STATE v. WALTER (2025)

The State through the Attorney General's Office (“State”) appeals the trial court's judgment that granted Sullivan Walter's petition for compensation pursuant to the Louisiana Wrongful Conviction Compensation Statute, La. R.S. 15:572.8, and awarded him the statutory maximum of $480,000 from the Louisiana Wrongful Conviction Compensation Fund. For the reasons that follow, we amend the judgment to reflect that the awards of compensation are subject to any credit the State is entitled pursuant to La. R.S. 15:572.8(H)(5) and, as amended, affirm the judgment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This wrongful conviction compensation case arises out of a May 10, 1986 midnight home invasion and rape of L.S.¹ , a single mother living in her home with her eight-year old son sleeping in the next room. L.S. described her attacker as a young, lean black man with greasy hair wearing a blue baseball cap and a yellow rag around his face to mask his appearance. After the man left, L.S. dressed in shorts and a shirt while waiting for the police to arrive.

The police took L.S. to the hospital that night for a sexual assault exam. The examination indicated the presence of seminal fluid near the victim's genital area. Internal and external vaginal swabs were collected as well as the victim's shorts and shirt.

On May 12, 1986, Patricia Daniels (“Ms. Daniels”), a medical technologist with the Orleans Parish Coroner's Office, tested the samples from the rape kit and prepared a report (the “Daniels Report”). The Daniels Report indicated that L.S.’s blood type was “O” and that testing of the internal vaginal swabs identified “no blood substances.”

On May 13, 1986, Harry O'Neal ² (“Mr. O'Neal”), a New Orleans Police Department (“NOPD”) criminalist and DNA analyst, tested the stains on L.S.’s clothing. The results of his testing are reflected in his report (the “O'Neal Report”) and state that stains on the victim's shorts tested positive for seminal fluid and spermatozoa, and “no secretor activity.”

Around six weeks after the crime, 17-year old Sullivan Walter (“Mr. Walter”) was arrested for an unrelated non-violent burglary. Believing Mr. Walter resembled the description of L.S.’s attacker, a NOPD officer informed the detective investigating L.S.’s rape. Mr. Walter's photo was presented in a photo array for L.S., who identified him as her attacker. Mr. Walter was subsequently charged with (1) one count of forcible rape; (2) one count of aggravated burglary; and (3) two counts of aggravated crime against nature.

In December 1986, a one-day trial was held. On the morning of trial, prosecutors provided Mr. Walter, for the first time, a copy of the O'Neal Report. Although the report was not admitted into evidence, Mr. O'Neal was accepted as an expert in bodily fluid analysis and testified to the contents of his report. Mr. O'Neal explained:

The secretor test is conducted to determine a person's blood type from his bodily secretions․.In other words, their saliva or seminal fluid․In this particular case, examination of seminal fluid revealed no secretor activity which would indicate that the individual who left the seminal fluid stains was a non-secretor. In other words, they did not secrete their blood type.

Additionally, while Ms. Daniels did not testify at trial, her report was admitted into evidence by stipulation. The jury found Mr. Walter guilty as charged. Mr. Walter was sentenced to 35 years as a multiple offender on the forcible rape conviction and sentenced to 15 years imprisonment on each of the other convictions, with all sentences to run concurrently with each other.³

In his first appeal, Mr. Walter argued that the State's untimely production of the O'Neal Report deprived him of constitutional due process and violated the rules of discovery. The serology test results, reflected in the O'Neal Report, showed that the perpetrator was a non-secretor. He argued that had he known of the test results earlier, he could have conducted tests to exonerate himself by proving that he is a secretor. This Court affirmed Mr. Walter's convictions, subject to his right to move for a new trial and present evidence of his secretor status.

On remand, Mr. Walter's blood and saliva were tested. Mr. O'Neal conducted the tests and his January 1988 report indicated that Mr. Walter was Blood Type B, and the saliva sample revealed Blood Type B secretor activity. Mr. Walter then filed a motion for new trial.

At the April 1988 hearing on the motion for new trial, Mr. O'Neal was the sole witness. He stated that he could not exclude Mr. Walter as the perpetrator of the crime based on the sample stain he tested, despite having testified at trial that the perpetrator was a non-secretor. The trial court denied the motion for new trial, and this Court affirmed on remand from the Supreme Court.⁴

In August 2022, the Orleans Parish District Attorney (“DA”) and Mr. Walter filed a joint motion to vacate Mr. Walter's convictions pursuant to La. C.Cr. P. art. 926.2(B), alleging that Mr. Walter is factually innocent of the offenses for which he was convicted. Mr. Walter submitted the report from DNA expert, Alan Keel, who reviewed the records and serological reports in this case. The joint motion was based on the serological evidence showing that the perpetrator was a non-secretor, while Mr. Walter is a secretor, thereby excluding him as the perpetrator. Following a hearing, the trial court granted the motion and vacated Mr. Walter's convictions and ordered his immediate release as to those crimes.

In March 2023, Mr. Walter filed a petition for compensation for wrongful conviction and imprisonment pursuant to La. R.S. 15:572.8. The State through the Attorney General's Office opposed the petition on the basis that Mr. Walter cannot prove by clear and convincing evidence that he is factually innocent. Following an evidentiary hearing, the trial court rendered judgment in Mr. Walter's favor. The trial court found the evidence collected from the 1986 rape revealed no group type secretions and thus eliminated Mr. Walter as the rapist of L.S. The trial court awarded Mr. Walter the statutory maximum of $480,000 from the Louisiana Wrongful Conviction Compensation Fund in connection with his time served in Docket No. 316-973.⁵ The State's appeal to this Court followed.

DISCUSSION

On appeal, the main issue is whether Mr. Walter proved by clear and convincing evidence that he is factually innocent of the crimes for which he was convicted pursuant to La. R.S. 15:572.8. In opposing the State's appeal, Mr. Walter contends that he did and, as a threshold matter, argues the State is precluded from asserting otherwise under the doctrines of res judicata and judicial confession. We address this subsidiary issue first before turning to the principal question of whether Mr. Walter met his burden of proving he is factually innocent.

Res Judicata and Judicial Confession Doctrines

Mr. Walter contends that res judicata and the judicial confession doctrine bar the State from challenging his factual innocence. In support of his contention, Mr. Walter argues that the State is bound by the underlying criminal judgment, to which it consented and which found Mr. Walter to be factually innocent, as well as by the factual admissions made in the joint motion that preceded the entry of that judgment.

Res judicata only applies to matters “actually litigated and determined.” La. R.S. 13:4231(3). An issue is not litigated if it was not “contested by the parties.” In re Keaty, 397 F.3d 264, 272 (5th Cir. 2005). Here, a determination of Mr. Walter's factual innocence was never actually litigated in the post-conviction relief proceedings; rather, it was jointly admitted by the DA and Mr. Walter. Thus, res judicata does not apply. See Smith ex rel. Smith v. State, 08-1349, unpub., (La. App. 4 Cir. 5/6/09), 2009 WL 8688916 (rejecting argument based on res judicata that evidence of juvenile court's finding of “innocence” precluded the State from challenging a wrongful conviction claim).

Additionally, a judicial confession is “a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.” La. C.C. art. 1853. “A stipulation has the effect of a judicial admission or confession which binds all parties and the court.” Young v. Martinez, 98-674, p. 4 (La. App. 5 Cir. 11/25/98), 722 So.2d 1143, 1145. “A judicial confession is binding on the court and must be applied in the case in which it is made.” Hebert v. Richard, 15-8, p. 6 (La. App. 3 Cir. 6/17/15), 166 So.3d 1265, 1272 (citation omitted).

The judicial confession doctrine does not apply. This appeal arises in a separate civil proceeding wherein the parties appear before the court in different capacities. In this compensation action, Sullivan Walter v. State of Louisiana (Docket No. 557-339)⁶ , the State is a civil defendant, and pursuant to statute, the Attorney General is required to represent the State in such matters. See La. R.S. 15:572.8(E). For these reasons, we find no merit to Mr. Walter's preclusion argument.

Standard of Review

Appellate courts review a wrongful conviction compensation case for manifest error.⁷ State v. Ruano, 19-0709, p. 4 (La. App. 4 Cir. 3/4/19), 294 So.3d 44, 46 (citation omitted). “The issue is not whether the trial court's findings are right or wrong, but whether they are reasonable on the record as a whole.” State v. Ford, 50,525, p. 6 (La. App. 2 Cir. 5/18/16), 193 So.3d 1242, 1247 (citations omitted). Longstanding jurisprudence requires appellate courts to give great deference to a trier of fact's factual findings based on credibility judgments. Rosell v. ESCO, 549 So.2d 840, 845 (La. 1989); Stobart v. State, Dep't of Transp. & Dev., 617 So.2d 880, 882 (La. 1993).

Factual Innocence Under La. R.S. 15:572.8

A petitioner is entitled to compensation under La. R.S. 15:572.8 upon proving: “(1) The conviction of the petitioner has been reversed or vacated; and (2) The petitioner has proved by clear and convincing scientific or non-scientific evidence that he is factually innocent of the crime for which he was convicted.”⁸ La. R.S. 15:572.8(A). Subsection (B) defines factual innocence to mean that “the petitioner did not commit the crime for which he was convicted and incarcerated nor did he commit any crime based upon the same set of facts used in his original conviction.” La. R.S. 15:572.8(B).

Examining La. R.S. 15:572.8, the Fifth Circuit identified three methods by which a petitioner may prove that he did not commit a crime:

First, the petitioner may produce probative, affirmative evidence that another person perpetrated the crime [․] Second, the petitioner may point out the absence of evidence establishing him as the perpetrator of the crime or attempt to cast into doubt the prosecution's evidence [․] Third, the petitioner may provide evidence of absence or evidence that excludes him as the perpetrator of the crime. Such evidence, as contemplated by the statute, may be scientific such as DNA evidence․or non-scientific evidence, such as alibi testimony․or some other kind of physical evidence, that may directly or circumstantially exclude the petitioner as the perpetrator of the crime.

Alexander, 22-12, pp. 18-20, 367 So.3d at 881-82.

The trial court rightly observed that at the “heart of the matter” is the physical evidence collected reflecting non-secretor activity in the spermatozoa specimens collected from the vaginal swabs and victim's shorts. Mr. Walter has consistently maintained that he did not rape L.S. In support of his petition, Mr. Walter relies primarily on the third method outlined in Alexander to assert that the forensic evidence collected in the underlying case excludes him as the perpetrator of the crime.⁹ He avers that he could not have committed the rape of L.S. because he is a Group B blood secretor and the spermatozoa specimens collected and tested reveal they came from a non-secretor. Opposing Mr. Walter's petition, the State claims that a conclusive determination cannot be made regarding the perpetrator's secretor status based on the stain on the victim's shorts; and therefore, Mr. Walter cannot be definitively excluded.

The focus of this case and the primary point of dispute concerns the forensic evidence collected from the victim's shorts and the testimony of Mr. O'Neal, who performed the testing. The unequivocal testimony of Mr. Walter at the 1986 trial was that “the individual who left the seminal fluid stains was a non-secretor.”

At the 1988 hearing on the motion for new trial, Mr. O'Neal testified that the January 1988 test results showed that Mr. Walter was a Group B secretor. Mr. O'Neal testified that despite the stain on the victim's shorts showing no secretor activity, the test results alone are inconclusive as to whether the person who caused the stain is a non-secretor. Mr. O'Neal identified factors that might explain the apparent discrepancy between his test results and Mr. Walter's secretor status.

On appeal, the State cites Mr. O'Neal’s 1988 testimony positing potential explanations for the discrepancy, like sample size and stain concentration, to suggest that his trial testimony regarding the perpetrator's secretor status was anything but conclusive. However, Mr. O'Neal testified at the motion for new trial that he did not recall Mr. Walter's case or what measures he took in 1986 to test the shorts stain. Additionally, the prosecution never raised concerns about the reliability of the O'Neal Report or sought to retest the evidence while it was still in its possession. Further, the record is devoid of any contemporaneous challenge to Mr. O'Neal’s conclusions as testified to at the 1986 trial. Thus, there is nothing in the record to suggest that any of the scenarios Mr. O'Neal identified, which might otherwise call into doubt the accuracy of his trial testimony were present in this case.

At every relevant stage, the forensic evidence and testimony of Mr. O'Neal has eliminated Mr. Walter as the perpetrator. The unequivocal testimony of Mr. O'Neal at the 1986 trial was that “the individual who left the seminal fluid stains was a non-secretor.”

Mr. O'Neal’s expert opinion was based on his analysis of biological samples recovered from the victim's shorts she was wearing on the night of the assault. The reliability of the O'Neal Report was never questioned until it became clear, after Mr. Walter was convicted, that Mr. Walter is a Group B secretor, making it scientifically impossible for him to have left the seminal fluid recovered from victim and her clothing.

Nearly 40 years later, there is a suggestion that Mr. O'Neal required better samples to conclusively determine that the semen collected from the victim's shorts came from a non-secretor. However, Mr. O'Neal’s original testimony has never been contradicted or withdrawn. In fact, as evidenced by his September 4, 2023 letter ¹⁰ to Mr. Walter's attorney, Mr. O'Neal has remained steadfast in his conclusion: “Mr. Walter could not have produced the sample on the material tested!” (emphasis in original).

Further, the accuracy of the Daniels Report has never been challenged. The Daniels Report tested the vaginal swabs taken from L.S. shortly after the rape occurred and determined that the swabs tested positive for seminal fluid, and no blood substances were identified. According to Mr. O'Neal’s explanation of secretor testing, the Daniels Report would indicate no secretor activity was detected from the vaginal swabs Ms. Daniels tested.

At the compensation hearing, Alan Keel acknowledged that there were multiple possibilities as to why the shorts Mr. O'Neal tested yielded no secretor activity. Even so, he opined that given the information police gathered in the course of their investigation, the two independent tests performed likely produced accurate results. In light of both the O'Neal Report and the Daniels Report, Mr. Keel opined that Mr. Walter could not have been the perpetrator.

Mr. O'Neal’s testimony, coupled with the corroborating findings of Ms. Daniels—whose independent analysis of the vaginal swabs supports Mr. O'Neal’s conclusion that the semen came from a non-secretor—renders the suggestion that Mr. Walter, a Group B secretor, committed this heinous act scientifically untenable.

On appeal, this Court is asked to determine whether Mr. Walter has presented clear and convincing evidence of his factual innocence to support his petition for compensation. In reviewing for manifest error, our role is not to decide whether we would have reached the same conclusion, but rather to determine whether the trial court's judgment was reasonable based on the record as a whole. Ruano, 19-0709, p. 4, 294 So.3d at 46; Ford, 50,525, p. 8, 193 So.3d at 1248-49 (explaining “the entirety of the evidence, whether admitted at the underlying trial or excluded, is properly considered in the determination of factual innocence․”).

The evidence supporting the trial court's ruling rests principally on the O'Neal Report, which found no secretor activity in the sample, and the Daniels Report, which corroborated those findings by detecting no blood group substances. This evidence was further reinforced by Mr. O'Neal’s testimony at the original trial and the 2024 compensation hearing, as well as his 2023 letter to defense counsel, in which he expressly stated that Mr. Walter could not have produced the sample he tested. Together, this evidence supports the trial court's conclusion that because the true perpetrator of this horrific crime was a non-secretor, Mr. Walter's “biological status as secretor necessarily eliminates him as the assailant.”

We find no manifest error in the trial court's determination that Mr. Walter met his burden and is entitled to compensation. The trial court awarded the statutory maximum in connection with Mr. Walter's convictions in this case. However, it is unclear whether the State is entitled to a credit. The joint motion to vacate reflects Mr. Walter pled guilty to two unrelated burglary charges, and while the defense confirmed the arrests at the compensation hearing, the record does not include the sentencing dispositions. As a result, it cannot be determined from the record whether the State is entitled to a credit for any other time Mr. Walter may have served; therefore, we amend the trial court's May 17, 2024 judgment to reflect that the awards of compensation are subject to any credit the State is entitled pursuant to La. R.S. 15:572.8(H)(5).

CONCLUSION

On appeal, we find no manifest error in the trial court's finding that Mr. Walter proved by clear and convincing evidence that he is factually innocent and entitled to compensation under La. R.S. 15:572.8. Our arrival at this conclusion does not diminish the gravity of the crime, the trauma endured by the victim, or the good-faith prosecution based on the evidence available at the time. It also does not change the undeniable scientific fact that Mr. Walter, who spent 36 years behind bars—more than two-thirds of his life—could not have been the perpetrator. For these reasons, the trial court's judgment is amended to indicate that the awards of compensation are subject to any credit the State is entitled pursuant to La. R.S. 15:572.8(H)(5). As amended, it is affirmed.

JUDGMENT AMENDED AND AFFIRMED AS AMENDED

I dissent for the reasons assigned by Judge Ledet.

Contrary to the majority, I would find the district court manifestly erred in granting Sullivan Walter's claim under the Louisiana Wrongful Conviction Compensation statute, La. R.S. 15:572.8 (the “LWCC”).¹ To recover under the LWCC, a petitioner must satisfy two requirements:

(1) The conviction of the petitioner has been reversed or vacated; and

(2) The petitioner has proven by clear and convincing scientific or non-scientific evidence that he is factually innocent of the crime for which he was convicted.

La. R.S. 15:572.8 (A). Here, only the second requirement—factual innocence—is disputed.

In this context, factual innocence is defined, by statute, to mean “the petitioner did not commit the crime for which he was convicted and incarcerated nor did he commit any crime based upon the same set of facts used in his original conviction.” La. R.S. 15:572.8 (B). Implicit in the Legislature's inclusion of the factual innocence requirement is its intent that compensation will not be awarded in every case in which post-conviction relief is granted. See In re Williams, 07-1380, p. 5 (La. App. 1 Cir. 2/20/08), 984 So.2d 789, 793. Indeed, the LWCC requires the petitioner prove factual innocence by clear and convincing evidence. La. R.S. 15:572.8 (A). Construing the LWCC, the Louisiana Supreme Court has defined a petitioner's burden of proving factual innocence as requiring proof that “it is highly probable or much more probable than not that [the petitioner] did not commit the crime for which he was convicted or any other crime from the same set of facts.” Jones v. State, 22-01455, p. 5 (La. 5/5/23), 362 So.3d 341, 344.

“[I]n a civil petition for compensation for wrongful conviction and imprisonment, a petitioner does not have the benefit of a presumption of innocence, but rather is tasked with producing evidence to prove his factual innocence.” State v. Alexander, 22-12, p. 14 (La. App. 5 Cir. 6/21/23), 367 So.3d 867, 879, writ denied, 23-01017 (La. 11/8/23), 373 So.3d 46. One method of proving factual innocence is establishing that the petitioner is excluded as the perpetrator. Alexander, 22-12, pp. 19-20, 367 So.3d at 882. Explaining this method, the Alexander court observed:

Such evidence, as contemplated by the statute, may be scientific such as DNA evidence, forensic bite marks or fingerprints, or non-scientific evidence, such as alibi testimony from the petitioner or another witness, or some other kind of physical evidence, that may directly or circumstantially exclude the petitioner as the perpetrator of the crime.

Id.

Mr. Walter's argument that he met his burden of proving factual innocence can be capsulized into the following logical syllogism:

• The serological tests establish that the perpetrator was a non-secretor;

• Mr. Walter is a secreter; therefore,

• Mr. Walter is excluded from being the perpetrator.

Mr. Walter relied upon this same syllogism—albeit not by name—in his prior appeals to this Court.²

The syllogism hinges on establishing the correctness of the first prong—that the serological tests establish the perpetrator was a non-secretor.³ This Court, in Walter Two and Walter Three, found that the first prong was not met given Mr. O'Neal’s testimony that the serological tests results were inconclusive as to the perpetrator's secretor status. For this reason, this Court affirmed the denial of Mr. Walter's MNT in both Walter Two and Walter Three.

Addressing the MNT, this Court in Walter Two observed:

At the hearing on the motion for new trial, Officer O'Neal’s testimony centered on the inconclusive nature of the secretor test results. No testimony was elicited from Officer O'Neal during defendant's trial that the tests results were conclusive that the perpetrator was a non-secretor.

At the end of the hearing on the motion for new trial, Judge Cannizzaro [then the district court judge in the criminal case] stated that he wished to compare the separate testimonies of Officer O'Neal prior to rendering a decision on defendant's motion. In light of the noncontradictory nature of Officer O'Neal’s testimony and the weight of the victim's identification of Walter, there appears to be no abuse of discretion in the trial court's denial of the motion for new trial.

Walter Two, 94-2221, p. 6, 675 So.2d at 835.

Likewise, on remand from the Louisiana Supreme Court,⁴ this Court in Walter Three observed:

[At the MNT hearing, Mr. O'Neal] acknowledged that his earlier tests of the victim's top and shorts had indicated that the seminal fluid stain found on the victim's shorts had shown no secretor activity. He explained that the stain had contained no blood group substances which could be identified through the testing procedure. He maintained that the report did not conclude that the depositor of the stain was a non-secretor, but he acknowledged that such was one of the possibilities. He testified that an individual's non-secretor status could not be determined from a stain garnered under these circumstances. That determination, he said, must be made through blood-typing of the individual to determine Lewis antigens as well as by testing a saliva sample.

Walter Three, 94-2221, p. 5, 698 So.2d at 441-42. Continuing, we observed that Mr. O'Neal set forth several possible reasons for his inability to detect blood group substances in the stain found on the shorts, including:

• [T]he area tested for secretor activity may have been of insufficient size, because it is a portion of the remainder of the original stain after testing for the presence of seminal fluid and spermatozoa.

• [T]he examined stain may have resulted from a mixture of seminal and vaginal fluids such that the stain residue could have been too diluted to reveal any blood group substances.

• [T]he stain portion to be tested may have been clipped from outside the original realm of the stain.

Walter Three, 94-2221, pp. 5-6, 698 So.2d at 442 (reformatted). Thus, this Court again affirmed the denial of Mr. Walter's MNT.

Here, Mr. Walter repackages the same syllogism argument in support of his LWCC claim. The only new items he cites are the joint agreement and motion to vacate Mr. Walter's convictions that was filed in August 2022 (the “Joint Motion”); and the opinion of his newly-retained DNA expert, Alan Keel. Neither the Joint Motion, nor Mr. Keel's opinion support Mr. Walter's position.

The Joint Motion

The DA and the Innocence Project New Orleans (the “Innocence Project”), on Mr. Walter's behalf, filed the Joint Motion. In the Joint Motion, they averred as follows:

Under the circumstances of this rape case, which include the existence of reliable exclusionary serology results from both vaginal swabs and the victim's shorts worn immediately after the rape, where semen from the perpetrator of the rape was detected and sperm visualized on both, the [DA] agrees that Mr. Walter has met his factual innocence burden under La. C. Cr. P. art. 926.2(B).5

The DA, thus, conceded Mr. Walter's post-conviction relief claim of factual innocence.

At the hearing on the Joint Motion, the DA, represented by Emily Mall, accused Mr. O'Neal of “fudging” his testimony at the 1988 Motion for New Trial (“MNT”) Hearing; she stated.⁶

In the months after the trial, his counsel did have him blood[-]typed, and Mr. Walter is a secreter. And so, in response to learning that information in an evidentiary hearing in this court, the state did not re-test to make sure its original tests were accurate, it did not concede that the jury should have heard that Mr. Walter is a Type B secretor; it instead asked its criminalist to come in and “fudge.” And that's what he did. So he came in and he said. Well, I said at the trial that maybe he—that he was a he wasn't—there was no secreter activity, but that doesn't necessarily mean that this person is a non-secreter. But Innocence Project New Orleans has done a comprehensive review of all the documents available in the case. They consulted with an expert, and we've also consulted with that expert about whether that is a good faith change in testimony under all the circumstances and all the evidence of this case. And it is not.

Given the DA's stipulations, the district court judge then assigned the criminal case granted the Joint Motion and vacated Mr. Walter's convictions.

As the majority correctly concludes, the DA's stipulations in connection with the Joint Motion, contrary to Mr. Walter's contention, have no preclusive effect in this LWCC case. Mr. Walter's factual innocence was never actually litigated in the post-conviction relief proceedings; rather, it was jointly admitted by the DA and Mr. Walter in the Joint Motion. Mr. Walter's reliance on the Joint Motion to establish his factual innocence is misplaced.⁷

Mr. Keel's Opinion

The Innocence Project, in 2021, retained Mr. Keel as Mr. Walter's expert. Mr. Keel was asked to analyze Mr. O'Neal’s 1986 to 1988 serological testing results and Mr. O'Neal’s pertinent testimony regarding such testing. Mr. Keel conducted no new scientific testing in this case.⁸

At the hearing on Mr. Walter's LWCC petition, Mr. Keel testified that—accepting the accuracy of thee serological testing performed by Mr. O'Neal and Ms. Daniels—it is not scientifically possible that Mr. Walter, a secretor, could have been the source of the semen found by the police. Mr. Keel explained that the secretor versus non-secretor classifications are incompatible with each other; an individual cannot be both a secretor and a non-secretor.

But, Mr. Keel acknowledged the lack of documentation to support a finding that the evidence tested in this case conclusively established the perpetrator was a non-secretor. At best, Mr. Keel opined that multiple factors indicate the O'Neal Report's results are reliable.⁹ Mr. Keel states in his report that “[w]hat is clear is that, based on both the Daniels and O'Neal reports and the O'Neal testimony [at trial], Mr. O'Neal believes the semen source was a non-secretor.” (Emphasis in original). In footnote nine of his report, Mr. Keel addresses the underlined sentence, observing:

The documentation I have reviewed is consistent with Mr. O'Neal’s belief, but it is insufficient to establish that belief is correct. The appropriate way to determine whether one would reliably expect to detect blood group substance from a secretor semen source that was necessarily comingled with other body fluids (e.g., a sample from a body orifice or dried stain from vaginal drainage) is a quantitative measure of the semen concentration of the type described above. There is no documentation that the NOPD used such a quantitative measure in this or any other case. Given that such objective quantification is not mentioned in any testimony that I reviewed, I do not believe it was in use. An alternative basis for supporting an expectation of whether one could reliably detect blood group substance from a secretor semen source that was necessarily comingled with other body fluids is a subjective observation of the intensity of the acid phosphate presumptive test for semen and/or the number of sperm observed among the cellular material․ [W]hile this is relied upon by some analysts, it is inferior to using a quantitative measure. Mr. O'Neal could have made such subjective observations while detecting seminal fluid and spermatozoa in this case, but his report merely records the presence of seminal fluid and spermatozoa without recording the intensity of the test or the number of sperm observed.

When questioned by the State at the 2024 LWCC hearing regarding footnote nine, Mr. Keel agreed that he was “opining that though Mr. O'Neil [sic] believed the crime scene sample was that of a non-secretor, the document and information was actually, and is actually, insufficient to render such a conclusion.” Mr. Keel explained that “[t]he information that I have is insufficient. It is in terms of the science.”¹⁰ He further testified that “[i]f one considers the findings of Ms. Daniels and Mr. O'Neil in conjunction with the circumstances of the case, then that belief is supported.” But, Mr. Keel agreed that, in the ordinary course, “the lack of a blood type antigen could lead to the possibility that the individual is a non-secretor, but it's merely a possibility” and “that there are other possibilities for why the — why a blood type was not discerned.” Mr. Keel, thus, essentially agreed with Mr. O'Neal’s testimony at the 1988 MNT hearing.

Nonetheless, Mr. Keel testified that he gave more weight to Mr. O'Neal’s trial testimony than his MNT testimony because “in [his] opinion, the testimony in the Post-conviction [MNT] Hearing was a—an attempt by Mr. O'Neil [sic] to excuse his testimony at trial.” Put differently, Mr. Keel testified that Mr. O'Neal’s testimony at the 1988 MNT hearing that it was possible the perpetrator was a non-secretor was contrived and an excuse to accommodate his trial testimony that the perpetrator was a non-secretor. Regardless, Mr. Keel failed to opine that Mr. O'Neal’s belief is scientifically conclusive. As a result, Mr. Keel's reinterpretation of the testimony and serology reports is insufficient to support a finding of factual innocence.

Moreover, as the State points out, Mr. Keel's opinion voiced here is similar to the opinion Mr. Keel was prepared to voice as an expert in Cage v. City of Chicago, 979 F.Supp.2d 787 (N.D. Ill. 2013). There, the federal court concluded that Mr. Keel could not “opine on whether [another forensic scientist] provided misleading trial testimony [in] previous cases.” Cage, 979 F.Supp.2d at 832 n.19. Addressing Mr. Keel's proposed testimony critiquing another forensic scientist's testimony,¹¹ the federal court observed:

In order to reliably conclude that [the other forensic scientist's] testimony at trial ․ was false, misleading, or erroneous when viewed in comparison to her lab documents, [Mr.] Keel must understand not only the scientific bases for [the other forensic scientist's] conclusions but also the procedural and evidentiary constraints imposed by the legal system.

Cage, 979 F.Supp.2d at 830. The federal court further observed that “a forensic scientist providing testimony at trial can only answer the questions they are being asked.” Cage, 979 F.Supp.2d at 830.

The Cage Court's observation is apt here. In Walter Two and Walter Three, this Court observed that Mr. O'Neal was not asked at trial whether his tests were conclusive of the perpetrator's secretor status. Indeed, this Court observed in Walter Three that “[n]o testimony was elicited from [Mr.] O'Neal during defendant's trial that the tests results were conclusive that the perpetrator was a non-secretor. 94-2221,p. 6, 675 So.2d at 835.¹² Similarly, Mr. Keel observed the following in his report:

Based on Mr. O'Neal’s undisclosed report of August 12, 1986 [the Supplemental Report,13] [Mr. O'Neal] believed the defendant was a non-secretor, and as such the defendant could not be eliminated as the source of the semen. It is unclear why no testimony as to the defendant's secretor status was not elicited from Mr. O'Neal.

Based on the evidence in the record, the only conclusion that can be drawn, as the State contends, is that the perpetrator's secretor status is undetermined. Stated otherwise, the record does not support a finding that Mr. Walter is scientifically excluded as the perpetrator. Mr. Walter, thus, failed to satisfy his burden of establishing factual innocence.

Lastly, I would find, as this Court observed in Walter Three, that “[t]he inconclusive nature of the secretor test results leaves the victim's identification testimony unsullied.” 94-2221, pp. 6-7, 698 So.2d at 442. The victim, L.S., has never recanted her positive identification of Mr. Walter as the perpetrator; and she is now deceased. See Jones, 22-01455, p. 3, 362 So.3d at 347 (Crain, J., Dissenting) (observing that “[the petitioner] can [not] prove by clear and convincing evidence he is factually innocent without A.H. [the victim] recanting her identification, or at least being able to defend it” and that “[t]hus, no civil recovery is available”); Alexander, 22-12, p. 7, 367 So.3d at 891 (Molaison, J., dissenting) (citing Justice Crain's dissent in Jones and posing the question “[h]ow can a claim of factual innocence stand when there remains a positive identification of the perpetrator by the victim?”).

For these reasons, I would find that the district court manifestly erred in concluding that Mr. Walter established by clear and convincing evidence his factual innocence of the crime for which he was convicted. Accordingly, I respectfully dissent.

FOOTNOTES

1.   The victim is referred to by her initials pursuant to La. R.S. 46:1844(W).

2.   Mr. O'Neal’s name appears spelled two different ways in the record. We adhere to the spelling of his name as reflected in his laboratory reports.

3.   The trial court's sentencing disposition is absent from the record. Details of his sentence were observed in State v. Walter, 514 So.2d 620 (La. App. 4th Cir. 1987) (“Walter One”).

4.   State v. Walter, 94-2221(La. App. 4 Cir. 7/23/97), 698 So.2d 439 (“Walter Three”).

5.   According to the August 2022 joint motion to vacate, Mr. Walter pled guilty to two unrelated simple burglary charges. Defense confirmed the February and July 1986 arrests for simple burglary at the 2024 compensation hearing; however, the record contains no proof of those guilty pleas or the sentencing disposition.

6.   The caption of this civil case is incorrectly styled as State v. Sullivan Walter, which was the caption of the underlying criminal case with designated Docket No. 316-973.

7.   The State asserts that a de novo standard of review should be applied because the trial court's reasons for judgment contains manifest errors of fact. Given appeals are taken from judgments and not written reasons for judgment, we find no reason to review this case de novo. Greater New Orleans Expressway Comm'n v. Olivier, 02-2795, p. 3 (La. 11/18/03), 860 So.2d 22, 24 (internal citations omitted).

8.   The clear and convincing standard of proof is not “intended to decrease the likelihood of those wrongfully convicted and imprisoned from receiving compensation, but rather as intended to decrease the likelihood that a person whose conviction has been reversed or vacated, but who has nevertheless involved in criminal activity, receives compensation.” State v. Alexander, 22-12, p. 16 (La. App. 5 Cir. 6/21/23), 367 So.3d 867, 880.

9.   Mr. Walter contends that because the scientific evidence excludes him as the perpetrator of the crime it would necessarily follow that the evidence would also cast doubt on the prosecution's identification evidence.

10.   Mr. O'Neal sent a letter via email to Mr. Walter's attorney on September 4, 2023, after receiving notice of a federal civil rights lawsuit involving the prosecution of Mr. Walter's criminal case and which named Mr. O'Neal as a defendant.

1.   In reviewing a LWCC case, an appellate court applies the manifest error standard. See State v. Ruano, 19-0709, p. 4 (La. App. 4 Cir. 3/4/19), 294 So.3d 44, 46 (internal citations omitted).

2.   Mr. Walter, in the underlying criminal case, filed a trio of appeals to this Court—State v. Walter, 514 So.2d 620 (La. App. 4th Cir. 1987) (“Walter One”); State v. Walter, 94-2221 (La. App. 4 Cir. 5/29/96), 675 So.2d 831 (“Walter Two”); and State v. Walter, 94-2221 (La. App. 4 Cir. 7/23/97), 698 So.2d 439 (“Walter Three”).

3.   See Holley v. Tate & Lyle, 00-2234, p. 10 (La. App. 4 Cir. 8/15/01), 797 So.2d 94, 100 (observing that “[a]s with any deductive argument, a fallacy in one of the premises results in a fallacy in the conclusion” and that “[i]f either premise is incorrect, the conclusion is incorrect”).

4.   The Supreme Court, in State v. Walter, 96-1702, p.1 (La. 6/20/97), 695 So.2d 1340, 1340-41, instructed:This case is remanded to the Fourth Circuit for reconsideration․ The correct standard of review in this case therefore “is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131, 131 L.Ed.2d 490L.Ed.2d 490 (1995). On remand, the court of appeal must determine whether as the result of the state's untimely disclosure, the inability of the defense to place all evidence relevant to the reliability of the victim's identification testimony “ ‘undermines confidence in the outcome of trial.’ ” Kyles, 514 U.S. at 434, 115 S.Ct. at 1566 (quoting United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 3381, 87 L.Ed.2d 481 (1985)).

5.   Effective August 2021, a new ground for post-conviction relief based on “actual innocence” was enacted in La. C.Cr.P. art. 926.2, which provides, in part:A. A petitioner who has been convicted of an offense may seek post conviction relief on the grounds that he is factually innocent of the offense for which he was convicted․B. (1)(a) To assert a claim of factual innocence under this Article, a petitioner shall present new, reliable, and noncumulative evidence that would be legally admissible at trial and that was not known or discoverable at or prior to trial and that is either:(i) Scientific, forensic, physical, or nontestimonial documentary evidence.(ii) Testimonial evidence that is corroborated by evidence of the type described in Item (i) of this Subsubparagraph.(b) To prove entitlement to relief under this Article, the petitioner shall present evidence that satisfies all of the criteria in Subsubparagraph (a) of this Subparagraph and that, when viewed in light of all of the relevant evidence, including the evidence that was admitted at trial and any evidence that may be introduced by the state in any response that it files or at any evidentiary hearing, proves by clear and convincing evidence that, had the new evidence been presented at trial, no rational juror would have found the petitioner guilty beyond a reasonable doubt of either the offense of conviction or of any felony offense that was a responsive verdict to the offense of conviction at the time of the conviction.While a post-conviction claim of factual innocence under La. C.Cr.P. art. 926.2 now requires that the petitioner present “new, reliable, and noncumulative evidence” that is either scientific, forensic, physical, or nontestimonial documentary evidence or testimonial evidence corroborated by this type of evidence, the Supreme Court, in the Jones case, held that a claim of factual innocence under La. R.S. 15:572.8 requires only clear and convincing scientific or nonscientific evidence that the petitioner did not commit the crime for which he was convicted and incarcerated nor did he commit any crime based upon the same set of facts used in his original conviction. Jones, 22-01455, p. 5, 362 So.3d at 344-45. Simply stated, the Supreme Court held that the proof requirement under the two separate statutory provisions is not the same.

6.   Likewise, Mr. Walter has made the same allegation in the complaint he filed in federal court against, among others, Mr. O'Neal. At the LWCC hearing, Mr. Walter introduced correspondence—the Email—sent by Mr. O'Neal in relation to the federal suit, and Mr. O'Neal was questioned regarding the Email. Mr. Walter's attempts to take statements from the Email out of context is misplaced. In the Email, Mr. O'Neal both begins and ends with a strong statement denying ever falsifying data or perjuring himself. I would find that any reliance on the Email to establish Mr. Walter's factual innocence is belied by the entirety of its contents.

7.   Both Mr. O'Neal and the assistant DA who handled the MNT testified at the LWCC hearing that they were not contacted by the DA's office before the Joint Motion was filed. They both denied having any involvement in falsifying testimony. Moreover, as the State emphasizes, the DA failed to identify by name the individual assistant DA or other member of the DA's office who allegedly asked Mr. O'Neal to “fudge” his testimony.

8.   At the LWCC hearing, Mr. Keel acknowledged that he did not personally test any evidence in this case. Mr. Keel testified that he did not know whether the evidence still existed, that he was not asked to test it, and that his “understanding is that [the evidence] does not exist.”

9.   Mr. Keel identified the following factors that he opined indicated the reliability of the serological testing performed in this case:• Given the victim's sexual and menstrual history, the semen tested is highly likely to have come only from the perpetrator;• The victim put on her shorts and went to the hospital shortly after the assault, meaning that most of the semen from the perpetrator was likely captured in the samples collected that night; and• Two independent tests, by two different individuals [Mr. O'Neal and Ms. Daniels], of two distinct samples, both found no secretor activity.

10.   Mr. Keel, in his capacity as an expert for the plaintiff in a federal civil rights case, voiced a similar criticism of a serologist's testing procedures in Johnson v. New Jersey, No. CV 18-11299 (unpub.), 2024 WL 4906034, at *3 (D.N.J. Nov. 27, 2024). There, Mr. Keel opined that given the serologist's failure to perform quantitative measures of the amount of semen present, “there was no basis for believing there was enough semen to detect blood type information, [and, thus,] no one who could produce semen could be excluded, i.e., the semen detected could have come literally from anyone.” Indeed, in Johnson, the serologist's supervisor observed that “the serological testing was inconclusive.” 2024 WL 4906034, at *5.

11.   The issue before the federal district court in Cage included “Defendants’ Joint Motion No. 2 to Bar Plaintiff's Expert, Charles Alan Keel's Testimony Regarding Defendant Pam Fish's Alleged Fraudulent Intent/Credibility in Testifying Concerning Serological Analysis Performed in Unrelated Criminal Cases.” 979 F.Supp.2d at 798.

12.   See also Walter Two, 94-2221, p. 4 n.3, 675 So.2d at 834 (observing that “[n]o testimony was elicited [at trial] concerning whether the tests were conclusive that the perpetrator was a non-secretor”).

13.   In August 1986, Mr. O'Neal prepared a supplemental crime lab report, reflecting the results of his testing of Mr. Walter's blood, saliva, and hair samples (the “Supplemental Report”). The Supplemental Report stated that “[s]pecimen 1 [blood samples] was unsuitable for analysis,” that “[s]ecretor testing of Specimen 2 [saliva] revealed no secretor activity,” and that “[s]pecimen 3 [hair] was not analyzed.” The Supplemental Report was neither mentioned nor introduced at trial. Mr. Keel, however, mentions the Supplemental Report several times in his own report.

Chief Judge Roland L. Belsome

DYSART, J., DISSENTS LEDET, J., DISSENTS WITH REASONS