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Hector Rivas v. B Rian Fischer

July 9, 2012

HECTOR RIVAS, PETITIONER-APPELLANT,
v.
B RIAN FISCHER , SUPERINTENDENT, SING SING CORRECTIONAL FACILITY, RESPONDENT-APPELLEE.



The opinion of the court was delivered by: Jose A. Cabranes, Circuit Judge:

10-1300-pr

Rivas v. Fischer

Argued: December 08, 2011

Before: CABRANES, POOLER, and SACK, Circuit Judges.

Petitioner-appellant Hector Rivas appeals from a judgment of the United States District Court for the Northern District of New York (Gary L. Sharpe, Judge), following a remand of the cause by this Court, dismissing as time-barred his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We agree with the District Court that Rivas's petition was not timely filed and that he is not entitled to equitable tolling, but we conclude that Rivas has successfully presented a "gateway" showing of actual innocence under the standard set by the Supreme Court in Schlup v. Delo, 513 U.S. 298 (1995), and House v. Bell, 547 U.S. 518 (2006). We further conclude, as a matter of first impression in this Circuit, that such a showing entitles him to an equitable exception from the limitations period set forth in § 2244(d). Accordingly, we reverse the judgment of the District Court and remand with instructions to consider the merits of Rivas's habeas petition.

The issue in this appeal is whether petitioner-appellant Hector Rivas--who is currently serving an indeterminate life sentence for the second-degree murder of his former girlfriend, Valerie Hill--should be permitted to present in federal court his claim that constitutional error at his criminal trial renders his current confinement unlawful. The merits of Rivas's constitutional claims are not before us. Rather, we address only whether his petition for a writ of habeas corpus under 28 U.S.C. § 2254 was timely filed, or, if untimely, whether he should nevertheless be permitted to pursue those claims in federal court under the circumstances here presented. When Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), it imposed a one-year period of limitation on petitioners seeking federal collateral review of state convictions pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d).*fn2 The Supreme Court has recognized that a "credible" and "compelling" claim of actual innocence may provide a "gateway" through other procedural barriers to habeas relief, see Schlup v. Delo, 513 U.S. 298, 324, 315 (1995) (successive petitions); House v. Bell, 547 U.S. 518, 521-22 (2006) (state procedural default), but it remains an open question both in the Supreme Court and in this Circuit whether such a claim may allow a petitioner to circumvent AEDPA's limitation period. In the years since § 2244(d) went into effect, we have heard several appeals from prisoners who have asserted that their claims of actual innocence should provide an equitable ground for allowing them to pursue habeas corpus relief notwithstanding their failure to timely file a petition. See, e.g., Doe v. Menefee, 391 F.3d 147 (2d Cir. 2004); Whitley v. Senkowski, 317 F.3d 223 (2d Cir. 2003); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107 (2d Cir. 2000). We have thus far resisted deciding whether equity demands such an exception, explaining that we would only do so "in a proper case," Whitley, 317 F.3d at 225, "where a petitioner is able to make a credible showing of actual innocence based on new evidence," Doe, 391 F.3d at 174.

In this case, which returns to us following a remand to the District Court for development of the record, see Rivas v. Fischer, 294 F. App'x 677, 679 (2d Cir. 2008) ("Rivas II"), Rivas has raised a credible and compelling claim of actual innocence, as those concepts are understood in the relevant habeas jurisprudence. His claim is based on new information not presented to the jury that dramatically undermines the central forensic evidence linking him to the crime of which he was convicted. In sum and substance, Rivas has shown, through the essentially unchallenged testimony of a respected forensic pathologist, that the victim was almost certainly killed at a time when he had an uncontested alibi, and not earlier, as the prosecution had contended at his trial. We are not here called to determine whether Rivas is in fact innocent. However, on the record before us, we "cannot have confidence in the outcome of [Rivas's] trial" unless we can be assured that "the trial was free of nonharmless constitutional error." Schlup, 513 U.S. at 315.

Here presented with a "proper case," we now conclude, as a matter of first impression in this Circuit, that a credible and compelling showing of actual innocence under the standard described by the Supreme Court in Schlup and House warrants an equitable exception to AEDPA's limitation period, allowing the petitioner to have his otherwise time-barred claims heard by a federal court. Because Rivas has made such a showing, we reverse the decision of the United States District Court for the Northern District of New York (Gary L. Sharpe, Judge) dismissing his petition for habeas relief and remand for full consideration of his underlying constitutional claims.

BACKGROUND

The following background is taken from the record of Rivas's criminal trial, his state collateral proceeding, and the evidentiary hearing held by the District Court on remand. Although we refer in the margins to relevant newspaper articles, we do not rely on them in the disposition of this appeal.

A. The Murder of Valerie Hill

At approximately 11:45 a.m. on Monday, March 30, 1987, Randall Hill ("Randall") discovered the lifeless body of his twenty-eight-year-old daughter, Valerie Hill ("Hill"), on the livingroom floor of her apartment on Hickok Avenue in Syracuse, New York. Transcript of the Trial of Hector Rivas (March 17, 1993) ("Trial Tr.") at 103.

Randall had last seen his daughter on Friday night, March 27, when the two met for dinner at a nearby restaurant. He later recalled that Hill seemed upset during their meeting and did not eat anything. Id. at 96-98. During their conversation, Hill informed her father that she was planning to spend the weekend visiting a friend in the Albany area and would not return until Sunday evening. Id. at 99. Hill left the restaurant at approximately 8:15 p.m. on Friday. Id. at 97-98. The friend Hill planned to visit, Laura Adams, later testified that she called Hill "dozens of times" on Friday night and throughout the weekend, but never reached her, although she encountered at least one "busy" signal. Id. at 217-19, 221. Randall also had no success when he attempted to call Hill on Sunday night and again Monday morning. Id. at 99-100.

On Monday morning, Randall went to the hospital where Hill was employed as a pediatric nurse (and where Randall's wife was then admitted as a patient) and discovered that Hill had not reported to work. Id. at 101, 103. Concerned, he drove to Hill's apartment, where he found her car parked in the driveway. Randall let himself in through the unlocked side door and discovered Hill lying "face down on the carpet" in her living room. She was wearing a bathrobe, which was pulled "up around her shoulders," and was otherwise naked. Id. at 100-03. The belt of the bathrobe was wrapped around her neck. Id. at 157.

Randall immediately called the police, as well as his son, David. Id. at 104. Arriving at the scene, police investigators found no signs of forced entry into Hill's apartment, which was on the bottom floor of a two-family house. Id. at 107, 228-29. The apartment was "very neat," and at first nothing appeared to be out of order. Id. at 228. A number of cigarettes of the brand Rivas smoked were found in an ashtray in Hill's kitchen. Id. at 150-51, 638. Later testing revealed that fingerprints on the ashtray, as well as on a bottle of wine, belonged to Rivas. Id. at 591-93.*fn3 In addition to Rivas's and Hill's fingerprints, an unidentified set of prints was taken from the telephone. Id. at 588. Missing from the apartment was an airline ticket that Hill had collected from her travel agent on the afternoon of Friday, March 27.

After learning from Randall and David that Hill had recently broken up with Rivas, police officers went to Rivas's house in Cazenovia, a town about twenty miles southeast of Syracuse. Id. at 235. Rivas agreed to accompany the officers to the Syracuse police station. Sergeant John D. Brennan later testified that Rivas appeared nervous,*fn4 but was cooperative and did not inquire as to why he was being questioned. Id. at 237-28. At the police station, Rivas was taken to an interrogation room where police proceeded to question him for approximately twelve hours. Despite the fact that he was interrogated at length regarding his activities the weekend of Hill's death, Rivas was never informed of his Miranda rights because, the police officers later insisted, he was not regarded as a suspect at that time. Trial Tr. at 239. At approximately 5:30 p.m., after over two hours of questioning, police informed Rivas that Hill had been killed. According to Brennan, Rivas exhibited no discernible reaction upon hearing this news. Id. at 247.

During the interview, Rivas told the police that he had last seen Hill four days earlier, on the evening of Thursday, March 26, 1987, when he had gone to her house and talked to her for half an hour. Id. at 240. He had also driven by Hill's apartment at 2:00 p.m. the following day, Friday, March 27, and again approximately four hours later, at 6:00 p.m. He claimed he did not linger on either occasion after discovering that Hill was not home. Id. at 240-41. Rivas said that he had spent most of Friday evening with friends at various bars in Syracuse and Cazenovia. See Trial Exh. 1. He stated that he was at Coleman's Bar ("Coleman's") in Syracuse from about 6:00 to 11:00 p.m. He then went to Albert's Bar ("Albert's") in Cazenovia and stayed there until 2:00 a.m., before returning to Syracuse to get breakfast at an all-night diner. He finally went home and fell asleep at 4:00 a.m. Rivas claimed that he awoke at 11:30 a.m. on Saturday and returned to Albert's to do some plumbing work. He remained for lunch and then went home to take care of some yard work. He then returned to Albert's to watch Syracuse compete in the "Final Four" of the NCAA Men's Basketball Tournament. He remained at Albert's until approximately 8:00 p.m., whereupon he went to a party at a friend's house until 4 a.m. on Sunday, March 29, before returning home to bed. As Rivas stated in the interview, many people saw him and spoke with him on Saturday night. Id.. While Rivas was being questioned at the station, other police officers put together an application for a warrant to search his residence. Attached to the application was an affidavit signed by Officer Timothy Phinney, attesting that there was probable cause to believe that several items would be found in Rivas's home, including a key to Hill's apartment and clothing soiled with blood, fecal matter, or other contaminants. See Motion to Vacate Sentence Pursuant to Criminal Procedure Law 440.10 ("Section 440.10 Mot.") Exhs. 1 & 2. The affidavit also stated that the Onondaga County Medical Examiner, Dr. Erik Mitchell, had preliminarily estimated the time of Hill's death to be "sometime [between] [S]aturday the 28th of March afternoon and [S]unday morning [the] 29th of March 1987." Id. Exh. 2.*fn5

In the basement of Rivas's house, investigators discovered a damp jacket draped over a clothesline. Trial Tr. 274-75. Although a search of household trash was not expressly contemplated by the warrant, investigators also seized and reconstructed a torn-up note, which they found in a trash bag in Rivas's kitchen.*fn6 The note was from Hill to another former boyfriend, Bob Lucas, expressing her thanks for their time together. See Trial Exh. 5.*fn7 Finally, inside a bedroom closet, investigators observed what they described as a "shrine," consisting of a large statue of the Virgin Mary surrounded by two smaller candles and a photograph of Hill. Trial Tr. at 270-74, 316.

Although photographs were taken of the trash bag that contained the note, as well as other items in Rivas's house, no photograph was taken of the "shrine." See id.

Despite a thorough investigation, neither Rivas nor anyone else was charged with, or even publicly identified as a suspect in, Hill's murder, which remained a "cold case" for five years.

B. The Indictment of Hector Rivas

In January 1992, William J. Fitzpatrick was sworn in as District Attorney of Onondaga County, having previously served in that office as an Assistant District Attorney. According to his biography on the Onondaga County District Attorney's website, when he was Chief Assistant District Attorney, "Fitzpatrick specialized in re-opening cases that had previously been considered inactive and, with the cooperation of various police agencies in Onondaga County and the state of New York, he brought numerous killers to justice in cases that were thought to be un-winnable." See "Meet the DA," Office of the Onondaga District Attorney, www.ongovda.net/section/meet_the_da/ (last visited May 30, 2012).

On November 22, 1992, nearly six years after the murder of Valerie Hill, a grand jury indicted Rivas on charges of murder in the second degree and aggravated sexual abuse. It is not clear what, if any, new evidence might have come to light that would lead authorities to pursue, and the grand jury to indict, Rivas nearly six years after the murder. In its Bill of Particulars, responding to a defense request for the date when Rivas was first identified as a possible perpetrator of the crime, the prosecution stated, simply: "It is very difficult to respond to this request. Defendant was indicted in November 1992." See Rivas v. Fischer, No. 01-cv-1891, (N.D.N.Y. Sept. 18, 2009), ECF No. 55-2 at 56 (Answering Affidavit).

Rivas contends that, sometime after becoming District Attorney, Fitzpatrick approached Mitchell, the medical examiner, and requested that he review Hill's autopsy report with an eye toward expanding the time of death to include Friday, March 27, 1987, when Rivas's alibi was not as strong. According to Rivas, at the time this alleged request was made, Mitchell "was under criminal investigation by DA Fitzpatrick's office, as well as by the Department of Health and the Department of Environmental Conservation" for varieties of misconduct, including improper disposal of waste and stealing and mishandling of body parts. Appellant's Br. at 8.

The State concedes that Mitchell was accused of various forms of misconduct as early as 1989, see Appellee's Br. at 24, and does not dispute that he was under investigation by the State Department of Health at the time he testified against Rivas. It is also undisputed that Mitchell resigned his office in November 1993, in part to avoid prosecution by the District Attorney's Office. See Remand Hearing Tr. at 205.*fn8 It is not clear from the record, however, at what point the District Attorney's Office opened its criminal investigation into Mitchell's conduct.*fn9 Though Rivas's state post-conviction attorneys submitted requests under New York's Freedom of Information Law requesting information regarding the investigation, the County provided only one page (a press release) in response, stating that other materials were non-final agency records and attorney work product. See Remand Hearing Tr. at 208. Rivas's attorneys also persuaded a state Supreme Court justice to conduct an in camera review of the County's investigation of Mitchell in 1998, but the judge determined that the documents would not be provided to Rivas.*fn10

In any case, whether it was out of an "eager[ness] to please the prosecutor," Appellant's Br. at 5, as Rivas suggests, or based upon an independent reevaluation of the medical record, it does appear that sometime in 1992, Mitchell reconsidered his estimate of the time of death. The grand jury's indictment alleges that Rivas killed Hill "on or about" Friday, March 27, 1987. The State has identified no new evidence that came to light between March 1987 and November 1992 that led to the indictment.*fn11 As far as the record reflects, therefore, the only thing that changed during that span of time was the medical examiner's estimation of the time of death.

C. The Trial of Hector Rivas

Rivas was tried before a jury in March 1993, with now-deceased Onondaga County Court Judge J. Kevin Mulroy presiding. He was represented by Richard J. Calle, an attorney then practicing in Queens, New York. Rivas, who had moved downstate, hired Calle because Calle happened to be representing him in a civil arbitration matter in the fall of 1992, around the time the District Attorney's Office renewed its investigation of him in connection with Hill's murder. See Section 440.10 Hearing Tr. at 11. Calle did not work out of a formal business office and, on the occasions that he met with Rivas prior to Rivas's incarceration, those meetings were typically held in Rivas's sister's apartment or at a local diner.*fn12

1. The People's Direct Case

The People's case was almost entirely circumstantial.*fn13 District Attorney Fitzpatrick, who tried the case himself, presented Rivas as an obsessive, jilted lover who harassed Hill following their breakup and was pushed over the edge when he learned that Hill was planning to take a trip to the Bahamas alone. Trial Tr. at 1127-28. As Fitzpatrick summarized: "Hector Rivas stalked this woman [for] two and a half months, and finally strangled her and killed her in a jealous rage on March the 27th of 1987." Id. at 1069.

Trial testimony and exhibits supported at least part of this theory. Friends of Hill testified that Rivas persisted in contacting Hill on a regular basis, even after she had made clear that she did not want to continue or revive their relationship. In addition, the prosecution introduced dozens of notes, cards, and letters that Rivas had written to Hill in the months between their breakup and her death. See id. at 1092-97. Police investigators also testified regarding Rivas's strange behavior when he was first questioned, including his lack of reaction when he was told that Hill had died. Id. at 247.

Several witnesses testified regarding Rivas's whereabouts on Friday, March 27, 1987, the alleged date of the murder. Taken together, the testimony of these witnesses suggested that there may have been a window of time during which Rivas could have gone to Hill's house and strangled her while en route from Coleman's in Syracuse to Albert's in Cazenovia, about thirty minutes away. Prosecution witnesses testified that Rivas left Coleman's at around 9:00 or 9:30 p.m. and did not arrive at Albert's until sometime between 11:00 p.m. and 12:30 a.m. Id. at 461-63, 439-40, 849. One witness, a clerk at a liquor store near Hill's apartment, testified that he saw Rivas enter the store between 9:30 and 10:00 p.m. Id. at 496-99. Two witnesses testified that they observed Rivas smoking a cigarette in his car, which was parked outside Hill's house, sometime between 11:00 p.m. and 12:00 a.m. that night--around the time that the prosecution theorized Hill was murdered. Id. at 533-34, 936-37.*fn14

Beyond making the case that Rivas had motive and the opportunity to murder Hill on Friday night, Fitzpatrick deftly turned Rivas's alibi for Saturday against him. Through witness testimony and in his opening and summation, Fitzpatrick suggested that Rivas had contrived to be seen by many people at all hours of the day Saturday and into Sunday morning, so that he would have an alibi in the event that police focused on Saturday evening as the time of death. See, e.g., id. at 1084, 1124. For example, Elizabeth Lewis, one of Hill's friends, testified that Rivas sought her out at a party Saturday evening and remarked that "[i]t's too bad Valerie's not feeling well, that she can't be here tonight." Id. at 780. The implication, according to the prosecution, was that Rivas wanted to plant the idea in Lewis's mind that Hill was alive on Saturday evening, knowing that he was at that very moment cementing his alibi. See id. at 1124.*fn15

Similarly, Fitzpatrick emphasized a seemingly exculpatory item of evidence: a Stephen King novel that Hill had checked out from the Cazenovia Public Library, and which a witness had seen in the back seat of Hill's car on Friday afternoon. See id. at 190-91. The book was returned to the library's drop box sometime between Saturday afternoon and Sunday morning, suggesting that Hill (the most likely person to have returned it) was alive at least as late as Saturday afternoon. But Fitzpatrick theorized that it was Rivas who returned the book, hoping that it would cause investigators to believe that Hill was not killed on Friday night, when his alibi was relatively weaker. Id. at 54-55, 1085.*fn16

Finally, the People elicited testimony from Joe Fields, an acquaintance of Rivas, who encountered him at Albert's bar approximately three weeks after the murder. Rivas had been drinking heavily and was crying over Hill's death. According to Fields, at a moment when Rivas did not know that Fields was in earshot, he said to himself, "Valerie, Valerie, I didn't mean to do it." Id. at 817-18.

2. The Medical Examiner's Testimony

No matter how much circumstantial evidence the prosecution could amass tending to link Rivas to the crime, however, it had no case unless it could prove that Hill died on Friday night. Fitzpatrick himself acknowledged that Rivas's alibi was "complete--for Saturday night." Id. at 55. Indeed, it was the People's position that Rivas's alibi was so strong on Saturday night precisely because he had concocted it, having murdered Hill the night before. Therefore, the prosecution's case rested almost entirely on the testimony of Mitchell, the medical examiner, to persuade the jury that Hill died on Friday night and not on Saturday as Mitchell had initially determined.

Mitchell testified that, when he first observed Hill's body on the afternoon of Monday, March 30, it "was in rigor," and that by the time he performed an autopsy later that day, "[s]he was coming out of rigor." Id. at 869, 872.*fn17 He cautioned that no medical examiner can pinpoint with certainty the time of a person's death, id. at 886, but stated that, based on his observations of the body, there was nothing inconsistent with Hill having died on either the night of Saturday, March 28, or Friday, March 27. Id. at 888. However, taking into account a number of external factors--namely, that Hill's cat was seen outside on Saturday morning; that Hill had not been seen after Friday; that she never contacted the friend whom she intended to visit that weekend; that her car had apparently not been driven since Friday; and that she had not been in touch with her father despite the fact that his wife was gravely ill--Mitchell opined that "it's more likely that she died Friday night, to possibly very early Saturday morning" than on Saturday night. Trial Tr. 889-90. He also stated his opinion "within a reasonable degree of medical certainty" that Hill died as a result of being strangled. Id. at 891.*fn18

Confronted on cross-examination with contemporaneous newspaper accounts that reported on his preliminary findings, Mitchell admitted that he "[q]uite possibly" had estimated at some point that Hill died late on Saturday night or early Sunday morning. Id. at 895-96.*fn19 Mitchell also conceded that, when he testified before the grand jury in November 1992, he had stated that it was merely "on the outside edge of [ ] possibility" that Hill could have been murdered on Friday night. Id. at 907. At trial, however, he insisted that he had never "tied [himself]" to a Saturday night estimate. Id. at 895. He stressed that the onset and relaxation of rigor mortis was highly variable and could be slowed, for example, by cold temperatures, id. at 905-06. Although Mitchell thus acknowledged that in most cases rigor mortis relaxes within twenty-four to forty-eight hours (which would put Hill's time of death somewhere between Saturday and Sunday afternoon), he suggested that the cool temperatures in Hill's apartment could have retarded the process.

On redirect examination, Mitchell explained that, when he testified before the grand jury several months earlier, he had not reviewed "some of [his] notes and slides." Id. at 915. Having had the opportunity to review the "slides" before trial, he noticed in them "some decomposition to the brain." Id. This, he stated, "tends to push the [time] limits further out." Id.*fn20

3. Belated Disclosure of Exculpatory Evidence

At the close of the People's case, Fitzpatrick disclosed the existence of an August 1988 affidavit from one Joe Morgan, in which Morgan attested that an individual named Patsy Barricella had admitted to Morgan that he (Baricella) murdered Hill. Trial Tr. at 947-48.*fn21 Recognizing that this evidence was "exculpatory without a doubt," id. at 984, the trial judge allowed Calle, Rivas's attorney, to decide whether to adjourn and attempt to call Morgan or Barricella as witnesses, or instead to bring out the information contained in the affidavits by examining the Syracuse police officer who had interviewed Morgan. Calle opted to draw the information out of the police officer, Michael Ostuni. Id. at 987. According to Ostuni, Morgan claimed that he had a conversation with his friend and neighbor Barricella in March 1988, at which time Barricella confessed to killing "the girl on Hickok Avenue." Section 440.10 Mot. Exh. 8. In addition, Barricella had, according to Morgan, driven by the crime scene several times as police were investigating Hill's murder and was stopped by police as a result. (Indeed, a contemporaneous police report revealed that Barricella was stopped by police after driving by the crime scene repeatedly. See Section 440.10 Mot. Exhs. 9 & 10.) However, on cross-examination by the District Attorney, Ostuni also testified that Morgan was a con artist and career criminal who had contacted the police from a county jail cell, demanding release as a quid pro quo for cooperation. Trial Tr. at 998-1000. Ostuni further testified that Barricella was known to be "mildly mentally retarded." Id. at 1001.

4. Rivas's Direct Case

Beyond the testimony of Ostuni, Rivas's direct case was underwhelming. As Calle later testified, he did not appreciate at trial that the precise time of Hill's death was important because he felt that Rivas had a strong alibi throughout the entire weekend. He therefore never considered calling an expert forensic pathologist to challenge Mitchell's adjusted findings. See Section 440.10 Hearing Tr. at 85, 87. He did attempt to establish that Hill was alive on Saturday by calling a prosecution witness, Hill's upstairs neighbor, to read from an affidavit in which she had stated that she had seen Hill in their shared basement that morning. However, on cross-examination by Fitzpatrick, the witness readily conceded that she had been mistaken in her affidavit and had in fact seen Hill on Friday morning, not the following day. See Trial Tr. at 927-932. Calle also attempted to establish Rivas's alibi by calling a single witness who claimed to have seen Rivas at Albert's in Cazenovia as early as 7:30 p.m. on Friday. Id. at 967. Finally, he called a witness who testified that Rivas was acting normally on Saturday night. Id. at 974. Rivas did not testify in his own defense, and claims that Calle never informed him of his right to do so. Section 440.10 Hearing Tr. at 17-18.

5. Summations

In his closing argument, Calle argued that the Hill murder had been solved backwards: The police and the District Attorney's Office had decided at the outset that Rivas was the killer and then set out to find, or fabricate, the proof of the murder from there, ignoring other potential leads along the way. Trial Tr. at 1044. With respect to the time of death, Calle argued that Mitchell had to stretch science beyond the breaking point to opine at trial that it was more likely that Hill had been killed on Friday than on Saturday, when Mitchell had previously testified before the grand jury that a Friday time of death was only "on the outside limits of possibility." Id. at 1062. Calle did not explicitly challenge Mitchell's credibility or suggest that he might be beholden to the District Attorney's Office. Indeed, Rivas claims that neither he nor Calle were aware of the investigations into Mitchell's conduct at the time of the trial, despite their widespread publicity in the weeks leading up to the trial, apparently because they both then lived downstate. See § 2254 Petition at iv; Remand Hearing Tr. at 271-72.

Fitzpatrick, in his summation, defended Mitchell's estimates:

[A]s [Dr. Mitchell] told the grand jury, rigor mortis, the stiffening of the body after death, normally begins to pass off within 24 to 48 hours. If we were looking at a calendar, this would put the normal time of death or the normal median time of death sometime Saturday afternoon. Could it have been 16, 17, 18 hours earlier? Absolutely. Absolutely. Heating conditions refer, first of all, to 75 degrees. It wasn't the temperature of the house. The temperature of the house was 62 ...


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