UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-40512
JOSEPH STANLEY FAULDER
Petitioner-Appellant
VERSUS
WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION
Respondent-Appellee
Appeal from the United States District Court
For the Eastern District of Texas
( )
Before JONES, DUHÉ and WIENER, Circuit Judges.
DUHÉ, Circuit Judge:
Petitioner appeals from denial of his petition for writ of
habeas corpus seeking relief from his death sentence. We affirm.
Petitioner, Joseph Stanley Faulder, is a Canadian citizen who
was twice convicted and sentenced to death for the murder of Inez
Phillips, an elderly widow, during the armed robbery of her home.
The first conviction was reversed by the Texas Court of Criminal
Appeals because Faulder’s confession, which was admitted into
evidence, was obtained in violation of the Fifth Amendment.
Faulder v. State, 611 S.W.2d 630 (Tex. Crim. App. 1979) cert.
denied 449 U.S. 874 (1980). The second conviction was obtained
with testimony from Faulder’s accomplice, Lynda McCann, who did not
testify at the first trial. Because no physical evidence connects
Faulder to the murder, McCann’s testimony was critical.
After unsuccessful direct appeals, Faulder filed a petition
for habeas corpus and a motion for stay of execution in state
court. The court held an evidentiary hearing on Faulder’s
ineffective assistance of counsel claim and recommended that relief
be denied. The Court of Criminal Appeals denied Faulder’s petition.
Faulder now seeks relief from the federal courts. He filed a
petition for writ of habeas corpus and motion for stay of
execution. The district court granted the stay of execution and
held an evidentiary hearing on the use of special prosecutors and
whether the prosecution allowed McCann to testify falsely. After
the hearing, the court denied Faulder’s petition but granted a
certificate of probable cause to appeal. Faulder claims he is
entitled to relief because: (1) the use of special prosecutors
violated the Eighth and Fourteenth Amendments, (2) the prosecution
allowed its chief witness, Lynda McCann, to testify falsely in
violation of Faulder’s Fifth, Sixth and Fourteenth Amendment
rights, (3) Faulder received ineffective assistance of counsel, and
(4) Faulder’s right to compulsory and due process was violated when
2
law enforcement officials violated the Vienna Convention on
Consular Relations.
We review the district court’s findings of fact for clear
error, but review issues of law de novo. Williams v. Collins, 16
F.3d 626 (5th Cir. 1994). A finding of fact is clearly erroneous
only when the reviewing court, after reviewing the entire evidence,
is left with the definite and firm conviction that a mistake has
been made. Id.
I. THE USE OF SPECIAL PROSECUTORS
There is no per se constitutional prohibition against the use
of special prosecutors. Powers v. Hauck, 399 F.2d 322 (5th Cir.
1968). However, the use of special prosecutors raises concerns
that the prosecutor’s loyalty to the person who pays the special
prosecutor may override the interests of society in justice and a
fair trial for the accused. We require, therefore, that the
district attorney retain control of the prosecution, the special
prosecutor not be guilty of conduct prejudicial to the defendant,
and the rights of the defendant be duly observed. Id. at 325.
Faulder argues that the special prosecutors controlled his
prosecution. Control of the prosecution means control of crucial
prosecutorial decisions, such as whether to prosecute, what targets
of prosecution to select, what investigative powers to utilize,
what sanctions to seek, plea bargains to strike or immunities to
grant. East v. Scott, 55 F.3d 996 (5th Cir. 1995). Control is not
3
determined according to a quantitative analysis or a determination
of who was lead counsel at trial. Person v. Miller, 854 F.2d 656
(4th Cir. 1988)(cited with approval in East, 55 F.3d at 1001). In
fact, “[w]e can conceive of situations in which without ever
relinquishing effective control of the prosecution government
counsel might for tactical reasons give over even more substantial
portions of the actual conduct of trial to particularly skilled or
knowledgeable private counsel.” Person, 854 F.2d at 663.
The special prosecutors in the second trial were Odis Hill,
the former district attorney who prosecuted Faulder at his first
trial and Phil Burleson, a former prosecutor and well known
criminal defense attorney. Mr. Hill resigned from his position as
district attorney between Faulder’s first and second trial. After
the new district attorney, Robert Foster, was appointed, Hill
offered to assist in retrying Faulder. Within thirty days of
taking office, Foster faced two other demanding trials and the
death of his mother. Considering his professional and personal
demands and the relative inexperience of his remaining staff,
Foster accepted Hill’s offer. Five months later, the victim’s son
agreed to pay fees to Hill’s law firm.1
After the first conviction was overturned, Burleson was hired
by the victim’s son to determine whether a second prosecution was
possible without the use of Faulder’s confession. Burleson
1
Hill was also a special prosecutor in Lynda McCann’s case but
was paid by the County.
4
retained investigators and a Canadian law firm to aid in rendering
his opinion that a second prosecution could proceed provided McCann
would testify. All of Burleson’s fees and expenses were paid by
the victim’s son.
Foster assigned Jim McCoy, an assistant district attorney with
two years experience, to be his representative. McCoy kept a low
public profile both before and at trial and allowed Hill and
Burleson to take the lead in the proceedings. At the district
court evidentiary hearing, however, Hill testified that he always
understood that the district attorney had the final word and would
maintain control and management of the case. Hill maintained
contact with Foster and he and Foster were in agreement on
decisions made throughout the case. Burleson worked with Hill and
Hill in turn made the necessary contacts with Foster. Further,
Hill, Burleson and McCoy testified that they made decisions
together, prepared witnesses together, were in agreement on most
issues and worked out the differences on all others.
In light of Hill’s prior relationship with the district
attorney’s office, the frequent communication between counsel and
clear understanding of the district attorney’s final decision-
making authority, we agree with the district court’s conclusion
that the district attorney controlled Faulder’s prosecution.
Faulder claims that Burleson’s investigative activities were
conducted without the involvement or knowledge of the district
attorney’s office and therefore, he is entitled to relief. This
5
argument does not merit reversal. First, use of investigative
resources is only one of several prosecutorial decisions which we
must consider in determining control. Second, even if Burleson’s
actions were violative of our standard, the violations were
corrected once Hill began to assist in the prosecution and McCoy
was assigned by Foster.2 From at least that point on, the district
attorney was in control of the prosecution. See Woods v. Linahan,
648 F.2d 973 (5th Cir. Unit B June 1981).
Faulder also contends that the use of special prosecutors
violates the Eighth Amendment and causes arbitrary and capricious
imposition of the death penalty. He reasons that defendants who
kill wealthy victims are more likely to receive the death penalty
because their cases are more vigorously prosecuted by special
prosecutors hired by family and friends of the victim. We find no
merit in Faulder’s argument. To accept this argument would mean
that prosecutions involving special prosecutors would be per se
unconstitutional in direct opposition to the rule of Powers.
II. Failure to correct false testimony.
Faulder argues that he was denied due process when the
prosecution did not correct McCann’s false testimony. At trial,
defense counsel asked whether McCann was promised $10,000 to
2
The exact point at which Burleson’s role changed from advisor to
the victim’s son to special prosecutor is unclear. His
investigation, therefore, may not have been part of his
prosecutorial activities.
6
$15,000 in return for her testimony. McCann stated, under vigorous
cross examination, that she had not been promised money in return
for her testimony. She said she expected relocation expenses
although not in the form of cash payment. The government’s
witnesses corroborate McCann’s testimony that McCann would be
provided relocation expenses by the victim’s son to protect McCann
from Faulder should he be acquitted.
A state denies a criminal defendant due process when it
knowingly uses perjured testimony at trial or allows untrue
testimony to go uncorrected. Giglio v. United States, 405 U.S. 150
(1972); Napue v. Illinois, 360 U.S. 264 (1959); Cordova v. Collins,
953 F.2d 167 (5th Cir. 1992). To obtain relief, the defendant must
show that (1) the testimony was actually false, (2) the state knew
it was false and (3) the testimony was material. Kirkpatrick v.
Whitley, 992 F.2d 491, 497 (5th Cir. 1993). Faulder has not shown
that McCann’s testimony was actually false.
III. Ineffective assistance of counsel
Faulder maintains that he received ineffective assistance of
counsel because his attorney presented no mitigating evidence
during the sentencing phase of the trial. Defense counsel
testified that he did not know that presentation of evidence at
sentencing was allowed under Texas procedure even though he was
board certified in criminal law and was a state criminal district
attorney for approximately four years.
To prevail on an ineffective assistance of counsel claim, a
7
defendant must show that (1) counsel’s performance was deficient
and (2) the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668 (1984). The district court
agreed that counsel’s performance was deficient3 but that the
performance did not prejudice the defense. To show prejudice, the
defendant must show that it is reasonably likely that the jury
would have reached a different decision absent counsel’s
unprofessional errors. Strickland, 466 U.S. at 696.
Faulder argues that the following evidence could have been
introduced and would have caused the jury to deliver a sentence
other than death:
(1) Defendant sustained brain damage near his fourth
birthday when his head was split open on both sides
after falling out of a moving car.
(2) Expert testimony that Defendant suffered from
organic brain disorder which impaired his
judgment and impulse control and disqualifies
a diagnosis of sociopathy and that Defendant
suffered from depression and alcoholism.
(3) Prison records from both Canada and the United
States which show that Defendant was a
peaceable prisoner.
(4) Testimony from family and friends that the
Defendant was a loyal friend, a trusted
employee, the father of two girls and had once
saved the life of an accident victim when he
drove the woman to the hospital in a blizzard.
This evidence, however, is double edged. Despite Faulder’s
3
Compare Williams v. Collins, 16 F.3d 626 (5th Cir. 1994)(failure
to offer mitigating evidence at sentencing phase not deficient if
a result of a strategic choice).
8
head injury, he did not exhibit confusion, uncertainty or mental
impairment during the murder. Faulder abandoned his children and
their mother when he left Canada. Faulder had no contact with his
family for the twenty years prior to trial and at trial, he
instructed his lawyer not to contact his family.4 The evidence
also indicates that Faulder is intelligent and came from a loving,
supportive family which would make him less sympathetic. And, the
Canadian prison records contain information that despite his mental
abilities, he was unable to keep his behavior under control.
Testimony available from Texas authorities would have indicated
that he had a bad reputation.
We are not persuaded that had all this evidence been
introduced, a different sentence is a reasonably likely result.
IV. Vienna Convention
The Vienna Convention on Consular Relations requires an
arresting government to notify a foreign national who has been
arrested, imprisoned or taken into custody or detention of his
right to contact his consul. Vienna Convention on Consular
Relations, April 24, 1963, TIAS 6820, 21 U.S.T. 77. Canadian
regulations require the Canadian consul to obtain case-related
information if requested by the arrestee to the extent that it
cannot otherwise be obtained by the arrestee. Manual of Consular
4
Defense counsel asked Faulder to have his family attend trial to
humanize him before the jury. Faulder argues that had he known
they could testify, he would have changed his mind about not
contacting the family.
9
Instructions of the Department of Foreign Affairs and International
Trade of Canada, Volume 11, Chapter 2, Annex D.
Texas admits that the Vienna Convention was violated. After
investigating the allegations, William Zapalac, Assistant Attorney
General of Texas, could find no evidence that Faulder had been
advised of his rights under the Convention. However, the district
court correctly concluded that Faulder or Faulder’s attorney had
access to all of the information that could have been obtained by
the Canadian government. While we in no way approve of Texas’
failure to contact the Canadian authorities, the evidence that
would have been obtained by the Canadian authorities is merely the
same as or cumulative of evidence defense counsel had or could have
obtained. See United States v. Valenzuela-Bernal, 458 U.S. 858
(1982). The violation, therefore, does not merit reversal.
Judgment of the district court AFFIRMED, stay of execution
VACATED.
10