|William Ernest Kuenzel|
Attorneys for Alabama death row inmate William Ernest Kuenzel filed an appeal to the U.S. Supreme Court this week seeking a ruling that would allow him to present new evidence that they say will prove his innocence.
Kuenzel was convicted in the 1987 shooting death of a Sylacauga convenience store clerk during a robbery. He has gained support for his claims of innocence from a group of lawyers, former district attorneys, ministers, and actors, including Law & Order actor Sam Waterston.That group filed a brief supporting Kuenzel's innocence to the Alabama Supreme Court, which refused to hear the case in April.
In the appeal to the U.S. Supreme Court on Monday Kuenzel's attorneys state that in 2010, and during federal proceedings, attorneys for Alabama disclosed "critical exculpatory evidence" that it failed to turn over during Kuenzel's capital trial, which they say violated previous federal rulings.
"This new evidence completely undermines Mr. Kuenzel's already tenuous capital conviction and vindicates his long-maintained position that he is actually innocent. Regardless of one's views on the broader questions surrounding capital punishment, this particular case presents the intolerable risk that an innocent man will be put to death without any consideration of new exculpatory evidence that gravely undermines the already limited evidence supporting his conviction," according to the U.S. Supreme Court petition.
After a federal petition was denied on procedural grounds, Kuenzel returned to Alabama state court and filed a second state petition based on the evidence that the state prosecutors had newly disclosed during the federal habeas proceedings, according to the U.S. Supreme Court petition. But under Alabama law, Kuenzel was blocked from seeking state habeas relief during the pendency of his federal habeas proceedings because of state law that prohibits prosecuting 2 actions in the courts of Alabama "at the same time for the same cause and against the same party." "Unusually, Alabama has interpreted this provision to apply to concurrent litigation in Alabama federal courts, and mandates dismissal when a 2nd suit for the same cause is brought," the U.S. Supreme Court petition states.
"Yet the Alabama Court of Criminal Appeals rejected Mr. Kuenzel's habeas petition as untimely under Alabama Rule of Criminal Procedure 32.2(c), which requires that successive state habeas petitions based on newly discovered evidence be brought within 6 months of the discovery of that evidence," the petition states. "By this rule, Mr. Kuenzel was required to file a successive state habeas petition while his federal habeas proceedings were pending, even though Alabama Code # 6-5-440 would have required the dismissal of such a duplicative suit."
The question Kuenzel's attorneys have posed to the U.S. Supreme Court is this: "Whether it is fundamentally unfair and violates the Due Process Clause of the Fourteenth Amendment to require a capital habeas petitioner to bring a successive state habeas petition within six months of the discovery of new evidence, when Alabama Code # 6-5-440 would have simultaneously barred such a suit."
Kuenzel was convicted in the shooting death of clerk Linda Offord. His roommate Havey Venn pleaded guilty as an accomplice.
Venn testified that Kuenzel suggested robbing the store. A number of witnesses testified to seeing Venn's 1984 Buick Regal automobile at the store the night of the murder and an unidentified man in the front passenger seat.
Venn testified that he sat in the car while Kuenzel went inside the convenience store with a 16-gauge shotgun. Venn heard a shot and saw the clerk fall backwards, according to court records.
A 16-year-old witness also testified she was riding in a car past the store about an hour before the murder and that she saw Venn and Kuenzel inside the store. Without her identification, the evidence was insufficient to convict Kuenzel because state law requires that accomplice testimony be corroborated, attorneys have argued.
The evidence Kuenzel says is new evidence is that grand-jury testimony of the 16-year-old girl, first disclosed in 2010, indicates she could not identify Kuenzel as the man she saw in the convenience store the night of the murder, Moore states. Because the discovery of that evidence occurred more than 2 decades after Kuenzel's conviction, his only procedural route for bringing that evidence before the circuit court for a hearing was a new petition filed within 6 months of discovery of that evidence, he stated.
Kuenzel filed his current petition in September 2013, long past the 6-month filing deadline. That deadline, however, under extraordinary circumstances may be disregarded, Alabama Chief Justice Roy Moore wrote in an opinion in the case.
Kuenzel argued he had found out about the testimony transcripts while he was litigating an appeal in federal court. The Court of Criminal Appeals, perceiving no reason why Kuenzel could not file his 2nd petition while his federal case was proceeding, affirmed the circuit court's finding that the petition was untimely.
"Ordinarily, that would be the end of the matter. Because of the irreversibility of the death penalty, however, I believe some leeway may be warranted in this case," Moore stated in his opinion.
Among the evidence Kuenzel's defense team say they have uncovered since the trial that jurors never heard or saw include:
--Venn's gun was a .16 gauge shotgun after all despite Venn having claimed it was a .12 gauge. Offord had been shot with a .16 gauge.
--Grand jury testimony by a prosecution witness, who had testified at trial that she saw both Kuenzel and Venn inside the store, was not shown to jurors. During the grand jury testimony she stated she couldn't identify the men.
--Venn's girlfriend said Venn was alone and was not with Kuenzel that night.
--Police notes, which the defense team got in 2010, show Venn had first told police he was another man, but police never tried to find that man.
--A police officer noted Venn had injuries consistent with that of the victim.
--Venn needed money for an attorney to defend himself at an upcoming drug trial.
--The shotgun Kuenzel had borrowed had been returned to the relative days before the shooting.
Among the evidence the jury did have was that Venn had blood from the victim on his clothing and Kuenzel didn't, the lawyers have also argued. Also, Kuenzel and his step father both testified that Kuenzel was asleep at home, without access to a car, that night.
Source: al.com, August 18, 2016
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