Below is the brief submitted to the United States District Court. It is a pretty complete depiction of the entire case from a legal standpoint. The matter was appealed all the way to the U.S. Supreme Court, who refused to even look at it (for no stated reason).
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
MARK KIRK §
Petitioner
§
v. § Cv. A. No. 1:08 - cv - 37 JJF
PERRY PHELPS, Warden § Petition for Writ of Habeas Corpus
Respondent
§
MEMORANDUM OF LAW
The above named has filed a petition for writ of habeas corpus, pursuant to 28 U.S.C.A. § 2254. This his memorandum of law in support thereof.
STATEMENT OF THE CASE
The petitioner was arrested on 5 December 1996, and charged with 1 count of Arson 1st , 3 counts of Felony Murder 1st and 3 counts of Felony Assault 1st . Following a bench trial, Kirk was convicted of Arson 3rd , 3 counts of Felony Murder 1st , 2 counts of Felony Assault 1st and 1 count of Assault 3rd . Kirk was sentenced to 3 Life terms plus 23 years. The Delaware Supreme Court affirmed. Kirk v. State, 1999 WL 415802 (Del.).
Kirk filed a Rule 61 motion for post-conviction relief, which was denied. State v. Kirk, 2000 WL 1211214 (Del.Super.), aff'd, Kirk v. State, 2002 WL 256741 (Del.)
Having exhausted state remedies, Kirk filed for habeas relief in this Court. Kirk v. Carroll, 243 F.Supp.2d 125 (D.Del.. 2003), aff'd, Kirk v. Carroll, C.A. No. 03-1672 (3rd Cir. 2003). Contemporaneously, Kirk filed a third post-conviction motion, based on the Delaware Supreme Court's ruling in Williams v. State, 818 A.2d 906 (Del. 2003). As a result, Kirk was resentenced to 49 years imprisonment. State v. Kirk, 2004 WL 396407 (Del.Super.), aff'd, Kirk v. State, Del. Supr. No. 72, 2005, Steele, C.J. (Dec. 23, 2005)
Kirk filed a fourth motion for post-conviction relief, based on newly discovered evidence, which was summarily dismissed. State v. Kirk, 2007 WL 1446671 (Del. Super.), aff'd, Kirk v. State, Del. Supr., No. 293, 2007, Ridgely, J. (Dec. 5, 2007) Having exhausted the State remedies on the newly discovered evidence, Kirk now seeks relief through this Court.
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STATEMENT OF FACTS
In the early morning hours of 4 December 1996, a fire broke out in the apartment occupied by Mark Kirk, Darlene Hamby, and her two children––Jason, age 16 and Brandon, age 10. The ensuing fire resulted in the deaths of Steven Rivera, and his two children––Francis, age 17 and Robby, age 9. (Stipulated)
Kirk and Hamby had been drinking heavily the day before and both were admittedly intoxicated that night. (Exs.1– 3) They had also been arguing, whereby Kirk told Hamby he was leaving her due to her flirtatious behavior. (Ex.4) Jason Hamby would later testify that, at one point, Kirk and Hamby had decided to lay their argument to rest and pursue it the next day.
According to fire marshals, relying on 911 calls and eyewitness accounts, the fire occurred at 3:00 AM. The first responder was new Castle County Police Officer J. Wagenhoffer, who observed Kirk and Hamby exiting the building together.(Ex5–8)
Initial, on-the-scene investigative questioning of witnesses and victims revealed that Darlene Hamby had accidentally started a fire on her stove. (Exs. 11–14) At 5:45 AM, police took Kirk, Hamby and the two children into custody for questioning. The four were discharged at 3:30 PM (9 hours later); with Kirk being informed that he was to report back the next day for a polygraph examination, or a warrant would be issued for his arrest.
Kirk reported back the next day at 9:00 AM. Following a grueling polygraph interrogation, Kirk was taken to another interrogation room, where he was interrogated some more over the course of the next several hours. Kirk finally caved in and gave police a statement; whereby, he recites the account (almost verbatim) police had described in detail to him about pouring 70-proof rum on an electric stove. Even during the course of his statement, however, Kirk maintained that 70-proof rum would not burn on an electric stove. Now, ten years later, Kirk has been able to obtain conclusive proof that the rum could not have ignited in the manner that fire marshals claimed. Kirk has presented his new evidence to the state courts in DVD format.
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In the state courts, Kirk challenged the authenticity of the fire marshals' taped test burn, as well as the trustworthiness of the statement he gave to police. Kirk was able to demonstrate from the facts in record that Fire Marshal Willard Preston had lied about how much rum was in the bottle depicted in their video. The record also shows that the trial court was alerted to the fact that Preston had blatantly lied about the contents of the bottle in their video.(Exs.15–17)
Likewise, Kirk also presented clear cut evidence to the state post-conviction courts that revealed that the burner element on the stove in the fire marshals' video had been tampered with, in that, it was literally glowing white-hot. The trial judge even acknowledged that that particular burner appeared to be higher that the other burners on the stove, which suggests it had been tampered with. (Exs.18–21)
Kirk also challenged the post-conviction courts to address why the fire marshals had conducted their test in secret––at a private residence, at night––rather than the Fire Marshals' state-of-the-art facility in Dover, Delaware. Their theory was that a half-pint of 70-proof rum, poured on an electric stove, burnt down an entire apartment building. Why would they jeopardize a residential neighborhood by conducting their test in someone's backyard, at night, with no obvious emergency equipment around? Again, why all the secrecy? Kirk contended that conducting their test in secret, at the very least, suggests disingenuousness.
During the course of Kirk's trial, defense counsel Raymond Radulski introduced Stanley Broskey, claiming that he was an arson expert. The prosecution requested voir dire, which was granted. It was immediately determined that Broskey had no fire or arson experience whatsoever, nor had he ever had any training in the field. In fact, the prosecutor called the university that Broskey claimed to be affiliated with and discovered that they never heard of him. As it turned out, Broskey was no more than a drunk-driving expert, used by counsel in his side-practice cases. (Exs22–25) After voir dire, the trial judge stated unambiguously that Broskey would be allowed to testify merely for the sake of "fair trial" appearances. (Id)
The new evidence that Kirk presented to the state post-conviction courts consists of a DVD depicting a test-burn conducted by John Lentini––a man with impeccable credentials.(Exs.26–27) [1]
[1] John Lentini literally co-wrote the book, NFPA 921, that fire marshals are required to study and test on to become fire investigators. He is also the author of their Bible–Scientific Protocols of Fire Investigation, © 2006.
Lentini replicated the exact method that fire marshals claim the fire was started. He did so three times to establish beyond any doubt that the rum in question could not have ignited on an electric stove. Kirk's new evidence proves that state actors falsified evidence and committed perjury to obtain a bogus conviction. Simply put, starting a fire with a non-ignitable substance is physically and scientifically impossible.
However, the state courts have rejected this straightforward evidence, and dismissed Kirk's claims with no more than a cursory review.
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PROCEDURAL STATEMENT
The petitioner's convictions for the 3 counts of Manslaughter and the 2 counts of Assault 2nd became final when the Delaware Supreme Court's Mandate issued on 12 January 2007. Kirk's motion for post-conviction relief was filed on 21 March 2007; however, the state courts ruled that the motion was time barred, pursuant to Superior Ct. Criminal Rule 61(i)(1).
As is the instant petition, Kirk's post-conviction motion was based on newly discovered evidence. Whereas, Delaware's only remedy for presenting newly discovered evidence requires a motion for new trial be filed within 2 years after trial, (Super. Ct. Rule 33), Kirk's only other remedy was via a post-conviction motion, pursuant to Rule 61. Regrettably, Delaware has never released any from prison based on new evidence, even with the advent of new DNA laws. This is substantiated by the case of Jerome Waterman, who, after more than five years since being exonerated through DNA analysis, still languishes in prison after 18 years for a crime he didn't commit, due to judicial red-tape and courtroom hand-wringing. Simply put, Delaware does not recognize any newly discovered evidence.
Nevertheless, Kirk has turned to the Federal remedy that is available. Title 28 U.S.C.A. § 2244(d)(1) states:
A 1 year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court. The limitation period shall run from the latest of–
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
Kirk's time for which to seek habeas relief would have essentially started the day he discovered that the new evidence might have existed. That would have been sometime in May 0f 2006, when Kirk happened upon an article in the newspaper about arson cases and the junk science employed to procure convictions, sometimes by unscrupulous means. (Ex.28) Kirk tracked down and wrote the man in the article, John Lentini. Mr. Lentini responded to Kirk's letter, and was astounded that Kirk could have even possibly been convicted on such a far-fetched theory that the fire was started with 70-proof rum. Lentini conducted a test in July of 2006, and forwarded copies of it to Kirk's family in late August of 2006. Kirk's motion for post-conviction relief was filed in March of 2007, thus tolling the federal time limitation.
Kirk's situation is similar to that of Zachary Wilson. Wilson v. Beard, 426 F.3d 653 (3rd Cir. 2005) It was through a fortuitous discovery on a local news program that Wilson discovered his evidence 13 years after his conviction became final. Moreover, Wilson at the time, was not even particularly looking for any new evidence, or actively pursuing his case; unlike Kirk, who has been diligently seeking relief from his wrongful conviction. The Wilson Court determined that the question of whether a petitioner exercised due diligence is one of fact and content–one that examines the petitioner's actions in light of his or her circumstances. Wilson, 426 F.3d at 660-61.
In light of petitioner's being incarcerated and his limited resources, Kirk has certainly went above and beyond §2244(d)(1)(D)'s "due diligence" requirement, and therefore is within the 1 year time limitation for filing the immediate action.
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The next hurdle impeding consideration of Kirk's claims in the Federal Court is the fact that the claims were barred in the state court by independent state procedural rules. Kirk however, can overcome this impediment if he can demonstrate that the state "process [is] ineffective to protect the rights of the applicant." 28 U.S.C.A. § 2254(b)(1)(B)(ii).
The United States Supreme Court has held that habeas courts can consider defaulted claims if "failure to consider the claim will result in a miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546 (1991) The circuit courts are generally in agreement that the procedurally defaulted claims should be heard where a Constitutional violation has resulted in the conviction of one who is actually innocent. Hubbard v. Pinchak, 378 F.3d 333 (3rd Cir. 2004); Richey v. Bradshaw, 498 F.3d 344(6th Cir. 2007); Richmond v. Polk, 375 F.3d 309 (4th Cir. 2004)
As the Hubbard Court explained, "a fundamental miscarriage of justice will remove the bar on claims that have been procedurally defaulted, and actual innocence will show a fundamental miscarriage of justice." Hubbard, 378 F.3d at 338, quoting, Cristin v. Brennan, 281 F.3d 404, 412 (3rd Cir. 2002) A petitioner can support his allegations of constitutional error with new reliable evidence––whether it is exculpatory scientific evidence or critical evidence––that was not presented at trial; and whether it is more likely than not that no reasonable juror would have convicted him beyond a reasonable doubt in light of the new evidence. (Emphasis added) Schlup v. Delo, 513 U.S. 298, 316, 115 S.Ct. 851 (1995) The Seventh Circuit, relying on Schlup, determined that "no bar exists to the habeas court evaluating whether the [new] evidence is strong enough to establish the petitioner's actual innocence." Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003)
The instant case presents a unique situation, in that, Delaware's rule regarding new evidence requires the motion to be filed within two years after trial. , However, Kirk's convictions that he is challenging were not reached after trial, but were judgments entered following a former motion for post-conviction relief that Kirk had filed. Therefore, the State's rule for presenting new evidence is unavailable to him. See, 28 U.S.C.A. § 2254 (b)(1)(B)(i)
Therefore, Kirk had to rely on the State's post-conviction rule, which, as Kirk has pointed out, has never been a remedy for anyone presenting new evidence which establishes actual innocence. See, State v. Jerome Waterman, (Del. Super.) Federal courts review the adequacy of a state law used to preclude federal habeas review de novo. Wright v. Quarterman, 470 F.3d 581 (5th Cir. 2006)
Consequently, notwithstanding the state impediments to hearing the petitioner's claims, Kirk would ask this Court to next look at the facts of the case, particularly, but not limited to, the newly discovered evidence.
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THE EVIDENCE
The prosecution, the trial court and each respective reviewing courts, have all relied almost exclusively on two aspects of this case to uphold the conviction––(1) Kirk's confession and (2) the issue of flammability. In fact, the state court virtually all stated that there was "ample evidence", besides the test burn, to support the conviction––namely Kirk's confession; but never enunciating this supposed "ample" evidence, while viewing Kirk's new evidence as merely cumulative. However, a review of the facts reveals that the only piece of evidence the state courts can muster to sustain the conviction is Kirk's confession, which Kirk will demonstrate was untrustworthy.
As for the issue of flammability, Kirk has shown numerous points in the record that casts the fire marshals' test-burn video in a dubious light ( See p. 3), which if counsel had subjected to even the slightest "adversarial testing", would not have stood against a properly conducted test-burn. Indeed, as disreputable as the fire marshals' test-burn was, it only prevailed because of the overall degree of incompetence with which defense counsel's supposed expert had conducted his.
The most glaring example of this is the fact that Broskey had replaced the chrome drip pans on his stove with black ones. There is also the question of the amount of rum Broskey used in his test. Broskey utilized approximately 2 tablespoons (<15ml.) of rum for each of his tests, compared to the fire marshals' full 750 ml. used. (Exs.29–31)
The evidence in record clearly demonstrates that there is simply no comparison between the ineptitude of Broskey's test-burn, vis-a-vis, the accuracy and integrity of Lentini's experiment in Kirk's new evidence. In fact, Lentini's experiment is an exact reproduction of just how fire marshals claim the fire was started––even right down to the aluminum foil lined rip pan.
And this is the one key piece of evidence that, according to the trial judge's own unambiguous statement, would have changed the outcome of the trial. The Court, acting as soul trier of fact, ruled:
"Secondarily, and perhaps more importantly, the experiment by Mr. Broskey, and probably the State, did not include aluminum foil lining the drip pans."
"The Court recalls testimony at trial and accepts the expert testimony [of Fire Marshal Willard Preston] that there would be a greater pooling effect on a drip pan having been lined with foil."
"The Court is convinced that the right front burner drip pan from Darlene Hamby's apartment had been lined with aluminum foil." (Emphasis added.)
So, while the petitioner acknowledges that Broskey's credibility alone may not have had "any import on the outcome of this case", the ineptness and inaccuracy of his experiment certainly did. Id. Without a doubt, the aluminum foil, so vehemently espoused by Preston to the trier of fact, played a key role in the Court's decision to convict the petitioner.
In addition to Kirk's new evidence, there is ample evidence in the record that disproves the fire marshals' claim of arson: both Hamby's testified that the stove was literally a "grease pit." Moreover, an arson sniffing dog scoured the scene and found no signs of arson. The ATF lab found nothing that could be attributed to arson as well. (Exs.33–36)
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THE CONFESSION
The most damning piece of evidence against the petitioner was his own confession at the hands of police. However, Kirk will demonstrate that the authenticity of his statement to police is dubious, to say the least. First and foremost, the new evidence shows that Kirk confessed to an impossible act. Kirk's confessing to the Lincoln assassination wouldn't make it so.
Recent developments in technology and science, particularly the filed of DNA analysis, have shown that false confessions occur with astounding regularity. In most cases, it was the psychological tactics employed by police, identical to those used against Kirk, which netted these false confessions. (Exs.37-38) [2]
[2] See The Problem With False Confessions in a Post-DNA World, 82 North Carolina Law Review No. 3, March 2004, and; Corroborating Confessions: An Empirical Analysis of Legal Safeguards Against False Confessions, 1984 Wis. L. Rev. 1121, 1155.
Scrutiny of Kirk's confession shows it to be utterly unreliable and untrustworthy. This is demonstrated by Kirk's new evidence, in that, he could not have possible used 70-proof rum to start the fire.
Kirk has always maintained that police and fire marshals coerced and manipulated a statement out of him. He was told that he was being charged with murder, and that he was going to die, because they would get him the death penalty. Kirk was also told that his refusing to cooperate would only make things worse, and that his interrogators could get the courts to use this against him. (Exs.39-47)
Not one single aspect of Kirk's statement was an original product of his own which had not been coaxed by police. The allegation that Captain Morgan Spiced Rum™ was used to start the fire was first introduced by Detective Worthy. (Ex.50) [3] Then Kirk was associated with the rum by Worthy. (Ex.51) Finally, police outright accuse Kirk of using rum. (Ex.52)
[3] Detective Worthy actually began accusing Kirk during the initial interrogation disguised as a polygraph examination. Worthy administered 3 exams, which indicates that Kirk passed; otherwise Worthy would not have chanced Kirk passing a subsequent test if he had failed the first or second.
It was Detective Kelly who first suggested that Kirk must have tried to put the fire out. (Ex.53) It was also Kelly who first suggested that Kirk must have poured the rum on the stove burner. (Ex.54, cf. Exs.55–56) Ultimately it was Detective McLucas who told Kirk that he must have poured rum all over the stove top. (Ex.57) Later it was McLucas who tells Kirk that it had been Kirk's idea that he had gone out back of the apartment, when in fact that assertion was first made by Kelly. (Exs.58–59) Incredibly, this is in stark contrast with the testimony of officer Wagenhoffer, and the initial statement given to police by Darlene Hamby. (Exs.5–10) These facts strongly demonstrate that Kirk's confession was a complete work of fiction, manufactured entirely by police.
Kirk has also demonstrated from the facts in evidence that the authenticity and integrity of the interrogation tapes and transcripts are suspect. For instance, both Kelly and McLucas testified that Kirk had been escorted out for bathroom breaks during the course of the interrogation. (Exs.60–61) Detective Worthy, during the course of questioning, even reminds Kirk that he had, in fact, been escorted out for the aforementioned breaks. (Ex.62) The video, as well as the transcripts, however, clearly show that Kirk never left the room even once the entire time of the interrogation. Not once. There is not a single instance in the transcripts where Kirk is allowed to leave, let alone being escorted out. (Exs.63–64) Why is this important? Because police testified that the transcripts and tapes were unaltered in any way. There is even a 30 minute dead spot in the tapes where according to police the tapes were allowed to run for "accuracy." So where did the bathroom breaks go? The transcripts show Kirk asking to use the bathroom, and being denied. But it certainly makes sense that over the course of several hours, Kirk was definitely going to use the bathroom. So the tapes and the transcripts were obviously edited, hence the inconsistencies and discrepancies. These unexplainable factual discrepancies cast grave doubt on the authenticity and integrity of the whole interrogation, as well as the testimony of the officers involved.
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LEGAL ANALYSIS
The determination of a factual issue made by a state court shall be presumed to be correct. That "presumption" applies to factual issues that are "basic, primary, or historical"; however, it does not apply to factual findings that are not fairly supported by the record. Berryman v. Morton, 100 F.3d 1089, 1094 (3rd Cir. 1996), quoting, Townsend v. Sain, 372 U.S. 293, 309, 83 S.Ct. 745 (1963)
Furthermore, a petitioner seeking to introduce new evidence of actual innocence must show that (1) the evidence is such as will probably change the result if a new trial is granted, (2) that it has been discovered since trial through the exercise of due diligence and, (3) that it is not merely cumulative and impeaching. Wilson v. Beard, 426 F.3d 653 (3rd Cir. 2005) Kirk's new evidence meets, or exceeds these three requirements, in that (1) it would most likely change the outcome of trial had it been presented to the trier of fact; (2) the evidence has been discovered through exceptional due diligence, and; (3) the evidence is more than cumulative and impeaching, in that, (i) it completely undermines confidence in the verdict, (ii) demonstrates that Kirk was convicted with falsified evidence and, (iii) that counsel was utterly ineffective. Wilson, 426 F.3d at 659.
The right to a fair trial, free from false evidence and perjury, is guaranteed by the United States Constitution. Jenkins v. Artuz, 294 F.3d 284 (2nd Cir. 2002) Kirk has presented clear and convincing proof that fire marshals used falsified evidence, and gave perjured testimony, at his trial. This violates the Fourteenth Amendment's Due Process Clause. It also demonstrates a colorable claim that there was a miscarriage of justice (Kirk's wrongful conviction) because of a constitutional violation (the right to a fair trial) thta resulted in the conviction of one who is actually innocent. A conviction based on false evidence cannot stand. U.S. v. Lipowski, 423 F.Supp. 864 (D.N.J. 1976)
The right to effective assistance of counsel is guaranteed by the Sixth Amendment. To show ineffectiveness, Kirk must demonstrate that (1) counsel's performance fell below an objective standard of reasonableness and, (2) that but for counsel's errors, the result probably would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984)
While it's true that the Constitution does not guarantee the right to effective assistance of a expert, the failings of the defense expert in this case were a direct result of counsel's ineffectiveness. Richy v. Mitchell, 395 F.3d 660 (6th Cir.2005); remanded, Bradshaw v. Richy, 126 S.Ct. 602 (2005); writ grant upheld, Richy v. Bradshaw, 498 F.3d 344 (6th Cir. 2007) "The deficiencies of an expert can be imputed to counsel when counsel has failed to adequately research and screen an expert witness." Richy v. Mitchell, slip op at page 18. (Emphasis in original) "Incompetence cannot excuse incompetence." Id.
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Experts testifying at an evidentiary hearing in Richy demonstrated that the technology and experts existed as far back as 1986 to refute evidence presented in that case. Richy, slip op at page 20. Therefore, there is no excuse why Kirk's counsel could not have secured a qualified and reliable expert, to properly perform a test burn, if he had done even a minimal amount of homework. Instead he looked no further that to a DUI expert that he used in his side practice. Kirk's newly discovered evidence shows "that a competent arson expert—fully informed and supervised by counsel, using the methods available to him at the time of trial—would have all but demolished the State's bogus scientific evidence" and their entire case along with it. Richy, slip op at 21-22. Hiring a DUI expert to defend against an arson-murder charge in a death-penalty case certainly meets the first prong of Strickland, namely that counsel's performance fell below an objective standard of reasonableness.
Next Kirk must show prejudice as a result of counsel's ineffectiveness, namely that "there is a probability that, but for counsel's errors, the fact finder would have had a reasonable doubt about [petitioner's] guilt." "A reasonable probability is a probability sufficient enough to undermine confidence in the trial's outcome." Strickland, 466 U.S. at 695.
If Kirk's counsel had presented an expert, with supporting evidence such as that found in Kirk's newly discovered evidence, the State's case would have been crushed, plain and simple. The trier of fact could not have found Kirk guilty of an impossible act. And since there was absolutely no evidence of any other type of accelerant that could have started the fire, the State had no case.
Fire Marshals, as well as ATF expert Julie Dolan, testified that other types of accelerants leave a discernable trace of residue, i.e.–gasoline, lighter fluid, etc. None of these mentioned residues was discovered at the scene, by either lab testing or arson sniffing dogs. Therefore, at this juncture, the State cannot change course and claim that perhaps some other type of accelerant was used.
By failing to attempt to obtain proper evidence to refute the State's case, counsel essentially abandoned any hope Kirk had of proving his innocence. The Constitution guarantees a criminal defendant the right to present a complete defense. Crane v. Kennedy, 106 S.Ct. 2528 (1986); California v. Trombetta, 104 S.Ct.2528 (1984) At this point, Kirk needs to "establish by a fair probability that the trier of fact would have entertained a reasonable doubt respecting guilt." Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616 (1986) [4] Kirk has exceeded the "fair probability" standard with the trial court judge's own words, found herein at page 6. Kirk has thus met the second prong of Strickland, namely prejudice, in that but for counsel's errors, the result of the trial would have been different.
[4] Justice Powell expressed the Kulhmann Court's view by concluding that a prisoner retains an overriding "interest in obtaining his release from custody if he is innocent of the charge for which he was incarcerated." Kuhlmann, 477 U.S. at 454-55, 106 S.Ct. 2627.
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Kirk has maintained since day one, when police began to accuse him, that 70-proof rum wouldn't burn the way fire marshals described. This is common knowledge; but without proof, Kirk was pleading to the wind. Every expert, every lay person, every cognizant person Kirk has discussed this case with has wondered how he was convicted on such a preposterous theory. Finally, after years of unsuccessful attempts to find proof of his claim, John Lentini was willing to step up and provide the new evidence Kirk need to prove his innocence.
Most notably is the fact that Kirk's new evidence does more that demonstrate mere "legal insufficiency" but firmly establishes "factual (actual) innocence." Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604 (1998)
This case can best be described by the words of Judge Sarokin: "We must ask ourselves why the current clamor and rush to carry out death sentences, but no similar urgency in freeing one who might be wrongly convicted and confined." "If one's liberty, once unconstitutionally taken, can only be restored after so many years of confinement and confoundment, then the Great Writ has been rendered useless. we should be crying out for the prompt release of those who may have been wrongly convicted and confined."
"Justice delayed is justice denied." Landano v. Rafferty, 782 F.Supp. 986, 988 (D.N.J. 1992)