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Tempest v. State

Superior Court of Rhode Island

July 13, 2015

RAYMOND D. TEMPEST, JR.
v.
STATE OF RHODE ISLAND

Providence County Superior Court

For Plaintiff: Michael Kendall, Esq.; Matthew R. Turnell, Esq.; Katherine Dyson, Esq.; Lauren E. Jones, Esq.; Betty Anne Waters, Esq.

For Defendant: Aaron L. Weisman, Esq.; Christopher Bush, Esq.; Jeanine P. McConaghy, Esq.

DECISION

PROCACCINI, J.

"The arc of the moral universe is long, but it bends towards justice."

- Martin Luther King, Jr.

Before the Court is the application of Raymond "Beaver" Tempest (Mr. Tempest) for postconviction relief, seeking to vacate his conviction. As this Court considers Mr. Tempest's petition, it is mindful that this case has consumed the collective consciousness of northern Rhode Island-especially the City of Woonsocket-for the past thirty-three years. Emblematic of our state's compact size, this is a case about which many hold an opinion; everyone seems to know someone involved or something about the facts surrounding the tragic murder of Doreen Picard and the subsequent conviction of Mr. Tempest for that crime. Notwithstanding this widespread public interest, debate, and opinion, it is the Court's duty to undertake a detached and neutral analysis, conscientiously applying the law of the State of Rhode Island to the expansive factual record that has been developed by the parties.

On April 22, 1992, Mr. Tempest was found guilty of second degree murder for brutally beating Doreen Picard to death with a lead pipe ten years prior. Having maintained his innocence throughout incarceration, Mr. Tempest now contends that his conviction must be overturned in light of newly discovered evidence, governmental misconduct in violation of due process guarantees, ineffective assistance of counsel, as well as clear evidentiary support for his innocence. For the reasons discussed below, Mr. Tempest's petition is hereby granted. Jurisdiction is pursuant to G.L. 1956 §§ 10-9.1-1 et seq.

I

Facts and Travel

The following narrative offers a succinct glimpse into the crimes that transpired on February 19, 1982 and the events that unfolded thereafter. To present the entire saga of this case-with all of its baffling twists, turns, and seemingly incongruent particulars-would serve only to confound the reader and muddy the waters of a thirty-three year old case, the factual complexity of which stands unparalleled in the history of Rhode Island postconviction relief.[1]Other relevant details will be provided, where necessary, in the body of this Court's analysis.

At approximately 3:20 on the afternoon of February 19, 1982, fifteen-year-old Lisa Wells[2] (Lisa or Ms. Ladue) came home to the triple-decker apartment at 409 Providence Street in Woonsocket, Rhode Island. She checked the mail, walked around the exterior of the building, and entered the tenement home through the back door. (Trial Tr. 541:24-25, Apr. 1, 1992.) En route, according to her testimony at trial, she noticed an unfamiliar maroon car parked in the driveway. Id. at 541:4-13. When Lisa entered the building, she noticed three-year-old Nicole Laferte (Nicole) sobbing in the hallway, saying that her "mother was downstairs sick."[3] Id. at 542:2. Lisa brushed off Nicole's actions as a cry for attention "because [she] heard some moving around downstairs" and went up to her apartment. Id. at 542:3-4.

Mr. Heath arrived home from work ten minutes later and, like Lisa, entered the apartment building through the back. At the time he arrived, the driveway was empty. (Trial Tr. 147:20-22, Mar. 30, 1992.) When he walked in the rear hallway on the first floor, he saw Nicole, still crying, and "[s]tanding at the door to go down into the cellar." Id. at 148:16. Mr. Heath stopped and asked Nicole what was wrong. Nicole replied that her mother was downstairs, "lying down." Id. at 149:16.

When Mr. Heath descended the stairs into the basement, he was met with a grisly scene. As he stated at trial, "there was blood everywhere[;] . . . it was on everything[, ]. . . splattered . . . on the pipes[, ] . . . on the washer and the dryer [and] on the floor." Id. at 151:4-18. "[L]ooking across the cellar[, ] [Mr. Heath] saw a body, a person, between the washer and the dryer sitting . . . . [He] couldn't recognize who th[e] person was [because there] was so much blood[.]" (Trial Tr. 138:25-139:3, Mar. 27, 1992.) Mr. Heath would later learn that this person was his upstairs neighbor, twenty-two-year-old Doreen Picard. Next, he looked around and saw Ms. Laferte on the left side of the basement, "lying face down in a pile of -- puddle of blood." Id. at 139:5-6.[4]Sensing the urgency of the situation, Mr. Heath ran upstairs to call the police to get help for the two women who had been so brutally attacked. Id. at 139:6-7. He also grabbed two towels, presumably hoping to render some first aid. Id. at 140:18. However, when Mr. Heath returned back to the cellar, he "just looked around" and realized "the towels w[ould]n't [be] of any help[.]" Id. at 140:20-22.

Due to the extent of the injuries sustained and the deluge of blood at the scene, first responders believed the attacks were the result of a shooting. It was only later, upon Ms. Laferte's admission to the hospital, that it was learned the wounds were the result of blunt force trauma. (Trial Tr. 193:13-18, Mar. 30, 1992.) Meanwhile, the crime scene was "never properly secured" or "cordoned off" while a swarm of officers packed into the basement. (Trial Tr. 2066:6-7, Apr. 20, 1992.) Nevertheless, the only person available to gather evidence was "totally unfamiliar with B.C.I.[5] procedures and the handling of the evidence." Id. at 2066:13-14. Midway through the night, the police captain arrived, having "spent several hours in a bar" before taking the reins in directing the processing of the scene. Id. at 2068:7.

The investigation at 409 Providence Street was conceded to be "a disaster" by the State. Id. at 2065:5-6. Assistant Attorney General James Ryan (Mr. Ryan) stated at trial that the severe lack of physical evidence was due to the fact that "the job [i.e. the necessary investigatory procedures] didn't get done" and that "[e]very police officer from the Woonsocket Police Department seems to have been there except for the ones who should have been there." Id. at 2066:20-23. Noting the "chaos" and "disorder" surrounding the collection of evidence, Mr. Ryan went on to say that "the end result[] is that the crime scene was contaminated." Id. at 2067:14-17. Nevertheless, four days after the murder, the police were able to locate a lead pipe that Mr. Ryan would later identify as the murder weapon at trial. Despite the efforts of the Woonsocket Police Department, for nine long years no one was charged in connection with this heinous act until, on June 5, 1991, a Grand Jury indicted Mr. Tempest for the murder of Doreen Picard.

Then, in April 1992, he was put on trial. The State put forward a parade of witnesses- Ronald Vaz, John Guarino, Donna Carrier, and Loretta Rivard-each claiming that Mr. Tempest had confessed to Doreen Picard's murder in his or her presence years earlier. In spite of a dearth of physical evidence tying Mr. Tempest to the scene and at least partial impeachment of these inculpatory witnesses, Mr. Tempest was found guilty. His conviction was affirmed by our Supreme Court on January 11, 1995. State v. Tempest, 651 A.2d 1198 (R.I. 1995). Twenty years later, the Court now considers Mr. Tempest's petition for postconviction relief.

II

Standard of Review

Postconviction relief is a statutory remedy for

"[a]ny person who has been convicted of, or sentenced for, a crime, a violation of law, or a violation of probationary or deferred sentence status and who claims:
"(1) That the conviction or the sentence was in violation of the constitution of the United States or the constitution or laws of this state; [. . .]
"(4) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;
"(5) That his or her sentence has expired, his or her probation, parole, or conditional release unlawfully revoked, or he or she is otherwise unlawfully held in custody or other restraint; or
"(6) That the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy[.]" Sec. 10-9.1-1(a).

In pursuing such claims, a petitioner "bears the burden of proving, by a preponderance of the evidence, that he is entitled to postconviction relief." Burke v. State, 925 A.2d 890, 893 (R.I. 2007) (citing Larngar v. Wall, 918 A.2d 850, 855 (R.I. 2007)). The proceedings for such relief are "civil in nature." Ouimette v. Moran, 541 A.2d 855, 856 (R.I. 1988) (citing State v. Tassone, 417 A.2d 323 (R.I. 1980)). In accordance with the statute, "[t]he court shall make specific findings of fact, and state expressly its conclusions of law, relating to each issue presented." Sec. 10-9.1-7.

III

Analysis

A

Laches

Before diving headlong into the substance of Mr. Tempest's claims, the Court must first address the threshold matter of the State's affirmative defense, which it claims is a complete bar to the instant action. The State asserts the equitable doctrine of laches, claiming that Mr. Tempest's twenty-year slumber before bringing this petition bars any path to relief. [6]

The doctrine of laches is embodied in the maxim that "those who sleep on their rights must awaken to the consequence that they have disappeared." Jackson v. Thomson, 53 A. 506 (Pa. 1902). In Raso v. Wall, our Supreme Court held that laches is applicable in the context of postconviction relief, despite statutory language that such a petition "may be filed at any time." 884 A.2d 391, 395 (R.I. 2005) (citing § 10-9.1-3). In order to prevent an unlimited Open Season on postconviction petitions, the Court "construe[d] the statutory term [within § 10-9.1-3] as meaning at any reasonable time." Id. (emphasis in original). As such, "the state has the burden of proving by a preponderance of the evidence that the applicant unreasonably delayed in seeking relief and that the state is prejudiced by the delay." Id. (emphasis in original). These issues are questions of fact dependent on the circumstances of a particular case. Id. at 396 (citing Lombardi v. Lombardi, 90 R.I. 205, 209, 156 A.2d 911, 913 (1959)). The Court is vested with equitable discretion to weigh the laches defense, Andrukiewicz v. Andrukiewicz, 860 A.2d 235, 241 (R.I. 2004), and must make appropriate findings of fact and conclusions of law in support of its decision. Raso, 884 A.2d at 396.

"While it is important that one convicted of crime in violation of constitutional principles should be accorded relief, it is also important that reasonable diligence be required in order that litigation may one day be at an end." Honeycutt v. Ward, 612 F.2d 36, 42 (2d Cir. 1979). "The law ministers to the vigilant not to those who sleep upon perceptible rights[;] . . . a criminal defendant cannot routinely be rewarded for somnolence and lassitude." Puleio v. Vose, 830 F.2d 1197, 1203 (1st Cir. 1987). As such, "[t]here comes a time when the 'prejudice' precondition to a finding of laches can be presumed." Mattatall v. State, 947 A.2d 896, 900 n.6 (R.I. 2008) (citing N. Trust Co. v. Zoning Bd. of Review of Westerly, 899 A.2d 517, 520 (R.I. 2006) (mem.)). Nevertheless, "mere lapse of time is not enough to support a claim of laches." Goff v. U.S. Fid. & Guar. Co., 72 R.I. 363, 371, 51 A.2d 558, 562 (1947). It is well-settled that "any excuse for delay, which excuse takes hold of the conscience of the [court] and makes it inequitable to interpose the bar of laches, is sufficient." Id. Simply put, laches "eschews mechanical rules" and relates solely to "the inequity of permitting the claim to be enforced[.]" Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946). "The courts are reluctant to sustain the defense of laches, and in a case where the delay in filing the suit can be reasonably explained or justified, such a defense will not be heard." Whitehaven Util. Dist. of Shelby Cnty. v. Ramsay, 387 S.W.2d 351, 353 (Tenn. 1964).

Accordingly, in order to succeed on its laches defense, the State must do more than merely cry prejudice: it must prove that Mr. Tempest's delay was "inexcusable" and "unexplained[.]" Raso, 884 A.2d at 396 (internal citations omitted); see Sandvik v. Alaska Packers Ass'n, 609 F.2d 969, 973 (9th Cir. 1979) (holding that under the doctrine of laches, "the presence of prejudice does not necessarily require dismissal"). To properly decide this issue, the Court must examine whether '"there has been a lack of due diligence on the part of the defendant in bringing forth the claim[.]"' Raso, 884 A.2d at 395-96 (quoting Wright v. State, 711 So.2d 66, 67 (Fla. Dist. Ct. App. 1998)); see also Morales v. Moore-McCormack Lines, Inc., 208 F.2d 218, 221 (5th Cir. 1954) (holding that, in order to avoid laches defense, a party is "required to proceed with the diligence of an ordinarily prudent person"); Holland v. Florida, 560 U.S. 631, 653 (2010)) (stating, in the analogous context of equitable tolling for federal habeas petitions, that due diligence "is reasonable diligence, not maximum feasible diligence") (internal citations and quotations omitted). Especially in the context of postconviction relief, "[c]ourts must 'indulge every reasonable presumption against waiver' and 'acquiescence in the loss of fundamental rights' is not to be presumed." Hamilton v. Watkins, 436 F.2d 1323, 1326 (5th Cir. 1970) (finding no "waiver based on delay of appellant in asserting his rights") (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938).

Delay may be reasonable when "used to evaluate and prepare a complicated claim"[7]; "when 'lack of funds precludes a party from retaining a lawyer to pursue a claim'"[8]; or when a petitioner "continue[s] to voice his objections . . . and attempt[s] to become fully informed and resolve the matter, "[9] rather than stand "mute . . . [in] protracted silence"[10] and acquiesce. Importantly, "[l]aches will not be imputed to one who has been justifiably ignorant of the facts creating his right or cause of action, and who, therefore, has failed to assert it." Alexander v. Phillips Petroleum Co., 130 F.2d 593, 606 (10th Cir. 1942).[11]

In the instant petition, Mr. Tempest brings a series of claims in support of vacating his 1992 conviction: newly discovered evidence regarding DNA test results and factual inconsistencies related to inculpatory witness statements, disclosure violations under Brady, [12]violation of due process rights resulting from police incompetence and misconduct leading to the procurement and presentation of fallacious testimony, as well as ineffective assistance of counsel. It is apparent to the Court that the discovery of the bases for these distinct claims arose, or should have arisen, at different points in the time leading up to the filing of the instant petition. However, considering the myriad issues developed as potential claims (which are all inextricably linked), as well as the scope and complexity of the case as a whole, the most balanced and equitable approach is to examine Mr. Tempest's general course of conduct over the past twenty years. See A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1038 (Fed. Cir. 1992) (holding that the "facts of unreasonable delay . . . must be proved and judged on the totality of the evidence presented"); Lavin v. Bd. of Educ. of City of Hackensack, 447 A.2d 516, 521 (N.J. 1982) (finding it "fair and equitable to treat all claims . . . in like manner" for the purposes of laches). As such, this Court must look to whether his actions are marked by "somnolence and lassitude, " Raso, 884 A.2d at 394 n.8 (internal citations omitted), or whether he has demonstrated "the diligence required of [a] reasonably prudent person[.]" Morales, 208 F.2d at 221.

After consideration of the testimony and exhibits outlining the efforts of Mr. Tempest to develop a comprehensive, multi-claim postconviction relief petition, the Court finds that Mr. Tempest's delay was not unreasonable, and, as a result, the State's defense of laches fails. Indeed, to hold otherwise would evince total ignorance of the harsh realities of Mr. Tempest's circumstances and this case as a whole. The record establishes that Mr. Tempest has maintained his innocence since the inception of his prosecution and, following affirmation of his conviction, worked alongside family and friends to set in motion the events that culminated in the New England Innocence Project convincing a sizeable and experienced international law firm to champion his cause before this Court.[13]

To fully comprehend the reasons for the twenty-year delay in bringing the instant petition, the Court must consider the unique "'circumstances of th[is] particular case.'" Arcand v. Haley, 95 R.I. 357, 364, 187 A.2d 142, 146 (1963) (quoting 30 C.J.S. Equity § 115 at 528). By way of background, Mr. Tempest dropped out of school in the ninth grade to work as a floor boy at a plastics manufacturing plant. (Tr. 6:16-8:4, Mar. 18, 2015). As a result, he struggled to read and write before obtaining his GED in prison in the early 2000s. Id. at 7:5-16. In the wake of his conviction and subsequent incarceration, Mr. Tempest lacked the funds with which to retain a postconviction attorney. Id. at 97:1-2. As such, he took it upon himself to repeatedly write letters to a minister-one Mr. McCloskey, who ran an innocence project in New Jersey- whom he had heard about from fellow inmates, seeking to enlist his help. Id. at 97:7-98:7. His pleas for assistance were unavailing, however, as Mr. Tempest was informed that his postconviction petition was "too much of a case for [Mr. McCloskey] to handle." Id. at 99:2-3.

Mr. Tempest also worked alongside Evelyn G. Munschy (Ms. Munschy)-whom he described as like a second mother, id. at 9:3-in looking into the circumstances surrounding the murder of Doreen Picard and its investigation by the Woonsocket Police Department. Ms. Munschy had first grown close to Mr. Tempest when he worked at her husband's automotive shop as a boy. (Tr. 3:22-4:25, Feb. 24, 2015.) They became so close, in fact, that during the course of Mr. Tempest's trial in 1992, Ms. Munschy and her husband put up their house as collateral for his bail. Id. at 8:8-10. Following the affirmation of his conviction, Ms. Munschy sought "to try to help him to prove his innocence." Id. at 9:3-4. Despite not having any legal training or experience as an investigator, id. at 9:22-25, Ms. Munschy "spent a lot of time going to the archives in Pawtucket, " id. at 11:5, and also hunted through the case file of Mr. William Dimitri, Mr. Tempest's attorney at trial and on appeal. Id. at 11:18-12:2.

In 2000, Ms. Munschy spent approximately thirty to forty thousand dollars of her own personal money to hire a private investigator, Martin Yant (Mr. Yant), to look into Mr. Tempest's case. Id. at 8:16-9:15. Over the course of Mr. Yant's investigation, Mr. Tempest spoke with Mr. Yant frequently on the telephone and had him visit the Adult Correctional Institute (ACI) on multiple occasions. (Tr. 29:14-15, Feb. 5, 2015.) By the end of Mr. Yant's involvement, he had billed over two hundred hours and performed a substantial amount of uncompensated work, id. at 86:12-16, reading transcripts provided by Ms. Munschy, scouring the Woonsocket Police Department records, and working "on the ground" to retrieve information in Rhode Island. Id. at 30:12-20.

Despite the development of promising inroads over the course of eighteen months, the money ran out, and Ms. Munschy could no longer afford to pay for the investigator's services. (Tr. 10:11-17, Feb. 24, 2015.) Mr. Tempest's sister, Barbara Small, also contributed her personal funds towards paying Mr. Yant, similarly spending a substantial sum until she no longer had the capital to do so. Id. at 9:5-15; 10:14. Although the funds were no longer available to retain the private investigator, Ms. Munschy kept in contact with Mr. Yant, whereby he would answer any questions she and Mr. Tempest had as well as call them when he thought of something pertinent to the case. Id. at 10:15-17.

In 2001, Ms. Munschy began writing to Betty Ann Waters, Esq. (Ms. Waters) after seeing on television how she had "helped her brother become exonerated." Id. at 13:21-22.[14]Initially, Ms. Waters was unable to offer any assistance, stating that she "had no intention of pursuing a legal career" but wished Mr. Tempest luck. Id. at 13:24-14:2. Undeterred, Ms. Munschy reached out to the New England Innocence Project (the NEIP) repeatedly from 2001 to 2004. After four or five letters, Ms. Munschy was finally able to strike up a dialogue, and the NEIP agreed to review the case. Id. at 15:10-19. At this time, Ms. Waters was volunteering with the NEIP and, beginning in 2003, began reviewing the transcripts from Mr. Tempest's trial. (Tr. 37:10-38:18, Mar. 16, 2015.) She worked alongside the NEIP such that she "would do any of the ground work looking for evidence, talking to people in Rhode Island [while the NEIP] w[as] in charge of all the paperwork, any filings, all that kind of paperwork that they would do." Id. at 39:6-10.

In 2004, Ms. Waters filed a miscellaneous petition for deoxyribonucleic acid (DNA) testing in the Tempest case. Id. at 57:6-13. Once this petition was granted, she began "working with [the Attorney General]'s office trying to get the testing in order of what would be tested when and where." Id. at 58:11-12. Over the course of the next decade, she worked closely with the Rhode Island Department of Health and Orchid Cellmark to have DNA analysis performed on blood and hair recovered from the scene. She also sought to recover evidence that had been lost, ultimately finding some-while critical pieces such as Doreen Picard's sweater, which seemingly vanished in the chaos that was the crime scene at 409 Providence Street, remain lost. Id. at 63:11-64:2. Furthermore, notwithstanding some roadblocks outside Mr. Tempest's control-including when the law firm where the NEIP was housed in 2006 "fell apart, " id. at 99:24, and when Harvard Law School's innocence project team failed to "adequate[ly] review" his file in the academic year of 2010 (Tr. 14:8-16, Feb. 6, 2015)-Mr. Tempest and his legal team did not falter. Though requests for DNA testing began in 2004, the last results came over a decade later in 2015, forming the body of a core claim within the instant petition-newly discovered evidence. Additionally, it was not until late 2009 that the NEIP expanded its case review to include evaluation of non-DNA postconviction issues, which now comprise the majority of the petition before the Court. Id. at 12:13-21.

This marked doggedness in pursuit of relief by Mr. Tempest, his friends, family, and pro bono legal team[15] does not even begin to approximate the Rip Van Winkle-esque slumber on one's rights necessary for a finding of laches. Compare Harris v. Pulley, 885 F.2d 1354, 1367 (9th Cir. 1988) (finding no laches in habeas case where "counsel acted with reasonable diligence") with Lake Caryonah Improvement Ass'n v. Pulte Home Corp., 903 F.2d 505, 510 (7th Cir. 1990) (finding laches where plaintiff "behaved more like Rip Van Winkle than 'the early bird'"). Furthermore, despite the State's assertions to the contrary, Mr. Tempest's decision-in light of his limited resources-to focus on developing a potentially more promising claim rather than prioritize another does not somehow portend somnolence.[16]

Ultimately, "the applicability of the defense of laches in a given case generally rests within the sound discretion of the trial justice." Hazard v. E. Hills, Inc., 45 A.3d 1262, 1270 (R.I. 2012); accord Chambers of S.C., Inc. v. Cnty. Council for Lee Cnty., 315 S.C. 418, 421, 434 S.E.2d 279, 280 (1993) ("The court is vested with wide discretion in determining what is an unreasonable delay."). While laches is "an ad hoc balancing of equities, " Scholes v. Lehmann, 56 F.3d 750, 761 (7th Cir. 1995), the Court, in its examination of the relevant case law, views the following factors, as assembled, particularly instructive: (1) the complexity of the claims brought; (2) the relative resources a petitioner has at his disposal; (3) contribution to delay by the opposing party; and, most importantly, (4) the overriding interests of justice.

Delay resulting from a "complicated claim" that "require[s] much more time to evaluate and prepare" weighs against a finding of laches. Lotus Dev. Corp. v. Paperback Software Int'l, 740 F.Supp. 37, 82 (D. Mass. 1990). "Delay has been held permissible, among other reasons, . . . when it is used to evaluate and prepare a complicated claim[.]" Danjaq LLC v. Sony Corp., 263 F.3d 942, 954 (9th Cir. 2001) (internal citations omitted). Importantly, where "the length of the investigation is a reflection of the complexity of the fact pattern[, ] [the resulting delay] does not support a laches defense." Sec. & Exch. Comm'n v. Gulf & W. Indus., Inc., 502 F.Supp. 343, 348 (D.D.C. 1980); see also Blyer v. Domsey Trading Corp., No. 91 CV 1304, 1991 WL 148513, at *2 (E.D.N.Y. July 30, 1991) (finding delay "not excessive given the complexity of the case").

To begin, the Court notes that the State's attempt to meet its burden of proof in establishing its defense of laches falls woefully short, resting entirely on its cross-examination of witnesses and the offer of nine death certificates into evidence. See Raso, 884 A.2d at 395 (R.I. 2005) (holding that "the state has the burden of proving by a preponderance of the evidence that the applicant unreasonably delayed in seeking relief"). Despite its insistence that Mr. Tempest could have-at some undefined "earlier" time-utilized the Rhode Island Public Defender's Office or a court appointed attorney in developing his comprehensive postconviction petition, the State put forth no witness in support of such an assertion. Indeed, the State has failed to prove that Mr. Tempest's decision not to utilize the Public Defender's Office was somehow unreasonable; it has presented no evidence that the Public Defender's Office would have been able to a) take the case; b) dedicate sufficient resources to developing the present claims; or c) bring the petition faster than Mr. Tempest's counsel. See Louro v. State, 740 A.2d 343, 344 (R.I. 1999) (noting the "limited resources" of the Rhode Island Public Defender's Office).[17]

Ultimately, the Herculean task of investigating Mr. Tempest's case cannot be understated. At the outset, Mr. Tempest struggled to find anyone willing to take his case due to the staggering enormity of such an undertaking. Simply put, the breadth and scope of the case are considerable to say the least-any analysis by a putative legal team would require not only examination of the evidence gathered at the crime scene but also the fastidious scrutinizing of the paper trail of police and trial counsel's records leading up to, and through, the trial ten years later. Furthermore, once a defense team was assembled, they were forced to clear hurdle after hurdle in pursuing the instant petition; e.g., conflicting reports, a myriad of witnesses with contradictory statements, faded memories, and missing physical evidence. In fact, numerous witnesses involved in the preparation of the instant petition testified to the factual labyrinth encountered by any investigator bold enough to venture to tackle the case.

Mr. Yant, in the course of his work as a private investigator for twenty-four years and author of Presumed Guilty: When Innocent People Are Wrongly Convicted, has personally been involved in hundreds of so-called wrongful conviction cases. (Tr. 27:12-28:3, Feb. 5, 2015.) Of those hundreds of investigations-sixteen of which were successful, including two cases in which the petitioner had been initially sentenced to death-Mr. Yant noted that "only . . . one other case . . . was as complicated as the Tempest case." Id. at 33:22-23. Similarly, Gretchen Bennett, former Director of the NEIP, stated that this case was "without question the most complex, . . . [and] the most difficult . . . case[] that came through NEIP during [her] tenure there." (Tr. 12:9-12, Feb. 6, 2015.) Indeed, the State-after assembling a team of four seasoned attorneys to defend this petition-conceded in argument that this "was a complex massive case." Id. at 11:7-8.

With this in mind, the delay of approximately twenty years, while staggering on a superficial level, is of no moment. "[T]he mere lapse of time does not constitute laches." Hyszko v. Barbour, 448 A.2d 723, 727 (R.I. 1982). This is especially true in the postconviction context, where the investigation of a case frequently spans decades before facts surface such that it becomes ripe for review. The average length of incarceration for a falsely convicted prisoner exonerated by the Innocence Project is 14 years.[18] (http://www.innocenceproject.org/free-innocent/exonerating-the-innocent, retrieved Apr. 17, 2015 at 3:11 p.m.). The number is even higher in cases involving non-DNA claims. (Tr. 19:4-5, Feb. 6, 2015, testimony of Ms. Bennett) (stating that the national average for such claims is "somewhere around 18 years"). As such, "the cases recognize the great difficulty involved inasmuch as these cases are complex and call for painstaking preparation, all of which takes time." United States v. Lee Way Motor Freight, Inc., 625 F.2d 918, 935 (10th Cir. 1979) (rejecting laches defense in analogous context). After substantial effort by the NEIP working in conjunction with Suffolk University Law School, which reviewed and prepared this matter for referral, McDermott Will & Emery committed six lawyers to this case, expended over 6000 attorney and staff hours, and spent in excess of $161, 000 in investigatory expenses since 2012 in bringing Mr. Tempest's petition. (Aff. Michael Kendall, Ex. 138.) As is readily apparent, such pro bono services exhaust significant firm resources, and the State has offered no evidence that these services were rendered in an inefficient manner or without justification. Moreover, these efforts-both in labor and financial expense-further demonstrate the obstacles that a public defender or appointed counsel would have faced in representing Mr. Tempest.

Analogously, with regard to habeas petitions, federal courts in the past have looked to Rule 9(a), [19] "based upon the equitable doctrine of laches[, ]" to determine whether to consider the merits of such a claim. Davis v. Dugger, 829 F.2d 1513, 1518 (11th Cir. 1987). As the Eleventh Circuit noted, under this regime, "none of [its] prior decisions upholding Rule 9(a) dismissals [of habeas petitions] have involved delays of less than fifteen years between sentencing and the filing of the federal habeas petition." Id. at 1519. In fact, in applying Rule 9(a), federal courts refused dismissal even where the habeas petition was brought decades after conviction. See e.g., Myers v. Wash., 646 F.2d 355, 361-62 (9th Cir. 1981) aff'd on remand, 702 F.2d 766 (9th Cir. 1983) (internal citations omitted) (reaching merits despite twenty-year delay where "appellant could not have had knowledge of the grounds for his petition by the exercise of reasonable diligence before the prejudice occurred").

Furthermore, before the creation of Rule 9(a), circuit courts also similarly declined a finding of laches raised in response to delayed habeas petitions. See Hairston v. Cox, 459 F.2d 1382, 1386 (4th Cir. 1972) (finding no laches despite twenty-six-year delay between finality of conviction and filing for federal habeas relief); Hamilton, 436 F.2d at 1326 (same despite a thirty-eight-year delay); Hawkins v. Bennett, 423 F.2d 948, 951 (8th Cir. 1970) (same despite forty-two-year delay). As noted by Justice Scalia, prior to the AEDPA, "the passage of time alone could not extinguish the habeas corpus rights of a person subject to unconstitutional incarceration . . . [and] this doctrine was so well entrenched that the lower courts regularly entertained petitions filed after even extraordinary delays." Day v. McDonough, 547 U.S. 198, 215 (2006) (Scalia, J., dissenting). Accordingly, the chronological interval between Mr. Tempest's conviction and petition is neither unique nor dispositive. Furthermore, the length of time taken to develop the instant petition is particularly understandable in light of Mr. Tempest's limited ability, while incarcerated, to pursue the investigation necessary to bring these claims in a case which all parties agree is both massive in scope and inexorably complex.

With regard to the resources of the petitioner, the State's suggestion that Mr. Tempest's station in life is irrelevant[20] "is reminiscent of Anatole France's biting comment that 'The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread'" Powell v Zuckert, 366 F.2d 634, 638 (DC Cir 1966) (quoting Griffin v Illinois, 351 U.S. 12, 23 (1956) (Frankfurter, J, concurring)). As the Powell Court stated,

"The law need not be so blind. If poverty creates a barrier to litigation in particular cases, a court, in applying the equitable doctrine of laches, must open its eyes to this fact. If, as in this case, the evidence reveals diligence on plaintiff's part in attempting to overcome the barrier, then he has not slept on his rights and laches should be denied." Id.

Throughout Mr. Tempest's quest for postconviction relief, he was left to the charity of family, friends, and pro bono legal assistance to push his case forward. See South Carolina v. Stinney, Order Vacating Judgment at 9 (S.C. Cir. Ct. Dec. 17, 2014) (on file with author) (stating that, in granting coram nobis where defendant had been executed seventy years prior, "[w]hile this Court would have preferred this motion been brought twenty-five years earlier, . . . it is only now that legal counsel has offered pro bono services in an attempt to remedy a potential injustice")[21]; see also Horace v. Wainwright, 781 F.2d 1558, 1565 (11th Cir. 1986) (finding no laches where habeas petitioner "lacked funds and knowledge to take advantage of a lawyer's advice as to what, if any, protections were available to him"); Adam v. Adam, 624 A.2d 1093, 1096 (R.I. 1993) (holding that "plaintiff had an adequate excuse for delaying her claim" insofar as she "could not afford to retain an attorney").

Ms. Bennett of the NEIP testified that the case required "[v]ery brave counsel with significant resources." (Tr. 15:10, Feb. 6, 2015.) Ms. Munschy's courage is apparent in her tireless efforts to aid Mr. Tempest with his case, expending significant time and money-despite having no legal background-in order to further gather information supporting Mr. Tempest's claim of innocence. Ms. Waters' bravery is self-evident as well in her stubborn pursuit of the instant case for over a decade despite no personal remuneration. Furthermore, the substantial costs and attorney hours expended by McDermott Will & Emery as well as the NEIP demonstrate the expanse of resources necessary to properly delve into such an investigation.

Additionally, the Court takes particular note of the fact that a significant component of Mr. Tempest's claim-DNA analysis of crime scene evidence-stems from the right of an indigent defendant to seek such testing at state expense, a path unavailable in Rhode Island until 2002 through the enactment of § 10-9.1-12.[22] Once this statute was passed, Ms. Waters filed a timely motion seeking, and eventually obtaining by court order, the right to proceed with potentially exculpatory DNA testing. In this case, the State was ordered to expend a significant amount of money for such analysis. As Dr. Rick Staub of Orchid Cellmark testified, such testing does not come cheap-analyzing a single hair bears a price tag of $2850. (Tr. 130:5-8, Mar. 13, 2015.) In the preparation of Mr. Tempest's petition, nine hairs were tested over the course of the last decade. Ultimately, the upfront costs alone in investigating Mr. Tempest's case reached the level of several hundred thousand dollars. Simply put, this was no small undertaking-likely not within the resources of our Public Defender's Office[23] or a private attorney from the court appointment list.

Next, the Court turns to examine whether the State contributed to the delay in bringing the instant petition. While Mr. Tempest tries to avail himself of the doctrine of unclean hands- i.e., that whoever "comes into Equity must come with clean hands"-he does so fruitlessly. In re Hat, 363 B.R. 123, 139 (Bankr. E.D. Cal. 2007). Such a doctrine "'becomes operative only when a complainant must depend on his own improper conduct to establish his rights against the other parties to the suit.'" Sch. Comm. of Pawtucket v. Pawtucket Teachers Alliance, Local No. 930, AFT, AFL, 101 R.I. 243, 257, 221 A.2d 806, 815 (1966) (quoting Cirillo v. Cirillo, 77 R.I. 223, 226, 74 A.2d 440, 76 A.2d 71, 442 (1950)). The State does not raise the shield of laches up as a sword after having fraudulently interfered with Mr. Tempest's petition. See Cohn v. Kramer, 124 F.2d 791, 800 (6th Cir. 1942) ("The law of laches should be used as a shield and not a sword."). Even in the context of the alleged Brady violation, the State did not improperly interfere with Mr. Tempest's search for records after his conviction or wrongfully inhibit him from bringing the petition sooner. Cf. Meader v. Norton, 78 U.S. 442, 458 (1870) (holding that a defense of laches "cannot prevail where the relief sought is grounded on a charge of secret fraud").

Notwithstanding the lack of unclean hands, the State did contribute to Mr. Tempest's delay in substantial-albeit legally proper-ways, particularly with regard to the DNA testing. See N. Pac. Ry. Co. v. Boyd, 177 F. 804, 824 (9th Cir. 1910), aff'd, 228 U.S. 482 (1913) ("Where the party interposing a defense of laches has contributed to or caused the delay, he cannot take advantage of it."); Walker v. Oak Cliff Volunteer Fire Prot. Dist., 807 P.2d 762, 768 (Ok. 1990) ("When delay is caused by an adverse party, that party may not use the defense to his/her benefit."). Despite having obtained a conviction based entirely on circumstantial evidence, the State vigorously opposed Mr. Tempest's request for DNA testing (Tr. 57:22-23, Mar. 16, 2015), and filed a Motion for Extension of Time to review their records and to review their own transcripts, ultimately delaying the grant for testing by six months. Id. at 58:1-8. Additionally, the State caused a delay of ten months before allowing testing of a sample that had to be consumed for a proper assay. (Tr. 34:19-35:9, Mar. 31, 2015.) As such, "the [State] w[as] not exactly cooperative. [It] fully exercised [its] rights and then some, all of which uses time." Lee Way Motor, 625 F.2d at 935 (denying laches defense).

Finally, this Court must consider the overriding interests of justice. Despite the State's apparent wishes to the contrary, "[i]nvocation of the word 'laches' does not automatically lock the courthouse door." Matter of Henderson, 577 F.2d 997, 1002 (5th Cir. 1978). Ultimately, in order for laches to bar Mr. Tempest's claims, the State "must show [that] it would be inequitable to allow [him] to enforce his legal rights." Kipperman v. Onex Corp., 411 B.R. 805, 887 (N.D.Ga. 2009) (citing Angel Flight of Ga., Inc. v. Angel Flight Am., Inc., 522 F.3d 1200, 1207 (11th Cir. 2008)). Mr. Tempest has leveled serious charges against the Woonsocket Police Department and this state's Attorney General's Office. These allegations of a concerted effort, borne of ill will towards the Tempest family, to manipulate witness statements and physical evidence in order to paint a portrait of Mr. Tempest as a violent, wicked and remorseless killer must be closely scrutinized. "The doctrine of laches was never intended to protect a wrongdoer or to bring about an end which is inequitable and unjust." Messick v. Mohr, 10 N.E.2d 870, 873 (Ill.App.Ct. 1937). In light of Mr. Tempest's pointed accusations, this Court would be complicit in a gross miscarriage of justice if it were to simply slam the courthouse doors shut to such claims that strike at the heart of due process guarantees. See Moore v. Commonwealth, 357 S.W.3d 470, 495 (Ky. 2011), as modified on denial of reh'g (Nov. 23, 2011) (holding, in addressing whether laches bars postconviction relief in a particular case, that the alleged prejudice "is outweighed by the [state's] concomitant duty to pursue justice and serve the law, which is owed to everyone in this [state], including criminal defendants and convicted persons"); United States v. Mason, 497 F.Supp.2d 328, 329 (D.R.I. 2007) ("[T]o deny the complainants in this case the opportunity to pursue their serious-and partially corroborated-allegations in a judicial forum, with its attendant guarantees of independence and impartiality, would be to render this Court nothing more than a shill of the government[.]").

The United States Supreme Court framed the issue best in Chessman v. Teets:

"On many occasions this Court has found it necessary to say that the requirements of the Due Process Clause of the Fourteenth Amendment must be respected, no matter how heinous the crime in question and no matter how guilty an accused may ultimately be found to be after guilt has been established in accordance with the procedure demanded by the Constitution. Evidently it also needs to be repeated that the overriding responsibility of this Court is to the Constitution of the United States, no matter how late it may be that a violation of the Constitution is found to exist. . . . We must be deaf to all suggestions that a valid appeal to the Constitution, even by a guilty man, comes too late, because courts, including this Court, were not earlier able to enforce what the Constitution demands. The proponent before the Court is not the petitioner but the Constitution of the United States." 354 U.S. 156, 165 (1957) (emphasis added).

The Court concurs wholeheartedly with the immortal sentiments of the late Justice Harlan. It is imperative, for the sake of the inviolability of the Constitution of this great Nation, that "men incarcerated in flagrant violation of their constitutional rights have a remedy." Pa. ex rel. Herman v. Claudy, 350 U.S. 116, 123 (1956).

The Court finds-based upon the facts and circumstances presented-that the twenty-year period associated with the pursuit of this petition for postconviction relief was, without question, reasonable-not "inexcusable" nor "unexplained[.]" Raso, 884 A.2d at 396 (internal citations omitted). The cause of such delay was related to the evaluation and preparation of a series of exceptionally complicated claims requiring the substantial commitment of time and resources. The State has presented no evidence that the Public Defender's Officer or appointed counsel would have or could have brought such a petition on behalf of Mr. Tempest, never mind pursued such claims ...


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