News on Clinton Young since his stay of execution on October. 18, 2017, had been slow to materialise. No longer.
Over the past 6-weeks, Laura Nodolf—District Attorney for Midland County TX—filed the state’s Answer to Fourth Application for Writ of Habeas Corpus. A mere 17 days later, Margaret Farrand—Co-Counsel for Young—filed her client’s Reply in Support of Application for Writ of Habeas Corpus. In between we heard from Young himself, via his Personal Blog.
Young, convicted of the murders of Doyle Douglas, and Samuel Petrey in Texas on Novemeber. 24–26, 2001, lead to his death sentence some 2 years following. Testimony by David Page, used to convict Young at the time of trial, evolved to cast grave doubt as to Young’s involvement in the murder of Petrey. Attorneys for Young, submitted an application for Writ-of-Habeas-Corpus to the Texas Court of Criminal Appeals which ultimately lead to his stay of execution.
The order to stay Young’s execution—abbreviated above, from the Texas CCA, was in response to his 2017-09-29-Application-for-Writ-of-Habeas-Corpus. Young’s defence attorney’s, Margaret Farrand, Marco Rocconi and Joseph Trogilio, cited 8 claims that warranted relief for Young in their writ, summarised below.
CLAIM 1: THE STATE VIOLATED YOUNG’S RIGHT TO DUE PROCESS BY UNKNOWINGLY INTRODUCING FALSE OR MISLEADING TESTIMONY AGAINST HIM AT TRIAL. EX PARTE CHABOT, 300 S.W. 3D 768, 771 (TEX. CRIM. APP. 2009.)
CLAIM 2: YOUNG IS ENTITLED TO RELIEF UNDER ARTICLE 11.073 OF THE TEXAS CODE OF CRIMINAL PROCEDURE, BECAUSE PREVIOUSLY UNAVAILABLE SCIENTIFIC
EVIDENCE SHOWS HE DID NOT CAUSE THE DEATH OF SAMUEL PETREY.
CLAIM 3: YOUNG’S EXECUTION WOULD VIOLATE THE UNITED STATES CONSTITUTION BECAUSE HE IS INNOCENT OF CAPITAL MURDER. U.S. CONST. AM. VIII & XIV; HERRERA V. COLLINS, 506 U.S. 390 (1993); EX PARTE ELIZONDO, 947 S.W.2D 202, 205 (TEX. CRIM. APP. 1996.)
CLAIM 4: THE PROSECUTION UNCONSTITUTIONALLY FAILED TO PRESERVE KEY EVIDENCE.
CLAIM 5: THE PROSECUTION WITHHELD NUMEROUS PIECES OF IMPEACHMENT AND EXCULPATORY EVIDENCE, IN VIOLATION OF BRADY V. MARYLAND, 373 U.S. 83 (1963.)
CLAIM 6: THE PROSECUTION VIOLATED YOUNG’S DUE PROCESS RIGHTS BY FAILING TO DISCLOSE EXCULPATORY EVIDENCE, IN VIOLATION OF BRADY V. MARYLAND.
CLAIM 7: YOUNG’S TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE AT THE GUILT/INNOCENCE AND PUNISHMENT PHASES OF HIS TRIAL.
CLAIM 8: THE COMBINED EFFECT OF ALL THE ERRORS RENDERED YOUNG’S GUILT/INNOCENCE AND PUNISHMENT TRIALS FUNDAMENTALLY UNFAIR
The Texas CCA, while staying Young’s execution, only gave merit to the first of his claims for relief. From their order, Young’s claim that the state “violated his right to due process by unknowingly introducing false or misleading testimony against him at trial,” was accepted due to a “new legal basis” established in a case in 2009. Without this updated case-law—not available at subsequent appeals by Young—his recourse for further appeal could possibly have ended permanently due to his execution.
The case-law in question relates to Clay Reed Chabot—Opinion here. Like Young’s claim, testimony used against Chabot during trial, was found to be demonstrably false. Chabot was granted relief due to DNA findings contradicting the testimony used against him. Specifically the Texas CCA granted relief for Young, regarding “false or misleading testimony… introduced at trial.
While the legitimacy of David Page’s testimony has lead to Young’s case being remanded back to the trial court for resolution, the CCA’s ruling has limited his defence team, as to what evidence they can use to merit an Evidentiary Hearing.
Within Young’s Reply to the state’s response, his legal-team added further weight to an already burgeoning list of possible prosecutorial misconduct. Added to the state’s ‘loss’ of surveillance footage showing Page guarding Petrey during Young’s absence, while parked outside a convenience store, comes the suppression of Page’s latest interview.
A sworn affidavit by Page’s defence counsel detailed District Attorney Laura Nodolf’s interview with their client.
Exhibits from Nodolf’s interview with Page can be found in the state’s response. Of note are Page’s account of his own direct involvement in kidnapping Petrey.
Page’s Oct. 4 interview, contradicts his trial testimony to the degree that it was himself, rather than that of Young, who kidnapped Petrey, back in November of 2001. The state, in its response, proffered that Young may wish to “raise a new contention” with regard to Page’s admission to the kidnapping of Petrey. Young’s defence team duly noted that this had already been addressed and authorised by the Texas CCA, bringing us back to Claim 1—offered to, and accepted by the CCA in Young’s Writ for Habeas Corpus. For the state to suggest that the jury’s mindset would not have been altered by the fact that Page, not Young, was responsible for Petrey’s kidnap, and more importantly, Young’s due-process was not violated, raises grave questions as the state’s pursuit of justice. Just 1 day following Page’s interview, a telephonic interview was held between attorney’s for both parties. At that time no disclosure was made of Page’s interview. Indeed, no mention was made of Page’s interview by the state until 1 week after (Oct. 25) Young’s execution was stayed.
Christopher Palenik—expert for the defence— provided a Scientific Report relating to gun-shot-residue present on gloves found at the scene of Petrey’s murder. In his report Palenik was tasked with:
—Sample four areas on each glove to determine if gunshot residue (GSR) is present and, if present, the relative amounts.
—If possible, provide an opinion on the possible source(s) of the detected GSR particles.
The state was quick to try and rubbish findings by Christopher Palenik, regarding Gun-Powder-Residue results linked to a pair of gloves admittedly purchased by Page after the murder of Doyle, but prior to that of Petrey. Yet within the state’s response, much of their ‘rubbishing’ was not affirmed by their own expert, Miss A. Koetell. Indeed, it appears the state has taken it upon themselves to offer expert counter- analysis as to GSR findings by Palenik, without being qualified to do so.
Although Young’s 2nd claim for relief was denied by the CCA, Palenik’s findings are still relevant to Young’s 1st claim as grave doubt as to Page’s testimony has been raised by his ever changing story as to where the gloves came from. Again, during his Oct. 4 interview, Page recanted his testimony at trial by admitting that he “bought ’em at a convenience store,” and that he “bought the gloves after Douglas was killed.” During trial Page offered that he had been wearing the gloves because of working with his father and the fact that it was cold outside. Pertinently, on Oct. 4, Page openly admitted to perjury during his testimony at trial.
The state made mention of both Page’s and Young’s DNA being present on the gloves found at the murder scene. Through their lack of transparency however, it was not disclosed that Page’s DNA was found inside both gloves and Young’s DNA was only found on the outside of one of the gloves.
With Page’s revelations, losing sight with that which is presently at hand is all too easy. Attorney’s for Young are seeking an Evidentiary Hearing. An Evidentiary Hearing would give them the necessary recourse to argue that Page was clearly not the fearful accessory to Young’s murder of Petrey that he claimed at trial. The state’s claim during their response, that Young need prove Page’s direct involvement in the murder, is not of relevance at this stage in proceedings. Proof is not needed at this point. All that is required at the plea stage is for Young to allege “specific facts [that] if established, would constitute a constitutional violation that would likely require relief.” With Page’s October 4th interview, it will be for the trial court to determine whether this criteria has been met.
The process of establishing a violation of due-process towards Young is key. If this violation is found to be the case, an Evidentiary Hearing may follow. With that hearing, more details regarding both Young’s and Page’s involvement in Petrey’s murder may come to light. Fundamentally, it is critical to first establish the due-process violation, then establish doubt as to Young’s involvement in the murder.
Further issues debated by both parties in their filings included: the credibility of statements given by inmates relating to hearing Page confess to shooting Petrey and whether Young shot into Doyle Douglas’s car, thus producing the shell cases within.
Focus now shifts towards the trial court. It will be they who determine whether an Evidentiary Hearing is warranted or not. Relief could be granted for Young without the need for such a hearing however. If the trial court finds that no factual dispute exists in Young’s favour, it is within their powers to grant relief for him without an Evidentiary Hearing taking place.
On a broader scale, the spectre of prosecutorial misconduct is still very prevalent in this case. The fact remains: If Young’s execution had not been stayed, would DA Nodolf’s interview with Page have ever come to light? This question amongst others relating to undisclosed or even lost evidence, favourable to that of Young should not be allowed to go unanswered.
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