Floyd Darrin Hoover _ 119643 by liwenting

VIEWS: 31 PAGES: 68

									 1   Ulises A. Ferragut, Jr.
     State Bar No. 018773
 2   FERRAGUT & ASSOCIATES
     Attorneys at Law, P.C.
 3   One Renaissance Square
     2 North Central Avenue, Suite 715
 4   Phoenix, Arizona 85004
     (602) 324-5300
 5   Attorney for Defendant
 6                  IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
 7                              IN AND FOR THE COUNTY OF MARICOPA
 8   STATE OF ARIZONA,                          )     Case No. CR 2004-008034-001-DT
                                                )
 9                 Plaintiff,                   )     PETITION FOR POST
     -vs-                                       )     CONVICTION RELIEF
10                                              )
     COURTNEY VALLE BISBEE,                     )     Currently Assigned to Rule 32
11                                              )     Managment Unit /
                   Defendant.                   )     Honorable Gary Donohoe
12
            COMES NOW Defendant/Petitioner Courtney Valle Bisbee, by and through
13

14   undersigned counsel, pursuant to Rule 32.4, Ariz.R.Crim.P., and prior Order of this Court

15   extending time for filing, and hereby petitions the Court for post conviction relief in the form

16   of a new trial, alleging violations of her Fourteenth Amendment rights under the United States

17   Constitution and her correlative rights under the Constitution of the State of Arizona.

18   INTRODUCTION

19          The defendant in this case was convicted at a bench trial and her conviction and

20   sentence were affirmed on direct appeal. This post conviction action seeks relief based on

21   (1) ineffective assistance of trial counsel arising from numerous failures/deficient performance

22   at the pretrial and trial stages; (2) prosecutorial misconduct in failing to disclose material

23   required to be disclosed under Brady v. Maryland, 373 U.S. 83 (1963); and (3) newly

24   discovered material evidence.

25   I.     GROUND ONE: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL ON THE
            SUBJECT OF BIAS
26
            A.     Trial Counsel Failed to Cross Examine the Victim’s Mother, the
27                 Victim’s Brother, and the Victim with Regard to Bias, Namely,
                   Making a False Claim of Sexual Molestation for the Purpose of
28                 Financial Gain
 1   FACTS

 2           Bias on the part of a witness for the State is never collateral; when the witness is the

 3   victim, the importance of bias rises dramatically. Here, the issue of bias arises with regard

 4   to the victim, the victim’s brother, and the victim’s mother, dramatically increasing the

 5   significance of the issue. During the entire cross examination of the victim’s mother, the

 6   victim’s brother, and the victim himself, defense counsel failed to raise the issue of bias,

 7   motivation of financial gain, and making a false claim of molestation; failed to ask these

 8   individuals about such matters, and presented no evidence tending to support an assertion

 9   of bias. See cross examination of the victim’s brother, Nikolas Valles, Reporter’s Transcript

10   of January 10, 2006 (hereinafter, “R.T. 01/10/2006") (morning), PP. 4-37, attached hereto,

11   designated Bisbee PCR Exhibit A ; continuing to afternoon, R.T. 01/10/2006 (afternoon)

12   attached hereto, designated Bisbee PCR Exhibit B , at PP. 3-21; and followed by cross

13   examination of the victim, Jonathan Valles, R.T. 01/10/2006 at PP. 22-93; and examination

14   of the victim’s mother, Janet Sloan, R.T. 01/17/2006, PP. 92-95, at P. 94, L. 20-21 (“I don’t

15   have any questions”), attached hereto, designated Bisbee PCR Exhibit C ; incorporated by

16   reference as though fully set forth herein.

17           The defendant had communicated in person and in writing to trial counsel that the

18   claims were false, and that there was a motivation for financial gain underlying the claims.

19   The defendant gave trial counsel information that provided a starting point for an investigation,

20   specifically, the name of an attorney who had been contacted by the victim’s mother with

21   regard to a civil lawsuit grounded in the claims of molestation. Trial counsel failed to contact

22   that attorney or other wise investigate the question of financial gain. See letter from Phoenix

23   Attorney Joel Robbins declining to handle the defendant’s case based on a conflict of interest,

24   attached hereto, designated Bisbee PCR Exhibit D , and now incorporated by reference as

25   though fully set forth herein.1
             Trial counsel’s failure to cross examine the victim with regard to the issue of bias was
26
     significantly heightened by the State’s cross examination of the defendant, when the
27
         1
28             The attorney who subsequently was employed to represent the victim / his
         mother on a civil lawsuit arising out of the criminal charges was Richard DePonte.

                                                    2
 1   prosecutor asked the defendant if she could present any reason why the victim would lie.

 2   When the defendant responded, “Yes,” the prosecutor changed the subject and avoided the

 3   specifics of bias (R.T. 01/12/2006, at P. 106, L. 1-16).2 Trial counsel then committed a

 4   separate form of ineffectiveness by failing to ask a question of the defendant on re-direct that

 5   would provide an opportunity for her to identify the nature of bias on the part of the victim and

 6   his mother. See cross examination of the defendant, R.T. 01/12/2006, PP. 98-108, attached

 7   hereto, designated Bisbee PCR Exhibit E , especially at P. 106, L. 1-16; and trial counsel’s

 8   re-direct examination, at PP. 133-136, and now incorporated by reference as though fully set

 9   forth herein.

10   LAW AND ARGUMENT:             INEFFECTIVE ASSISTANCE OF COUNSEL

11           "No person shall...be deprived of life, liberty or property without due process of law;...."

12   U.S. Const. 5th Amend., and A.R.S. Const. Ar. II, § 4. "In all criminal prosecutions, the

13   accused shall...have the Assistance of Counsel for his defence" [sic].                U.S. Const.

14   6th Amend., and A.R.S. Const. Art. II, § 24. “No state shall... deprive any person of life,

15   liberty, or property, without due process of law; nor deny to any person within its jurisdiction

16   the equal protection of the laws.” U.S. Const. 14th Amend., and A.R.S. Const. Art. II,§ 4,

17   § 13, & § 24. The Sixth Amendment right to counsel has been incorporated into the

18   Fourteenth Amendment and made applicable to the states through the Fourteenth

19   Amendment’s due process clause.            Powell v. Alabama, 287 U.S. 45 (1932) (capital

20   defendants); Gideon v. Wainwright, 372 U.S. 335 (1963) (felonies); Strickland v. Washington,

21   466 U.S. 668 (1984) (landmark case establishing current standard for claims of ineffective

22   assistance of counsel). Constitutional protections have been interpreted and extended over

23   time to meet the needs of a changing society. As a result of social changes, combined with

24   commensurate changes in constitutional interpretation, the right to the assistance of counsel

25   has, for many years, extended to the right to "effective" assistance of counsel:

26           The Sixth Amendment recognizes the right to the assistance of counsel
             because it envisions counsel's playing a role that is critical to the ability of the
27
         2
28             The full trial testimony of the defendant is found at R.T. 01/12/2006, PP. 5-108
         and PP. 133-136.

                                                      3
 1          adversarial system to produce just results. *** For that reason...the right to
            counsel is the right to the effective assistance of counsel.
 2
     Strickland, supra 466 U.S. at 685-86.
 3
            The constitutional right to effective assistance of counsel applies to every criminal
 4
     prosecution. Evitts v. Lucey, 469 U.S. 387 (1985); Frazer v. United States, 18 F.3d 778,
 5
     782 (9th Cir. 1994) ([a]n accused is entitled to be assisted by an attorney, whether retained
 6
     or appointed, who plays the role necessary to ensure that the trial is fair (quoting
 7
     Strickland, 466 U.S. at 685)). Further, the constitutional right to the effective assistance of
 8
     counsel applies at every critical stage of the criminal proceedings, including (1) trial,
 9
     Gideon v. Wainwright, supra, (2) guilty pleas, McMann v. Richardson, 397 U.S. 759
10
     (1970) (holding that effective assistance is required for the determination as to whether or
11
     not to waive right to trial), (3) sentencing, Strickland, supra; Green v. Groose, 959 F.2d 708
12
     (8th Cir. 1992); accord, State v. Connor, 786 P.2d 948, 163 Ariz. 97 (1990), and (4) first
13
     appeal as of right, Evitts, supra, 469 U.S., at 394-396 (1985). If the accused's attorney
14
     fails to render adequate legal assistance, the defendant is entitled to relief from the
15
     conviction. Murray v. Carrier, 477 U.S. 478 (1986) (holding that even a single isolated error
16
     of counsel can give rise to relief under the Sixth Amendment); Strickland, supra; accord,
17
     State v. LaGrand, 733 P.2d 1066 (Ariz.1987); and State v. Rossi, 706 P.2d 371 (Ariz.1985).
18
            Justice Sandra Day O'Connor, writing for the majority in Strickland, promulgated a
19
     two-pronged standard for courts to use in determining when a criminal defendant has suffered
20
     from ineffective assistance of counsel.     The defendant must show:        1) that counsel's
21
     performance was deficient; and 2) that the deficient performance of counsel prejudiced the
22
     defense. Strickland, supra. "Deficient performance" means that the attorney's performance
23
     was unreasonable under prevailing professional standards. United States v. Blaylock, 20
24
     F.3d 1458, 1465 (9th Cir. 1994) (quoting Strickland, 466 U.S., at 687). The proper standard
25
     for evaluating attorney performance is whether the assistance was reasonably effective under
26
     the circumstances. Sturgis v. Goldsmith, 796 F.2d 1103, 1110 (9th Cir. 1986) (bold print
27
     added). This requires the court to carefully examine the facts of the case. Strickland,
28

                                                   4
 1   466 U.S., at 690. In conducting its inquiry regarding an attorney’s deficient performance,

 2   a reviewing court must indulge a presumption that counsel's conduct falls within the wide

 3   range of reasonable professional assistance. Strickland, 466 U.S., at 690. A defendant

 4   overcomes this presumption by showing that his attorney's action could not be considered

 5   sound strategy or a legitimate tactical decision. Strickland, 466 U.S., at 690.

 6          Once deficient performance has been shown, a court's determination of prejudice

 7   arising therefrom requires an assessment of the totality of the evidence. Strickland, 466 U.S.,

 8   at 695. To show prejudice, the petitioner must show that there is a reasonable probability that

 9   but for counsel's unprofessional errors, the results would have been different. United

10   States v Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting Strickland, 466 U.S., at 687).

11   A “reasonable probability” is a probability sufficient to undermine confidence in the

12   outcome. United States v. Span, 75 F.3d 1383, 1387 (9th Cir. 1996). Importantly, the

13   standard of “reasonable probability” represents “a fairly low threshold.” Riggs v. Fairman,

14   399 F3d 1179, 1183 (9th Cir. 2005). The Arizona Supreme Court has held that the standard

15   of “reasonable probability” is lower than the standard of “preponderance of the evidence”

16   but greater than “a mere possibility.” State v. Vickers, 180 Ariz. 521, 527, 885 P.2d 1086,

17   1092 (1984), quoting State v. Lee, 142 Ariz. 210, 214, 689 P.2d 153, 157 (1984). See also

18   Sanders v. Ratelle, 21 F.3d 1446, 1461 (9thCir.1994) (rejecting preponderance standard

19   and finding prejudice where attorney’s deficient performance served to deprive defendant

20   of significant evidence supporting his defense).         Accordingly, a defendant alleging

21   ineffective assistance of counsel need not prove to a 100% degree of certainty that the result

22   would have been different if the deficient performance had not occurred, nor even by

23   a preponderance of the evidence:

24
            The result of a proceeding can be rendered unreliable, and hence the
            proceeding itself unfair, even if the errors of counsel cannot be shown by
25
            preponderance of the evidence to have determined the outcome.
26   Strickland, 466 U.S. at 604.

27          The Strickland standard for ineffectiveness of counsel has been adopted and applied

28   by the Supreme Court of Arizona. State v. Valdez, 167 Arizona 328, 330, 806 P.2d 1376

                                                   5
 1   (1991); State v. Salazar, 844 P.2d 566, 581 (1992), cert. denied, 113 S.Ct. 3017 (1993). To

 2   succeed in the first prong of the Strickland test, petitioner must show that "counsel's

 3   representation fell below an objective standard of reasonableness." Strickland, 466 U.S.

 4   at 687. Importantly, trial counsel in this case is a criminal law specialist, and thus he clearly

 5   is presumed to be aware of and to fulfill his duties and obligations as outlined in the ABA

 6   Standards for Criminal Justice, Prosecution Function and Defense Function, even more

 7   so than for a criminal attorney who does not possess such specialization, if the specialization

 8   is to have genuine meaning.

 9          Failure of trial counsel to cross examine the victim, the victim’s brother, and the victim’s

10   mother regarding a financial motivation to make false claims of molestation "outside the

11   wide range of professional competence." See Declaration of criminal specialist Alan M.

12   Simpson on the subject of ineffective assistance of trial counsel in the case at bar, attached

13   hereto, designated Bisbee PCR Exhibit F , and now incorporated by reference as though

14   fully set forth herein, at PP. 3 . The defendant also must overcome the presumption that,

15   under the circumstances, the challenged action “might be considered sound trial strategy."'

16   Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,101 (1955). In this

17   case, there was no reasonable tactical basis for foregoing the issue of bias, where the

18   defense was that the molestation did not occur, thus inherently implicating the possibility of

19   bias as a basis for assertion of the claims of molestation. This is even more the case where

20   one of the defense’s witnesses was a student who informed a school teacher that she had

21   overheard the victim bragging about making a false claim (due to further ineffectiveness, trial

22   counsel failed to adduce testimony from that witness as to what she had overheard the victim

23   state). The question of bias goes to the heart of the most important issue in the case, namely,

24   the credibility of the victim and the truth or falsity of his testimony. "A new trial is required

25   if there is any reasonable likelihood that the false evidence could have affected the jury."

26   Brown v. Borg, 951 F.2d 1011,1015 (9th Cir.1991).

27          To succeed in the second prong of the Strickland test, the defendant must prove

28   "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial

                                                     6
 1   whose result is reliable." Strickland, 466 U.S. at 687. In the instant case, there can be no

 2   doubt as to the prejudicial effect of the presentation of false testimony from the victim of

 3   the alleged offense, no question of the prejudice that necessarily arises from trial counsel’s

 4   virtual abdication of his role as an advocate for the defendant, and no question as to the

 5   prejudicial effect of depriving the trier of fact of information central to the question of bias

 6   and the issue of credibility. In fact, with regard to this specific instance within the claim of

 7   ineffective assistance of counsel, trial counsel’s conduct fully qualifies for a presumption of

 8   prejudice. In United States v. Cronic, 466 U.S. 648, 659 (1984), the United States Supreme

 9   Court held that prejudice is to be presumed when defense counsel fails to subject the

10   prosecution's case to meaningful adversarial testing, because such a circumstance

11   constitutes a denial of Sixth Amendment rights that makes the adversary process itself

12   presumptively unreliable — and the adversarial process is the essential core of the American

13   system of criminal justice. Here, trial counsel knew of the question of bias, was in possession

14   of a starting point for investigation, had additional information consistent with that bias, and

15   did nothing: no investigation; no telephone calls or interviews; no contact with civil attorneys;

16   no cross examination of the State’s witnesses on the subject of bias; no adducing testimony

17   from his own client regarding possible bias as a basis for the criminal claims; no objection to

18   the prosecutions false statements and mis-statements during closing argument. Trial counsel

19   simply stood mutely by on the issue of bias, as though he was an uninterested bystander

20   rather than an advocate representing a criminal defendant.

21          B.     Trial Counsel Failed, on Direct Examination, to Ask Amanda Hermann
                   about Overhearing Two Witnesses (Brittany Heeler and Donovan
22                 Kemp) Talking at School about Jonathan Valles Making up the False
                   Claims
23   FACTS

24          Trial counsel had been informed by the defendant of numerous individuals who needed

25   to be interviewed, see emails / communications to trial counsel, attached hereto, designated

26   Bisbee PCR Exhibit G , and now incorporated by reference as though fully set forth herein,

27   but trial counsel failed to interview any of them. One of the persons named was a student

28   who had approached one or more teachers at the school where the defendant worked and

                                                    7
 1   where the victim attended classes, and communicated to the teacher(s) that she and several

 2   other students had overheard Brittany Heeler and Donovan Kemp talking about Jonathan

 3   Valles making up the claims against the defendant and that she personally knew of prior

 4   incidents of illegal conduct involving some of the students who were making the false claims.

 5   Interestingly, Amanda Hermann was listed as a witness by the defense, and actually called

 6   to the stand during the trial. Her testimony is found at R.T. 01/12/2006, PP. 109-113. Trial

 7   counsel failed to interview Ms. Hermann, failed to ask about the other students — up to 20 of

 8   them — whom Amanda believed to either be involved in the false allegations, or knew

 9   information valuable to Courtney’s defense. On direct examination, trial counsel failed to ask

10   her about overhearing anyone talking about false claims of molestation, failed to ask her if she

11   had communicated such information to a teacher at the school, and utterly failed to raise the

12   issue with her in any way. The State elected not to cross examine Amanda, and thus there

13   was no re-direct opportunity. The validity of the basic information was somewhat confirmed

14   after the conclusion of the trial, at the sentencing hearing, when a teacher named Andrew

15   Peters mentioned to the Court that Amanda had come to him when the allegations came out

16   and later came to him and complained that she was not allowed to testify to what she had

17   heard. R.T. 04/21/2006, P. 28, L. 16-19. See also personal affidavit of Andrew Peters,

18   attached hereto, designated Bisbee PCR Exhibit H , and now incorporated by reference as

19   though fully set forth herein, at ¶¶ 2, 3, & 5.

20   LAW AND ARGUMENT

21          The two-pronged standard for determining ineffective assistance of counsel was stated

22   earlier (deficient performance prejudicing the defendant, with conduct being evaluated as

23   unreasonable under prevailing professional standards under the circumstances and showing

24   that there is a reasonable probability that but for counsel's unprofessional errors, the results

25   would have been different.         Reasonable probability is lower than the standard of

26   “preponderance of the evidence” but greater than “a mere possibility.” Here, the failure of trial

27   counsel to elicit testimony from the witness as to having overheard the victim’s friends brag

28   about him making up the charges falls well "outside the wide range of professional

                                                       8
 1   competence." See Bisbee PCR Exhibit F , Declaration of criminal specialist Alan F.

 2   Simpson. This failure also cannot be considered “sound trial strategy."' In this case, there

 3   was no reasonable tactical basis for foregoing evidence that the victim had admitted the falsity

 4   of the charges, in direct contradiction to his testimony at trial. Especially where the defense

 5   was that the molestation did not occur, thus inherently implicating the possibility of trumped

 6   up charges. Once again, "[a] new trial is required if there is any reasonable likelihood that the

 7   false evidence could have affected the jury."          Brown v. Borg, 951 F.2d 1011,1015

 8   (9th Cir.1991). There can be little doubt as to the prejudicial effect of the failure to present

 9   evidence that the victim had previously admitted that the charges were made up, especially

10   coming from a student who had approached a school official long before trial with that

11   information. Trial counsel abdicated of his role as an advocate for the defendant, and

12   deprived the trier of fact of information central to the question of credibility.

13          C.     Trial Counsel Failed to Object During Closing Argument to the
                   Prosecutor Misstating the Evidence and / or Making False Statements
14   FACTS

15          In his closing argument, the prosecutor falsely stated that the defendant could not offer

16   any reason for the victim to lie about the incident. In fact, the defendant specifically stated,

17   “Yes,” to the question of whether she could offer reasons for the victim to lie, and the

18   prosecutor then promptly changed the subject and avoided articulation of the basis for bias.

19   Trial counsel also failed to object to other instances of the prosecutor misstating the evidence,

20   such as stating that the defendant’s statements to Detective Kinder when she was

21   interrogated were “exactly what Jonathan testified to, what Donovan testified to, and what

22   Brittany testified to. She corroborates everything they had to say when she talked to

23   Detective Kinder.” R.T. 01/18/2006, P. 9, L. 2-9. This statement is blatantly false, as the

24   transcript of her interrogation plainly and unambiguously demonstrates.

25   LAW AND ARGUMENT

26          Failure of defense counsel to object to untrue, prejudicial statements made by the

27   prosecutor is a clear example of how trial counsel’s “representation fell below an objective

28   standard of reasonableness" (Strickland, 466 U.S. at 687) and "outside the wide range of

                                                     9
 1   professional competence." Crotts v. Smith, 73 F.3d 861, 866 (9th Cir., 1996). With respect

 2   to the presumption that, under the circumstances, the challenged action “might be considered

 3   sound trial strategy," Strickland, 466 U.S. at 689, there was no reasonable tactical basis not

 4   to object to the prosecutor's false statement. On the contrary, a motion for mistrial would even

 5   have been appropriate: "A misstatement of evidence is error when it amounts to a statement

 6   of fact to the jury not supported by proper evidence introduced during the trial, regardless of

 7   whether counsel's remarks were deliberate or made in good faith." United States v. Watson,

 8   171 F.3d 695, 700 (D.C. Cir., 1999). In a case where the defense is that the crimes did not

 9   occur, the misstatement attributing full admission to the defendant goes to the heart of the

10   ability to present a defense to the charges. And in a case where there are no steps — other

11   than the standard jury instructions — that the arguments of counsel are not evidence, the

12   defendant is entitled to a new trial by reason of the error. Id., at 700-701. Yet again, "[a] new

13   trial is required if there is any reasonable likelihood that the false evidence could have

14   affected the jury." Brown v. Borg, 951 F.2d at 1015.

15          In the case at bar, there can be no doubt as to the prejudicial effect of the prosecutor's

16   false statements: he craftily stated that the defendant failed to present any possible basis for

17   bias, when, in fact, he was told under oath that the defendant knew of reasons for bias and

18   then he deliberately avoided allowing the defendant to present that information to the Court

19   (which was functioning as jury at the time). Defense counsel exacerbated the prejudice by

20   failing to object. "the presentation of the prejudicial evidence at the end of the trial and the

21   absence of a limiting instruction (due to ] counsel's failure to object to the evidence) only

22   magnified the prejudicial effect." Crotts v. Smith, 73 F.3d at 867.

23          Finally, separately from trial counsel’s failure to object, he failed to use his closing

24   argument to tell the jury that the prosecutor had misstated the evidence in its initial closing

25   argument. "Pointing out such a misstatement can have a powerful, even devastating effect

26   on an opponent's case. Had defense counsel used his closing argument in that fashion,

27   [it]...would have...mitigate[d] the impact of the misstatement." United States v. Watson,

28   171 F.3d 695,706 (D.C. Cir.,1999). Trial counsel’s conduct in failing to object served to

                                                    10
 1   exacerbate rather than mitigate the prejudice. "[T]he presentation of the prejudicial evidence

 2   at the end of the trial and the absence of a limiting instruction (due to counsel's failure to

 3   object to the evidence) only magnified the prejudicial effect."             Crotts v. Smith,

 4   73 F.3d 861,867 (9th Cir.,1996).

 5   II.  GROUND TWO: OVERLAPPING CLAIMS OF INEFFECTIVE ASSIS-
          TANCE AND PROSECUTORIAL MISCONDUCT REGARDING WITNESS
 6        EUGENE VALLES: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
          FOR FAILURE TO INVESTIGATE AND INTERVIEW MR. VALLES ON
 7        SUBJECT OF BIAS AND CREDIBILITY; AND PROSECUTORIAL
          MISCONDUCT FOR FAILURE TO PROVIDE DEFENSE WITH
 8        EXCULPATORY MATERIAL PROVIDED TO POLICE AND PROSECUTION
          BY EUGENE VALLES, INVOLVING BIAS AND CREDIBILITY
 9   FACTS

10          Eugene Valles, the father of Jonathan and Nikolas Valles (the victim and his brother,

11   respectively), provided an affidavit, dated December 21, 2007, in which he states that:

12          In September and October, 2004, I personally spoke to Detective Kinder and
            Prosecutor Deborah Shcumacher of the Maricopa County Attorney’s office, and
13          confirmed that their mother, Janette Sloan, was coercing my sons to make false
            allegations against Ms. Bisbee. I also told them that although I love my son, he
14          was having problems at school and with the police (and so was his best friend,
            State witness, Donavan Kemp) and had reputations for lying.
15
     12/21/2007 Affidavit of Eugene Valles, attached hereto, designated Bisbee PCR Exhibit I ,
16
     and now incorporated by reference as though fully set forth herein, at P. 1, seventh full
17
     paragraph.
18          During the entire period from September of 2004 to January of 2006, the prosecution
19   failed to disclose this material to the defense. The subject matter of the information provided
20   to the prosecution involved both bias and credibility, in that the information was that the
21   juveniles were lying about the defendant’s alleged actions and that the reason for their
22   conduct was coercion by their mother. See Bisbee PCR Exhibit I , at P. 1, seventh full
23   paragraph. Eugene Valles contacted trial counsel’s office, but never spoke with trial counsel.
24   See Bisbee PCR Exhibit I , at P. 1, ninth full paragraph. Counsel never called him back,
25   never interviewed him, never determined the content of what he would potentially testify to,
26   and never learned that Mr. Valles had provided information regarding bias and credibility to
27   the prosecution.
28

                                                   11
 1   LAW AND ARGUMENT

 2           Given the position that Mr. Valles occupied in the scenario — having custody of

 3   Jonathan and Nikolas prior to the incident, having detailed knowledge of information regarding

 4   Janet Sloan, the boys’ mother, it was ineffective assistance to fail to interview this person in

 5   advance of trial to determine the value of his testimony. Given the new information revealed

 6   by Mr. Valles in his affidavit, it is crystal clear that the prosecution had a duty to disclose the

 7   information it possessed about credibility of the victim and about potential bias arising from

 8   the mother’s coercion. This failure to disclose rises to a constitutional level as a consequence

 9   of the prosecution’s related conduct (1) in questioning the defendant about possible reasons

10   for bias (but avoiding allowing the defendant to provide reasons for bias) and (2) then making

11   prejudicial and knowingly false statements about lack of bias during closing arguments.

12           While the result of defense counsel’s failure to investigate and interview Eugene Valles

13   is essentially self-evident (inability to raise issue of previous statement to police and

14   prosecution, inability to raise issue of bias and coercion by Janet Sloan (the mother of

15   Jonathan and Nikolas), and inability to ask about any motivation for the coercion),3 the same

16   results are dramatically heightened with respect to the prosecution’s decision to conceal Mr.

17   Valles’ statement from the defense. It is one thing for defense counsel to fail to interview a

18   witness; it is entirely a different thing for the State to withhold potentially exculpatory

19   information that would impeach the credibility of the victim and lay a foundation for bias. This

20   conduct not only constituted a violation of Brady v. Maryland, 373 U.S. 83 (1963), but also

21   resulted in a violation of the defendant’s right to confront his accusers and resulted in

22   interference with the defendant’s Sixth Amendment right to the assistance of counsel. This

23   is simply impermissible.

24           The suppression of the information violated the defendant’s state and federal

25   constitutional rights:

26       3
                Eugene Valles spoke at the defendant’s sentencing, and implied that there
27       was a financial motivation for Janet Sloan’s coercion of Jonathan and Nikolas.
         R.T. 04/21/2006, at P. 3. In his affidavit, he specified financial gain (“...for the lawsuit
28       money”) and stated that Nikolas had confirmed the falsity of the allegations and the
         existence of the coercion. See Bisbee PCR Exhibit I , at P. 1, fifth full paragraph.

                                                     12
 1            The federal constitution gives the defense no greater right to discovery than
            exists under state law. See Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct.
 2          989, 94 L.Ed.2d 40 (1987); Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837,
            51 L.Ed.2d 30 (1977). However, concomitant with the Arizona Victim's Bill of
 3          Rights, the defendant has a due process right, under the federal and Arizona
            constitutions, to present a defense. Chambers v. Mississippi, 410 U.S. 284, 93
 4          S.Ct. 1038, 35 L.Ed.2d 297 (1973). The defendant also has a concomitant right
            to effective cross-examination of a witness at trial. Davis v. Alaska, 415 U.S.
 5          308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

 6   State ex rel. Romley v. Superior Court In and For County of Maricopa, 172 Ariz. 232, 236,

 7   836 P.2d 445, 449 (App.1991,Div.1).

 8          Failure to disclose the information prevented the defense from presenting the trier of

 9   fact with credible evidence that the victim and another of the State’s witnesses had

10   reputations for lying:

11          I also told them that although I love my son, he was having problems at school
            and with the police (and so was his best friend, State witness, Donavan Kemp)
12          and had reputations for lying.

13   12/21/2007 Affidavit of Eugene Valles, Bisbee PCR Exhibit I , at P. 1, seventh full

14   paragraph.

15          For purposes of demonstrating prejudice arising from preventing the defendant from

16   adducing evidence of bias and lack of credibility on the part of a key witness for the State, it

17   is important for this Court to focus not on the outcome of the trial but on the individual witness,

18   because a reasonable trier of fact might well have formed a significantly different impression

19   of Jonathan Valles’ credibility if presented with cross-examination of Jonathan’s father,

20   showing that Jonathan had a reputation for lying, was having trouble with the police, and had

21   been coerced into confirming the allegations by a parent intent on financial gain:

22          The Supreme Court has emphasized that “the focus of the Confrontation Clause
            is on individual witnesses” and thus “the focus of the prejudice inquiry in
23          determining whether the confrontation right has been violated must be on the
            particular witness, not on the outcome of the entire trial.” Van Arsdall, 475 U.S.
24          at 680, 106 S.Ct. 1431.

25   Slovik v. Yates, __ F.3d __ (9th Cir.2008) (2008 WL 4459083), at p. 5.

26          The analysis of Confrontation Clause violations is particularly significant in this case,

27   because there are two different standards that apply simultaneously, one for a Confrontation

28   Clause violation and one for a Brady violation. With regard to the Confrontation Clause

                                                     13
 1   violation, the Slovik Court noted, the standard of review places the burden on the State:

 2             Confrontation Clause errors are subject to harmless-error analysis. “The
            correct inquiry is whether, assuming that the damaging potential of the
 3          cross-examination were fully realized, a reviewing court might nonetheless say
            that the error was harmless beyond a reasonable doubt.” Van Arsdall, 475 U.S.
 4          at 684, 106 S.Ct. 1431.

 5   Slovik v. Yates, __ F.3d __ (9th Cir.2008) (2008 WL 4459083), at p. 6.

 6          The Arizona Supreme Court has held that under harmless error review, once error has

 7   been demonstrated, the burden falls upon the State to prove beyond a reasonable doubt that

 8   the error could not have contributed to the verdict. State v. Henderson, 210 Ariz. 561, 567,

 9   115 P.3d 601 (2005) (Harmless error review places the burden on the state to prove beyond

10   a reasonable doubt that the error did not contribute to or affect the verdict or sentence. See

11   State v. Bible, 175 Ariz. 549, 588, 858 P.2d, 1152, 1191 (1993)). In this instance, casting

12   significant doubt as to the credibility of Jonathan Valles and Donovan Kemp (in addition to the

13   numerous other impeachments that could have been undertaken / presented if trial counsel

14   had been effective), would have served to emphasize to the trier of fact that the State's case

15   rested on the testimony of shaky witnesses and thus reinforces the conclusion that if these

16   witnesses were further contradicted, the trier of fact might not have returned a conviction.

17          In sharp contrast to harmless error review, however, post conviction relief claims based

18   on Brady and grounded in the suppression of evidence impeaching the testimony of a key

19   witness for the State must be analyzed cumulatively, not item by item, Barker v. Fleming,

20   423 F.3d 1085 (9th Cir. 2005); and once materiality of the undisclosed evidence has been

21   demonstrated, no further review is appropriate, Silva v. Brown, 416 F.3d 980, 986

22   (9th Cir. 2005). In Barker, the Ninth Circuit pointed out that:

23          Crucial to this case is the Supreme Court’s requirement that the materiality of
            the withheld evidence be analyzed cumulatively ... considered collectively, not
24          item by item.

25   Barker v. Fleming, supra, 423 F.3d at 1094.

26          The logic of this principle is compelling and beyond reproach. Impeachment evidence

27   may easily lead to a recasting of the trier of fact’s view of the entire case. The case evidence

28   may lead to one conclusion when viewed from the perspective that the witness was telling the

                                                    14
 1   truth, but lead to a completely different conclusion when viewed from the perspective of the

 2   witness providing false testimony. The more crucial the witness, the more pervasive the

 3   cumulative effect of the impeaching evidence, and the more significant the action of the State

 4   in suppressing that evidence from the defense. Here, there is a clear example of a violation

 5   by the State of its obligations under Brady and its progeny. Brady evidence encompasses

 6   not only exculpatory evidence but also evidence that could be used to impeach government

 7   witnesses. United States. v. Ruiz, 536 U.S. 622, 628 (2002); Banks v. Dretke, 540 U.S. 668,

 8   675 (2004). Here, the suppressed information served both functions; it impeached the

 9   testimony of the victim and tended to exculpate the defendant via a challenge to whether any

10   offense occurred at all.

11          Importantly, the question of materiality is a key issue in the analysis of prejudice. A

12   Brady claim has three essential elements: (1) that the evidence at issue be favorable to the

13   accused as exculpatory or impeaching; (2) that the State suppressed the evidence; and

14   (3) that prejudice ensued — which can be shown if the suppressed evidence is "material" for

15   Brady purposes. Strickler v. Greene,           527 U.S. 263, 281-282. Once the materiality of

16   suppressed evidence has been established, no further harmless error analysis is necessary

17   or appropriate. Silva v. Brown, 416 F.3d 980, 986 (9th Cir. 2005). Thus, the Court is required

18   to determine whether the constitutional violation was material. In assessing materiality,

19   a reviewing court must consider whether there is "`any reasonable likelihood that the

20   false testimony could have affected the judgment of the jury;'" if so, then "the conviction

21   must be set aside." Belmontes v. Woodford, 350 F.3d 861, 881 (9th Cir. 2003) (quoting

22   United States v. Agurs, 427 U.S. 97, 103 (1976)). Under this materiality standard, "`[t]he

23   question is not whether the defendant would more likely than not have received a

24   different verdict with the evidence, but whether in its absence he received a fair trial,

25   understood     as   a      trial   resulting   in    a   verdict   worthy   of   confidence.'"

26   Hall v. Director of Corrections, 343 F.3d 976, 983-84 (9th Cir. 2003) (per curiam) (quoting

27   Kyles v. Whitley, 514 U.S. 419, 434 (1995)).

28

                                                         15
 1              Once it is demonstrated that the new Brady evidence constitutes “material

 2   impeaching evidence,” the Court would violate clearly established federal law if it elected

 3   to proceed to perform a harmless error analysis of that evidence. The reviewing court does

 4   not conduct an additional harmless error analysis of material Brady evidence under

 5   Brecht v. Abrahamson, 507 U.S. 619 (1993), which asks whether the error "`had substantial

 6   and injurious effect or influence in determining the jury's verdict.'" Id., at 623. The reason

 7   why there is no further analysis is that, when the United States Supreme Court has formally

 8   declared a materiality standard — as it has for Brady-type constitutional error — there is no

 9   need to conduct a separate harmless error analysis.               As the United States Supreme

10   Court explained in Kyles, 514 U.S. at 435, when considering a similar question about the

11   application of Bagley disclosure requirements, the required finding of materiality

12   necessarily compels the conclusion that the error was not harmless.

13   III. GROUND THREE: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
          FOR FAILURE TO INTERVIEW SAMANTHA STRANDHAGEN, FAILURE
14        TO NOTICE HER AS A DEFENSE WITNESS, AND FAILURE TO CALL
          HER DURING THE DEFENSE CASE, IN ORDER TO IMPEACH
15        BRITTANY HEELER AND DONOVAN KEMP, TWO IMPORTANT STATE
          WITNESSES
16   FACTS

17              Samantha Strandhagen called trial counsel in September of 2005, and communicated

18   to him the substance of the testimony she would be able to provide for the defense

19   (1) regarding a three-way phone conversation between herself, Brittany Heeler, and

20   Donovan Kemp and (2) regarding a speaker-phone conversation she overheard between

21   Brittany Heeler and the defendant. Subsequently, potential witness Samantha Strandhagen

22   flew back from Hawaii (where she was residing), showed up outside the courtroom during

23   trial, and waited throughout the entire trial to be called to the stand to testify. At one point, trial

24   counsel exited the courtroom and stopped and spoke to Samantha Strandhagen, and told her

25   he would not be calling her to the stand.4 See personal affidavit of Samantha Strandhagen,

26   dated February 15, 2007, attached hereto, designated Bisbee PCR Exhibit J , and now

27          4
                  In fact, trial counsel had not even noticed Samantha Strandhagen as a
28          defense witness for trial. Trial counsel later stated that he remembered speaking with
            Samantha, but could not recall the substance of the conversation.

                                                       16
 1   incorporated by reference as though fully set forth herein. The substance of Samantha

 2   Strandhagen’s information was that, during each of the two previously mentioned telephone

 3   conversations, Brittany conceded that the allegations made by Jonathan against Courtney

 4   were lies; and that during the three-way phone conversation, Donovan Kemp also conceded

 5   that Jonathan’s allegations against Courtney were lies. Both Brittany and Donovan stated that

 6   they knew Jonathan was lying and that nothing happened.              Furthermore, Samantha

 7   Strandhagen did not know the defendant, Courtney Bisbee, but had known Brittany most of

 8   her life. Bisbee PCR Exhibit J .

 9   LAW AND ARGUMENT

10          Defense counsel has a “duty to make reasonable investigations or to make a

11   reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S.

12   at 691. This includes conducting a reasonable investigation or making a showing of strategic

13   reasons for failing to do so. Sanders v. Ratelle, 21 F.3d at 1456-57 (holding also that for a

14   decision to be considered “strategic,” the decision must be “an informed one”). Further, “a

15   lawyer is under a duty to investigate the information possessed by potential witnesses, even

16   if he later decides not to call them to the stand.” Sanders v. Ratelle, 21 F.3d at 1457, quoting

17   Strickland, 466 U.S. at 689. Even further, ineffectiveness is generally clear in the context of

18   a complete failure to investigate, because an attorney can hardly be said to have made a

19   strategic choice when he has not yet obtained the facts on which an informed decision could

20   be made or followed up on facts already provided. United States v. Gray, 878 F.2d 702,

21   711 (3d Cir.1989). For numerous reasons, the value of Ms. Strandhagen’s information was

22   extremely important. Her affidavit is compelling; she had no connection to the underlying

23   incident whatsoever; she was living in Hawaii; Brittany had come to life with her because she

24   (Brittany) was trying to get away from Jonathan and Donovan, who had mistreated her when

25   she was Donovan’s girlfriend. At the time Samantha overheard the conversations, she knew

26   only that Courtney was a person who had been accused of sexual contact with a student.

27   Because she was able to testify to what she herself had overheard, and because these

28   statements were freely offered without coercion and wholly inconsistent with Brittany’s and

                                                   17
 1   Donovan’s testimony at trial, her impeachment of two key witnesses would have been taken

 2   quite seriously by any reasonable person. Trial counsel’s failure to interview this witness,

 3   failure to notice her as a witness for the defense under Rule 15.2, Ariz.R.Crim.P., and failure

 4   to present her at trial was an extreme example of ineffective assistance. Samantha’s

 5   testimony would have impeached Brittany Heehler with inconsistent prior statements, and

 6   significantly undermined Heehler’s testimony that she had observed the defendant and the

 7   victim kissing on two occasions and had observed them on the floor of Donovan Kemp’s

 8   bedroom (see, R.T. 01/11/2006). The veracity of Heeler’s testimony is clearly subject to

 9   question in light of Heehler’s overheard conversations with Donovan Kemp and with the

10   defendant. Moreover, Samantha heard Heehler state that she knew the victim was lying.

11           The significance of this available impeachment testimony from Samantha Strandhagen

12   is increased by trial counsel’s confrontation of Heehler with inconsistent statements she made

13   to prosecutor Yvone Vieau (see R.T. 01/11/2006 at PP. 47-51. Heehler had not mentioned

14   the February 5, 2004 incident (second kissing claim) during the Vieau interview. Heehler

15   claimed during cross-examination that she did not remember telling Vieau that she did not see

16   Bisbee and the victim with a blanket around them ( Id., at P. 49, L. 16-18).5 In turn, the

17   significance of trial counsel’s ineffective attempt at impeachment of Brittany Heeler is that it

18   demonstrates trial counsel’s adoption and implementation of impeachment as a defense

19   strategy and focuses on prior inconsistent statements as a basis for showing that the

20   witnesses’s statements to the Court were untrue. Taking these two impeachment matters

21   together — the availability of powerful impeachment evidence from a known but uncalled

22   witness and the ineffectual attempt to impeach the State’s witnesses with prior inconsistent

23   statements — there can be no reasonable claim that the failure was the product of a

24   reasonable strategy, engaged for the purpose of achieving some tactical advantage. There

25   is no reasonable basis for trial counsel to challenge the veracity of Heehler’s testimony yet

26   failing to present Samantha Strandhagen to hammer home the point that Heehler had

27       5
                It should be noted that this was incomplete impeachment by trial counsel
28       because he failed to call prosecutor Vieau or to introduce the pertinent interview
         transcript. See Declaration of IAC expert Alan Simpson. Bisbee PCR Exhibit F .

                                                   18
 1   provided inconsistent statements at different dates and before different persons. This

 2   especially is the case in light of Samantha’s unique status as a person without any

 3   involvement in the case except for the fact that Brittany was living with her at the time of the

 4   telephone conversations. Additionally, trial counsel’s failure to marshal Ms. Strandhagen’s

 5   impeachment evidence also resulted in the trier of fact not being informed of Donovan Kemp’s

 6   prior statements — i.e., that “nothing had happened” and that Donovan knew that his friend,

 7   Jonathan Valles, was lying. The failure to develop and present the Strandhagen testimony

 8   constituted deficient performance, far below the applicable standard of care for criminal

 9   defense specialists and criminal law practitioners. The absence of this powerful impeaching

10   evidence clearly prejudiced the defendant’s right to due process and to a fair trial.

11   IV.  GROUND FOUR: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR
          FAILURE TO INVESTIGATE, LOCATE, INTERVIEW, AND PRESENT
12        DAVID VALENTINE TO REFUTE THE VICTIM’S CLAIM THAT THE
          DEFENDANT WAS SHAVEN IN THE VAGINAL/ PUBIC AREA; AND FOR
13        FAILURE TO DEVELOP EVIDENCE AS TO THE DEFENDANT’S PRACTICE
          REGARDING NOT SHAVING HER PUBIC AREA; AND FOR FAILURE TO
14        INVESTIGATE AND OBTAIN WITNESS TESTIMONY AS TO THE
          DEFENDANT NOT HAVING BEEN SHAVEN IN THE PUBIC AREA AT TIME
15        OF ARREST AND SHORTLY THEREAFTER WHILE INCARCERATED, TO
          REFUTE THE VICTIM’S CLAIM OF A SHAVEN PUBIC AREA
16   FACTS

17          Jonathan Valles, the victim, testified that the defendant pushed his hand down her

18   pants, insider her underwear, and that his hand made direct, skin-to-skin contact with her

19   vaginal / pubic area; and that the defendant was shaven smooth in that area. The defendant

20   communicated to trial counsel that it was her practice never to shave her pubic area; that she

21   had engaged in intimate relations the week prior to the incident with a person named David

22   Valentine, and gave trial counsel information for purposes of locating him by means of an

23   investigator.   See affidavit of the defendant, attached hereto, designated Bisbee

24   PCR Exhibit K , and now incorporated by reference as though fully set forth herein. Trial

25   counsel did not investigate or locate David Valentine. Trial counsel did not develop any

26   information for the purpose of showing the defendant’s long-standing practice of never

27   shaving her pubic area. Finally, trial counsel failed to investigate the names of persons with

28   whom the defendant was incarcerated in the county jail shortly after her arrest. The

                                                   19
 1   defendant was arrested within one week of the alleged incident, and so the condition of her

 2   pubic area would have not been significantly changed.

 3          Attached to this Petition is the affidavit of the defendant’s mother, Camille Tilley,

 4   designated Bisbee PCR Exhibit L , which is now incorporated as though fully set forth herein.

 5   Mrs. Tilley’s affidavit presents facts regarding her knowledge of the defendant’s practice of

 6   never waxing or shaving her pubic area, regarding her visit to the defendant’s home shortly

 7   prior to the incident, regarding her personal observation of the defendant during that time, in

 8   various stages of undress; and regarding her confirmation that the defendant was not, in fact,

 9   shaven in the pubic area.

10          Also attached to this Petition is the affidavit of Barbara Napoletano, designated

11   Bisbee PCR Exhibit M , now incorporated by reference as though fully set forth herein.

12   Ms. Napoletano has been a neighbor of the defendant since 1999. Both prior to and during

13   the post-Christmas sale shopping in early 2004 (i.e., shortly before the defendant’s arrest),

14   she and the defendant went shopping for clothes, and sometimes simultaneously used the

15   same dressing room, trying on various items of clothing, both tops and bottoms. She attests

16   that the defendant was not shaven or smooth in the public area. She was not approached by

17   trial counsel for information about the defendant’s habit / practice of not shaving or about what

18   she knew of her own personal knowledge.

19          Also attached to this Petition is the affidavit of Lynn Holly Garnes, designated

20   Bisbee PCR Exhibit       N , and the affidavit of Dolores G. Rivera, designated Bisbee

21   PCR Exhibit O , which are now incorporated as though fully set forth herein. Both of these

22   persons were present at the time the defendant was booked into the Maricopa County Jail

23   and are able to state, based on their own personal knowledge, that the defendant was not

24   shaven or waxed in the pubic area at the time of her entrance into the jail. Because the

25   defendant was arrested within one week of the incident, the condition of her pubic area at the

26   time of her arrest and incarceration definitively would also provide irrefutable evidence of the

27   condition at the time of the incident.

28

                                                    20
 1
     LAW AND ARGUMENT            INEFFECTIVE ASSISTANCE REGARDING HABIT/PRACTICE
 2                               EVIDENCE; TRIAL COUNSEL’S FAILURE TO SEEK
                                 EVIDENCE REFUTING A CRITICAL FEATURE OF THE
 3                               VICTIM’S TESTIMONY

 4          The defendant’s habit or custom of maintaining her pubic area in a condition that was

 5   inconsistent with the victim's claims was a matter of exceeding importance to the defense,

 6   because it provided a means of refuting a critical feature of his testimony. Given that he

 7   claimed that he made direct, skin-to-skin contact, a conclusive refutation of this matter would

 8   provide insurmountable impeachment of his claim and his testimony. Rule 406, Ariz.R.Evid.,

 9   provides that evidence of the habit of a person, whether corroborated or not and regardless

10   of the presence of eyewitnesses, is relevant to prove that the conduct of the person on a

11   particular occasion was in conformity with the habit or routine practice. Here, the defendant

12   said it was her unvarying habit not to shave, her mother could corroborate this practice, her

13   neighbor could corroborate this practice and confirm that she was not shaven shortly prior to

14   the incident, David Valentine could verify that she was not shaved shortly prior to the incident,

15   other inmates could verify that she was not shaven shortly after the incident, and all of the

16   testimony would have militated quite strongly in favor of a verdict of not guilty, because it

17   seriously undermines a critical feature of the victim’s testimony.

18          Trial counsel had a duty to "make reasonable investigations or to make a reasonable

19   decision that makes particular investigations unnecessary." Strickland v. Washington,

20   466 U.S. at 691; Baylor v. Estelle, 94 F.3d 1321,1324 (9th Cir., 1996). Trial counsel was

21   ineffective, therefore, because "he neither conducted a reasonable investigation nor made a

22   showing of strategic reasons for failing to do so." Sanders v. Ratelle, 21 F.3d at 1456. Trial

23   counsel's performance was professionally deficient and constitutionally ineffective because

24   he was informed of potentially exculpatory evidence yet failed to investigate adequately.

25   Sims v. Livesay, 970 F.2d 1575,1580-1581 (6th Cir.,1992). Consequently, trial counsel’s

26   failure to develop and present this form of testimony (habit / practice evidence), and develop

27   and present the specific factual testimony of others refuting a critical aspect of the victim’s

28   testimony was conduct far below the applicable standard of care for criminal defense

                                                    21
 1   specialists and criminal law practitioners. The absence of this evidence prejudiced the

 2   defendant's right to due process and a fair trial.

 3   V.     GROUND FIVE: INVOLUNTARY WAIVER OF FUNDAMENTAL RIGHT TO
            TRIAL BY JURY; INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
 4          REGARDING WAIVER OF RIGHT TO JURY TRIAL

 5   FACTS

 6          The facts underlying the claim of deficient performance resulting in prejudice to the

 7   defendant involving improper inducement of a waiver of the right to a jury trial is as follows.

 8   The defendant’s bare waiver of the right to a trial by jury is a matter of record. No basis for

 9   the waiver appears in the record. No colloquy between the Court and the defendant was

10   conducted. The Court simply asked the parties if they wished to waive the right to a jury and,

11   instead, elect to proceed with a bench trial. The prosecutor affirmed for the State and trial

12   counsel affirmed for the defense, followed by the defendant. See transcript of beginning of

13   trial, January 9, 2006 (hereinafter, “R.T. 01/09/2006") P. 4, L. 10-17, attached hereto,

14   designated Bisbee PCR Exhibit P and now incorporated by reference as though fully set

15   forth herein. The defendant initially desired a jury trial, but, on advice of counsel, agreed to

16   waive that right. Trial counsel recommended a bench trial, telling the defendant that, if she

17   agreed to a bench trial, there was no way that she would go to prison, since Judge Granville

18   was like a brother to him. See Bisbee PCR Exhibit K , at ¶ 33 (P. 10). Here, it is

19   unquestionable that the record confirms the fact that the defendant understood that she was

20   waiving the right to a jury trial; what is not reflected in the record, however, is the improper

21   advice of counsel, resulting in the improper inducement of the waiver itself. Further, the basic

22   thrust of the defendant’s claim is supported by the independent affidavit of Andrew Peters, a

23   teacher at Horizon High School, who attended the trial and subsequently testified at the

24   sentencing hearing for the defendant. In his affidavit, Bisbee PCR Exhibit H , at ¶ 4,

25   Mr. Peters stated that he also was told by trial counsel the same basic statement about a cozy

26   relationship with the judge who was to preside over the trial. Family members of the

27   defendant who testified at the trial also confirm that trial counsel talked about his relationship

28   with the judge who was to preside over the trial. See transcript of sentencing hearing,

                                                    22
 1   R.T. 04/21/2006 attached hereto, designated Bisbee PCR Exhibit Q , and now incorporated

 2   by reference as though fully set forth herein.

 3   LAW AND ARGUMENT

 4          Trial counsel induced the defendant to waive her state and federal right to trial by a jury

 5   of her peers on the basis of constitutionally impermissible grounds, i.e., a special relationship

 6   with the judge who was to preside over the defendant’s trial. This claim for relief arises within

 7   the intersection of an involuntary waiver of a fundamental right and the ineffective assistance

 8   of counsel, because the waiver was induced by improper advice of counsel. Trial counsel

 9   induced the defendant to waive her state and federal right to trial by a jury of her peers on the

10   basis of constitutionally impermissible grounds, i.e., a special relationship with the judge who

11   was to preside over the defendant’s trial.

12          The trial court has the duty to see that an accused person's election to waive a jury trial

13   is knowingly and understandingly made. Such a duty cannot be perfunctorily discharged.

14   State v. Jelks, 105 Ariz. 175, 461 P.2d 473 (1969). On the other hand, the defense counsel

15   has the duty to represent the defendant and preserve and protect her constitutional rights,

16   rather than improperly induce the waiver of one of the most fundamental of all rights, the right

17   to a jury trial. “Counsel for the accused is an essential component of the administration of

18   criminal justice. A court properly constituted to hear a criminal case must be viewed as a

19   tripartite entity consisting of a judge (and jury, where appropriate), counsel for the

20   prosecution, and counsel for the accused.” Standard 4-1.2(a), ABA Standards for Criminal

21   Justice, Defense Function (emphasis by bold print regarding jury added).

22          While sua sponte investigation and examination by the Court is not required under

23   circumstances where the defendant is present at the time of waiver, Jelks, supra, the issue

24   nonetheless involves a matter that is truly fundamental in the American scheme of justice; a

25   matter that implicates the Sixth and Fourteenth Amendments of the U.S. Constitution,

26   Duncan v. Louisiana, 391 U.S. 145, (1968) and A.R.S. Const. Article II, §§ 23 & 24; and a

27   matter that is valid only upon a knowing and intelligent waiver. Accordingly, the question of

28   improper inducement of the waiver of a fundamental right is one of utmost importance and

                                                    23
 1   implicates the protections of the right to the effective assistance of counsel, and therefore is

 2   open to challenge by the defendant.

 3          The defendant's waiver must be voluntary, knowing, and intelligent. United States v.

 4   Martin, 704 F.2d 267, 271 (1983). In Martin, the court stated that an on-the-record colloquy

 5   with the defendant prior to the waiver is not constitutionally required, and it expressly declined

 6   to adopt mandatory supervisory rules requiring trial courts to personally interrogate

 7   defendants prior to accepting a waiver. Id., at 275. The defendant has the burden of

 8   demonstrating that the waiver was not intelligently and voluntarily made. Adams v. United

 9   States, 317 U.S. 269 (1942). In Adams, the Supreme Court stated:

10          a determination of guilt by a court after waiver of jury trial could not be set aside
            and a new trial ordered except upon a plain showing that such waiver was not
11          freely and intelligently made.

12   Adams, supra, 317 U.S. at 281.

13          In Jackson v. Burt, 877 F.Supp. 389 (E.D., Mich., 1995), the court denied relief, but did

14   so because “Petitioner makes no attempt to show the waiver was executed other than by his

15   own free will.” Id., 877 F.Supp. at 393. Here, in sharp contrast, the defendant has made a

16   showing of improper inducement of a type that casts a shadow of untrustworthiness upon the

17   operation of the criminal justice system and calls into question the presumptions upon which

18   much precedent is firmly grounded. Under these circumstances, there is no presumption of

19   validity, where the appearance credibility is the product of deception and personal interest.

20   Because the defendant would be entitled to relief if the claim of improperly induced waiver of

21   the right to trial by jury was proven, the claim represents a colorable claim; and, therefore, the

22   defendant is entitled as a matter of law to an evidentiary hearing on the claim. At the

23   conclusion of the hearing, the Court will determine the facts underlying the claim and grant

24   or deny relief accordingly.

25   VI.    GROUND SIX: NEWLY DISCOVERED MATERIAL EVIDENCE: (1) THE
            DEPOSITION OF SARAH BABCOCK AND (2) THE AFFIDAVIT OF NIKOLAS
26          VALLES, THE VICTIM’S BROTHER

27          A.     The Defendant Is Entitled to A New Trial Based on Newly Discovered
                   Evidence that the Victim Repeatedly Admitted to A Close Friend that
28                 he Made Up the Criminal Allegations At the Direction of his Mother

                                                     24
 1   FACTS

 2          During the time of the appellate process, the defendant hired attorney Scott Ambrose,

 3   a civil attorney, to represent her on a civil case filed by the victim’s mother. Scott Ambrose

 4   conducted deposition of critical witnesses, and, during the deposition process, accidentally

 5   met and deposed Sarah Babcock, a former friend of Jonathan Valles, the victim. See

 6   Deposition of Sarah Babcock, attached hereto, designated Bisbee PCR Exhibit R , and now

 7   incorporated by reference as though fully set forth herein. Ms. Babcock stated under oath that

 8   she had been Jonathan’s very close friend, having known him since she was in the 7th grade

 9   (she was in the 11th grade at the time of the deposition). Bisbee PCR Exhibit R , at p. 11.

10   She never met the defendant. Bisbee PCR Exhibit R , at pp. 22-23. She spoke with

11   Jonathan over the phone and he told her that nothing had happened with the nurse at the

12   school. Bisbee PCR Exhibit R , at pp. 23-24. He said that he and the nurse did not do

13   anything but that his mom was making him say that for the money. Bisbee PCR Exhibit R ,

14   at p. 25. He said not to tell anyone, that it was a secret. Bisbee PCR Exhibit R , at p. 25.

15   “He said that he did not do anything with the nurse and that his mom was making him say it,

16   that they did do stuff, so they can get her money when he turns 18." Bisbee PCR Exhibit R ,

17   at p. 27. He said that he and his mom were going to sue the Paradise Valley School District.

18   Bisbee PCR Exhibit R , at p. 27. She said that she spoke with him about five times about

19   this, four times on the phone and once in person. Bisbee PCR Exhibit R , at p. 28. She later

20   told one of Jonathan’s friends and apparently Jonathan found out that she had done so and

21   called her up and called her a bitch and a whore and denied everything.               Bisbee

22   PCR Exhibit R , at pp. 44-45.

23          B.     The Defendant Is Entitled to A New Trial on the Basis of Newly
                   Discovered Evidence, An Affidavit from the Victim’s Brother That the
24                 Victim Made Up the Allegations At the Direction of his Mother

25   FACTS

26          After the conclusion of the trial, Nikolas Valles, the victim’s brother, provided an

27   affidavit stating that he and his brother — Jonathan Valles, the victim — had been pressured

28   by their mother, Janet Sloan, to make up the allegations against Courtney Bisbee, the

                                                  25
 1   defendant, for the purpose of financial gain. See affidavit of Nikolas Valles, attached hereto,

 2   designated Bisbee PCR Exhibit S , and now incorporated by reference as though fully set

 3   forth herein.

 4           The content of this affidavit is consistent with the pretrial communication of Eugene

 5   Valles to the police and the prosecution (that was not disclosed to the defense and that

 6   indicated the allegations were false and there was a financial motivation for the claims),

 7   consistent with the deposition testimony of Sarah Babcock (about Jonathan repeatedly telling

 8   her that he was making up the allegations because his mother was making him do that to get

 9   money from a lawsuit), consistent with the affidavit of Samantha Strandhagen (that she

10   personally overheard Brittany Heeler and Donovan Kemp admit that they knew the allegations

11   were false), and consistent with the statements of the defendant during her interrogation by

12   Detective Kinder and with her testimony at trial.

13           The Nikolas Valles affidavit was turned over to a specialist in juvenile interviews and

14   testimony, Dr. James Wood, a professor in the Department of Psychology at the University

15   of Texas at El Paso and an expert regarding forensic interviewing of children.6 Dr. Wood

16   examined the interview of Nikolas by Detective Kinder and the post-trial affidavit, and

17   concluded that the statements in the affidavit are most probably true and the vague and

18   inconsistent statements in the police interview were the result of pressure from the detective,

19   especially in light of the newly emergent information that he also was being pressured by his

20   mother not to disclose Jonathan’s testimony as false and motivated by financial gain. See

21   Affidavit of Dr. James M. Wood, attached hereto, designated Bisbee PCR Exhibit T , and

22   now incorporated by reference as though fully set forth herein.

23   LAW AND ARGUMENT:            NEWLY DISCOVERED MATERIAL EVIDENCE

24           To prevail on a post conviction claim based on newly discovered material evidence

25   under Rule 32.1(e), Ariz.R.Crim.P., the defendant must establish that the evidence was

26   discovered after trial although it existed before trial; that it could not have been discovered

27       6
                Dr. Wood has testified in several criminal trials regarding child interviews,
28       including the habeas corpus hearing of John Stoll in Bakersfield, California, that
         resulted in his release from prison.

                                                   26
 1   and produced at trial through reasonable diligence; that it is not cumulative or impeaching,

 2   unless the impeachment evidence substantially undermines testimony that was of critical

 3   significance at trial; that it is material; and that it probably change the verdict or sentence in

 4   a new trial. State v. Saenz, 197 Ariz. 487, 489, 4 P.3d 1030, 1032 (App.2000,Div.2); State

 5   v. Serna, 167 Ariz. 373, 374, 807 P.2d 1109, 1110, cert. denied, 502 U.S. 875 (1991);

 6   State v. Mauro, 159 Ariz. 186, 766 P.2d 59 (1988); State v. Apelt, 176 Ariz. 349,

 7   861 P.2d 634 (1993); see also Rule 24.2 and Rule 32.1(e), Ariz.R.Crim.P. As with all claims

 8   seeking post-conviction relief, the defendant has the burden of proving the allegations in the

 9   petition by a preponderance of the evidence. Rule 32.8(c), Ariz.R.Crim.P.; State v. Verdugo,

10   183 Ariz. 135, 901 P.2d 1165 (1995).

11          Here, the information provided by Sarah Babcock meets every one of the tests for

12   newly discovered material evidence. Her conversations with Jonathan Valles occurred prior

13   to trial and would have been admissible at trial to impeach Jonathan’s testimony, but could

14   not have been discovered and presented at trial even with diligent effort on the part of trial

15   counsel, because her contact and information was unknown to anyone other than herself and

16   Jonathan Valles. She attended a different school, was not a part of the crowd at Horizon High

17   School during the time of the incident, and no one had any idea that she had information that

18   would be valuable. The information was discovered when civil attorney Scott Ambrose was

19   deposing another person (Ben Rosenbaum), whose sister was Sarah’s best friend. Sarah

20   was at their house, visiting, and when Scott Ambrose asked if there were other kids who might

21   have been friends with Jonathan or Nikolas or Donovan, they indicated that Sarah was friends

22   with Jon. Scott asked her some questions and when he discovered that her information was

23   valuable, he arranged for a deposition that could be attended by opposing civil counsel.

24   Bisbee PCR Exhibit R .

25          The Sarah Babcock evidence is impeachment evidence that substantially undermines

26   testimony that was of critical significance at trial, namely, that of the victim, Jonathan Valles

27   and State’s witness Donovan Kemp. Finally, the evidence is material because it casts the

28   primary testimony of the victim and his friend in a completely new light and does so on the

                                                    27
 1   basis of an disinterested third party otherwise uninvolved with the case. In light of the

 2   evidence from Sarah Babcock, it is highly unlikely that the testimony of Jonathan and

 3   Donovan would be viewed as credible. Standing alone, the Babcock testimony calls into

 4   question the otherwise presumed confidence in the outcome of the original proceeding; taking

 5   the Babcock evidence in conjunction with the other claims, evidence, and information

 6   presented within this Petition, there is far more than a reasonable likelihood that the outcome

 7   of the trial would have been different and that the outcome of a new trial with such evidence

 8   would be different.

 9          Additionally, the information provided by Nikolas Valles also meets every one of the

10   tests for newly discovered material evidence. His knowledge of the falsity of the allegations

11   against the defendant predated the trial and would have been admissible at trial to impeach

12   Jonathan’s testimony, but could not have been adduced even with diligent effort on the part

13   of trial counsel, until such time as he was willing to admit to the true facts, which occurred post

14   trial. Nikolas was in contact with his brother Jonathan and his mother, Janet Sloan, actually

15   living with them. The information was discovered when Nikolas, after becoming an adult,

16   moved out of the home, began living and working with his father, and was willing to provide

17   an affidavit.

18          The Nikolas Valles affidavit is impeachment evidence that substantially undermines

19   testimony that was of critical significance at trial, namely, that of the victim, Jonathan Valles.

20   The analysis and re-affirmation of its validity by an independent expert in juvenile forensic

21   interviewing increases its value even more. Finally, the evidence is material because it casts

22   the primary testimony of the victim in a completely new light and does so on the basis of an

23   informed and knowledgeable person within the very group that developed the idea to make

24   up the claims to obtain money. In light of the evidence from Nikolas, it is highly unlikely that

25   the testimony of Jonathan would be viewed as credible. Standing alone, th Nikolas Valles

26   testimony calls into question the otherwise presumed confidence in the outcome of the

27   original proceeding; taking the Nikolas Valles evidence in conjunction with the Sarah Babcock

28   evidence and all the other claims, evidence, and information presented within this Petition,

                                                     28
 1   there is far more than a reasonable likelihood that the outcome of the trial would have been

 2   different and that the outcome of a new trial with such evidence would be different.

 3   VII.       GROUND SEVEN: OVERLAPPING CLAIMS OF NEWLY DISCOVERED
                MATERIAL EVIDENCE (EXPERT OPINION THAT THE DEFENDANT’S
 4              SO-CALLED ADMISSIONS TO DETECTIVE KINDER WERE INVOLUNTARY
                AND UNTRUE) AND INEFFECTIVE ASSISTANCE OF COUNSEL (FOR
 5              FAILURE TO OBTAIN AND PRESENT EXPERT ON FALSE CONFESSIONS)

 6              A.     Trial Counsel Rendered Ineffective Assistance By Failing to Employ an
                       Expert on False Confessions to Analyze Detective Kinder’s
 7                     Interrogation of the Defendant and Move to Suppress the So-Called
                       Admissions
 8   FACTS

 9              This case involved an interrogation of the defendant by an experienced detective for

10   a period of approximately three hours. The defendant was a woman who had no prior criminal

11   background, knowledge, or experience. The defendant told her attorney that she felt

12   pressured during the interrogation and that she succumbed to the pressure and made

13   statements that were untrue. Under this set of circumstances, the trial attorney was alerted

14   to possible over-reaching on the part of the investigator and the possible use of coercive

15   interrogation techniques. Further, the nature of the statements were being used to support

16   an inference that the defendant was engaged in behavior inappropriate to her position in a

17   school and inappropriate-age sexual relations.

18              Consequently, there clearly was a need to retain an expert to evaluate the interrogation

19   and to provide an expert opinion regarding the admissions. Despite the need for an expert,

20   trial counsel did not retain an expert. During pretrial proceedings, trial counsel did not move

21   to suppress the defendant’s statements on the ground that the statements were involuntary.

22   During the trial, defense counsel did not cross examine the interrogating detective, Detective

23   Kinder,7 about his interrogation techniques or about the defendant’s admissions (cross

24   examination found at R.T. 01/11/2006, PP. 8-25). Further, trial counsel stipulated without

25   objection to a tape of the interrogation being provided to the Court which was not a true copy

26   of the actual tape of the interrogation; and stipulated without objection to no transcript of the

27   tape being made by the court reporter. See R.T. 01/11/2006, PP. 5-6.

28          7
                     Detective Kinder’s full testimony is found at R.T. 01/11/2006, PP. 4-26.

                                                       29
 1           As discussed earlier in this Petition, when the State made its closing argument, the

 2   prosecutor stated that the defendant’s statements to Detective Kinder during her interrogation

 3   (1) confirmed the allegations against her, (2) verified the testimony of witness Brittany Heeler,

 4   (3) verified the testimony of witness Donovan Kemp, and (4) showed that the defendant only

 5   later changed her story and claimed that she had lied during her interrogation. The actual

 6   interrogation belies those claims and clearly puts the lie to them. At no time during the

 7   interrogation did the defendant “verify” the statements of any other person or confirm the

 8   allegations against her. When the Court, sitting as trier of fact, issued its verdict, it stated that

 9   the defendant had not even denied the allegations when she was interrogated by Detective

10   Kinder. In fact, the tape of the interrogation shows that the defendant repeatedly and

11   consistently denied the allegations.8

12           Following the conclusion of the defendant’s trial, sentencing, and direct appeal,

13   undersigned counsel engaged the services of an internationally renowned expert on false

14   confessions, Dr. Richard Offshe, who reviewed a transcript of the interrogation and provided

15   a report which unambiguously concluded that the defendant’s “admissions” were coerced and

16   that her denials were, in all probability, truthful. See REPORT of Richard J. Ofshe, Ph.D.,

17   Professor Emeritus, Department of Psychology, University of California, Berkeley, attached

18   hereto, designated Bisbee PCR Exhibit U , and now incorporated by reference as though

19   fully set forth herein. Following the presentation of a detailed analysis, Dr. Ofshe concludes:

20
                     In my professional opinion, it is highly questionable to place any reliance
21           on the statements characterized as admissions or confessions of the defendant
             made during the interrogation. Any argument based on negative conclusions
22           drawn from the so-called admission or confessions necessarily would be
             misleading because such arguments would rest exclusively and improperly
23           upon an assumption of the veracity of those statements. Given my analysis of
             the circumstances under which those statements are made, I do not believe that
24           there is any reasonable basis for an assumption or conclusion of truth.

25                 Based upon my knowledge and experience, I conclude that the
             defendant’s “admission” that she returned the juvenile’s kiss on one occasion
26
         8
27               These facts support the defendant’s claim that the tape that was provided to
         the Court was not the original tape of the interrogation, but rather a carefully splice
28       version with exculpatory statements excised, a separate due process claim of
         significance.

                                                      30
 1          is highly questionable, because it was given under pressure after lengthy denial
            and only after being deliberately and directly misled regarding the actual import
 2          of such a statement. The defendant refused to proceed beyond a minor
            concession to the interrogator, even in the face of continuing (and increased)
 3          use of pressure tactics of a type that invalidate the very responses they tend to
            evoke. This refusal to provide any additional admissions, in my professional
 4          opinion, indicates that the interrogation clearly failed because the interrogator
            could not even coerce significant admissions from the defendant, and the single
 5          admission that was coerced was to an act classified as of no great importance.

 6                 Given a competent expert analysis of the interrogation of Courtney
            Bisbee, an adequately educated jury or judge would have been in a position to
 7          decide that if the interrogation produced evidence of anything, it was evidence
            supporting Ms. Bisbee’s contention that she did nothing wrong and her one
 8          inculpatory admission was a lie. On her own, Ms. Bisbee was unable to explain
            to the trier of fact why her single “trivial” admission was a lie. Her defense
 9          needed an expert to adequately and accurately present the technical analysis.

10   Bisbee PCR Exhibit U , at P. 12.

11          As mentioned earlier in this Petition, undersigned counsel retained a second expert,

12   attorney Alan M. Simpson, on the subject of ineffective assistance of trial counsel in this case,

13   and Mr. Simpson concluded that the failure to retain an expert on false confessions clearly

14   fell below an objective standard of reasonable representation. See Bisbee PCR Exhibit F .

15   LAW AND ARGUMENT:
                                 THE FAILURE TO RETAIN AND UTILIZE EXPERT
                                 FOR LAW REGARDING INEFFECTIVE ASSISTANCE
16                               OPINION

17          As Mr. Simpson points out in his Declaration regarding ineffective assistance of

18   counsel, the United States Supreme Court has emphasized that "strategic choices made after

19   less than complete investigation are reasonable precisely to the extent that reasonable

20   professional judgments support the limitation on the investigation. In other words, counsel

21   has a duty to make reasonable investigations or to make a reasonable decision that makes

22   particular investigations unnecessary." Strickland v. Washington, supra, 466 U.S. at 690-91.

23   A failure to investigate whether scientific testimony will bolster a defense is a form of

24   ineffective assistance. See State v. Edwards. 139 Ariz. 217, 220-21, 677 P.2d 1325, 1328-29

25   (App.1983, Div.__) (holding that failure to present testimony from expert qualified to render

26   an opinion on insanity constituted ineffective assistance); Dugas v. Coplan, 428 F.3d 317

27   (1st Cir.,2005) (holding that failure to consult arson expert as part of investigation into arson

28   charge constituted ineffective assistance); Foster v. Lockhart, 9 F.3d 722 (8th Cir., 1993)

                                                    31
 1   (holding that failure to investigate, develop, and present strong defense of impotency in rape

 2   case constituted ineffective assistance); Sims v. Livesay, 970 F.2d 1575 (6th Cir., 1992)

 3   (holding that trial counsel provided ineffective assistance by failing to investigate and present

 4   evidence that, consistent with claim that shooting was accidental, there was powder residue

 5   on quilt with bullet holes); and Corbett v. Brill, 68 Fed.Appx. 100, 2003 WL 2148338 (9th Cir.,

 6   2003) (holding that failure to present expert testimony in support of extreme emotional

 7   disturbance defense constituted ineffective assistance).

 8                                           CONCLUSION

 9            Since a sexual misconduct conviction cannot be based on incidents which did not

10   happen, interrogations that utilized unduly coercive interview techniques, false allegations

11   crafted for the purpose of personal financial gain, and testimony that is contradicted by the

12   testimony of independent witnesses who have no motive to lie, the defendant is entitled to

13   post conviction relief on the grounds of ineffective assistance of counsel, prosecutorial

14   misconduct, and newly discovered material evidence, as presented herein.

15            RESPECTFULLY SUBMITTED this 22nd day of October, 2008.

16                                 FERRAGUT & ASSOCIATES, P.C.

17
                                         ________________________
18                                       Ulises A. Ferragut, Jr.
                                         Attorney for Defendant-Petitioner
19
                                       STATEMENT OF SERVICE
20
              Original and / or Copy filed / served9 this 22nd day of October, 2008, as noted below:
21
          Michael K. Jeanes, Clerk, Maricopa County Superior Court, 201 West Jefferson,
22   Phoenix, Arizona 85003 (Original filed)

23          The Honorable Gary Donahoe / Rule 32 Management Unit, Maricopa County Superior
     Court, 201 West Jefferson, Phoenix, Arizona 85003 (copy mailed);
24
          James Beene, Chief, Appeals Section, Deputy Maricopa County Attorney, 3131 West
25   Durango Street, Second Floor, Phoenix, Arizona 85009 (copy mailed).

26   By
              Ulises A. Ferragut Jr.
27
          9
28              Those affidavits which are not originals will be submitted upon receipt of the
          signed, notarized documents, including the report fromIAC expert Alan M. Simpson.

                                                    32
                                   REPORT
                           Richard J. Ofshe, Ph.D.
                              Professor Emeritus
                          Department of Psychology
                       University of California, Berkeley
              DATE OF REPORT :                     JULY 17, 2008
          DEFENDANT’S NAME                   COURTNEY VALLE BISBEE
      MARICOPA COUNTY CASE NO. :              CR 2004–008034-001-DT
                                                    ATTORNEY
        REPORT PREPARED FOR:                  ULISES A. FERRAGUT, JR.
                            CONTENT OF REPORT
 I.    PURPOSE OF REPORT                        PAGE        1
 II.   BASES FOR REPORT                         PAGE        2
 III. INTRODUCTION                              PAGE        2
 IV.    THE INTERROGATION                       PAGE        3
         A.     Quality of sample for
                Expert Evaluation               PAGE        4
         B.     Analysis and                    PAGE        4
                Conclusions
 VI.    SUMMARY                                 PAGE        11
 ATTACHMENTS
 A. MATERIALS REVIEWED
 B. SUMMARY OF EXPERIENCE
 C. CURRICULUM VITAE
 D. SELECTED PUBLICATIONS


I.      PURPOSE OF REPORT

      The above identified attorney requested this author to review
materials and prepare a report oriented toward an analysis of the police
interrogation / interview of the defendant. The information provided
herein serves to shed light on the evaluation of the content and import of
the interrogation and the value of its use at trial of the defendant.
II.       BASES FOR REPORT

          This Report is based upon the following sources of information:

          (1)   A review of the transcript of the police interrogation of the
                defendant, provided by the defendant’s attorney; and

          (2)   This author’s extensive and wide-ranging expertise and
                experience with analysis of confessions and interrogations.

      This report also contains references to formal materials related to
pertinent aspects of this analysis. References to such materials are
included in the body of the report and a list of references is presented as
an attachment for ease of review.

III.      INTRODUCTION

       It is generally recognized that confession evidence is exceptionally
powerful.      Unless a trier of fact is educated with regard to how
interrogations are conducted, with regard to how the use of psychologically
coercive tactics can produce false confessions, with regard to how to
evaluate a confession statement, and with regard to understanding when
an interrogation has failed, then any statement portrayed as a confession
is likely to be one of the most influential pieces of evidence that can be
introduced at a trial.

       One study found that, even when the state had no evidence against
a defendant other than the confession and there was strong evidence of
the suspect's innocence of the crime, 92% of innocent defendants who
went to trial were nonetheless convicted (Leo and Ofshe, 1998.).1 A study
of the established miscarriages of justice in homicide cases in the state of
Illinois found that false confession was involved in 59% of the cases
(Warden, 2002).2

      1
            Richard Leo and Richard Ofshe, The Consequences of False
      Confessions: Deprivations of Liberty and Miscarriages of Justice in the
      Age of Psychological Interrogation, 88 NW. Univ. J. of Crim. Law &
      Criminol. 429 (Winter 1998).
      2
           Rob Warden, NW Univ. Sch. of L., Center on Wrongful
      Convictions Research Report, The Role of False Confessions In Illinois
      Wrongful Murder Convictions Since 1970 (Revised 2003).

                                        2
      Joel Thompson, the attorney for Courtney Bisbee, failed to call an
expert on the subject of influence in police interrogation and false
confession. Any expert on these subjects could have educated a jury or
a judge at a bench trial to the following:

     1.    The existence of the phenomenon of false confession
           and its contribution to miscarriages of justice in
           America.

     2.    That, improperly done, interrogations can cause false
           confessions and that it is particularly dangerous for
           interrogators to introduce into an interrogation
           impermissible psychological coercion to motivate
           confession (i.e. promises of leniency in exchange for
           confession and threats of harm if denial continues). An
           expert could have identified the specific statements
           made by Detective Kinder that introduced
           psychologically coercive tactics in the interrogation of
           Courtney Bisbee.

     3.    That, despite being under significant pressure
           throughout the interrogation, Ms. Bisbee admitted to
           doing nothing wrong other than kissing the alleged
           victim on one occasion. This one admission by
           Ms. Bisbee was made only after Detective Kinder not
           only promised Ms. Bisbee that her future depended on
           whether she confessed as well as deceptively informing
           her that kissing a child was of no great significance.
           Prior to Ms. Bisbee's admitting to kissing the alleged
           victim, Detective Kinder characterized kissing the child
           as not being a "big deal" (interrogation transcript,
           page 35) and later he referred to it as "trivial"
           (interrogation transcript, page 37).

     4.    That, despite repeated use of increasingly blatant and
           coercive threats and promises, Detective Kinder failed
           to elicit from Ms. Bisbee any admission to any act of
           child molestation of the alleged victim save the "trivial"
           act of responding to a kiss that the victim initiated.



                                    3
IV.       THE INTERROGATION OF COURTNEY BISBEE

          A.    Excellent Sample for Expert Evaluation

      The interrogation of Courtney Bisbee by Detective Kinder was
completely recorded and therefore qualifies as a particularly good
candidate for expert evaluation. The dissection and analysis of the
interrogation could have been performed without having to rely on
anyone's memory of what was said between the parties. A competent
expert could have identified for a jury or a judge every fact on which his
or her opinion was based.

          B.    Analysis and Conclusions Regarding Specific Aspects
                of the Interrogation; Presentation and Discussion of the
                Facts upon which this Analysis and its Conclusions are
                Based 3

                1.    One Non-Sexual Admission

       Ms. Bisbee made only one admission during the interrogation. On
page 33, she admitted that she responded to the alleged victim's second
attempt to kiss her. The significance of this admission cannot be evaluated
without simultaneous consideration of the fact that the record of the
interrogation clearly demonstrates that Ms. Bisbee made the admission
after she was threatened by Detective Kinder. The precise nature of the
threat included the following: (1) that her future depended on whether or
not she complied with his demand for confession; (2) that if she failed to
confess it was going to hurt her both that evening and in the future; and
(3) that kissing the alleged victim was not a significant act.

          Prior to page 33 of the interrogation transcript, Ms. Bisbee admitted


      3
             The model of interrogation influence that is being used for the
      analysis reported herein, which includes the role of psychological
      coercion in precipitating a decision to confess, is specified in two of my
      publications that are attached to this report — Richard J. Ofshe and
      Richard A. Leo, The Social Psychology of Police Interrogation: The
      Theory and Classification of True and False Confessions, 16 Studies in
      Law, Politics and Society, 189 (1997); and Richard J. Ofshe and
      Richard A. Leo, The Decision to Confess Falsely: Rational Choice and
      Irrational Action, 74 Denv.U.L.Rev. 979 (1997).

                                         4
no wrongdoing whatsoever in relation to the alleged victim. On page 33,
Detective Kinder commenced using the tactic of attempting to “motivate”
Ms. Bisbee to confess by linking her decision --- i.e., about whether to
confess or to continue to deny wrongdoing — to different levels of
punishment. Detective Kinder linked confession to a promise of relatively
lenient treatment, and contrasted this with linking a continuation of denial
to being sent immediately to jail and to a subsequent harsh outcome of
relatively long term.

            Detective Kinder:            Now the thing that I'm gonna
            tell you, alright, is that I give everyone that comes down
            here the opportunity to tell me the truth. Now I've sat
            with you for over an hour and listened to you hoping
            that sooner or later you're gonna start telling the truth
            here, okay? Because I'm not hearing it yet. Do you
            understand? Everybody that I give — Everybody that
            comes down here and sits in that exact chair I give the
            opportunity to tell the truth. And largely depending on
            what happened to that person depends on how truthful
            they are with me.

            Courtney Bisbee:          Okay.

            Detective Kinder:       Okay? And right now you're not
            being truthful with me at all, okay? You're not being
            truthful to the point where it's gonna hurt you. Do you
            understand that?

Interrogation Transcript page 33 (emphasis by bold print and underlining
added).

      Detective Kinder followed his demand that Ms. Bisbee change her
story and confess by emphasizing that Ms. Bisbee's situation was hopeless
and that he did not need her confession to make his case. This is a tactic
used for the purpose of influencing a suspect to believe that confessing will
not worsen his position, because the interrogator supposedly already has
more than sufficient evidence against the person. Convincing a suspect
that his situation is hopeless also has the effect of increasing the perceived
value of any offer of benefit in exchange for confession — for either a
previous offer or an offer made later in the interrogation. In this instance,
Detective Kinder informed Ms. Bisbee that if she did not immediately start

                                      5
complying/confessing, he would immediately send her to jail.

            Detective Kinder:        Well here's what I'm gonna tell
            you, okay? Is that I don't need to talk to you, okay? I
            don't need to talk to you. I have enough to hold you in
            custody and send you to Madison tonight. And right
            now that's what I'm inclined to do. Okay? Are we on
            the same page now?

            Courtney Bisbee:         Yeah.

Interrogation Transcript, page 33 (emphasis added).

        Detective Kinder then repeats his threat of immediately terminating
the interrogation, which would have the effect of sending Ms. Bisbee off to
jail as well as preventing her from receiving the benefit that he has already
promised would result from a suspect's confessing to him.

            Detective Kinder:        And it's — it's not good for you.
            Okay? I'm only trying to, you know, like I said, I sat
            here for over an hour trying to give you the
            opportunity to tell me the truth, and I'm gonna tell you
            right now we'll stop right now at this position, okay,
            and either you are gonna start telling me the truth or
            we’re done.

Interrogation Transcript, page 34 (emphasis added).

      Ms. Bisbee was unresponsive to Detective Kinder's increasing the
pressure by threatening to terminate the interrogation and she continued
to deny having done anything wrong. She did, however, for the first time,
report that on two occasions the alleged victim attempted to kiss her.

            Courtney Bisbee:       He had a crush on me, he had
            intentions that he wanted to be more than friends, he
            has attempted to kiss me on two different occasions.

            Detective Kinder:        And you never did that?

            Courtney Bisbee:         And on one, on one of the kisses
            I said nope, your not, nope. He had told me that as far

                                     6
            as on one of the occasions that, you know, that he
            would wait until, you know legal age, this and that. I'm
            like no, no. You know , I'm like –—

            Detective Kinder:      So you think that Jonathan, if he
            said you had kissed him, that he would be lying?

            Courtney Bisbee:         If Jonathan said that I kissed
            him?

            Detective Kinder:        Um-hum.

            Courtney Bisbee:        If Jonathan, said that I kissed
            him, that would be a lie. That would be a lie. He tried
            to kiss me on two different occasions.

Interrogation Transcript, page 34 (emphasis added).

      Detective Kinder responded to Ms. Bisbee's denial by repeating his
accusation that she was lying and refusing to tell the truth. At this point,
Kinder introduced the tactic of attempting to reduce Ms. Bisbee's
resistance to confessing by characterizing the particular issue under
discussion (i.e., kissing the juvenile) as being an insignificant act; and
therefore implying that it was not likely to carry a significant punishment.

       This is a frequently-used interrogation tactic.       For example,
sometimes, in murder investigations, suspects are told that even though
the police know that they were present at the killing and helped locate the
victim, they have nothing to fear if they admit having been present when
the crime was committed — because someone else pulled the trigger. One
of the problems with the tactic of deliberately misleading a suspect about
the seriousness of what they are being pressured to admit is that it falsely
presents what logically appears to be an attractive alternative, that is,
offering a false confession in order to escape the pressure of an
interrogation and to avoid the threatened consequences of continuing to
maintain complete innocence. Put another way, the decision is not to offer
a true confession to what the person actually did, but rather a decision to
offer what appears to be necessary to avoid pressure by the interrogator.
If the seriousness of the admission was accurately factored in, the
attractiveness of the alternative disappears, and the propensity for a false
confession drops quite significantly.

                                     7
            Detective Kinder:         You know why that is? Because
            it's hard to keep lies straight.

            Courtney Bisbee:         No. I —

            Detective Kinder:         And you’re very good at it. I
            don't know, because I think that when I've talked to
            some people, you know, they told me that you're, you
            know, you're very believable on some things. But you
            know, I'm sitting here listening to you, and to me you're
            not believable at all, but maybe that's just because I do
            this type of work all the time and I could see right
            through what you're doing here, okay? It's not helping
            you one, one bit. Okay? You know the truth of the
            matter is, is that you did kiss John. Okay? You kissed
            him, alright? Big deal, Okay? You kissed a kid. But
            you can't even tell me that. You can't even tell me the
            truth.

Interrogation Transcript, page 35 (emphasis added).

      Immediately after Detective Kinder minimized the significance of
Ms. Bisbee's having kissed the juvenile, she complies with his demand that
she confess, by altering her story and reporting that she did kiss the child
back in response his attempt to kiss her.

            Courtney Bisbee:         No but I —

            Detective Kinder:      You can't even tell me that you
            kissed him, right? That's what you’re telling me, that
            you didn't kiss him.

            Courtney Bisbee:          No, on one of the occasions I did
            not kiss him, on one of the occasions when he had
            attempted to kiss me I did not kiss him back. On the
            other occasion when on the Thursday, that's what I was
            trying to find the first date, then on the second date
            that he, that he did, that I did kiss him and we kissed
            and that was it. And then I said the end. And then he
            had called me that night and I said —


                                     8
Interrogation Transcript, page 35 (emphasis added).

            2.    No Admission of Sexual Nature

       Once Detective Kinder elected to introduce the tactic of using
psychological coercion to motivate Ms. Bisbee to confess and succeeded
in eliciting an admission to an act that he characterized as not being a
"big deal," he continued attempting to coerce a confession to acts that
were unambiguously sexual in nature and unambiguously improper. It is
my opinion that Detective Kinder used strong threats of harm if Ms. Bisbee
continued to deny sexual contact with the alleged victim, and that he
promised Ms. Bisbee that she would be helping herself if she confessed,
and he even suggested that “counseling” was a possible result if she
confessed.

            Detective Kinder:        Here's the thing, alright? This
            is what's gonna happen, okay? Where we're heading
            right now. Okay its gonna go beyond just you and me
            talking, okay? At one point it's gonna be you sitting in
            a different chair with 12 people alongside of you.

            Courtney Bisbee:        Yeah.

            Detective Kinder:        People that are gonna be
            deciding right now, okay, for the future how is it that
            you want to be viewed. Okay? Do you want to be
            viewed as a person who maybe made an indiscretion,
            maybe you have some issues that, you know some
            counseling might help with, okay? Or do you want to
            be viewed as the person as that is really what it's all
            about for you and this is what you're gonna and gonna
            continue to do for the rest of your life.

            Courtney Bisbee:        No.

            Detective Kinder:       So you have to make that
            decision.

Interrogation Transcript, page 35 (emphasis added).



                                    9
       Detective Kinder then continued to pressure and coerce Ms. Bisbee.
He promised her that by confessing, she would be helping herself because
she would not be labeled a sexual predator but rather a person who made
an indiscretion; and that she might merely be given counseling for her
actions; whereas, if she continued to deny molesting the juvenile, jurors
would conclude that her denial was a lie and that she was a committed
child sexual predator. Despite Detective Kinder’s continued use of threats
and promises, Ms. Bisbee made no other admissions at any point in the
interrogation.

            Courtney Bisbee:        As — John and I did kiss, yes.
            I meant, but I did not —

            Detective Kinder:       And then it went further than
            that.

            Courtney Bisbee:        No.

            Detective Kinder:       Yeah.

            Courtney Bisbee:        No, it did not.

            Detective Kinder:       It went further than that on
            Thursday.

            Courtney Bisbee:        No, it did not.

Interrogation Transcript, page 36 (emphasis added).

            Detective Kinder:         Okay? You had the opportunity
            to sit in that chair and tell me the truth and you've not
            done that. Okay? I've had to pull the kiss out of you,
            for crying out loud. Something that, you know, that
            trivial I had to pull out of you. You can't even tell me
            that. Alright? Now it's my turn to talk. And what I'm
            telling you is that you need to decide how you want to
            be viewed, and right now you're deciding the wrong
            view, as far as I'm concerned, because those people
            are gonna tell you, you know, she's lying. Okay?
            Because number one, I can tell you that you're lying,
            they're gonna be able to tell that you're lying.

                                    10
Interrogation Transcript page 37 (emphasis added).

            Detective Kinder:        Okay? I wish you could too,
            because you know what, maybe you are the person
            that needs the help, okay? Maybe you are that person
            that needs some counseling, maybe she's got some
            issues going on. I know you were married and then
            divorced and now you've got a four year old daughter at
            home and everything is very hard right now for you.
            You're going to school, for crying out loud, you're doing
            a whole bunch of different things. But until you can be
            honest with yourself, Courtney, you can't be honest with
            me, can you? And until you can be honest with me,
            you can't help yourself. Do you see the problem that
            you’re in here?

            Courtney Bisbee:       Yes, I swear I did not do
            anything beyond that kiss...

Interrogation Transcript, page 37 (emphasis added).

            Courtney Bisbee:          He was 14, he was 14, it was
            still wrong, [inaudible] he had gotten held back.
            Absolutely, I'm not saying that it was right. But I was
            trying to tell you the truth.

            Detective Kinder:       You're just not helping. You’re
            not helping yourself at all.

Interrogation Transcript, page 39 (emphasis added).


                                SUMMARY

      Because this Report addresses matters which should have been
addressed during the trial of the defendant in this matter, this Report is
about more than the interrogation of the defendant and the identification
of coercive tactics used during the interrogation and the improper
promises of the interrogator. It is about seeking justice in the aftermath
of a conviction obtained without benefit of the information herein.


                                    11
      In my professional opinion, it is highly questionable to place any
reliance on the statements characterized as admissions or confessions of
the defendant made during the interrogation. Any argument based on
negative conclusions drawn from the so-called admission or confessions
necessarily would be misleading because such arguments would rest
exclusively and improperly upon an assumption of the veracity of those
statements. Given my analysis of the circumstances under which those
statements are made, I do not believe that there is any reasonable basis
for an assumption or conclusion of truth.

       Based upon my knowledge and experience, I conclude that the
defendant’s “admission” that she returned the juvenile’s kiss on one
occasion is highly questionable, because it was given under pressure after
lengthy denial and only after being deliberately and directly misled
regarding the actual import of such a statement. The defendant refused
to proceed beyond a minor concession to the interrogator, even in the face
of continuing (and increased) use of pressure tactics of a type that
invalidate the very responses they tend to evoke. This refusal to provide
any additional admissions, in my professional opinion, indicates that the
interrogation clearly failed because the interrogator could not even coerce
significant admissions from the defendant, and the single admission that
was coerced was to an act classified as of no great importance.

       Given a competent expert analysis of the interrogation of Courtney
Bisbee, an adequately educated jury or judge would have been in a
position to decide that if the interrogation produced evidence of anything,
it was evidence supporting Ms. Bisbee’s contention that she did nothing
wrong and her one inculpatory admission was a lie. On her own,
Ms. Bisbee was unable to explain to the trier of fact why her single “trivial”
admission was a lie. Her defense needed an expert to adequately and
accurately present the technical analysis.

________________________
Richard J. Ofshe, Ph.D.
Professor Emeritus
Department of Sociology
University of California, Berkeley




                                     12
    Exhibit A

Materials Reviewed
                                 Exhibit B

                         Summary of Experience

      My name is Richard J. Ofshe. My Ph.D. degree was awarded by
Stanford University in 1968. Since 1967 I have been on the faculty at the
University of California at Berkeley where I am a Professor Emeritus in the
Department of Sociology.

      During my academic career I have been honored by sharing in the
1979 Pulitzer Prize for Public Service awarded to the Point Reyes Light
newspaper, an award from the Society for Clinical and Experimental
Hypnosis for the Best Paper on Clinical Hypnosis of 1994 and by receipt of
a John Simon Guggenheim Memorial Foundation Fellowship in 1973.

      Between 1979 and 2008 I have served as a consultant to nineteen
law enforcement agencies, including the Offices of the Attorney General for
the States of California and Arizona, the Offices of the United States
Attorney in Los Angeles and West Virginia, the Criminal and Tax Divisions
of the United States Department of Justice, the Internal Revenue Service,
the Offices of the District Attorney of Los Angeles County, California and
of Franklin County, Indiana, the Office of the State's Attorney of Florida in
Broward County and in Fort Myers, the Office of the Governor of Missouri,
and a Canadian Government Commission of Inquiry into the Actions of
Canadian Officials in relation to Maher Arar.

       Between 1989 and 2008, I testified on more than 300 occasions in
34 states on the subjects of influence in police interrogation and/or false
confession. My testimony has been in state, Federal and military courts
at trial level and in post-conviction proceedings.

      The central area of my research and writing for nearly twenty years
has been the influence of interrogation tactics on a suspect's
decision-making. The focus of my research has been (1) the identification
of those interrogation tactics which, when coupled with the regular
procedures of interrogation, can cause an innocent person to falsely admit
responsibility and falsely confess to a crime, and (2) how to discriminate
between reliable and unreliable confessions.

      All of my research into police interrogation has been based on the
study and analysis of interrogations that were done in the normal course

                                     1
of the investigation of a crime. The crimes were invariably major felonies
and were often very high profile cases. I have been directly involved for
the defense in two of the most shocking American multiple false confession
cases in the last fifty years — the Central Park Jogger case (1989) and the
Phoenix Temple Murder (1992) case. In both of these, the true
perpetrator(s) was eventually caught. It is accepted by prosecution and
defense in both cases that police interrogation methods caused multiple
individuals to confess falsely to heinous crimes. In the Jogger case, the
crime was the exceptionally brutal rape of a young woman. In the Temple
Murder case, it was the murder of nine persons (seven monks, a nun, and
an employee) at a Thai Buddhist Temple in Phoenix, Arizona.

      My research into the process of interrogation is carried out principally
by analyzing audio and/or video recordings of interrogations. When
dealing with unrecorded interrogations, my normal procedure is to analyze
reports, the testimony of participants and to reconstruct the history of the
interrogation by interviewing participants.

      As indicated in the attached curriculum vita, I have been publishing
on these topics since 1989 (Exhibit D). My scholarly publications on
interrogation and false confession are accepted and relied upon by both
social scientists and scholars who study interrogation and courts in the
United States and Canada. Most recently, the Supreme Judicial Court of
Massachusetts drew heavily on my analysis of coercive tactics in police
interrogation and the indicia of a false confession in deciding
Commonwealth v. Valerio DiGiambattista, 813 N.E. 2nd 516 (2004). The
Supreme Court of Canada relied in my writings on interrogation methods
in Regina v. Oickle (R. v. Oickle 147, C.C.C. (3rd).




                                      2
   Exhibit C

Curriculum Vitae
      Exhibit D

Selected Publications
    DECLARATION OF ATTORNEY ALAN SIMPSON

      My name is Alan Simpson. I am a member in good-standing with the State
Bar of Arizona and am actively engaged in the defense of individuals accused of
criminal offenses. I am a certified specialist in criminal law, Arizona State Bar
Board of Legal Specialization. I have been asked to respond a series of questions
regards to the performance of counsel in the case of State of Arizona v. Courtney
Bisbee, and the applicable professional norms or standard of care in effect at the
time of her trial.

       In preparation to respond to the questions I have reviewed the trial
transcripts, police reports, a number of affidavits which I understand are attached
to the Petition, the depositions conducted by Attorney Ambrose, selected emails
and the report of Richard Ofshe, Ph.D.

    1. Are you familiar with the applicable standard of care in Maricopa County,
       Arizona that defense counsel owed to a defendant facing felony charges in
       2006? If so, briefly describe your background and experience that rendered
       you competent in 2006 to provide representation to a defendant in Maricopa
       County, Arizona.

       Answer. I have been a practicing attorney since 1980 and have had a
       primary involvement in criminal law since approximately 1985. I am a
       certified criminal law specialist, certified through the Arizona State Bar
       Board of Legal Specialization. I have practiced with the Maricopa County
       Public Defender’s Office as both a trial attorney and trial group supervisor.
       I maintain memberships in the Arizona Attorneys for Criminal Justice,
       California Attorneys for Criminal Justice, National Association of Criminal
       Defense Lawyers and am an Associate Member of the American Academy
       of Forensic Sciences. I also serve as a Judge Pro Tempore for the Maricopa
       County Superior Court’s criminal division. I am familiar with the standards
       of practice for Maricopa County during all pertinent periods.

             For the following questions, and in addition to the materials you have
       reviewed, you may assume the following.


                                         1 
 
       i.     The defendant told her attorney/s that in her interrogation by
              Detective Kinder that she felt pressured and provided false
              information as a result.
       ii.    It was not defendant’s practice to maintain a shaved or smooth pubic
              area.
       iii.   Rule 15 defense interviews were conducted only of the case agent,
              Detective Kinder.

    2. Please explain the duty to investigate.

       Answer. Counsel has a duty to make reasonable investigations or to make a
       reasonable decision that makes particular investigations unnecessary.
       Prevailing norms of practice as reflected in American Bar Association
       standards are guides to determining what is reasonable. Wiggins v. Smith,
       539 U.S. 510 (2003). ABA Standard 4-4.1 imposes upon defense counsel a
       duty to investigate. It recites:

                     Defense counsel should conduct a prompt
              investigation of the circumstances of the case and
              explore all avenues leading to facts relevant to the
              merits of the case and the penalty in the event of
              conviction. The investigation should include efforts to
              secure information in the possession of the prosecution
              and law enforcement statements to defense counsel of
              facts constituting guilt or the accused's stated desire to
              plead guilty.


              In this particular case I note that the defendant’s trial attorney was a
       certified criminal law specialist. A specialist is held to a higher standard of
       care which extends to the duty to investigate. Thus, while I recognize that
       the standard for ineffectiveness is minimal competence and throughout my
       evaluation I use that standard, it should also be understood that an attorney
       must bring to the every case his experience and training. A specialist is
       expected to possess both at a higher level.

    3. Is there an obligation to interview state’s witnesses and other persons who
       are subjects of interest in a criminal case?


                                           2 
 
       Answer. Yes. Our Court of Appeals has stated: [E]xcept in the most
       unusual circumstances, it offends basic notions of minimal competence of
       representation for defense counsel to fail to interview any state witnesses
       prior to a major felony trial. State v. Radjenovich, 138 Ariz. 270, 274, 674
       P.2d 333, 337 (App.1983). It is clear that it is negligent and deficient
       performance for an attorney to fail to interview state’s witness/es before the
       start of a felony trial. If the victim/s- witness/es refuse to consent to an
       interview then counsel must work with his investigator to move “out from
       the immediate circle” in order to identify persons who may be familiar with
       the victim/s and investigate their credibility.

    4. From your review of materials, was there a need to interview persons
       beyond merely Detective Kinder in order to provide effective assistance of
       counsel? If so, do you have an opinion concerning whether the failure
       constituted deficient performance?

       Answer. Yes. I have reviewed a number of affidavits that attest that the
       victim lied about his accusation/s and that his mother either fostered this or
       was complicit in promoting the deception. See, Deposition of Sarah Babcock
       by Attorney Ambrose (Jonathan repeatedly telling her that he was making up
       the claims because his mother was making him do it for the lawsuit money),
       Affidavit of Nickolas Valles (attesting to falsity of Jonathan’s allegations
       and to his mother’s pressure for financial gain by lawsuit, after he becomes
       18 and moves out of the house) By extension, the affidavit of Samantha
       Strandhagen (overhearing Brittany Heeler and Donovan Kemp admitting
       that the charges were made up) and affidavit of Eugene Valles (providing
       information about financial motivation on part of mother and false charges
       by Jonathan). I recognize that the deposition testimony was not available
       pretrial. However, trial counsel did have inconsistent statements being
       offered by the victim, Brittany Heehler, and Nicholas Valles. Further, Brian
       Keith was a friend with each of the forgoing adolescents. As such, would be
       expected that any startling or exciting events experienced by any would have
       been shared with the others. [I do note that Brian Keith testified on 1-12-
       2006 but observe he was asked limited questions].

              Detective Kinder’s knowledge of the case was derivative. Defense
       counsel needed to conduct Rule 15 interviews of all the state’s witnesses. In
       failing to do so, counsel missed opportunities to obtain additional
       inconsistent statements and perhaps break through to the truth which now
       appears to have surfaced post-conviction.
                                          3 
 
              It was simply unacceptable given the graveness of the accusations and
       the available information suggestive of fabrication for counsel to not
       conduct interviews with the state witnesses. The failure to do so was
       deficient performance.

    5. Is it deficient performance to fail to consult with, and present, appropriate
       experts? If so, please explain.

       Answer. Depending upon the facts of the case, it may be deficient
       performance to fail to consult with and present an expert. Here, there was an
       approximately three hour interrogation by a seasoned detective of a female
       who had no prior criminal background. From the later fact a defense
       practitioner should be sensitive to over-reaching on the part of the
       investigator/s. If an interrogation provides no support for the prosecution
       then there is no need to go further. But here, the detective obtained
       admissions that were supportive of an inference that Bisbee was engaged in
       behavior inappropriate to her position in a school and inappropriate age
       sexual relations. Bisbee apparently offered to her attorney that she felt
       pressured during the interrogation and relented to the pressure and made
       statements that were untrue.

               I have retained a false /coerced confession expert in several of my
       cases. Criminal defense practitioners are offered seminars during which the
       subject is addressed. Here, there was a need to retain an expert to make
       understandable the defendant’s admissions. An expert such as Richard
       Ofshe, Ph.D. can serve this important defense function. His report provides
       an explanation that should have been offered to the trier of fact through his
       trial testimony.

              A failure to consult with and present the testimony of qualified
       experts in support of a defense falls below an objective standard of
       reasonable representation.       The United States Supreme Court has
       emphasized that “strategic choices made after less than complete
       investigation are reasonable precisely to the extent that reasonable
       professional judgments support the limitation on the investigation. In other
       words, counsel has a duty to make reasonable investigations or to make a
       reasonable decision that makes particular investigations unnecessary.”
       Strickland v. Washington, 466 U.S. at 690-91. Failure to investigate whether
       scientific testimony will bolster a defense constitutes ineffective assistance.
                                          4 
 
              See State v. Edwards. 139 Ariz. 217, 220-21, 677 P.2d 1325, 1328-29 (App.
              1983)(failure to present testimony from expert qualified to render an opinion
              on insanity constituted ineffective assistance); Dugas v. Coplan, 428 F.3d
              317 (1st Cir. 2005)(failure to consult arson expert as part of investigation into
              arson charge constituted ineffective assistance); Foster v. Lockhart, 9 F.3d
              722 (8th Cir. 1993)(failure to investigate, develop, and present strong defense
              of impotency in rape case constituted ineffective assistance); Sims v.
              Livesay, 970 F.2d 1575 (6th Cir. 1992) (trial counsel provided ineffective
              assistance in failing to investigate and present evidence that, consistent with
              claim that shooting was accidental, there was powder residue on quilt with
              bullet holes); Corbett v. Brill, 68 Fed. Appx. 100, 2003 WL 2148338 (9th
              Cir. 2003)1 (failure to present expert testimony in support of extreme
              emotional disturbance defense constituted ineffective assistance).

                     It is my opinion that the failure to consult with and present an expert
              on false / coerced confession was deficient performance.

       6. Can you identify areas in which there is evidence of deficient investigation
          by trial counsel? If so, please explain.

              Answer. There are a number of instances discussed below.

                      a. Credibility of Victim’s Claim Concerning Condition of Defendant’s
                         Pubic Area. The victim asserted that the defendant placed his hand on
                         her vaginal or pubic area and that the defendant placed his hand over
                         his penis. Significantly, the defendant testified that the defendant’s
                         vaginal area was shaved smooth. RT 1-10-2006 at 86:1-4. The trial
                         attorney was rightly critical of Detective Kinder’s failure, following
                         the victim’s report of the offense, to obtain an order that would have
                         permitted an inspection of the defendant’s pubic area. Trial counsel
                         must have realized that had an order been obtained, and the condition
                         of the defendant’s pubic area been different than that described by the
                         victim, then it would have been apparent that the allegation was a
                         fabrication.

                                                            
1
     This case is cited for its persuasive authority, not as binding precedent.

                                                               5 
 
          During defendant’s direct examination, Bisbee testified that her
    pubic area was not shaved (at the time of her arrest) and had never
    been shaved. RT. 1/12/2004 at 95. This was a critical matter. Trial
    counsel should have learned of how defendant maintained her pubic
    area. If this could be corroborated and presented to the trier of fact,
    then substantial evidence of innocence could have been presented.

           A competent investigation would have led to the defendant’s
    mother, who visited the defendant shortly prior to the incident, to
    David Valentine, with whom the defendant had intimate relations the
    week prior to the incident, and, if necessary, to other inmates at the
    County Jail with whom the defendant was incarcerated (she was
    arrested and jailed within one week of the incident).

           Defendant regularly maintained her pubic area in a condition
    different than that as described by the victim. Counsel should have
    presented witnesses testify regarding Bisbee’s habit or custom of
    maintaining her pubic area in a condition that was inconsistent with
    the victim’s claims. Rule 406 provides that evidence of the habit of a
    person or of the routine practice of an organization, whether
    corroborated or not and regardless of the presence of eyewitnesses, is
    relevant to prove that the conduct of the person or organization on a
    particular occasion was in conformity with the habit or routine
    practice. The defendant said she did not shave, and the witnesses
    noted above could corroborate this assertion.

           The failure to develop and present this form of testimony was
    below the applicable standard of care for criminal defense specialists
    and criminal law practitioners. To be clear, the failure was below he
    standard of minimal competence and the absence of this substantial
    evidence prejudiced the defendant’s right to due process and a fair
    trial.




                                6 
 
    b. Failure to Interview, Notice and Present Samantha Strandhagen to
       impeach state witnesses.

            Strandhagen attests that she had a telephone communication
      with trial counsel in September 2005 during which she advised of
      overhearing telephone call/s between Brittany Heehler and Donovan
      Kemp during which both make statements that they knew that Bisbee
      did not do anything to the victim and that the victim was lying. A
      thorough interview should have been conducted with this witness and
      she should have been noticed under Rule 15.2 and presented at trial.

             Strandhagen’s testimony would have been impeached Brittany
      Heehler with inconsistent prior statements. Heehler testified that she
      had observed Bisbee and the victim kissing on two occasions and also
      observed them on the floor of Donovan Kemp’s bedroom (the situs of
      the alleged touching). See, RT 1/11/2006. The veracity her testimony
      is clearly subject to question in light of Heehler’s earlier conversations
      with Donovan Kemp. Moreover, Strandhagen heard Heehler state
      that she knew the victim was lying.

             The significance of Strandhagen’s impeachment testimony is
      strengthened by trial counsel’s confrontation of Heehler with
      inconsistent statements to prosecutor Yvone Vieau, See, RT
      1/11/2006 at 47-51. Heehler had not mentioned the February 5, 2004
      incident (second kissing claim) during the Vieau interview. However,
      Heehler offered that she must have misunderstood her (Vieau’s
      question). Id, at 49:2-3. Heehler claimed during cross-examination
      that she did not remember telling Vieau that she did not see Bisbee
      and the victim with a blanket around them. Id, at 49: 16-18. {Note:
      This was incomplete impeachment as trial counsel failed to call Vieau
      or to introduce the pertinent interview transcript which, itself, was
      deficient performace.} Thus, trial counsel began to call into question
      the veracity of Heehler but failed to present Standhagen to drive the
      point home that Heehler had provided inconsistent statements at
      different dates and before different persons.
                                   7 
 
             The failure to marshal Standhagen’s evidence also meant that
       Donovan Kemp’s prior statements, overheard by Strandhagen, that
       nothing had happened and Donovan’s knowledge that his brother was
       lying was not heard by the trier of fact. The failure to develop and
       present this form of testimony was below the applicable standard of
       care for criminal defense specialists and criminal law practitioners.
       The absence of this evidence prejudiced the defendant’s right to due
       process and a fair trial.

    c. Failure to Investigate for Evidence of Bias.

              Trial counsel was provided with information suggesting that the
       claims being advanced by Jonathan Valles may have had financial
       motivation. The suggestion that this existed may be found in his
       client’s email dated July 14, 2005 to trial counsel, the October 12,
       2004 interview with Detective Kinder, his interview with Eugene
       Valles, and Bisbee’s information about the victim’s mother, Janette
       Sloan. (see, Affidavit of Bisbee). The filing of a civil complaint under
       CV2006-050430 on January 31, 2001 by Janette Sloan against Bisbee
       and the Kemps evince a financial interest that existed at the time of
       the trial.

               It is also apparent that the victim’s father, Eugene Valles, was
       an investigative lead. In his affidavit, dated December 21, 2007 he
       provides statements that would have supported his offering an opinion
       of the existence of financial motivations. There is no material from the
       documents that I have reviewed, not any examination conducted at
       trial that developed or presented this area of bias. The failure to do so
       was deficient performance.

    d. Failure to Investigate for Corroborating Evidence (Phone Records). It
       was contended that Bisbee had two telephone conversations with the
       victim, including Donovan Kemp which were overheard by Michael
       Kemp and the victim’s mother, Janette Sloan. See, RT, 1-9-06, 1-10-
                                    8 
 
             06 and 1-17-06. Michael Kemp claimed that the second call on
             February 5, 2004 was on either his cell phone or that of his son, Nick,
             or the victim. RT. 1-9-06 at 46-47: 23-3. Bisbee disputes these calls.
             See, Bisbee Affidavit ¶ 35.

                    Cell phone service providers can provide detailed toll records
             which encompass all call placed and received. These records can be a
             treasure trove of information providing approximate locations and
             duration of the calls. Here, the ensemble of state witnesses had
             Bisbee engaged what Kemp characterized as a teenage conversation
             that spanned from approximately 9:00 PM to close to midnight.
             Bisbee testified that Jonathan tried to call her three times while she
             was in class and offered that she called back at 10:30PM and spoke
             with Donovan, Nick and Jonathan for about 30-40 minutes.

                   I have been involved in several investigations involving cell toll
             records. The toll records of Bisbee’s provider would have detailed the
             missed calls, their number and time of call. The cell records of
             Michael and Donovan Kemp and Jonathan Valles would have noted
             the time and duration of the second telephone call. These records
             would have corroborated Bisbee’s testimony and drawn into doubt the
             credibility of state’s witnesses.

                   An attorney who is a certified criminal law specialist may be
             expected to garner cell records to ascertain whether they may offer
             admissible evidence disputing claims or corroborating a client’s
             claim. It was deficient performance to have failed to marshal these
             records. It is indeed unfortunate that these detailed records are
             regularly purged and may not now be available for inspection.

    7. In your review of the materials, do you have an opinion whether the cross-
       examination of Jonathan Valles met minimal standards of competence or
       met that which may be expected of a certified criminal law practitioner? If
       so, please provide that opinion.


                                         9 
 
    Answer. In my opinion the cross-examination of the victim was deficient
    under both standards. The cross-examination of the victim was brief;
    although, brevity of an examination is not proper test of competent
    examination. However, here there were a number of available avenues to
    develop an expansive cross-examination. I will provide a glimpse of these
    below.

          If Jonathan is to be believed, then he engaged in heavy kissing with
    Bisbee at the Eugene Valles’ home on Super bowl Sunday and then Bisbee
    engaged him in a petting activity on the floor of Donovan Kemp’s bedroom.
    From this activity, he claims to have left, after his hand had been placed on
    her vagina and her hand on his penis. This is not a 13 year-old male who
    avoids sexual encounters. Eugene Valles had advised that Jonathan at age
    12 was found near naked and being caught with a naked 15 year old girl’s
    home. The incongruity and improbability of this particular person
    welcoming one incident and walking away from another should have been
    developed.

           It is commonly known that adolescents confide in friends and, if
    siblings are close, then siblings. Of course, the foundation for this should
    have been developed in the Rule 15 interviews with those friends and the
    sibling. The fact that the victim’s father told police that Brian Keith and
    Nicholas Valles had told him, the father, that none of this happened, should
    have been used in cross-examination.
           The above matters should have been taken into consideration in
    addition to the errors in failing to develop the defense of bias / financial
    motivation. It is noteworthy that, while not available to trial counsel,
    Jonathan Valles admitted in his deposition by Attorney Ambrose that he had
    met with a lawyer about filing a lawsuit before trial. See, RT. 10-23-2006 at
    180.
          In conclusion, it is my opinion that the cross-examination did not meet
    minimal standards of performance of counsel and suffered from counsel’s
    inadequate case investigation.



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    8. Do you have an opinion concerning the examination of Eugene Valles, the
       father of Jonathan and Nicholas Valles and whether it met minimal standards
       of competency? If so, what is that opinion?
       Answer. As noted already on a number of occasions above, there was a
       failure of trial counsel to investigate and conduct pretrial interviews. As a
       result the examination of an important witness, the complaining witness’
       own father, was deficient. This was a witness who told police that his son
       was lying, there was pressure from the victim’s mother, there were financial
       motivations, and he had been told by Brian Keith and his son, Nickolas, that
       nothing had happened.
              As it developed at trial, none of this information was provided to the
       trier of fact. Trial counsel’s very brief direct examination spanned a mere 74
       lines of question and answer. RT. 1/12/2006 at 126-129. Trial counsel asked
       the wrong questions. The father was asked whether the father had an
       opinion on Jonathan’s truthfulness. In response he noted that he didn’t know
       if his son “is or is not” that he knew that “he has been lying” but “… in
       reference to this at all. (he hasn’t) really spoken to him.” And when asked
       whether as a general principle if he was someone who is always truthful,
       counsel obtained, “To me, yes”. Id, at 129: 5-10.
             Eugene Valles was competent to testify concerning the victim’s
       reputation for being untruthful. It is apparent that the father and son were
       members of a family group and what Mr. Valles offers in his affidavit and
       statement to police was within that group, that Jonathan is known as being
       an untruthful person. His examination was bereft of questioning to elicit this
       impeachment evidence.
              To conclude, the failure to present all that this witness had to offer to
       the trier of fact was deficient performance.
    9. Do you have an opinion concerning whether the defense attorney’s
       examination of Janette Sloan met minimal standards of competency? If so,
       what is that opinion.
       Answer. Defense counsel simply failed to question any witness concerning
       the existence of a financial motivation to explore bias. As stated above, and


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       for similar reasons, the failure to expose the witness’ bias was deficient
       performance.
    10. Do you have an opinion concerning the examination of the Amanda Herman
        and whether it met minimal standards of competency? If so, what is that
        opinion?
      Answer. I have no information which details the extent of the pretrial
      interview of Amanda Hermann. Her direct testimony seemed tangential to
      the issues at trial and spawned no cross-examination. But, in the notes of
      Bisbee to her counsel she noted that Herman was a contemporary of the
      victim and a fellow school-mate. According to notes of Bisbee, Herman had
      made prior remarks that the victim had been heard admitting that the claims
      against Bisbee were a joke or bet and it was all a set up. Trial counsel did
      not inquire about these areas although he would have clearly had a good-
      faith foundation for asking that line of questions. As it was the direct
      examination produced nothing. See, RT 1-12-2006.

             The examination was thus deficient.

    11. Do you have an opinion concerning the examination of Brian Keith and
       whether it met minimal standards of competency? If so, what is that
       opinion?
      Answer. Once more there is no information concerning the extent of any
      pretrial interview with this defense witness. His direct examination did
      develop that he did not see Bisbee under a blanket with the victim, or
      holding hands or kissing. RT 1/12/2006 at 117. However, trial counsel did
      not inquire concerning statements that may have been made to him by the
      victim concerning the event. The inference that I draw from this witness’
      statements to the victim’s father is that there was no conversation by the
      victim to the witness that confirmed the sexual contact. Among adolescent
      friends, the failure to make comment about a sexual episode may be
      supportive of an inference that it did not happen. The same may be true of a
      hope of financial windfall. Trial counsel did not engage the witness with
      this line of questioning. The examination conducted by counsel was
      deficient.

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    12. Do you have an opinion concerning the lack of a defense objection to the
       closing argument of the prosecutor? If so please explain.
       Answer. The deputy county attorney remarked in his closing argument that
       the defendant could not offer any reason for the victim to lie about the
       incident. In fact, the defendant specifically stated, “Yes,” to the question of
       whether she could offer reasons for the victim to lie, and the prosecutor then
       promptly changed the subject and avoided having the defendant state the
       basis for bias. This was misstatement should have drawn an objection. The
       failure to make such an objection was deficient performance.
    13. The defendant contends that her trial counsel made certain representations
       of a relationship between himself and the trial court. This purported
       relationship was offered to defendant as a reason for a waiver of the right to
       a jury trial. Please comment on this.
       Answer. A trial by jury is fundamental to our model of criminal
       jurisprudence. The waiver of the right may only be made personally by the
       defendant. It is unconscionable for an attorney to influence that decision by
       making representations concerning a relationship with the trial court or the
       prosecutor intending to openly or implicitly suggest a favorable outcome
       based upon that relationship. I note that I too make comments about past
       professional relationships with members of the bench and prosecutors’
       office. Counsel may certainly accurately describe the relationship but
       should always point out that the personal or professional relationship with
       the bench or prosecutor neither means nor implies that counsel’s clients
       would be treated any differently than any other defendant.
             It was improper to suggest a favorable outcome based upon an out-of-
       court relationship with the trial court and to do so was deficient
       performance.


       Further affiant sayeth not.
                                       /s/Alan Simpson
                                       ALAN SIMPSON, Attorney at Law



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Subscribed and Sworn to on October 22, 2008 by Alan Simpson.


Notary Public in and for
Maricopa County, ARIZ.



/s/ Laura Vasquez
Notary Public                              My commission expires
 




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