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 __)
1
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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
9
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.
10
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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.
11
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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
18
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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."
19
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
20
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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
21
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
22
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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
23
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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.
24
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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
25
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.
26
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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
27
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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).
28
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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).
29
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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.
30
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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.
31
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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.
32
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
33
I .
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.
34
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."
35
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).
36
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.
37
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
38
By /s/ Carla G. Ryan
CARLA G. RYAN
Arizona State Bar 4254
Local Counsel
r .
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
39
I .
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.
40
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
41
I .
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
42
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