In 1994, I represented Darrold Stenson in a death penalty case. After a long and bitterly fought trial, the jury found him guilty and sentenced him to death for killing his wife and a former business partner.
Both bodies were discovered in the home Mr. Stenson shared with his wife and their two young children.
The prosecution’s theory of the case was that he killed his former partner to escape paying a substantial debt and he killed his wife to collect on her life insurance policy. The prosecution claimed that he lured his former business partner over to his home early one morning to discuss the debt, shot him to death after he arrived, and then shot and killed his wife staging the scene to look like a murder suicide.
The Washington State Supreme Court today reversed Darrold Stenson’s Aggravated Murder Conviction And Death Sentence in an 8-1 opinion and remanded the case for a new trial based on the prosecution’s failure to provide me with exculpatory evidence. The Court specifically held that the prosecution withheld material exculpatory forensic evidence that prejudiced the defense denying him due process of law.
The Court stated,
Our conclusion that Stenson did suffer prejudice is shaped largely by the fact that only two pieces of forensic evidence formed the basis for Stenson’s conviction — GSR [gunshot residue] and blood spatter. Judge Williams [the trial judge who conducted a special remand hearing at the Supreme Court's request -- I spent two days testifying at the hearing] concluded after the first reference hearing that “[h]ad the ungloved handling and the turning out of the pockets [of Mr. Stenson's pants by the lead detective in the case prior to trial] been known to the trial court and an appropriate objection made, the GSR testimony would have been excluded [at trial].” RHFC at 17-18. Both items of evidence were instrumental to the State’s case and, since the discovery of the FBI file and photographs, cumulative reliability of the forensic evidence in this case has been greatly undermined. Had the defense trial team been privy to the suppressed evidence at issue here, the integrity and quality of the State’s entire investigation, evidence handling procedures and case presentation would have been called into question.
Stenson’s counsel aptly made this point in its brief addressing Judge Williams’s determinations:
To rebut claims that the investigation was meticulous, impeccable, and highly professional, Stenson could point to the haphazard and cavalier way in which critical pieces of evidence were treated. He could show that the lead investigator was biased, or suffered from memory problems. He could show that at least one state’s expert (Peele) testified misleadingly, implying that he had personally conducted forensic tests when in fact they had been done by a trainee assistant. He could argue that the state had knowingly proffered worthless forensic evidence and then touted it in closing as highly probative of guilt. The mishandling of the pants would serve as a prime example of why the state’s evidence, witnesses, and arguments should all be viewed with extreme skepticism.
Given the opportunity to impeach not only the useless GSR evidence but the state’s entire investigation, competent defense counsel would have been able to undermine confidence in the state’s case against Stenson. By the end of the trial, one of the key pieces of inculpatory evidence would have been completely neutralized, and the rest of the state’s case would have appeared much less solid.
Pet’r's Br. Addressing Reference Ct.’s Findings of Jan. 20, 2011, at 16-17 (footnotes omitted and citations omitted).
In Kyles, the United States Supreme Court noted that, had the favorable evidence been disclosed to the jury, then the jury would have counted “the sloppiness of the investigation against the probative force of the State’s evidence. . . . [I]ndications of conscientious police work will enhance probative force and slovenly work will diminish it.” Kyles, 514 U.S. at 446 n.15. Had the FBI file and photographs been properly disclosed here, Stenson’s counsel would have been able to demonstrate to the jury that a key exhibit in the case — Stenson’s jeans — had been seriously mishandled and compromised by law enforcement investigators. It is also likely that exposure of the State’s mishandling of the jeans with regard to GSR testing would have led to further inquiry by Stenson’s counsel into possible corruption of the blood spatter evidence. In that regard, Stenson’s defense theory at trial could have taken into account the fact that the jeans may have been folded over when the blood spatter was wet. Instead, the jury was left with only one explanation for the blood spatter, which was that it could not have appeared on Stenson’s jeans after Frank came to his final resting place.
We are left with the fact that constitutionally significant mistakes were made in Stenson’s trial, resulting in imposition of the ultimate punishment without the full benefit of due process protections. The question here is not whether Stenson has proved his innocence; that is not his burden under Brady. As the United States Supreme Court said in Kyles, “the question is not whether the State would have had a case to go to the jury if it had disclosed the favorable evidence, but whether we can be confident that the jury’s verdict would have been the same.” Kyles, 514 U.S. at 453. Under Kyles and its progeny, we are to consider whether one juror might have had reasonable doubt that Stenson was
guilty or deserving of the death penalty if (1) the State had never introduced evidence that Stenson’s jeans pocket and hand had been in a “shooting environment,” Reference Hr’g Ex. 90, at 1779; (2) the defense team properly impeached the credibility of the detectives’ investigation techniques and showed the extent to which the law enforcement officers mishandled the evidence; and (3) the defense team had the benefit of the undisclosed evidence to create a persuasive defense theory of the case.
Stenson, in our judgment, has met his burden of showing that there is a reasonable probability that, had the FBI file and photographs been disclosed to the defense, the result of his trial would have been different. Because we believe the newly discovered evidence undermines confidence in the jury verdict, we reverse Stenson’s convictions and death sentence and remand for a new trial.
To read the full majority opinion, go here
Go here to read the dissent.
Special thanks to Darrold’s legal team at the Federal Public Defender in Seattle: attorneys Robert Gombiner and Sheryl Gordon McCloud and the best paralegal and defense investigator in the world, Jennifer Davis.
Wow, do I ever feel good!
I should have explained the GSR evidence (gun shot residue) more clearly but I was excited and in a hurry. Sorry.
Peele, the forensic expert from the FBI testified that he found traces of GSR inside the right front pocket of Mr. Stenson’s jeans, which he was wearing when the cops arrived at his house in response to his 911 call reporting the shooting. Peele, who actually did not do the test as he had claimed, stated that the GSR likely was introduced to the interior of the pocket by a hand that had been in a shooting environment. This evidence was critically important to the prosecution’s case because it contradicted Mr. Stenson’s claim that he had not fired a gun and did not shoot either victim.
Peele did not mention that only 4 grains of GSR were present, which is such a vanishingly small amount as to be inconsequential. Yet the prosecutor characterized the evidence as overwhelming evidence of guilt and the jury obviously agreed.
Prior to trial, the lead detective in the case took the pants to Portland, OR where he showed them to a blood spatter expert (Ron Englert). During the visit at Englert’s lab, the detective modeled the pants as Englert took photographs. The front pockets were turned inside out when he had them on. A photograph of the pants before he put them on showed the pockets in their normal position inside the pants. Therefore, he had pulled them inside out after he put on the pants. The photograph of him wearing the pants clearly shows his hands and guess what?
He wasn’t wearing any gloves.
One of the most basic rules when handling evidence is: To avoid contaminating evidence, always wear sanitized disposable gloves. There are no exceptions to this rule.
The prosecution never called Englert to testify at the trial and never told me about the photographs. I sent my investigator to interview Englert and, although Englert showed him some photographs, my investigator never saw that photograph or any of the other photographs showing that the detective modeled the pants.
Years later when habeas counsel interviewed Englert, he found the photographs in Englert’s file and put 2 and 2 together. Englert claimed he had copied all of the photographs in the file and sent them to the prosecutor before the trial started. He also said he showed all of the photographs to my investigator.
The prosecutor denied seeing the photographs.
The first time I saw the photograph was when one of the lawyers now representing Mr. Stenson showed it to me in a conference room at the Federal Defender’s Office a couple of years ago prior to the remand hearing and he asked me if I recognized it.
It took my breath away and my heart jumped from a massive infusion of adrenaline.
I had never seen it and I instantly knew how important it was despite the intervening 16 years.
18 years later Darrold Stenson’s conviction and death sentence have been set aside and now the case will recycle to the beginning. There is a new prosecuting attorney in the county and he will have to decide whether to retry the case, dismiss the charges, or play let’s make a deal.
I hope this explanation clears up any confusion regarding the significance of the evidence.
Congratulations
Thank you.
Excellent read, I just passed this onto a friend who was doing a little research on that.
And he actually bought me lunch as I found it for him
smile Thus let me rephrase that: Thanks for lunch!
I understood this only because of the documentation in the Trayvon Martin killing.
I can see that this is a procedural issue (“always wear the gloves”) but what was significant to the evidence presented was that it could have b een, and likely was, the result (based on the infinitesimal amount) of “imported” GSR from the cop/”model” who most likely had been handling firearms earlier.
He got the GSR on his hands from that, and contaminated everyhing else he touched with minute amounts of GSR. Including the inside of the pocket.
So that is an example of why those gloves are needed. They weren’t used, and when the prosecution saw the photos, they were deep-sixed.
Do I understand this correctly?
With great thanks,
PBF
Yep.
I’m confused, wasn’t he granted a new trial due to your negligence – and your own admission of that negligence? http://stensoninnocence.com/data/appeal/Attachment_B.pdf
No, if you had taken the time to read the published opinion, you would know that the Washington State Supreme Court reversed Stenson’s conviction and death sentence because of prosecutorial and police misconduct, and not ineffective assistance of counsel.
The prosecution withheld exculpatory evidence that I had specifically requested before trial.
The withheld evidence was material to the outcome of the trial because I had successfully persuaded the trial court to exclude DNA test results, both RFLP and PCR, as unreliable.
Stenson is the only death penalty case in the United States, and possibly the world, in which a trial court excluded the results of all DNA test results.
The case was not reversed due to any alleged negligence or ineffectiveness on my part and the withheld evidence contributed significantly to the destruction of the attorney-client relationship between Mr. Stenson and myself.
No court has ever found that I acted inappropriately or unprofessionally and I have never been disciplined by any bar association.
If this information does not set you straight, please contact his lawyers and they will explain it further to you.
I recommend you take that affidavit and shove it up your ass.
Wow, you are confused.
The reason Darrold Stenson is not a dead man walking, but is now awaiting a new trial is that his lawyers uncovered exculpatory evidence that Frederick Leatherman had specifically requested before trial but the prosecution had falsely claimed did not exist.
You might want to read the opinion before you spew false information on this blog. Since you have lots of time looking for ways to attack Frederick Leatherman, maybe you have some extra time to go fuck yourself.
It is a loud testament to the highly moral character of Professor Leatherman that he would write such an affidavit in support of a man who was facing the death penalty.
Professor Leatherman clearly put the concern for his former client’s life over any concern for personal or professional ill effects writing such an affidavit might cause for himself.
Kudos to Professor Leatherman. We need more like him.
WOW CONGRATULATIONS PROFESSOR LEATHERMAN!!!
What a success
QUESTION: Are prosecutors and police who commit gross misconduct ever punished for it? Other than losing the case after a habeas or something like that? Are they ever punished for hiding exculpatory evidence, doing something deliberately wrong either to convict an innocent defendant OR to exculpate a guilty one? What is it called when misconduct in some official capacity causes this kind of mess?
They are rarely punished, if ever, and prosecutors have absolute immunity from suit.