. § 2254 APPLICATION (Docket # 0014), and grant a hearing on the Petition, the Colorado Attorney General in his response has not disputed that a Certificate of Appealability must be granted. Dated this 2 nd day of April, 2007. Respectfully submitted, /s Paul Grant Paul Grant 6053 S. Quebec Street, #101 Centennial CO 80111 Counsel for Petitioner-Applicant Certificate of Service I hereby certify that on April 2, 2007 the above Petitioner's Reply Re: Motion to Reconsider Pursuant to Rule 59, Federal Rules of Civil Procedure, With Alternate Request for certification of Appealability [015] was field and served upon the Plaintiff using the CM/ECF system which will send notifications of such filing to the following: Laurie A. Booras First Assistant Attorney General 1525 Sherman Street, 5 th Floor Denver CO 80203 [email protected] s/Marina Sidorova

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