start somewhere. I had to try my first case. What about a court reporter? What about you? Mr. Sibert started somewhere. Mr. Byers has never testified before, but he has done the exact same thing Mr. Sibert has done, except he goes a bit farther and he can prove it to the Jury.”
Soon Kemper was beside himself: “Now I understand he is to be excluded entirely from giving any expert testimony. Is that my understanding?… I understand he can’t testify as to his opinion as to any tests or experiments that he has done. Is that the Court’s ruling?”
It was. Judge Hardy would not let the jury hear Byers. The next morning a desperate Jim Kemper continued arguing in the judge’s chambers. His agitation was understandable. He did not have other experts to summon—he’d found it hard enough for a cash-strapped defense team to find anyone to testify. Most experts worked for or were paid fees by the state. Kemper had already spent weeks vainly looking all over Phoenix for a fingerprint expert available to the defense. No such person existed. He’d also called a friend in Los Angeles, who couldn’t find anyone there in a three-day search. Kemper explained this problem to Hardy, pleading, “If this ruling stands when there’s a technical question which is vital to guilt or innocence, the guilt or innocence is going to be determined by the law enforcement agencies in this country. They’re going to have a monopoly on it. They’ve got the microscopes. They’ve got the training manuals. They’ve got all the equipment. They won’t let anybody else use them.… And anybody who has ever tried a criminal case knows that there aren’t any private laboratories where you can get an equivalent examination of evidence.… A defense lawyer has to do the best he can. He has to spend hours and hours and hours just to try to find somebody that’s qualified. And then when he finds them they really haven’t the proper equipment. The practical results of this decision are to foreclose any reasonable possibility that a criminal defendant can properly defend himself on a technical question where it’s vital to guilt or innocence.”
In fact, Kemper maintained, Judge Hardy’s ruling constituted a fundamental violation of due process. “We’re talking about due process of law here, and I take the position if we’re not allowed to present evidence on this subject through Mr. Byers, we are being denied due process of law in that we are being denied the right to present a defense.… We are being denied the right to confront the witnesses against us.… There is no way in the world that you can impeach or contradict a witness like Mr. Sibert except to put on another expert witness that says I don’t agree with him, I come to the opposite conclusions. So we take the position that if Mr. Byers is not allowed to testify before the jury we are being denied the right to confront the witnesses against us under the Sixth and Fourteenth Amendments to the United States Constitution.”
Kemper had one last plea: “And finally I say this to the Court. If the Court does not change its ruling on this subject, I respectfully ask for a two-day continuance of this matter so I can go to the Arizona Supreme Court and file a petition for a special action, and ask for a stay until this question can be resolved.”
Judge Hardy still stood firm. He denied Kemper’s plea to allow Byers’s testimony, and he denied Kemper’s request for a recess so he could appeal to the state supreme court.
The defense had no ballistics expert, no fingerprint expert, no Valenzuela confession—and also no Linda Primrose. Though her account to sheriff’s deputies back in 1962 seemingly corroborated and dovetailed with Valenzuela’s confession, and possibly explained the thatch of hair found at the murder scene, Jim Kemper did not know about Primrose. Nor, apparently, did the prosecution. The Maricopa County Sheriff’s Office had never included the Primrose reports in
Soon Kemper was beside himself: “Now I understand he is to be excluded entirely from giving any expert testimony. Is that my understanding?… I understand he can’t testify as to his opinion as to any tests or experiments that he has done. Is that the Court’s ruling?”
It was. Judge Hardy would not let the jury hear Byers. The next morning a desperate Jim Kemper continued arguing in the judge’s chambers. His agitation was understandable. He did not have other experts to summon—he’d found it hard enough for a cash-strapped defense team to find anyone to testify. Most experts worked for or were paid fees by the state. Kemper had already spent weeks vainly looking all over Phoenix for a fingerprint expert available to the defense. No such person existed. He’d also called a friend in Los Angeles, who couldn’t find anyone there in a three-day search. Kemper explained this problem to Hardy, pleading, “If this ruling stands when there’s a technical question which is vital to guilt or innocence, the guilt or innocence is going to be determined by the law enforcement agencies in this country. They’re going to have a monopoly on it. They’ve got the microscopes. They’ve got the training manuals. They’ve got all the equipment. They won’t let anybody else use them.… And anybody who has ever tried a criminal case knows that there aren’t any private laboratories where you can get an equivalent examination of evidence.… A defense lawyer has to do the best he can. He has to spend hours and hours and hours just to try to find somebody that’s qualified. And then when he finds them they really haven’t the proper equipment. The practical results of this decision are to foreclose any reasonable possibility that a criminal defendant can properly defend himself on a technical question where it’s vital to guilt or innocence.”
In fact, Kemper maintained, Judge Hardy’s ruling constituted a fundamental violation of due process. “We’re talking about due process of law here, and I take the position if we’re not allowed to present evidence on this subject through Mr. Byers, we are being denied due process of law in that we are being denied the right to present a defense.… We are being denied the right to confront the witnesses against us.… There is no way in the world that you can impeach or contradict a witness like Mr. Sibert except to put on another expert witness that says I don’t agree with him, I come to the opposite conclusions. So we take the position that if Mr. Byers is not allowed to testify before the jury we are being denied the right to confront the witnesses against us under the Sixth and Fourteenth Amendments to the United States Constitution.”
Kemper had one last plea: “And finally I say this to the Court. If the Court does not change its ruling on this subject, I respectfully ask for a two-day continuance of this matter so I can go to the Arizona Supreme Court and file a petition for a special action, and ask for a stay until this question can be resolved.”
Judge Hardy still stood firm. He denied Kemper’s plea to allow Byers’s testimony, and he denied Kemper’s request for a recess so he could appeal to the state supreme court.
The defense had no ballistics expert, no fingerprint expert, no Valenzuela confession—and also no Linda Primrose. Though her account to sheriff’s deputies back in 1962 seemingly corroborated and dovetailed with Valenzuela’s confession, and possibly explained the thatch of hair found at the murder scene, Jim Kemper did not know about Primrose. Nor, apparently, did the prosecution. The Maricopa County Sheriff’s Office had never included the Primrose reports in
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