Free Traverse - District Court of Colorado - Colorado


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Case 1:04-cv-01072-ZLW-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-01072-ZLW-BNB JOHN E. LOPEZ, Applicant, v. CARL ZENON, and KEN SALAZAR, The Attorney General of the State of Colorado, Respondents.

APPLICANT'S TRAVERSE TO RESPONDENT'S AMENDED ANSWER

COMES NOW John E. Lopez, Applicant in the above-styled action and hereinafter referred to as "Applicant," by and through undersigned counsel, and files his Traverse to Respondent's Amended Answer. The Applicant states the following: I. Issues presented for review 1. The statements of John Lopez, given as a result of five days of interrogation and coercion by Sergeant Joe Dougherty and his Agent Deborah Lopez, were obtained in violation of Lopez's Fifth and Fourteenth Amendment Rights of the United States Constitution and are therefore involuntary and should have been suppressed. 2. The Applicant, has obtained new reliable evidence, that demonstrates his innocence and such evidence establishes more likely than not, that no reasonable juror would have found the Applicant guilty beyond a reasonable doubt. A failure to consider such evidence will result in a violation of the Applicant's

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substantive and procedural due process rights pursuant to the Fifth and Fourteenth Amendments of the United States Constitution. See generally, Schlup v. Delo, 513 U.S. 298 (1995). II. Statue of Limitations does not bar the presentation of issues in Applicant's Section 2254 Petition The Respondents admit that the Applicant's claim that his confession was involuntary is not time barred. However, the Respondents also assert that the issue of actual

innocence is a claim that is not only time barred but should be raised in the context of a state post-conviction motion prior to federal review. Here, as the Respondent's state, "the main evidence against [the Applicant] was his confession." Amended answer page 3. But for the confession, there would be no other evidence. Thus, in actuality, making an innocence claim relates back to the original issue since both issues are not separate events in time and type. Mayle v. Felix, 125 S.Ct. 2562 (2005). Here, for the reasons previously asserted, the confession was not only unreliable but the state court improperly admitted its contents given the totality of the events that occurred from the actions of Deborah Lopez during the five day interrogation. Referencing amended answer page 8. Moreover, there are extraordinary circumstances that exist in this case permitting the claim of actual innocence separate from the statute of limitations defense raised by the Respondents. Pace v. DiGuglielmo, 125 S.Ct. 1807 (2005). Here, applicant pro se, was unaware of the actual innocence claim, which by itself is an "uncontrollable circumstance" that prevented him from previously presenting it in his pro se federal habeas claim. Gibson v. Klinger, 232 F.3d 799 (10 Cir 2000). Only as a result of the private investigator's work in this case was the Applicant, through counsel, able to assert an innocence claim. See generally, 28 U.S.C. Section 2244(d)(1)(D). Contrary to the
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Respondent's assertion, the investigator did discover other evidence that separated the Applicant from the crime and but for his confession there exists that no other viable evidence. Thus, the actual innocence claim relates back to the issues timely raised as the confession was unreliable and occurred as a result of Deborah Lopez's actions. See generally, Fed.R.Civ.Procedure. 15. It is interesting to note that the Respondents admit that "Lopez's new evidence makes his claim significantly stronger than the fact that his mother was acting as a government agent when she questioned him at the police station." Amended answer page 11. Both issues presented are fundamentally tied together and are properly presented in this forum. In determining whether the confession was voluntary this Court will have to examine the totality of all facts and evaluate whether the state court's findings were incorrect. The illegal confession and the Applicant's claim of innocence are constitutionally protected claims that deserve further review. III. Arguments in Response 1. The Colorado Court of Appeals unreasonably determined that Lopez's statement was voluntary. A. It was contrary to the facts and law to find that Mrs. Lopez was acting as a private citizen and such a decision was based on an unreasonable determination of the facts. Contrary to the Respondent's assertion, the Applicant has demonstrated that the state court decision was contrary to and involved an unreasonable application of clearly established Supreme Court precedent and was based on an unreasonable determination of the facts. See generally, 28 U.S.C. Section 2254(d). Here, the court of appeals' holding was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. Section 2254(d). As the

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Respondents correctly state, Colorado v. Connelly, 479 U.S. 157 (1986) requires that there must exist government action which coerces a defendant into a confession in order to find a due process violation. A due process violation exists in this instance. Ignoring the facts, the Respondents disagree that Deborah Lopez acted as an agent for the police during all phases of the police investigation as the police clearly directed her actions during the interrogation resulting in her transformation as an agent of the state. Coolidge v. New Hampshire, 403 U.S. 443, 489 (1971). In contradiction to the Respondent's conclusion and as previously stated, the following facts support the Applicant's claim that Deborah Lopez acted as an agent for the Commerce City Police Department. 1. Following our husband's murder, the Commerce Police Department visited Deborah Lopez's home everyday for several hours a day over the course of months in an attempt to have her convince her son to come to the police station. The police also initiated telephone contact with Deborah Lopez every day following her husband's murder. 2. During these extensive meetings, the police provided detailed information regarding

the murder, crime scene evidence, and other police investigative tactics in an attempt to have Deborah Lopez convince her son that he needed to meet with the police. 3. Deborah Lopez was requested by the Commerce Police Department to seek a

confession from her son John Lopez. 4. According to Deborah Lopez, she was provided with specific information and strategy as to how she could coax her son to confess to the murder of her husband. The Police provided her with specific examples of how to obtain a confession.

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5. The Police requested that Deborah Lopez search her home for any physical evidence relating to the murder of her husband and that she should conduct these searches inside and outside of her home. 6. On one occasion, Deborah Lopez obtained a 22 caliber pistol and threatened her son in an attempt to have him talk with the police. The police were informed as to this behavior and complimented Deborah Lopez in pursuing this tactic. 7. On another occasion, Deborah Lopez pounded on the hood of the Applicant's car in a King Sooper's parking lot consistent with instructions provided by the police in an attempt to apply pressure to her son to solicit a confession. 8. Once the Applicant arrived at the Commerce City Police Department, Deborah Lopez was instructed as to specific information to provide to her son regarding the crime in an attempt to coax her son to provide a confession. 9. During the five days of interrogation, the police met with Deborah Lopez and

instructed her as to what she could do to facilitate her son's confession. Every evening she was briefed and then debriefed in the morning by the police prior to the commencement of further interrogations of the Applicant. 10. Additionally, Deborah Lopez was instructed to remain at the police station all day and provide whatever support the police needed. During breaks and lunch, Deborah Lopez was provided information and instructions in confronting her son in an attempt to assist the police in obtaining a confession. In addition, Deborah Lopez was instructed by the police to inform them as to the progress in the case. Ms. Lopez pursued a particular course of action in the police investigation following meetings held with Sgt. Dougherty. In fact, Sgt. Dougherty

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initiated and outlined specific actions that Ms. Lopez was to pursue on July 12, 1993. The police gave tacit approval of her interrogation of the Applicant. (Vol. 20, page 52 of trial transcript). Sgt. Dougherty continued to brief Ms. Lopez on all previous

interrogations. (Vol. 9, page 96; Vol . 20, page 52 of trial transcript). Sgt. Dougherty never stopped Ms Lopez from her improper interrogation. (Vol. 9, page 102 of trial transcript). Moreover Sgt. Dougherty stated to the Applicant that, "I have all the right in the world to call you a no good son of a bitch and cuss you out. And even, for you to sit there and listen to it...I'm not gonna do that...She's, she's your mother. And like she says, it's the respect she's earned and I'm gonna let her..." (Vol. 20, page 197 of trial transcript). The police knowingly acquiesced in and encouraged the direct participation of Ms. Lopez. Ms. Lopez was instructed when to enter and leave the interrogation room. (Vol. 9, page 103 of trial transcript). Ms. Lopez was instructed to return the next day. (Vol. 9, page 146). It is important to note, that it was Sgt. Dougherty who telephoned Ms. Lopez's employer to arrange for her excusal from work and to permit Ms. Lopez to continue working as an agent for the police. (Vol. 9, pages 146-147 of trial transcript). As further evidence of the closeness between Ms. Lopez and Sgt. Dougherty, the following exchange occurred. (Vol. 20, page 60 of trial transcript): Ms. Lopez: I've been workin' with Joe Dougherty all the way... Sgt. Dougherty: You know, we've, I've told you, that

we've grown close. Ms. Lopez: We have.

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*** Ms. Lopez: I mean, I want--I want to be the one to help and guide John along too. And if we're on the right track, then that's what I need to know Sgt. Dougherty: We're on the right track. (Vol. 9, page 95 of trial transcript). Both Ms. Lopez and Sgt. Dougherty continued their team approach in their interrogation of the Applicant. Both parties shared ideas as to the best way to obtain more information from the Applicant. (Vol. 20, pages 130-171 of trial transcripts). All of these facts are surprisingly missing from the Respondent's amended answer. In a minority opinion issued by the Colorado Court of Appeals, Judge Jones states the following: "Defendant's mother collaborated with the police, planning, consulting, and being physically present with them during the interrogation so as to induce [John] to give statements admitting his involvement in the offenses Under these circumstances, I

conclude that his mother's active participation in the interrogations transformed her into an agent of the State." People v. Lopez, 946 P.2d 478, 486 (Colo. App. 1997). At a minimum, Ms. Lopez was an agent of the police following the commencement of the interrogations on July 12, 1993. Deborah Lopez was invited by the police into the interrogation room during police questioning and Ms. Lopez was manipulated by Sgt. Dougherty to solicit information from the Applicant. Here, Sgt. Dougherty "knew of and acquiesced in the intrusive conduct" and Deborah Lopez was clearly assisting the police to further their needs in attempting to solve a murder. Pleasant v. Lovell, 876 F.2d 787 (10 Cir. 1989). Ms. Lopez was not simply
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attempting to bring her husband's killer to justice, but was controlled and influenced by the police in their mutual interest in solving a crime. The police manipulated Ms Lopez to further their own goals and reviewing the video tape confession as well as the transcripts demonstrates her involvement with the police. Moreover, the Respondent's assert that Ms. Lopez's threatening actions outside of the grocery store may never have been directed by the police. Amended answer page 16. However, the motivation behind such actions were promulgated by direct control of the police in having Ms. Lopez assist in brining her son to justice not for her personal interests, but for the interests of the police. Such actions must be evaluated in the totality of all facts which support Applicant's assertion that Ms. Lopez was invited, advised, and encouraged by the police to use all means necessary to pursue their interests. As the recent investigation as determined, Ms. Lopez relinquished her status as a private citizen and she believed that she was pursuing police actions on behalf of the Commerce City Police Department. The questions asked by Ms. Lopez during the interrogation were directly controlled by the police. Whether the asking of specific questions occurred is irrelevant. Ms. Lopez became one of the officers in the common plan to seek a confession from the Applicant. She became just one more tool to be used by the lead detective, Sgt. Dougherty, as the Applicant was pressured and coerced into confessing to a crime which he did not commit. Additionally, the Respondents state that the new investigative information is hearsay and that such information cannot be introduced via an evidentiary hearing but could be introduced through Rule 7 of the Rules Government Section 2254 cases. The Applicant

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has maintained throughout these proceedings that live testimony is needed in the context of an evidentiary hearing to support the arguments presented herein. The Respondents further premise their argument on the assertion, that if the court was to find that an evidentiary was required, it would not meet the requirements of Section 2254(e)(2). See Amended answer pages 18-19. However, the Respondent's premise is based on the notion that the Applicant "has failed to develop the factual basis of claim in State Court proceedings..." This premise is incorrect. Applicant has established

sufficient facts demonstrating that the state court proceedings relied on an "unreasonable determination of the facts in light of the evidence presented..." U.S.C. Section 2254(d). The Respondent's assertions to the contrary are based neither on fact nor law. Simply referencing Section 2254 in this context is insufficient in buttressing their position that an evidentiary hearing is unwarranted. Affidavits, declarations and written statements from witnesses may be used to frame the issues for the evidentiary hearing but may not be a substitute for the evidentiary hearing. Here, the Respondents believe that affidavits are a sufficient tool for the

Applicant in supporting his arguments. Respondents' suggestion is not a substitute for an evidentiary hearing and new facts have been proffered in these pleadings. In this

instance, the witnesses will be under oath and the Court can evaluate the veracity of their testimony and Respondents' counsel can conduct cross-examination as needed to test all facts presented. Additionally, the Respondents attempt to dispute the facts of this case by claiming that the "evidence in the state court proceeding contradicts the information now presented." Answer amended brief page 19. The premise that new facts have been developed based

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on a recent investigation, does not dispute the original claims of police coercion and the fact that Deborah Lopez acted as an agent for the police. The new facts developed during the recent investigation does not diminish the arguments presented. Here, the

Respondent's outline of previous testimony centers on the fact that the detectives were unaware of any of Deborah Lopez's threatening actions against the Applicant. Amended answer brief page 20. The fact that the detectives told Ms. Lopez not to "do anything stupid" is tantamount to a recognition by the officer that Ms. Lopez was indeed doing something very stupid (including threatening her son) and thus the police attempted to ignore her conduct so as not to reflect negatively upon them. Assuming arguendo, that there are no new facts and the discrepancies, if any, should be interpreted in favor of the state, the Colorado courts applied an unreasonable determination of the facts in light of the evidence as originally presented. 28 U.S.C. Section 2254(d). The obligations of this court is to continue its review of the facts, including the new ones, as proffered, and evaluate the totality of all circumstances that led to the presumption that the Applicant's confession was improper. The Applicant, in his original pro se status, has exercised due diligence and the recent investigation permitted by this Court should be evaluated in the context of a hearing. B. Lopez's statements were involuntary and coerced as well as contrary to and or an unreasonable application of Supreme Court precedent. In this case, the Applicant's capacity for self-determination during the interrogation process has been critically impaired as to render his confession involuntary based on the influence exerted by his mother and the police. Amended answer page 22. The actions of the police, by using inappropriate gruesome pictures of the Applicant's stepfather, is one of may causal connections between the government action and the involuntary

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confession. Moreover, the Respondent's reference to United States v. Astello, 241 F.3d 965 (8 Cir 2001) is misplaced. In this case, the police simply used language to coerce the defendant. Here, there were highly prejudicial and inappropriate pictures used to compel a confession. It was the combination of events including, the actions of Deborah Lopez, the gruesome pictures, the misleading information regarding Sandoval, and the promises of leniency, although misplaced, that resulted in the involuntary confession. Contrary to the Respondent's answer, it is the combination of events that led to the involuntary confession. In fact, the Respondents only cite case law applicable to one of these scenarios. Under the standards of Schneckloth v. Bustamone, 412 U.S. 218 (1973), it is the combination of all elements, without emphasizing any particular element, that determines whether a confession is voluntary. The totality of circumstances in this instance
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demonstrate that the Applicant's confession was involuntary and that focusing on any single element is misplaced. The causal connection between "the complained conduct-- the so-called promises--and his confession" is established thus resulting in a due process violation. See generally, Colorado v. Connelly, 479 U.S. 157, 167 (1986). If as the

Respondents assume the Applicant's confession was voluntary, then why did such a confession require weeks of preparation by the police in conjunction with the Applicant's mother during five days of uninterrupted interrogation? Simply stated, the totality all the factors in this case demonstrate that the confession was involuntary and based on improper police procedure. See generally, Schneckloth, 412 U.S. at 226. Contrary to the Respondent's answer, free will did not exist in this instance.

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Finally, Ms. Lopez's actions as an agent of the police created "coercive police conduct [which] included not only physical abuse or threats against a person but also subtle forms of psychological coercion." Arizona v. Fulminante, 499 U.S. 279, 280 (1991). Ms. Lopez was aware of the Applicant's psychological weaknesses that could be utilized during the interrogation thereby coercing the Applicant in giving a false confession. It is precisely the closeness between the Applicant and his mother, acting as an agent of the police that led to a confession. Assurances of leniency by Deborah Lopez also

contributed to the coercive elements that resulted in a false confession. 2. The Applicant has demonstrated actual innocence and this is a freestanding clam that warrants habeas relief. As the Respondents properly state, an actual innocence claims does permit a review of procedurally barred issues. It is also allows the Court to consider the impact of a coerced confession based on the fact that Deborah Lopez was acting as an agent for the police. Parenthetically, this Court can consider the import of the lack of evidence and a coerced confession as grounds for habeas relief. House v. Bell, 126 S.Ct. 2064 (2006) does not preclude actual innocence claims in non-capital cases, although admittedly, the case involved a capital crime in which a defendant pursued a constitutional claim based on actual innocence. The Respondent's also attempt to demonstrate that there existed no harmless error and that Kuhlmann v. Wilson, 477 U.S. 436 (1986), bars an actual innocence claim due to the confession presented in this case. First, the Applicant's innocence clam is not an attempt to separate the confession from the totality of "all of the evidence in this case..." Amended answer page 29. Instead, even considering the coerced confession, the

Applicant maintains his innocence because he is innocent and his confession occurred as

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a result of the intense pressured applied by his mother acting as an agent for the police. Second, admitting the confession into the trial record was indeed the "primary evidence which led to the convictions at issue here." Lopez, at 480. But for the confession, there is no other evidence linking the Applicant with the murder of his step-father. Thus, it is impossible to conclude beyond a reasonable doubt that the Applicant's involuntary and improper confession did not contribute to the verdict or that it was "unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record." Yates v. Evatt, 500 U.S. 391 (1991). Second guessing the jury, as the

Respondent's attempt to do, is misplaced. As the Respondents have asserted, there simply exists no other evidence linking the Applicant to the murder but for his confession and thus the harmless error argument made by the Respondents is incorrect. IV. Conclusion The Applicant requests that this Court vacate his state conviction or grant such other relief as the Applicant may be entitled to receive. In order to reach this decision, this Court must review the interrogation video tapes and transcripts prepared in this case.

DATED this 4 day of December, 2006.

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Respectfully submitted, s/Robert G. Levitt_____ Robert G. Levitt, Esq. Counsel for Applicant th 600 17 Street Suite 2800 South Denver, Colorado 80202 (303) 377-9000

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 4 day of December, 2006, I electronically filed the foregoing TRAVERSE with the Clerk of the Court using the ECF system which will send notification of such filing to the following e-mail address: [email protected] s/Robert G. Levitt Robert G. Levitt, Esq. Counsel for Applicant 600 17th Street Suite 2800 South Denver, Colorado 80202 (303) 377-9000 [email protected]
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