IN THE COURT OF CRIMINAL APPEALS

IN THE COURT OF CRIMINAL APPEALS

STATE OF OKLAHOMA

JIMMY DALE BLAND,

Condemned Prisoner & Petitioner,

-versus-

THE STATE OF OKLAHOMA,

Party Non-Respondent.

Case No. PCD-1999-1200

Motion for Order Directing the State of Oklahoma to Appear and Defend in This Capital Post-Conviction Proceeding, And to Remove the Court From Any Adversarial Role in the Adjudication of Petitioner’s Claims

[With Combined Brief in Support]

Jimmy Dale Bland appears by his Counsel and moves the Court for an order exercising its statutory authority and directing the State of Oklahoma, by and through its Attorney General, to appear and defend the State of Oklahoma in this proceeding. Mr. Bland further moves the Court to remove itself from its adversarial role in the adjudication of Petitioner’s claims in this proceeding. Petitioner’s principal claim in this Motion is that this Court’s rule [1] proceedings “so undermine[s] the proper functioning of the adversary process” that it renders these proceedings unreliable, fundamentally unfair, and violative of the state and federal constitutional guarantees of due process of law. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064 (1984). Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437 (1927). Fent v. Oklahoma Capital Improvement Authority, 1999 OK 64, ___ P.2d ___ (1999) (Opala, J., concurring in result). In support of this Motion, Petitioner states as follows:

--Section 1–

A Brief History of Fundamental Unfairness

1. Although the Supreme Court has refused to recognize a substantive due process right to a post-conviction proceeding, Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990 (1987), the Due Process Clause of the Fourteenth Amendment and the Cruel and Unusual Punishments Clause of the Eighth Amendment to the Federal Constitution are nonetheless violated when the State adopts a post-conviction procedure that “'offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'” Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 1377 (1996), quoting Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 2322_2323 (1977).

1.1 This Court has an unfortunate, recent past history of permitting the use of fundamentally unfair procedures in criminal cases, including death penalty cases. Cooper v. State, 1995 OK CR 2 , 889 P.2d 293 (1995), reversed and remanded by unanimous opinion, Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373 (1996) (declaring statute which required defendant to prove incompetency by clear and convincing evidence a violation of due process). Walker v. State, 1997 OK CR 3, 933 P.2d 327 (1997) (refusing to remedy Cooper violation in post-conviction proceeding). McGregor v. State, 1997 OK CR 10, 935 P.2d 332 (same). See also Rogers v. Gibson, 173 F.3d 1278 (10th Cir. 1999) (criticizing this Court’s refusal to review Cooper claims by wielding procedural bar which “did not exist at the time of the default”). Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999) (refusing to apply Oklahoma’s procedural bar in non-capital case involving Cooper claim). West v. Gibson, 182 F.3d 934 (10th Cir. 1999) (Unpublished, same) [2].

1.2 The Court of Criminal Appeals has also historically failed to recognize the cruel and unusual nature of death penalties imposed in a number of cases. Cartwright v. State, 1985 OK CR 4, 695 P.2d 548 (1985), reversed and death sentenced vacated, Cartwright v. Maynard, 822 F.2d 1477 (10th Cir. 1987), order vacating death sentence affirmed by unanimous opinion in Maynard v. Cartwright, 486 U.S. 356 , 108 S.Ct. 1853 (1988); Thompson v. State, 1986 OK CR 130, 724 P.2d 780 (Okl.Cr. 1986), cert. granted and death sentence vacated, Thompson v. Oklahoma, 487 U.S. 815, 107 S.Ct. 1284 (1987) (plurality opinion finding death sentence cruel and unusual); Eddings v. State, 1980 OK CR 12, 616 P.2d 1159 (1980), cert. granted and death sentence vacated, Eddings v. Oklahoma, 455 U.S. 104, 117, 102 S.Ct. 869 (1982).

1.3 This Court has also historically failed to protect the federal constitutional right to effective assistance of trial and appellate counsel in significant cases, including one in which the factually innocent condemned prisoner was later exonerated by DNA evidence. Williamson v. State, 1991 OK CR 63, 812 P.2d 384 (1991), writ of habeas corpus granted for ineffective assistance of counsel, Williamson v. Ward, 904 F.Supp. 1529 (E.D. Okla. 1996), issuance of habeas corpus affirmed Williamson v. Ward, 110 F.3d 1508 (10th Cir. 1997). Stouffer v. Reynolds, 168 F.3d 1155 (10th Cir. 1999) (remanding for evidentiary hearing), writ of habeas corpus granted due to ineffective assistance in both stages of trial, Stouffer v. Reynolds, CIV-95-401-C (W.D. Okla., July 30, 1999); Banks v. State, 1991 OK CR 5, 810 P.2d 1286 (1991), writ of habeas corpus granted, 54 F.3d 1508 (10th Cir. 1995) (finding appellate counsel ineffective). Fisher v. State, 1987 OK CR 124, 739 P.2d 523 (1987), writ of habeas corpus granted, Fisher v. Ward, CIV-93-1888-L (W.D. Okla., September 30, 1999) (finding counsel ineffective at penalty phase). [3] But see also, Wilhoit v. State, 816 P.2d 545 (1991) (finding counsel ineffective in capital case). Washington v. State, 1999 OK CR 22, ___ P.2d ___ (1999) (same).

1.4 The Tenth Circuit Court of Appeals has recently held that this Court did not strictly or regularly follow its procedural rules when refusing to review claims of federal constitutional error. The Court of Appeals has held in other cases that the rulings of this Court failed to give prisoners a meaningful opportunity to present federal constitutional claims in state court, and engaged in unreasonable applications of clearly established Supreme Court decisions. Moore v. Gibson, 1999 WL 765893 (10th Cir. 1999) (finding resolution of materiality of alleged Brady evidence was “unreasonable”); English v. Cody, 146 F.3d 1257, 1265 (10th Cir. 1998) (raising “serious questions about the adequacy of the actual Oklahoma procedural mechanism” allegedly permitting factual development of certain ineffective assistance of counsel claims on direct appeal, because, inter alia, the Court of Criminal Appeals “has recently held claims of ineffective assistance of trial counsel must be raised on direct appeal or waived even if trial and appellate counsel are the same”), citing McCracken v. State, 1997 OK CR 50, 946 P.2d 672, 676 (1997); Neill v. State, 1997 OK CR 41, 943 P.2d 145, 148 (1997). [4] See also, Walker v. Ward, 167 F.3d 1339 (10th Cir. 1998) and Rogers v. Gibson, 173 F.3d 1278 (10th Cir. 1999) (questioning this Court’s use of procedural bar to preclude post-conviction review of Cooper claims because Court of Appeals “failed to see how a procedural rule can be ‘firmly established and regularly followed’ if it did not exist at the time of the [procedural] default”). Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999) (refusing to recognize this Court’s procedural bar in non-capital case where this Court refused to correct Cooper violation). West v. Gibson, 182 F.3d 934 (10th Cir. 1999) (Unpublished, same).

1.5 Against this documented background of both historical and ongoing questionable decision-making, Mr. Bland respectfully raises his concerns about the adequacy of the Court’s current practices and procedures in adjudicating post-conviction applications in death penalty cases. The primary objection here is the emergence of a pattern of judicial adversarialism in capital post-conviction adjudication. This Court’s judicial adversarialism subverts the fundamental constitutional norms of judicial neutrality and detachment. The current post-conviction procedures, practices and customs of this Court have spawned an adversarial form of judicial participation which offends principles of justice “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 2322_2323 (1977).

--Section 2--

Judicial Passivity As A Fundamental Norm of Adversary Process

2. “Our judicial system is designed to function in the context of adversary proceedings.” Erckman v. U.S., 416 U.S. 909, 94 S.Ct. 1618, 1621 (1974). And “[i]n our adversary system, it is enough for judges to judge.” Dennis v. United States, 384 U.S. 855, 874_875, 86 S.Ct. 1840 (1966).

2.1 “By the end of the 18th century, the central tenets of the adversary system were apparent in both the judicial systems of England and America...The adversary system has been dubbed the judicial manifestation of a competitive nature. It has been linked to the principals [sic] of capitalism, and its effect on our psyche has been said to mirror that of competitive sports.” One commentator writes:

The fact that our society has so many competitive institutions . . . does suggest that the adversary system of justice reflects the same deep_seated values we place on competition among economic suppliers, political parties,...and moral political ideas. It is an individualistic system of judicial process for an individualistic society.

M. Sokol, Cary v. OneOk, Inc.: Oklahoma Supreme Court Upholds Plaintiff's Right to Attend Trial 19 Pace L. Rev. 195, 206 (Fall 1998), quoting R. Kutak, The Adversary System and the Practice of Law, in The Good Lawyer: Lawyer’s Roles and Lawyer’s Ethics 174 (David Luban, ed. 1983)(internal citations omitted).

2.2 “The central tenets of the adversary system are party control of the litigation and judicial passivity. Both stand in stark contrast to the methods and beliefs engendered in the inquisitorial process...Judicial passivity, the second central tenet of the adversary system, is perhaps the most notable difference between the inquisitorial system and the adversary system. That is, while both systems advocate that the judge be neutral, the adversary system requires that the judge also be passive...Proponents of the adversary system argue that the most equitable judicial decisions will be reached when parties are allowed to zealously litigate their most salient arguments before an impartial and passive judge, where outcomes are not based on bias or prior knowledge, but on the stronger argument. M. Sokol, Cary v. OneOk, Inc.: Oklahoma Supreme Court Upholds Plaintiff's Right to Attend Trial 19 Pace L. Rev. at 206-207 (internal citations omitted, emphasis added).

2.3 The adversary system is intimately connected to how we identify ourselves as Americans, and "party control best reflects the American values of laissez_faire, individualism and competition." Moreover, "[t]he adversary system coincides with our prevalent political philosophy because it affords the parties the opportunity to participate in decisions affecting their interests." These first principles of the American judicial tradition and the adversary system "require[] that certain processes be duly followed which ensure regard for the dignity of the individual, irrespective of the impact of those processes upon the determination of truth." M. Sokol, Cary v. OneOk, Inc.: Oklahoma Supreme Court Upholds Plaintiff's Right to Attend Trial 19 Pace L. Rev. at 207-208, quoting Monroe Freedman, Lawyer’s Ethics in an Adversary System, 3 (1975)(emphasis added).

2.4 Due to the fundamental norm of judicial passivity in the adversary system, “[t]he impact of lawyering on the development of the law is of unique importance in the common law system. Common law judges depend upon lawyers acting within the adversary system to inform and suggest legal arguments.” Herbert Jacob et al., Courts, Law, and Politics in Comparativist Perspective 29 (1996) (emphasis added). See also Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353, 383 (1978) (noting that adversarial procedure protects against judicial pre_judgment because “‘the arguments of counsel hold the case, as it were, in suspension between two opposing interpretations of it’” and thereby permit the dispassionate judge to explore the case's nuances and peculiarities while it remains unresolved) (quoting Lon L. Fuller & John D. Randall, Professional Responsibility: Report of the Joint Conference, 44 A.B.A. J. 1159, 1160_61 (1958).

2.5 Judicial passivity is a “‘principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’” Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 1377 (1996), quoting Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 2322_2323, 53 L.Ed.2d 281 (1977). Judicial neutrality and detachment is an indispensable element of Due Process under the Fourteenth Amendment, and in this case, the Eighth Amendment’s proscription of Cruel and Unusual Punishments.

2.6 Justice Opala’s opinion concurring in the result in Fent v. Oklahoma Capital Improvement Authority, 1999 OK 64, ___ P.2d ___ (1999) squarely holds judicial passivity and detachment are fundamental requirements of state and federal due process. In Fent, bond opponents moved to disqualify the entire Supreme Court from a case involving judicial review of a bond issuance, because some bond revenues were to be used for new Supreme Court chambers and amenities. The majority denied the motion on the ground that the Court’s interest in the bonds was “too speculative and insubstantial” to require disqualification. Id. at ¶ 1.

2.7 Justice Opala concurred in denying the motion based on the “rule of necessity,” because to disqualify from the case would allow the Governor–a party to the case–to appoint the Court in his own case. However, Justice Opala agreed that his judicial interest in the case was substantial in the constitutional sense and, but for the rule of necessity, would require him to recuse. Id. at ¶ 1 (Opala, concurring in result).

Ever since Tumey v. Ohio, a tribunal's impartiality has been a sine qua non element of due process within the meaning of the Fifth and Fourteenth Amendments. Judges must be not only neutral but also detached. These prerequisites preserve both the reality and appearance of fairness. Lack of financial interest in the outcome of a case is not the sole indication of a court's fitness. Judges must also be free from an intellectual or emotional commitment that would indicate a predilection for or against a given resolution of the controversy at hand.

If one's economic interest were the sole test of a judge's neutrality and detachment, I would accede to the court's characterization of the justices' interest in this case as, at best, de minimis, speculative, and remote. What the analysis in today's order plainly disregards is that a tribunal's dispassionateness constitutes a sine qua non component of the fundamental law's standard of fairness in adjudication. In order to administer judicial process without the taint of prejudice, a judge must "think dispassionately and submerge private feeling on every aspect of a case."

The U. S. Constitution's due process gauge of impartiality for a tribunal's adjudicative fitness is encapsulated in the eloquence of the text that follows:

But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that 'Every procedure which would offer a possible temptation to the average man as a judge * * * not to hold the balance nice, clear, and true . . . denies the latter due process of law.' Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way 'justice must satisfy the appearance of justice.'

No less rigid is the standard_of_fairness test required for judicial officers by the commands of Article 2, section 6 of the Oklahoma Constitution:

Every litigant is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of courts to scrupulously guard our constitutional rights to a speedy trial without prejudice, and a judge should refrain from trying to exercise jurisdiction in any matter where his qualification to so do is seriously brought in question. The exercise of any other policy tends to discredit the judiciary and shadow the administration of justice.

The justices have not been challenged in this case for having a personal financial interest in the approval of the proposed bonds. The court admittedly has no known identification with, or involvement in, the business aspects of the transaction to be approved. Rather, the interposed challenge is to each of the individual justice's detachment. It is rested on our lack of dispassionateness alleged to stem from the court's stake in its opportunity to benefit from upgraded judicial facilities.

I cannot deem myself dispassionate when the outcome of the case affects my cherished status symbol __the chambers in which my work is performed. Accommodations are a very important part of one's status in society. In contemporary American culture a private bathroom in one's executive suite of elegantly appointed offices is a symbol as well as a mark of achievement on the corporate ladder. I will not deny that this corporate culture has permeated the walls and corridors of the judiciary. In short, I cannot ignore my "stake" in the outcome of this case. To do otherwise would be to throw candor to the winds and to counteroffer a mere pretense that the lure of elegantly appointed chambers, each with a private bathroom, counts for absolutely nothing when weighed against my self advanced profession of virginal detachment.

2.8 One need not share Justice Opala’s enthusiasm for private facilities to instantly recognize the force of his principle: Judges “must be free from an intellectual or emotional commitment that would indicate a predilection for or against a given resolution of the controversy at hand.” Id. at ¶ 2, citing K. Wurzel, Methods of Juridical Thinking in Bishen & Stone, Law, Language, and Ethics 883-884 (University Casebook Series 1972).

--Section 3–

The Advocate Has No Robes:

Subversion of Judicial Neutrality and Detachment

in Capital Post-Conviction Proceedings

3. Mr. Bland objects to the emerging model of judicial adversarialism which has come to dominate this Court’s conduct of capital post-conviction proceedings since this Court’s decision interpreting the 1995 amendments to the Post-Conviction Procedure Act in Walker v. State, 1997 OK CR 3, 933 P.2d 327 (1997). The “emerging model of judicial adversarialism” is meant to describe an evolving style of adjudication which subverts neutrality and detachment while expanding the Court’s role in the theoretical formulation and implementation of doctrine into one of conceptual advocacy against the interests of the capital prisoner. Judicial adversarialism has transformed the Court into the prisoner’s adversary.

3.1 “Judicial adversarialism” in Oklahoma capital post-conviction proceedings includes at least the following practices, customs, and behavioral consequences:

3.1.1 the State’s passive status as a non-responding party in virtually all stages of capital post-conviction litigation;

3.1.2 the Court’s assimilation of the adversarial role against capital prisoners and the resulting political and psychological imperatives to protect and ultimately favor the State’s interests during the process of adjudication;

3.1.3 the role of the Court’s members as the principal theoreticians and conceptual defenders of the legal doctrines now being used to deny all manner of relief to condemned prisoners in post-conviction proceedings; and

3.1.4 the “intellectual or emotional commitment” of this Court to the Walker “procedural scheme” and its vested judicial interest in the ultimate triumph of a system of procedural default that it created; a vested interest which has become a judicial “predilection for...a given resolution of the controversy at hand.” Kent, supra, at ¶ 2.

3.2 Assimilating the Adversarial Role. Judicial assimilation of the adversarial role is a well-documented, and sometimes beneficial exception to pure adversarial process. In the case of pro se litigators, judges have been known to assume certain parts of the counsel function, advising the litigant in matters of procedure and ensuring the protection of his basic rights. [5] This type of behavior springs from the noblest of human impulses. It is neither condemned nor discouraged by the objections of Mr. Bland. At the same time, a court “should not assume the role of advocate” for any party. Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1999). Conaster v. State, 1969 OK CR 169, 455 P.2d 719, 722 ( “But we... know of no rules that would permit the court to assume the role of prosecutor”).

3.3 In death penalty post-conviction proceedings, the Court has permitted the State to assume a passive role while the Court applies its own procedural scheme to dismantle the petitioner’s claims. This practice places the Court is an unseemly position of both political and judicial advocacy. Would the Court really ever consider granting the prisoner relief without permitting the State to first lodge its objections? Does it not then begin and end the task of post-conviction review in these cases by resolving all doubts raised by the petitioner’s pleadings in favor of the passive State?

3.4 Respectfully, it is submitted that the post-conviction practices and procedures of the Court, although subtly and perhaps even inadvertently, have developed a psychodynamic of favoritism which arises from the Court’s desire to appear “fair” to the passive, non-appearing State. This desire for “fairness,” however, is a one-way psychological force which stacks the Court’s mental deck against the prisoner. The prisoner, after all, is represented by (hopefully) competent counsel, actively advocating his interests, and zealously challenging the Court’s application of its procedural scheme.

3.5 Under these circumstances, it is quite natural that the Court has become adversarial to the post-conviction petitioner and his counsel. There is a major struggle afoot, to be sure, and the Court’s members are no longer dispassionate or disinterested players in their efforts to ensure “finality of judgment.” Members of the Court have bemoaned that even under the unprecedented rigor of Walker-ized post-conviction review, the post-conviction lawyers will “figure out” a way to present “sufficient evidence in support of their claim to necessitate a remand for an evidentiary hearing and possible relief.” Walker, 933 P.2d at 343 (Lumpkin, J., concur in results). Judge Lumpkin has also accused post-conviction lawyers of “...attempts here (as well as in other applications) to circumvent the Rules of this Court by ‘hiding’ arguments or authorities in places other than the Arguments and Authorities Section of the Application.” Scott v. State, 1997 OK CR 40, 942 P.2d 755, 762 (1997).

3.6 Thus, the Court’s language itself often suggests the existence of this adversarial contest, in which the strictly-interpreting, procedurally-defaulting Court is locked in battle with “creative” post-conviction lawyers asserting “frustrating” exceptions to its procedural default scheme, strapping the Court with a “seemingly insurmountable burden of dealing with patently frivolous claims, grouped in the catch_all ‘ineffective assistance’ category.” Berget v. State, 1995 OK CR 66, 907 P.2d 1078, 1083 (1995). [6] Walker v. State, 933 P.2d at 343 (Lumpkin, J., concurring).

3.7 Another representative instance of adversarialist thought is found in Sallahdin v. State, 1997 OK CR 58, 947 P.2d 559, 561 (1997), where Judge Johnson’s opinion for the Court upbraided post-conviction counsel for “consistently and without foundation” arguing that appellate counsel was ineffective for failing to raise a number of substantive claims. Two days later in Mollett v. State, PC-96-1120 (Okl.Cr. October 10,1997), [7] the Court’s opinion–again authored by Judge Johnson--angrily charged that post-conviction counsel had “mechanically and repetitiously” argued that appellate counsel had been ineffective. [8] Mollett, slip. op. at 2.

3.8 The Court’s attitude toward post-conviction lawyers raising claims of ineffectiveness is one of marked hostility and distrust. Their evidence, even their motives, are everywhere regarded with suspicion. “When a criminal defense attorney attests to his or her own ineffectiveness in an effort to obtain relief for a capital post_conviction applicant, that affidavit will be thoroughly scrutinized and will rarely, if ever, be solely relied upon to support an allegation of deficient performance." Walker, 933 P.2d at 336. (Emphasis added). See also Scott, 942 P.2d at 759_760. “If this Court were to allow self-styled statements of ineffectiveness to supplant the requirement for facts supported by clear and convincing evidence, finality of judgments could never be achieved.” Howell v. State, PC-98-200 (Okl.Cr. Dec. 16, 1998) [9] (Unpublished). [10]

3.9 This attitude of suspicion is quite a contrast from the Court’s comfortable attitude with prosecutors, wherein the Court indulges every “presumption that prosecutors, as officers of the court, would adhere to their constitutional duty and turn over exculpatory evidence.” It is this “presumption” of prosecutorial purity which serves, at least partially, as the justification for the Court’s blanket denial of discovery requests in capital post-conviction cases. Cargle v. State, 1997 OK CR 63, 947 P.2d 584, 590 (Opinion by Lumpkin, J.). But see State v. Munson, 1995 OK CR 77 , 886 P.2d 999 (1995) (Oklahoma prosecutors engaged in massive failure to disclose exculpatory evidence). Bowen v. Maynard, 799 F.2d 593 (10th Cir. 1986), cert. denied, 479 U.S. 962, 107 S.Ct. 458, 93 L.Ed.2d 404 (1986) (Oklahoma prosecutors failed to disclose exculpatory evidence). Banks v. Reynolds, 54 F.3d 1508, 1515 (10th Cir. 1995) (Oklahoma prosecutors violated Brady v. Maryland).

3.10 Consistent with a pro-State orientation, the Court is willing, however, to give the statements of defense counsel conclusive weight when those statements tend to support, rather than undermine, the conviction and/or death sentence. Allen v. State, 1998 OK CR 25, 956 P.2d 918, 921 (1998) (holding that defense counsel’s unsworn statements, made as “an officer of the court,” had “particular significance here,” and finding statements “resolved” all doubts that defendant was unable to assist counsel). In post-conviction proceedings, the Court’s adversarial brand of skepticism has clearly replaced the wisdom of earlier times that “always” recognized “a weighty presumption that an attorney will not violate his professional duties as an officer of the court.” Phelan v. Stockyards Bank, 168 Okla. 232, 32 P.2d 270, 272 (Okla. 1934).

3.11 Taken as a whole, the Court’s rules, practices, and pronouncements have improperly and unlawfully assimilated the State’s traditional role as the adversary of the capital post-conviction petitioner and his counsel. This assimilation of the State’s role and the resulting emergence of judicial adversarialism have prevented post-conviction petitioners from obtaining a reasonably fair adjudication of their claims for relief and requests for discovery and evidentiary hearings, effectively cutting off the prisoner’s chances for relief of any kind. [11]

3.12 Thus, Mr. Bland reasonably believes that the Court’s current practices and procedures “so undermine[] the proper functioning of the adversary process” as to render these proceedings unreliable, fundamentally unfair, and violative of the state and federal constitutional guarantees of due process of law. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064 (1984). Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437 (1927). Fent v. Oklahoma Capital Improvement Authority, 1999 OK 64, ___ P.2d ___ (1999) (Opala, J., concurring in result).

3.13 The Court’s Vested Interest in Its “Procedural Scheme.” The landmark decision in Walker v. State,1997 OK CR 3, 933 P.2d 327 (1997) had little or nothing to do with the State’s advocacy and much to do with the realities faced by the Court of Criminal Appeals at the time. Confronted with a major constitutional blunder in Cooper v. State, 1995 OK CR 2, 889 P.2d 293 (1995), reversed and remanded by unanimous opinion, Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373 (1996), and extant case law which allowed post-conviction review based on an “intervening change” in constitutional law--as Cooper v. Oklahoma assuredly was--the Court found itself at a jurisprudential crossroads. The Court’s mistake in Cooper v. State would open the door to significant post-conviction claims, including claims in capital cases, that would imperil convictions and death sentences and expose the Court to embarrassment. [12]

3.14 In addition to the brewing controversy over post-conviction Cooper claims, the Court still faced the looming question of whether it would grant post-conviction relief on claims arising from its decision in Flores v. State, 1995 OK CR 9, 896 P.2d 558 (1995), where it had reversed numerous convictions on direct appeal due to Judge Clifford Hopper’s infamous “presumed not guilty” instruction. Judge Hopper had sown this particular error into at least one capital case, Jack Dale Walker’s. Walker’s case also had a Cooper violation on the face of the appellate record. As thus it was, in the case of Jack Dale Walker, that the Court first declared how its own hands had been serendipitously tied, because the amended statute had “greatly circumscribed this Court's power to apply intervening changes in the law” on post-conviction review. Walker, 933 P.2d at 344. The court house door slammed shut on these promising post-conviction claims. It has never opened again, for those claims or any others.

3.15 Walker’s “three-tiered procedural scheme,” the Court’s novel way of analyzing ineffectiveness of counsel, was hardly suggested by the statututory language the Court “interpreted” in Walker, 22 O.S. 1995 Sec. 1089 (D)(4)(b)(2). Judge Lumpkin remarked in his Walker concurrence that the statute was “vague at best and utterly confusing at worst,” anything but a legislative blueprint for jurisprudential revolution. Walker, 933 P.2d at 341 (Lumpkin, J., concurring in results).

3.16 The Walker Court also went looking in the amended statute for some mention of its pesky “intervening change” doctrine. Finding no sign of it, the Court was pleased to conclude that the Legislature had dispensed with “intervening change in constitutional law” in favor of stricter standards for post-conviction review. With these two convenient doctrinal innovations, the Court unburdened itself of a potentially embarrassing post-conviction redux of its Cooper snafu, and at the same time placed its holding in Flores beyond the reach of post-conviction petitioners. [13] In the annals of procedural default, January 23, 1997 was a very good day. [14]

3.17 As the conceptual defenders of the procedural innovations deployed in Walker, the Court subsequently upheld Walker against a variety of constitutional and lesser procedural challenges, without any help from the primary beneficiaries of its doctrine, the State of Oklahoma and its Attorney General. [15] Various members of the Court authored opinions fending off charges that Walker’s interpretation of the statute violated the governmental separation of powers, the right of access to courts, due process, equal protection, the supremacy clause of the federal constitution, and the right to effective assistance of appellate counsel. Bryan v. State, 1997 OK CR 69, 948 P.2d 1230, 948 P.2d 1230 (1997), Le v. State, 1998 OK CR 1, 953 P.2d 52 (1998), Sallahdin v. State, 1997 OK CR 58, 947 P.2d 559 (1998).

3.18 Nurtured by its judicial guardians, the Walker procedural scheme subsequently swept away every capital post-conviction claim in its path, even claims allegedly “defaulted” before the Court’s decision. Cf. (Gary Alan) Walker v. State,1997 OK CR 31, 940 P.2d 509 (1998) (applying (Jack Dale) Walker and 1995 post-conviction amendments to procedurally bar constitutional claim arising in 1988). McGregor v. State, 1997 OK CR 10, 935 P.2d 332 (1997) (same)(Lane, J., dissenting). In their writings, Members of the Court have attempted to draw favorable comparisons to other schemes of procedural default, arguing how the Court’s “procedures concerning claims of ineffective assistance are similar to the approach taken by the federal courts when considering issues of procedural default on habeas review.” Slaughter v. State, 1998 OK CR 63, 969 P.2d at 997 (1998).

3.19 But many remain unconvinced, and troubled by the Court’s approach. In English v. Cody, 146 F.3d 1257 (10th Cir. 1998), Judge Murphy’s opinion for a unanimous panel expressed serious doubts about the adequacy of the Walker procedure and observed that it was “indicative of the adequacy of the Oklahoma system that in the 17 months since Walker was decided, the Oklahoma Court of Criminal Appeals has entered decisions in no less than 24 post-conviction capital cases raising ineffective assistance of trial counsel claims. None were remanded for an evidentiary hearing; none of the appellants were granted any relief.” 146 F.3d at 1265, fn.7. The only difference since English v. Cody is that the number of post-conviction cases denied continues to rise.

3.20 Seneca said “A judge is unjust who hears but one side of a case, even though he decides it justly.” Nash, et al, Lawyer’s Wit and Wisdom 72 (Running Press 1995). This goes to the heart of the problem with the Court’s current judicial adversarialism: The true adversary process produces both formal and substantive justice through its practices as well as its decisional product. It is meaningful not simply because a party knows that his cries have been heard, but as well because he has seen his opponent and would-be oppressor stand as an equal before the bar.

3.21 It is through this process that the party’s dignity as a litigant before the Court is affirmed, and the appearance of justice is satisfied, regardless of the outcome. As Monroe Freedman has said, “the essentially humanitarian reason for such a system is that it preserves the dignity of the individual...” Monroe Freedman, Lawyer’s Ethics in an Adversary System, 8 (1975). In its historical use of adversary procedures, “...our system of law has always endeavored to prevent even the probability of unfairness.” In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 625 (1955).

3.22 The capital post-conviction procedure of today is a stark contrast to Seneca’s egalitarian ideal. The prisoner initiates a request for post-conviction relief to which the State needn’t bother to respond under this Court’s Rule 9.7 (A)(5). In the State’s place, the prisoner finds a Court which has already crafted the theoretical counter-arguments which deny him relief. As his new adversary, the Court stands ready, sua sponte, to apply a set of procedural defenses which–in every case since their inception–have mechanically and repetitiously destroyed his chances for relief without the State lifting so much as a finger in opposition. It’s a day in court, yes, but a strange day indeed.

3.23 This procedure only reinforces the prisoner’s own awareness of his status as a legal as well as societal outcast, stripped of his dignity and his freedom, stripped even of the right to hale his opponent into court to stand as his equal before the bar. It is a judicial procedure that "can only lead him to believe that the law conspires against him." Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 3318 (1983), quoting Faretta v. California, 422 U.S. 806, 834, 95 S.Ct.2525, 2540 (1975)

3.24 These realities of the current post-conviction adjudication process lead Mr. Bland to request that this Court recede from its judicial adversarialism in these cases and return to a process consistent with judicial neutrality. He respectfully requests that this Court acknowledge what the Supreme Court has called the “imperatives of a dispute capable of judicial resolution:” “[S]harply presented issues in a concrete factual setting and self_interested parties vigorously advocating opposing positions.” Franks v. Bowman Transportation Co., 424 U.S., at 753_756, 96 S.Ct., at 1253_1260; Baker v. Carr, 369 U.S., at 204, 82 S.Ct., at 703; Poe v. Ullman, 367 U.S., at 503, 81 S.Ct., at 1755 (plurality opinion).

3.25 Counsel for Petitioner realizes that “most judges strive diligently to avoid bias . . . in making their decisions and firmly believe their rulings are free from extraneous influences. But psychologists tell us it is easy for persons to rationalize their behavior; individuals can almost always find excellent grounds for doing what they want to do.” Peter M. Friedman, Don't I Know You from Somewhere?: Why Due Process Should Bar Judges from Presiding over Cases When They Have Previously Prosecuted the Defendant, 88 J. Crim. L. & Criminology 683, 710 (Winter 1998). The Court no doubt perceives excellent grounds for doing what it wants to do in these proceedings. But its approach threatens fundamental fairness for no other gain than administrative convenience to the State, and at great loss to the highest traditions of judicial detachment and neutrality. [16]

--Section 4–

The Need to Recapture the Appearance of Justice

4. Because of this Court’s unbroken string of post-conviction denials in death penalty cases since its promulgation and retroactive application of new procedures in Walker; its unswerving refusal to grant discovery or permit factual development in the form of depositions or document disclosures; its exemption of the State from any role in the process while at the same time assuming adversarial customs and practices toward the prisoner and post-conviction counsel, it is respectfully submitted that justice in capital post-conviction cases no longer satisfies the “appearance of justice” which is of equal importance to the due process of law.

4.1 The emerging picture is instead one of pre-destined denial, denial of not only the the prisoner’s legitimate claims, but also of his dignity as a litigant before this Court. The current system appears to cast the post-conviction petitioner as nothing more than the undeclared loser in an already decided battle of procedural wits between his appointed lawyer and the five Judges of this Court.

4.2 Mr. Bland therefore respectfully requests that this Court forthwith exercise its authority under 22 O.S. § 1089 (D)(3) and issue an order requiring the State of Oklahoma, through its Attorney General, to appear and defend in these proceedings. The Court should direct the Attorney General to file a written response to this and all subsequent motions and briefs; the State shall also admit or deny the enumerated factual allegations of any motion or claim for relief, show cause why the same cannot be admitted or denied, or have the factual allegations deemed admitted against it.

4.3 That the Court withdraw from any active adversarial role in the implementation of post-conviction procedures, providing that such procedural defenses to claims for post-conviction relief as may exist by statute should be timely asserted by the State in its response or deemed waived, Hooks v. Ward, 1999 WL 502608, at *9, ___ F.3d ___ (10th Cir. 1999) (holding State must raise procedural bar or it is waived); and that the Court should otherwise resume a neutral and detached role, adjudicating the post-conviction application as a dispute between the Petitioner and the State rather than a judicial quest for finality of judgment.

WHEREFORE, Petitioner respectfully requests that this Motion be sustained in all its particulars, and the relief requested therein be granted.

Signature and Certificate of Service

By my signature below, I certify that a copy of the foregoing motion was delivered to the Attorney General of the State of Oklahoma by depositing a copy of the same with the Clerk of the Court of Criminal Appeals on this ____ day of October, 1999.

_(Signature)________________________________

Bryan Lester Dupler, OBA #14978

Appellate Defense Counsel

Capital Post-Conviction Division

Oklahoma Indigent Defense System

1660 Cross Center Drive

Norman, OK 73019

(405) 325-3331

bryan@appellate.oids.ou.ed

Attorney for Mr. Bland