Court Orders New Trial for Convicted Killer

A sharply divided federal appeals court in San Francisco on Wednesday reversed the 1978 murder conviction of an Arizona man who has repeatedly professed his innocence as his case bounced back and forth between state and federal courts.

In a 6-5 decision, the U.S. 9th Circuit Court of Appeals granted a new trial to Paris Hoyt Carriger, who was convicted of killing a man by beating him on the head with a skillet and strangling him with a necktie during a jewelry store robbery in Phoenix.

Carriger, currently in Arizona’s maximum-security prison in Florence, has been on death row for 19 years and came within weeks of being executed in 1995.

Legal experts said it is quite unusual for a federal appeals court to grant a new trial to a convicted murderer filing a writ of habeas corpus, particularly in recent years.

In her majority opinion, U.S. Circuit Judge Mary M. Schroeder said the facts of the case warranted granting an exception to a key tenet of contemporary death penalty jurisprudence known as the “abuse of the writ” doctrine, which is designed to curb successive appeals. This was Carriger’s third federal habeas petition. It had been rejected by a federal trial judge and a smaller panel of 9th Circuit judges. And Carriger’s conviction previously was upheld by the Arizona Supreme Court three times.

Schroeder said an exception was merited to prevent a “miscarriage of justice.” In particular, she cited the prosecution’s failure to disclose to the defense or the jury damaging information--known to state authorities--about its key witness, Robert Dunbar, a habitual felon who had in the past tried to pin his crimes on others and lied to the police and who had a lifelong history of violence.

Carriger’s principal defense was that Dunbar had committed the murder. The two men had met in prison and had been in the jewelry store together several hours before the robbery and murder occurred.

Schroeder wrote that “no reasonable juror would vote to convict Carriger beyond a reasonable doubt if a juror knew” about Dunbar’s history or a number of things jurors were not told. Among them were that Dunbar had boasted to friends and family members that he set Carriger up; that Dunbar told friends his technique for consistently maintaining a lie when blaming a crime on someone else; and that Dunbar had told his stepson how gruesome it was to see someone’s head crushed with a skillet.

Schroeder also found credible a confession Dunbar made nine years after the murder that he was the killer, even though he later recanted it. She said that in the sworn confession, Dunbar “accurately described details about the crime and the crime scene that only a participant could have known.”

Attorneys for the Arizona attorney general’s office argued on appeal that the state’s failure to disclose Dunbar’s history made no difference in the outcome of the trial. But Schroeder said the state had been under a clear obligation to disclose the potentially exculpatory evidence under the important precedent established by the U.S. Supreme Court in a case called Brady vs. Maryland in 1963.

Moreover, she wrote that the state’s claim that the information didn’t matter was “severely undercut by the prosecutor’s strenuous vouching for Dunbar’s truthfulness in closing argument. The prosecutor acknowledged that the whole case came down to whether Dunbar was telling the truth or whether, as Carriger contended, Dunbar did it and framed Carriger.”

The prosecutor emphasized to the jury that even though Dunbar was a career burglar, he was a truthful man: “He is a smart cookie, he is a burglar, he is a crook. He is not a liar.”

The prosecutor also said that if there “was any indication of his [Dunbar’s] guilt or complicity in this, he would be on trial with him [Carriger].”

In addition, Schroeder wrote that Dunbar testified, unrebutted at trial, that he was not capable of murder and that he had never used force, violence or a gun in any burglary.

But, Schroeder stressed, state prison files, available to the prosecution, revealed that all those statements were untrue. In fact, she said, Dunbar had been committed to the Arizona state hospital because of violent rages against his family, had been dishonorably discharged from the Army for physically assaultive behavior and had falsely accused police officers of keeping money they recovered from him after arresting him for burglary. He also said he had committed armed robberies of savings and loans in Phoenix and California and had used a gun in at least one burglary.

Schroeder and the five other judges who voted to grant Carriger a new trial were all appointed by Democratic presidents. Four of the five dissenting judges were appointed by Republican presidents, with only Jerome Farris appointed by a Democrat.

In his dissent, Alex Kozinski contended that the majority had improperly stretched the narrow exception to the “abuse of the writ” doctrine in order to reach the result it did. He wrote that “the majority’s new evidence, even if believed, proves merely that Dunbar was guilty of [Robert] Shaw’s murder, along with Carriger.”

Joseph T. Mariarz, the assistant attorney general for Arizona who argued the case on appeal, said he was disappointed with the decision in Carriger vs. Stewart and said the state definitely would ask the Supreme Court to review it.

USC law professor Charles D. Weisselberg, a death penalty expert, noted that over the last 15 to 20 years, Congress and the Supreme Court have made it harder for criminal defendants to bring federal habeas corpus petitions to challenge convictions. He said such petitions are “frequently dismissed by federal courts if they are considered procedurally defaulted, meaning that the defendant has not raised the claim soon enough or in a proper forum in state court.”

The professor said the 9th Circuit decision in the Carriger case “is important legally because there aren’t very many authoritative decisions construing the Supreme Court’s ruling in a 1995 case [Schlup vs. Delo] which established the standard that is used by courts to decide whether they can reach the merits of a constitutional claim when the claim is considered procedurally defaulted.”

Weisselberg said the Supreme Court in the Schlup case ruled that even if a claim is defaulted, the federal court may still consider it if there is also an assertion that the defendant is innocent.

“But the defendant has to make a strong showing of innocence, and once that showing is made, that is the gateway through which a federal court can consider the merits of the claim,” he said.

“What is significant about the Carriger case is that it is one of the few in which a federal court has found that the defendant has made that showing and it thus can reach the merits of his claim,” Weisselberg said.