Clementine's discovery. This debriefing failure was contrary to his experience in other cases, where it was done routinely. See N.T. at 616. The following paragraph will explain why.
Officer Reed, who participated in that December 23, 1991 river search, wrote in his report about it (P-295) that "the dog was unable to find any evidence." Id. at 3. To the contrary, he wrote -- and testified before us on April 14 -- the rope was found by one John Forward (though Reed does record that "[a] white sweater worn by Tabitha Buck was brought to the scene."). Detective Barley testified to the same effect before us on April 7.
Putting aside the legal consequences of Reed's and Barley's palpable untruths under oath, it is only necessary in this section to note that Clementine's discovery, and how she made it, was never disclosed to Roy Shirk. Since the evidence links Buck to the article of strangulation, it could not have been more material or favorable to the defense.
Mr. Kenneff's Testimony Regarding These Brady-Giglio Violations
In his testimony before us on April 15, First Assistant District Attorney Kenneff professed ignorance of many of the cited items that were withheld from Mr. Shirk. Putting aside the fact that members of his trial team, led by Detective Savage, all knew of this information, Mr. Kenneff's testimony on this point is unworthy of belief, for a number of reasons.
First, the record shows that Mr. Kenneff was intensely aware of his Brady duties. For example, on July 7, 1992, Mr. Kenneff wrote a cryptic letter to Mr. Shirk (P-764) seeking defense counsel's correction of the prosecutor's impression that the defense would contend that "shortly after 7:15 a.m., Yunkin picked up Lambert at the wooded area" that is approximately a quarter mile removed from the Show's condominium. When he heard nothing from Mr. Shirk to negate this understanding, Mr. Shirk testified that the disclosure of Kathleen Bayan's report would be inculpatory rather than exculpatory. In other words, his July 7, 1992 letter was a set-up of Mr. Shirk to relieve Mr. Kenneff of what he knew his Brady duty to be on this very important evidence.
But of course Mr. Kenneff's testimony that this evidence was "inculpatory" is a fantasy. Since Lisa Lambert never denied being in the car and at the condominium, placing her coming out of the Show condominium neighborhood, rather than at "the wooded area" would have been confirmatory of her testimony. Further, the fact that Mrs. Bayan saw a man fitting Yunkin's description, and driving Yunkin's car, placed Yunkin toward the Show condominium, consistent with Ms. Lambert's testimony. Mrs. Bayan's description of the man pushing down the heads of the man's passengers was also confirmatory of not only Lisa Lambert's testimony, but of Yunkin's leadership of the escape enterprise.
In sum, Mrs. Bayan's testimony was in no way inculpatory but was totally exculpatory, and Mr. Kenneff knew it.
Mr. Kenneff also testified that in anticipation of trial, he had before him all of the police reports. Detective Savage, the prosecuting officer in charge, confirmed that he put all documents of any possible relevance before the Commonwealth's attorney. Mr. Kenneff's memory of what he failed to see or do coincides with his Brady-Giglio vulnerability, and so we take him at his word that, as First Assistant District Attorney, he in fact diligently reviewed all the reports that were presented to him involving the highest-profile murder he ever prosecuted.
Finally, Mr. Kenneff's testimony collided with that of Detective Savage, who specifically recalled telling Mr. Kenneff about Mrs. Bayan, and that the reason not to call her was that she was emotionally unstable.
Indeed, Mr. Kenneff's testimony before us on these Brady-related issues confirms the suspicions asserted in Ms. Lambert's amended petition regarding the most sinister of conduct by the second ranking prosecutor of Lancaster County.
* * * *
To summarize, we quote the Supreme Court in Schlup. These new facts in the evidence before us have raised sufficient doubt about Ms. Lambert's guilt "to undermine confidence in the result of the trial", since it was, from start to finish, tainted by wholesale "constitutional error," Schlup, 115 S. Ct. at 862.
By now it is clear that this is an extraordinary case. Indeed, our research has failed to find any other reported case with so many instances of grave prosecutorial misconduct.
Lisa Lambert has proved by clear and convincing evidence at least twenty-five separate instances of such misconduct. In our view, a District Justice of the Commonwealth of Pennsylvania, former Detective Savage, may have committed perjury before us and obstructed justice in 1992.
Other witnesses in the state capital murder trial, including Chief County Detective Solt, Detective Barley, Lieutenant Renee Schuler, and Officers Weaver, Reed and Bowman, fabricated and destroyed crucial evidence and likely perjured themselves in the state proceeding. At least six seemed to perjure themselves before us. Agents of the Commonwealth intimidated witnesses both in the capital murder trial as well as in this habeas corpus proceeding. The prosecutor who tried the Lambert case and sought Ms. Lambert's execution knowingly used perjured testimony and presided over dozens of Brady-Giglio violations, may have committed perjury, and unquestionably violated the Rules of Professional Conduct before our very eyes.
As noted earlier, we shall refer the matter of Assistant District Attorney Kenneff's blatantly unethical (and unconstitutional) actions to the Pennsylvania Disciplinary Board for further investigation. We shall also refer this matter to the United States Attorney for investigation of possible witness intimidation, apparent perjury by at least five witnesses in a federal proceeding, and possible violations of the federal criminal civil rights laws.
We have found that virtually all of the evidence which the Commonwealth used to convict Lisa Lambert of first degree murder was either perjured, altered, or fabricated. The Commonwealth has even attempted to perpetrate a fraud on this Court by destroying the men's extra-large black sweat pants it used to convict Lisa Lambert and substituting a much smaller pair in this proceeding, apparently in an attempt to undermine Ms. Lambert's contention that it was Yunkin who wore the black sweat pants. Such total contempt for due process of law demands serious sanctions.
By the time Hazel Show finished her dramatic disclosures the afternoon of April 16, the respondents' counsel stated, "yes, I agree relief is warranted." N.T. at 2703 (April 16, 1997). In view of this concession, it requires no further elaboration to hold that Lisa Lambert has earned not only her writ but her immediate release from any custody.
The question we must now answer is whether - having obtained a conviction for first degree murder through the use of perjured testimony, obstruction of justice, destruction and suppression of exculpatory evidence, fabrication and alteration of inculpatory evidence, and intimidation of witnesses -- and having attempted to preserve that conviction before this Court through further apparent perjury, witness tampering and indubitable violations of Fed. R. Civ. P. 11 and of the Rules of Professional Conduct -- the Commonwealth is nevertheless entitled to get another try at convicting Lisa Lambert and sending her to prison for the rest of her life with no possibility of parole. In short, the question is whether we may accept a promise from anyone on behalf of the Commonwealth that a trial will be fair "next time."
Writing for the Court almost half a century ago, Mr. Justice Frankfurter counseled that:
Regard for the requirements of the Due Process Clause inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings (resulting in a conviction) in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even towards those charged with the most heinous offenses. These standards of justice are not authoritatively formulated anywhere as though they were specifics. Due process of law is a summarized constitutional guarantee of respect for those personal immunities which, as Mr. Justice Cardozo twice wrote for the Court, are so rooted in the traditions and conscience of our people as to be ranked as fundamental, or are implicit in the concept of ordered liberty.
Rochin v. California, 342 U.S. 165, 169, 96 L. Ed. 183, 72 S. Ct. 205 (1952) (internal quotations and citations omitted) (reversing state court conviction "obtained by methods that offend the Due Process Clause"). To apply Justice Frankfurter's now-famous Rochin locution, the Commonwealth's conduct in this matter shocks our conscience. See id. at 172.
Then-Justice Rehnquist, writing for the Court twenty-one years later, predicted that "we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." United States v. Russell, 411 U.S. 423, 431-32, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973). If Lisa Lambert's is not the "situation" to which Chief Justice Rehnquist referred, then there is no prosecutorial malfeasance outrageous enough to bar a re-prosecution.
The fact is the Commonwealth rigged the proceedings in the state trial to such an extent that it was a trial in name only. In addition, the police and prosecutorial misconduct was not only outrageous, but also led directly to the conviction of a woman we have found by clear and convincing evidence to have been actually innocent of first degree murder. Cf. Bank of Nova Scotia v. United States, 487 U.S. 250, 263, 101 L. Ed. 2d 228, 108 S. Ct. 2369 (1988) (prosecutorial misconduct also requires finding of prejudice to the defendant); United States v. Bagley, 473 U.S. 667, 684, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985) (prosecutorial misconduct constitutes grounds for relief if the defendant shows that there was a reasonable probability that the misconduct affected the outcome of the trial).
We find that (1) the twenty-five constitutional violations which we have canvassed above, when coupled with (2) the misconduct we have witnessed in our own courtroom and (3) our finding that Lisa Lambert has met the "actual innocence" standard of Schlup and the AEDPA, in addition to (4) the corruption of the state trial from start to finish by police and prosecutorial misconduct, are together exactly the sort of outrageous violation of the norms of a civilized society to which Justice Frankfurter and Chief Justice Rehnquist referred. As a result, we hold that the Due Process Clause of the Fourteenth Amendment bars the Commonwealth from invoking judicial or any other proceedings against Lisa Lambert for the murder of Laurie Show.
We are fortified in this conclusion by the settled jurisprudence that we effectually sit as a court of equity. As the Supreme Court put it in Schlup:
The Court has adhered to the principle that habeas corpus is, at its core, an equitable remedy.