robert driscoll
Robert Driscoll, Driscoll v. Delo, 71 F.3d 701 (8th Cir. 1995)
Robert Driscoll was found guilty and sentenced to death for the 1984 stabbing death of a correctional officer during a prison disturbance involving 20-30 prisoners. After his conviction and sentence were affirmed on direct appeal and his motion for state post-conviction relief was unsuccessful, Mr. Driscoll filed a federal habeas petition in the Eastern District of Missouri. The district court granted habeas relief and ordered a new trial, and the Eighth Circuit Court of Appeals affirmed the district court’s order, finding three independent bases for relief.
Ineffective Assistance of Counsel at Guilt (Failure to Investigate Serology Evidence)
At trial, the state’s serology expert testified that the blood found on Driscoll’s homemade knife was type A, the same blood type of a different officer, not the victim, Officer Jackson, whose blood type was O. The State explained the absence of the victim’s blood on Driscoll’s knife using two alternative theories: (1) that type O blood was wiped off when Driscoll subsequently stabbed another guard with type A blood; and (2) that the “thread,” or “antigen,” test used to identify the blood masked the presence of the type O blood because of the reaction that occurs when a reagent is applied to a mixture of blood types A and O. The serology expert, however, had performed an additional test—the lattes antibody test—that conclusively showed the absence of type O blood on the knife. But neither trial counsel nor the prosecutor questioned the expert about this additional test. Had Driscoll’s trial counsel investigated the serology tests, they would have adequately cross-examined the state’s serology expert about the absence of Officer Jackson’s blood type on Driscoll’s knife. Instead, the jury was left with the impression that Officer Jackson’s blood could have been on the knife linked to Mr. Driscoll. “Whether or not the alleged murder weapon—which was unquestionably linked to the defendant—had blood matching the victim’s constituted an issue of the utmost importance. Under these circumstances, a reasonable defense lawyer would take some measures to understand the laboratory tests performed and the inferences that one could logically draw from the results.” 71 F.3d at 709.
The Eighth Circuit concluded that Driscoll had been prejudiced by his counsel’s failures because there was a reasonable probability that the jury would have had a reasonable doubt about Driscoll’s guilt absent counsel’s errors. 71 F.3d at 709. The additional evidence against Driscoll—the presence of Officer Jackson’s blood type on Driscoll’s pants, eyewitness testimony from prisoners involved in the riot, and Driscoll’s statement to investigators that he stabbed “at an officer”—did not change the prejudice calculus because trial evidence had established that Driscoll did stab another officer and guards who saw an inmate stab Officer Jackson identified someone other than Driscoll as the assailant.
Ineffective Assistance of Counsel at Guilt (Failure to Impeach Witness)
The state presented two prisoner-eyewitnesses at trial who testified that they had seen Driscoll stab Officer Jackson. One of the prisoners, Joseph Vogelpohl, made two statements to investigators prior to trial, and in neither of those statements did he say that Driscoll had admitted stabbing Officer Jackson much less that he had witnessed the stabbing. Trial counsel impeached Vogelpohl with his prior convictions, his intoxication on the night of the stabbing, the beatings he and others received from guards after the riot, and whether he had discussed the case with other prisoners; but counsel failed to question Vogelpohl about his two prior inconsistent statements even though he knew about them.
The other prisoner-witness, Edward Ruegg, admitted on cross-examination that he told the investigators whatever they wanted to hear so they would leave him alone; and Driscoll later presented the testimony of another prisoner who said that Ruegg admitted to him that he had not seen Driscoll stab Officer Jackson. The Eighth Circuit concluded that trial counsel’s failure to impeach Vogelpohl was a Sixth Amendment violation:
The apparent strength of Vogelpohl’s claim to have seen the same events that Ruegg later testified to seeing must have offset, in the minds of the jurors, Ruegg's admission that he was scared enough to say anything that he thought the investigators wanted to hear. We agree with the district court that counsel’s failure to impeach Vogelpohl was a breach with so much potential to infect other evidence that, without it, there is a reasonable probability that the jury would find reasonable doubt of Driscoll’s guilt.
71 F.3d at 711.
Prosecutorial Misconduct, Penalty Phase (Eighth Amendment Caldwell v. Mississippi Violation)
The Eighth Circuit also held that Driscoll’s death sentence violated the Eighth Amendment under Caldwell v. Mississippi, 472 U.S. 320 (1985), because the prosecutor misled the jury to minimize its role in the sentencing process in Missouri, and enabled the jury to feel less responsible than it should for its sentencing decision. 71 F.3d at 713.
The prosecutor repeatedly referred to the judge as the “thirteenth juror” and explained that the jury’'s sentence of death would be a mere recommendation to the judge; in his most egregious statements, the prosecutor announced that “juries do not sentence people to death in Missouri” and, at one point, even told jurors it did not matter whether they returned a recommendation for the death penalty because the judge can simply overrule their decision.
71 F.3d at 711. “Despite their technical accuracy under Missouri law,” these statements misrepresented the significance of the jury’s role and responsibility as capital sentencer and the nature of the judge’s review of the jury’s sentence. Id. at 713. Because Caldwell was decided before Driscoll’s conviction became final, he was entitled to its benefit.
Robert Driscoll, State v. Driscoll, 55 S.W.3d 350 (Mo. 2001)
Inadmissible Evidence of Propensity and Racist Beliefs
At Robert Driscoll’s second trial, he was again convicted and sentenced to death for the killing of Officer Jackson. On direct appeal, the Missouri Supreme Court overturned his conviction and sentence because the trial court had abused its discretion in admitting evidence of Driscoll’s membership in the Aryan Brotherhood. At Driscoll’s second trial, the State introduced evidence of Driscoll’s membership in the Aryan Brotherhood for the purpose of showing motive and to rehabilitate state’s witness Jimmie Jenkins by explaining why he had not come forward with testimony against Driscoll until weeks after the murder. The evidence of Driscoll’s involvement with the Aryan Brotherhood was introduced on redirect examination of Jenkins who described it as a white prison gang that advocated white power and whose “way of life” was to “kill and murder all the time”; Jenkins also testified that Driscoll had told him he’d have to kill a black man to join. 55 S.W.3d at 352-353. Because Jenkins had died after the first trial and before the second, the State read his testimony from the first trial into evidence, after the trial court disallowed defense counsel’s attempt to waive cross-examination in order to excise the Aryan Brotherhood portions of the redirect examination. Id. at 355.
The Missouri Supreme Court held that under either of the State’s theories it was an abuse of discretion to admit this evidence. First, it was inadmissible at the guilt phase as propensity evidence; and there was no evidence that the prison murder was racially motivated or that the Aryan Brotherhood was otherwise tied to the crime. Id. at 354-355. As such, its admission also constituted a First Amendment violation under Dawson v. Delaware, 503 U.S. 159 (1992). With respect to the purpose of rehabilitating the state’s witness, the Court determined that allowing admission of the Aryan Brotherhood evidence after Driscoll’s waiver of cross-examination violated his due process rights to present the case according to his chosen trial strategy.
Applying the heightened constitutional harmless error standard given the Dawson violation, the Court held that, although it was a close case, the highly prejudicial “Aryan Brotherhood evidence may well have been sufficient to convince one or more of the jurors to convict rather than acquit,” especially in light of Driscoll’s plausible theory of defense. Id. at 356-358.