Amicus Brief

 

CARLA G. RYAN

Arizona State Bar 4254

Law Offices of Carla Ryan

PMB 196

7090 North Oracle, Suite 178

Tucson, Arizona 85704

(520) 297 - 1113

Local Counsel

JAMES G. McDONALD

Virginia Bar No. 39,726

Amicus Pro Hae Vice

71 18 Whetstone Road

Alexandria, Virginia 22306

(703) 909-6327

IN THE SUPREME COURT OF ARIZONA

State of Arizona,

Plaintiff/ Appellee,

V.

Shawna Forde,

) Ariz.Sup.Ct. No. CR-11-0043-AP

)

) Pima Cty. Super.Ct.

) No. CR-20092300-001

)

)

) AMICUS BRIEF

)

)

_ __D_ e_fe_n_d_ant_/A_pp_e_ll_a_nt __)

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TABLE OF CONTENTS

ISSUES ( OF FIRST IMPRESSION) PRESENTED FOR REVIEW . . . 5

ST A TEMENT OF THE CASE . . . .. . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . .. . . -7

ST A TEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . .. . . . . . .•. . . .. . ... 9

ARGUMENT IN GENERAL - Extracted Rule . .. . . . . . . . . .. . . . .. . . . .. .. . . 12

ARGUMENTS - Facts Material to Both Arguments I and II ............ 20

ARGUMENT I . . . . . . . . . .. . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . .. 22

The trial court committed reversible fundamental error as its pretrial procedure conclusively showed the victim/witness who to identify and then, minutes later, allowed the victim/ witness to identify the defendant as the perpetrator, and allowed the court-corrupted identification testimony to be considered by the jury.

ARGUMENT II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 31

The trial court committed reversible fundamental error when it allowed the prosecution during the trial to conclusively show the victim/ witness who to identify and then, minutes later, allowed the victim/ witness to identify the defendant as the

perpetrator, and allowed the court-corrupted identification testimony to be considered by the jury.

CONCLUSION ......... ........................................................... 38

APPENDIX Affidavit of James G. McDonald . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

CERTIFICATE OF RULE 31.13(b) COMPLIANCE . ................ ... 42

CERTIFICATE OF SERVICE ................ ..... .......... ................ 43

 

TABLE OF CITATIONS

ARIZONA CASES

State v. Dessureault, 104 Ariz. 380, (1969) .. ...... 7,9,20,21,24,26,27,28,34

State v. Henderson, 210 Ariz. 56 I, (Ariz. 2005) .......... 24,25,29,33,34,36

State v. Hunter, 142 Ariz. 88 (Ariz. 1984) . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . 28

State v. McCall, 139 Ariz. 147 (1983).. ... . .. . . ... . .. ...... .. ... ... .. .. .. 5

State v. Rosthenhausler, 147 Ariz. 486 (1985) ....... . ................. 5

UNITED STATES SUPREME COURT CASES

Foster v. California, 394 U.S. 440 (1969) .................. . ........ . .. 15

Manson V Brathwaite, 432 U.S. 98 (1977) . .. ....... . ............. 13,14,17

Neilv. Biggers, 409 U.S. 188 (1972) ......... . ......................... 13,14

Perry v. New Hampshire, No. 10-8974, slip op. (U.S. Jan 11 , 2012) 12, 13,

14, l5,16,17,l 8,19,34

United States v. Wade, 388 U.S. 218 ( 1967) . . . . . . . . . . . . . . ... . . . . . . . . . . .. 34

CONSTITUTIONAL PROVISIONS

Arizona Constitution

Ariz. Const. Art.VI, §3 . . . . .  . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7

Victims' Bill of Rights, Arizona Constitution, Article 2,

Section 2.1 (C) and (A) 3 ............................. ... . ........ 9,24,32

United States Constitution

U.S. Const .Amendment V (Due Process)... .. ...... .. ... ............ .. .. passim

U.S. Const. Amendment XJV (Due Process) .. . .... . ... ................ passim

 

STATUTES

A.R.S. §12-120.21 . .......... . .. . ................ . ................ .............. 7

A.R.S. §13-751 ................................ . .............. ...... ........... 7

A.R.S. §13-4031 ...................................... ... . ...................... 7

A.R.S. § 13-4033 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7

A.R.S. § 13-4036 . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 7

A.R.S. §13-1507 ...................... . ....................................... 11

A.R.S. 13-1902 A ................................... .......................... 11

ISSUES (OF FIRST IMPRESSION) PRESENTED FOR REVIEW

Did the trial court commit fundamental and reversible error when its pretrial

procedure conclusively showed the victim / witness who to identify and then,

minutes later, allowed the victim/ witness to identify the defendant as the

perpetrator, and allowed the court-corrupted identification testimony to be

considered by the jury?

Did the trial court commit fundamental and reversible error when it allowed

the prosecution during the trial to conclusively show the victim / witness who to

identify and then, minutes later, allowed the victim/ witness to identify the

defendant as the perpetrator, and allowed the court-corrupted identification

testimony to be considered by the jury?

In State v. McCall, 139 Ariz. 147 (1983), Mrs. Redmond, a victim/witness,

was unable to identify the defendant in photo and video lineups. Id. at 9-10.

McCall differs as Mrs. Redmond, the victim/witness identified the defendant,

suggestively situated, at a pretrial hearing a short time after the crime ( 14 days ).

Id. at 11 . The case also differs in that, on the day of the trial, prior to Mrs.

Redmond's testimony, there is no evidence of unnecessary and conclusive

displays of the defendant for viewing by Mrs. Redmond.

In State v. Rosthenhausler, 147 Ariz. 486 (1985), two witnesses to armed

robberies, Wilson and Morgan, were unable to identify the appellant from photo

lineups. Rosthenhausler differs as the two witnesses identified the defendant,

suggestively situated, at the Dessureault hearing. Id. at 489. That was the first

time they identified him. Rosthenhaus/er also differs in that, on the day of the

trial, prior to the testimony of Wilson and Morgan, there is no evidence of

unnecessary and conclusive displays of the defendant for viewing by Wilson and

Morgan.

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STATEMENT OF THE CASE

This Court has jurisdiction pursuant to A.R.S. §§ 12-120.21, 13-751, 13-

4031, 13-4033, 13-4036, Ariz. Const. Art.VI, §3.

For the reasons explained herein, the conviction of Ms. Forde is unconstitutional,

violating her Due Process rights. She is entitled to mercy and relief. At

minimum, she is due a new trial.

Early in the morning on May 30, 2009, a male intruder entered the Arivaca,

Arizona home of Raul Flores, Jr. and his wife, Gina Gonzales. RT 1/25/ 11 at 90-

9 l. Their nine-year-old daughter, Brisenia, was asleep as was Gina Gonzales. Id.

at 87. A white female intruder and two other male intruders also entered the home.

Id. at 101.

When Mr. Flores attempted to protect his family by attacking the first male

intruder, the man shot Ms. Gonzales and Mr. Flores, killing Mr. Flores. Id. at 98.

The same man shot and killed the child. Id. at l 05.

Gina Gonzales, shot and seriously wounded and in the vicinity when her husband

and youngest daughter were murdered, was "in shock" and "going crazy[.]" RT

1/25/1 1 at 197. She "didn't know what [ wa ]s going on." id. When the intruders

left, Gina Gonzales called 911 and told the operator that she "only saw the first"

intruder into her home; that is, the tall, white male. Dessureault hearing RT

1/4/20 l I at 42. The intruders returned, giving her a second chance to glimpse .

them. In the 91 I recording Gonzales is heard exchanging gunfire. Then the

intruders again left. At the 14 minute mark of the 911 call the following

interaction occurs.

Dispatcher: "Can you remember anything about the people that you saw that

would make them standout?"

Gonzales: "She was really short and fat ... "

Dispatcher: "And were they wearing masks?"

Gonzales: "No."

Dispatcher: "Could you tell what color hair she had, did she have a hat on?"

Gonzales: "I didn't even pay attention Ma'am." RT l /25/11 at 202.

A few days later, Gonzales told investigators that the female intruder had "blondish

brown hair with natural curls." Id. at 61. When shown a lineup containing six

blonde women, including Ms. Forde, who was a platinum blonde, Ms. Gonzales

did not make an identification. Id.; RT 1/5/11, page 35, January 25, 2011

Ms. Forde was indicted on June 22, 2009, for the first-degree murders of Raul and

Brisenia Flores, first-degree burglary, and attempted first-degree murder, two

counts of aggravated assault, armed robbery and aggravated robbery of Gina

Gonzales. ROAl.

She was tried by a jury and convicted of all counts on February 15, 2011. ROA 274-

281. On February 22, 2011 , the jury sentenced her to death.

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STATEMENT OF FACTS

The charges in this case arose out of an Arivaca, Arizona home invasion

wherein the claim is made that one of the invaders was a white female. See 911

tape. RT 1/5/11 Page 42, January 25, 2011.

Gina Gonzales was in the home during the invasion and was wounded. RT

1/25/11 at 97. As such, she is a victim under Arizona law with certain rights

which include being present at any event at which the defendant may be present.

Victims' Bill of Rights, Arizona Constitution, Article 2, Section 2.1 (C) and (A)3.

On January 4, 2011 the court, pursuant to State v. Dessureault, I 04 Ariz.

380 (1969), cert. denied, 397 U.S. 965 (1970), held an evidentiary hearing. On

January 5 the court ruled that "Gina Gonzales' proposed identification [ of the

defendant as a perpetrator of the home invasion] testimony . . . is sufficiently

reliable to be presented to the jury." Dessureault Ruling, Page 3, January 5, 2011.

That decision failed to discuss the coming trial court's unnecessarily

suggestive/conclusive confrontations.

On January 25, 2011, the first day of the trial, the Amicus observed the first

conclusive identification which happened when a burly, blue-uniformed official

walked the defendant, manacled by at least two pairs of handcuffs stretched behind

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her back, across the courtroom, directly in front of the victim / witness, Gonzales.

See Appendix-Affidavit of James G. McDonald.

The second conclusive identification, also observed by the Amicus, happened at

the end of the prosecutor's opening statement on January 25, 2011. The record

dispassionately compiles the prosecutor's words as if calmly read from a

teleprompter. "And that conclusion will be that the State has and will prove to you

beyond a reasonable doubt that Shawna Forde is responsible for these crimes. And

we will ask you to find her guilty of each and every count in that indictment." RT

1/5/11 p. 32, January 25, 2011. Amicus observed the prosecutor deliver those

words with riveting passion. Directly in front of Gina Gonzales, she spoke those

words in a shrill, attention-demanding voice as she leaned toward the jury,

thrusting her arm, index finger pointed, at the defendant. The prosecutor sustained

that point. Gina Gonzalez watched intently. See Appendix-Affidavit of James G.

McDonald.

Ms. Forde was indicted for the first-degree murders of Raul and Brisenia Flores,

first-degree burglary, and attempted first-degree murder, two counts of aggravated

assault, armed robbery and aggravated robbery of Gina Gonzalez. ROA 1. The

predicate offenses for the felony murder charge were "burglary or robbery or both .

" RT 2/10/11 at 152.

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To obtain a felony murder conviction, the jury, had to first find that the defendant

engaged in "burglary or robbery or both" during the home invasion.

Robbery is "taking any property of another from his person or immediate presence

... " (A.R.S. 13-1902 A). Gina Gonzalez and the other victims were in the

Flores-Gonzalez home. Finding the defendant guilty of the predicate offense of

robbery required showing the defendant to be in the "immediate presence," in the

Flores-Gonzalez home.

Burglary is the "entering or remaining unlawfully in or on a residential structure

[the Flores-Gonzalez home] with the intent to commit any theft or any felony

therein." (A.R.S. 13-1507). Finding the defendant guilty of the predicate offense

of burglary required finding that the defendant was "in or on a residential

structure," the Flores-Gonzalez home."

In either situation, robbery or burglary, the prosecution had to show that the

defendant was in the Gonzales-Flores house at the time of the murders to get a

felony murder conviction,.

No physical evidence placed the defendant, Shawna Forde, in the Flores Gonzalez

home during the crimes.

Forde was tried and convicted on all counts on February 15, 2011. ROA 274-281.

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ARGUMENT IN GENERAL

Amicus believes the issues in this brief are of first impression and that neither the

Arizona Supreme Court nor the United States Supreme Court has considered or

ruled upon the admissibility of day-of-the-trial eyewitness testimony corrupted that

day by a Court's unnecessary and suggestive/conclusive identification of a

defendant.

The U.S. Supreme Court opinion, in Perry v. New Hampshire, No. 10-8974, slip

op. (U.S. Jan 11, 2012), discussed pre-trial eyewitness identifications and not trial

identifications. Amicus finds that the rule for cases of this kind, the Forde Case for

example, is embedded near the surface of Perry and that the rule can be extracted.

Extracted Rule

Due process concerns arise when a court, intentionally or unintentionally,

produces or allows a confrontation that is both suggestive and unnecessary

and

where the indicators of a witness' ability to make an accurate identification are

outweighed by the corrupting effect of court suggestion, the identification should

be suppressed.

Due Process requires the exclusion of an eyewitness identification obtained

through court procedures that made it all but inevitable that the witness would

identify the defendant.

 

Extraction of the rule

In short, a court can not do what law enforcement can not do.

We start with the following Perry text which begins on page 8 of the slip

opinion. First, strike through unneeded text, leaving unmarked the rule for police

pretrial identification procedures.

Also, strike through "only" which is unneeded since we are extracting the

rule that tells when there are Due Process Clause concerns regarding eyewitness

evidence.

"------------------------------------------------------------------------------------------------------------------------------------------------------, that due process concerns arise ~ when law

enforcement officers use an identification procedure that is both suggestive and

unnecessary.

 .

------------------------------------------------------------------------------------------------------------------------------------------------------. Where the "indicators of [a

witness'] ability to make an accurate identification" are "outweighed by the

corrupting effect" of law enforcement suggestion, the identification should be

suppressed.

------------------------------------------------------------------------------------------------------------------------------------------------------

Next, consider the case wherein the suspect was required to participate in a

one-on-one confrontation with the person who was at the crime scene. The Perry

court noted that " . . . due process required the exclusion of an eyewitness identification obtained through police-arranged procedures that "made it all but

inevitable that [the witness] would identify [the defendant]." Foster v.

California, 394 U.S. 440,443 (1969); Perry v. New Hampshire, No. 10-8974, slip

op. at 8 (U.S. Jan 11, 2012).

 

Changing "required" to "requires," eliminating brackets ( [ ] ) and quotations

marks, leaves the Foster rule as "Due Process requires the exclusion of an

eyewitness identification obtained through police-arranged procedures that made it

all but inevitable that the witness would identify the defendant." Add to the end

of the rule.

 

Summing up the rule to this point, after capitalizing the "d" in due process,

changing the "W" in Where to small case, eliminating a period, inserting the word

"and," and eliminating remaining brackets and quotation marks, the rule is:

 

Due process concerns arise when law enforcement officers use an

identification procedure that is both suggestive and unnecessary

and where the indicators of a witness' ability to make an accurate identification are

outweighed by the corrupting effect of law enforcement suggestion, the

identification should be suppressed.

 

Due Process requires the exclusion of an eyewitness identification obtained

through police-arranged procedures that made it all but inevitable that the witness

would identify the defendant.

The Perry court held, "[ w ]e reach a similar conclusion here: The fallibility

of eyewitness evidence does not, without the taint of improper state conduct,

warrant a due process rule requiring a trial court to screen such evidence for

reliability before allowing the jury to assess its creditworthiness." Perry v. New

Hampshire, No. 10-8974, slip op. at 15 (U.S. Jan 1 I, 2012).

In short, the above holding is "[ w ]hen there is no ' taint of improper state

conduct," there are no eyewitness evidence /Due Process concerns.

The obverse is that "[ w ]hen there is the 'taint of improper state conduct,"

there are eyewitness evidence and Due Process concerns.

The Perry court chose not to limit their words to "taint of improper law

enforcement conduct," or "taint of improper police procedures." The Perry Court

wrote broadly and intentionally "taint of improper state conduct" to include a

broad group of actors. Also, note that the court is indifferent as to how the

eyewitness evidence was obtained, police arrangement or otherwise. The court's

concern is the quality of the eyewitness evidence. If the eyewitness evidence is

"taint[ ed by] improper state conduct" then there are Due Process concerns.

 

"[S]tate conduct" covers all state actors, including, of course, police and law

enforcement. State courts clearly are also such actors. As well they should be.

Courts are to be the guardians, not the violators, of Due Process. When they act

improperly, violating Due Process, they must be vulnerable to scrutiny. As the

Perry court noted, " . . . a key premise of the Brathwaite decision . . . a primary

aim of excluding identification evidence obtained under unnecessarily suggestive

circumstances, . . . is to deter law enforcement use of improper lineups ... in the

first place." Perry v. New Hampshire, No. I 0-8974, slip op. at 11 (U.S. Jan 11,

2012).

432 U.S., at 112, Brathwaite reasoned that "police officers will 'guard

against unnecessarily suggestive procedures."' Ibid. Similarly, courts must be

deterred so they do not engage in "improper state conduct" and so they "guard"

against creating "taint[ ed]" confrontations, and prevent others from creating

"taint[ ed]" confrontations, when within their power. Perry v. New Hampshire,

No. I 0-8974, slip op. at 15 (U.S. Jan 11 , 2012). A court's behavior must equal, if

not exceed, that of law enforcement.

As such, replace "law enforcement officers," "law enforcement," and

"police-arranged" with "court," which gives the rule to this point as:

Due process concerns arise when a court uses an identification procedure

that is both suggestive and unnecessary and where the indicators of a witness' ability to make an accurate identification areoutweighed by the corrupting effect of court suggestion, the identification should be suppressed.  Due Process requires the exclusion of an eyewitness identification obtained

through court procedures that made it all but inevitable that the witness would

identify the defendant.

Continuing, the Perry court m Note 1 says "As our case law makes clear,

what triggers due process concerns is police use of an unnecessarily suggestive

identification procedure, whether or not they intended the arranged procedure to be

suggestive. " Perry v. New Hampshire, No. l 0-8974, slip op. at 2 (U.S. Jan 11

2012). That is, Due Process Clause concerns are triggered by unintentionally

suggestive, as well as intentionally suggestive, identification procedures. Intent or

its absence is not at play.

Key to this brief, a confrontation occurs when the victim or witness physically sees

the defendant before identifying him or her and later identifies the defendant as the

perpetrator. The confrontation may occur pretrial, on the day of the trial, before

the trial starts, or during the trial. The identification may occur pretrial or at the

trial. A confrontation may be planned and may be the result of law enforcement

identification procedures, normally incorporating the defendant as well as other

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persons. Confrontations can be unplanned and can happen absent law

enforcement procedure or other state conduct or direction. A confrontation,

unnecessarily suggestive, may happen because of state action or inaction even

though the state did not intend the confrontation and did not intend it to be

suggestive. A court may arrange procedures or condone, through action or

inaction, behavior that results in a confrontation.

A court's intentional or unintentional production in the courtroom,

of an unnecessary and suggestive confrontation is state action that bears the "taint

of improper state conduct," triggering due process concerns. Perry v. New

Hampshire, No. 10-8974, slip op. at 15 (U.S. Jan 11 2012). Such a confrontation

is identical in nature, perhaps physically indistinguishable, to a law enforcement

identification procedure that is unnecessary and suggestive. Each raises the same

Due Process concern. Is the subsequent identification of the defendant reliable?

Therefore, in accord with the above, replace "uses an identification

procedure" with "intentionally or unintentionally, produces a confrontation."

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ARGUMENTS

Facts Material to a Discussion of the Issues in both Arguments

On January 25, 2011, James G. McDonald, the Amicus, from about one hour

before the trial began and all the time the court was in session, was in Tucson trial

courtroom 378, to observe the Shawna Forde murder trial. See AppendixAffidavit

of James G. McDonald.

Forde's defense was founded on the fact that there was no recorded direct

evidence, not even eyewitness identification, showing her to be at the crime scene

during the crime.

Gina Gonzalez, the victim / witness, was never recorded prior to the trial as

identifying the defendant as present at the Gonzalez house during the crime. A

few days (June 2, 2009) after the home invasion Gonzales could not pick Forde out

of a six-person photo lineup. Dessureault Ruling, page 2, January 5, 20ll.

On September 27, 2010 Shawna Forde, handcuffed, controlled by deputies and

wearing black-and-white jail clothing attended a hearing. Gina Gonzales, also in

attendance, saw Forde at the hearing. At the January 4, 2011 Dessureault hearing

Gina Gonzales said, that after the September 27 hearing, she told Mr. Unklesbay

"she [ Defendant Shawna Forde] looks exactly the way she did when she came into

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my house." Dessureault Hearing, Page 75, January 4, 2011. Then Gonzales

changed that statement and said she "told it [her recognition of Shawna Forde at

the September 27 hearing as the woman who invaded her house] to my mom

[Romey Gonzales], actually" Dessureault Hearing, Page 75, January 4, 2011.

She claimed Mr. Unklesbay, nearby, "probably heard me." Dessureault Hearing,

Page 75, January 4, 2011. She also said "I believe I told Dimple [Smith] [ that

Forde looks like the female in her home] . Dessureault Hearing, Page 70, January

4, 2011. Amicus finds no record of Mr. Unklesbay, Romey Gonzales or Dimple

Smith corroborating Gina Gonzales' statement.

Shawna Forde was not present at the Dessureault hearing as pointed out by Mr.

Larsen," ... Ms. Forde, she is not present, she is in custody ... " Dessureault

hearing, page 3, January 4, 2011. Because Forde was not present, Gina Gonzales

could not identify her at that hearing.

On December 14, 2010 Gina Gonzales claimed during an unrecorded telephone

conversation with Detective Navarro that, at the September 27 hearing, she

recognized Forde as the female at her home. Dessureault Hearing, Page 78,

January 4, 2011. Gonzales acknowledges that is the first time [78 days after the

hearing] she told a law enforcement person of her September 27 comment to her

mother about Forde. Dessureault Hearing, Page 78, January 4, 2011

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Importantly, the victim/ witness, Gina Gonzales, at no time before the trial, in

spite of opportunities to do so, made a recorded identification of Shawna Forde as

the female intruder. However, during the trial, with prancing vigor, enthusiasm

and certainty, Gina Gonzales, the victim/witness identified the defendant as the

invader, "looks just like her." RT 1/5/11, page 95, January 25, 2011 and See

Appendix-Affidavit of James G. McDonald.

ARGUMENT I

The trial court committed reversible fundamental error as its pretrial

procedure conclusively showed the victim/ witness who to identify and then,

minutes later, allowed the victim/ witness to identify the defendant as the

perpetrator, and allowed that court-corrupted identification testimony to be

considered by the jury. The fundamental error caused severe prejudice to the

Defendant who likely otherwise would not have been convicted nor sentenced to

death.

Additional Facts Material to a Discussion of the Issues of Argument I

On the first day of the trial, Gina Gonzales identified the defendant, Shawna Forde,

as the female who came into her home during the crime. She made that

identification after the victim / witness, minutes earlier, twice saw the defendant in

confrontations conclusively identifying Ms. Forde as the person to identify. RT

1/5/1 lat 69-74, January 25, 2011.

Prior to the beginning of the trial and prior to the entry of the jury, the court

engaged in the following procedures. The judge, in complete control of the court

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room, as he should be, aggressively cleared from the courtroom all prospective

witnesses except Gina Gonzalez, a victim and prospective witness. Gina Gonzales

sat between a victims' advocate and another woman, reputedly her mother. The

Judge allowed Gonzales to stay in the courtroom, free to observe all activity in the

courtroom. Almost immediately thereafter, the court paraded the defendant,

manacled by two linked sets of handcuffs stretched across her back, across the

courtroom, within feet of Gonzalez, controlled and escorted by a much-taller, burly

blue-uniformed official. See Appendix-Affidavit of James G. McDonald.

The jury members were at a disadvantage in judging the reliability of the

soon-to-be victim /witness identification of the defendant as the perpetrator of the

home invasion and murders, because they were not present during the pretrial

parading of the defendant in front of the victim / eyewitness. See AppendixAffidavit

of James G. McDonald.

Gina Gonzales on the first day of the trial, January 25, 2011, made her first

recorded identification of the defendant as a perpetrator. RT 1/5/11, page 95,

January 25, 2011. During Gonzalez' 911 call, during which Gina Gonzales claims

to have seen the perpetrator, the Dispatcher asked "Could you tell what color hair

she had, did she have a hat on?" Gonzalez replied "I didn't even pay attention

Ma'am." (Underlining added.) A few days later Gina Gonzales failed to identify

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Ms. Forde in a six-person photo lineup. Dessureault hearing, page 63, January 4,

2011.

No objection was made at the trial regarding the victim/witness being

present to observe the Defendant being brought into the court room. No objection

was made at the trial regarding the inadmissibility of Gina Gonzales' eye witness

identification testimony.

A victim has the right "[t]o be present at ... all criminal proceedings where

the defendant has the right to be present." Arizona Constitution, Article 2, Section

2.1 , Victims ' Bill of Rights, (A) 3. However, Victims ' Rights do not give the

victim the right to be present before a proceeding. Gonzales had no Victims' Right

to be present prior to the trial, nor during the parading of the defendant.

(Underlining added.) But Gina Gonzales was present prior to the trial.

Standard of Review

"This court reviews, when no objection is made at trial, for fundamental error."

State v. Henderson, 210 Ariz. 561 , 567, (Ariz. 2005). "To prevail under this

standard of review, a defendant must establish both that fundamental error exists

and that the error in [her] case caused [her] prejudice." Id. at 567.

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Discussion

Fundamental Error

"[The Defendant] must first prove error." Id. at 568.

Per the first part of the extracted rule, "Due process concerns arise when a court,

intentionally or unintentionally, produces or allows a confrontation that is both

suggestive and unnecessary ... "

On January 25, 2011, the Amicus observed the court err, just before trial, and

produce a confrontation when it allowed the victim/witness to watch the manacled

defendant marched across the court room. See Appendix-Affidavit of James G.

McDonald.

That was beyond merely "suggestive." That was a conclusive identification of the

defendant. Also, the confrontation was "unnecessary." The court could have

ordered the victim/witness from the court room until the trial was gaveled to order.

Then the victim/ witness would not have been present during the parading of the

defendant and there would have been no confrontation. As noted earlier, the

victim did not have a right to be in the court room prior to the trial.

"To establish fundamental error, [the defendant] must show that the error

complained of goes to the foundation of [her] case, takes away a right that is

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essential to [her] defense, and is of such magnitude that [she]could not have

received a fair trial." Id. at 568.

Forde's defense was founded on the fact that there was no recorded direct

evidence showing her to be at the crime scene.

Gina Gonzalez, the victim / witness, was never recorded prior to the trial as

identifying the defendant as present at the Gonzalez house during the crime. A

few days (June 2, 2009) after the home invasion Gonzales could not pick Forde out

of a six-person photo lineup. Dessureault Ruling, page 2, January 5, 2011.

Per the second part of the extracted rule, "Due process concerns arise ...

where the indicators of a witness' ability to make an accurate identification are

outweighed by the corrupting effect of court suggestion, the identification should

be suppressed."

The corrupting effect of the court's day-of-the-trial pretrial conclusive

identification of the defendant for the witness pretrial overwhelmed the witness'

ability to make a reliable identification. The court did so when it produced a

confrontation and allowed the victim/witness to watch the manacled defendant

marched across the court room. The error of allowing that court-corrupted

identification of the defendant went to the very foundation of her case, violating

her Due Process rights, and established that fundamental error occurred.

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The third part of the extracted rule is "Due Process requires the exclusion of an

eyewitness identification obtained through court procedures that made it all but

inevitable that the witness would identify the defendant."

Recognition must be made of the January 5, 2011 ruling. On January 5,

2011 the Tucson Court issued a pretrial Dessureault ruling that "Gonzales'

proposed identification of the defendant at trial will be based on her observation on

the night of May 30, 2009 and is sufficiently reliable to be presented to the jury."

Dessureault Ruling, Page 3, January 5, 2011. The court ruling did not consider the

unnecessary and conclusive, beyond suggestive, day-of-the-trial confrontations,

that would come twenty days later.

Amicus contends that two confrontations on the day of the trial either

overwhelmed the memory of the victim/witness memories of events almost 600

days earlier or made it impossible to determine whether Gonzales' identification of

the defendant was based on powerful day-of-the-trial confrontations or her

memories, if any, of almost 600 days earlier.

Amicus is skeptical of the January 5,2011, Dessureault ruling, in part

because the court noted that Gonzales "paid a remarkable degree of attention the

night of the offense." Dessureault Ruling, Page 3, January 5, 2011. That is

contrary to the 911 call where, at the fourteen minute mark, the Dispatcher asked

"Could you tell what color hair she had, did she have a hat on?" Gonzalez replied

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"I didn't even pay attention Ma'am." Further, the January 5 ruling truncated that

911 conversation when it wrote "[w]hen asked about the woman's hair color,

[leaving out the 'did she have a hat on'], Gonzales replied, 'I didn't even pay

attention.' " The January 5 ruling later says "During a police interview later that

day [June 2, 2009], ... Gonzales said the intruder had 'no hat.' " Dessureault

Ruling, Pages 1-2, January 5, 2011.

The ruling finds that Gonzales "detailed testimony reflects that she paid a

remarkable degree of attention the night of the offense," Dessureault Ruling,

Page 3, January 5, 2011., choosing to note Gonzales" describing [the defendant]

as 'plain jane-not attractive.' " Dessureault Ruling, Page 2, January 5, 2011.

"Plain jane-not attractive" and "ordinary," are often synonyms. Neither carries

specificity. That, by itself, does not demonstrate "detailed testimony" and a

"remarkable degree of attention."

The January 5 ruling, allowing the witness to identify the defendant as the

perpetrator, is overwhelmed by the corrupting effect of the court, immediately

prior to trial, showing the victim / eyewitness who to identify and allowing her

minutes later to identify the defendant, and then to allow the jury to use this

corrupted eyewitness identification, is fundamental error as it is an "error of such

magnitude that the defendant could not possibly have received a fair trial." State

v. Hunter, 142 Ariz. 88, 90 (Ariz. 1984).

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The marching of the manacled defendant in front of the witness made it

inevitable that the witness would identify the defendant. Per the extracted rule,

"Due Process requires the exclusion of an eyewitness identification obtained

through court procedures that made it all but inevitable that the witness would

identify the defendant." In this case, the court procedures made the identification

inevitable.

The court failed to suppress that identification, establishing fundamental error.

Prejudice to the Defendant

"[The defendant] must demonstrate that the error caused [her] prejudice.

Fundamental error review involves a fact-intensive inquiry, and the showing

required to establish prejudice therefore differs from case to case." State v.

Henderson, 210 Ariz. 561,568 (2005).

"[The Defendant] must show that a reasonable jury, applying the

appropriate standard of proof [beyond a reasonable doubt], could have reached a

different result" absent the corrupted eyewitness testimony placing the defendant

at the crime scene. State v. Henderson, 210 Ariz. 561, 569 (2005).

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The fundamental error deprived the defendant of Due Process as the

eyewitness testimony should have been suppressed. That eyewitness testimony

placed the defendant at the crime scene, the home of Gonzales.

A reasonable jury, without evidence that defendant was at the crime scene,

would be unable to find the defendant guilty of robbery or burglary. Without

convictions on burglary and robbery, the defendant could not be found guilty of

felony murder. Without evidence she was at the scene, the defendant could not be

found guilty of murder.

The prejudice to the defendant is overwhelming. Without the court corrupted

eyewitness identification evidence, the Defendant would not be on death

row and may not have been incarcerated after the trial.

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ARGUMENT II

The trial court committed reversible fundamental error when it allowed the

prosecution to conclusively show the victim / witness who to identify and then,

minutes later, allowed the victim/ witness to identify the defendant as the

perpetrator, and allowed that court-corrupted identification testimony to be

considered by the jury. The fundamental error caused severe prejudice to the

Defendant who likely otherwise would not have been convicted nor sentenced to

death.

Additional Facts Material to a Discussion of the Issues of Argument II

The second conclusive identification, observed by the Amicus, happened at the

end of the prosecutor's opening statement on January 25, 2011. The record

dispassionately records her words as if calmly read from a teleprompter. "And

that conclusion will be that the State has and will prove to you beyond a reasonable

doubt that Shawna Forde is responsible for these crimes. And we will ask you to

find her guilty of each and every count in that indictment." RT 1/5/11, Page 32,

January 25, 2011. However, the prosecutor delivered those words with riveting

passion. Directly in front of Gina Gonzales and while speaking those words in a

shrill, attention-demanding voice, the prosecutor leaned and faced toward the jury,

thrusting her arm, index finger pointed, at the defendant. She prolonged that point.

The prosecutor conclusively identified the defendant for both the jury and the

victim/witness, Gina Gonzalez. Gina Gonzalez leaned forward and intently

watched. The prosecutor's identification of the defendant was more than

suggestive and it was unnecessary.

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The judge, who clearly controlled his courtroom, could have forbad the

prosecutor from engaging in her histrionic identification of the defendant as the

perpetrator. But he did not.

The judge could have suppressed the eyewitness identification testimony so

that it could not be considered by the jury, but he did not.

About 25 minutes later, the Amicus observed Gina Gonzalez on the witness

stand, claiming the defendant was at her house and was the perpetrator.

No objection was made at the trial to the prosecutor conclusively identifying

the defendant as the person to convict in the presence of the victim/ witness, prior

to the witness' scheduled testimony. No objection was made at the trial to the

allowance of the corrupted eyewitness identification testimony to be considered by

the jury.

A victim has the right "[t]o be present at ... all criminal proceedings where

the defendant has the right to be present." Arizona Constitution, Article 2, Section

2.1, Victims ' Bill of Rights, (A) 3. The exercise of that provision of the Arizona

Constitution, where uncontrolled, in cases where the witness will eventually

testify, is a Due Process violation.

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Standard of Review

"This court reviews, when no objection is made at trial, for fundamental

error." "To prevail under this standard of review, a defendant must

establish both that fundamental error exists and that the error in [her] case

caused [her] prejudice." State v. Henderson, 210 Ariz. 561,567, (Ariz.

2005).

Discussion

Fundamental Error

"[The Defendant] must first prove error." State v. Henderson, 210 Ariz.

561, 568 (2005).

Per the first part of the extracted rule, "Due process concerns arise when a

court, intentionally or unintentionally, produces or allows a confrontation that is

both suggestive and unnecessary ... "

The court erred by allowing the prosecutor, in front of the victim/ witness,

to conclusively, more than suggestively, identify the defendant in her opening

remarks. Also, that identification was unnecessary. The judge could have

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prevented the prosecutor from doing such or the judge could have suppressed the

testimony and prevented the jury from considering it.

Tellingly, the Perry court noted that "[a] major factor contributing to the

high incidence of miscarriage of justice from mistaken identification has been the

degree of suggestion inherent in the manner in which the prosecution presents the

suspect to witnesses for pretrial identification." United States v. Wade, 388 U.S.

218,228 (1967) (emphasis added by the court, not by the Amicus). Perry v. New

Hampshire, No. 10-8974, slip op. at 12 (U.S. Jan 11, 2012).

"To establish fundamental error, [the defendant] must show that the error

complained of goes to the foundation of [her] case, takes away a right that is

essential to (her] defense, and is of such magnitude that [ she ]could not have

received a fair trial. State v. Henderson, 210 Ariz. 561 , 568 (2005).

Forde's defense was founded on the fact that there was no recorded evidence

showing her to be at the crime scene.

Gina Gonzalez, the victim / witness, was never recorded prior to the trial as

identifying the defendant as present at the Gonzalez house during the crime. A

few days (June 2, 2009) after the home invasion Gonzales could not pick Forde out

of a six-person photo lineup. Dessureault Ruling, Page 2, January 5, 2011, 2011.

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Allowing the corrupted witness testimony to place the defendant at the crime

scene went to the very basis, the very foundation, of Forde's case, that there was

no evidence that she was at the crime scene.

Per the second part of the extracted rule, "Due process concerns arise ...

where the indicators of a witness' ability to make an accurate identification

outweighed by the corrupting effect of court suggestion, the identification should

be suppressed.

The corrupting effect of the court's day-of-the-trial conclusive identification,

via the prosecutor, of the defendant for the witness would likely overwhelm and

displace the witness' 600-days old memories of the intruder and replace them with

short-term memories of what she just saw.

The court did so when it allowed a confrontation wherein the prosecutor

conclusively identified the defendant while the victim/ witness watched and then

shortly testified, identifying the defendant as being at the crime scene.

The third part of the extracted rule is "Due Process requires the exclusion of

an eyewitness identification obtained through court procedures that made it all but

inevitable that the witness would identify the defendant."

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The preceding rule, the third part of the extracted rule, is the clincher, but

some recognition must be made of the January 5, 2011 ruling.

Argument I, above, for a discussion of the January 5 ruling.

Please see

The January 5 ruling, allowing the witness to identify the defendant as the

perpetrator, and the witness' subsequent testimony is overwhelmed by the

corrupting effect of the court, when the prosecutor, an officer of the court, chose in

her opening remarks to conclusively identify the defendant as the perpetrator in

full view of the witness. The court could have prevented the prosecutor from

making such identification but it did not. The court could have suppressed the

subsequent eyewitness identification testimony so that the jury could not consider

it, but the court did not.

But the court failed to prevent or suppress that identification, establishing

fundamental error.

Prejudice to the Defendant

"[The defendant] must demonstrate that the error caused [her] prejudice.

Fundamental error review involves a fact-intensive inquiry, and the showing

required to establish prejudice therefore differs from case to case." State v.

Henderson, 210 Ariz. 561, 568 (2005).

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The error involved here deprived the defendant of Due Process as the

eyewitness testimony should have been suppressed. That eyewitness testimony

placed the defendant at the crime scene, the home of Gonzales.

"[The Defendant] must show that a reasonable jury, applying the appropriate

standard of proof [beyond a reasonable doubt], could have reached a different

result" absent the corrupted eyewitness testimony placing the defendant at the

crime scene. Id. at 569.

A reasonable jury, without evidence that defendant was at the crime scene,

could not find the defendant guilty of robbery or burglary. Without convictions on

burglary and robbery, the defendant could not be found guilty of felony murder.

Without evidence she was at the scene, the defendant could not be found guilty of

murder.

The prejudice to the defendant is overwhelming. Without the court

corrupted eyewitness identification evidence, the Defendant would not be on death

row and may not now be incarcerated.

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CONCLUSION

For all the reasons stated above, this Court should vacate Forde's sentence on all

counts that required a finding that she was present at the crime scene and remand

the matter to the trial court for a new trial.

Respectfully submitted on / / S& , /.)1l "M /; ~ ,a

By /s/ James G. McDonald

JAMES G. McDONALD

, 2012,

Amicus Pro Hae Vice

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By /s/ Carla G. Ryan

CARLA G. RYAN

Arizona State Bar 4254

Local Counsel

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APPENDIX

AFFIDAVIT OF JAMES G. McDONALD

In January 2011 I toured the border from a little east of Douglas to west of

Nogales. I scheduled the return flight to Washington DC for four or five days after

the tour ended so I could see more of life near the border. I had heard just enough

about the Shawna Forde trial to interest me in attending a day. The press presented

the case as Minutemen, drug trafficking, and murder, all part of life near the

border. A day at the trial would be the perfect cap for my border experience. I

tried to attend one of the days of Jury voir dire. If I had attended that day my

larkish curiosity would likely have been satisfied. Room 3 78 was packed and the

guard said there was no space. He told me that January 25, the trial itself would

start.

So on January 25 I returned to the court room, arriving half an hour an hour or so

before the scheduled start. A juror was late and so I was there for almost an hour

before the trial started. I sat in the second row on the right of the aisle as viewed

from the public entrance to the court room. Later I had to move back a row or two.

A Hispanic woman was seated on the left of the aisle in a front row. She was

seated tightly between two other women. Later I learned the woman was Gina

Gonzales and the woman on Gonzales' right was a victim's rights supporter. The

other, the one on her left, was reputedly her mother. That day I attended all

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sessions of the trial until it was gaveled to a close at about 4:55 p.m. That was the

only day I attended.

Before the trial began, the Judge aggressively cleared the court room of all

potential witnesses. I noted that the woman, who I later learned was Gina

Gonzales, was not asked to leave. She and her handlers seemed to be court room

fixtures.

Before the jury entered, a burly guard brought the defendant, Shawna Forde, hands

manacled to her sides, into the court room and walked her to the defense table.

Everyone watched. Everyone in the courtroom, including Gina Gonzalez, could

now easily pick out the defendant. Then the trial was gaveled to order. Shortly,

the prosecutor, fifteen feet or so in front of Gonzalez, struck a pose, pointed at the

defendant, and dramatically declaimed the final sentences of her statement. I

could see Gonzales paying close attention, leaning forward, in both instances.

Shortly after the trial began, the woman, Gina Gonzales, was testifying and

identifying the defendant as the perpetrator. Only severe short term memory

problems would have prevented Gina Gonzales from identifying the defendant as

the perpetrator.

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I was disturbed by what I saw. Later I learned that Arizona's Victims' Rights

likely played a large role in Gina Gonzales being present prior to testifying. I

became convinced that Victims' Rights needed revisions.

I unsuccessfully tried to convince some news institutions and bloggers sympathetic

to death penalty issues, that there were problems with Victims' Rights that needed

correction. I decided that I had to file a brief so that the proper authorities could

see, through my eyes, for themselves.

James McDonald is a member of the United States Supreme Court bar, the

Virginia bar and the Patent bar. He served on six juries, twice as foreman He

served as a Commonwealth of Virginia witness at a lethal injection execution,

observing that the process is not cruel. He and his family live in the Washington,

D.C. area.

/s/ James G. McDonald

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CERTIFICATE OF RULE 31.13(b) COMPLIANCE

The brief is double-spaced, uses a 14-point Times New Roman proportionately spaced

typeface, and contains 7,205 words, according to the processing system

used to prepare this brief.

/s/ James G. McDonald

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