By Jim Rix
[Editor's Note: Opening paragraphs of the review by Daniel L. Kaplan, Assistant Federal Public Defender in the District of Arizona, published in The Federal Lawyer, February 2009:
We all should have a cousin like Jim Rix. Better yet, we should have a justice system that is too reliable to convict an innocent man of murder twice. Failing that, a cousin like Jim Rix can be quite handy.“The core issue here is the admission of the bite mark evidence. Some evidence has been presented—at least a suggestion—that this Dr. Rawson is a quack, a charlatan, a guérisseur.”
Rix didn't think much of it when his mother casually said, to him, “You have a cousin on death row, and he's innocent.” But Rix was curious and wrote to his cousin, Ray Krone. In response Rix received Krone's facially compelling account of having been wrongly convicted and sentenced to death. Krone's case quickly turned into a sort of hobby for Jim Rix – although using the word “hobby” here is a bit like using it to describe Lance Armstrong’s cycling.]
I glanced over at Chris Plourd with a look of, “What woke up John Antieau?”
It was two weeks before Christmas 1994. Chris and I were seated in the front row facing the Arizona Supreme Court to hear the oral arguments for and against the appeal of Ray Krone.
I had had just one conversation with Ray’s appellate attorney, John Antieau. After several attempts, my phone call had, at last, been returned. I introduced myself as his client’s cousin who had taken an interest in his case. I attempted to update him on what had been learned from Dr. Campbell, but he abruptly interrupted, saying he wasn’t interested in new evidence.
Factual innocence is irrelevant to an appeal. His focus was on errors that occurred at trial. Nevertheless, I informed Mr. Antieau that I was interested in obtaining a copy of the videotape for Dr. Campbell to review. Since he had access to it, could he help? He responded by mentioning that he had recently viewed the tape and strongly suggested that I was wasting my time. For an appellate attorney, a relative suggesting that his client is innocent can be somewhat of a nuisance. Sensing that Antieau had placed me in that category, I left it up to Mike Pain to obtain a copy of the tape.
John Antieau had initially been impressed with the bite mark evidence presented by its proponent, Dr. Raymond Rawson. What had changed his mind now? Where had the suggestion of evidence questioning Rawson’s credibility come from? It wasn’t in the trial record.
Chris Plourd returned my glance with a wry smile, then returned his attention to the yellow note pad resting in his lap.
Plourd had not gone away quietly when Judge Hotham created a catch-22 that sealed the Krone evidence. In Brady v. Maryland the United States Supreme Court held that the suppression of material evidence favorable to the accused violates the due process clause of the Fourteenth Amendment of Constitution. Brady requires that exculpatory evidence be made available to the accused, even after conviction. In response to Hotham’s ruling that post conviction relief was premature, Plourd filed a petition for special action asking the Arizona Supreme Court to sort out the catch-22 of the Rule 32—that is, to allow Ray Krone to proceed with post conviction relief while his appeal was pending.
In the petition, Plourd detailed the Brady material—exculpatory evidence—to which he wanted access. He wanted Ray Krone’s dental model, the Styrofoam bite impressions of the other suspects, along with their transparent overlays, and all bite mark photos, so that qualified forensic odontologists other than Dr. Campbell could independently evaluate them.
Not only would it cost prohibitively to bring bite mark experts into Phoenix, it was no longer feasible. Shortly after Dr. Campbell’s visit to the evidence room, all the bite mark photos had been transferred to the state supreme court, where the appeal was pending, while the dental model, the Styrofoam bite impressions and the transparent overlays remained with the county superior court. With the bite mark evidence stored in two separate locations, it was impossible for any comparison analysis to be done on-site.
Included in the petition was Dr. Campbell’s report excluding Ray Krone as the biter and questioning the validity of Dr. Rawson’s videotape.
John Antieau was obviously familiar with the petition. He finished his opening statement with, “The question is: Does the defendant have the right to call into question the evidence presented against him?”
“Did anybody ask for a Frye hearing?” asked a justice of the supreme court.
Courts make no judgment upon the reliability of expert scientific testimony unless it is challenged. Hocus pocus is routinely allowed into courts. One such instance was a dog whose owner claimed that it would bark if it recognized a particular scent. Several months after a crime the dog took a good whiff of the victim’s clothing then stuck its nose into the suspect’s vehicle and barked. The suspect was convicted. Years later, it was determined that the dog’s bark was in response to subtle signals from its master and unrelated to olfactory sensation. (Incidentally, it was prosecutor Hotham, later to become Judge Hotham, who retained the dog.)
The mechanism for challenging scientific evidence is the Frye hearing. In the 1923 case, United States v. Frye, Frye challenged the validity of the test that purportedly indicated that he was lying. The court ruling set the standard that determines the admissibility of scientific evidence. The proponent of a new type of forensic evidence has the burden of proof to show that the techniques and procedures used are commonly accepted within the scientific community. As it turns out, the polygraph test, also known as the lie detector test, is only as good as the objectivity or subjectivity of the administrator of the test. Frye prevailed. That’s why lie detector tests are not admissible in courts today. However, they are still used as investigative tools, usually by the side benefiting from the result.
Incidentally, Ray Krone asked for but never received a polygraph test.
“No Frye hearing was held,” Antieau informed the court.
Still interested, the justice continued, “Do you have any founded reason based upon some authority that such evidence is not recognized within the scientific community as based upon presently recognized scientific principles?”
John Antieau had indeed read and absorbed the petition for special action. He used this opportunity to remind the justices facing him, “There is now before this court a petition asking this court to review the summary dismissal of the Rule 32 petition. Appended to this petition is an affidavit from a forensic dentist stating that Dr. Rawson’s methodology is not accepted within the scientific community.”
Because defense attorney Geoffrey Jones did not request a Frye hearing, the admissibility of bite mark evidence itself could not be raised as an appellate issue. However, the admissibility of the videotape was raised as an issue because Jones objected to the fact that his copy had been delivered to him just before the trial was to start. Although the validity of bite mark evidence was not an issue in itself, the court seemed very interested in it.
Other than the bite mark, the only evidence that tended to place Ray Krone at the scene of the crime was the testimony of Kate Koester that Kimberly Ancona had told her that “Ray is going to help me close [the bar].” Jones’s objection to Koester’s statement was overruled. Antieau raised the admission of this “hearsay” testimony as another issue worthy of consideration. “But for Koester’s testimony,” was his argument, “there’s nothing to show that Ray Krone was other than an occasional dart player at the bar.”
John Antieau finished with, “This is probably the most anomalous murder case in my experience. The defendant was advancing into middle age with never any problem with the law. He was a veteran gainfully employed for years and years. If in fact Ray Krone did murder Kimberly Ancona, it was the most aberrational murder I’ve ever seen. It was a hundred and eighty degrees away from the rest of his life.”
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| Art by freelance cartoonist & artist Matthew Moss, who designed the cover |
Assistant Attorney General Jon Anderson, representing the people of Arizona, began his statement by defending the state’s experts. “Dr. Piakas is the Maricopa forensic odontologist and testified that there was a match…The record will suggest, if this court reads Dr. Rawson’s qualifications, that he is indeed a very qualified expert.”
Answering the concern that Ray Krone did not have a bite mark expert testify on his behalf, Anderson informed the court, “They [the defense] did have an expert appointed for them. The trial court spent two thousand dollars paying for Dr. Etkin, an odontologist, a dentist, who for whatever reason chose not to testify. I guess the inference being that he would not have offered any helpful evidence.”
Mr. Anderson must not have been thoroughly familiar with the petition for special action, because appended to it was the affidavit of Dr. Bruce Etkin, secured by Chris Plourd. Etkin himself had stated that, although a practicing prosthodontist, he had no experience with bite mark cases nor did he have any training in forensic odontology. He did not believe he could qualify as a bite mark expert and viewed his roll as that of a “consultant.” Dr. Etkin’s and Geoffrey Jones’s wives had been friends for many years. Despite this affidavit it would be some time before the advocates against Ray Krone would cease referring to Dr. Etkin as “Krone’s expert.”
“That may be a Rule 32 problem,” noted the court. “But what about this tardy videotape? Why in the world would the state try to get into evidence the videotape that had been disclosed but two days before the trial?”
“Dr. Rawson wasn’t going to testify for ten days,” Anderson responded.
“But counsel’s in trial now. You’re asking him to—at night I guess—sit down with his expert and go over a professionally prepared videotape…and just have a few days to prepare a videotape of his own?”
Anderson countered, “All the videotape showed, except for the last few minutes, was Dr. Piakas’s videotape, photographs, the appellant’s teeth and so forth. Ninety percent of this videotape had already come in through other evidence. That’s one reason why he [Judge Hotham] did not exclude it. It was basically a rematch.”
Apparently Anderson had not had the opportunity to view the videotape. The first five minutes can be attributed to Dr. Piakas, but the remaining forty minutes were devoted to Dr. Rawson’s impressive overlay techniques and CAT scanning, a computer aided X-ray technique not previously disclosed.
Then, in a slow crotchety voice coming from the justice seated on the far left, the question and answer session regarding the videotape was interrupted. “Obviously the bite mark evidence looms very large in this case, but let me ask you. Am I correct? Didn’t I find somewhere in the briefs that on the victim’s body there were found pubic hairs that matched neither the victim nor the defendant?”
Chris Plourd again smiled.
The bite mark evidence was not the only Brady material of interest to Plourd. He also wanted access to all physical evidence, including the hair samples and the swabbed samples of bodily fluids collected at the crime scene. To justify his request, Plourd had included in the petition for special action a copy of the report prepared by Thomas Wahl of the Analytical Genetic Testing Center in Denver. Tom Wahl was a senior forensic geneticist for the AGTC. He had received from the Phoenix police department pubic hair and serologic swabs collected at the crime scene for analysis. Tom Wahl reported that none of these samples matched known samples from Ray Krone. Plourd noted that these findings were contrary to the testimony of criminologist Scott Piette. Piette had testified that Ray Krone could not be excluded as the source of amylase—which he called “spit”—swabbed from the area or the bite injury.
Plourd asked Wahl to review Piette’s testimony. Wahl called into question Piette’s overall knowledge of DNA. Amylase, for example, is not “spit” but a component of all bodily fluids. Two other highly qualified serologists reviewed Piette’s testimony. Both agreed with Tom Wahl.
In the petition, Plourd emphasized that the prosecution, either through neglect, mistake or intentional act, had ignored the exculpatory results contained in the report. Using the fact that both Ray Krone and Kimberly Ancona had blood type O, the prosecutor had elicited testimony from criminologist Scott Piette that incorrectly included Ray Krone as a source of saliva found on Kimberly Ancona. Tom Wahl’s report had stated that no DNA foreign to Kim Ancona was detected. That is, the source of the type-O antigen was Ancona’s own blood or perspiration. Using this improper and incorrect foundation, the prosecutor had argued to the jury:
[Piette] found salivary amylase on Kim Ancona’s left breast and nipple, right breast and nipple and left cheek. Saliva samples were taken from Ray Krone. They were compared to the saliva samples taken from Ancona’s body. They were type O and they were from spit. I suggest to you that Kim Ancona, also a type O, is not going to kiss her left cheek or her breasts, but Ray Krone did.
The questionable uses of the forensic data available to the prosecution were not limited to the serologic evidence. The same situation applied to the hair samples recovered from Ancona’s body. Piette had also incorrectly stated under oath that the suspect’s and victim’s hairs were similar and, therefore, Ray Krone could not be excluded as their source. Yet Wahl’s report clearly indicated that the DQ (“D-Q-Alpha”) genetic marker detected in the hair samples did not match that of Ray Krone.
Wahl’s report had not gone unnoticed by the justice on the left. Jon Anderson now found himself answering questions about pubic hairs, saliva and blood secretions before returning to the issues on appeal. Not wanting to revisit the late discovery of the videotape, Anderson turned to the “hearsay” issue.
The Sixth Amendment of the United States Constitution grants the accused the right to confront his accuser. Sometimes the accuser is understandably unavailable. The hearsay statement of a murdered victim is allowed if it is used to support the victim’s state of mind, such as what the victim intended to do.
“Here we have the victim stating not what she intends to do, but what she expects someone else [Ray Krone] to do,” a justice pointed out to Mr. Anderson.
Whether Ancona’s statement to Koester was based upon something Ray Krone said or upon something else was the issue.
“We don’t really know what Ray Krone said to Ancona,” Anderson replied, “so it’s not a statement of his intent, it’s her statement.”
“It’s sheer speculation if it’s not based upon what he said to her.”
“No, it’s not sheer speculation because it’s the victim’s statement of intent—” came Anderson’s frustrated reply before being interrupted.
“I’m expecting justice Martone in my chambers at five. Now that’s based upon what justice Martone says or it’s based upon some fond hope of some kind. That is sheer speculation.”
Objections to the admission of hearsay testimony are perhaps the most hotly debated issues in appellate courts. In the absence of other evidence prosecutors frequently need the murdered victim’s hearsay to establish that their suspect was at the scene of the crime. The Krone case was no exception. Absent the bite mark and the hearsay, there was nothing in the record to establish that Ray Krone was in the CBS Lounge the night of the murder. No eyewitnesses. No forensic evidence.
The Arizona Supreme Court has consistently ruled that hearsay cannot be used for the purpose of placing the defendant at the crime scene. However, sometimes the court lets this type of hearsay slide as “harmless error” if the other evidence presented at trial is overwhelming.
At least one justice, the one questioning Anderson, seemed concerned. “This [hearsay] wasn’t evidence to prove Ancona’s state of mind because her state of mind had some independent significance. This was evidence directly offered to prove that the defendant was there. That was a critical point in the case,” concluded chief justice Stanley Feldman.
I was very optimistic. Of the five supreme court justices, one was absent but would be provided an audiotape of the proceedings and would participate in the decision. Only two justices had spoken and both seemed favorable to Ray Krone. “We need just one more,” Plourd said, cautiously optimistic as we descended the steps into the parking lot.
Phoenix is both the capital of Arizona and the seat of Maricopa County. The supreme court, county superior courts and federal district courts are all within a few blocks of each other. On the way to Tom’s Tavern, a popular lunch spot and watering hole for this judicial community, we discussed politics. Arizona courts, like their constituents, are by and large conservative. A public servant perceived to be soft on crime can at the next election pretty much kiss his job good-bye. Chris Plourd felt that the court would not be able to agree on the hearsay issue. Defendants almost always object to hearsay, the trial court almost always overrules the objection, appellate attorneys almost always raise it as an issue, the attorney general almost always argues that it is “harmless error” and the supreme court almost always agrees. Hearsay, although technically a violation of one’s right to confront his accuser, is commonly viewed as a technicality favorable to criminals. Plourd liked the late-discovery issue.
As for the petition for special action, there is little doubt that Chris Plourd had an ulterior motive for “peppering the record,” as he put it, with the abundance of exculpatory evidence, correctly interpreted, that he had been able to assemble before Judge Hotham catch-22’d the Rule 32. The supreme court now had not only Ray Krone’s appeal to consider, but also Plourd’s petition raising serious questions as to Ray Krone’s guilt. Regardless of one’s politics, “no honest person likes to see an innocent man convicted,” Plourd observed.
Four months later, in March 1995, the Arizona Supreme Court unanimously ruled:
We hold that Rule 32.4(a), Arizona Rules of Criminal Procedure, does not preclude a defendant under sentence of death from filing a notice of post conviction relief before his direct appeal is concluded. We point out, however, that rarely will it be advantageous to do so if the only purpose is to present all issues that are ultimately routinely presented in capital cases. We do not close the door, however, on the occasional case in which an early proceeding will likely lead to early relief. We vacate the order of the trial court…
Chris Plourd was back in business.
Present at the discovery hearing that followed the ruling, I observed firsthand the Honorable Hotham dismiss the feeble objection of the prosecutor and then render the only decision he ever made favorable to Ray Krone. Plourd was given complete access to the Brady material.
[Editor’s Note: Jingle Jangle is still in print and can be ordered through Amazon. (The author’s Amazon vendor’s name is “The Book Abides.”) Autographed copies can be arranged. Let us know.]
| Copyright © 2015 by Jim Rix |
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