testified on behalf of the government at Mr. Harris' trial. Ms. Hunter also has personal relationships with other testifying officers who participated in the execution of the warrant leading to Mr. Harris' arrest. Movant suggests that Ms. Hunter's failure to disclose the nature and extent of her conflict of interest to Mr. Harris or the Court at any time denied him effective assistance of counsel in violation of the Sixth Amendment and denied him a fair trial.
II. History of this Motion
On October 17, 1991, movant filed a notice of appeal from his conviction and sentence. That appeal is pending in the United States Court of Appeals for the District of Columbia. By order of that court dated April 15, 1992, the appeal is being held in abeyance pending the filing and disposition of this motion.
On February 12, 1993, this court temporarily granted a motion to file and conduct proceedings under seal. On March 12, 1993, the court sealed this matter until further order by the court. Also on March 12, 1993, the court signed an order permitting movant to take the deposition of Ms. Hunter. On May 19, 1993, the court allowed the movant to depose Officer Muzzatti. Interviews of other Fifth District police officers were conducted pursuant to a stipulation of counsel. On January 12, 1994, this court held an unsealed hearing in open court on this § 2255 motion. The court took this matter under advisement, keeping the findings and documents under seal pending further order of the court. The government suggests that the discovery allowed regarding this § 2255 motion should be kept under seal because of the privacy interests of the principal players in this case. This court rejects this argument. The participants' privacy interest is outweighed by the need for public awareness of the facts of this case in light of the court's decision today to grant the movant's motion. Today, in a separate order, this court unseals all materials related to this case.
III. History of the Case
A. Arrest and Pretrial
Police arrested movant and his codefendant, Thomas Roger Odom, on March 13, 1991 during the execution of two search warrants at neighboring addresses, 1237 and 1239 Gallatin Street, N.E. Tr. I at 12, 38; Tr. III at 3-119.
When the police entered the residence, movant was located in the basement of the house at 1239 Gallatin St. N.E. Tr. III at 3-4. Three other individuals were in the basement at that time: Derrick Johnson, Mark Henderson, and Carl Cooper. Id. Henderson and Cooper testified at trial in Mr. Harris' defense. Tr. III at 2; Tr. IIA at 117. Johnson, an unavailable witness, executed an incriminatory statement that was admitted in Mr. Harris' defense See Movant's Suppl. App., Tab 9.
Movant's codefendant was seized outside of the house between the 1237 and 1239 Gallatin addresses. Tr. I at 22.
Police discovered 27 small packets of crack cocaine on the basement floor near the door of a rear storage room. The police also found $ 2,500 in cash, firearm ammunition, and empty ziplock bags in the basement. Movant was the only person in the house arrested and charged.
Numerous Fifth District vice officers were involved in the execution of the warrant that evening. Investigator Donald Bell was the lead officer and the second officer to enter the basement. Tr. II at 63. Officer Stephen Naugle testified that he was the first officer to enter the basement, Tr. I at 59-60, and that he arrested Mr. Harris. Id. at 69. Officer Lance Harrison was the crime search officer responsible for the search of the basement area and the rest of the house. Id. at 43-44. Officer Bradley Belden was the seizing officer responsible for evidence seized during the raid. Tr. II at 16. Officers Marcello Muzzatti and Kirk Delpo were assigned to cover the rear of 1239 Gallatin Street, N.E. Tr. I at 18, 35. They seized movant's codefendant. Id. at 22. They were also involved in the search of the basement area. Id. at 26, 38. All of the above-named officers testified at the trial. John Cunningham and Darryl Richmond, along with unidentified uniformed officers, also participated that evening. Tr. III at 70.
The day following Mr. Harris' arrest, Ms. Betty M. Hunter began representing Mr. Harris as court-appointed counsel. After her initial meeting with him on March 14, 1991, Ms. Hunter represented movant throughout pretrial, trial proceedings, and in his presentencing and sentencing.
Before meeting with Mr. Harris, Ms. Hunter questioned Fifth District Officer Marcello Muzzatti, her lover, about his role in the arrest of Mr. Harris.
Hunter Dep. at 30. Officer Muzzatti told her that he had no knowledge of the arrest of James Harris or the arrest activities in the basement. Id. at 360. Her understanding was that Officer Muzzatti had only arrested somebody outside the house, id. at 69, 71-72, and had never gone inside the house, until later when he took the doorknob off the basement door. Id. at 72. She believed that Mr. Harris had been removed from the basement prior to Officer Muzzatti's entry into the basement. Id. at 106. At this point, Ms. Hunter "satisfied [her]self, in [her] mind, that [she] could represent Mr. Harris without any ethical problems, because Officer Muzzatti knew nothing about the arrest of Mr. Harris." Id. at 78.
Movant and codefendant Odom were tried jointly before this court. At trial, the prosecution hinged on the testimony of the fifth district arresting officers, including Officers Donald Bell, Steven Naugle, and Marcello Muzzatti. Bell and Naugle proved to be the key witnesses in proving the constructive possession charge against Mr. Harris, placing him inside the house at 1239 Gallatin St., N.E.
Officer Muzzatti was the first witness to testify in the government's case in chief. Tr. I at 16-34. Officer Muzzatti assisted the other officers in executing the search warrants. Id. at 17-18. While the other officers executed the warrants, Officer Muzzatti, along with Officer Delpo, was assigned to cover the rear of the buildings being searched. Id. at 18.
Muzzatti heard his colleagues enter the front of 1239 Gallatin St. N.E. Id. Muzzatti then heard a door slam and crashing in the bushes, which he took to be someone running. Id. A person with a gun came toward him, moving in the yard between the houses at 1237 and 1239 Gallatin. Id. The fleeing man, codefendant Odom, apparently slipped and fell, losing the gun. Id. at 18-20, 22.
After Odom had been arrested, Muzzatti and Delpo found a key in the codefendant's possession, which fit the back basement door to 1239 Gallatin. Id. at 26-27. After finding that Odom's key opened the back basement door, the two officers could not enter the door because "there was some furniture up on top." Id. at 27-28. When the furniture had been moved, Delpo and Muzzatti reopened the door, pushed it in, and Muzzatti removed the knob and lock. Id. at 28. Muzzatti did not know if the furniture had blocked the door before the search warrant was executed. Id. at 28.
In what Ms. Hunter considered to be a surprise twist, Muzzatti testified that he was inside the house at one point during the arrest, thereby possibly bringing him in contact with Harris. Muzzatti stated that he saw none of the dealings defendant had with the other officers conducting the search. Id. at 29. The entirety of Ms. Hunter's cross-examination appears below:
Q. Good afternoon, Officer Muzzatti. I represent Mr. Harris. Did you participate in any way in the arrest of Mr. Harris?
A. No, I did not.