alibi witness

In March 1992, Edward G. Scheffer, an airman stationed at March Air Force Base in California, volunteered to work as an informant on drug investigations for the Air Force Office of Special Investigations. His OSI supervisors advised him that they would ask him to submit to drug testing and polygraph examinations from time to time during his undercover work. In early April, one of the OSI agents supervising Scheffer requested that he submit to a urine test. Shortly after providing the urine sample, but before the results were known, Scheffer agreed to take a polygraph test administered by an OSI examiner, who concluded that the test indicated no deception when Scheffer denied using drugs since joining the Air Force. On April 30, Scheffer unaccountably failed to appear for work and could not be found on the base. He remained absent without leave until May 13, when an Iowa state patrolman arrested him following a routine traffic stop and held him for return to the base. OSI agents later learned that Scheffer's urinalysis revealed the presence of methamphetamine. Scheffer was tried by general court-martial on charges of using methamphetamine, failing to go to his appointed place of duty, wrongfully absenting himself from the base for 13 days, and, with respect to an unrelated matter, uttering 17 insufficient funds checks. At trial Scheffer testified on his own behalf, relying upon an innocent ingestion theory and denying that he had knowingly used drugs while working for OSI. On cross-examination the prosecution attempted to impeach him with inconsistencies between his trial testimony and earlier statements he had made to OSI. Scheffer sought to introduce the polygraph evidence in support of his testimony that he did not knowingly use drugs, but the military judge denied the motion and excluded the evidence pursuant to Military Rule of Evidence 707. Scheffer was convicted on all counts and sentenced to a bad-conduct discharge, confinement for 30 months, total forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. The Air Force Court of Criminal Appeals affirmed in all material respects. By a 3-to-2 vote the United States Court of Appeals for the Armed Forces reversed. The Supreme Court granted certiorari.

On the morning of August 26, 1965, two men wearing stocking masks robbed the American Security and Trust Co. bank in Washington, D.C. The robbery lasted three or four minutes. A government informer, Clarence McFarland, later told authorities that he had discussed the robbery with respondent Charles J. Ash, Jr. In February 1966, an FBI agent showed five black-and-white mug shots of Negro males of generally the same age, height, and weight, one of which was of Ash, to four witnesses who had been present during the robbery. All four made uncertain identifications of Ash's picture. On April 1, 1966, an indictment was returned charging Ash and a codefendant, John L. Bailey, in five counts related to the bank robbery. Trial was finally set for May 1968. In preparing for trial, the prosecutor decided to use a photographic display to determine whether the witnesses he planned to call would be able to make in-court identifications. Shortly before the trial, an FBI agent and the prosecutor showed five color photographs to the four witnesses who previously had tentatively identified the black-and-white photograph of Ash. Three of the witnesses selected the picture of Ash, but one was unable to make any selection. None of the witnesses selected the picture of Bailey which was in the group. At trial, the three witnesses who had been inside the bank identified Ash as the gunman, but they were unwilling to state that they were positive of their identifications. The fourth witness, who had been in a car outside the bank, made positive in-court identifications of both Ash and Bailey. The color photographs were admitted into evidence. The jury convicted Ash on all counts. It was unable to reach a verdict on the charges against Bailey, and his motion for acquittal was granted. Ash received concurrent sentences on the several counts, the two longest being 80 months to 12 years. The United States Court of Appeals for the District of Columbia Circuit, sitting en banc, reversed Ash's conviction by a 5-to-4 vote. The majority held that Ash's right to counsel was violated when his attorney was not given the opportunity to be present at the photographic displays conducted in May 1968 before the trial. Dissenting opinions joined by four judges disagreed with the decision that the photographic identification was a critical stage requiring counsel. The Supreme Court granted certiorari to resolve the conflict with decisions of the courts of appeals of nine other circuits.

Early in the morning of June 1, 1975, three men entered a Little Rock, Arkansas, restaurant and robbed and terrorized the five employees of the restaurant. During the course of the robbery, one of the two female employees was raped once and the other was raped twice. The ensuing police investigation led to the arrests of the petitioners. On July 29, 1975, the three defendants were each charged with one count of robbery and two counts of rape. On August 5, the trial court appointed Harold Hall, a public defender, to represent all three defendants. Petitioners were then arraigned and pleaded not guilty. Two days later, their cases were set for a consolidated trial to commence September 4. On August 13, Hall moved the court to appoint separate counsel for each petitioner because the defendants had stated to him that there is a possibility of a conflict of interest in each of their cases. After conducting a hearing on this motion and on petitioners' motions for a severance, the court declined to appoint separate counsel. Before trial, the same judge who later presided at petitioners' trial conducted a Jackson v. Denno hearing to determine the admissibility of a confession purportedly made by petitioner Campbell to two police officers at the time of his arrest. The essence of the confession was that Campbell had entered the restaurant with his codefendants and had remained, armed with a rifle, one flight of stairs above the site of the robbery and rapes, but had not taken part in the rapes. The trial judge ruled the confession admissible, but ordered deletion of the references to Campbell's codefendants. On September 4, before the jury was empaneled, Hall renewed the motion for appointment of separate counsel on the grounds that one or two of the defendants may testify and, if they do, then he would not be able to cross-examine them because he had received confidential information from them. The court responded that it did not know why he would not and again denied the motion. The prosecution then proceeded to present its case. On the second day of trial, after the prosecution had rested its case, Hall advised the court that, against his recommendation, all three defendants had decided to testify. Hall stated he was in a position where he was more or less muzzled as to any cross-examination. The court permitted each defendant to testify with direct examination by Hall but no cross-examination of his own clients. Holloway, Welch, and Campbell each gave alibi testimony denying involvement. The jury rejected the versions of events presented by the three defendants and the alibi witness, and returned guilty verdicts on all counts. On appeal to the Arkansas Supreme Court, petitioners raised the claim that their representation by a single appointed attorney, over their objection, violated federal constitutional guarantees of effective assistance of counsel, and the court affirmed.

In 2007, two teenage sisters were sexually assaulted in the bathroom of a Colorado horse-racing facility. The girls identified the assailant as a racetrack employee, and police arrested Miguel Angel Peña-Rodriguez. Each girl separately identified him as the man who assaulted her. State prosecutors charged Peña-Rodriguez with harassment, unlawful sexual contact, and attempted sexual assault on a child. Before the jury was empaneled, members of the venire received a written questionnaire asking if anything would make it difficult to be a fair juror. The court and defense counsel repeatedly asked prospective jurors whether they could be fair and impartial. None of the empaneled jurors expressed reservations based on racial bias. After a three-day trial, the jury convicted Peña-Rodriguez of unlawful sexual contact and harassment but failed to reach a verdict on the attempted sexual assault charge. When the jury was discharged, the court gave the mandated instruction that whether jurors discussed the case was their own decision. Following discharge, two jurors remained in the jury room to speak privately with defense counsel. They reported that during deliberations another juror, identified as H.C., had expressed anti-Hispanic bias toward Peña-Rodriguez and his alibi witness. With the trial court's supervision, counsel obtained sworn affidavits from the two jurors. The affidavits stated that H.C. said Mexican men had a bravado that caused them to believe they could do whatever they wanted with women. The affidavits further stated that nine times out of ten Mexican men were guilty of being aggressive toward women and young girls. H.C. believed Peña-Rodriguez was guilty because he is Mexican and Mexican men take whatever they want. H.C. did not find the alibi witness credible because the witness was an illegal. The trial court acknowledged H.C.'s apparent bias. It denied Peña-Rodriguez's motion for a new trial on the ground that Colorado Rule of Evidence 606(b) generally prohibits a juror from testifying about statements made during deliberations in a proceeding inquiring into the validity of the verdict. A divided panel of the Colorado Court of Appeals affirmed, agreeing that the statements did not fall within an exception to the rule. The Colorado Supreme Court affirmed by a 4-3 vote. The United States Supreme Court granted certiorari to decide whether there is a constitutional exception to the no-impeachment rule for instances of racial bias.