LACK OF CORROBORATIVE EVIDENCE
In 1991, at the scene of the crime, hair fibers were found as well as muddy footprints left by tennis shoes in the entrance
to the house, along with similar footprints in the dirt outside. These did not belong to David as they did not fit his shoe size.
Fingerprints were also found which could not be mat ched to David.
The car seen by the eyewitness was a brown, four-door Sedan. David was not at that time, or afterwards, in ownership of such a vehicle. David had an Oldsmobile 88 . His car was not registered until October, 1991. (records though the states registrations divisions)
In 1991, tests were conducted by the Institute of Forensic Sciences at Dallas on evidence found at the scene of the crime. However, on February 17, 1999, the Bode Technology Group, Inc in Virginia processed DNA tests on David and concluded:
INCOHERENCES, INCONSISTENT STATEMENTS
AND PROCEDURAL IRREGULARITIES
Tessica Rainey , 16, and her brother, 14, who were driving to school, claimed to have seen a man getting into a brown car at the scene of the crime. Tessica’s observation period was around 5 to 10 seconds. They were on their way to school, not under the throws of any emotional state and her attention was drawn to the perpetrator only because his car nearly hits hers. The focus was on the car since she was attempting to avoid being sideswiped. The record is devoid of any suggestion that she would have had reason to focus upon the perpetrator at the time of the offense.
In a statement given to police in 1991, she described the suspect as a tall, skinny man with long, dark hair. Her brother merely described him as having long, dark hair. He had not had enough time to see him well.
At the time of the offence, David’s hair was bleached blond and short and he weighed around 250 pounds. He later owned a 1988, maroon Oldsmobile which he was subsequently unable to drive for several months while it was being repaired. This took several weeks after the crime..
In 1991, Tessica was shown some photographs by police, but was unable to give a clear description of the man she claimed to have seen, stating only that he was a tall, skinny man with long, dark hair.
In 1997, Tessica was again shown a line-up of several photographs including one of David which was taken in 1991. After around 10 minutes of deliberation, she eventually recognized and identified David as the suspect from this photograph. This 6 years intervening period strongly weighs against proper reliable identification. The state expressed no concern over the 6 years delay in identification.
All police photographic evidence must be of an equivalent type and standard, so as not to influence the witness in any way as a result of differences of paper, quality or finish.
On this occasion, the photograph shown to Tessica of David was several years older than others in the line-up. It was also less focused, of poorer quality and a different finish, with bars shown in the background, and writing on the reverse side.The photographic line-up was more than suggestive.
Tessica’s testimony during the trial
Tessica , let us be reminded, had always stated that the suspect was tall and skinny, with long, dark hair.
However, in 1997, she changed her testimony and added that he had an evil look. She had never previously testified to this before.
During the trial, after recess and the possibility of talking with the prosecutor, Tessica’s statements differed and even contradicted her original statement, showing her to be an unreliable witness:
For the first time in her judgement reviewing the photographic line up, Tessica added that the hair of the suspect she had seen was lighter than in the picture, shown to her in the photograph in 1997, taken in 1991.Observing the David sat in court, she testified that David was at that moment a little heavier and his hair a little darker and shorter than in 1991. She ended by considering David, a big built man of around 250 pounds, to be “skinny”.
Tessica admitted to having met the prosecutor several times before altering her statements. Her testimony that David’s hair was now darker and shorter and that he was also heavier was new.
Evidence from the co-defendant
Evrin Smith, the co-defendant, gave various contradictory statements and false testimony.
In her first statements, she failed to declare that she had tried to hire and pay David to kill Nelda. This crucial evidence did not appear even up until just a few weeks before the trial.
She admitted she had lied to the detectives when they came to see her for the very first time in 1998 and provided a false affidavit. She finally admitted giving a third statement implicating David. She admitted that the third statement contradicted the prior two statements. In the third given few weeks before trial, she admitted she paid David, took him over and point out victim’s home. She admitted all these lies because she did not want to go to jail.
When she testified during the trial she was under indictment for solicitation to commit capital murder. Any time that someone is involved in a murder for hire it is a capital murder.
Evrin attempted to strike a deal with the authorities by implicating David as the killer in return for a reduced sentence for her own involvement. In return for her testimony she received only a twenty-year sentence. Several months after the trial, Evrin confessed to other inmates in jail that it was she who had killed Nelda.
An investigator took written testimony in the form of signed Affidavits from these inmates detailing Evrin’s confessions to them.
Further inconsistent statements
Mandee McBay - Mandee was common law wife’s David. And yet she testified against David. It is against the rules - was furious because she thought that David had caused her mother’s arrest. In 1997, the first time police came to see her, she did not provide any information, claiming to know nothing about a stabbing.
However, on the third occasion, she told police that David had told her that Evrin wanted to kill Nelda. She added that one morning David woke up and told her he had killed Nelda. Her first statement to the police did not refer to this information. She admitted she added this later.
In 1997, she wrote to David saying that the police had visited her and that she had told them she knew nothing about a stabbing, asking David whether he had done anything wrong. She said in her letters that she hated to think that he would kill someone. The police told her that she better told them something (more or less threatening her). Mandee still said that she did not know anything about a stabbing. Some 10 days later on October, she wrote a statement implicating David as a killer. Her letter reveals clear weaknesses in her statements to police.
Mandee testified that, in 1991, David had bleached blonde hair, which she used to bleach for him.
After a recess, having also had the possibility to speak with the prosecutor, her testimony changed, saying of David that: “his hair was not even bleached”, and “it was blonde”, “it was just lightened.”
Then, the defense cross-examined her and she admitted that she picked up by the prosecutor over the week-end. The prosecutor conversed with her about the color of David’s hair. After, Mandee changed her testimony. She was unable to remember whether David was thinner or larger in 1991. Mandee also recalled that David drove an Oldsmobile. David said that at this time he was fixing a 78 Olds Delta 88 car that his grandfather had given him before driving it.
Mandee McBay’s mental state.:
She suffered from a mental disability and was taking medications at the time of trial which affected her testimony
Her medical records indicated that her original diagnosis for depression and anxiety came in1997 that prescribed Zoloft and is described having treated until 2000. The pervasiveness of her mental illness was not fully discovers until by a psychiatric who diagnosed her with bipolar disorder and made the observation that she had problems with her memory even during the trial.
In her affidavit dated June 2009, Mandee admits “the prosecutor knew that I had anxiety attacks and was taking Zoloft”. If they had been further psychological evaluations requested by the defense her credibility could have been placed in doubt.
In her deposition from May 2010, she testified that when she lived with David, even at the time of the offense, she suffered from Obsessive Compulsive Disorder, panic attacks, mood swings, depression, and while showering, an auditory hallucination that someone was calling her name.
From the records that Mandee has a long history of psychological problems including Bipolar Disorder and Polysubstance Abuse and Addiction. These difficultes would certainly compromise her memory, concentration, and judgment. At times she has apparently been very impaired and her functioning has been seriously disrupted. These findings raise questions about her credibility and her ability to think clearly and to report information accurately.
As a key state witness, if Mandee had been impeached then there is a reasonable probability that David may have been exonerated.
Rebecca (David’s cousin) testified that Evrin had asked her whether she knew somebody who would kill Nelda. Evrin asked her if David would do it. Rebecca told Evrin that David “do not have the guts to kill someone”. She was asked to described to the jury how David’s appearance had changed since 1991. She said to the court that David had been a little thinner at the time of the crime, with sandy-blonde, light-colored hair. Rebecca also stated that she had talked about this with David, and she admitted that David drove a maroon Oldsmobile. After a recess, Rebecca specifically stated that David was not skinny in 1991.
Angel and Sandra (David's friends) testified during the trial that David has never been a violent person.
CRUCIAL EVIDENCE OMITTED AT TRIAL
Two witnesses at trial, who did not know David, said that they had given evidence to police, saying that they
knew a man named Matthew who told them that he had committed the crime, detailing where it
took place and how he had done it.
Karen Kedrowsky contacted the
police in 1991 to tell them that she knew a man named Matthew TOLBERT. This man had confessed to and prided himself on having committed a murder. He told her that he had broken into a
woman’s house, robbed her, stabbed her, and watched her die. He explained the way he had done it. Between the time of Matthew’s confession
to her and David’s trial, Karen had undergone surgery and lost part of her memory. The judge did not want to consider her testimony, although in 1991 she had not had yet had her
operation, meaning that her memory of that period was sound. The Court refused to let the jury consider evidence from a third party. Read affidavit
Kristi Ann DUBEY said that her son, who has been killed
the same way as Nelda before the trial, told her in 1991 that Matthew had confessed to him to having killed a woman. Matthew had described the way he had come into her house and how he had killed
and robbed her. Kristi Ann and her husband then contacted the Dallas police department. Read her affidavit
THE THIRD PARTY PERPETRATOR
Matthew was called by the defense outside the presence of the jury as a result of Karen’s testimony. He invoked his privilege against self-incrimination in accordance with the 5th amendment.So the court refused to permit the jury to hear his evidence. The prosecution objected and declared there was insufficient evidence, just hearsay, to match him to the crime. The judge did not hear the testimony of Kristi because David’s attorneys did not call this crucial witness In 1991, Matthew’s appearance corresponded to that of the murderer in accordance with the witness statements.
Matthew was thin and had changed the color of his hair very often. In January, 1992, photographs showed that the color of his hair was brown.
Matthew’s photograph was not included in any of the line-up provided to the witness. It would be only natural to have his photo as a part of this spread
In addition to all of the above:
David requested witnesses for his defense. They never appeared at court because his attorneys failed to ask them to testify.
Given the following facts in David’s case:
- The disparity between David's physical appearance and that of the suspect described by the only material witness
- The failure of forensic scientific evidence, including footprints, fingerprints and DNA tests, to match David to the scene of the crime
- The difference between David’s car, which was not in working order at the time of the crime, and the car said to have been spotted at the scene
- The possibility of a third party perpetrator
- Witnesses for David's defense who were never called to court
- The jury not being allowed to review the court records
Had the jury been given the possibility of hearing and considering evidence from Matthew as the third party perpetrator, given that his appearance was in accordance with that provided by the eyewitness and that he was considered a suspect by police in 1991, there is an overwhelmingly strong probability that David would not himself
have been condemned for a murder which he has always claimed he did not commit.
Following an anonymous phone call to the police earlier in the year, in December 1997 David is charged with capital murder.
The Trial :
March 1999, Dallas.
David’s trial was unfair, as there were numerous incoherencies, inconsistent statements and procedural irregularities.
David is of humble origin. His parents could not afford a private attorney to provide him with a good defense. So, the State appointed two public defenders who were unqualified and incompetent. David did not receive effective assistance from his counsel.
The Guilty Verdict
March 19, 1999
The guilty verdict was based upon the evidence of three witnesses who gave inconsistent statements.
There is no physical evidence matching David to the crime nor did David match the description given by the witnesses. Yet, here is how the jury answered:
- To the first issue which is the question of guilt: “Yes”
- To the second issue of whether he intentionally and knowingly took the victim’s life: “Yes”
- To the third and last issue of possible mitigating factors in his case, they responded: “No”
Verdict Imposing the Death Sentence:
March 23, 1999
Notice of Appeal :
March 24, 1999
Motion for New Trial :
Filed : April 22, 1999
Denied : May 27, 1999
After the verdict imposing the death sentence, the Court assigned another attorney, Richard Alley, in any post conviction proceeding.
Here are some of the statements from their investigation (05/12/1999):
Mr. Alley, of Fort Worth, has twice been publicly reprimanded by the State Bar of Texas -- once in 1985, the other time in 1992 -- and there are two private complaints pending against him, state bar officials say. Mr. Alley said neither pending complaint concerned the McGinn case. He said that he would have liked to have brought the motion for DNA retesting more quickly but that it had taken time to obtain the necessary affidavit from a scientific expert.
For these reasons, in 2000, David tried to get another attorney and asked for help in publishing letters. Someone saw his letter and contacted a French organization.
State Writ Filed :
August 20, 2000
Parties Proposed Findings Filed :
April 5, 2001
Findings Denying Relief Entered :
April 19, 2001
Opinion Affirming Conviction :
October 24, 2001
In 2001, a French defense fund and a support group were created. They convinced a private attorney, to take on David’s case.
When Richard Alley discovered he was going to be replaced, he hurried to file David’s case to the State Court. Once it was filed it could not be withdrawn. The new private attorney had not had enough time to bring his evidences to the Court. A private investigator, was hired to investigate David’s case. She found more evidence proving David’s innocence.The judge declined to give Gary Taylor extra time to file further documents.
State Writ Denied :
December 19, 2001
The Court of Criminal Appeals rejects the State writ.
Certiorari Denied :
April 1, 2002
His attorney and his investigator continue working on David’s case for the federal writ.
July 2002 :
The Judge from the Northern District of Texas sent a letter to David's attorney to inform him that it is their practice to appoint attorneys from their Death Penalty case panel in Dallas, whenever possible, when the conviction at issue in a Texas state court is located within the Dallas Division of the Northern District Of Texas.
This decision is more than strange, since his currently attorney had previously been appointed to several appeals from the Dallas division of the Northern district Of Texas. Plus, he had been appointed many times to prepare and investigate death penalty writs in the Northern District of Texas.
He said that he has never had a Court not allow him to continue to represent a client…The court has appointed Bruce Anton, a public defender in Dallas.
Federal writ filed to the district Court :
The case was filed with the District Federal Court. David's attorney was still in a position to add pieces of evidence. It indeed was essential
to carry on the counter-enquiry in order to convince the federal judge that he should accept to reconsider David's culpability.
A new investigator is working on David’s case.
A first response from the District Court dismissed most of the grounds raised in the federal file.
- David’s previous attorneys did not raise some claims either on direct appeal or state appeal.
- In state appeal, David’s counsel has failed to exhaust state court remedies.
All the grounds raised in a federal application for writ of habeas corpus must have been presented to the state courts prior
being presented to the federal courts
- Habeas relief is not appropriate when a state court, at a minimum, reaches a satisfactory conclusion.
- Federal court may grant habeas corpus relief bases on an erroneous state court evidentiary ruling only if the ruling also violates
specific constitutional right or render David’s trial unfair.
- The Supreme Court has instructed that the federal court have no power to tell state court how they must write their opinion
In a word, the federal court does not want to discredit the state court.
It is not a final decision. In April, David’s lawyer is going to see the judge about District court’s response.
David's lawyer asked to the Federal District judge to put the Federal Appeal on hold so that he might obtain a hearing by the new state
September, 22nd, 2004
Response from the Court of Criminal Appeals of Texas on application for writ of habeas corpus.
On September 22, the Criminal Appeals Court of Texas ruled that David's allegations satisfied the requirements of the Code of Criminal Procedure.
Consequently, it issued an order that David's cause be remanded, i.e. returned to the State Trial Court for consideration of his unexhausted claims.
In other words, the Federal Appeals Court is not ( at present ) entitled to deal with David's case - while the way for a writ of habeas corpus
to be granted now lies open.
APRIL 17, 2006
The state District judge, S. Hawk signed an order (by her staff attorney) denying David Carpenter all requested relief including discovery
and an investigator. When David's attorney, Bruce Anton, received this order an ex-parte request for an appointment of an investigator was
MAY 23, 2006
The trial court agreed that David Carpenter was entitled to an investigator. The Court permitted David to conduct a limited
investigation to gather affidavits from his witnesses.
June 28, 2006
The Court of Criminal Appeals set a deadline for reolution of all matters in this case by approximately
September 26th, 2006
July 17, 2006
The trial judge granted David Carpenter a mere 20 days to submit his evidence and his findings of fact and conclusions of law.
The State filed " Findings of fact and conclusions of law"
August 7, 2006
David Carpenter's attorney filed: Applicant's "Ojection to submission of the finding of fact and Conclusions of Law Without a
Hearing. Precedural history- Violation odf statutory requirements-Violation of Due Proces-The District Court has altered the burden
of Production and persuasion Concerning third party confessions-Specific Objections- Motion to introduce affidavits-
State's Objection and proposed another supplemental Findings of Fact
Start of 2007, David is still waiting for a response from the Court of Criminal Appeals of Texas.
If this Court denies any help, David's case will go back to Federal step...
(for more explanations read "Texas law" Chapter)
March 7, 2007
Order from the Court of Criminal Appeals of Texas:
"Based upon the habeas court's findings and conclusions and our own review, we deny relief."
June 4, 2007
Supplemental application for relief to the Federal district court of Texas.
The brief's state denies any relief. It says that David was properly convicted knowing that the State has never compared physical evidence at the scene to Evrin Smith. The state has refused David the opportunity for a hearing in order to determine the veracityof the witnesses knowing that Smith is available for cross-examination so that the court may ascertain her credibility.
request for an evidentiary hearing in association with application for writ of Habeas corpus is denied
Petitioner filed a motion to stay and abate proceedings alleged that new discovered evidence revealed 3 meritorious claims:
Brady claim concerning a promise from the prosecution team to witness mandee Mc Bay not to seek the death penalty against
David. A Brady claim arising from the prosecution’s failure to disclose that witness Mande Mc CBay was mentally impaired at both the time of the event and the time of the trial A due process claim arising from the prosecution’s use of Mac Bay as a winess when she was incompetent in testify
Oral deposition of Mandee Mc bay was taken.
Respondent’s (Attorney General) supplemental response in opposition to petitioner’s second Motion to stay proceedings and hold them in abeyance with brief in support. The Director asks the Court (CCA) to deny Carpenter ’s second motion to stay these proceedings and hold them in abeyance.
Petititioner’s objection to respondent’s Additional Affidavits and request for Further Discovery and depositions
Recommendations from the judge from the Federal District Court to the CCA :
The renewed Motion to stay and abate proceedings should be granted in part to allow Petitioner to exhaust his Brady claim for failure to disclose evidence that mandee mc bay was suffering from severe mental problems and was under the influence of
psychotropic medication during the trial. Petitioner’s objection to the consideration of respoondent’s affidavit and petitioner’s request for further evidentiary development in this court should be denied.
APPLICATION FOR WRIT OF HABEAS CORPUS DISMISSED
The following case should be helpful :
On May 28, 2013, the U.S. Supreme Court ruled in Trevino v. Thaler “that a death-row inmate in Texas can make the claim of ineffective counsel for the first time in a federal habeas petition because the rules of Texas procedure made it virtually impossible for him to raise that issue during an appeal in state court” (“Exceptions to Harsh Rules,” New York Times Editorial, May 29, 2013). The case was an extension of a 2012 U.S. Supreme Court decision in Martinez vs. Ryan, a case from Arizona, that if a state habeas corpus lawyer provides ineffective assistance of counsel in failing to investigate and raise a claim that trial counsel provided ineffective assistance, the federal courts in federal habeas proceedings now can consider the claim that trial counsel was ineffective.
In its 5-4 decision, the Court held that “for present purposes, a distinction between 1) a State that denies permission to raise the claim on direct appeal [like Arizona] and 2) a State that grants permission but denies a fair, meaningful opportunity to develop the claim [like Texas] is a distinction without difference.
United States District Court Northern District Of Texas Dallas Division
Petitioner David Lynn Carpenter has requested that this Court abate these proceedings so that he may exhaust claims of ineffective assistance of trial counsel that were not presented to the state court in the original state habeas proceeding due to the ineffective assistance of state habeas counsel. In light of the supplemental briefing and recent remand orders by the United States Court of Appeals for the Fifth Circuit, it appears that an abatement of these proceedings is appropriate for that purpose.
For the reasons set forth above, these proceedings should be stayed to allow Carpenter to present his claims of ineffective assistance of trial counsel to the state court. In accordance with Rhines, appropriate time limits should be placed on Carpenter to file these claims in state court and, if relief is not granted, to return to this court to reopen these proceedings after exhaustion.
IT IS SO RECOMMENDED this 5th day of February, 2014.
Waiting for the united District court answer
A hearing is set sptmber 11, then moved to October 10
Litigation in this case has been ongoing for 20 years, most of it involving the three key witnesses upon which the state’s case rested: Mandee McBay, Evrin Smith, and Tessica Rainey. Yet at no previous time was Petitioner made aware that (1) Whittal identified another man; and (2) the State knew McBay had severe mental health issues, took mind-altering medication, provided multiple affidavits under false pretenses, and believed she and Carpenter were common-law spouses, thus supporting his claim that she was privileged from testifying.
As set forth above, Carpenter’s trial attorneys both swear they never received this information (Exhibits 1 and 2). And when Carpen-ter’s federal petition for a writ of habeas corpus was first filed, the Dallas County District Attorney’s Office did not have an open file policy.
The policy later changed to permit an open-file review in capital cases after federal writ proceedings concluded, or upon a showing of a particularized need for a specified narrow issue,
But prosecutors’ notes and work product were still excluded. Only because the federal district court ordered a hearing on Carpenter’s petition was federal habeas counsel finally able to review the State’s complete file. Even still, the State delayed before agreeing to as much.