Full opinion text
OPINION MYRON H. THOMPSON, District Judge. In this habeas proceeding bought pursuant to 28 U.S.C.A. § 2254, petitioner Randy Turpin Bell challenges his conviction and death sentence in an Alabama state court for capital murder. An evidentiary hearing pursuant to Rule 8 of the Rules Governing § 2254 Cases was held and evidence was taken on the claims that had not been defaulted or already denied on the merits. Bell v. Haley, 2001 WL 1772140 (M.D.Ala.2001). Bell now maintains four related grounds for relief based on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Specifically, Bell asserts these claims: (1) the State improperly suppressed a pretrial statement by Joseph C. Austin, Jr.; (2) the State improperly failed to disclose a deal with Austin for his testimony at trial; (3) the State failed to correct Austin’s per-jurious or misleading testimony; and (4) the State failed to disclose a deal with Michael Joe Hubbard for his testimony at Bell’s trial. For the reasons that follow, the court finds that Bell is entitled to relief as to his death sentence but not as to his conviction. This opinion will proceed as follows. First, the court will set forth the procedural background of the case and the governing legal standard. Then the court will describe the factual background of the investigation into Bell’s trial and conviction. Next; the court will make factual findings relevant to Bell’s claims. Finally, the court will analyze Bell’s claims in light of its factual findings. I. PROCEDURAL BACKGROUND The procedural history of this case is recounted in the court’s prior opinion, Bell v. Haley, 2001 WL 1772140 (M.D.Ala.2001), and will be simply summarized here. Bell was convicted on May 5, 1983, of capital murder, namely murder during the commission of robbery in the first degree, for the death of Charles Mims in violation of 1975 Ala.Code § 13A-5-40(a)(2). The jury recommended by a vote of ten-to-two that Bell be sentenced to die, and the trial court accepted the jury’s recommendation. On direct appeal, the Alabama Court of Criminal Appeals upheld Bell’s conviction and death sentence, Bell v. State, 475 So.2d 601 (Ala.Crim.App.1984), as did the Alabama Supreme Court. Ex parte Bell, 475 So.2d 609 (Ala.1985). After the denial of his direct appeal, Bell petitioned the state court for a writ of error coram nobis. The writ was denied by the trial court, and the denial was affirmed by the Alabama Court of Criminal Appeals. Bell v. State, 518 So.2d 840 (Ala.Crim.App.1988). The Alabama Supreme Court denied certiorari, Bell v. State, No. 87-296 (Ala.1988), as did the United States Supreme Court. Bell v. Alabama, 486 U.S. 1036, 108 S.Ct. 2024, 100 L.Ed.2d 611 (1988). In 1990, Bell filed two new petitions for collateral relief in state court. Both petitions were denied by the trial court, and both denials were upheld by the Alabama Court of Criminal Appeals. Bell v. State, 565 So.2d 1244 (Ala.Crim.App.1990); Bell v. State, 593 So.2d 123 (Ala.Crim.App.1991). The Alabama Supreme Court denied review in both cases. After exhausting his state remedies, Bell filed this suit in federal court on July 7, 1995, pursuant to 28 U.S.C.A. § 2254. During stage I of the proceedings, the court determined which of Bell’s claims could be heard on the merits. Bell v. Haley, 2000 WL 33682804 (M.D.Ala.2000). In stage II the court reached the merits of many of those claims, and set an evidentia-ry hearing to hear additional evidence on Bell’s Brady/Giglio claims. Bell v. Haley, 2001 WL 1772140 (M.D.Ala.2001). The court will now decide the merits of those claims. II. LEGAL STANDARD This court’s habeas review of state-court proceedings is governed by 28 U.S.C.A. § 2254(d). In its earlier opinions, the court held that the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), which placed significant restrictions on the availability of habeas corpus relief, did not apply to this case because it was filed before April 24, 1996, when AEDPA was enacted. Bell, 2001 WL 1772140, *2; Bell, 2000 WL 33682804, *2. This holding was based on Supreme Court’s opinion in Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), which held that chapter 153 of AEDPA, which includes § 2254, the provision at issue in this case, applied only to cases filed after AEDPA’s effective date. On July 23, 2004, the Eleventh Circuit issued an opinion in Kelley v. Secretary for Dept. of Corrections, 377 F.3d 1317 (11th Cir.2004), cert. denied, — U.S. -, 125 S.Ct. 2962, 162 L.Ed.2d 906, 73 U.S.L.W. 3540 (2005) The Kelley court stated that a district court was wrong to assume that AEDPA did not apply retroactively to a habeas petition filed in a capital case before AEDPA was passed. Id. at 1340-1341. While chapter 153 is nonretroactive, the court said, parts of § 2254 might apply retroactively through AEDPA’s chapter 154, which is retroactive and which incorporates some parts of chapter 153 by reference. Id. at 1339-1340. Chapter 154 applies only if the State that sentenced the petitioner meets the so-called “opt-in” criteria of 28 U.S.C.A. §§ 2261(b) and (c) by establishing a mechanism for the appointment and payment of competent counsel in State post-conviction hearings for prisoners under capital sentences. Id. In light of this holding, this court asked the parties for additional briefing on the question of whether Alabama has satisfied the opt-in provisions of § 2261(b) and (c) such that AEDPA might apply retroactively to this case. The State responded in its brief that because “no court has ruled that Alabama has satisfied the opt-in provisions”, ... “AEDPA ... cannot apply retroactively to the instant case.” Thus, § 2254, as it was before it was amended by AEDPA, governs this case. Under this standard, the factual findings of state courts are presumed to be correct unless one of the eight enumerated exceptions in § 2254(d) applies. However, where one of these exceptions does apply, the state court’s factfinding is not presumed correct, and the petitioner must establish “the facts necessary to support his claim by only a preponderance of the evidence.” Kelley, 377 F.3d at 1335. Questions of law and mixed questions of law and fact, in contrast, are subject to de novo review. See, e.g., Freund v. Butterworth, 165 F.3d 839, 861 (11th Cir.1999). Nonetheless, when a mixed question of law and fact turns on a fact found by the state court, the finding of the state court deserves deference. See, e.g., Arizona v. Fulminante, 499 U.S. 279, 287, 111 S.Ct. 1246, 1252, 113 L.Ed.2d 302 (1991). III. FACTUAL BACKGROUND AND TRIAL TESTIMONY A. Background Charles Mims, of Clanton in Chilton County, Alabama, disappeared on December 14, 1981, and has not been heard from since; his body has never been found; the weapon allegedly used to kill him has not been found; and no forensic physical evidence has been found that would reveal that he is dead or how he died. Randy Bell, a.k.a. Randy Cole, was convicted of Mims’s murder based mainly on the testimony of two witnesses: Michael Joe Hubbard, who testified that he saw Bell rob and kill Mims and that he himself was un unwilling participant in the murder; and Joseph C. Austin, Jr., who testified that, on the night of the murder, Bell told him that he and Hubbard had robbed Mims and showed him the proceeds of the robbery. At the time he testified in the Bell case, Hubbard was represented by attorney Robert Bowers, Sr. in another, unrelated case. The primary investigators into the disappearance of Charles Mims were Benny Mims, an investigator for the Chilton County Sheriffs Department, and John Perdue, an agent with the Alabama Bureau of Investigation (ABI). The prosecutors on the case were Janice Clardy and William R. Hill, Jr. Clardy was the Chief Assistant District Attorney of the 19th Judicial District of Alabama, which encompasses Chilton County; Hill was the District Attorney for the neighboring 18th Judicial District in Alabama. • B. Trial Testimony At Bell’s trial, Hubbard testified that Bell asked him to call Charles Mims on December 14, 1981, because Bell had a television and some firearms to sell to Mims. At that time, Hubbard was 18 years old, and Bell was 26 years old. Mims had purchased stolen property from Hubbard in the past. Early in December 1981, Hubbard testified, Mims had refused to buy some stolen goods that Bell had tried to sell him. Hubbard also testified that Bell had commented about the fact that Mims often carried large amounts of money- Hubbard contacted Charles Mims around dusk on December 14 and arranged a meeting at the West End Wash-eteria in Clanton. Mims was at a grocery store when he received the call from Hubbard. Helen Smith, the grocery store owner, testified that Mims received a call and then told her he was going to meet the “cowman” 30 minutes later to discuss buying a television and some guns. Smith said she knew that the “cowman” meant two African-American men who drive a green-and-white Cadillac. Bell and Hubbard are both African-American, and Bell drove a green-and-white Cadillac. Smith also testified that, before he left the store, Mims took a wad of money out of his wallet, and Smith estimated that he had about $ 600 or $ 700. Hubbard testified that he and Bell waited for Mims at the washeteria in Bell’s car for about 20 or 25 minutes. Then they went to Bell’s house, where Bell took three dollars out of his “piggy bank.” They went to a Shell Station on Highway 31 and bought three dollars worth of gas. Ray Anthony Pairrett testified that Charles Mims came over to his house at around 6:00 p.m. and watched television for an hour. When Mims left, he said he was going home but that he would return at 10:00 to watch the news. Mims never arrived at his own house, nor did he return to Pairrett’s house later that evening. A little after 7:00 p.m., Hubbard testified, he and Bell saw Charles Mims’s truck going down the road. Bell began to follow Mims’s truck and then flashed his headlights at Mims. Mims stopped, and Hubbard, following Bell’s instructions, told Mims to follow Bell’s car. Mims followed Bell to the campgrounds on Kineheon Road. Hubbard testified that, when they arrived at the campgrounds, Bell stated that the things he had for sale were behind a building. When Hubbard turned around, Bell was pointing a pistol in Mims’s face. Bell instructed Hubbard to get a rope out of his car and to tie Mims’s hands together. Hubbard did so; he testified that Bell then tightened the rope while still holding his pistol in his hand. At this point, Hubbard testified, another car drove by and Bell said that he was worried the driver would recognize his ear. Carol Joiner, an acquaintance or ex-girlfriend of Bell’s, testified at trial that she drove by the campgrounds and saw Bell’s green-and-white Cadillac parked next to Mims’s truck. Later that evening, Joiner passed by again and saw only Mims’s truck there. When she later asked Bell about this, she testified, he told her to “shut up” and that she “knew too much.” Hubbard testified that, after the car drove by, Bell removed Mims’s billfold from Mims’s pocket and put it in his own pocket. Bell gave Hubbard the keys to his ear and told him to open the trunk, which Hubbard did. Bell then put Mims in the trunk. Bell and Hubbard got into the car, and Bell drove to an isolated rural area. Hubbard testified that Bell still had the pistol in his hand. When Bell stopped the car, Hubbard testified, Bell gave Hubbard the keys and told him to open the trunk, and Hubbard did so. Bell then put the gun back up to Mims’s face and led Mims into the woods. Hubbard testified that he then saw Bell push Mims into a shallow trench and shoot him twice in the head, holding the gun about a foot away from Mims’s head. Hubbard testified that when he saw Bell shoot Mims, he ran back to Bell’s car. He testified that he looked back about three times as he ran, and Mims did not get up again. Bell had two flat tires as he drove back to town. He and Hubbard changed the first flat tire, but, when the second tire blew, Bell simply slowed down and kept driving. Mims’s wife and another witness both testified that they saw Bell’s car heading back towards town that evening with a flat tire at about 7:45. Hubbard testified that Bell dropped him off at the washeteria and told him he was going to go get a new tire. Joseph C. Austin, Jr., testified that at around 8:30 p.m., when he was watching the Monday night football game, Bell stopped by Austin’s house, and Bell had a flat tire. Austin testified that Bell told him that Hubbard had called Mims to offer to sell him stolen goods and that, when Hubbard and Bell met Mims, they robbed him instead of selling him the goods. Austin also testified that Bell showed him some money that he said he had gotten during the robbery. Austin testified that Bell then asked him where he could buy a tire; Austin said he told Bell where he could buy a tire, walked Bell to a friend’s house, and saw Bell get into the friend’s van and drive away to get a tire. William Aubrey Wilson, a Chilton County Deputy Sheriff, testified that he pulled Bell over in his green-and-white Cadillac at 10:17 p.m. on December 14 because he was driving slowly. Bell was about half a mile from Clanton on Highway 22, heading back towards town. Bell told Wilson that he was driving slowly because he was looking for a hubcap he had lost earlier that night when he’d gotten a flat. Wilson confirmed that Bell’s car was missing a hubcap. Wilson said that someone else was in Bell’s car with him, but it was not Hubbard. Hubbard testified that he spoke with Bell on several occasions after the murder. Bell warned Hubbard not to speak to the police, and later told him that he, Bell, had moved Mims’s body using his car and disposed of it by pouring acid on it. During the trial, evidence was entered that Bell applied for and obtained new license plates on December 15, 1981. Bell’s car was later found at a used car dealership in Atlanta, Georgia; the trunk was wet and, according to a Georgia Bureau of Investigation Agent, it smelled strongly of detergent. Bottles of cleaning agents and an open box of .25 caliber ammunition were found in the trunk. No forensic evidence, such as blood, hair, fingerprints, or spent shell casings were found in Bell’s car. IV. Factual Findings A. Joseph C. Austin, Jr. 1. Austin’s January 12 statement On January 12, 1983, Austin gave a 'sworn statement to ABI Agent Perdue at the Chilton County Sheriffs Department. The statement conflicts with Austin’s later trial testimony and with Hubbard’s account of how Charles Mims died. The January 12 statement reads in part: “Several days after Charles Mims disappeared Randy Cole [Bell] told me that he and Michael Joe Hubbard had met Charles Mims to sell him some hot stuff. After meeting him they decided to rob him. Randy said Michael Joe had Randy’s gun and Randy made him shoot him. Since Randy thought Charles would have them killed for robbing him. Randy said Mims was not dead so he got the pistol from Michael Joe and shot Mims again.” “When Michael Joe Hubbard was arrested the weekend after Mims disappeared Randy Cole told me that he should knock Michael Joe off since Michael Joe could fuck him up if Michael Joe told about Mims.” Although Bell’s counsel requested that the State turn over all exculpatory materials before the trial, the State did not turn over Austin’s pretrial statement. In his deposition, ABI Agent Perdue confirmed that the January 12 statement was written in his handwriting, although he said that he did not remember taking it until he was reminded of it at the deposition. As a matter of course, Perdue said, he would have turned over the statement to the prosecutors in the case; it should have been part of his investigative file, which he would have provided to the district attorney. However, Perdue does not specifically remember turning over the Austin statement to the prosecutors. Both prosecutors in the Bell case, Clardy and Hill, say they do not remember seeing, or being aware of, the January 12 statement at the time of Bell’s trial. However, the statement was in the files of the District Attorney’s Office for the 19th Judicial District in 1996; Clardy was the District Attorney for the 19th Judicial District at the time. The District Attorney’s Office disclosed the statement to Bell’s counsel in April 1996, only after service of a subpoena on the Chilton County District Attorney’s office in November 1995. Because it was not disclosed until after all of the state-court proceedings had concluded, the state courts never had a chance to consider this evidence. This court previously found that Bell has shown cause and prejudice for his failure to present this evidence to state court. 2. State’s failure to correct Austin’s testimony at trial At trial, Austin did not testify that Bell told him that Hubbard shot Charles Mims first, as he had said in his January 12 statement; in fact, Austin did not testify that Bell told him anything about Mims’s death. He did testify, consistent with the pretrial statement, that Bell told him that Hubbard had called Mims to offer to sell him some “hot stuff’ and that when Bell and Hubbard met Mims they decided to rob him instead. There were other differences between Austin’s January 12 statement and his trial testimony. At trial, Austin said that Bell had shown him some money that he had taken from Charles Mims; this information was not in the pretrial statement. At trial, Austin said that the conversation with Bell occurred on December 14, the night Mims disappeared, and that Bell came to his house on that night while Austin was watching the Monday night football game, and Bell had a flat tire. In the pretrial statement, Austin placed the conversation with Bell “several days” after Mims disappeared, and did not mention anything about a flat tire. When Bell’s attorney cross-examined Austin at trial, he asked him, “Did Randy [Bell] tell you that Michael Joe [Hubbard] did anything on that occasion?” Austin replied, “No — no, not on that occasion he did not tell me.” Austin did not say that he had had more than one conversation with Bell about Mims. The prosecution did not re-direct. 3. Alleged deal for Austin’s testimony The question of whether a deal or agreement between the State and a witness existed is one of fact. Tarver v. Hopper, 169 F.3d 710, 717 (11th Cir.1999). Bell alleges that the State had a deal with Austin that he would receive leniency in the charges pending against him if he testified for the State in Bell’s trial. The evidence as to the alleged deal remains murky, so the court will review the evidence in some detail. In May 1982, ABI Agent Perdue, Investigator Mims, Assistant District Attorney Clardy, and two other police officers met to discuss the ongoing investigation into Charles Mims’s disappearance. Perdue wrote a memo after this meeting; the memo reveals that the investigators and Clardy thought that Austin might have information on Charles Mims’s disappearance, but that they thought he was more likely to cooperate if there were charges pending against him which they could use as leverage. Perdue’s memo reads in relevant part as follows: “The consensus opinion of the persons present was that a concentrated effort on narcotics dealers in West End (Clan-ton) was needed to determine if anyone other than Randy [Bell] knew the location of [Charles] Mims’ body. The primary target for this assignment would be Joe Austin, Jr., AKA ‘PICK’ who is an associate of [Bell] and is apparently heavily involved in cocaine and marijuana sales.” “Upon completion of the undercover operation it is hoped that ‘PICK’ may provide evidence against [Bell] in connection with the disappearance of Charles Mims if he (‘PICK’) is faced with narcotics charges stemming from the undercover operation.” It does not appear that Austin was ever arrested on narcotics charges. However, he was arrested for burglary and theft of property in Chilton County on August 24, 1982. He posted a $ 5,000 bond the same day. Although the record does not contain complete information on the matter, it is undisputed that, sometime before the Bell trial, Austin was also charged with robbery in Tuscaloosa County. The evidentiary record reveals that Austin was arrested again in Chilton County, this time on a charge of receiving stolen property on January 12, 1983. The Chil-ton County “Jailer’s Record” shows that Austin was arrested by “C. Wright” at 5:00 p.m. At 5:20 p.m. that same day, Austin gave his first pretrial statement, discussed above, in which he stated that Bell told him that Hubbard shot Charles Mims first. The investigators who took the statement were Agent Perdue and Charles Wright of the Chilton County Sheriffs Department. Austin posted bond on the receiving-stolen-property charge on the same day, January 12,1983. At some point between January and May of 1983, Austin gave another statement to the Alabama Bureau of Investigation that differed from the January 12 statement. The ABI statement was consistent with the testimony Austin would give at Bell’s trial. Austin was set to go to trial on all of the Chilton County charges (the burglary and theft-of-property charges, and the reeeiv-ing-stolen-property charge) on May 2, 1983, the same day that Bell’s capital-murder trial began. As Assistant District Attorney Clardy explained, in the 19th Judicial Circuit at that time only one week of criminal jury trials was held in each county in the spring, and one week in the fall. In the spring of 1983, none of the trials other than Bell’s actually took place, since Bell’s capital-murder trial took longer than most trials. Thus, Austin was not tried on the Chilton County charges in May 1983. The receiving-stolen-property charge was dropped (or “nol-prossed”) on October 30, 1984. Austin was rescheduled for trial on the burglary and theft charges on March 25, 1985, but he did not appear. He had since left Alabama and gone to Oregon; he stated in his deposition that this was in part to escape charges pending against him in Tuscaloosa County. A final judgment forfeiting his bond in the Chilton County burglary and theft case was entered on December 10, 1985. In April 1986, Clardy moved to nol-pross the Chilton County burglary and theft charges and to set aside the final judgment of forfeiture as to the bond Austin had posted; this motion was granted on April 25, 1986. This court does not have complete records about the robbery charges in Tuscaloosa County. However, it i§ undisputed that days after Bell was convicted of capital murder, ABI Agent Perdue sent a letter to Charles Freeman, District Attorney of Tuscaloosa County, asking Freeman to exercise leniency or drop the charges pending against Austin because of Austin’s testimony in Bell’s trial. The letter stated: “Joe Austin, Jr .... of Clanton is presently awaiting trial in your county on a charge of Theft in the Second Degree. It is my understanding the case is set for May 30,1983....” “On December 14, 1981 Charles Mims disappeared from Clanton. Information provided by Austin during the investigation and his testimony during a recent trial was crucial to the successful prosecution of Randy Turpin Bell, Alias Randy Cole, for Capital Murder in connection with Mims’ disappearance. [Bell] has been a ‘Thorn in the side’ of Chilton County Authorities for over ten years.” “Additionally Austin has provided State and Federal Authorities with information concerning the August 5, 1982 robbery of the Bank of Maplesville. Austin has appeared before a Federal Grand Jury and is scheduled to testify at the Federal Bank Robbery trial of the three defendants on May 23,1983.” “Austin has asked the writer to contact you regarding his pending ease in your county. The writer requests that Austin’s assistance to Law Enforcement in two major felony cases be considered when Austin’s case comes to trial. Any consideration that you would give towards allowing Austin to plead to a lesser offense which would enable him to retain his freedom, would be appreciated.” The primary evidence that Bell presents to show that Austin had a deal with the State is the testimony of Austin himself. Austin contends that Investigator Mims and Agent Perdue both told him that the Chilton County charges against him would be dropped if he testified in Bell’s trial. Austin signed a statement on August 1, 2000, which states in part: “3. On or about August 1982, I was arrested on burglary charges in Chilton County, Alabama.” “4. Several months after that, between August 1982 and January 1983, Investigators Benny Mims and John Perdue talked to me about the disappearance of Charlie Mims. They told me that ‘if I didn’t testify in the trial of Randy Bell, they would put me back in the penitentiary and my ass would never see daylight.’ ” “6. Before Randy Bell’s trial began, Investigators Benny Mims and John Per-due prepared me to testify at the trial. They carefully went over my testimony with me.” “7. I remember that both Investigators, Benny Mims and John Perdue, at different times told me that if I testified at Randy Bell’s trial and cooperated with them that I would not have to face the burglary charges against me. I was scheduled by the court for a hearing on these burglary charges at the same or about the same time as Randy Bell’s trial. Investigators Benny Mims and John Perdue told me that the burglary charges against me would be dropped if I testified at Randy Bell’s trial.” On July 9, 2002, the parties took Austin’s videotaped deposition in an Oregon prison, where Austin was incarcerated. In this deposition, Austin confirmed what he had said in the August 2000 sworn statement. Specifically, Austin stated that he remembers Investigator Mims or Agent Perdue telling him they would “put him back in the penitentiary” and that his “ass would never see daylight” if he did not testify about Charles Mims’s disappearance. Austin also confirmed that Investigator Mims and Agent Perdue told him that the Chilton County burglary charges would be dropped if he testified at Bell’s trial. In his deposition, Austin was also asked about the Tuscaloosa charges pending against him. Austin’s testimony on this matter was inconsistent. At first he did not remember that there were charges pending against him in Tuscaloosa at the time of Bell’s trial. When he was reminded about the charges, Austin insisted that they had nothing to do with the Bell case. When shown the letter that Agent Perdue wrote to the District Attorney of Tuscaloosa after Bell’s trial requesting that the Tuscaloosa charges be reduced, Austin stated that the letter had nothing to do with the Bell case and that he did not know about the letter until Bell’s attorney showed it to him. He explained that he left Alabama and went to Oregon after testifying at Bell’s trial in part to escape the Tuscaloosa charges, which were still pending against him. Austin stated that he still owes money to the people who helped him post bail in the Tuscaloosa case, because he jumped bail when he left Alabama. However, later in the deposition, Austin agreed that part of his agreement with Agent Perdue and Investigator Mims was that they would help him with the pending Tuscaloosa charges in exchange for his cooperation. Austin’s deposition testimony about his testimony at Bell’s trial was also confused, but sheds light on his credibility, memory, and motivations. At the beginning of his deposition, Austin incorrectly remembered the substance of his testimony in the Bell trial: he stated that he had testified for Bell by testifying that Bell had said Hubbard shot Charles Mims first. Later, after he was shown a transcript of his trial testimony, Austin said that he had originally intended to help Bell by testifying that Hubbard shot Mims first, but that “somehow it got twisted around.” Austin seemed to say that his story was “twisted around” due to the State’s promise that the charges against him would be dropped if he testified. Austin stated as follows: “I can say this, is that, you know, Randy [Bell] was a friend of mine. You know. Plus he was in my family, man. And I thought that — what I thought was the honorable thing to do was that — to try to free Randy on what he had told me, you know. And then it got twisted around, you know, on — you know, somehow it got twisted around, man.” “When I told these people, man, what Randy had told me, you know, and I was trying to free Randy by the charges that I had, that, you know, that they would dismiss the charges if I testified. You know what I’m saying? Which I thought I was testifying anyway, when I told — when I told them that Randy said that Michael Joe [Hubbard] had shot Mims. And then it got twisted around, so I don’t know.” Austin then had the following exchange with Bell’s attorney: “Bell’s attorney: In addition to trying to help Randy Bell, you were also trying to help yourself?” “Austin: Naturally. Naturally.” “Bell’s attorney: And that — -and that was because you had an agreement with [Investigator] Mims and [Agent] Perdue and with Prosecutor Hill before you testified that you would get lenient treatment?” “Austin: Yes, I did. Yes, I did. Yes.” The court views Austin’s initial failure to remember that he testified against Bell as evidence that Austin’s memory is very poor, and also as an instance of the human tendency to remember things in a way that is flattering to one’s self. Austin’s memory was shaped by his desire to think that he did “the honorable thing” by testifying that Bell told him Hubbard shot Charles Mims first. In fact, of course, he did not testify in this way. One explanation, and the one Bell urges the court to adopt, is that Austin changed his story because he had a deal with the prosecution that the charges pending against him would be dropped if he testified against Bell. As is demonstrated by Austin’s confusion over the Tuscaloosa County charges and his trial testimony, Austin’s memory as to key events surrounding Charles Mims’s disappearance and Bell’s trial is highly unreliable. Austin admitted in his deposition that his memory is “kind of shot” due to the passage of nearly 20 years since Bell’s trial, and due to his nearly daily use of crack cocaine in the intervening period. It cannot be disputed that Austin’s memory as to the events of the early 1980s is incomplete and incorrect on some points, including important points. However, the court notes that, while Austin’s recollection about certain topics is poor, in his deposition he showed a willingness to admit when he could not remember something. In weighing the evidence, the court will certainly keep in mind the weakness of Austin’s memory. Apart from Austin’s deposition, the main evidence that Bell presents to show a deal with Austin is the testimony of District Attorney Hill, who came from a neighboring judicial district to help with the Bell prosecution a few weeks before the trial began. On September 13, 2000, Hill completed an affidavit in which he stated: “I also know that Joseph C. Austin, Jr., otherwise known as ‘Pick,’ testified against Randy Bell. At the time, Pick had pending charges against him in Tuscaloosa, Alabama. The government agreed to help lessen his sentence in exchange for testifying against Randy Bell.” In its 2001 opinion, this court relied heavily on Hill’s seemingly unequivocal statement in concluding that there was “significant evidence” that there was a deal for Austin’s testimony. Bell, 2001 WL 1772140, *27. However, in a later deposition and in the evidentiary hearing held in this court in August 2002, District Attorney Hill clarified his assertion that the State had a deal with Austin for his testimony. Hill stated that he does not have “a distinct, independent recollection” that the government agreed to help reduce Austin’s sentence in exchange for his testimony, but that it was his “assumption and understanding” that this was the case. Hill’s assumption was based on his observations of Austin’s demeanor, his belief that Austin would not cooperate with law-enforcement officials “unless there was some benefit for him,” and the fact that, before he met with Austin the first time, someone had told him that Austin had charges pending against him in Tuscaloosa. Hill stated that “obviously the cases in Tuscaloosa had an importance or they would not have been brought to my attention.” While Hill’s assumption that there must have been a deal with Austin may be consistent with his long experience as a district attorney, even an informed assumption is not evidence. Thus, Hill’s testimony does not provide independent evidence to show that there was a deal for Austin’s testimony. However, District Attorney Hill’s testimony does present evidence that he himself threatened Austin with the possibility of an increased sentence in the Tuscaloosa case under a new “repeat offender” law, which was known colloquially as the “bitch” law, in order to convince him to cooperate with prosecutors in the Bell case. Hill testified that, before the Bell trial, he drove to the Chilton County Courthouse to help prepare Austin to testify. Assistant District Attorney Clardy was “talking to Mr. Austin about his testimony,” but Hill observed that Austin was “not looking at the interviewer, and he kept saying he wasn’t sure he remembered, his memory wasn’t real good. He seemed to be real fuzzy on details.” Hill intervened and, his words were: “I said Pick look at me when I talk to you which got his attention, and then you know what the bitch law is, which was a slang for Habitual Offender Act which was recently passed in Alabama. I said basically you’re wasting my time and unless you can start remembering what you said before, I’m fixing to go to Tuscaloosa and talk to my good friend Charlie Freeman and we’re going to discuss the bitch law on you.... ” “I was trying to impress upon him that if he didn’t testify and be a little more forthcoming, that I was going to see to it that Mr. Freeman knew that he had not cooperated with us in this investigation.” “[H]is reaction was that he suddenly his memory became very clear and I went over his testimony with him and I was following it based on the A.B.I. file and suddenly he had a rather distinct recollection that was exactly what was in the A.B.I. statement.” Again, the ABI statement that Hill refers to is not Austin’s January 12 statement, but the later statement which did not contain the information that Bell had said Hubbard had shot Charles Mims first. Austin confirmed that he remembered Hill’s threat to him. The court explicitly finds District Attorney Hill to be credible. The court does not find any reason to doubt his testimony. By admitting that he made the threat to Austin, Hill shows a willingness to admit to engaging in conduct that reflects poorly on him; this reflects well on his candor. Further, the State concedes that Hill made the statements about the “bitch” law to Austin, although it characterizes the statements as a “warning” rather than a threat. The respondents rebut Bell’s allegation that the State had a deal with Austin by presenting the testimony of Assistant District Attorney Clardy, Investigator Mims, and Agent Perdue. Both Clardy and Investigator Mims stated that they did not make any deals or agree to arrange for any leniency with Austin in exchange for his testimony or cooperation in the Bell trial. Investigator Mims specifically denied Austin’s allegations that he told Austin he would not have to face the burglary charges against him if he testified, and that he would put Austin in the penitentiary and his “ass would never see daylight” if he did not testify. Investigator Mims further stated that he did not have the authority to make any deals with Austin. Clardy and Investigator Mims also both stated that they did not remember Hill’s threat about the “bitch law,” although Hill stated that he specifically remembered Clardy and Investigator Mims being in the room at the time he made that statement. When asked why she moved to have the Chilton County charges against Austin nol-prossed three years after the Bell case, Clardy stated that she did not remember. ABI Agent Perdue testified somewhat more ambivalently about whether there was a deal with Austin. Perdue stated that he did not remember there being any agreement, but also stated he could not “tell you absolutely that there was not something said that could have been misinterpreted by him or there could have been something said that indicated otherwise.” Perdue stated that Austin first volunteered information after he was arrested on the Chilton County charges. When asked how Austin became a witness, Perdue replied that Austin “volunteered information after he was arrested on an unrelated — totally unrelated case. Joe Austin, Junior, kind of fell into our lap so to speak. You know, there was just out of the clear blue on that receiving and concealing stolen property charge.” Agent Perdue remembers discussing the Chilton County charges with Austin before Bell’s trial. Perdue stated in 1996 that he “can vaguely remember him talking to me about problems and me telling him we will discuss that later,” and agreed that Austin “probably” let it be known that he would seek Perdue’s assistance after the trial. In Perdue’s 2002 deposition, Bell’s attorney asked, “Do you remember him asking you in any way to help him out with those charges if he cooperated in the Randy Bell case?” Perdue answered that Austin “made a comment something that he always held something back in case he ever needed it.” Perdue further stated that he told Austin to tell the truth, and that “after that, if he had any questions about any cases, that they could be discussed at that time. But I couldn’t promise him anything. That wasn’t up to me.” Agent Perdue confirmed that after Bell was convicted he wrote a letter to Tuscaloosa District Attorney Charles Freeman, asking him to reduce the charges against Austin because of his “crucial” testimony in the Bell trial and his assistance to the government in another case. In a deposition he gave in 1996, Perdue stated that Austin asked for his help with the Tuscaloosa charges after Bell’s trial was over. In a deposition he gave in 2002, Perdue stated that he wrote the letter at Austin’s request, and that he “presume[s]” that Austin asked him to write it after Bell’s trial. Based on a careful examination and consideration of all the evidence before it, the court finds that Bell has not proved by a preponderance of the evidence that the State had an agreement with Austin before he testified that he would receive leniency in any other case in exchange for his testimony. While Bell has presented a fairly good circumstantial case that the State may have offered Austin some consideration for his favorable testimony, some of the evidence is not consistent with this explanation. Specifically, the timing of Agent Perdue’s letter to the Tuscaloosa District Attorney might suggest that the State had agreed to help Austin with the Tuscaloosa County charges against him in exchange for his testimony, but Austin stated repeatedly that the Tuscaloosa County charges were not related to the Bell case. Indeed, Austin stated that he fled Alabama in part to escape those charges; this is strong evidence that he did not expect them to be dismissed. Also, the burglary and theft charges in Chilton County were not dismissed until several years after the Bell trial; this weakens the inference that their dismissal was a result of Austin’s testimony. Austin is the only witness who offered direct testimony that there was an agreement before Bell’s trial. He stated that Investigator Mims and Agent Perdue told him that the Chilton County charges against him would be dropped if he testified. However, both Investigator Mims and Agent Perdue denied that they told Austin this. They both explained that they would not make such a promise because it was beyond their power to do so. As noted above, while the court does not entirely discount Austin’s testimony, and although he did state consistently in his deposition that he was offered leniency in exchange for his testimony, his memory is particularly unreliable due to his years of drug use. As will be discussed later, the court finds it likely that Austin got the impression that he would be treated more leniently if he testified for the State; however, Bell has not proven by a preponderance of the evidence that there was any actual agreement that this would happen. Further, while the explanation that the State made a deal with Austin before Bell’s trial is one plausible explanation for the evidence described previously, other explanations would also be consistent with the evidence. For instance, Austin could have simply assumed that he would be treated more favorably if he testified for the State. However, finding that the State did not make an explicit deal with Austin before Bell’s trial does not end the court’s inquiry. The court finds that Bell has shown by a preponderance of the evidence that Agent Perdue did discuss Austin’s pending charges with him before the trial, and told him that if he had any questions about charges pending against him, they could discuss the matter later. Further, the court finds that Perdue expected Austin to ask him for help with the pending charges after the trial. Perdue testified that this was the case, and his letter to the Tuscaloosa District Attorney days after the trial shows that Austin did ask for help and that Perdue obliged. The court also finds that, while preparing Austin for trial, District Attorney Hill threatened Austin that, if he did not start remembering things according to his written ABI statement, Hill would speak with the Tuscaloosa District Attorney about Austin and the newly-enacted Habitual Offender Law (“the bitch law”). As Hill testified, immediately after he made this threat, Austin began to remember “exactly” what was in the ABI report. He then went on to testify at Bell’s trial consistent with that report. B. Michael Joe Hubbard In this court’s 2001 order, the court stated that Bell had introduced new evidence that the State may have had a deal with Hubbard. Bell introduced two letters that Hubbard wrote in 1993, which were “strong,” although not “conclusive,” evidence that such a deal existed. The court held an evidentiary hearing in part to “weigh and probe the weight of Hubbard’s letter, and Hubbard’s own credibility regarding its contents, before denying or granting relief on this claim.” Bell, 2001 WL 1772140, *31. As is the case with Austin, the question of whether the State had a deal with Hubbard is not clear, so the court will review the evidence in detail. On December 18, 1981, four days after Charles Mims disappeared, Investigator Mims brought Hubbard, who was then 18 years old, into the Chilton County Sheriffs Department to interview him about Charles Mims’s disappearance. At that time, Hubbard stated that he had seen Bell on December 14, but that he had not spoken to him or gotten into his car. Hubbard also denied making any phone calls to Charles Mims on December 14. The Sheriffs Department administered a polygraph test, and based on the results of the test the polygraphist stated in a memo that he believed that Hubbard had actually seen Charles Mims on December 14, that he knew where Charles Mims was located, and that he had been “involved in taking Charles somewhere Monday night.” However, the polygraphist stated that the polygraph results “do not indicate that [Hubbard] was involved in a fight with Charles Mims last Monday night.” The next day, December 19, 1981, Hubbard was arrested for robbing one Sam Malachi. At Hubbard’s initial appearance in this case on December 21, attorney Robert L. Bowers, Sr. was appointed to represent him. Hubbard was charged with first degree robbery. On March 3, 1982, while he was still in jail on the Malachi case, Hubbard told investigators that Bell had shot and killed Charles Mims with a .25 caliber pistol during a robbery and that he, Hubbard, was an unwilling participant. On the same day, Hubbard, accompanied by Bowers, showed investigators the location where he said the crime had occurred. The investigators searched the area, but did not find any physical evidence. On March 9, Hubbard underwent another polygraph examination, which indicated that he was “not attempting deception when questioned about the murder of Mims by [Bell].” On March 12, Hubbard signed a written statement which was almost identical to the testimony he would later give at Bell’s trial; in this statement, Hubbard detailed how Bell robbed and shot Charles Mims. In the statement Hubbard also stated that Bell spoke with him on December 18,1981, and told him that the police would pick Hubbard up to speak to him about Charles Mims. According to the statement, Bell asked Hubbard, “What do you know about it?” and Hubbard replied, “I don’t know nothing.” Bell replied, “That’s what I want you to say — you don’t know nothing.” In his March 12 statement, Hubbard said that he had not previously told the police what had happened because he was “afraid Randy [Bell] would kill me if I did.” The statement went on to say that Bell had visited Hubbard in the county jail a few days after December 19, after Hubbard was arrested for the Malachi robbery, and had asked again if Hubbard had “told them anything.” Hubbard answered, “No, I ain’t told them nothing,” and Bell answered, “Don’t worry about the body, I took care of that thing. Just be cool.” Finally, Hubbard’s March 12 statement says that he consulted with his attorney before deciding to tell investigators what had really happened to Mims. The statement does not indicate that he was offered anything in exchange for his cooperation. Hubbard remained in jail on the Malachi robbery charge until April 9, 1982, when he posted bond. Hubbard was arrested on different robbery charges, for the robbery of King Christian, on January 25, 1983. He was released on bond the next day. Hubbard was eventually charged with second degree robbery in this case. Bell’s capital-murder trial began on May 2, 1983. For several weeks before the trial, the State paid for Hubbard to stay at the Holiday Inn. Hubbard testified at Bell’s trial that he was being kept in “protective custody.” After Bell was convicted and sentenced to death, both robbery charges against Hubbard were dropped. The Malachi charges were nol-prossed on July 19, 1983; the Christian charges were nol-prossed on September 20, 1983. In an earlier eoram nobis proceeding in which Bell challenged his conviction and death sentence, a state court found that these charges were dropped at the request of the victims, Malachi and Christian. In 1993, Hubbard was incarcerated at Draper Correctional Facility in Elmore, Alabama. He wrote two letters to Bowers, who had been his attorney in the Malachi case. Hubbard asked Bowers to help him get transferred to a prison in another State because he felt his life was in danger; friends of Bell’s, who were also incarcerated at Draper, knew that he had testified against Bell and were threatening him. One of the letters states that Hubbard was offered immunity and an agreement that he would be moved to another state in exchange for his testimony in Bell’s trial. The first letter, dated June 3, 1993, states in part: ■ “Dear Sir: I’m writing you in concern with matters in which you represent me in 1981 whereas I was called by the State to testify against Randy Bell in a Capital Murder case.” “During the course of the trial I was offered immunity and an agreement that I would receive an opportunity to move to another state and change my identity for protection. In this case the prosecutor was the honorable Janice Claudia Williams and the Honorable Judge Bush.” “Sir at the time I was offered said agreement in exchange for my testimony I did not except the full agreement at that time because I had not receive any threat and was not confined in the Alabama penal system.” “... Since my incarceration here at Draper I have ran into another problem with an associate of Randy Bell ... He has been sending messages that I am an informer and a snitch and that nobody over here should in any way associate with me. He has also made a threat that I need killing because I turn state evidence on Randy Bell ...” “I would appreciate it if you could talk with prosecutor Jannice Williams and Honorable Judge Bush about said matter and send me affidavit saying the state did guaranteed protection for my testimony.” Bowers did not send Hubbard an affidavit saying that the State had guaranteed Hubbard protection, but he did speak with Investigator Mims about Hubbard’s letter and his request to be transferred. Hubbard’s second letter to Bowers, sent July 19,1993, states: “I’m writing you in concern of my previous letter, thank you very much for contacting the district attorney office, Mr. Benny Mims the investigator for their office call down here on July 2, 1993 but we could not talk at that time in privacy because the Captain was in the room and I explain that to Benny so he assured me that he would be down here to draper in person the following Friday which was July 9, 1993 but he fail to keep his appointment.” “I then called Benny house several times on three way communication but could not get in touch with him personally, so I left messages.... ” “Sir basically what I would appreciate for you to do is to see to it that I am immediately transferred from Draper Correction Facility....” At some point after this, Investigator Mims or Assistant District Attorney Clar-dy arranged with the Alabama Department of Corrections to have Hubbard transferred to a prison in Arkansas. As this court noted in its 2001 opinion, Hubbard’s letter is strong evidence that the State offered him immunity in exchange for his testimony at Bell’s trial. The existence of such a deal was not disclosed to the defense. However, this court also noted that it is necessary to “weigh and probe the weight of Hubbard’s letter, and Hubbard’s own credibility regarding its contents, before denying or granting relief on this claim.” Bell, 2001 WL 1772140, *31. Hubbard did not attend the evidentiary hearing that this court held in August 2002, but a videotaped deposition that he gave in July 2002 was-introduced as evidence. In the deposition, Bell’s counsel questioned Hubbard extensively about his 1993 letters to Bowers and about whether the State promised him anything in exchange for his testimony at Bell’s trial. Hubbard stated repeatedly that no-one from the State ever spoke with him directly about any deal or immunity in exchange for his testimony. However, Hubbard stated that Bowers, his lawyer, told him that he would receive immunity and protection in exchange for his testimony. Hubbard explained that he decided to start cooperating with the investigators in March 1982 because he realized that Bell might try to blame him for Charles Mims’s murder. Hubbard told Bowers that Bell had killed Charles Mims, and Bowers spoke with the investigators on Hubbard’s behalf. According to Hubbard, Bowers told him that if he testified at trial and cooperated with the prosecution that he would be only a witness and not a defendant; and that the government would protect him, help him move to another State, and change his identity. Specifically, Hubbard said: “Well, [Bowers] told me that for my testimony that I wouldn’t be charged with the crime, and I would have the opportunity to move to another state, change my identity and get a new life, you know. That was basically it.” Hubbard stated that he did not discuss this directly with anyone from the State; instead, he said, Bowers “would talk to them and then he — then he would come back and let me know what was happening.” When the respondents’ attorney asked Hubbard what he meant by “immunity” in his June 1993 letter to Bowers, Hubbard answered, “Well, Robert Bowers, when he — when he came and told me that an immunity means that I wouldn’t be charged with the murder, if I told the truth about what had happened, that I would get a chance to move to another state and change my identity and so on like that.” The court has some doubts about whether Hubbard was revealing the full extent of his communications with the State during his deposition. Hubbard was eager to deny any involvement, or discussions, with the State’s investigators and prosecutors, to the point that he made false statements in order to minimize his contact with them. Specifically, Hubbard vehemently insisted that no-one prepared him to testify at Bell’s trial. That position, however, is inconsistent with the testimony of all the other witnesses and is simply implausible, given that he was the prosecution’s key witness in a capital-murder trial. Hubbard stated that he did not speak with Assistant District Attorney Clardy before the trial; this is also not credible or consistent with the testimony of the other witnesses. Hubbard also insisted that he spoke with Investigator Mims only once during the weeks that he stayed at the Holiday Inn before Bell’s trial. However, Investigator Mims stated that he spoke with Hubbard almost every day during this period. More generally, Hubbard denied having any relationship with Investigator Mims, even though he wrote him a letter as recently as 2000 which he signed “your friend for life.” Hubbard’s reluctance to tell Bell’s counsel about his dealings with the State may stem from Hubbard’s general desire not to help Bell because of Bell’s alleged threats on Hubbard’s life. Also, in Hubbard’s 2000 letter to Investigator Mims, he told him that Bell’s attorney had visited him in prison and expressed concern that Bell’s attorney might be blocking his parole plan. Of course, Hubbard’s inability to remember certain details of the period surrounding Bell’s trial is not surprising, and by itself would not mean that he is lacking in credibility. However, the fact that Hubbard’s misstatements consistently minimized his contacts with the prosecutors and the State’s investigators leads the court to believe that he was purposefully obfuscating rather than simply failing to remember details. Further, Hubbard’s claim not to have any relationship with Investigator Mims when he apparently considered him a good Mend as recently as 2000 belies the possibility that Hubbard’s misstatements are simply due to lapses in memory. The fact that Hubbard lied in order to minimize his dealings with the State strengthens the conclusion that he was not lying when he stated, in his 1993 letters and in his deposition, that the State promised him he would not be prosecuted in relation to Charles Mims’s murder if he testified at Bell’s trial. In his 1993 letter to Bowers, Hubbard had no reason to fabricate the State’s offer of immunity; rather, he had an incentive to remind Bowers of what the State had promised him. Further, if the State had only promised Hubbard that it would try to protect him by helping him move to another State after Bell’s trial, Hubbard could have simply said this in his letter. In his deposition, Hubbard admitted that the State had offered him immunity (albeit through Bowers) even though his general pattern was to minimize any contacts he had had with the State. No other witness provided direct evidence to corroborate Bell’s allegation that the State’s investigators or prosecutors made Hubbard a formal promise of immunity in exchange for his testimony in Bell’s trial. Prosecutor Clardy explained that Hubbard began to cooperate with the prosecution without being promised anything. Clardy said that Hubbard “called his lawyer and told him he wanted to tell him something,” and then Bowers contacted her or the investigators, and Hubbard told them what had happened. Clardy described Hubbard’s cooperation as coming “out of the clear blue.” According to Clardy, Hubbard was “a scared kid” who “said he couldn’t sleep at night and he had [to] tell us what had happened.” Clardy was the main decision-maker in the Charles Mims case, and also in the decision to drop the Malachi and Christian robbery charges against Hubbard after the trial. However, she denied that she offered Hubbard anything in exchange for his testimony, or threatened him with the charges pending against him. She denied that Hubbard told her he would testify as the government wished if she would help him with the pending charges, or if she would agree not to charge him with Charles Mims’s murder. She conceded that Hubbard “may have thought” that she would help him with the pending charges, although she “never told him that I would or I wouldn’t [help him].” Clardy stated that she did not charge Hubbard in relation to Charles Mims’s murder because she did not believe he was a participant in the murder. Referring to March 3, 1982, when Hubbard first told the story of how Bell killed Charles Mims and showed investigators the place where it allegedly happened, Clardy said: “I get emotional talking about it. The day that Michael Joe [Hubbard] showed us what happened, I watched his face and I saw how terrified he was. He was afraid for his life. And I never considered him a co-defendant, never.” “He was a kid that was in the wrong place at the wrong time. And he was afraid that Randy [Bell] was going to kill him, and I was too. I was afraid that Randy was going to have him killed to keep from being prosecuted.” “I never considered him a participant. I considered him just like somebody who might have been standing in a bank when somebody robbed it and is forced to do certain things. And I never considered him a co-defendant; I never considered him a participant.” Clardy did say that she told Hubbard that he needed to tell the truth, and that in light of his fear of Bell she would “do everything in my power to keep him safe.” She stated that Hubbard was kept in the Holiday Inn before the trial in order to ensure his safety; he had been in the Chilton County Jail prior to that, but she was afraid that he might be killed in jail. Clardy also confirmed that she helped arrange for Hubbard to be transferred from Alabama to Arkansas in 1993. She said this was because Hubbard felt threatened in prison. When asked about the letter in which Hubbard stated that he had been offered “immunity” in exchange for his testimony in the Bell ease, Clardy surmised that Hubbard might have been referring to her telling him that she did not think he had done anything wrong: “I just believe that he did not understand the workings — I don’t know why he called it immunity. I told him that if he testified and told the truth — that I never thought he did anything wrong. So, I mean, that — that could be him saying I offered him immunity.” “Again, I didn’t call it offering him immunity, but he knew that I believed his story and I didn’t think he was guilty of anything. So if that is loosely translated to offering immunity, I guess that may be where he got it from.” Clardy stated that, during the years when she was a prosecutor, her general practice was to tell witnesses and defendants that “[i]f you’re truthful with me and you’re truthful with the Court, I will do the right thing by you.” In a particular ease, the “right thing” might involve “trying to help them get back on the right road or trying to help them get help with a drug problem, whatever.” She stated that defense attorneys probably advised their clients to talk to her because “the defense attorneys know me well enough to know that if X — if somebody deserved a chance, I would give it to them.” However, Clardy pointed out that at the time of Bell’s trial, she had only been an Assistant District Attorney for a short time, and so she h