Citations
- 740 F. Supp. 2d 802
Full opinion text
MEMORANDUM OPINION AND ORDER
KEITH STARRETT, District Judge.
Introduction.
Richard Gerald Jordan was convicted of capital murder in the Circuit Court of Harrison County. He has had two trials on guilt and sentence — one in 1976 and one in 1977. He has had two additional sentencing trials- — in 1983 and 1998. The 1998 sentence is currently before the court on a habeas petition.
Facts of the crime.
Jordan was charged with capital murder in the course of a kidnaping. In 1976, after he discovered that she was the wife of a commercial loan officer at Gulf National Bank, he kidnapped Edwina Marter from her home. Jordan gained entry to the home by pretending to be a utility worker and then, at gunpoint, forced Marter to leave her sleeping three-year-old child. He had Marter drive to a secluded area in the woods north of Gulfport, where Jordan shot Marter in the back of the head with a single bullet, killing her. He then threw the gun into the Big Biloxi River.
After killing Edwina Marter, Jordan called her husband, Charles Marter, demanding a ransom. After two aborted attempts to deliver the money, Marter ultimately dropped it off on the side of Interstate 10 the next day after his wife was kidnapped. Officials had been alerted to the situation, and two officers saw Jordan take the money. They chased Jordan’s vehicle until he ran them off the road, after which Jordan abandoned his vehicle, bought new clothes, and attempted to flee the area. He was discovered in a cab at a road block and arrested.
Jordan confessed to the kidnaping shortly after his arrest, and he told officers where they could find Mrs. Marter. It was not until they found Mrs. Marter’s body that law enforcement realized she had been killed. She was found face-down on a slight slope in the woods. David Melton, an investigator with the Harrison County Sheriffs Department, was at the scene when the body was found, and he was asked to lead the investigation. Another investigator from the Sheriffs Department, Bob Allbritton, was with Melton at the scene. Jordan also showed officers where they could find the murder weapon, and he led them to his discarded shirt and pants. Finally, Jordan took the officers to the place where he had hidden the ransom money.
Later that afternoon, Jordan was taken before a county judge for an initial appearanee, where he asked to be represented by counsel during future proceedings. The FBI declined to prosecute the case, turning it over to state authorities. After Jordan was returned to his cell, Allbritton learned that his office would be taking the lead in the case, so he went to the jail to take Jordan’s photograph and fingerprints. Unaware of the earlier proceedings before the county judge, Allbritton asked Jordan if he would talk to him about the crime. After being advised of his rights (apparently for the fifth time that day), Jordan gave a statement, which was later repeated on tape. The taped statement was subsequently transcribed, but Jordan refused to sign it. Jordan was ultimately tried and found guilty of capital murder in the course of a kidnaping and was sentenced to death.
Procedural history of Jordan’s cases.
Jordan has been tried four times, and the details of those trials are more fully set out below.
The 1976 trial.
At his first trial, Jordan was represented by Earl Denham and Rhett Russell, and Albert Necaise and Joe Sam Owen were the prosecutors. The case had been moved from Harrison County to Jackson County, and Judge Darwin Maples presided. Prior to the trial, defense counsel moved for a psychiatric examination, and Jordan was examined by personnel from the Gulf Coast Mental Health Center, including Dr. Clifton B. Davis. On March 3, 1976, Dr. Davis’s office mailed his report, as well as the intake report conducted at the facility, to Rhett Russell. The intake report contains the following information that was reported by Jordan:
Upon graduation from high school in August, 1964, Mr. Jordan enlisted in the U.S. Army. He was charged with check forgery in 1964 and was told that these charges would be dropped if he consented to join the Army, which he did. He was court-martialed in 1970 for falsification of official documents and was sentenced to 9 months in Leavenworth. He received a dishonorable discharge from the Army in August 1971.
Dr. Davis’s report also contains other information that Jordan related to him, including Jordan’s version of the kidnap and murder, which he reported included an accomplice, who was the man who actually shot Marter. According to Dr. Davis, “He then explained that the FBI was more or less responsible for the woman’s death since they blundered the job in following instructions. He comments that he is sorry that she was killed but then shrugged this off by saying “better luck next time.” Dr. Davis concluded that Jordan had an antisocial personality, but that he was competent to stand trial.
Prior to the change of venue, Judge Floyd Logan held a competency hearing, in which Dr. Davis testified for the defense. The question of whether Jordan’s discharge was honorable or dishonorable was the subject of much debate in the fourth trial, but it was not discussed at this hearing. The basis of the questioning was his diagnosis of antisocial personality and whether that condition would prevent Jordan from fully understanding the gravity of the charges against him. The underlying information given to Davis was not examined. Rhett Russell, one of Jordan’s attorneys, also testified that Jordan seemed unusually detached and unaware of the seriousness of his situation. However, he presented no evidence indicating that the information reported by Davis was inaccurate. The trial court ruled that Jordan was competent to stand trial. Dr. Davis did not testify at the 1976 trial, or any trial thereafter. However, these reports are relevant to this habeas petition because they were relied on by the psychiatric expert who examined Jordan prior to the 1998 trial.
David Melton, who investigated the crime scene where Mrs. Marter’s body was found, testified briefly at the first trial. He was not questioned at all about his investigation of the crime scene, but was called solely to establish the chain of custody for evidence that had been taken to the FBI’s crime lab in Washington, D.C. The actual photographs of Marter’s body as it was found at the crime scene were introduced through Agent Watts of the FBI.
Both Jordan’s initial statement to Agent Watts and his later statement to Deputy Allbritton were admitted into evidence. In both statements, Jordan stated that he shot Mrs. Marter accidentally while she was attempting to escape from him. That was the theory of the murder that was recounted in the closing arguments of both sides.
Jordan was tried under then-existing law, where, after he was found guilty of capital murder, he was automatically sentenced to death. He moved for a new trial. During the time that the motion was pending, the Mississippi Supreme Court issued its opinion in Jackson v. State, 337 So.2d 1242 (Miss.1976), in which it mandated a bifurcated proceeding in capital murder cases. Based on that decision, Judge Maples granted the motion for a new trial.
The 1977 trial.
The 1977 trial occurred after the law changed to require the jury to analyze both aggravating and mitigating circumstances before imposing a sentence. Jordan was again represented by Denham and Russell, and Necaise and Owen prosecuted the case. The case was heard before Judge Maples, who adopted the pretrial rulings from the first trial, both those made by Judge Logan and by himself.
Jordan was convicted of capital murder on, essentially, the same evidence as before. During the sentencing phase, the State offered new evidence as to the manner of Marter’s killing in order to show that she was shot execution-style, which was used as an aggravating circumstance. Dave Melton did not testify at all during the guilt phase; however, during the sentencing phase of the trial, the state attempted to introduce testimony from Melton regarding blood spatters that he had observed at the murder scene.
Melton wrote a twenty-page investigative report, which was not introduced at any trial, but was given to defense counsel during discovery. With regard to the appearance of the body when it was found, Melton’s report relates:
The body was observed as follows: (by investigators MELTON and ALLBRITTON)
White-female
Brown, frosted hair
Sandal-type shoes
Greenish-yellow, reptile skin-type coat
Faded jeans
Rings (jewelry) on some fingers
Appeared to have a bullet wound to the
back of the head
The body was positioned as follows:
Face straight down
All limbs completely extended
Ankles crossed
Palms up
Lying in a north-to-south direction with top of head pointed approximately south
There was a great deal of blood drainage from the head down a very slight incline on the ground (away from the head (southerly)). By the left shoulder there appeared to be keys on a ring lying on the ground. Also on the ground nearby were two “inside” gum wrappers and a green Kleenex-type tissue.
Additionally, after the coroner arrived and turned Marter’s body over, Melton made the following notes:
The body was found to have a large wound to the center of the forehead that appeared to be a gunshot exit wound. The face was covered with blood and the face appeared “distorted” from having been against the ground for a number of hours. Lividity was present. In addition to the clothing previously described, it was now possible to see a white blouse.
Although Melton’s report described in detail the scene in which Marter’s body was discovered, it completely failed to note any blood spatters at the scene. Nonetheless, Melton was prepared to testify at trial that he observed blood spatters at the scene and that, based on his training and experience, they indicated that Marter was not running away when she was shot, but kneeling in front of Jordan. This evidence was to be offered as an aggravating circumstance. Based on the Jackson opinion, the trial court excluded that evidence, finding it improper because it was not offered during the guilt phase. However, Dr. Atchison, the pathologist who conducted Marter’s autopsy, testified during the guilt phase as to the cause of death and the path of the bullet, which he described as traveling “upward.” Despite this limited testimony as to Marter’s position at the time she was killed, both Owen and Necaise were permitted to argue to the jury that she was on her knees when she was shot.
Jordan offered evidence in mitigation, including character testimony from both his family and friends. As stated earlier, Dr. Davis, the psychiatrist who had earlier examined Jordan, did not testify, nor was his report offered into evidence. Some of Jordan’s witnesses mentioned his military service, and both of his parents testified that he had been honorably discharged.
After about an hour of deliberation, the jury reported that it was deadlocked, with one juror unable to reach a decision. However, the jury was sent back to continue to deliberate, and, approximately forty-five minutes later, announced its decision that Jordan should receive the death penalty. Jordan’s conviction and sentence were upheld by the Mississippi Supreme Court. He filed a habeas petition in this court, which was denied, but the Fifth Circuit granted habeas relief on grounds of an improper instruction. Jordan v. Watkins, 681 F.2d 1067 (5th Cir.1982).
The 1983 trial.
In 1983, Necaise and Scherry Leshieur from the Harrison County District Attorney’s office prosecuted the case, along with Joe Sam Owen, who appeared as a special prosecutor. The order appointing Owen states that it was done at the family’s request, as well as the request of the District Attorney, “in order to facilitate the trial.” The order also states that “the Defendant has no objections to this appointment.” Jordan was represented by Joseph Hudson, Earl Stegall, and James Kilbreth of Washington, D.C.
At this trial, Dave Melton was permitted to testify about the blood spatters that he had observed in his initial investigation. Melton’s expertise was based on a week-long blood stain evidence course with Dr. Herbert MacDonnell. According to Melton, the high velocity blood stains that he found behind Marter’s body indicated that she was not running when she was shot. On cross-examination, Melton opined that Marter could have been shot while she was on her knees.
Dr. Atchison augmented his earlier testimony with his opinion that the gunshot wound to Marter’s head was a “near wound” — that is, that the gun was somewhere between 30 inches and four feet from her head when it was fired. (He apparently used the phrase “near wound” in his original autopsy report, which was not admitted into evidence until the 1998 trial.) Atchison also testified that the trajectory of the bullet suggested that she could have been kneeling, with her head bowed, or that it was possible that she was running away. After that testimony, Judge Maples granted a defense motion to reimburse a pathologist to testify on Jordan’s behalf. The defense later presented testimony from Dr. Roland Sampson to the effect that it was impossible to determine from Dr. Atchison’s autopsy report the distance from which Marter was shot.
At this trial, Jordan offered substantial mitigation evidence, including his own testimony, in which he stated that he was honorably discharged from the military. Jordan’s brother, Robert, also testified, telling the jury that they were both in Vietnam, but that, when they discovered that two brothers did not have to serve in the country at the same time, Jordan reenlisted so that Robert could return to the States. Jordan also offered testimony from his former attorney, Rhett Russell, to the effect that he had invented a device that converted wind energy into electrical power, in which the Tennessee Valley Authority had shown some interest. The trial court did not permit Russell to testify before the jury, however.
Jordan was again sentenced to death, and the sentence was affirmed by the Mississippi Supreme Court, but reversed and remanded by the United States Supreme Court on grounds that Jordan was impermissibly limited in presenting mitigation evidence, citing Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). The Mississippi Supreme Court remanded the case to the trial court for another sentencing trial. Despite the reversal of his death penalty, Jordan again attempted to appeal his underlying conviction, both in state and federal court, on grounds that his statement to Allbritton was wrongfully admitted in contravention of Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). This court denied his habeas petition as successive, as the issue had been presented in his earlier habeas petition and rejected, but the Fifth Circuit granted a certificate of probable cause for an appeal.
Before that appeal could be considered, however, Jordan entered into a plea bargain with the state, in which he agreed to accept a sentence of life without parole in return for his promise not to collaterally attack that sentence. At that time, Jordan was represented by Joseph Hudson, who had represented him in the 1983 trial, along with Rob McDuff. In accepting that plea, Joe Sam Owen, still acting as special prosecutor, signed a document titled “Stipulated Circumstances Mitigating Against the Death Penalty for Richard Gerald Jordan.” That stipulation contained ten reasons supporting a life sentence, including Jordan’s prison record, his expressions of remorse, and his military service and honorable discharge. During a hearing on the guilty plea, Owen repeated those reasons as justifying his offering Jordan a plea bargain.
In 1994, the Mississippi Supreme Court issued its opinion in Lanier v. State, 635 So.2d 813 (Miss.1994), invalidating a plea agreement to life without parole for a crime committed before that sentence was an option for a defendant who was not convicted as a habitual offender. Shortly after that decision was issued, Jordan filed a motion to amend or correct his sentence, asking that the court apply Lanier to reduce his sentence to life imprisonment by deleting any reference in the plea agreements not to seek parole. The Mississippi Supreme Court, in an unpublished opinion, vacated Jordan’s sentence, but ruled that the prosecutor could seek the death penalty in a subsequent proceeding. Jordan v. State, No. 95-KP-113SCT, 697 So.2d 1190 (Miss. July 17, 1997).
The 1998 trial.
Circuit Court Judge Kosta Vlahos presided at Jordan’s fourth trial, at which Joe Sam Owen acted as special prosecutor, on an appointment from the Attorney General of Mississippi. Owen’s participation in the trial was challenged by Jordan by way of a pretrial motion that was denied by the trial judge. Jordan filed a motion offering to plead guilty in return for a sentence of life without parole, thereby waiving any ex post facto challenge to the application of that sentence, and he testified to that effect at a hearing on that motion. The motion was denied, Judge Vlahos concluding that he had no jurisdiction to accept that sentence in the absence of a waiver of the death penalty by the State. (Twillie, which would have permitted the plea, had not yet been decided.)
Tom Sumrall and Waide Baine represented Jordan, and their competence is an issue in this habeas petition. In particular, Jordan argues that they were inadequately prepared for trial because they did not review the records of the previous trials. The record shows that Sumrall was appointed on August 28, 1997. In December, he moved the court for additional time to file motions because he had just recently acquired the transcripts of the previous proceedings, but had not had time to review them. During the hearing on that motion, Sumrall stated that he had transcripts of previous trials, but had not been given any work files by the attorneys.
Both before and after trial, it was obvious that the attorneys were confused about the location, or even existence, of the complete record of prior trial proceedings. In particular, the attorneys state at various times during the 1998 proceedings that the 1976 trial record was missing or lost. The procedural history of the case likely caused some of that confusion — because the 1976 trial was not appealed beyond the trial court, no appellate record was made. Instead, the 1976 transcript was included as an exhibit to the 1977 transcript, and the two trials are contained in one Mississippi Supreme Court record as case number “DP-8.” Absent a careful review of that record, an attorney might not be aware that this case actually contained the transcripts of two trials. However, the prosecutor stated that the evidence to be used in 1998 was essentially the same as was used in the 1983 trial, and defense counsel may have relied on that statement to neglect to review prior transcripts.
Prior to trial, Jordan moved for a psychiatric examination, primarily to determine whether he suffered from post-traumatic stress syndrome, due to his military service. Jordan had also filed a motion to be present at all proceedings, and that motion was granted. However, a hearing on the motion for a psychiatric examination was held in chambers, with the prosecutor participating by telephone, and the record states that Jordan’s presence at the hearing was waived by his attorney. The State did not object to a psychiatric examination, but argued that it was entitled to a copy of the examiner’s report, pursuant to Ms. Cir. Ct. R. 9.04. The trial judge ordered that the report be submitted to the court, with the understanding that it would be disseminated to both sides unless the defense found authority to the contrary. Ultimately, Jordan was examined by Dr. Henry A. Maggio, and his report was furnished to both sides.
Maggio’s report contains a long recitation of Jordan’s history, as provided by Jordan, including his statement that he served for eight years in the military on active duty, until he was honorably discharged. However, Maggio also reviewed the earlier intake report and Dr. Davis’s report (the prosecutor was requested by defense counsel and directed by the court to make those documents available to Maggio), and his assessment of Jordan’s story is as follows:
Review of the previous intake interview and psychiatric evaluation reveals a consistency of some of the history; however, there are moments of inconsistency in which Mr. Jordan previously acknowledged that he had a always been a good con man. He has done a number of illegal activities but had not been caught except on one or two occasions; that he had been fired or asked to resign because of embezzlement of $43,000.00 that while he was under financial pressures he wrote bad checks and then was searching for a way for quick money at which time he considered bank robbery with kidnaping and extortion and had worked out the plan himself. He then readily blames the F.B.I. more or less for the woman’s death shrugging it off by saying “better luck next time.” He apparently displayed little remorse, held the F.B.I. responsible, no overt sadness. The review also shows that he joined the Army in 1964 and had been charged with check forgery and agreed to join the Army so the charges would be dropped. He was also court martialed in 1970 for falsification of official documents and sentenced to 9 months in Leavenworth. He received a Dishonorable Discharge from the Army in 1971. All of this is in contrast and contradiction to what he told me when he denied having any difficulty with authority figures, having an Honorable Discharge from the military and being a good guy prior to this murder and has been a good guy since then while he’s in prison.
Maggio diagnosed Jordan as having Antisocial Personality Disorder, but concluded that he was competent to stand trial. Maggio further concluded:
The mitigating evidence that he may want to introduce is 1) Post-Traumatic Stress Disorder of which there is no clinical evidence to substantiate that he did have symptoms of a Posh-Traumatic Stress Disorder and 2) the issue of dangerousness. He actually appeared to be a danger to himself and others prior to being in the military, while he was being in the military, and after he got out of the military. He would portray himself as being a really fine, upstanding citizen who has been a good guy and helped people all of his life and would continue to do so if he got out of jail. The evidence seems to be quite the contrary. He is a self-proclaimed con artist, all of his life offers excuses for his behavior and does not take responsibility for his behavior. In addition, he seemed to show no remorse for the crime that he has committed. If, in fact, he is doing all of these good works while he’s in jail, then that is a good thing for him to do but one is led to the conclusion that he’s only doing it because he is in jail and to paint a good picture of himself.
Jordan filed a motion in limine prior to trial to prevent the use of Maggio’s report. During the trial, the court held a hearing on that motion, outside the presence of the jury, and Jordan testified. He told the court that he thought that he was coming to court on the day that Maggio was appointed to examine him, but he was not transported, so he found out through a telephone call from his attorney that Maggio had been appointed. Jordan went on to state that he was unaware that Maggio’s report would be provided to the prosecution.
At that point, the prosecution had not planned to use Maggio’s report in its case in chief, but did plan to use the report to cross-examine defense witnesses, and intended to introduce the report, and, possibly, Maggio’s testimony on rebuttal. By the time of this trial, many of the earlier witnesses had died, and the defense intended to read their prior testimony, which would have precluded live cross-examination. Therefore, a ruling on the motion in limine was deferred until such time as the State used the report or called Maggio to testify.
Several of Jordan’s earlier character witnesses, including his parents, had died by the time of this trial, and their prior testimony was read into the record. Later, the defense called Richard Luther King, a boyhood friend of Jordan’s to testify about Jordan’s good character, including his military service. When Owen proposed to cross-examine King with material in Dr. Maggio’s report, the jury was excused. A lengthy argument followed, during which the court and the attorneys were obviously confused about whether Dr. Davis’s testimony or his report were ever offered to the jury at Jordan’s first trial. Finally, the trial judge stated:
“[I]t seems to me that if this were in place and has been in place since 1976, there’s plenty of fair opportunity to test the creditworthiness of it. And for the reasons stated in Buchanan and Wilcher, the Court is of the opinion that the proffer in that area can be developed from this witness in the light that it was presented in cross-examination; and that specific area being his military record and his statement to the jury about his dangerousness.
Owen then cross-examined King before the jury and asked him to read Maggio’s report. King was then questioned about his reaction to Jordan’s statement, quoted in Dr. Davis’s report, that the F.B.I. was to blame for Marter’s death, and “better luck next time.” Owen asked King if he knew anything about Jordan’s discharge from the military, and King said that he did not. He was also questioned about Jordan’s work history, but he knew nothing about that, either. Finally, after a limiting instruction from the judge following a bench conference, Owen asked King whether he thought Jordan was a danger to himself or others before or after his military service, and King answered, “No.”
After this testimony, another lengthy discussion occurred between counsel and the court regarding the use of the Maggio report. The defense wanted a definitive ruling from the court on how the report could be used, and whether Maggio could testify, before deciding whether to call other character witnesses or Jordan himself to the stand. Again, there was confusion as to whether Davis had actually testified in front of the jury in the earlier trial, and the judge notes at one point that he would be “more secure” in ruling that the report was admissible if he knew that it had been presented to a jury during the guilt phase. He deferred ruling on the report until he could review it, and, ultimately, ruled that Maggio could not testify at the rebuttal stage unless Jordan took the stand during the defense’s presentation.
Following this ruling, Jordan’s attorney announced that he was not going to call two of his listed witnesses, due to the potential of their being cross-examined on the basis of Maggio’s report. Then, four prison employees testified as to Jordan’s good behavior without cross-examination. The fifth employee was cross-examined only as to the privileges that Jordan enjoyed as a trusty. At the end of their case, Jordan’s attorneys announced that some potential mitigation evidence, including short stories that Jordan had written, as well as his testimony, would not be presented. While the court was questioning Jordan about that decision, the prosecutor announced that he would not call Dr. Maggio, even if the stories were admitted or Jordan testified; however, Jordan declined to take the stand. Three of the four short stories were offered into evidence, and the defense rested.
On rebuttal, the prosecutor made a proffer of Maggio’s expected testimony and moved that his report be admitted into evidence. Another lengthy argument followed, during which the court and counsel again expressed some confusion as to the use of Davis’s testimony in the earlier proceedings, and the prosecutor attempted to get part of the record from the Mississippi Supreme Court Clerk’s office during trial. When he was unable to do so, he withdrew his motion to offer the report into evidence, although he still intended to include his questioning of King as part of his argument. When the defense argued that any such statements would be inappropriate in light of the lack of evidence to support them, the prosecutor finally stated that he would not make that argument. In fact, the only mention of Owen’s cross-examination of the mitigation witnesses was the statement that Jordan had abused and misused his position as a trusty to obtain certain privileges while in prison. Defense counsel argued Jordan’s military service in Vietnam as a mitigating factor, and it was also included as a possible mitigating circumstance in an instruction. In rebuttal, Owen stated merely, “Ladies and gentlemen of the jury, this stuff about Richard in Vietnam is all you heard. There is no evidence about what he did there or particularly what he did after he got out.” The jury returned a verdict sentencing Jordan to death. The Mississippi Supreme Court affirmed the conviction on direct appeal, Jordan v. State, 786 So.2d 987 (Miss.2001), and again after post-conviction review. Jordan v. State, 912 So.2d 800 (Miss.2005). Jordan then filed this petition for habeas relief.
STANDARD OF REVIEW
The standard of review that a federal court applies to a state court decision under habeas review is contained in 28 U.S.C. § 2254. It provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Under this provision, where the state court adjudicates the petitioner’s claim on the merits, this court reviews questions of fact under § 2254(d)(2), while questions of law or mixed questions of law and fact are reviewed under § 2254(d)(1). Factual findings are presumed to be correct, and the reviewing court defers to the state court’s decision regarding factual determinations unless the decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Hill v. Johnson, 210 F.3d 481, 485 (5th Cir.2000); 28 U.S.C. § 2254(d)(2). The court independently reviews questions of law and mixed questions of law and fact to determine whether the state court’s decision thereon was either “contrary to” or an “unreasonable application of’ federal law. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Williams v. Puckett, 283 F.3d 272 (5th Cir.2002); Hill v. Johnson, 210 F.3d at 485.
For purposes of this analysis, “federal law” is determined by the Supreme Court of the United States, and this Court must determine whether the state court’s decision was “contrary to” or “an unreasonable application of’ that established federal law. Williams, 529 U.S. at 378, 406, 120 S.Ct. 1495; § 2254(d)(1). Clearly established federal law is that which exists at the time of the state court conviction. Id. at 412, 120 S.Ct. 1495; Smith v. Spisak, — U.S. -, 130 S.Ct. 676, 681, 175 L.Ed.2d 595 (2010). A state court’s adjudication of a claim is contrary to clearly established federal law “if the state court applies a rule different from the governing law set forth in [the Supreme Court’s] cases or if it decides a case differently than [the Supreme Court has] on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). A state court’s application of the correct legal precedent to the particular facts of a petitioner’s case will be an unreasonable application of the law if it identifies the correct federal law but unreasonably applies it to the facts, unreasonably extends the correct legal principle to a new context where it should not apply, or unreasonably refuses to extend the principle to a new context where it should apply. 529 U.S. at 406, 120 S.Ct. 1495. The term “unreasonable,” was distinguished in Williams from “erroneous” or “incorrect”; thus, a state court’s “incorrect” application of the law may be permitted to stand if it is, nonetheless, “reasonable.”
ANALYSIS
Ground A: Petitioner was denied his rights guaranteed by the Eighth and Fourteenth Amendments as a result of prosecutorial vindictiveness and/or the trial court’s refusal to sentence Petitioner to life imprisonment without possibility of parole.
Jordan claims that Owen engaged in prosecutorial misconduct by seeking the death penalty in the 1998 trial after earlier agreeing to let him plead to life without parole. He argues that Owen sought the death penalty to “punish” Jordan for appealing the earlier sentence. The Mississippi Supreme Court addressed this issue in its opinion on Jordan’s appeal of the 1998 trial. That court cited four reasons for denying relief:
First, Jordan neither filed a motion for rehearing nor collaterally attacked our 1997 ruling that the life imprisonment deal Jordan made with Owen was void and that, upon remand, the State could seek the death penalty. Therefore, the 1997 ruling is unassailed, and Jordan’s claim of prosecutorial vindictiveness is barred by res judicata. Second, it was this Court which authorized Owen to seek the death penalty upon resentencing. Therefore, the enhancement of the sentence was attributable to our independent assessment of the suitable penalty, not to prosecutorial vindictiveness. [Cite omitted.] Third, the Supreme Court, in Alabama v. Smith, 490 U.S. 794, 795, 109 S.Ct. 2201, 2203, 104 L.Ed.2d 865 (1989), [found] ... that the presumption of prosecutorial vindictiveness does not apply when a sentence imposed after trial is greater than that previously imposed after a guilty plea.
Jordan, 786 So.2d at 1001. Finally, the court held that it was the jury, having been properly instructed on aggravating and mitigating circumstances, as required by law, that actually imposed the death penalty. “The statutory safeguards in place in capital cases assured that the jury operated without the taint of prosecutorial vindictiveness.” Id. at 1002.
Jordan supports his argument by citing to North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). In Pearce, the defendant had successfully appealed his conviction, but was retried, found guilty, and sentenced by the court to a longer term than that originally imposed. The Supreme Court held that a defendant should not be punished for exercising his constitutional right to appeal by facing an enhanced punishment if he is successful. The court held that, in the absence of an affirmative statement of the reasons for the enhanced sentence, vindictiveness would be presumed, in violation of the defendant’s right to due process. In Blackledge, the defendant appealed a misdemeanor conviction, entitling him to a trial de novo. The prosecutor then indicted him for a felony offense arising out of the same conduct. The issue there was prosecutorial vindictiveness, not in the imposition of sentence, but in the substitution of a felony charge for a misdemeanor. Rather than establishing a presumption, the Court simply held that the substitution of charges in that situation was not constitutionally permissible.
Since those decisions, their ambit has been significantly narrowed by the Court. In Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), the Court held that the imposition of a more severe sentence by a subsequent jury, uninformed of the previous sentence, did not violate due process guarantees. In reaching that decision, the Court found that, unlike a judge re-trying a case after being reversed, a jury “will have no personal stake in the prior conviction and no motivation to engage in self-vindication.” Id. at 27, 93 S.Ct. 1977. Later, in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), the Court held that a prosecutor may bring additional charges against a defendant who refuses to plead guilty, as long as that possibility was part of the plea bargaining process. The Court recognized that the give and take negotiating process that is part of the plea bargain is substantially different from the State’s unilateral imposition of a penalty; therefore, the threat of additional charges, as an inducement to plead guilty, does not violate the Constitution. Id. at 362-64, 98 S.Ct. 663.
Finally, in Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), the defendant was indicted for three offenses arising out of the same incident, but had agreed to plead guilty in exchange for the prosecution’s dropping one count of the indictment. After he succeeded in having his plea vacated, the defendant went to trial on all three charges before the same trial judge, receiving a substantially increased sentence. The Court refused to apply the presumption of vindictiveness, even where the same judge imposed both sentences, holding that the additional information that the judge learned during trial supported the enhanced sentence.
In this case, Jordan had already been sentenced to death three times, once by a judge, then by two different juries. Clearly, the possibility of the death penalty was on the table during the plea negotiations. In order to avoid that penalty, Jordan agreed to plead guilty and accept a life sentence, agreed not to seek parole or pardon, and agreed to refrain from any collateral attack on his sentence or the contemporaneous agreement. Jordan not only failed to perform his end of the bargain, but, by successfully vacating his agreed-upon sentence, he returned to the Circuit Court in the same position that he originally found himself. The prosecutor did not substitute a different charge for the charge that was originally imposed, nor did he seek a different penalty than that originally sought. Jordan was not sentenced by the judge who heard his guilty plea, but by a jury that was not told that he was originally sentenced to death.
Jordan has failed to show that the state court’s opinion was contrary to, or an unreasonable application of, clearly established federal law, based on the facts of his case. For this reason, he is not entitled to habeas relief on this issue.
Ground B: Petitioner’s right to due process as guaranteed by the Fourteenth Amendment was violated by the appointment of a special prosecutor with a conflict of interest, especially since the trial court refused to disqualify the prosecutor, failed to require reasons for the special prosecutor’s appointment, and by failing to limit the special prosecutor’s authority.
In his direct appeal, Jordan attacked the appointment of Owen as special prosecutor, arguing that the State had failed to show a need for the appointment. As an initial matter, the court held that the appointment process required approval of the trial judge, which had occurred in Jordan’s case. Jordan v. State, 786 So.2d at 1011. Jordan also argued that the District Attorney for Harrison County abdicated control over the prosecution, in violation of his due process rights, by permitting Owen exclusively to make the decision of whether to seek the death penalty in his trial. The court denied relief on direct appeal, stating, “While Jordan presents a compelling argument about the conflicts that can arise in having an attorney who takes a personal interest in the case prosecute a criminal action, there is no limit on an Attorney General’s ability to appoint same. Owen therefore acted with proper authority.” Id. In its review of Jordan’s post-conviction petition, where the issue was raised again, the court found that the claim was procedurally barred, but that Jordan had, in any event, failed to offer any evidence to support it. Jordan, 912 So.2d at 822.
On habeas review, the federal court’s ability to grant relief arises only when a state court has issued an opinion that is contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1). The United States Supreme Court has never explicitly delineated the permissible extent of a special prosecutor’s powers, although it has held that the injection of personal interests into a prosecution may raise constitutional questions. Marshall v. Jerrico, 446 U.S. 238, 249-50, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980). Later, the Court held that, while a special prosecutor may be appointed to prosecute a criminal contempt case, the appointment of a prosecutor whose client has a financial interest in the underlying litigation is improper. Young v. U.S. ex rel. Vuitton et Fils, S.A., 481 U.S. 787, 790, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987). The Fifth Circuit has held that, where a special prosecutor is appointed to the case, the district attorney must retain control over the prosecution. Faulder v. Johnson, 81 F.3d 515, 517-18 (5th Cir.1996); East v. Scott, 55 F.3d 996, 1001 (5th Cir.1995). Control is not determined by participation in the day to day conduct of the trial, but by determining who makes key decisions in the prosecution. Those decisions include whether to prosecution, whom to prosecute, the investigative powers to utilize, the penalty to seek, and the plea bargain to offer. Faulder, 81 F.3d at 517.
In its opinion on direct appeal, the Mississippi Supreme Court held that Jordan had not proved that the district attorney relinquished control over the prosecution, noting, “either the District Attorney himself or one of his assistants were present with Owen during most of the pre-trial hearings and at trial.” 786 So.2d at 1012. That opinion was repeated on post-conviction review. 912 So.2d at 822. While these decisions misread Faulder in relying on the operational conduct of the trial, rather than decision making, it does not unreasonably apply United States Supreme Court precedent, since there is none. See Thaler v. Haynes, — U.S. -, 130 S.Ct. 1171, 1173-74, 175 L.Ed.2d 1003 (2010). Moreover, even focusing on the decision making process of seeking the death penalty, Jordan has not established prosecutorial vindictiveness. As stated earlier, the death penalty was sought in all four proceedings against Jordan, including the third trial, where Owen participated as special prosecutor with Jordan’s agreement. It was the Mississippi Supreme Court that authorized the prosecution to seek the death penalty during the fourth trial. Finally, Owen was not a “private prosecutor,” in the sense that he was hired and paid by an interested party. Instead, he was appointed by the Mississippi Attorney General, pursuant to statutes that give him unlimited power to do so. Miss.Code Ann. §§ 7-5-5 and -7 (1972). For all of these reasons, Jordan has not established a claim of prosecutorial vindictiveness that is cognizable on habeas review, and he is not entitled to relief on this issue.
Ground C: Petitioner was denied his right to due process of law guaranteed by the Fourteenth Amendment when the prosecution knowingly presented false and unreliable testimony about blood spatters and other details about the shooting.
This issue relates to the blood spatter evidence offered by David Melton. As discussed earlier, the evidence does not appear in Melton’s original report, nor did Melton testify to it during the first trial. The court refused to allow him to testify about it during the second trial, as it was only on sentencing. Melton finally testified about these spatters during the third and fourth trials. In that testimony, he stated that he found blood spatters around Marter’s body that indicated that she was stationary when she was shot. The inference was that Marter was shot execution-style, supporting the State’s theory of an aggravating circumstance.
After the third trial, Melton’s testimony was raised as an issue on appeal, with Jordan arguing that the trial court erred in refusing to allow his counsel to voir dire Melton on his credentials. The Mississippi Supreme Court held that, because the decision to allow expert testimony is discretionary with the trial court, the record did not indicate that permitting Melton to testify was reversible error. Jordan v. State, 464 So.2d 475, 486 (Miss.1985). Although noting that the proper procedure is to permit voir dire by opposing counsel, the court found that the extensive cross-examination on Melton’s qualifications cured any prejudice.
Melton’s qualification as an expert was raised again in the appeal of the fourth trial, and the Mississippi Supreme Court again denied relief. Jordan, 786 So.2d at 1017. In this appeal, Jordan argued that Melton was not properly qualified as an expert, thereby making his opinion testimony inadmissible. The basis for the argument was Melton’s testimony as to the position of Marter’s body when she was shot and when she was discovered, which Jordan argued crossed the line into forensic evidence, a subject on which he was not qualified to give an expert opinion. The court rejected the argument, stating, “Dr. William D. Atchison, a qualified forensic psychologist, testified as to whether Edwina was kneeling or standing or running or stationary. Therefore, if allowing Melton to testify as to the position of the body was error, it was harmless error.” Id.
The court reviewed this argument again in its decision on post-conviction relief. Jordan, 912 So.2d at 809. At this point, Jordan had changed his argument to include the claim that he brings here — that the prosecutor knowingly presented false or misleading evidence to the jury. With regard to Jordan’s challenge to Melton’s credentials, the court held that the issue had been litigated twice, and Jordan was procedurally barred under Mississippi law from raising it again on the theories previously raised, or on any other legal theory. Id. On the issue of false testimony, the court characterized Jordan’s claim as “attempting to rephrase the issue [of Melton’s testimony] as a knowing presentation of false or misleading evidence, but the underlying claim is the same one that has already been addressed and found to have no merit.” Id.
Despite the procedural bar, the court reached the merits of both issues, finding, first, that Melton’s training qualified him to give blood spatter opinion testimony. Id. Turning to the issue of false testimony, the court held that the standard to be applied to the claim was whether Jordan “demonstrated a reasonable likelihood that David Melton’s testimony on blood spatter evidence resulted in a death sentence.... ” Id. Because Jordan had been sentenced to death on two previous occasions in which this testimony was not presented, the court found no merit to this claim. However, because the court found that the testimony did not prejudice Jordan, it never reached the question of whether it was, indeed, false.
Jordan argues here that the blood spatter testimony was “false” because “it is doubtful that there ever was any blood spatter evidence.” Attached to his petition for post-conviction relief is an affidavit from Herbert MacDonnell, who conducted the seminar on blood spatter evidence that Melton attended. MacDonnell reviewed the evidence presented at trial and reached a conclusion different from Melton’s, which Jordan argues establishes the falsity of Melton’s testimony. Jordan also bases his assertion that Melton’s testimony was false on these additional allegations: Melton failed to record any observations about the blood spatters; he did not take photographs of the spatters; he did not test the material that he observed to see if it was actually blood; and he did not conform his analysis to accepted methodology in this field. However, with the extensive size of the exit wound, it would have been practically impossible for there not to be blood spatters.
Had Jordan only argued that Melton should not have been treated as an expert witness, he could not succeed — the admissibility of evidence is an issue of state law, not ordinarily cognizable on habeas review. Lockett v. Anderson, 230 F.3d 695, 709 (5th Cir.2000); Passman v. Blackburn, 652 F.2d 559, 568 (5th Cir.1981). As the Supreme Court has made clear, in the context of habeas review, “mere errors of state law are not the concern of this court, unless they rise for some other reason to the level of a denial of rights protected by the United States Constitution.” Barclay v. Florida, 463 U.S. 939, 957-58, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983). A federal court considering a habeas corpus petition does not sit as a super state supreme court to review error under state law. Bridge v. Lynaugh, 838 F.2d 770 (5th Cir.1988). See also Derden v. McNeel, 978 F.2d 1453, 1460 (5th Cir.1992).
Because Jordan recast his argument to make a federal constitutional claim, and because the state court reached this claim on the merits, this Court must consider it also. To show his entitlement to habeas relief, Jordan cites several Supreme Court cases that he contends were contravened by the Mississippi Supreme Court’s post-conviction decision. In the earliest such case, Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935), the state did not contest the petitioner’s claim that his conviction resulted from perjured testimony, but argued that there was no remedy in state court. 294 U.S. at 111-12, 55 S.Ct. 340. The Supreme Court disagreed, but, noting that the petitioner had not filed a habeas petition in state court, held that the state’s argument was unpersuasive and denied the petition without prejudice. In Napue v. Illinois, 360 U.S. 264, 269-70, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), a witness who had been given a promise of leniency by the district attorney testified at trial that there had been no promise made, an allegation that was not contested by the state on post-conviction review. The Court held that the due process violation caused by the knowing presentation of false testimony is grounds for relief even if the evidence went to the credibility of a witness, rather than the guilt of the defendant. In Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967), the Court granted habeas relief after a pah* of men’s underwear that had been repeatedly referred to in a trial for sexual assault and murder as “bloody” were determined to actually be stained with paint — a fact that the prosecutor later admitted was known by “everyone” at trial. Id. at 6, 87 S.Ct. 785. In Alcorta v. Texas, 355 U.S. 28, 30-32, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957), the prosecutor advised a key witness to avoid admitting that he was having an affair with the murdered wife of the defendant. Finally, United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), held that the prosecution must turn over exculpatory material when there has been no request for it, unless the non-disclosure “ ‘did not influence the jury, or had but a very slight effect.’ ” Id. at 112, 96 S.Ct. 2392 (quoting Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).
To establish entitlement to habeas relief on this issue, Jordan must show that: (1) Melton’s testimony was false or perjured; (2) Melton’s testimony was material to Jordan’s conviction or sentence and (3) the prosecution knew that Melton’s testimony was false or perjured. May v. Collins, 955 F.2d 299, 315 (5th Cir.1992) (citing Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)). Ideally, once the Mississippi Supreme Court determined it would reach the merits of this claim, it would have applied this test and made all of the appropriate findings. Instead, it reached only the second part of the test, finding no prejudice. As a basis for that finding, the state court noted that Jordan had been twice sentenced to death without the use of blood spatter evidence. 912 So.2d at 809. Without citing any authority, Jordan asserts that this holding is entitled to no deference, stating, “Those unconstitutional proceedings cannot serve as the benchmark for assessing the prejudice of errors at the 1998 resentencing.” He also maintains, “[Ejvery standard for assessing an error’s potential prejudice must be made in reference to the evidence and other circumstances present in the case at hand, not another proceeding.” However, none of the cases that he cites in support of that proposition declares that to be the law. In fact, each of these cases involves a petitioner who has been subjected to only one trial. Having reviewed these cases, the Court can only find one reference that remotely supports this assertion. In Strickland, when discussing how a reviewing court should assess an attorney’s performance, the Court discourages a comparison of one attorney’s tactics to those of an attorney in a different matter, saying “[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” 466 U.S. at 690, 104 S.Ct. 2052. This language would not preclude a comparison of two different trials of the same case. Later, in his rebuttal brief, Jordan argues that the burden is on Respondents to show that “there was no likelihood that the error affected the verdict.” He cites Agurs, 427 U.S. at 103, 96 S.Ct. 2392, for that proposition. A review of that case yields no holding that would shift the burden to the state to show lack of prejudice. On the contrary, Jordan has the burden of establishing the three elements necessary to a Giglio claim. Chambers v. Johnson, 218 F.3d 360, 363-64 (5th Cir.2000).
Under the law, this Court can grant habeas only if it finds that the state court’s opinion is contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d). The Mississippi Supreme Court held that Melton’s testimony was not material in the sense that there was no reasonable likelihood that the evidence affected the jury’s imposition of the death penalty. This was an accurate assessment of federal law on the issue of materiality in this context. Giglio, 405 U.S. at 154, 92 S.Ct. 763 (quoting Napue, 360 U.S. at 271, 79 S.Ct. 1173). The state court based its holding on a comparison of the trial where Melton did testify to the two previous trials where he did not, all which of resulted in the death penalty. Jordan has not shown that this analysis is contrary to or misapplies clearly established law. This Court may have reached a different result on this issue, but, in the absence of unambiguous precedent from the United States Supreme Court, this Court cannot “overrule a state court for simply holding a view different from its own .... ” See also Thaler, 130 S.Ct. at 1173-74; Mitchell v. Esparza, 540 U.S. 12, 17, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003).
Because the Mississippi Supreme Court failed to reach the issues of whether Melton’s testimony was false and, if so, whether the prosecutor knew that it was false, this Court must conduct a de novo review of those issues. Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). Having reviewed the record in this matter and the applicable law, this Court finds that Jordan has failed to make an adequate showing on either issue. In the cases cited by Jordan that were discussed earlier, the falsity of the evidence presented by the prosecution was clearly established, often by the prosecutor’s admission. Agurs, 427 U.S. at 112, 96 S.Ct. 2392; Miller, 386 U.S. at 5-6, 87 S.Ct. 785; Napue, 360 U.S. at 269-70, 79 S.Ct. 1173; Alcorta, 355 U.S. at 30-32, 78 S.Ct. 103; Mooney, 294 U.S. at 111-12, 55 S.Ct. 340. See also In re Swearingen, 556 F.3d 344, 348 (5th Cir.2009) (expert witness who testified at trial executed an affidavit thereafter, stating that her opinion as to the time of death, which was central to the petitioner’s alibi, would have been different if she had access to certain evidence withheld by the state.) Here, Respondents vigorously contest the issue of falsity, and this Court cannot conclude that Jordan’s arguments establish any reason to believe that Melton’s testimony was false.
None of Jordan’s claims on this issue is persuasive. To the extent that Jordan’s allegations attack Melton’s methodology, they go to the issue of credibility. Although Jordan argues that the State should have “fully disclosed the bankruptcy of Melton’s methodology,” the alleged shortcomings in Melton’s testing techniques were not hidden, but were as available to the defense as to the prosecution. Likewise, the fact that Melton’s testimony was added to the prosecution’s case after the first trial does not establish falsity. The cases cited earlier on the claim of prosecutorial vindictiveness use, as an example of a situation where an increased sentence would be permissible on retrial, a case where the prosecution strengthens its case and adds more evidence. See, e.g., North Carolina v. Pearce, 395 U.S. at 723, 89 S.Ct. 2072. Finally, the fact that Jordan’s expert disagrees with Melton’s conclusions does not establish that Melton’s testimony was false. “Inconsistency of testimony among witnesses can as easily be explained as the result of faulty recollections or differences of opinions.” United States v. Washington, 44 F.3d 1271, 1282 (5th Cir.1995); see also Kutzner v. Cockrell, 303 F.3d 333, 337 (5th Cir.2002) (“[I]t is not enough that the testimony is challenged by another witness or is inconsistent with prior statements.”); Chambers, 218 F.3d at 364.
With regard to the prosecutor’s knowledge of the alleged falsity of Melton’s testimony, Jordan argues, “[T]he prosecution had to have known that the factual basis for Melton’s testimony was unreliable and therefore should never have been presented.” This allegation falls well short of establishing the prosecutor’s knowledge that he was presenting false evidence. “Importantly, due process is not implicated by the prosecution’s introduction or allowance of false or perjured testimony unless the prosecution actually knows or believes the testimony to be false or perjured .... ” Kutzner, 303 F.3d at 337 (emphasis added). Knowledge of falsity is not imputed to a prosecutor, even where witness committing the alleged perjury is a member of law enforcement. Koch v. Puckett, 907 F.2d 524, 531 (5th Cir.1990).
Jordan has not established that the Mississippi Supreme Court’s decision that Melton’s testimony was not material to the outcome of his case was contrary to, or an unreasonable application of clearly established federal law. Additionally, he has not convinced this Court that further inquiry is needed as to whether Melton’s testimony was false or, if so, whether the prosecutor knew it was false. For all of these reasons, the Court is of the opinion that habeas relief is not available to Jordan on this issue.
Ground D: Petitioner was denied his right to the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments due to trial counsel’s mishandling of the bogus “blood spatter” testimony.
Jordan also argues, however, that his trial counsel in the fourth trial were ineffective in failing to realize that Melton would testify on this issue, and in failing to prepare for that testimony. This issue was considered and rejected by the Mississippi Supreme Court, although it caused some concern, as will be explained below. The record demonstrates a difference in length and tone between the cross-examination during the third trial and that of the fourth, which were defended by different attorneys. Dur