IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

ROBERT WILLIAM CLAYTON
   Petitioner,     v.

RON J. WARD, Warden of the Oklahoma            )      PETITION FOR A WRIT OF

State Penitentiary, and DREW EDMONDSON,       )      HABEAS CORPUS PURSUANT

Attorney General of the State of Oklahoma          )      TO 28 USC SECTION 2254 BY

                                              A PERSON IN STATE CUSTODY

                                                    Respondents.
 

PETITION FOR A WRIT OF  HABEAS CORPUS

Section II
 
 

PROCEDURAL HISTORY:

      Petitioner Robert Clayton was convicted of first degree murder on March 1, 1986,  in the district
court for Tulsa County.  Criminal judgment and sentence were entered against Mr. Clayton on March
7, 1986.  Mr. Clayton was convicted of killing Rhonda Timmons and sentenced to death.      After
timely filing his Notice of Intent to Appeal and Petition in Error, Mr. Clayton unsuccessfully appealed
his conviction and sentence. Clayton v. State, 840 P.2d 18 (Okla. Crim. App. 1993).  The Petition for
Writ of Certiorari to the United States Supreme Court was denied on March 29, 1993.  Mr. Clayton's
application for state post-conviction relief was filed August 26, 1993.  His application for relief was
denied on January 14, 1994.  In Post-Conviction proceedings, the state district court denied Mr.
Clayton's application for post-conviction relief on January 14, 1994, without entering a scheduling order
or setting time limits for a requested amendment to that petition, and without an evidentiary hearing.
Further, the application was denied without providing  the petitioner with discovery requested by motion
filed contemporaneously with that petition. (See Appen. at 1).

      Mr. Clayton timely filed notice of appeal and appealed denial of  his application for state
post-conviction relief. The Court of Criminal Appeals entered its order confirming the District Court's
denial of his application for state post-conviction relief on January 10, 1995.  Mr. Clayton then timely
filed a Petition for Certiorari to the United States Supreme Court on June 9, 1995.  On October 2,
1995, the Petition was denied.  Mr. Clayton brings this Petition for a Writ of Habeas Corpus pursuant
to 28 U.S.C. Section 2254. This Petition is filed pursuant to the court's scheduling order entered on
January 9, 1996, and modified by the court's extention entered March 1, 1996, extending the filing time
to March 5, 1996.

      Mr. Clayton is currently incarcerated at the Oklahoma State Penitentiary in McAlester, Oklahoma,
while awaiting execution of sentence.
 
 
 
 

PROPOSITIONS ONE AND TWO:  INEFFECTIVE ASSISTANCE OF COUNSEL IN FIRST
              STAGE PROCEEDINGS AND PROSECUTORIAL                               MISCONDUCT
 
 

A.  Introduction
 
 

      Mr. Clayton's trial was characterized by two overriding themes:  a theatrical presentation  by the
prosecution that was carefully calculated to mislead the jury as to the relevant facts and legal
standards applicable to Mr. Clayton's case, and the complete failure of Mr. Clayton's counsel to
provide him with any meaningful defense. Mr. Clayton's defense as presented by counsel consisted of
no opening statement to the jury; practically no relevant cross-examination of any major witness;  the
presentation of no case in chief on behalf of the defendant;  a closing statement covering a mere nine
transcript pages, and voir dire questioning apparently calculated to inform the jury that he did not want
Mr. Clayton's case.  Tellingly, a review of the trial transcript has not revealed a single instance in which
Mr. Clayton's counsel referred to any prior witness statement or other impeachment evidence outside
the record.  This is so even though a wealth of information was available that not only called into
question the guilt of Robert Clayton, but actually strongly implicated at least one, and possibly two, of
the State's primary witnesses as Rhonda Timmons' killer.

      Mr. Clayton's counsel has stated that his reason for not presenting a more powerful defense was
that he had "very little evidence to fight back with,"  and that he "wanted to maintain credibility with the
jury" for the mitigation stage of the proceedings.  (Appen. at 3-5).  This position was taken even though
Mr. Clayton's counsel informed the trial court that "in all honesty, Judge, there is not a lot left to
mitigate for Robert William Clayton . . ."  (TR at 968).

      Mr. Clayton's "trial" was conducted in an atmosphere that had already been poisoned beyond
recovery by the comments of both the defense and the prosecution on voir dire.  The defense had
effectively informed the jury that:

      1.  There were cases he really didn't want to take, but his boss made him take them. (TR at 194).

      2.  His mother didn't like him handling criminal defense cases, and that she often asked him if he
"got anybody off this week."  (TR at 459).

      3.  That "not guilty" meant that there was no "objectional [sic] reason why that person [a lawyer]
represented was found not guilty, but that he "got him off."(TR at 459-460. The impact of these
comments cannot be underestimated when taken in conjunction with the repeated questions by the
prosecution designed to convince jurors that:

      1.  The "beyond a reasonable doubt" standard meant only that they had to be "reasonably well"
convinced,  (TR at 53-54), and that it implied a "judgment about what the possibility" of something
was.(TR at 335).  The prosecution also implied to the jury that "absolutely convinced" (in the words of
the juror being questioned) was a higher standard than that required by law.  (TR at 360).

      2.  That taking into account the nature of the murder, and the extent to which the jury was
offended by that murder did not constitute prejudice or bias, but provided a       rational basis for
making a guilt determination.  (TR at 98, 221, 276-277).

      3.  That the job of the District Attorney was to "seek the truth," not to prove someone guilty.  (TR
at 414-415).

      Because the factual issues relating to the ineffectiveness of Mr. Clayton's counsel and the
misconduct of the prosecution at trial span the scope of the entire trial, the presentation of those
issues has been broken down in a manner designed to provide the Court with an understanding of the
trial that was actually held, together with an analysis of the defense that could have been presented
had Mr. Clayton's counsel exercised even a minimal effort on Mr. Clayton's behalf.

      In order to do this effectively, the testimony of each witness at trial has been broken down into
three parts:

a.  The witness' testimony at trial.

b.  The actual cross-examination of that witness by the defense.

c.  The information readily available to the defense that could have been used for cross-examination
and/or impeachment purposes.  None of the facts found in any paragraph (c) below were presented to
the jury, even though they were readily available in transcripts, police reports, witness interviews (had
they been conducted), and through simple evidentiary analysis.
 
 

These witness breakdowns are followed by a discussion of additional "evidence" that was presented or
argued to the jury by the prosecution that was simply untrue.

B.    The Prosecution's Evidence at trial, the prosecution presented the following exhibits and
testimony relating to Mr. Clayton's alleged guilt:
 
 

BILL TIMMONS

      a.  Mr. Timmons' testimony at trial (TR at 582-615):

      Mr. Timmons was Rhonda Timmons' husband.  Mr. Timmons left for his job as a delivery man at
7:30 a.m., and returned home once at 8:00.   He spoke to his wife from work by phone at
approximately 10:30, and he attempted to call her again later.  (TR at 584).  He left work to make the
ten minute drive home for lunch at 12:20 or 12:25.  Id.  Mr. Timmons went to the back door of his
apartment, where he saw two towels, a pillow, and the baby's swimming pool scattered around.  He
put his key in the lock (which Rhonda always kept locked), but discovered that the door was unlocked
and the dog's chain was stuck in the door. The dog was about four feet inside the door.(TR at 585).

      When he opened the door, Mr. Timmons "saw blood everywhere," including handprints on the
walls and footprints, when he opened the door. He walked in and followed the blood through the house
to the bathroom, where he noticed things scattered, and diluted blood in the sink and on the floor. Mr.
Timmons then went to the baby's bedroom, where he discovered his wife face down in a fetal position
in the middle of a "pond of blood."  Mrs. Timmons' bikini top was pulled up around her neck.  She was
still wearing her bikini pants.  Mr. Timmons touched his wife once on the back, and returned to the
kitchen, where checked the refrigerator to see if his gun was still there, called his father, and then the
police.  He then got his baby and left the house.

      When Timmons left the house, he kicked the pillow that was outside onto to roof of the house.
 

      At trial, Mr. Timmons identified State's exhibit 1 (a map with a plastic overlay showing objects and
blood in the house), and exhibits 2-11 and 14-26 (photos) as accurately representing the scene as he
saw it when he discovered his wife.

      b.  Cross-Examination of Mr. Timmons (TR at 615):

      NONE

      c.  Cross-Examination and other relevant material available to the defense, but not used

      The defense made no mention at trial of the fact that fewer than ten days earlier, Bill Timmons had
threatened a group of men who had whistled at his wife while she was laying out.  Timmons had taken
his gun from the top of the refrigerator, and threatened the men with the gun. (Appen. at 10).  Mr.
Timmons admitted getting his gun, but denied threatening the men.  (PH at 25).  The prosecution filed
a motion in limne with regard to this incident, alleging that taken by itself, it did not implicate Mr.
Timmons as a possible suspect. The defense conceded the motion without comment.

      While the prosecution was correct that taken by itself, the incident involving the teenagers was not
sufficient evidence to implicate Mr. Timmons, what the defense failed to point out, or even make any
effort to discover was that there was a wealth of other information calling into question Mr. Timmons'
account of what took place on the day his wife was killed:

      1.   Mr. Timmons' testified at trial that he left work at around 12:25. (TR at 584). This would have
placed him at his apartment around 12:35,  and would have put his call to 911 about ten to fifteen
minutes after he arrived.  Officer Marshall, the first to arrive on the scene arrived at 12:58.  No evidence
has ever been provided the defense as to the exact timing of the 911 call, but it is assumed that the
police would not have taken more than ten minutes responding to a murder call.  This conclusion is
further borne out by the fact that when  Timmons originally testified at preliminary hearing, he said he
left work at 12:40,  (PH at 8) and he certainly would not have testified that he arrived after the 911 call
had been made.  Mr. Timmons' testimony as to when he left work is in conflict with the statements of
at least three witnesses who saw him leave.  All three witnesses agreed that he left work no later that
12:15, (Appen. at 9) which would have placed him at his apartment by 12:25, a full twenty minutes
before the earliest possible 911 call time.  Mr. Timmons did not clock out from work that day, a fact
his manager called "very unusual."  Id.

      2.  When Timmons finally got around to calling for help, he didn't call 911 first, but instead called
his father.

      3.  Mr. Timmons testified he was going home for lunch.  However, Willie Carr, an eyewitness at
the scene, (who saw no one other than Timmons around) indicated that when Timmons pulled up to
his apartment, he got out of his truck, and left the truck door open.  Timmons also left out another
important part of his activities on the day in question.  He did not simply wait for the police outside of
the apartment with his baby.  After "discovering" his wife in the apartment, he walked out, without the
baby, and asked Henry Rodgers, who was standing near Willie Carr, if he had "observed any 'shit'"
over at his apartment.  Timmons did not inform Carr or Rodgers that his wife was injured, nor did he
ask them to get help.  He then kicked the pillow on the roof, and went back into the apartment.
(Appen. at 10).

      4.  It is not clear whether Timmons made the 911 call before or after he questioned the men
outside.

      5.  At least two knives, one a lock blade, were found in Timmons' apartment.  These were
apparently returned to Timmons without having been tested by the police. (Appen. at 18-20).

      6.  Timmons key was found in the door of the apartment.  Timmons explained at trial that he did
not notice the dog chain in the door until he opened the door.  (TR at 585).

      6.  The neighbors who were questioned indicated they didn't hear anything unusual that day.
Pointedly, there is no testimony that anyone heard Rhonda Timmons scream.  (Appen. at 10-11).

      7.  The medical examiner testified that the damage to Mrs. Timmons' head could have been
caused by any blunt object, and while a fist is a possibility, the damage to her head was severe.  Mr.
Timmons had access to, and admitted touching while he was in the apartment, a common
bludgeoning instrument - the butt of his gun.  (TR at 862).

      8.  Mr. Timmons barely touched his wife on finding her, making no attempt to revive her or see if
she was alive.  (TR at 588).
 

OFFICER DAN MARSHALL

      a.  Officer Marshall's testimony at trial (TR at 616-622):

      Officer Marshall was the first of the emergency personnel to arrive at the crime scene.  He arrived
at 12:58 p.m. and saw Mr.  Timmons, holding the baby, motioning to him. (TR at 616-617). Officer
Marshall went into the apartment, where he noticed blood stains on the kitchen counter, the kitchen
floor, and the hall.  He found Mrs. Timmons slumped in the northwest bedroom. (TR at 617).   Marshall
checked the Mrs. Timmons and found no pulse. (TR at 619). She was wearing a bikini bottom and no
top.

      Marshall ran back out to radio for help, and at that time, EMSA and Sergeant Richard Bowen
arrived.  Marshall told EMSA to take life support equipment into the apartment, saying he didn't know
how long the victim had been "in that condition." (TR at 619-620).   Marshall testified that Timmons
told him he "took his son from the baby bed, went directly to the kitchen, and called the police
department." (TR at 622).

      Officer Marshall identified the plastic overlay on State's Exhibit 1 as "pretty much" accurately
reflecting the blood in the apartment when he first went in.  (TR at 618).
 
 

      b.  Cross-examination of Officer Marshall (TR at 622-624):

      On cross-examination, the defense elicited the following testimony:

      1.  The door to the apartment was open when Marshall arrived.

      2.  Marshall didn't touch anything in the apartment, except possibly a wall.

      3.  As far as Marshall knew, only he, EMSA, and the Sergeant were in the apartment while he
was at the scene.
 
 

      c.  Cross-examination and other relevant material available to the defense, but not used

      Not a single State's witness discussed, or was asked about the impact of, the EMSA personnel
and officers on the integrity of the crime scene.  Not a single witness discussed the possibility that
part, or even all, of the "blood trail" in the apartment was caused, not in the assault on Mrs. Timmons,
but by the resuscitative efforts made by EMSA and the police.  In state post-conviction proceedings,
Don F. Cravens, an investigator with the Oklahoma County Public Defender's office, was retained to
analyze the impact of the EMSA activities on the crime scene, and to discuss the conclusions
reached by the State's "expert," Ken Ede (Mr. Ede's testimony was found by the Oklahoma Court of
Criminal Appeals to be inadmissible because of his lack of qualifications).  Mr. Cravens Affidavit
(Appen. at 27), concludes that the majority of the blood spatter found in the apartment resulted from
the CPR administered to Mrs. Timmons, and the movement of her body out of the apartment, and that
objects at the crime scene were moved prior to the time the photographs of the scene were taken. Mr.
Craven's affidavit also indicates only one point of attack, the bedroom where Mrs. Timmons was found.
 
 

JODIE McDONALD (TR at 624-634):
 
 

      a.  Jodie McDonald's testimony at trial
 
 

      Jodie McDonald was one of the EMSA employees who responded to the scene.  The EMSA
personnel arrived at 12:59 p.m. (TR at 627).  After checking Rhonda Timmons vital signs, and
determining that she was not alive, the EMSA personnel began performing emergency procedures,
including CPR and inserting a breathing tube in her trachea.  Ms. McDonald testified that the victim
had a "sucking chest wound" that bubbled every time they breathed for the victim. (TR at 628).  The
EMSA personnel initiated emergency procedures because:
 
 

[t]he police officer that was standing outside made the comment that if she died, she just died and the
husband was standing outside with the baby and we figured we at least owed it to him to try, since we
had no idea how long she had been down.

TR at 630.  Ms. McDonald identified several items in the photographs of the apartment that were left
behind by EMSA.  (TR at 631-633).
 
 

      b.  Cross-examination of Jodie McDonald

      NONE

      c.  Cross-examination and other relevant material available to the defense, but not used

      The defense could have easily bolstered the evidence of a contaminated crime scene by
confirming with Ms. McDonald the number of EMSA and other personnel in the apartment, the
equipment that was taken in, and the areas through which they moved.  In addition, no questions were
asked of EMSA concerning how Mrs. Timmons was handled and moved by them.  It is possible, and
even likely, that much of the bruising she received could have been caused by EMSA moving her, not
as a result of the attack.
 
 

OFFICER RICHARD BONDY
 
 

      a.  Officer Bondy's testimony at trial (TR at 636-641):

      Officer Bondy prepared the maps and diagrams used by the State at trial.  He based those
diagrams of the apartment and the overlay showing the "blood trail" based on unidentified "pictures,
measurements, and reports."  (TR at 637).
 
 

      b.  Cross-examination of Officer Bondy (TR at 641):

      NONE

      c.  Cross-examination and other relevant material available to the defense, but not used
 
 

      Officer Bondy failed to identify the "pictures, measurements, and reports" he used to prepare the
"blood trail" overlay.  Further, there is no evidence any measurements were ever provided the defense.
(See cross-examination of officer Marshall, at page 8, supra., and cross-examination of Ken Ede at
page 27, infra., for a discussion of how this "blood trail" overlay represented only the scene as
contaminated by EMSA, who clearly spread large quantities of blood throughout the house when they
removed Mrs. Timmons.  As a result, this overlay was completely useless to show the house as it
was found by Mr. Timmons or Officer Marshall).
 
 

HELEN SYPHURS
 
 

      a.  Helen Syphur's testimony at trial (TR at 641-646):
 
 

      Helen Syphur's testified that she lived in South Brook Apartments, near to the murder scene.  She
"knew" and had known Mr. Clayton for twenty years.  Helen Syphurs is Sherry Reinke and Tony
Hartsfield's mother.  On June 25, the day of the murder, Mr. Clayton arrived at her house between
12:00 and 12:30. (TR at 643).   Ms. Syphurs explicitly remembered he was wearing blue bib overalls
with a shirt and a pair of tennis shoes.  (TR at 643).  She did not see anything on Mr. Clayton's
overalls.  When he came in, Robert was breathing hard, and he bent over, putting both hands on his
knees.  (TR at 644).  Robert was shaking one of his hands, and said he had gotten into a fight with a
black guy and a Mexican or an Indian.  He said he thought he had killed the "son of a bitch."  (TR at
644).

      When Robert came into the house, he went to the back bedroom and used the phone.  He then
told Ms. Syphurs that Tony was not home and asked her to take him to Sherry's. (TR at 644).   Ms.
Syphurs apparently said '"no", and resumed cleaning.  Robert then went in the bathroom and took a
shower.  He came out in a towel, and asked if Ms. Syphurs had any men's clothes.  She said no. (TR
at 644).  Robert then put his old clothes in a paper bag, and used the phone again.  Ms. Syphurs
heard him say he wouldn't be back to work because a few problems had come up.  He told Ms.
Syphurs he would have to wait on Tony, and she said, no, she would take him back to her daughter's
house on 27th place off of Sheridan Road. (TR at 644-645).
 
 

      b.  Cross-examination of Helen Syphurs (TR at 646):
 
 

      On cross-examination, the defense elicited the following testimony from Helen Syphurs:

      1.  Robert told her the men he had gotten into a fight with were going to rob him. (TR at 647).

      2.  Robert was at Helen Syphurs' apartment for fifteen to twenty minutes.  (TR at 647).

      3.  Tony Hartsfield is Helen Syphur's son, and he and Robert had both come back from Texas and
were staying at Sherry Reinke's house.

      c.  Cross-examination and other relevant material available to the defense, but not used

      The police found a lock blade knife at Mrs. Syphur's house (a fact never discussed at trial) when
they searched it.  This knife was not left by Robert Clayton, and may have belonged to Tony Hartsfield,
her son.  See Police Report (Appen. at 35).
 
 

SHARON REINKE
 
 

      a.  Sharon Reinke's testimony at trial (TR at 649-661):

      Ms. Reinke (Sherry) testified that Tony Hartsfield, and Robert Clayton (also known to her as
"Robin" and "Ooger") arrived at her house the evening of June 24th (the night before Mrs. Timmons
was killed) and spent the night.  The next morning, Sherry and Tony drove Robert to Keystone Lake to
get clothes for Robert to go to work in.  The clothes were in Tony's trailer that was parked at the lake.
Robert got three specific items of clothing:

      "Bib overall and a white T-shirt and his tennis shoes."

(TR at 650).  [These are the same three specific articles of clothing Helen Syphurs said she saw
Robert wearing].  Sherry and Tony took Robert home, where he changed, and then took him to work at
South Glen Apartments.Tony and Sherry then went to a truck stop to send Tony's wife money, and
stopped and ate breakfast.  They then went back to Sherry's house, picked up Donald Reinke
(Sherry's husband) and Michael (Sherry's son) and went to Woodland Hills Mall. They got back from
the mall at about "12:30 or 1:00".  (TR at 651). Tony and Don then went to the store. Robert Clayton
showed up at the house around 1:30 with Helen Syphurs.  Robert was wearing a towel and carrying a
paper sack.  He changed clothes in the back bedroom, and then told Sherry he had been in a fight
with two guys around 71st and Lewis, close to the Pizza Hut.  He told Sherry "he had blood on his
clothes, and [Sherry] told him he should wash them because of blood stains."  (TR at 653).  Sherry
testified Robert showed her the overalls, taking them out of the paper sack, and they had blood:

      "right in front, the knees, right in here (indicating).  Thighs, right in here, and up here (indicating).

* * *

      "It was full of blood.  You could see it really good."

(TR at 654). Sherry testified that the blood was still wet.

      After Sherry told him to, Robert took the overalls and the sack to the washing machine and turned
it on.  Mr. Clayton called South Glen Apartments, and Sherry Reinke told them "one of his hands
[was] hurting and his stomach was hurting."  Clayton's hand was not injured that morning.

      Around 3:00, a detective came to the house.  Mr. Clayton came in the bedroom and said that the
police were there and he was going to run.  He went over to the open bedroom window.

      Mrs. Reinke did not originally tell Detective Bishop about the clothes in the washer, but did when
he told her the death of a woman was involved.  She was present when he removed the clothes from
the washer, and saw a sock on the floor next to the washer.  It matched a sock that was in the
washing machine.  Detective Bishop was the only one who went with her into the garage.  (TR at 660).

      In addition, it was Mrs. Reinke who found a knife (State's Exhibit 31) in the backyard that was
presented by the prosecution at trial as the alleged murder weapon.  Tony Hartsfield called her and
"told her," and she went out to the back yard and found the knife.  (TR at 661).  She pointed it out to
the detectives who were looking for it in the yard at that time.
 
 

      b.  Cross-examination of Sharon Reinke (TR at 661-667):

      On Cross-examination, the defense elicited the following:

      1.  Robert Clayton was acting a little edgy that day.  He said it was about the fight he had   been
in.  (TR at 662).

      2.  The blood on the overalls was not dripping, but was wet. (TR at 662).

      3.  Sherry suggested that Robert put the clothes in the washer twice.

      4.  The open window was 4 feet tall by 1 and 1 half feet wide.

      5.  Robert Clayton did not run, but went "downtown" with the police.

      6.  The knife was found about twenty feet from the house in six inch tall grass.  The search in
which it was found was the second search of the yard.  Sherry looked for about fifteen minutes.  (TR at
665).

      7.  Robert had had "something to cut with" when she had seen him at the lake previously. (TR at
666).

      8.  Sherry Reinke was Tony Hartsfield's sister and Helen Syphur's daughter.

      c.  Cross-examination and other relevant material available to the defense, but not used

      There is simply no rhyme or reason to the questions asked of Sherry Reinke by the defense.  If
fact it appears that by asking the leading questions about Mr. Clayton's nervousness and the fact that
Robert had something to cut with, the defense was assisting the state in clarifying its case against
him.  It is obvious that counsel was simply fishing, and had no idea of what his theory of defense was,
of what Mrs. Reinke's responses were going to be, or of what questions should have been asked.
There is simply no logical reason counsel could want to establish that Robert had "something to cut
with,"  that he was nervous, or that the blood was not dripping.  It is ironic that the one witness with
who there would be little to gain on cross in any coherent presentation is the one counsel chose to
spend the most time with.

      The one issue on which Reinke could have been cross-examined was what happened to the sack
Robert Clayton put his clothes in.  If in fact his clothes were as bloody as she testified, there should
have been blood on that sack.  At pretrial, Mrs. Reinke testified she knew Detective Bishop "took it
[the sack] outside."  (PH at 43).  Yet, there is no indication in any police report or evidence log
provided to the defense that the sack was ever delivered to the police evidence locker or tested for
blood. (See affidavit of Jeremy B. Lowrey, Appen. at 53).
 
 

DONALD REINKE

      a.  Donald Reinke's testimony at trial (TR at 668-673):

      Donald Reinke is Sherry Reinke's husband.  He testified that on the day Rhonda Timmons was
killed, he, Tony, Sherry, and Michael went to Woodland Hills Mall.  They got back from the mall at
around 12:30.  Tony and Donald then went to the grocery store. (TR at 670).  They got back from the
store at around 1:00, and Robert was at his house, wearing cut-off blue jean shorts.  At some point,
Robert mentioned he had been in a fight, and he acted as if his left hand was hurt.

      At around 3:30, two men in suits pulled up.  (TR at 671).  Mr. Reinke went outside to talk to
them.  Mr. Reinke told them he didn't think "Randy Clayton" was at his house.  He then told them that
he would go inside and get Mr. Clayton.  At that time, Robert was either in the hall or back bedroom.
Robert told Don to tell the men that he was not there, but Don told him he should go outside and talk
with them.  Robert was nervous and excited. (TR at 672).

      Robert went out to talk with the police.  Mr. Reinke was present when his house was searched
and when his yard was searched.  (TR at 672-673).

      b.  Cross-examination of Donald Reinke (TR at 673-676):

      On cross-examination, the defense elicited the following additional information:

      1.  Reinke originally lied to the officers about whether Clayton was in the house.  (TR at 673).

      2.  The grass in the back yard was two or three inches high, and no one cut it prior to the search.
(TR at 674).

      3.  Tony Hartsfield, Robert Clayton, Sherry Reinke, Michael Reinke, and Don Reinke were the
people staying in the house at that time.

      c.  Cross-examination material and other relevant material available to the defense, but not used

      Both Donald Reinke and Sherry Reinke (Smith) have indicated in recent interviews taken on behalf
of Mr. Clayton that they were not with Tony Hartsfield on the morning of June 25, 1985.  Further, both
independently recalled that Don worked that morning.  See Proposition five, New Evidence, at page
53.  Although as a practical matter, it is difficult to confirm whether Don worked or went to the store at
this late date, such would not have been the case for the defense had this issue been investigated in
1985.  If Don worked that morning, the entire testimony of the Reinke's, and particularly Tony
Hartsfield, is called into question, and the true question becomes, why did Tony Hartsfield need an
alibi?
 
 

TONY HARTSFIELD

      a.  Tony Hartsfield's testimony at trial (TR at 676-704):

      Tony Hartsfield testified that he had known Robert Clayton most of his life.  Tony Hartsfield's
mother and Robert's mother were friends.  (TR at 676).  Robert had gotten together with Tony in
Odessa, Texas about three weeks earlier, and they had gone to Houston. (TR at 678).  They spent
about two weeks in Houston, and a week in Dallas before going to Oklahoma.  Tony's wife was with
them in Texas, but went back to Alabama because they were low on money.  (TR at 678).  Robert and
Tony went to Tulsa, because Robert got his old job back working at South Glenn Apartments, and was
going to try to get Tony a job there. (TR at 679).

      They parked Tony's travel trailer at Keystone Lake, and drove his pickup to Sherry Reinke's
house.  Tony was not familiar with Tulsa at that time.  (TR at 681).  The next morning Tony, Sherry,
and Robert went to Keystone lake to get Robert some clothes from the trailer.  Robert got "some bib
overalls, a shirt - T-shirt - and a pair of socks."  (TR at 682).  The socks belonged to Tony Hartsfield.
(TR at 682).  They then returned to Sherry's house where Robert changed clothes.  Tony testified that
Robert was wearing the clothes from the lake, including the socks.        Tony and Sherry dropped
Robert off at work,  sent Tony's wife some money from the 76th Truck Stop, and went back to the
house. (TR at 684-685).  They then went to Woodland Hills Mall with Don and Michael, and arrived
back at the house around 11:30.  Don and Tony then went to Safeway.  (TR at 685).   They were gone
about forty-five minutes (they got back between 12:00 and 12:30), and when they got back, Robert
was there wearing a pair of blue shorts, and acting "nervous, scared." (TR at 687).   Robert told
Hartsfield he had gotten into a fight with two boys who tried to steal his money.  (TR at 689).
Hartsfield thought Robert said the fight occurred around the Pizza Hut.  Tony testified that Robert told
Tony (between him and Tony only) that he had cut one of the boys with a knife and hoped he hadn't
killed him.  (TR at 690).  Robert went to the bathroom once, and Tony heard the shower running, and
Robert went to the garage (where the washing machine was) once.  (TR at 691).  Robert then went
back to the bathroom for about fifteen minutes.  Robert then made a phone call to work, saying they
were going to move the camper trailer to Sherry's house.  Tony was in fact planning to move the trailer
that day.  (TR at 703).  All of these activities together took from forty-five minutes to an hour. (TR at
692).

      When the police came, Robert told everyone to say he wasn't there and got real panicky.  When
Don came back in to get him, Robert was sitting in the window sill of the back bedroom.  Don talked
him out of running away.  As Robert went by, Tony testified that he told Tony "not to let them find the
knife."  (TR at 695).  Tony said that Robert carries a three inch folding knife that he saw with Robert in
Houston.  (TR at 696).  Tony had seen Robert with the knife earlier that morning.  (TR at 696).

      Later, Detective Bishop removed some clothes from the washing machine.  These were the
clothes that Robert was wearing earlier. (TR at 697).   There was a sock on the floor that the detective
also picked up.  (TR at 697-698).  Tony saw a knife in the backyard that same day, when the police
were searching the yard, but he didn't tell them about it. (TR at 698-699).  Tony identified State's
exhibit 31 as Robert Clayton's knife.  Tony identified the socks at the washing machine as belonging
to Tony.  (TR at 702).

      Hartsfield testified that the next morning, Clayton called Tony from jail, and Tony asked him why
he "killed the girl."  Tony testified that Robert responded "I flipped out."  (TR at 703).

      b.  Cross-examination of Tony Hartsfield (TR at 704)

NONE

      c.  Cross-examination and other relevant material available to the defense, but not used.

      Tony Hartsfield was the single most devastating witness for the prosecution. His testimony about
the socks and the knife tied the only physical evidence in the case to Mr. Clayton.  The question,  of
course, is how credible the testimony of Tony Hartsfield is.  On the issue of pointing out to the jury
Tony's lack of credibility, the defense failed miserably, beyond the point of any reasonable
representation decision.  Mr. Hartsfield's testimony contradicted, in almost every significant detail, the
original recorded statement he made to the police.  (Appen. at 36-49).  In that statement, Hartsfield
told the police that:

      1.        There appeared to be nothing wrong with Clayton when Tony saw him that afternoon at
Sherry Reinke's house.  He was "sitting there, being his usual self, . . ."

      2.        Hartsfield has never seen Clayton with a pocketknife.

      3.      The only injury Clayton appeared to have was a little scratch on his knuckle.

      4.      Tony was not in the laundry room when the Police got the clothes out.

      5.      Robert did not tell Tony he had been in a fight, but that he "felt sick."

      6.        Tony told Robert that if he wasn't going back to work "we can go get my camper and move
it up her in my sister's yard.  That'll save me $8.00 a day."

      7.      Tony was not sure what socks Robert Clayton was wearing.

      8.        Tony had not seen Robert for seven or eight years.

      It is clear from these statements that Tony was simply lying on at least one of the two occasions -
either to the police, or on the witness stand.  The question then becomes, what motivation would have
prompted him to lie.  One answer to that question is simple, (although there is quite possibly a
second, and equally compelling answer) -- Tony only began to implicate Robert Clayton when
confronted with threatened prosecution for attempted murder in Texas.

      Following his initial statement Tony's wife, Tammy, was interviewed.  At the time of that interview,
she informed the police that her husband, Tony, had hit a man in the head (just as the victim here
was hit in the head) with a metal tool in the parking lot at Gilley's Bar in Houston.  (Appen. at 55-74;
See pages 71-73 ).  Interestingly, when asked why Tony did this, Tammy (in her original statement)
indicated it was because they needed money.  Bill Timmons testified that money was missing from
his wife's purse.  (PH at 20).

        When confronted with allegations  that he had hit the man (Albert Lacy), Hartsfield requested
that he be permitted to speak with his wife prior to continuing his conversation with the police.  After
he did so, he returned, and in a taped statement that has never been produced to the defense (see
Appen. at 51-53, and Proposition Three, infra.), Hartsfield told police that Robert Clayton had been the
one that attacked the man in Texas.  Hartsfield received ten year's probation for the matter in Texas
(apparently subsequently deferred), (Appen. at 74-75) and testified at trial as set forth above.  Both he
and Tammy  testified at the mitigation phase of trial that Robert Clayton hit Albert Lacy with the
crescent wrench.

      It is obvious that it was to Tony Hartsfield's benefit to lie about his involvement in Texas, and to
implicate Mr. Clayton as a violent criminal.  Rather than serving serious time in jail on a charge of
assault with a deadly weapon, his claimed more passive role in the altercation let him go free.
Further, the other primary witness against Mr. Clayton was Sherry Reinke, Tony's Sister!

      As stated above, there is also a second issue that should have been raised at trial by the defense
as an explanation for why Tony was lying -- Tony's peculiar knowledge of the circumstances
surrounding the crime.  Only Tony was able to provide the police with information they did not already
possess;  i.e. where the knife was located.  Further his explanation that he saw the knife when the
police were searching for it the first time is questionable, as Officer Huff (the Officer who searched)
testified that no one was in the yard with him when he searched it, and that he did not recall having
met Hartsfield. (TR at 770).   In addition, Hartsfield testified at trial as to the exact location of the
bloody sock in the garage, even though in his original statement to the police he informed them that he
had not gone in the garage.  Finally, only Tony testified that Robert Clayton was even wearing socks
that day, and  the socks, by his own testimony at trial, belonged to Tony.
 
 

CLAUDIA BIESEL AND JACQUELINE MATTINGLY

      a.  Biesel and Mattingly's testimony at trial (TR at 706-720):

      Biesel and Mattingly were employees of South Glenn Apartments.  They each spoke by telephone
to Clayton on the day Rhonda Timmons was killed.  Biesel indicated that Robert had just started his
job as groundskeeper for the apartments that day.  Robert called "around 12:30" and spoke to Biesel,
saying he had run into a few problems and wouldn't be back in.  (TR at 710).  She said Clayton
sounded "upset."  (TR at 712).  She referred his call to Mattingly, who talked to Clayton.  He told her
the same thing.  TR at 719.

      b.  Cross-examination of Biesel and Mattingly (TR at 712-714, 719-720):

      On cross-examination, the defense asked both Biesel and Mattingly whether they were familiar
with Clayton's voice, and they said yes.  The defense asked Biesel whether it was her job to determine
whether people were upset over the phone and she said yes.  (TR at 713).

      c.  Cross-examination material available to the defense, but not used

      Biesle originally told police that Clayton called her at exactly 12:26.  This fact is important,
because he called her from Helen Syphur's house after he had taken a shower, and had been seen by
a maintenance man at the "shop" at 11:55 (See John Thomas' testimony below).  This call was
practically Clayton's last act at Helen Syphur's house, and he had already had time to travel to Mrs.
Syphur's house from the apartment complex, make a prior call, :"been there for a little" and talked with
Mrs. Syphurs, (PH 105 at ), take a shower, and bag up his clothes.  This would have left very little
time for him to have committed the crime he was accused of, and then to travel to Helen Syphur's
house.  By Mrs. Syphur's testimony, in fact, Mr. Clayton could have arrived as early as five minutes
after he spoke to Mr. Thomas, providing no gap within which the crime could have been committed.
 
 

JONATHAN THOMAS
 
 

      a.  Mr. Thomas' testimony at trial (TR at 720-723):

      Thomas testified that in May, when Clayton previously worked at the apartment complex, he had
seen the victim sunbathing and told Thomas that he would like to meet her.  (TR at 721). Thomas told
Clayton she was married.

      Thomas saw Robert on the morning of June 25 at about "10:30", at which time Clayton wanted
him to pick up some cheeseburgers at Burger King.  Thomas saw Clayton again at the "shop" at
11:55, and told him he was going to lunch.  Clayton told Thomas he was tired and was going to sit in
the shop for a few minutes.  When Thomas returned at 12:25, the shop was locked up, and he didn't
see Clayton around.  (TR at 723).
 
 

      b.  Cross-examination of Thomas (TR at 724):

      The defense asked Thomas why he hadn't told police investigators about Clayton's comments
about the victim, and he said the police said he didn't have to talk to them, but that the DA's office
would contact him.
 
 

      c.  Cross-examination material available to the defense, but not used

      One of the more compelling exhibits admitted at trial was a photo of Robert Clayton's left hand,
showing an injury claimed to have been consistent with his having hit Rhonda Timmons.  (State's
Exhibit 50). Unfortunately for Mr. Clayton, what was not pointed out by his counsel at trial was that he
had this injury prior to the time Mrs. Timmons was assaulted.  Both Mr. Thomas and Danny Joe
Livingston informed police that at 8:00 on the morning of June 25, one and one-half hours before Bill
Timmons' last conversation with his wife, Mr. Clayton had shown them his left hand and that it was
injured and swollen.  (Appen. at 76).  Ironically, the prosecution even presented this evidence at the
mitigation phase as evidence of Clayton's participation in the assault in Texas, conveniently forgetting
that the injury had already been claimed to have been a result of the Timmons assault.
 
 

DETECTIVE VERNON WHERRY

      a.  Wherry's testimony at trial (TR at 733-75-):

      Detective Wherry responded to the scene with Detective Corporal Fred Parke.  When they arrived,
Detective Bishop and EMSA were working on giving aid to Rhonda Timmons, who was on a gurney.
(TR at 733).  After speaking with Mrs. Roper in the apartment office, Sergeant Hunt and Wherry drove
to Sherry Reinke's house.  Detective Wherry provided testimony as to the reading of the "Miranda"
rights to Clayton and his invocation of the right to counsel.  [This issue and Detective Wherry's
testimony on this issue are discussed in more detail in Propositions Six through Eight at page 54,
infra.].

      On the following day,  Wherry and Sergeant Hunt returned to the Reinke house to search  the
back yard.  During that search, Mrs. Reinke, who was also there, pointed out an open lock-blade knife
lying on the ground.  (TR at 744).  Wherry recovered the knife with a handkerchief and gave it to
Sergeant Hunt. After the knife had been fingerprinted on June 27, with negative results, it was returned
to Detective Wherry, who carried it in his pocket for the remainder of the day.  At 4:00 on the 27th, he
returned it to the lab to determine whether there was blood on it.
 
 

      b.  Cross-examination of Wherry (TR at 750-755):

      On cross-examination, Wherry testified that he had been in the garage of the Reinke's house on
June 25th while he and Hunt were there, and that he and Hunt had made a prior "cursory search" of
the premises. (TR at 751).  Wherry recalled meeting Hartsfield on the 25th.  Detective Bishop was
called ten minutes after Wherry and Hunt arrived at the Reinke's.
 
 

      c.  Cross-examination material available to the defense, but not used

      The prior discussion relating to the devastation of the crime scene by EMSA and the police could
have been further bolstered by Wherry's testimony.  More important, however, Wherry could have cast
doubt on the validity of Robert Clayton's "confession" to Fred Parke.  At the hearing held on the
admissibility of the "confession,"  Wherry testified that Mr. Clayton "seemed a little bit on the slow
side" and that a "considerable amount" of conversation with him was necessary in order for Mr.
Clayton to understand what was going on. (PH excerpt at 44).  This conclusion is born out by a
reading of the five pages of Mr. Clayton's conversations that were recorded by the police department,
in which he makes no incriminating admissions, but will clearly answer "yes sir" to practically any
question asked of him.  (Appen. at 77-81).  In that transcript, Clayton is clearly confused by a concept
as simple as his right to an attorney, but according to Fred Parke, the detective to whom Mr. Clayton
made his "confession,"  (See discussion of Fred Parke testimony at page 32, infra.) Clayton suddenly
and miraculously became completely lucid, requiring little prompting whatsoever, when alone with that
detective.  Wherry's testimony clearly would have cast doubt on Parke's.  (See also, Affidavit of Ron
Wallace (Appen. at 3) for further evaluation of Mr. Clayton's mental ability at the time).
 
 

OFFICER ROY HUNT

      a.  Officer Hunt's testimony at trial  (TR at 755-763):

      When Hunt arrived at the scene, EMSA and Detective Bishop were administering CPR to Rhonda
Timmons.  She was on a gurney located in the living room of the apartment (between the kitchen and
the bedroom in which she was found).  (TR at 756).  Hunt noted that Mrs. Timmons had been stabbed
twelve or thirteen times, and that she appeared to have been strangled.  At the time Hunt saw Mrs.
Timmons, she was not wearing any clothes, but he saw bikini bottoms at the scene.  (TR at 758).

      Hunt and Wherry went to Sherry Reinke's house and took Mr. Clayton back to the police
department.  [Detective Hunt's testimony as to Mr. Clayton's Miranda rights is discussed in
Propositions Six through Eight , infra.].  On the afternoon of the next day, Hunt and Wherry searched
the backyard of the Reinke's house, where Wherry found a folding pocket knife.  (TR at 762).

      b.  Cross-examination of Officer Hunt (TR at 763-765):

      On cross-examination, the defense elicited the following:

      1.  The knife was found the day after Mr. Clayton's arrest, and Hunt and Wherry told the Reinke's
they were looking for a knife when they arrived to search.  (TR at 764).

      2.  Hunt doesn't know who Tony Hartsfield is and doesn't recall having met him.  (TR at 765).

      3.  Hunt and Wherry "held the scene" until Bishop arrived.  (TR at 765).

      c.  Cross-examination material available to the defense, but not used

      NONE (other than previously discussed EMSA crime scene contamination).
 

OFFICER MIKE HUFF  (TR at 767-769):
 
 

      a.  Officer Huff's testimony at trial

      Huff searched the bedrooms of the Reinke house on the evening of June 25, and "10 to 15 feet out
into" the back yard.  (TR at 769).

      b.  Cross-examination of Officer Huff  (TR at 769-771):

      The defense elicited testimony that Huff told the Reinkes he was looking for a knife.  He said it
seemed as if they were expecting him.  There was one man and one woman present when he
searched, and they stayed in the living room.  Huff does not recall having met Tony Hartsfield. (TR at
770).

      c.  Cross-examination material available to the defense, but not used

      NONE
 
 

OFFICER RICHARD BISHOP

a.  Officer Bishop's testimony at trial (TR at 771-784):

      When officer Bishop arrived at the scene, the EMSA technicians were in the process of placing
Rhonda Timmons on a gurney.  Bishop administered CPR chest compression's for them as they
moved her through the kitchen door. (TR at 773).  Bishop left the scene in response to the call from
Wherry and Hunt, and went to the Reinke house, where Wherry and Hunt introduced him to the
Reinkes. (TR at 777).   He obtained a search waiver, and went to the garage with Mrs. Reinke.  He
recovered the clothes from the washing machine, (States Exhibits 30, 33, 34, 35 and 39) and a sock
from the floor that appeared to have blood on it (State's Exhibit 32).  (TR at 778). He turned the clothes
in to the property room of the Tulsa Police Station.

      Detective Bishop saw bloody footprints on the floor of the bathroom of the apartment where the
victim was found, and took a photograph of the footprint.  (TR at 780). He also saw a "spotty area"
around the sink where it appeared someone had washed their hands and had dripped blood and water.
(TR at 782).   Detective Bishop identified State's Exhibits 2, 3, 4, 5, 6, 7, 8, and 9, and 11-26 (photos
of the apartment) as accurately reflecting the area he was investigating.
 
 

b.  Cross-examination of Officer Bishop (TR at 784-786):

      Detective Bishop spoke to Tony Hartsfield in order to determine who he was and what his
association with Robert Clayton and the Reinkes was. (TR at 785).   Bishop saw no handprints at the
sink in the Timmons apartment, and was simply speculating that someone had washed his or her
hands.  (TR at 786).

c.  Cross-examination material available to the defense, but not used

      The most important question for Bishop would be what happened to Robert Clayton's sack that he
put his clothes in.
 
 

OFFICER PHILIP CAMPLIN

      a.  Officer Camplin's testimony at trial (TR at 787-793):

      Officer Camplin sprayed the Timmons apartment for fingerprints and collected blood samples from
the apartment.  He also collected a bathing suit, hair samples, blood samples, some jewelry, and
fingernails.  "I believe that is it."  (TR at 791).  He then filled out an evidence log and a field ID report
detailing that evidence. (TR at 792).
 
 

      b.  Cross-examination of Officer Camplin (TR at 793):

      Officer Camplin did not process the fingerprints himself.
 
 

      c.  Cross-examination and other material available to the defense, but not used

      In addition to the items Camplin listed as having been found at the crime scene, he found what
appears from close scrutiny of a smudged area on the evidence log to have been a "red pocket knife"
in the living room of the Timmons apartment.  This is in addition to a "folding knife and case" logged in
by Detective Bishop as having been found in the bedroom dresser.  Appen. at 20.
 
 

OFFICER ROBERT YERTON

      a.  Officer Yerton's testimony at trial (TR at 797-805):

      Officer Yerton assisted in lifting fingerprints from the Timmons apartment, and compared the prints
lifted to Mr. Clayton, Detectives Parkes, Bishop, Hunt and Camplin, his own prints, Bill Timmons
prints, and the prints of Officers Bowen and Marshall.  One print matched Detective Camplin, and one
matched Rhonda Timmons.  Of the eleven prints lifted, these were the only two that matched anyone
tested against.  Yerton also found no prints on the knife recovered from the Reinke house.  Yerton
testified that it was possible to be in a location and not leave useable fingerprints.

      b.  Cross-examination of Officer Yerton (TR at 805):

      NONE

      c.  Cross-examination and other material available to the defense, but not used

      Important here is what Officer Yerton did not do.  He did not test the fingerprints against Tony
Hartsfield, or the boys across the street with whom Bill Timmons had his altercation.  Further, no run
of the prints was made on any AFIS system, nor, apparently, were they forwarded to the FBI.
 
 

ROGER EDENS

      a.  Roger Eden's testimony at trial (TR at 806-810):

      Roger Edens is a civilian fingerprint technician with the Tulsa Police Department.  He testified that
it would be possible to wipe prints off of the knife found at the Reinke's house.

      b.  Cross-examination of Roger Eden (TR at 810):

      NONE

      c.  Cross-examination and other material available to the defense, but not used;

      The defense did not even bother to point out that Mr. Edens could not say whether prints had
actually been wiped off of the knife,  and that any testimony in that regard was purely speculative.
 
 

KENNETH EDE

      a.  Kenneth Ede's testimony at trial (TR at 811-835):

      Kenneth Ede presented three types of forensic testimony at trial:  Blood analysis, Hair analysis,
and blood spatter analysis. [His testimony on blood spatter analysis was found to be inadmissible, but
harmless error, by the Oklahoma Court of Criminal Appeals on post-conviction].  He provided a
general, but not extensive, list of his qualifications as a forensic chemist.  He then testified that:

      1.  He found blood on the knife found in the Reinke's back yard, but not in a sufficient amount even
to determine whether it was human blood.  (TR at 817).  He said it was possible to wash blood off of a
knife. (TR at 817).

      2.  He found no blood on any of the clothes recovered from the Reinke's washing machine.  (TR at
818-820).  He also testified that blood could be washed out of clothes if it had not set for a day or two.
[Apparently to the extent that no chemical trace of the blood would remain.]  (TR at 820).

      3.  He found type AB blood on the sock of Tony Hartsfield's that was lying beside the washing
machine.  (TR at 821).  Rhonda Timmons' blood type was type AB.  Robert Clayton's blood type was
O.  Ede testified that type AB blood is rare, occurring in only three to four percent of the population.
(TR at 821).

      4.  He found "two pubic hairs" on the sock.  He testified that the pubic hairs were "consistent" with
pubic hairs taken from Robert Clayton.   Ede testified that in making hair comparisons, he compared
fifteen different factors, and in defining "consistent" stated that in his experience he had "never found
two individuals with identical hair. . ."  (TR at 825).

      5.  Ede presented testimony that the blood spatters at the scene of the crime indicated three
points of attack - outside the apartment by the back door,  in front of an inside door, and possibly in
the bedroom. (TR at 827-835).   He testified that it was his opinion that the back door was open during
the assault on Mrs. Timmons.
 
 

      b.  Cross-examination of Kenneth Ede (TR at 835-839):

      On cross-examination, in explaining his direct testimony, Ede indicated that the blood spatters in
the hallway showed that Rhonda Timmons was still moving while being hit at the "second" point of
attack.   (TR at 837).  Ede also testified that it would be easier to clean a smooth surface, such as a
knife, of blood, than a rough surface.  He testified that on a hot day in June, blood would dry within a
half hour to an hour.  (TR at 837).  Ede only checked the hair samples in question against Rhonda
Timmons' hair and Robert Clayton's. (TR at 838).   He did not check the blood samples taken from the
apartment for blood type.

      c.  Cross-examination and other material available to the defense, but not used

      The "hair comparison" performed by Mr. Ede was the sole corroborating evidence of Tony
Hartsfield's claim that Robert Clayton was wearing his socks on the day in question, and as such its
importance at trial cannot be underestimated.  With regard to his evaluation of hair "evidence," Mr. Ede
was either unforgivably ignorant, or less than honest with the jury.  It has been repeatedly
demonstrated that hair comparison is simply less than reliable.  (Indeed, hair comparison analysis is
so unreliable that the United States District Court for the Eastern District of Oklahoma recently found it
to be inadmissible under the standard set forth in Daubert v. Merrill Dow Phamaceuticals,  ___ U.S.
___, 113 S.Ct. 2786 (1993).  See, Williamson v. Ward, ___ F.3d ___ (E. D. Okla. 1995) (Case Number
CIV-94-539-S).  Further, materials on this lack of reliability were readily available to the defense at the
time of trial.  In 1982, four years prior to Mr. Clayton's trial, the Law Enforcement Assistance
Administration (LEAA)  conducted a study in which controls were employed to ensure that the
analysts did not know ahead of time the persons or places from which the hairs came.  In that study,
hair analysis testing was one of the most unreliable of all tests which the LEAA utilized in law
enforcement laboratories.  In the test, laboratories were asked to identify the species from which five
different hairs originated.  On four of the five hair samples analyzed, the majority of the laboratories
were incorrect.  D. E. Imwinkelreid, Forensic Hair Analysis: The Case Against the Underemployment
of Scientific Evidence,  30 Wash. and Lee L. Rev. 41, 44 (1982).  This means that the laboratories
could not even determine the correct species from which the hair samples originated.  The anecdotal
evidence as to the reliability of hair comparison submitted by Ken Ede should not even have been
admissible to show reliability, but certainly should have been challenged when it was admitted.

      An even more obvious line of attack existed, however.  The sock was found on the floor of a house
in which Mr. Clayton had been living for a considerable period of time.  (Although he had just returned
from Texas, he had lived in the house prior to going to Texas). (See Reinke Interview, Appen. at 86).
It is highly probable that over the course of that time period, while his clothes were being washed, hair
belonging to Mr. Clayton dropped onto the floor where the sock was found.  There simply can be no
certainty whatsoever that the hairs in question came from the person who was wearing the socks.

      In addition to Mr. Ede's hair testimony, his testimony concerning the ability of Mr. Clayton to wash
blood out of his clothes is similarly suspect.  In Oklahoma v. Alfred Brian Mitchell, Case Number
CF-91-206, Joyce A. Gilchrist, a forensic chemist for the Oklahoma City Police Department, testified
as follows concerning chemical analysis of blood stains that have previously been washed out:
 
 

      The luminal is a chemical.  It's chemiluminescence spraying technique that when used in a totally
dark area surface that your object that you are spraying that if blood had been present but had been
previously washed out the object will flouresce. . .
 
 

See Transcript Excerpt - (Appen.  at 132).  Obviously Mr. Ede's confident assertions that blood can be
washed out, like so much else he testified to, are at best extreme exaggerations.
 
 

DOCTOR ROBERT HEMPHILL

      a.  Doctor Hemphill's testimony at trial  (TR at 849-887):

      Doctor Hemphill is the Deputy Chief Medical Examiner for the State of Oklahoma.  (TR at 849).
He did an external examination on Rhonda Timmons body at 9:45 p.m. on June 25, 1984, and
performed a complete autopsy the next day.  Dr. Hemphill testified that the strangulation marks on
Rhonda Timmons indicated that the object used to cause the ligature marks on her neck had been
held from behind her neck,  (TR at 858), and that her bikini top could have been the object used to
cause the marks on her neck. He indicated that in his opinion, Mrs. Timmons was alive at the time the
marks were caused.  (TR at 860).

      There were several abrasions and bruises on Mrs. Timmons' face that Dr. Hemphill testified were
"blunt injuries."  (TR at 861).  The autopsy revealed a large area of fracturing behind the nose caused
by a blow or more than one blow.  (TR at 862).  Dr. Hemphill indicated that based on damage to the
back of her head, Mrs. Timmons' head was struck by or struck against a large flat blunt object in the
back of the head, in addition to the blow from the front.  (TR at 872).  Dr. Hemphill indicated that the
injury to the front of the head could have been caused by a fist.  (TR at 874).

      Dr. Hemphill detailed twelve stab wounds to Mrs. Timmons.  (TR at 865).  The maximum depth of
the stab wounds was three inches.  (TR at  877).    Dr. Hemphill testified that the knife found in the
Reinke's yard could have caused the stab wounds.  (TR at 876).  Dr. Hemphill indicated that the cause
of death was a combination of the multiple stab wounds and blunt head injuries.  (TR at 878).

      Dr. Hemphill indicated that Mrs. Timmons had some scratches on her left hand and arm that were
"not inconsistent" with a defensive motion. (TR at 883).  He indicated they were not typical of defensive
type wounds.  Id.  Dr. Hemphill indicated that "it is likely that this person would have been
unconscious after sustaining [the] wounds to the head.  Of course, I don't know when the wounds to
the head were sustained in relation to the stabs."  (TR at 885).  He also testified that while the stab
wounds would probably not cause immediate loss of consciousness, "[t]he head injuries on the other
hand, I would expect to produce unconsciousness immediately after they were received."  (TR at
886).
 
 

      b.  Cross-examination of Doctor Hemphill (TR at 887-889):

      On cross-examination, defense counsel confirmed that the head injuries could have been caused
by someone hitting Mrs. Timmons in the face, and her falling backward and hitting her head on a
concrete floor. (TR at 987).  The defense also elicited testimony that although it was likely that Mrs.
Timmons was unconscious as a result of the blow to her face, it was possible that she remained
conscious afterward.  (TR at 889).
 
 

      c.  Cross-examination and other material available to the defense, but not used

      It seems apparent based on Dr. Hemphill's testimony, that the injury to Mrs. Timmons' head could
have been caused by a silver crescent wrench.  Perhaps more puzzling however, is the defense's
elicitation of testimony that Mrs. Timmons could possibly (no matter how unlikely) have remained
conscious after the blow.  This question did nothing for the guilt innocence stage of the trial, and
bolstered the state's evidence that the crime was heinous, atrocious, or cruel.
 
 

DETECTIVE FRED L. PARKE

      a.  Detective Parke's testimony at trial (TR at 890-903):

      Detective Parke responded to the scene shortly after 1:00 p.m.  He testified at trial that he
assisted in measuring the house and looking for and recovering evidence.  After he was finished with
his duties at the scene, he returned to the station, where he met Detective Hunt and Detective Wherry,
who had returned with Robert Clayton and Tony Hartsfield. (TR at 892). Detective Park took a
statement from Tony Hartsfield.  When he was finished with Hartsfield, he saw Mr. Silva, from the
Public Defender's office, who met with Mr. Clayton, and then, in Detective Parke's presence, advised
him not to make a statement or answer any more questions. (TR at 894).

      Detective Wherry was filling out a booking slip, using the name Randy for Mr. Clayton.  Parke
notice this, and turned and asked Mr. Clayton what his correct name was, as well as his date of birth
and social security number.  Parke testified that Detective Wherry left to get a new form to start over,
and Mr. Clayton told Parke he wanted to talk to him and get something off his chest. (TR at 896).
Parke testified he told Clayton to remember what his attorney had told him about not making more
statements.  Clayton said he wanted to go ahead and talk to Parke. (TR at 897).

      Parke testified that Mr. Clayton gave his statement in narrative form, and Parke asked "about" two
questions. (TR at 897).   Parke testified that Clayton told him that he was employed as a yard worker
at the apartment complex, and was going to the Circle K to get something to eat.  Clayton saw Mrs.
Timmons in a skimpy bathing suit, and she made suggestive remarks to him.  Parke testified that
Clayton said she wanted to have sex with him, pulled up the top of her swimsuit and pulled down the
bottoms. (TR at 898).  Clayton went into the kitchen with her, and she grabbed his "sex organ."  (TR at
898).  He barely remembered her slapping him and saying that her husband was going to blow his
head off.  She also asked him if it made any difference to him to know that her husband was on his
way home.  Parke stated that Clayton said he then blacked out, and the next thing he remembered,
he was on the floor in the bedroom of the apartment.  He then got up and went to Helen Syphur's
house.  (TR at 899).

      The "two questions" asked by Parke were where the knife was when he saw Mrs. Timmons, and
where it was when he was being interviewed by Parke.  Parke testified that Clayton told him that he
had a knife in his pocket when he went by Mrs. Timmons' house, and that now the knife was at Sherry
Reinke's house, but he didn't know where. (TR at 899).

      Parke also testified to seeing a scratch on Clayton's left knuckle, and one on his right arm that
was bleeding.  Clayton told him he had hurt his hand on the lawnmower.  Clayton indicated that he
was left-handed.  The next day his left hand was swollen badly, and Parke had it photographed
(State's Exhibit 50). (TR at 901).
 
 

      b.  Cross-examination of Detective Parke (TR at 903-910):

      On cross-examination, the defense elicited the following from Parke:

      1.  The room Parke was in with Clayton was routinely used to question people.  There was a tape
recorder on the table.  Parke did not record the statement because Clayton did not want it recorded.
(TR at 905).

      2.  Parke was paraphrasing Clayton's "confession" on direct examination.  (TR at 905-906).

      3.  Parke said Wherry came back with the booking slip, and Clayton told him he wanted to talk to
Park alone, so Wherry stayed outside.  (TR at 908).
 
 

      c.  Cross-examination and other material available to the defense, but not used

      The defense failed entirely to question Detective Parke about his remarkably improving memory.
Never before had he recalled Mr. Clayton saying that he had a knife with him when he went to Rhonda
Timmon's apartment.  Indeed, at the hearing on admissibility of the confession, Parke testified initially
in response to the question of whether Mr. Clayton ever mentioned a knife:  "No, sir, he did not."  (PH
excerpt at 63).  Even when his recollection was impermissible refreshed in that hearing (Parke did not
say he could not recall, but instead said "no"), Parke said "apparently I stand corrected."  Id.  He did
finally testify at that hearing that Clayton had left a knife somewhere at the Reinke's house.  The
comments about Mrs. Timmons' having grabbed Mr. Clayton's "sex organ" had also never been
mentioned before, and clearly were designed to lend an air of credibility to Parke's otherwise
detail-poor testimony.  Also not asked of Parke was whether there were any external recording
devices, or whether there was one way glass in this "usual" interrogation room.
 
 
 
 

C.          The Additional "Evidence" Presented to the Jury as a result of the Prosecution's
Argument and Presentation of Irrelevant, Incompetent, and/or Misleading                Evidence.
 
 

      The complete lack of effort put forth by defense counsel at Mr. Clayton's trial stands in remarkable
contrast to the overzealous performance of the prosecution.  The prosecution opened the proceedings
with statements to the jurors that informed them that they could take into account the nature of the
crime in determining guilt, (see discussion on page 2, supra.) and then told them that in essence, the
prosecution was on their side - i.e. the purpose of the District Attorney's office was to "seek the
truth."  (TR at 414-415).  Having done that, and having further implied to the jurors that if they were
"reasonably well" convinced they could convict,  (TR at 53-54), the prosecution proceeded to build its
entire case on how Rhonda Timmons' died - not who killed her.  This campaign of emotion began in
opening statements, where the prosecutor stated that Mr. Timmons "heard the baby crying and he ran
and got the baby and took the baby out of that horrible place."  (TR at 569).  During Mr. Timmons'
direct testimony, the prosecution elicited the fact that Mrs. Timmons was facing her baby when Mr.
Timmons found her, and then proceeded to have Mr. Timmons actually reenact the position.  (TR at
586-587).  He then proceeded to ask Timmons for evidence that implied that Mrs. Timmons' had died
while watching her child. (TR at 68).  Over one of the few creditable objections made by the defense,
the prosecution elicited testimony as to the blood that bubbled out of Mrs. Timmons' chest when CPR
was being administered.  (TR at 628).

      In closing argument, again over counsel's objection, the prosecutor argued that:
 
 

. . . [Mr. Timmons] followed the trail and ran back in there and found her slumped over in the baby's
room, her head turned, looking at the crib, her eyes open.

* * *
 
 

. . . I believe it is reasonable to infer, yeah, there was a couple of areas of assaults here and big one
took place right there, her last hope (indicating).  The last chance she had to keep this horrible thing
from happening in her home with her baby.
 
 

* * *

. . . I think it is a reasonable inference, ladies and gentlemen, from the evidence as we have it, that
those last moments o her life, Rhonda Kay Timmons reached up into her baby's bed, that she reached
up in there and grabbed a blanket and she clutched it to her chest.
 
 

(TR at 920, 947-950).

The Prosecution also elicited testimony that the EMSA emergency personnel began rescucitation
only because of their concern for the husband "standing outside with the baby." (TR at 76).

      In addition to the ongoing effort to stir the emotion of the jury and distract them from the actual
issue of guilt or innocence, the prosecution proceeded to present argument and evidence in such a
way as to either imply to, or directly tell the jury things that were not true.  Perhaps the best example
of this tactic is that used by the prosecution to support its argument in closing that: "The Defendant
told [Detective Parke] where the knife was and isn't it funny that that is where the knife was?"  (TR at
953).  If not a flat out misstatement of fact, this argument would be a considerable stretch, even
standing by itself.  All Parke ever testified to was that Clayton had told him the knife was somewhere
at the Reinke house he thought.  However, when taken with the other comments and questions by the
prosecution at trial, it becomes clear that what was occurring was a concerted effort by the
prosecution to convince the jury that it was Clayton, and not Hartsfield, who told the police the exact
location of the knife in the backyard.  On opening statement, the prosecution told the jury that:
 
 

      Vern Wherry is going to get on the stand and testify to his receiving some information and I
anticipate he is going to tell you that -- where he went and what he did and that he went -- I anticipate
that he is going tell [sic] you about going to the Reinkes house and seeing Robert Clayton, about all
those facts and circumstances surrounding this.
 
 

      Ladies and Gentlemen, retired Detective Roy Hunt, is going to testify - retired - I anticipate he will
testify about going out to that house, Reinke's house, with Vernon Wherry and looking for a knife.
Ladies and gentlemen, Vernon Wherry, I anticipate will testify that he looked in the backyard of that
house and they found the knife.

(TR at 575), [emphasis added].

      When Detective Wherry testified, the prosecution followed his testimony relating to Clayton's
request for an attorney with questions designed to indicate (without explanation) that the police
searched the Reinke's house with specific knowledge of what they were looking for and where.  (TR at
744).  The testimony of Officer Hunt also indicated specific knowledge of the location of the knife
received from an unidentified source.  Hunt informed the jury that when he and Wherry went to the
Reinke house on the second day, "[w]e advised them what we were there for, what we were looking for
and both of them, I believe, signed the waiver of search of their property."  (TR at 761).

      The significance of this testimony is that it implied that perhaps even though Hartsfield knew
where the knife was, Clayton did as well.  Given that Hartsfield's specialized knowledge of the location
of the knife would have been one of the prosecution's biggest problems in the event any coherent
defense had been presented, it strains credulity to believe that these questions and answers were not
carefully calculated to lead to the statement made on closing.  If this were not immediately clear, it
becomes so when another issue is looked at, that of the testimony of Detective Bishop.  In his
testimony, the detective spent three and one-half transcript pages discussing his recovery of the
clothes from the Reinke's garage.  At the end of that series of questions, the following exchange took
place:
 
 

Q.  Detective Bishop, when you were inside the apartment, did you have an opportunity to view the
floor of the bathroom?
 
 

A.  Yes, sir.
 
 

Q.  What did you observe on it?
 
 

A.  I observed what I determined as bloody footprints.

TR at 780.  The state then entered a photo of the footprints into evidence and returned to the
discussion of the clothing.

      At first glance there is nothing wrong with this series of questions, however, on closer review it
seems obvious that they were intended to convey the impression to the jury that there were bloody
footprints at the Reinke house!  There is no other logical reason for the prosecution to have asked this
series of questions in the middle of the discussion without clarification as to the location of the
"apartment."

      Finally it should be remembered that this testimony all took place in the same proceeding in
which Kenneth Ede, the State's forensic "expert," presented both his unbelievable hair comparison
testimony (See discussion at page 29, supra.), and his inadmissible blood spatter testimony.  (See,
decision in Clayton v. State, 992 P.2d 646 (1995)).

      In United States v. Young, 105 S.Ct. 1038, 1048 (1985) the Supreme Court pointed out the
dangers of this type of misdirection, dangers that are made even greater  when the misdirection comes
from someone who has informed the jury his job is to "seek the truth."  The Young court stated that
arguments of this type:
 
 

can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to
the jury; and the prosecutor's opinion carries with it the imprimatur of the Government and may induce
the jury to trust the Government's judgment rather than its own view of the evidence.  See Berger v.
United States, 295 U.S. at 88-89, 55 S.Ct. at 633.

Young at 1048;  See also Napue v. Illinois, 360 U.S. 264 (1959); Mooney v. Holohan, 294 U.S. 103
(1935); and Alcorta v. Texas, 355 U.S. 28 (1957).

      In finding on appeal that prosecutorial misconduct did not prejudice Mr. Clayton at trial, the Court
of Criminal Appeals relied primarily on a finding that Mr. Clayton's counsel had waived the vast majority
of the issues by failing to object.  Clayton v. State, 840 P.2d 18 (Okla. Crim. App. 1992)  As Mr.
Clayton has demonstrated in this petition, it actually appears that his counsel in essence waived the
whole trial. In any event however, the Oklahoma Court's ruling in Mr. Clayton's case simply cannot be
reconciled with any reasoned inquiry into the policies underlying a doctrine of prosecutorial
misconduct.  Indeed, in earlier cases,  the court recognized that prosecutorial comments like those
made here (including denigration of the "beyond a reasonable doubt" standard, prejudicial argument,
and misinformation) can work to deprive the defendant of the "fundamental right" to a fair trial.
Williams v. State, 658 P.2d 499 (Okl.Cr. 1983) [emphasis added];  See Donnelly v. DeChristoforo, 416
U.S. 637, 94 S. Ct 1868 (1974)(Holding that the Due Process Clause of Four­teenth Amendment
would be violated if prosecutorial misconduct infected the trial with unfairness).

      Mr. Clayton should be granted relief based on the misconduct of the prosecution at trial.
 
 

D.  The impact of the defense's failure to prepare for trial

      Where the Court is making an evaluation of the prejudice caused by the actions of ineffective
counsel, one factor that is extremely important is what the defense would have had to work with had
proper preparation been made.  In Mr. Clayton's case, the defense had several options, each of which,
either alone, or in conjunction with other defenses, would have had a significant potential for success:
 

TONY HARTSFIELD AS  THE MURDERER OR THE TEXAS ATTACKER
      There are at least three motivations that could have brought Tony Hartsfield to the Southglen
Apartments on the day Rhonda Timmons was killed. First, Hartsfield testified that Robert Clayton was
going to try to get him a job there.  Second, Hartsfield indicated in his initial interview with the police
that he decided later in the day to move his trailer from Keystone Lake, and it is easily conceivable
that in fact he and Robert had a prior appointment to do that.  (Indeed that was one of the reasons
Robert gave for not returning to work).  Finally, and perhaps most simply, Tony Hartsfield's mother,
who had not seen him in two years prior (according to her testimony) lived only a short distance from
the apartments.  Although there are no eyewitnesses placing Hartsfield at the scene, neither are there
any placing Robert Clayton there.

      The question then becomes for purposes of this discussion - was there enough additional evidence
that Hartsfield was the actual killer to create reasonable doubt in the minds of the jury?  The answer is
yes.  First, it was only Tony Hartsfield, and not Robert Clayton, who had special knowledge of
circumstances relating to the crime that were not in the possession of the police.  Tony Hartsfield told
the police and his sister exactly where the knife was located.  Second, it was only socks belonging to
Tony Hartsfield, not Robert Clayton, that had blood on them.  Although Tony, Sherry Reinke, and
Helen Syphurs described the clothes Robert was wearing that day in detail, only Tony indicated
Robert was wearing socks.  Third, Hartsfield testified to the exact location of the socks, even though in
his initial statement, he told police that he never went into the garage that day.  Fourth, it is now clear
that Hartsfield was the person who hit Albert Lacy in the Gilley's parking lot, much in the same way
Rhonda Timmons was hit.  Based on his wife's original statement to the police (before Tony was able
to get to her), and based on Sherry Reinke's recent interview statement that Hartsfield told her that he
thought he killed a guy in Texas and that he wanted her to "cover" for him simply bears that
conclusion out.  (Appen. at  91-92).

      Finally, even if the Reinkes are to be believed, Hartsfield was out of the house for at least 45
minutes (it is now completely unclear whether this was with Don Reinke or without) at exactly the time
it appears the murder was committed.  Of course, based on the Reinke's new statements, it appears
he may have been out of the house for a much longer period of time without them.

      Hartsfield had numerous possible reasons to lie on the stand.  First, if Mr. Clayton were identified
as the killer of Rhonda Timmons, Hartsfield knew he would be able to place the blame for the Texas
incident on Clayton as well.  The fact that he reached a plea agreement on the Texas incident of
probation that was subsequently deferred indicates that he was correct in his analysis of the
situation.  Once Hartsfield implicated Clayton, the Tulsa police lost interest in Hartsfield except as a
witness.  Second, there is the very real possibility that Hartsfield was protecting himself from
prosecution as Rhonda Timmons' killer.  As far as motives for the killing are concerned, Hartsfield had
two possible ones.  He had no money (a fact repeated by Sherry Reinke in her recent interview).  This
was the same reason given by Tammy Hartsfield as the motive for the robbery in Texas.  And of
course, sex is always a possible motivation.
 
 

BILL TIMMONS AS THE KILLER

      As with Tony Hartsfield, there are facts relating to Bill Timmons on the day in question that are
simply difficult to explain.  Perhaps the two most glaring facts are the discrepancies in the times given
for when he left work, and his conversation with the boys across the street from the house.  If in fact
Mr. Timmons left work when three witnesses placed him leaving work; i.e. prior to 12:15, there is
simply no logical explanation for his delay in calling 911.  Further Timmons did not tell anyone his wife
had been killed until after talking with the boys across the street, and contrary to his testimony at trial,
those boys indicated that he went back into the house after he talked with them.

      There are other equally compelling unanswered questions about Timmons' actions that day - Why
did he leave his truck door open if he was in fact going to lunch, and was not instead rushing to find a
body that he well knew was already there.  Was the dog chain story the truth, or simply an
explanation crafted to explain a key left in a lock in the heat of the moment.

      Timmons is the only person actually placed at the scene by any eyewitness.  He had access to
possible murder weapons (the police found two knives in his house, as well as the gun), and he was
very careful to point out that he had in fact touched the gun that day.  Further, no physical evidence
was located at the scene that indicated that anyone other than Timmons had ever been there.

      With regard to possible motivations, Timmons has all of the earmarks of a very jealous man.
Within ten days prior to his wife's death, Timmons had threatened neighbors with a gun for whistling at
her.  He called her regularly, and would drop in as often as ten times a day.  It is a reasonable
inference that Timmons came home that day after he couldn't reach his wife from work, either believing
she was with another man, or simply angry that she was probably laying out again.  At this time his
truck may not have been parked in front of the apartment, because he could have parked elsewhere in
order to surreptitiously spy on his wife (this conclusion is borne out by his action in leaving the truck
door open).  Something then occurred to trigger his temper, and he killed her.  He retrieved his truck,
drove to the front of the house, and in his anxiety to "discover" the body of his wife, left his truck door
open.  He then checked with the on the scene witnesses to assure himself they had not seen
anything, returned to the house, and called his father.  He then called 911 and gave the appearance of
being an extremely distraught husband.
 
 

THE LACK OF EVIDENCE AGAINST MR. CLAYTON

      The evidence against Robert Clayton rests primarily on his "confession" to Fred Parke.  However
as is discussed in Proposition Six, infra., this "confession" was taken from a man who was obviously
disoriented, very tractable, and who would at the time have agreed to virtually anything asked.  Further,
the confession itself is nebulous, as Parke's testimony changed repeatedly over time as to what was
actually said by Clayton.  Parke easily could have been "summarizing" leading questions to which
Clayton responded affirmatively and added what he thought was necessary to implicate Clayton.

      The remainder of Clayton's actions on the day in question are easily explainable.  First, it was a
hot day in June, and Clayton was not feeling well, probably because of the heat.  The shop foreman
said he was just sitting in the shop at 11:55 looking tired.        Mr. Clayton went to Helen Syphur's
house to try to get Tony to take him home.  It was only on finding that Tony was not at Sherry's and
could not come and get him, that Clayton, who was hot and sweaty (and in that regard, how can one
be sure that overalls soaked in sweat might not appear bloody if the image were put in one's mind),
took a shower.  He then tried again to get Tony to come get him, and Helen Syphurs agreed to take
him home.  Because he wasn't feeling well, he called work and told them he wouldn't be in.  Perhaps
the most telling fact about this entire event is that although his clothes were supposedly wet with
blood at the time, and although he made phone calls and talked the Helen Syphurs, she saw no blood,
and Clayton left no blood traces anywhere at her house.

      Clayton's actions when the police arrived are also easily explainable.  Clayton had a warrant out
for his arrest in an unrelated matter, and had been in Texas when Hartsfield attacked the man at
Gilley's.  These would clearly give a basis for Mr. Clayton to be fearful of the police.

      Finally, the actions of Mr. Clayton only seem suspicious at all if Mrs. Timmons' died between
11:55 and 12:15.  There was no creditable evidence at trial that indicates this was the time of death.
Indeed, she could have died as early as 10:30 in the morning (assuming Bill Timmons is being truthful
about his telephone calls).  While Timmons testified that his wife was still "warm" when he found her,
she died on a hot day in June, and judging from the prosecutions' exhibits, (See State's Exhibit 25), it
appears that the windows of her apartment were open. Thus the whole apartment would have been
"warm."

      In the absence of any creditable evidence tying Mr. Clayton to the sock, and there really is none,
and given the circumstances under which his confession (a general, undetailed statement showing no
special knowledge of the scene) was made, had any of the other defenses discussed above been
presented, there would have been a high probability of acquittal in Mr. Clayton's case.
 
 

THE FAILURE OF THE POLICE

      The other issue completely ignored by the defense was the fact that it was practically impossible
to make any definite evidentiary statements about what happened at the Timmons' apartment because
of the Police failure to follow proper crime scene analysis procedure.  Their investigation was
haphazard at best, and so was their testimony at trial.  Indeed, it is possible that EMSA created many
of the bruises and scratches that were found on Rhonda Timmons' body, further confusing matters.
 
 

E.      Analysis of the Defense's Failure to Defend and the Applicable Legal Standard

      In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court held that trial counsel has
"a duty to bear such skill and knowledge as will render the trial a reliable adversarial testing process."
In enunciating its two pronged test (ineffectiveness of counsel, and a reasonable probability of a
different result had counsel been effective) for evaluation of ineffective assistance of counsel claims,
the court was careful to caution that "the ultimate focus of inquiry must be on the fundamental fairness
of the proceeding whose result is being challenged."  Strickland at 696.  In United States v. Cronic,
466 U.S. 648, 656-57 (1984) the court stated that the right to effective counsel is the right of the
accused to require the prosecution's case to survive the crucible of meaningful adversarial testing;  and
if the process loses its character as a confrontation between adversaries, the constitutional guarantee
is violated.

      Here it is apparent both from his affidavit, and from the trial that took place, that Mr. Clayton's
counsel, for whatever reason, determined that he could not, or would not, exert the effort necessary to
protect Mr. Clayton's rights at trial.  The sole reason he gave for not doing so - that he wanted to focus
on mitigation - would not be a valid justification for ignoring potential defenses without investigation and
analysis even if counsel had conducted a brilliant mitigation phase, something he did not do.  See
Henderson v. Sargent, 926 F.2d 706, amended, 939 F.2d 586 (8th Cir. 1991), cert. denied, 112 S.Ct.
915 (1992)(holding that where there is evidence that would permit the pursuit of a theory that someone
else committed the killing, failure to pursue that theory cannot be justified as a strategic decision).

      It could be argued by the State that the defense's failure to cross-examine on certain issues, or to
present certain theories of the case was a strategic or tactical move by the defense, taking into
account the risks and benefits to be gained in each choice, but such a contention would not reflect the
reality of what happened in Mr. Clayton's case.  The Petitioner will willingly concede that the defense
had more than one option, and could have made a tactical choice not to present certain of the theories
set out in section D, above.  What the Petitioner will not concede is that there could be any rational
tactical reason for not presenting any of those theories, and simply letting the State's evidence stand
uncontested.

      The defense made no attempt whatsoever to discredit the testimony of Tony Hartsfield, Sherry
Reinke, Fred Parkes, Bill Timmons, Ken Ede, or any of the other witnesses who offered devastating (if
left uncontroverted) testimony at trial.  Certainly, the defense could have chosen to focus its attacks
on Hartsfield and his family, (either arguing that Hartsfield was the actual killer and that he and his
family were lying to protect him, or that he was lying (or had lied) to protect himself from serious
prosecution in the Texas case)  and as has been demonstrated, there was ample evidence to support
such an attack.   If this was the defense chosen, counsel could have made a tactical determination
not to attack Bill Timmons, and thereby risk invoking the ire of the jury for attacking the victim's
husband.  Alternatively, the defense could have focused on the discrepancies in Bill Timmons' actions,
and the motive, opportunity and evidence that showed that Bill Timmons may have killed his wife.
Such a tactic, while perhaps more risky, would have permitted the defense to attack Hartsfield and his
family also, based on Hartsfield's fear of prosecution in Texas.  Further, there is simply no reason,
regardless of the defense theory, for the defense to have presented no evidence calling into question
either the validity and professionalism of the police investigation, the credibility of the state's experts,
or the truth of Detective Parke's statements relating to Clayton's confession.  Rather than make an
informed choice between viable defense theories, Mr. Clayton's counsel went to trial unprepared,
without any theory of a defense, and with little or no knowledge of the facts of the case, and offered his
client up for execution without a fight.  Had any or all of those theories been offered to the jury, there is
not only a reasonable probability that Mr. Clayton would have been acquitted, but a reasonable
probability that another person would actually have been revealed to have been Rhonda Timmons'
killer.

      In addition to his failure to adequately prepare or litigate Mr. Clayton's case, trial counsel also
failed to act to protect Mr. Clayton's rights both as they related to misconduct by the prosecution, and
as they related to many of the legal issues raised in this petition.  The pervasive lack of effort,
knowledge, and preparation did nothing to protect Robert Clayton from a determined, and often
outrageous, prosecution.

      Mr. Clayton's counsel is not insensitive to the fact that Rhonda Timmons was killed, and that her
family and friends have suffered as a result of her loss;  but it is respectfully submitted that upholding
the conviction of a man who is quite possibly innocent of the offense, without more that a shadow of a
real defense having been presented, will result - not in justice for that family - but in the equivalent of
systemic murder of Robert Clayton.  To kill Robert Clayton without providing him with the defense
mandated by the United States Constitution places the justice system in no better position than
Rhonda Timmons' killer.  His conviction must be reversed.
 
 
 
 

PROPOSITION THREE:            THE STATE'S FAILURE TO DISCLOSE
EXCULPATORY EVIDENCE

A.      Introduction:

      Counsel has conducted a thorough review of the files he received from the Oklahoma Indigent
Defense System when he was appointed as attorney for Robert Clayton.  (Appen. at 53).  Attached as
part of the appendix are also included the affidavits of Mr. Clayton's prior counsel Janet Chesley
(Appen. at 97), Johnnie O'Neal (Appen. at 99), and Ron Wallace (Appen. at 3), indicating that the files
forwarded to Mr. Clayton's current counsel are complete.  In addition, current counsel has reviewed the
copy of the prosecution file made by an investigator for OIDS in preparation for Mr. Clayton's state
post-conviction proceedings.  The following allegations are made based on these reviews.
 
 

B.    Legal Standards and Factual Discussion

      Under the holdings of the United States Supreme Court in United States v. Bagley, 473 U.S. 667,
105 S.Ct. 3375 (1985),  and Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 194 (1963), the prosecution in
a criminal case is required to disclose to the defense exculpatory material.  On September 30, 1985,
the defendant filed a comprehensive request for disclosure of exculpatory materials in this matter.  (OR
at 70-74).  In response to that motion and to their obligations under Brady, the prosecution disclosed
to the defense, inter alia, transcripts of statements made by Tony Hartsfield, Helen Syphurs, Sherry
Rienke, Donald Rienke, and a three page statement made by Robert Clayton. In addition, it appears
from the file that the prosecution made certain physical evidence available to the defense, as well as
police reports and other documents in this matter.  However, a complete review of the file (see Affidavit
of Jeremy B. Lowrey at Appen. page 53) has revealed that there are certain significant evidentiary
items that have never been provided to the defense or were provided a date following trial.   See United
States v. Kendall 766 Fed. 2nd. 1426, 1440 (10th Cir. 1985)  cert. denied 474 U.S. 1081, 106 S. Ct.
848 (1986).  (Holding that the requirement of disclosure is a requirement that the evidence be turned
over "before trial".)  In Mr. Clayton's case, there are at least five significant items that do not appear to
have been provided to the defense.  Two of these items involve statements by Bill Timmons and Tony
Hartsfield.  Two of these items involve what appears to have been an incomplete disclosure of the
physical evidence collected by the police in this case, and one of the items involves the status of Mr.
Hartsfield's sentence as it relates to the incident in Texas described on page 19, supra.  The specific
items which have not been produced are as follows.
 
 

      1)      Statement of Tony Hartsfield dated June 26, 1985:

      A police report dated June 26, 1985, indicates that in the afternoon of that day, Tony Hartsfield
provided a statement to the police in which he implicated Robert Clayton as the person who assaulted
Albert Lacy in the Gilley's parking lot in Houston with a crescent wrench. (Appen. at 50-52;  See also
report of Detective Parke, Appen. at 111-114).   Although careful search of the files including the most
recent copy of the District Attorney's file  has revealed two recorded statements by Tony Hartsfield.
Neither of these statements makes any reference to any claim by Tony Hartsfield that Robert Clayton
was the person who carried out the assault with the crescent wrench.  (Appen. at 36 , and Appen. at
101, Statements of Tony Hartsfield).  That Hartsfield's statement implicating Clayton in the Texas
incident was never produced to the defense is borne out by the fact that the defense did not even learn
that Hartsfield was going to change his testimony relating to Clayton's nervous state on the day of
Rhonda Timmons' murder until right before the originally scheduled trial date.  (See Motion for
Continuance, OR at 111-114).  There is no indication anywhere in the file that the prosecution ever
disclosed anything further to the defense relating to other statements by Hartsfield, even though it is
clear that this statement was in their possession as early as June 26, 1985,  more than six months
prior to trial and only one day after the actual occurrence.  The significance of the statement by
Hartsfield is unknown at this time.  However, given the complete turnaround in testimony made by
Hartsfield at trial as it related to his original statement to the police, it is highly unlikely that there
would be no additional information in that statement implicating Hartsfield in the Texas event, and it is
possible that there would be information actually implicating him in the death of Rhonda Timmons,
particularly taken in light of the other facts developed set forth in this petition.
 
 

      2)      Statement of Bill Timmons:

      If the failure to produce the statement of Tony Hartsfield is egregious, failure to produce the
recorded statement of Bill Timmons is even more so.  While it appears possible that a police report at
least setting out the general statements made by Hartsfield in his recorded statement may have been
provided to the defense (although this is unclear from the file), there is no indication that the defense
was ever apprised of the contents of Bill Timmons' recorded statement.  Attached as appendix page
115-121 is a police report dated June 25, 1985, in which a taped statement of Bill Timmons is
specifically referenced. (Appen. at 118).   However, based upon counsel's review of the files, no
transcript or recording of that statement has been produced to the defense to this day.  Again it is
impossible to determine the extent of the damage that was done to Mr. Clayton's case by the failure of
the prosecution to produce this statement, or for that matter, the statement of Tony Hartsfield.
However, Hartsfield and Timmons were two of the primary witnesses against Mr. Clayton, as well as
being the two people most likely to be considered suspects in the death of Rhonda Timmons.   It is
highly unlikely that there was not evidence in their statements that could have contributed significantly
to the defense of Robert Clayton.
 
 

      3)      Physical evidence not produced:

      In addition to witness statements, there is certain specific physical evidence that was never
produced to the defense. The most significant item of which counsel is currently aware is the paper
sack in which Robert Clayton carried his clothes to Sherry Reinke's house.  Sherry Rienke expressly
testified at preliminary hearing that Detective Bishop removed the sack from the garage when he got
the clothes. (PH at 43).   However, there is no further mention made of the paper sack in any police
report, any evidence log, or any other document.  The significance of this item of evidence is simply
overwhelming.  Sherry Rienke testified that Robert Clayton's clothes were extremely wet with blood.  If
that were the case, it is a virtual certainty that there would have been blood on the paper bag collected
by Detective Bishop.  If the bag were found and tested, and it was found that no blood was on the bag,
this evidence would have had a tremendous impact on the credibility of Sherry Rienke at trial, as well
as the credibility of Tony Hartsfield.  It would have contributed significantly to a defense based upon
collusion between Sherry Rienke and Tony Hartsfield to  protect Tony Hartsfield either from the
consequences of his actions in Texas, or even from the consequences of the murder of Rhonda
Timmons.  The fact that the sack disappeared in itself raises serious questions about the credibility
that can be afforded to the police investigation in this matter.  It is respectfully submitted that by
withholding, destroying, or otherwise preventing the defense from obtaining this critical piece of
evidence, the police and the prosecution severely hampered Mr. Clayton's defense.

      In addition to the sack in question, the file has revealed only a single copy of the police evidence
log.  (Appen. at 18).  That copy is numbered at the bottom, apparently as part of a numbered
sequence of documents produced by the police.  There are no missing numbers, and the copy
appears to constitute all that was provided.  A careful evaluation of the log shows that each page of
evidence was actually a long page, comprising 10 columns.  Each long page was cut in half for
copying purposes.  Thus, each page of evidence should have two pages in the log copy, and the first
page does.  However, the next two pages show only second halves of the log pages.  There is no way
to determine, based on the pages produced, what physical evidence was logged in on other than the
first page.
 
 

      4)      The status of Tony Hartsfield's "conviction":

      On direct appeal in this matter, Robert Clayton raised the issue of nondisclosure of aggravating
circumstances.  In response to that issue, the prosecutor in the case, Mr. Alan Litchfield, submitted
an Affidavit to the Court of Criminal Appeals in which he contended that he had provided the defense
with notice of specific aggravating circumstances relating to Mr. Clayton's case.  In the course of that
Affidavit, Mr. Litchfield stated that he had informed the defense that Tony Hartsfield had pled guilty and
had been sentenced with regard to the incident in Texas relating to Mr. Albert Lacy.  Nothing in the
Affidavit, however, indicates that Mr. Litchfield provided the defense with notice of what the sentence
was, or of the ultimate disposition of Tony Hartsfield's case.  The penalty actually received by Tony
Hartsfield for the incident in Texas in which, as has been demonstrated in this petition, it appears he
hit  Albert Lacy in the back of the head with a crescent wrench, was a ten year probation "deferred"
(See  Appen at 74).  There is no indication that the deferred status of Mr. Hartsfield's case was
disclosed to the defense prior to the date the parts of the prosecution file were produced to OIDS for
post-conviction evaluation.  As has been demonstrated in the preceding proposition, the status of Mr.
Hartsfield's conviction in Texas was extremely important in first-stage proceedings, as well as in
second-stage proceedings, and the fact that he had received a deferred sentence for a very serious
violent crime impacts greatly on the credibility of Hartsfield at trial, particularly given the fact that his
testimony at trial was the complete opposite of his original statement to the  police.
 
 

E.  Conclusion

      Because the defendant has never been granted discovery in this matter in post-conviction
proceedings, it is very difficult to ascertain the complete extent of the damage that was done to the
defendant's case as a result of the prosecution's failure or refusal to turn the listed items over.  It is
submitted, however, that given the number of significant items relating to important witnesses and to
Mr. Clayton's case, and particularly given the absence of the sack in which the clothes were located,
discovery in this case is a necessity.  Along those lines, the Tulsa County District Attorney's Office
indicated to the OIDS investigator that a number of the files in Mr. Clayton's case were "closed," and
that Mr. Clayton's counsel would not be permitted to review those files.  (See Appen. at 121 for the list
compiled by the investigator).  The existence of "closed" files was not disclosed to Mr. Clayton's
counsel at trial.  (Appen. at 3).  Therefore, it is requested that the court, prior to making a
determination on the defendant's Brady claims, order discovery in this case pursuant to the Motion for
Discovery that is being filed contemporaneously with this petition, and if exculpatory materials are
located, that the Court permit the petitioner to amend this petition accordingly
 

PROPOSITION FOUR: THE OKLAHOMA COURT OF CRIMINAL APPEALS'
FINDING THAT THE TESTIMONY OF KENNETH EDE                               RELATING TO BLOOD
SPATTER WAS HARMLESS

      In post-conviction proceedings, on appeal, the Oklahoma Court of Criminal Appeals determined
that the testimony Kenneth Ede gave at trial relating to blood spatter analysis was inadmissible in
evidence because Kenneth Ede did not qualify as a blood spatter expert.  (Clayton v. State, 992 P.2d
646 (Okla. Crim. App. 1995)).  However, the court also found that the error of the trial court in
permitting Ede to testify was harmless. Id.  This determination was simply incorrect.  The Affidavits
presented on post-conviction did not simply establish that Kenneth Ede was not a valid blood spatter
expert, but that in fact his representations to that effect constituted fraudulent and false testimony.
Further, as has been demonstrated in the discussion of potential cross-examination questions that
were available to the defense relating to Mr. Ede at page 19, supra, Mr. Ede's misconduct was not
limited solely to the issue of blood spatter analysis, but also included testimony relating to hair
comparison analysis.  At the very least, Mr. Ede's blood spatter testimony and his status as an expert
in blood spatter analysis attributed to the credibility of his other testimony at trial.  At worst, however,
the blood spatter testimony gave the jury a completely false picture of the manner in which the murder
occurred, and further provided important corroborating evidence for the testimony of other witnesses
relating to what they saw when they arrived at the scene, and relating to their actions at the scene.

      Of particular significance is the impact of Ede's testimony on the credibilty of the testimony of Bill
Timmons, who indicated that he followed the "blood trail" to the victim's bedroom when he arrived at
the house.  Based upon the Affidavits that were submitted in state post-conviction proceedings, it is
clear that a reasoned analysis of the blood spatter testimony by persons actually having expertise in
that area indicates that portions of that blood trail simple did not exist at the time Timmons claims to
have followed it to the back bedroom.

      In addition, even if Ede's testimony is found to be harmless with regard to first-stage proceedings,
there is simply no conceivable way that it could have been harmless (or could have constituted error
under any other applicable standard) with regard to second-stage proceedings.  Robert Clayton was
charged in sentencing with two aggravating circumstances.  (1)      That he represented a continuing
threat to society, and (2)   That the murder perpetrated was heinous, atrocious and cruel.  The
Oklahoma courts have, in implementing the heinous, atrocious and cruel aggravating circumstance
held that in order for the aggravator to exist, the murder must be preceded by torture or serious
physical abuse.  Rogers v. State, 890 P.2d 959, 977 (Okla. Crim. App. 1995);  Battenfield v. State,
816 P.2d 555, 565 (Okla. Crim. App.  1991), cert. denied, 112 S.Ct. 1491.  These cases have so held
in response to the Supreme Court's requirement that aggravating circumstances not result in a
standardless, or arbitrary and capricious imposition of the death penalty.  Maynard v. Cartwright, 108
S.Ct. 1853, 486 U.S. 386, 100 L.Ed.2d 372 (1988);  Furman v. Georgia, 408 U.S. 238 (1972).

      Further, these limitations imposed by the Oklahoma Court have the precondition that the victim
must have been conscious at the time of the torture or serious physical abuse.  Rogers, supra.  In the
absence of Ede's testimony at trial, there is absolutely no evidence whatsoever that would support a
finding that Rhonda Timmons was conscious after the first blow was struck, much less a finding
beyond a reasonable doubt. Dr. Hemphill, the medical examiner, testified that he could not arrive at
any conclusion as to the order in which the wounds to Ms. Timmons were received.  (TR at 885).  He
further testified that it was highly likely that she was completely unconscious after she received the
blunt trauma to the head.  (TR at 886).   The only testimony at trial that indicated that Ms. Timmons
was still moving after the initial attack was Kenneth Ede's testimony that the blood trail indicated that
she was still moving while being stabbed.

      The United States Supreme Court has expressed a clear reluctance to recognize convictions
based upon testimony that is known to be false.  In Giglio v. the United States, 405 U.S. 150, 153 92
S. Ct. 763, 31 L. Ed. 2D 104 ( 1972), the court held that " this court has made clear that deliberate
deception of a court and jurors by presentation of known false evidence is incompatible with
rudimentary demands of justice".  Here Kenneth Ede's false and misleading testimony was the sole
basis on which a jury finding of the aggravator in question could have rested.
 
 

PROPOSITION FIVE:    NEW EVIDENCE

A.        Introduction:

      During the week of February 26, 1996, counsel for Mr. Clayton interviewed Sherry Reinke (now
Smith) and Donald Reinke.  The interviews with Sherry Smith and Donald Rienke revealed startling
discrepancies with their testimony at trial. Significant new evidence was discovered which calls into
question all of Tony Hartsfield's testimony, as well as that of the Reinke's.  First, Sharon Smith
(previously Sherry Rienke) informed her interviewer that two or three days prior to the day that Rhonda
Timmons was killed, Tony Hartsfield told her that "he thought he killed a man one time while he was
[in Texas]" See transcript of interview, (Appen. at  83).  In addition to this statement, Donald Rienke
informed his interviewer that he did not do anything with Tony Hartsfield on the morning of the murder,
and in fact would never have gone shopping with Tony because he did not like him. See Affidavit of
David Fishman, (Appen. at 122).  Sharon Smith was similarly contradictory to her trial testimony, as
she indicated that (1) the blood on Robert Clayton's clothes was dry at the time she saw it, (2) she
actually saw Robert  Clayton hide the knife, (3) Tony Hartsfield asked her to "cover" for him (although
Sherry Rienke indicated by "cover" Mr. Hartsfield meant to take care of his family), and (4) she
believes that Donald Rienke worked on the morning of the murder.  (Appen. at 91-94).

      Donald Rienke also indicated that he thought he worked on the morning of the murder, which calls
into question both his and Sherry Reinke's testimony at trial to the effect that they were with Tony
Hartsfield that morning.  Given the statements of these two individuals, it is apparent that Tony
Hartsfield no longer has a solid alibi on the morning that Rhonda Timmons was killed.  As has been
discussed previously,  there were several reasons for Tony to have gone to the South Glen apartments
that morning, and given the statements made by Sharon Smith in February 1996, it is clear that Tony
Hartsfield not only indicated to her that he perpetrated the assault in the Gilley's parking lot in Texas,
but that he wanted his family to "cover for him".
 
 

PROPOSITIONS SIX THROUGH EIGHT:         MR. CLAYTON'S CONFESSION

A)      Introduction:

      There are three areas with regard to Mr. Clayton's "confession" to Detective Fred Parke that
clearly infringed on his fifth, sixth, eighth and fourteenth amendment rights at trial.  With regard to two
of those areas, his counsel's representation simply was nonexistent.  It is respectfully submitted that
Mr. Clayton's conviction should be reversed based on any of these three grounds, and based upon the
ineffectiveness of his counsel at trial.
 
 

B)    Mr. Clayton's counsel's failure to challenge the voluntariness of Mr. Clayton's       confession
based upon Mr. Clayton's confusion at the time of his arrest.
 
 

      In criminal cases built around the confession of a retarded person, the defendant's mental
retardation is a critical factor in determining the admissibility of the defendant's confession in at least
two related respects:

      First, the overall voluntariness of the confession, and second, the voluntariness and degree of
intelligence with which the defendant waived his legal rights prior to making the confession.  Courts
have long understood that low intelligence, when coupled with other factors, (such as stress or
intimidating circumstances) could result in coerced confessions. See Culomb v. Connecticut, 367 U.S.
568, 620 81 S. Ct. 1860, 1888, 6 L. Ed. 2D 1037; and Ward v. Texas, 316 U.S. 547, 555, 62 S. Ct.
1139, 1143, 86 L. Ed. 1663 ( 1941).   In City of Clayburn, Texas v. Clayburn Living Center, 473 U.S.
432, 105 S. Ct. 3429, 87 L. Ed. 2D 313, the Supreme Court noted that:
 
 

      First, it is undeniable and it is not argued otherwise here that those who are mentally retarded
have a reduced ability to cope with and function in the every day world.  Nor are they all cut from the
same pattern:  as the testimony in this record indicates, they range from those whose disability is not
immediately evident, to those who must be constantly cared for.  They are both different, immutably
so, in relevant respects and the state's interest in dealing with and providing for them is plainly a
legitimate one . . . .
 
 

City of Clayburn 473 U.S. at 442 105 S. Ct. at 3255 through 3256.

      Many cases have recognized the problems inherent with persons with limited intelligence waiving
legal rights. See Smith v. Zant 855 F. 2D 712, 716 (11th Cir. 1988);  Henry v. Dees 658  F. 2D 406,
407, 411 (5th Cir. 1981);  Cooper v. Griffin 455 F. 2D 1142, 1145 to 1145 (5th Cir. 1972).  In Mr.
Clayton's case there are numerous indicators that he was mentally impaired at the time of the offense
and at the time of his interrogation by the police.  First, at the preliminary hearing when evidence was
taken on the voluntariness of Mr. Clayton's confession, the defense elicited testimony from Officer
Wherry on cross-examination to the effect that Mr. Clayton "seemed a little bit on the slow side"
(Excerpt of PH at 44), and that it took a "considerable amount" of conversation with him to help him
understand what was going on. Id.  This statement is borne out by the actual transcript of Mr.
Clayton's invocation of his sixth amendment right to an attorney. (See Appen. at page 78-82).  That
transcript shows a man clearly confused by the questions being asked of him by the police, and
further a man who is willing to answer "Yes, sir" to virtually every question asked of him.  Given the
difficulty experienced by the police in explaining the simple concept of the right to counsel to Mr.
Clayton just a few minutes prior to his alleged "confession" to Detective Park seems to strain credulity
to think that once left alone with Detective Park, Mr. Clayton suddenly became lucid and
comprehended without any difficulty Detective Park's explanation of his right to counsel.

      There is additional evidence to indicate that Mr. Clayton's intelligence level was simply not such
that, in the stress situation, he would have been able to adequately understand what was happening to
him. First, the Affidavit of Mr. Ron Wallace, Mr. Clayton's counsel at the time, indicates that Mr.
Clayton was practically incapable of assisting in his defense at trial, or otherwise communicating with
counsel.  Further, the testimony of Diane Williamson in the sentencing phase of trial indicates that,
with result to psychological test results, Mr. Clayton's IQ was 71.  Dr. Williamson testified that Mr.
Clayton's full range IQ was 68.  Her conclusion was that this IQ level was within the lowest one
percentile.

      All of the foregoing evidence was available to counsel for Mr. Clayton.  However, Inexplicably, Mr.
Clayton's counsel failed to raise this issue in any manner at the trial court level. Mr. Clayton's trial
counsel was obviously aware of Mr. Clayton's low IQ scores, but he was also clearly not aware of the
potential legal significance of those scores.  Further, significant precedent existed in which a
contention could be made that Mr. Clayton was not capable under the circumstance of waiving his
Miranda rights, particularly given the limited disclosure made to him by Detective Park.  In Smith v.
Zant, 855 F.2d 712, 716 (11th Cir. 1988), psychological experts testifying on Mr. Smith's behalf
concluded that in order for Mr. Smith, a person with and IQ of 65, to understand Miranda warnings,
warnings would have to be explained to him patiently and slowly, and in a manner calculated to
compensate for his deficit of understanding. Zant, 855 F. 2d at 716 through 717.  The same result
applied in  Cooper v. Griffin, 455 F. 2d 1142 (5th Cir. 1972) .

      In this instance, Mr. Clayton's recorded statements to the police bear a striking resemblance to
the conclusion reached by the experts in Zant.  It is clear that careful explanation was required for Mr.
Clayton to understand the simple concept of his right to counsel.  It is also clear from the preliminary
hearing excerpt transcript that the sum total of Detective Park's disclosure to Mr. Clayton consisted of
"well, back up a minute. Do you remember what your attorney just got through telling  you? Told you
to keep your mouth shut, not to make any statements. I recommend that you adhere to what your
attorney tells you to do." (Excerpt PH at 60).  Although Mr. Clayton had previously been Mirandized
and had spoken with his attorney, it is simply not at all clear from the record that Mr. Clayton
understood the information that had been provided to him, either by his attorney, or by the police, or
even that he was capable of comprehending that information at that time.  The level of confusion
inherent in his decision to invoke the right to counsel does not provide any certainty that Mr. Clayton
understood any of the subsequent warnings that were given to him.

      In reviewing Mr. Clayton's claim in post-conviction, it is clear his confession should have been
suppressed based upon his inability to waive his Fifth Amendment right to remain silent. The state
District Court, without addressing the issue of ineffective assistance of counsel, determined that the
issue had been waived  because it had not been raised either at trial or on direct appeal, and "the
petitioner has failed to offer any sufficient reason for his failure to do so." Order of the District Court on
Post-Conviction at 21. The Court of Criminal Appeals confirmed that the issue of Ineffective Assistance
of Counsel had been waived, but then proceeded to deal with the issue on the merits by evaluating a
claim of ineffective assistance of appellate counsel.  In that review, the court found that Mr. Clayton's
trial counsel had actually raised the issue, basing its analysis on counsel's comments in argument
relating to a different statement made by Mr. Clayton.  Mr. Clayton's counsel did not object to the
statement in question here on the issue of waiver, he only objected to that statement's admissibility
based on the issue set forth in (C) below.

      It is respectfully submitted that, given counsel's complete inability to function on behalf of Mr.
Clayton in other phases of trial, it is not  inexplicable that he also failed to raise this issue.  Further,
given the paucity of other sustainable evidence against Mr. Clayton at trial, and the complete lack of
physical evidence other than the sock, it is submitted that, had Mr. Clayton's counsel properly
represented his client both during trial and in pretrial proceeding such as this, Mr. Clayton simply
would not have been convicted.  Based upon the Strickland standards applicable to ineffective
assistance of counsel discussed in Proposition One, supra, Mr. Clayton's counsel's performance with
regard to suppression of Mr. Clayton's confession was ineffective and highly prejudicial to Mr. Clayton,
he should be granted relief.
 
 

C)    Mr. Clayton's confession resulted from an impermissible second interrogation after       he had
invoked the right to counsel.
 
 

      In the United States v. Downing, 665 F. 2d 404, 406 (1st Cir. 1981) the court recognized that
certain "booking" questions can constitute "express questioning" of a person in custody, and are
therefore interrogation for purposes of determining whether or not a defendant has reinitiated contact
with the police.  In U.S. v. Gay 774 F. 2d 368 (10th Cir.      ), the United States Court of Appeals held
that "words or actions the police should know are reasonably likely to illicit an incriminating response"
constitute interrogation.  Gay, citing Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed.
2d 297 (1980).

      The sequence of events that led to Mr. Clayton's "confession" were set out by Detective Park in
his testimony at preliminary hearing.  Assuming for purposes of argument that Detective Park was
candid about his conversation with Mr. Clayton (and as the cross-examination discussion of Detective
Park in Proposition One, supra, indicates, his candor is questionable) Mr. Clayton, after talking with
his attorney and after his attorney advised the police that Mr. Clayton did not want to talk to them, was
sitting at a table being booked in by Detective Wherry. (PH Excerpt at 59).  As Detective Wherry was
booking Mr. Clayton, he placed the name "Randy" Clayton on the booking slip.  Detective Park
testified that he had been told by  Mr. Hartsfield that Mr. Clayton's name was Robert, and he then
informed Detective Wherry that  Robert Clayton was using his brother's name.  Detective Wherry
returned to the interview room and confronted Mr. Clayton with this information and requested his
correct name, which Mr. Clayton then provided. Upon Detective Wherry's leaving the interview room,
according to Detective Park, Mr. Clayton then indicated then indicated that he "wanted to talk to me."
(PH excerpt at 60).  It was in the course of this conversation that Mr. Clayton allegedly made the
incriminating statements that Detective Park testified to at trial.

      On  direct appeal, the Oklahoma Court of Criminal Appeals determined that the questions posed
by Detective Park were "merely inquiries necessary for proper booking procedures which did not
amount to 'interrogation.'" Clayton v. State, 840 P. 2d 18, 27 (Okla. Crim. App. 1992). The court further
stated that " these questions certainly were not the kind which the detective should know were
reasonably likely to illicit incriminating statements." Id.  It is respectfully submitted that as a matter of
common sense the Court of Criminal Appeals is incorrect.  What happened in the booking room was
not simply that Detective Park acted to assure proper booking procedures.  Instead, what  Detective
Park did was catch Mr. Clayton in what Parke  perceived to be a lie.  It is not unreasonable to expect
that when a criminal defendant is confronted with an untruth, the defendant will feel threatened and will
be more likely to provide incriminating statements to the police.  Indeed, given Mr. Clayton's low
intelligence level, and the stress of the moment, Detective Parke's perceived unhappiness with him
could have been enough to overcome any will to remain silent that he might have had.
 

D)    The references by the prosecution to Mr. Clayton's request for a lawyer at trial       prejudiced Mr.
Clayton's case and constitute a violation of his Fifth Amendment       right to remain silent, and of his
right to counsel.

      In closing argument at trial, the prosecution stated at one point that "Ladies and gentlemen,
Detective Wherry told you about reading Mr. Clayton his rights and orally advising him of his rights.
They came downtown to the police station.  He told you and Detective Hunt told you this also, that Mr.
Clayton indicated that he wanted a lawyer and that Pete  Silver from the  Public Defender's office came
over and met with Mr. Clayton"  (TR at 924).  This comment in closing followed extensive testimony by
both Detective Wherry and Detective Park relating to the Miranda rights' being read to Mr. Clayton, and
Mr. Clayton's advising them that he wanted an attorney. (See TR at 742).  The entire testimony of
Detective Wherry between transcript pages 740 and 742 relates to Mr. Clayton's invocation of his
Miranda rights.  Further, when Detective Park testified, he directly quoted Mr. Pete Silva, the Public
Defender, who, when he left Mr. Clayton "advised Mr. Clayton not to make any type of statement, not
to answer any more questions, and that he would see him the following morning." (TR at 894).

      By eliciting these statements from the police officers and making the allegation in closing that Mr.
Clayton wanted a lawyer, the prosecution has directly implicated Mr. Clayton's Fifth Amendment right
to remain silent and his Sixth Amendment right to counsel.  In United States v. Cain 887 F. 2D 568,
575 (5th Cir. 1989),the court held that a defendant has an absolute Fifth Amendment right to silence,
and is further guaranteed the right to be free from prejudicial comments concerning that silence.  See
also Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.  Further, in Miranda v. Arizona,
384 U.S. 436, 16 L.Ed.2d 694, 86 S. Ct. 1602 (1965), the United States Supreme Court recognized
explicitly the defendant's right to counsel.  It is submitted that the police officers' reference to Mr.
Clayton's  invocation of his right to counsel, and Mr. Silva's direction to him to remain silent directly
violated Mr. Clayton's rights to silence an severely prejudiced his case in front of the jury.  The jury
could not help but draw the conclusion from Mr. Silva's comments that Mr. Clayton made some
damaging admission to his attorney, and that this was the basis for those comments.

      To the extent this issue was not raised prior to this petition, Petitioner submits that the actions of
the prosecution at trial constituted fundamental error, and that his appellate and post-conviction
counsel were ineffective.
 
 

PROPOSITION NINE:       THE TRIAL COURT COMMITTED REVERSIBLE                         ERROR
IN DENYING THE DEFENDANT'S                                     REQUESTED INSTRUCTIONS IN THE
FIRST STAGE

As a general rule, in a murder case the Trial Court is required to submit to the jury every degree of
homicide which The evidence by any reasonable view suggests.  Waters v. State, 197 P.2d 299, 87
Okla. Crim. App.. 236 (1948).  This rule is particularly applicable in a capital case.  In Beck v.
Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d, 392 (1980), the Supreme Court held that the
death penalty could not be constitutionally imposed when the Trial Court refused to allow the jury to
consider lesser offenses when the evidence would have supported them.  The Supreme Court cited the
petitioner's version of the facts as grounds for the lesser included instructions.  Id. at 386.

Here, the trial court denied Mr. Clayton's requested instructions for the offense of first-degree
manslaughter.  (Tr. 917; OR 178-185).  The State had previously introduced evidence through Tony
Hartsfield that Mr. Clayton "flipped out,"  (Tr. 703), and, through the testimony of  Detective Parke, that
in his confession, in reaction to the victim slapping him and then telling him her husband would kill
him, the Defendant "blacked out", and subsequently awakened on her bedroom floor. (Tr. 898-899).

In denying Mr. Clayton's claim on appeal, the Oklahoma Court of Criminal Appeals found that "it is
within the trial court's discretion to determine whether sufficient evidence exists to warrant instructions
of a lesser degree."  Clayton, 840 P.2d at 30.  In adopting this discretionary standard, the Court of
Criminal Appeals not only violated Mr. Clayton's Due Process rights, but its own holdings on the
subject of lesser included offenses.  In Crawford v. State, 840 P.2d 627, 638 (Okla. Crim. App. 1992),
the court held that a trial court has a "duty to instruct the jury on the salient features of the law raised
by the evidence without a request by the defense."  That duty is certainly as strong when the
instruction is requested.  The Court also stated in the Crawford that failure of the trial court to instruct
on the lesser included offense constitutes fundamental error.  Id., See also, Pickens v. State, 885
P.2d 678 (Okla. Crim. App. 1994).

This holding is consistent with Federal court decisions on the ramifications of failure to instruct on
lesser included offenses and on the defendant's theory of the case.  See U.S. v. Flores, 968 F.2d 1366
(1st Cir. 1992);  and Territory of Guam v. Agualo, 948 F.2d 1116, 1117 (9th Cir. 1991)(holding that a
defendant is entitled to instructions on any defense providing a legal defense to the charges against
him "which has some foundation in the evidence, even though the evidence may be weak, insufficient,
inconsistent, or of doubtful credibility).  A defendant's right to a jury instruction on his theory of his
defense "is not canceled, as long as there is even a small amount of evidence in the record to support
it."  U.S. v. Opdahl, 930 F.2d 1530, 1535 (11th Cir. 1991).        In reviewing federal cases relating to
lesser included offense instructions, the United States Supreme Court has held that the instructions
must be given if "the evidence would permit a jury rationally to find [a defendant] guilty of the lesser
offense and acquit him of the greater.  Hopper v. Evans, 456 U.S. 605, 612, 102 S.Ct. 2049, 72
L.Ed.2d 367 (1982).  The Oklahoma courts generally apply an equivalent standard.  Hale v. State, 750
P.2d 130 (Okla. Crim. App. 1988).

The failure of the trial court to give the lesser-included offense instructions here deprived Robert
Clayton of his right to a trial by jury under the Sixth and Fourteenth Amendments to the United States
Constitution.  In death penalty proceedings, the United States Supreme Court has held that where "the
evidence would permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him
of the greater," the failure to give a lesser included offense instruction violates the defendant's Eighth
Amendment rights by undermining the reliability of the ultimate guilt determination and exposes the
defendant arbitrarily and capriciously to the death penalty.  Beck v. Alabama, 447 U.S. 625, 100 S.Ct.
2382, 65 L.Ed.2d 392 (1980).  The "discretion of the trial court" standard applied by the Oklahoma
court in Mr. Clayton's case is unconstitutional under any of the standards discussed.  Further,
particularly in the absence of Kenneth Ede's testimony, the evidence is consistent with, and would
have permitted the jury to rationally find Mr. Clayton guilty of manslaughter.
 
 

PROPOSITION TEN:              THE TRIAL COURT'S FAILURE TO PROVIDE THE
DEFENSE WITH A PSYCHOLOGICAL EXPERT

      Under the Supreme Court's holding in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d
53 (1985), appointment of a psychologist is necessary where, at the very least, there is evidence that
a defendant suffers from psychological impairments, and the state has alleged at least one aggravating
factor in sentencing which places the defendant's psychological well-being at issue.  In Brewer v.
Reynolds, 53 F.3d . 1519 (10th Cir. 1995), the court pointed out that the purpose of the Ake holding
was to provide the defendant with the means to rebut a challenge presented by the state.  See Ake,
105 S.Ct. at 1092.  Where the continuing threat aggravator has been alleged, that challenge has been
made.  The state has placed the mental state of the defendant at issue.

      Where the Oklahoma Court of Criminal Appeals determined that Mr. Clayton's sanity was
sufficiently at issue to merit a remand for a competency hearing, it is submitted that his sanity was
sufficiently at issue from a context of mitigation to merit the appointment of a defense psychological
expert in order to rebut the state's evidence that he presented a continuing threat to society.  In this
instance, denial of that assistance was fundamental error, as, at least in his counsel's mind, Mr.
Clayton had no other mitigation evidence to present.
 
 

SENTENCING ISSUES
 
 

PROPOSITION ELEVEN:           INEFFECTIVE ASSISTANCE OF COUNSEL IN
      SECOND STAGE PROCEEDINGS

      In Blake v. Kemp, 758 F.2d 523, 533 (11th Cir. 1985), the Court of Appeals said that "it is beyond
cavil that an attorney who fails altogether to make any preparations for the penalty phase of a capital
murder trial deprives his client of reasonably effective assistance of counsel by any objective standard
of reasonableness."  Further:
 
 

      When counsel knows of the existence of a person or persons who possess                 information
relevant to his client's defense, and he fails to use due diligence to             investigate the evi­dence,
such a lack of industry cannot be justified as "stra­tegic       error"...  The blatant lack of investi­gation
indicates a severe deficiency in the            performance of trial coun­sel.
 
 

Jennings v. State, 744 P.2d 212, 214 (Okla. Cr. 1987).  The same standards applicable to the issue of
ineffective assistance of counsel in first stage proceedings apply in second stage proceedings.

      In his affidavit, Mr. Clayton's counsel has stated that his trial "strategy" was to preserve credibility
with the jury for purposes of second stage proceedings. (Appen. at 3).   As his affidavit also
demonstrates however, this approach was legally bankrupt.  First, counsel relied primarily on Tony
Hartsfield's mother for liaisons with Mr. Clayton's family, apparently failing to realize that Mr.
Hartsfield's interests were clearly adverse to those of his client, and that his mother could be expected
to be solicitous of those interests.  Indeed, in recent interviews with Mr. Clayton's current counsel,
Mrs. Ciphers has indicated that it is her desire to see Mr. Clayton "fry."   (See affidavits of Jeremy
Lowrey and David Fishman, Appen. at 53 and 122).

      Second, Mr. Wallace's affidavit states that no investigator ever went to Mississippi to interview
possible mitigation witnesses, or to gather personal information about Mr. Clayton that could be used
in mitigation.  Counsel has attached affidavits and letters from members of Mr. Clayton's family and
from friends, which indicate the type of mitigation evidence that was available had counsel properly
investigated Mr. Clayton's case. (Appen. at 123-131).

      In that regard, it is noteworthy that at the time Mr. Clayton's case was being investigated, the
Tulsa County Public Defender's office had only one investigator to handle its entire caseload. (Appen.
at 3).   Further, it is clear that the other factors (such as co-counsel removing himself from the case on
the eve of trial)  discussed in the first stage ineffective assistance of counsel proposition had a
significant effect on the ability of counsel to properly represent Mr. Clayton in second stage
proceedings.

      The fact remains, however, that as second stage proceedings approached, counsel informed the
trial court that "in all honesty, Judge, there is not a lot left to mitigate for Robert William Clayton . . ."
(TR at 968).  This was simply not true, as the attached affidavits and letters demonstrate.

      The impact of this mitigation evidence on the jury in Robert's case cannot be underestimated,
particularly since it is clear that this jury was wavering on the issue of death in any event.  Within a
few minutes of their having begun deliberations, the jury sent a note to the judge (OR at 229) asking
whether they had the option of life without parole (which was not available at the time).

      Given the jury's obvious ambivalence toward the death penalty, there is a reasonable possibility
that the additional mitigation evidence that could have been presented would have caused at least one
juror (all that is necessary) to vote for a life sentence.
 
 

PROPOSITION TWELVE      :      WITH THE EXCLUSION OF THE BLOOD SPATTER
      TESTIMONY THAT WAS FOUND TO BE                                     INADMISSIBLE BY THE
OKLAHOMA COURT OF                            CRIMINAL APPEALS, THERE WAS NO EVIDENCE
                        PRESENTED TO SUPPORT A FINDING THAT THE                           MURDER
WAS HEINOUS, ATROCIOUS, OR CRUEL
 
 

      In Nguyen v. State,  769 P.2d 167, 174 (Okla. Crim. App.  1988) the Court found that evidence of
the "especially heinous" factor was insufficient where, although two

 child victims died of multiple stab wounds, many of them non-fatal, there was no evidence of suffering
before death. In Brown v.

State, 753 P.2d 908 (Okla. Cr. 1988)  the court also found evidence of this aggravating

 circumstance insufficient where the victim was shot seven times, and two

 wounds could have been immediately fatal, despite testimony that

 victim tried to flee her attacker.  As has previously been discussed in Proposition Four, in the
Absence of Ken Ede's testimony, no evidence remained to support a constitutional finding that the
murder was heinous, atrocious, and cruel.  Indeed, although downplayed in its post-conviction opinion,
Mr. Ede's testimony was the focal point for the Court of Criminal Appeals' determination on direct
appeal that the heinous, atrocious, and cruel aggravator was merited.  Clayton v. State, 840 P.2d 18,
31 (Okla. Crim. App. 1992).  In its opinion on direct appeal, the court put emphasis on the argument
that "the assailant began the attack outside the victim's apartment and continued attacking her
throughout the apartment from the kitchen to the livingroom area, down the hall and into the baby's
bedroom.  Id.  Absent Ede's testimony, there is simply no evidence that this occurred.
 
 

PROPOSITION THIRTEEN      :      OKLAHOMA'S CONTINUING THREAT
AGGRAVATOR IS UNCONSTITUTIONAL
 
 

      The United States District Court for the Eastern District of Oklahoma recently found Oklahoma's
continuing threat aggravator to be unconstitutional.  In doing so, the Court stated that:

A survey of Oklahoma cases reveals that Oklahoma capital opinions have never defined what particular
evidence might support the "continuing threat" aggravating circumstance or what factors a jury must
find before it may be determined that a defendant will be a continuing threat to society.  many cases
hold that the aggravating factor is justified solely due to the "calloused" nature of the murder, the
circumstances surrounding the offense, or the attitude of the defendant.

Williamson v. Ward, ___ F.3d ___  (E.D.Okla.  1995)(CIV-94-539-S) (Currently pending on appeal -
Case Number 95-7141 in the United States Court of Appeals for the Tenth Circuit).

      An aggravating circumstance is Constitutional only if the jurisdiction utilizing it defines and
interprets it in a limiting and consistent manner.  Proffitt v. Florida, 428 U.S. 242 (1976).  The
aggravator must serve a narrowing function rather than being a standardless form into which all cases
that don't fit into other aggravating circumstances can be placed.  See Arave v. Creech, 507 U.S. ___,
113 S. Ct. 1534, 1542 (1993);  Maynard v. Cartwright, 486 U.S. 356, 363 (1988).  Limiting the
sentencer's discretion in imposing the death penalty is a fundamental constitutional requirement.
Maynard, 486 U.S. at 362.

      In direct contravention of the Constitutional standard, the Oklahoma "calloused murder" category
has no limiting effect whatsoever.  In Cannon v. State, 904 P.2d 89, 106 n. 60 (Okla. Crim. App. 1995),
the Oklahoma Court of Criminal Appeals itself had difficulty explaining "why the facts of any particular
crime, however gruesome or brutal, make it more likely any defendant will commit future crimes[.]"

      In Battenfield v. State, 816 P.2d 555, 566 (Okla. Crim. App. 1991), cert. denied, 503 U.S. 943
(1992), the Oklahoma Court, apparently recognizing the constitutional infirmity of the aggravator as
stated, set out criteria that would justify a finding of "continuing threat to society."  However, the court
then failed to either require that juries be instructed as to these criteria, or to provide other limiting
instructions.  Further, one of the three criteria, that the nature of the murder exhibits the defendant's
"calloused nature,"  does little more than to attempt to legitimize the original standardless "calloused
murder" doctrine.  Finally, the Battenfield court refused to limit itself to the standards it had set out,
indicating that it would also consider "any other relevant evidence."  816 P.2d at 566.  See also,
Malone v. State, 876 P.2d 707 (Okla. Crim. App. 1994)(reviving the "calloused murder" doctrine).

      The continuing threat aggravator as currently applied in Oklahoma simply provides no guidance to
juries in making "an individualized determination on the basis of the character of the individual and the
circumstances of the crime."  Tuilaepa v. California, ___ U.S. ___, 114 S. Ct. 2630, 2634 (1994).  As
such it is constitutionally infirm.

      Mr. Clayton's death sentence should be reversed, and in the absence of any aggravating factor
(See Proposition Ten, infra.) modified to a life sentence.
 
 
 

PROPOSITION FOURTEEN:      FUNDAMENTAL ERROR IN THE SENTENCING
INSTRUCTIONS DEPRIVED MR. CLAYTON OF HIS                           CONSTITUTIONAL RIGHTS TO
AN                                           INDIVIDUALIZED SENTENCING PROCEEDING, TO
      BE FREE FROM THE ARBITRARY IMPOSITION OF                            THE DEATH PENALTY,
AND TO A MEANINGFUL                         APPELLATE REVIEW OF HIS DEATH SENTENCE.

      The sentencing instructions given to Mr. Clayton's jury during the second stage of trial violated
fundamental, constitutional rights guaranteed a defendant in a capital murder case.  Although
members of the Oklahoma Court of Criminal Appeals have expressed reservations about a few of the
sentencing instructions, the Court has declined to find any of them constitutionally improper. See e.g.,
Thomas v. State, 811 P.2d 1337 (Okla. Crim. App.. 1991).
 
 

A.    The "antisympathy" instruction given in the second stage of the trial denied Mr. Clayton his right
to have the jury fully and fairly consider evidence in mitigation.

      Mr. Clayton's trial jury was given the following instruction in the second stage of his trial:

            You are instructed that as to the jury's deliberations in this stage of these       proceedings,
you should not let sympathy, sentiment or prejudice enter your       deliberations, but you should
discharge your duties as jurors impartially,       conscientiously and faithfully under your oaths and
return such a verdict as the       evidence warrants when measured by these Instructions.
 
 

(OR 222, Second Stage Instruction No. 1).

      Mitigating evidence was introduced at Mr. Clayton's trial upon which sympathy could properly be
base. See OR 21;  Second Stage Instruction No. 8 listing nine different mitigating circumstances.  The
antisympathy instruction  precluded the jury from giving Mr. Clayton the sympathy that such
circumstances and arguments should have aroused.  The fact that this instruction was given in the
second stage of his trial, just moments after the court enumerated the mitigating factors to be
considered, is all the more egregious.

      Mr. Clayton is aware of the decisions upholding antisympathy instructions against an Eighth
Amendment challenge.  Parks v. Brown, 860 F.2d 1545, 1559 (10th Cir.1988), rev'd sub. nom.,  Saffle
v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990); California v. Brown, 479 U.S. 538,
107 S.Ct. 837 93 L.Ed.2d 934 (1987); Duvall v. State, 825 P.2d 621, 636 (Okla. Crim. App.. 1991).
Nevertheless, four Supreme  Court justices vigorously dissented to the Court's opinion in California v.
Brown, filing two dissenting opinions, and another justice filed a concurring opinion, agreeing to a
reversal only because the California Supreme Court could determine on remand whether Brown's jury
was adequately informed of it's obligation to consider all of the mitigating evidence introduced on his
behalf.

      The Supreme Court continues to hold a sentencing instruction to be  invalid if it  precludes the
sentencer from "'considering, as a mitigating factor, any aspect of a defendant's character or record . .
. that the defendant proffers as a basis for a sentence less than death.'" Brown, 479 U.S., at 547, 107
S.Ct., at 842 (Brennan, J., joined by Marshall, J., Stevens, J.), quoting Lockett v. Ohio, 438 U.S. 586,
604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978).  An instruction cannot stand if it leaves the jury
unclear as to whether it may consider such evidence. Id.  The Supreme Court refuses to speculate as
to whether a sentencer actually considered all of the mitigating factors and found them insufficient to
offset the aggravating circumstances because the Court's case law "require[s] us to remove any
legitimate basis for finding ambiguity concerning the factors actually considers . . . ." Id., quoting
Eddings v. Oklahoma, 455 U.S. 104,102 S.Ct. 862,879, 71 L.Ed.2d 1 (1982) (O'Connor, J.,
concurring).

      Furthermore, the Supreme Court's five/four decision in Saffle v. Parks relied in part on a jury
instruction that was not given in Mr. Clayton's case.  Park's jury was given a renegade instruction, not
included in OUJI-CR or approved by this Court, that specifically told the jury in part: "You must
consider all the following minimum mitigating circumstances and determine whether any one or more
of them apply to all of the evidence, fact and circumstances of  this case." Saffle v. Parks, 494 U.S.,
at 484, n. 14, 110 S.Ct. at 1273, n. 14. [emphasis added].  The instruction, which is a complete
misstatement of Oklahoma law and speaks of "statutory mitigating circumstances" that do not exist in
Oklahoma, nevertheless charged the jury with considering mitigating evidence.  There is no
comparable OUJI-CR instruction.  The uniform instruction merely says the jury "may" consider the
evidence.  OUJI-CR 438 (OR 313; Second Stage Instructions No. 9)

      The majority opinion in Saffle v. Parks noted the instruction on mandatory consideration of
mitigating evidence. Id. On remand, the Tenth Circuit considered whether the prosecutor's
antisympathy comments, combined with the antisympathy instruction given by the court during the
penalty stage, influenced the jury improperly to discount mitigating evidence, a question not addressed
by the Supreme Court.  Parks v. Saffle, 9225 F2d 366 (10th Cir. 1991).  The Tenth Circuit gave great
weight to the renegade instruction directing the jury to consider mitigating evidence (rather than leaving
it to their discretion) in answering the question in the negative:
 
 

      Any harm caused by these comments would have been further minimized because Instruction Five
(given during the penalty phase of trial) unambiguously instructed the jury that it could consider any
mitigating evidence:
 
 

                  You are further instructed that mitigating circumstances, if any, must be considered by
you . . . .  You are not limited in your consideration to the minimum mitigating circumstances set out
herein and you may consider any other or additional mitigating circumstances, if any, that you may
find from the evidence to exist in this case.   What facts or evidence that may constitute an additional
mitigating circumstance is for the jury to determine.
 
 

925 F.2d at 370 [emphasis in original].

Mr.Clayton did not have the benefit of the language in the instruction given in Parks.  Moreover, the
prosecution's closing argument in this case was such that the jury received the unmistakable
message that the sympathy-evoking mitigating evidence was not proper for jury consideration.  Finally,
as is discussed in Proposition Thirteen, the prosecutor had already primed the jury on voir dire to
disregard the mitigation evidence that would be offered.  Considering the combined effect of the
instruction and the various portions of the argument, the no-sympathy admonitions are in violation of
the provisions of Eddings v. Oklahoma, 455 U.S. 104 102 S.Ct. 869, 71 L.Ed 2d 1 (1982) and Lockett
v. Ohio, 438 U.S. 586, 93 S.Ct. 2954, 57 L.Ed. 2d 973 (1978).  Those cases state that the federal
constitution prohibits the court or the prosecution from placing obstacles in the way of the jury's
consideration of mitigating evidence in a capital case.

      Under the circumstances of Mr. Clayton's case, the second-stage "no sympathy" instruction
created a reasonable likelihood that the jury refused to consider, as a matter of law, relevant mitigating
evidence, in violation of Mr. Clayton's Eight and Fourteenth Amendment rights.
 
 

B.    The instructions given to the jury on the issue of mitigation permitted the jurors to ignore
mitigating evidence altogether.
 
 

Mr. Clayton's jury was not required to consider any mitigating circumstances under the court's
instructions.  Instead, the entire matter of mitigation was left to their unguided discretion. (OR 217,218;
Second Stage Instruction Nos. 7 and 8).  These instructions created doubt as to the jury's
constitutional duty to consider the mitigating circumstance and thus violated Mr. Clayton's
constitutional rights.  Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 1824, 95 L.Ed 2d 347
(1987); Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 1673, 90 L.Ed.2d 1 (1986).  A
sentencer cannot fail to consider a relevant mitigating circumstance without violating the Eighth
Amendment.  Morgan v. Illinois, 504 U.S. ___, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992); Eddings v.
Oklahoma, 455 U.S. 104, 117, 102 S.Ct. 869, 71 L.Ed.2d 7 (1982).
 
 

C.    The jury instructions failed to inform the jury that its findings regarding mitigating
circumstance do not have to be unanimous.

The jury instructions concerning the findings of mitigating circumstances were sandwiched between
other instructions dealing with the findings of aggravating circumstances, and those instructions made
repeated references to the need for unanimity. (OR 216, 219,220; Second Stage Instruction Nos. 6, 9,
and 10)  At no point did the instructions explain to the jurors that mitigating circumstances did not
have to be found "unanimously" and that the jurors were free to consider and give effect to all of the
mitigating circumstances whether or not there was unanimous agreement as to their existence.

The instructions given to the jury implied that the jury had to unanimously find mitigating as well as
aggravating circumstances before they could consider them in determining the sentence.  It is difficult
to imagine how a juror could arrive at any other conclusion.  The Supreme Court has held that jury
instructions which either require unanimous findings for mitigating circumstances, or which can be
interpreted to require such unanimous findings, are unconstitutional and require vacation of any
resulting death sentence. McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed 369
(1990); Mills v. Maryland, 486 U.S. 367, 384, 108 S.Ct. 1860, 1870, 100 L.Ed.2d 384 (1988).

Moreover, this problem was exacerbated by the fact that the trial court instructed the jury that
aggravating circumstances must be proved beyond a reasonable doubt but that the jurors were
authorized to impose the death penalty if they simply determined that evidence in aggravation
outweighed mitigating evidence. (OR 315, 316; Second  Stage Instruction No.'s 11, 12 and 13)  This
preponderance of the evidence standard contravenes the heightened need for reliability in death
penalty cases.  See Bullington v. Missouri, 451 U.S. 430, 445-446, 101 S.Ct. 185, 1861-62, 68
L.Ed.2d 270 (1981) (second stage of a capital case is a trial in its own right);  Caldwell v. Mississippi,
472 U.S. 320, 340, 105 S.Ct. 2633, 2645, 86 L.Ed. 2d 231 (1985); Woodson v. North Carolina, 428,
U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed. 2d 944 (1976); In re Winship, 397 U.S. 358, 363, 90
S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970).
 
 

D.      Conclusion

      As a result of the improper or inadequate sentencing instructions, Mr. Clayton's rights under the
Eight and Fourteenth Amendments to due process of law and freedom from the arbitrary imposition of
the death penalty were violated.  For these reasons his death sentence must be vacated.
 
 
 
 

PROPOSITION FIFTEEN      :           THE PROSECUTOR'S FUNDAMENTAL ERROR
                  IN QUESTIONING JURORS ABOUT THEIR                                     ATTITUDE TOWARD
MITIGATION                                     EVIDENCE.

During jury selection, the Prosecutor in essence asked many jurors, within the hearing of the entire
panel, how they would be surprised to learn that a perpetrator of a homicide would have a different
emotional background or makeup than other people.  He then asked the jurors if this would prevent
them from considering and inflicting the death penalty.  By these questions, the prosecution was
asking the jurors to ignore the Defendant's evidence of his low intelligence, emotional and mental
handicaps and other mitigation evidence in second stage proceedings.  This action by the prosecution
violated Mr. Clayton's absolute right to have the jury consider any factor which he presented in
mitigation. Skipper v. South Carolina, ___ U.S. ___, 106 S.Ct. 1669 (1986); Eddings v. Oklahoma, 455
U.S. 104, 102 S.Ct 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57
L.Ed.2d 973 (1978).

The type of question asked was as follows:

Q     Along those lines of punishment, I want to talk to you specifically about       this particular type of
offense.  Offense like this, would it surprise you to       find that - and indeed determining the proper
circumstances for the death       penalty - would it surprise you r would it offend you or would it cause
you       alarm to find that people who commit this type of offense might have a       different emotional
background than, lets say, you or I?  Would that       surprise you?

A.      Probably would.

Q.    Now, in other words, in trying to determine the proper case for a death       penalty verdict, would
you want to know somewhat about the background       of the individual;  would you not?

A.    Yes.

(TR at 110-111)

On most occasions the prosecutor even asked if this type of evidence would "interfere with [the juror's]
ability to render a verdict."  TR at 131-132, 145, 149, 222-223, 259-260, 349-350, 379, 404,
418-491,430 ("wouldn't hamper you in any way in rendering a death penalty verdict, if you felt it was a
proper case."), 454.   The prosecution asked variations of these questions fourteen (14) times

This error was fundamental.  It directly undermined the only mitigation evidence presented by the
Defendant in the second stage:  the testimony of Dr. Williamson that the Defendant had an extremely
low IQ (Tr. 1048-1049) and demonstrated other psychological problems (Tr. 1050-1056).  Moreover, the
Prosecutor stressed his voir dire theme in closing argument, reminding the jurors of their statements
concerning the mitigation evidence:
 
 

      Do you remember what you all told me in Voir Dire?  She wasn't surprised.  The expert wasn't
surprised.  That the Defendant suffered from paranoid delusions.  I guess that explains all those
stories he told about somebody out doing something to him over there.  I guess that also explains that
the  Defendant has periods of psychotic thinking.  Yeah, that the Defendant's emotional and mental
state seriously undermines his capacity to make a valid judgment concerning his behavior. . . . (TR at
1074).
 
 

The overall effect of the Prosecutor's voir dire questions and closing argument reference was to deny
the Defendant his fundamental right not only to present mitigation evidence, but to have the jury
actually consider it.  The Prosecutor had already primed the jurors to ignore it and had secured their
assurances that they would do so.

In Skipper, the Supreme Court stated that:

      There is  no disputing that this Court's decision in Eddings requires that in capital cases "'the
sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant's
character or record and any of the circumstances of the offense that the defendant proffers as a basis
for a sentence less than death.'" Eddings, supra., 455 U.S., at 110, 102  S.Ct., at 874 (quoting
Lockett, supra,  438 U.S., at 604, 98 S.Ct., at 2964 (plurality opinion of Burger C.J.))(Emphasis in
original).  Equally clear is the corollary rule that the sentencer may not refuse to consider or be
precluded from considering "any relevant mitigating evidence."  455 U.S., at 114, 102 S.Ct., at 877.
These rues are now well established, and the State does not question them.

Skipper, 106 S.Ct. at 1670-1671].

The Prosecutor's voir dire questions precluded the jurors from considering the mitigation the Defendant
could offer in violation of his rights to Due Process of Law and to reliability in a death penalty
determination under the Eighth and Fourteenth amendments to the United States Constitution.
 
 

PRETRIAL ISSUES
 
 

PROPOSITION  SIXTEEN      :           MR. CLAYTON'S RETROSPECTIVE
      COMPETENCY HEARING

      On July 23, 1990 the Court of Criminal Appeals (on direct appeal) remanded Mr. Clayton's case for
a determination of whether a retrospective hearing on his competency to stand trial could be held.
This remand was made in the face of a line of decisions by the court reversing convictions for failure of
the trial court to hold post-competency hearings as required by 22 O.S. Section 1175.4.  See  Kelly v.
State, 735 P.2d 566 (Okla. Crim. App. 1987);  Scott v. State, 730 P.2d 7 (Okla. Crim. App.  1987),
Thomas v. State, 777 P.2d 399 (Okla. Crim. App. 1989).  Pursuant to the order of the District Court
finding that a hearing could be held, the issue of competency was presented to a jury on September
11-12, 1991, more than five years after Mr. Clayton's trial.

      In Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836 (1966), the Supreme Court reversed the
defendant's conviction, finding that because the jury would not be able to observe the subject of their
inquiry, and because experts would have to rely solely on prior written evaluations, a "meaningful
hearing" on competency could not be held six years after the fact.  Pate, 383 U.S. at 387, 86 S.Ct. at
843.  See also, Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896 (1975).

      In Mr. Clayton's case, he was not even able to adequately cross-examine Dr. Sherman, the Doctor
who had originally written a one page letter declaring Mr. Clayton to be competent, because the
Doctor had no independent recollection of his original evaluation of Mr. Clayton.  (PC TR at 68).

      Finally, the jury's decision in Mr. Clayton's post-competency hearing was reached under the
provisions of 22 O.S. Section 1175.4, which provides that the burden of proof of incompetency to stand
trial lies with the defendant, and incompetency must be proved by clear and convincing evidence.  The
issue of the constitutionality of this burden of proof is currently pending on certiorari before the United
States Supreme Court in Cooper v. State, 889 P.2d 293 (Okla. Crim. App.  1995), cert. granted, 1116
S.Ct. 282 (1995)(pending).  It is respectfully submitted that the "clear and convincing" standard, and
the attendant presumption of competency is a violation of the Mr. Clayton's due process rights under
the Eighth and Fourteenth Amendments to the United States Constitution.
 
 

PROPOSITION SEVENTEEN      :           CUMULATIVE ERROR IN FIRST AND
                  SECOND STAGE PROCEEDINGS
 
 

      In United States v. Rivera, 900 F.2d 1462 (10th Cir. 1990), the Court of Appeals for the Tenth
Circuit held that the cumulative effect of two or more individually harmless errors has the potential to
prejudice a defendant to the same extent as a single reversible error.  Rivera at 1469.  Here, the
cumulative effect of the errors of his own counsel, the prosecution and the court was to not only make
the constitutional error of his trial harmless, but to deny Mr. Clayton any semblance of a fundamentally
fair proceeding.  The damage caused by the lack of effort put forth by his own counsel, and the
hyperbole of the prosecution has been demonstrated throughout this petition.  As a result of the many
glaring errors that occurred in this proceeding, Mr. Clayton should be granted relief.
 

PROPOSITION EIGHTEEN      :           INEFFECTIVENESS OF POST-CONVICTION
      AND APPELLATE COUNSEL
 
 

      To the extent the errors alleged in this petition have been waived, or have not been previously
presented, Petitioner asserts that his appellate counsel and post-conviction counsel were ineffective.
Indeed, Post-conviction counsel herself made this allegation, based upon the understaffing, and heavy
caseload of the Oklahoma Appellate Public Defender System at the time, as well as court imposed
time limitations. Where errors as basic as many of those alleged here have been overlooked, Mr.
Clayton has not received the "expert professional . . . assistance. . . necessary in a[n] [appellate]
system governed by complex laws and rules and procedures."  Evitts v. Lucey, 469 U.S. 387, 394,
105 S.Ct. 830, 83 L.Ed.2d 821 (1985).
 
 

REQUEST FOR EVIDENTIARY HEARING

      In state post-conviction proceedings, the state District Court denied petitioner's allegations of
ineffective assistance of counsel, claiming that they could have been raised on direct appeal.  This
ruling was made even though the same Public Defender office handled the trial and the direct appeal.
The court held no evidentiary hearing on the issue of ineffective assistance of counsel in the context of
counsel's performance at trial, or for that matter, on any other issue.  In section 7 of the district court's
order, the court stated that "again, petitioner failed to raise this issue on his direct appeal, and has
failed to offer any good cause for his failure to do so. Therefore he has waived this issue."  (PC Order
at 7).  In this paragraph, the court was addressing the petitioner's claims that counsel was ineffective
for failing to present mitigation evidence. The court made the same ruling on the petitioner's claim that
counsel was ineffective at the guilt/innocence stage of trial in section 8 of its order  at page 28. As a
result, the court in effect made no actual findings of fact with regard to the claims of ineffective
assistance of counsel presented by the petitioner.

      With regard to the trial court's determination that ineffective assistance of counsel was waived, this
determination is not even correct under prevailing caselaw.  In Brecheen v. Reynolds, 41 F.3d 1343
(10th Cir. 1994) the Court held that "ineffective assistance of counsel claims may be brought for the
first time collaterally."  Brecheen at 1364.  In Fowler v. State, 896 P.2d 566 (Okla. Crim. App.  1995)
the Court of Criminal Appeals itself held that "this Court will not require counsel on post-conviction to
raise an ineffective assistance of counsel claim against himself."  Fowler at 569.  In Brecheen, the
court noted that one of the policy considerations underlying its decision was the need for separate
counsel to evaluate ineffectiveness claims. Brecheen at 1364.  The same rationale should apply where
the attorney may be different, but the office or firm is not, since the reluctance to attack to work of a
coworker is likely to be almost as strong as the reluctance to attack one's own work

      Given the district court's finding that ineffective assistance of counsel claims had been waived, and
given the incorrectness of this finding, it is respectfully submitted that Mr. Clayton's section 2254
petition fall squarely within the mandate of Townsend v. Sain, 672 U.S. 293 (1963).  In Townsend, the
United States  the Supreme Court held that a federal hearing is mandatory if the state courts do not
issue written fact findings on dispositive actual questions.  Here the district court has failed entirely to
hold any hearing, and it simply found a waiver (and has found that waiver incorrectly), and where the
petitioner has shown significant factual basis for his claims of ineffective assistance of counsel, both in
first and second stage proceedings, it is respectfully submitted that an evidentiary hearing is not only
indicated, but that it is required.  It is further  submitted that based upon the findings of waiver by the
Oklahoma Court of Criminal Appeals subsequent of the district court's findings, Clayton v. State, 992
P.2d 646 (Okla. Crim. App. 1995) that there should be no presumption of correctness applied to the
state court findings.

      It is therefore requested that this court order a evidentiary hearing on the issue of ineffective
assistance of counsel, both in first and second stage proceedings, as this ineffectiveness relates to
the preparation of Mr. Clayton's case, and the conduct of that case (including failure to raise any of the
issues addressed in this petition).  It is further requested that the court order an evidentiary hearing on
the issues of appointment of a psychologist, all Brady issues subsequent to discovery (for which there
has also not only been no hearing, but no prior discovery), Propositions six through eight relating to
Mr. Clayton's waiver of his fifth amendment right to silence and his sixth amendment right to counsel,
and proposition fourteen relating to the validity of Mr. Clayton's post-competency hearing
 
 
 
 

REQUEST FOR PERMISSION TO FILE A TRAVERSE TO STATE WAIVER/EXHAUSTION CLAIMS

      Petitioner respectfully requests that the Court permit him to file a traverse or reply prior to ruling on
a claim by the state in its response to this petition of waiver or non-exhaustion.
 
 
 
 

CONCLUSION:              REQUEST FOR RELIEF

      The United States Supreme Court has recognized the need for heightened reliability in death
penalty proceedings, and has required that there be an extra measure of reliability in both guilt and
sentencing proceedings.  Beck v. Alabama, 100 S.Ct. at 2390.  In the absence of that reliability,
neither Eighth or Fourteenth Amendment concerns are satisfied.  In Mr. Clayton's case, the
unreliability of the determination of guilt and of sentencing is insufficient to satisfy those constitutional
concerns, even under the most lenient of standards.  Mr. Clayton received practically no useful
assistance from counsel at trial, and endured a trial at which the prosecution was permitted to literally
define both the law and the facts as the prosecution saw fit.  In such a situation, imposition of the
death penalty is neither equitable or just or lawful.

      WHEREFORE it is respectfully requested that the court issue a writ of habeas corpus to have the
Petitioner, Robert William Clayton brought before it to the end that he may be discharged from his
unconstitutional confinement and restraint, and that he may be relieved of his unconstitutional
sentence.
 
 

                                          Dated this fifth day of March, 1996.
 
 
 
 
 
 

                                          _________________________________

                                          Jeremy B. Lowrey, OBA# 15031
 
 

                                          FISHMAN & LOWREY

                                          Attorneys at Law

                                          5929 North May, Fifth Floor

                                          Oklahoma City, Oklahoma 73113

                                          (405) 843-2700
 
 

                                          ATTORNEY FOR THE PETITIONER
 
 
 
 

CERTIFICATE OF SERVICE
 
 

      I certify that a copy of this Petition for A Writ of Habeas Corpus, together with appendices and
attachments was sent by United States Mail, First-Class, postage-paid to the offices of the Attorney
General for the State of Oklahoma, Criminal Division, 112 State Capitol Building, Oklahoma City,
Oklahoma 73102 on this fifth day of March, 1995.
 
 
 
 
 
 

                                          ________________________________
 
 

     After trial proceedings had been completed, one juror characterized the prosecution's behavior
generally as follows:
 
 

I realized from the beginning that Mr. Litchfield had a job to do, and that part of it was to hammer home
the horrendous nature of this murder.  But his overly dramatic courtroom antics were uncalled for in a
case which so obviously radiated drama by its very nature. . .
 
 

. . . It is my opinion that this amateurish play-acting was not just ridiculous, but dangerous because it
kept taking the jurors' attention away from the issues at hand.
 
 

Appen. at 6;  OR at 256.
 
 

     It is highly likely that there were even more cross-examination issues, impeachment issues, and
facts contrary to testimony of State's witnesses available to defense counsel at trial than will be
discussed here.  Habeas counsel is severely hampered in his ability to analyze this case and the
defenses that were available by the fact that the physical evidence that was introduced by the
prosecution at trial has disappeared.  See Petitioner's Motion for Discovery;  filed with this petition on
March 5, 1996.

     The victim of this attack, Albert Lacy, was later revealed to have been a prior employee of the
Harris County Sheriff's department.  TR at 1008.

     In Brown v. State, 751 P.2d 1078 (Okla. Crim. App. 1988), the Oklahoma Court addressed the
misuse of mathematical evidence, citing the dangers inherent in the presentation of unreliable
mathematical evidence.  The court quoted People v. Collins, 66 Cal.Rptr. at 497, 438 P.2d at 33, for
the proposition that "Mathematics, a veritable sorcerer in our computerized society, while assisting the
trier of fact in the search for truth, must not cast a spell over him." Brown at 1079-1080.  Again,
however, Mr. Clayton's counsel permitted Mr. Ede's scientifically irresponsible claims of probability to
pass without objection or comment.

      Because Mr. Clayton's case is ten years old, it has taken counsel a considerable amount of
time to locate certain witnesses.  Indeed, some witnesses, including Willie Carr and Henry Rodgers -
the two actual eyewitnesses at the scene who have never been interviewed by defense counsel, have
not been found yet, despite a diligent search.
 

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