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Leslie Dale MARTIN

 
 
 
 
 

 

 

 

   
 
 
Classification: Murderer
Characteristics: Rape
Number of victims: 1
Date of murder: June 20, 1991
Date of arrest: July 1991
Date of birth: April 24, 1967
Victim profile: Christina Burgin (female 19)
Method of murder: Strangulation with a board
Location: Calcasieu Parish, Louisiana, USA
Status: Executed by lethal injection in Louisiana on May 10, 2002
 
 
 
 
 
 

Summary:

19 year old college student, Christina Burgin, was last seen alive leaving a lounge with Martin on June 20, 1991.

Her decomposed body was found nearly two weeks later in a pumphouse in the rural Louisiana town. She had been choked with a rope, her throat cut, her eyes gouged out, and she finally was killed by someone who jumped up and down on a board placed across her neck.

Martin had previous convictions from age 14 and was on parole for an aggravated rape charge. In 1984, Martin had raped his own 14-year-old sister at knifepoint while their mother was in the hospital. He was sentenced to 10 years but served only five.

Martin had repeatedly made statements that he would never go back to prison and killed Christina so she would "not complain."

Martin and three other inmates briefly escaped from death row in November 1999. Authorities said the 4 condemned men used smuggled hacksaw blades to cut their way through their cell doors. Prison chase teams caught them about 2 miles from their cells.

Citations:

State v. Martin, 645 So.2d 190 (La. 1994) (Direct Appeal)
Martin v. Louisiana, 115 S.Ct. 2252 (1995) (Cert. Denied).
Martin v. Cain, 206 F.3d 450 (5th Cir. 2000) (Habeas).

Final Meal:

Boiled crawfish, crawfish stew, a garden salad with Italian dressing, oatmeal cookies and whole milk with chocolate syrup.

Final Words:

Martin declines to make a final statement before execution.

ClarkProsecutor.org

 
 

Leslie Dale Martin (April 24, 1967 – May 10, 2002) was an American murderer. He was convicted and later executed for the rape and murder of Christina Burgin. Martin was the most recent person executed in the state of Louisiana.

Crime

On June 20, 1991, Martin and Michael Roland went to the 12th Street Lounge in Lake Charles at about 11:00 p.m., after playing pool and drinking beer for about two hours. The victim, a college student and part-time employee at a pizza outlet, also went to the lounge between 11:00 p.m. and midnight with some of her friends. Martin and the victim met through Roland, who had known the victim previously. During the evening, the victim danced with Martin, while each shared beverages and companionship with other friends in the lounge.

About 1:30 a.m. the next morning, after Roland and most of the victim's friends had left the lounge, the victim asked Martin for a ride home, and Martin agreed. No one ever saw the victim alive again.

About 7:30 a.m., Martin visited Leo Guimbellot, his carpentry supervisor on a recent job, and stated he had met a blonde college student the night before, left the lounge with her and woke up on Galveston Beach not knowing where he was. Martin's clothes were dirty, and he pointed to vomit in his ashtray, stating, "I guess the bitch threw up in my truck."

When Martin returned to his aunt's home, where he was residing at the time, he was wearing different pants than he wore at the time he left the previous evening, and he had no shirt or shoes. He washed his clothes and his truck seat cover, telling his aunt that they got muddy when he engaged in mud slinging with Roland. Martin also had scratches on his chest and back, a bite mark on his shoulder, and a tear under his tongue. He told his cousin he had fought with a "country boy" in the lounge.

The same morning, Martin told Huey Rushing that he thought he may have killed someone the previous evening and asked Rushing to provide him with an alibi by saying he had spent the night at Rushing's home. Rushing refused, and Martin told him that on the way back to Lake Charles the woman threatened to report him for rape.

Martin talked about a shed in Iowa, a town in Calcasieu Parish, and related that he had put a rope around the girl's neck, choked her, cut her throat, dug her eyes out, and jumped up and down on a wooden board placed across her neck. In response to a question, Martin asserted that he did not want to be turned in for rape again. In 1984, Martin had raped his own 14-year-old sister at knifepoint while their mother was in the hospital. He was sentenced to 10 years for sexual battery but served only five.

Rushing related Martin's story to his girlfriend, but they deemed it unreal until Rushing heard nine days later that a girl was missing after leaving the 12th Street Lounge. Rushing reported the story to the police, who found the victim's decomposing body in a search of sheds in the Iowa area. The police found a rope around her neck and a wooden board nearby which contained human blood. The police then obtained a warrant and arrested defendant.

Trial

Martin was indicted by a Grand Jury for first degree murder and brought to trial. At the trial, Rushing, Guimbellot and Roland testified to the facts stated above. Other testimony was provided by inmates with whom defendant was incarcerated after his arrest.

Robert Williamson testified that Martin stated he left the lounge with the victim, drove to a side road past Iowa and had sex with the highly-intoxicated victim. When the victim accused him of taking advantage of her, he feared a return to the penitentiary, and he pulled her from the truck and strangled her, but had difficulty killing her. Martin disclosed that he had revealed the incident to a friend with whom he had "done time", and the friend had betrayed him to the authorities.

Michael Fontenot, who was also incarcerated with Martin, testified that he stated the victim asked for a ride home from the lounge, and he took her on a dirt road where he had sex with her after removing her tampon which she later reinserted. When she accused him of rape during the ride back, he pulled over near Iowa and strangled her until she passed out. When she resumed breathing, defendant strangled her with a rope and dragged her to a shed, where he left her. His friend told the police "where he put the body and everything".

Marlin Sweet was a cellmate that Martin had known some years earlier. Martin related to Sweet the events of the evening of the murder, stating that he wanted to have sex with the victim, but that she refused because of her menstrual period. Martin said he "had to have her" and "overpowered her", although she resisted and fought back.

When the victim became hysterical after the sexual encounter and threatened to go to the police, he decided he was not going back to prison for "nobody". He choked her, first with his hands and then with a rope. She did not die, however, and he put a wooden board across her neck and jumped on it two or three times. Martin then cut out her eyes with a knife so that she could not identify him.

There was little physical evidence presented by the prosecution because of the condition of the body. However, human blood was found on defendant's pants and truck seat cover, as well as on the wooden board recovered near the body.

After the completion of the evidence in the guilt phase of the bifurcated trial, the jury returned a unanimous verdict of guilty as charged. In the penalty phase, the prosecution relied on the evidence presented in the guilt phase. The defense presented mitigating evidence by a psychiatrist and members of defendant's family. The jury unanimously recommended the death penalty and Martin was later sentenced to the same by the judge.

Execution

On May 10, 2002, Martin was executed at Louisiana State Penitentiary at Angola by lethal injection. His last meal was boiled crawfish, crawfish stew, a garden salad with Italian dressing, oatmeal cookies and whole milk with chocolate syrup. He did not make a statement before his death.

 

 
 

Murder Victim's Parents ‘Ecstatic' Over 1st La. Execution in 2 years

By Gwen Filosa - New Orleans Times

May 11, 2002

ANGOLA -- The first convict to be executed in Louisiana in almost two years died of lethal injection Friday night for the 1991 rape and murder of a 19-year-old woman in Lake Charles.

Leslie Dale Martin, 35, was pronounced dead at 8:16 p.m. in the Louisiana State Penitentiary's death chamber. The parents of Christina Burgin, whose body was found in a rice field pumphouse 11 years ago, were among the witnesses.

"My smile says it all. That's it," her father, Charles Burgin, told reporters within minutes of Martin's death. Burgin's mother, Diane Godeaux, said she was "ecstatic." When one of Martin's attorneys, Clive Stafford-Smith, appeared to speak, the Burgin family marched out of the room. "He is very sorry for what happened," Stafford-Smith said. "We are all better than the worst thing we've ever done."

Martin, born in Shreveport, became the 27th convict put to death in Louisiana since the penalty was reinstated in 1979, and the 27th person executed in the United States this year. "No comment," Martin said before his death. Witnesses said he also mouthed the words, "You're fired," to his attorney.

His death came the day after the state of Maryland suspended all executions pending a study of whether the ultimate penalty is unfairly applied to black people, and almost 24 hours after an Alabama woman died in the state's electric chair for the 1993 murder of a small-town police sergeant. Louisiana's last execution was June 6, 2000, the only one that year.

Martin's attorneys, Stafford-Smith and Denise LeBoeuf, filed a storm of appeals in recent weeks. One was a petition accusing Gov. Mike Foster of uniformly ignoring appeals for clemency from violent felons, which a Baton Rouge judge denied Thursday.

Martin never applied for a pardon review, a process his attorneys call a sham. He had received five stays of execution since his conviction in 1992, the most recent coming Feb. 9 from the U.S. Supreme Court, about 30 minutes from the time the prison expected the execution to begin. The court later refused to hear the case.

Protests were planned Friday night at Angola, at the Louisiana Supreme Court in New Orleans and at the Governor's Mansion in Baton Rouge. The Moratorium Campaign, based in New Orleans and led by Sister Helen Prejean, demanded a reprieve for Martin all week, but the call drew no substantive political support.

Burgin was killed June 20, 1991, after leaving a bar with Martin. Prosecutors said Martin raped and stabbed Burgin, and then jumped on a board placed over her neck and gouged out her eyes. She was identified by dental records. Martin admitted killing Burgin, but said it happened during a drunken argument that arose after they had consensual sex. He always denied raping her, the element that made it a death penalty case.

On Friday at about 4:45 p.m., Martin ate his last meal: boiled crawfish, crawfish stew, a garden salad with Italian dressing, oatmeal cookies and whole milk with chocolate syrup. His mother and sister visited with him earlier, leaving at 3:30 p.m. Martin, who studied Buddhism, spent his final hours with his spiritual adviser, Paula Emanuel, who lives in the Netherlands. "My opinion is any criminal has been many, many times a victim before," she said Friday night. "But I know it doesn't count in this country."

On death row, Martin spent 23 hours a day in a single-man cell. He had said that he would rather die by lethal injection than live the rest of his days in prison with "the irrational hope of freedom." Martin had been imprisoned before. About 15 months before Burgin was killed, Martin was released after serving time for a 1984 sexual battery on his 14-year-old sister. Since 1991, Martin had glimpsed his freedom only once in a brief escape from death row, a first for Angola.

In the prison museum outside the main gate, an exhibit documents his role in the 1999 breakout of four condemned inmates. He and his cohorts were caught within hours. On the adjacent wall of the museum hang a series of picture frames displaying mug shots of the 26 men executed by Louisiana since the state brought back the death penalty in 1979. Ninety men and one woman remain on the state's death row.

 
 

Condemned Killer Meets Death, Extends No Apology to Family

By James Minton - The Baton Rouge Advocate

May 11, 2002

ANGOLA -- Condemned killer Leslie Dale Martin went to his death Friday night for the rape and murder of a 19-year-old McNeese State University coed. Before facing the executioner's needles, Martin offered no public apology for the slaying, Louisiana State Penitentiary Warden Burl Cain said. Cain said Martin, 35, was pronounced dead at 8:16 p.m.

A Calcasieu Parish jury sentenced Martin to death for the June 20, 1991, rape and murder of Christina Burgin, 19, who was last seen leaving a Lake Charles bar with Martin. Her decomposing body was found nearly two weeks later in a shed near Iowa, in Calcasieu Parish.

His victim's mother and father witnessed the execution, Louisiana's 27th since the death penalty was reinstated in 1979 and the first since June 2000.

"I'm ecstatic. I'm happy," Burgin's mother, Diane Godeaux, said during a post-execution news conference. "My smile says it all," said the victim's father, Charles Burgin. Burgin and Godeaux abruptly left the room when one of Martin's attorneys, Clive Stafford-Smith of New Orleans, said his client was "indeed sorry for everything" that has happened. "I don't want people left with the conclusion that he was cold and calculating," the attorney said as the victim's parents left. "I'm very sorry everyone feels that way and can't see beyond the worst thing we ever did," Stafford-Smith said.

Prosecutors said Martin, after raping Burgin, choked her with a rope, cut her throat, gouged out her eyes and jumped up and down on a board placed across her neck. They said Martin blinded his victim to prevent her from identifying him if she survived. Cain said he asked Martin at one point if he wanted to offer any comments to the witnesses. "No, there's no point in commenting to anybody else," Cain quoted Martin as saying.

The Moratorium Group, a New Orleans-based organization chaired by death penalty opponent Sister Helen Prejean, called for rallies Friday evening at several locations across the state to protest the execution.

The group pointed to Thursday's decision by Maryland Gov. Parris N. Glendening to suspend all executions in that state until the University of Maryland completes a study to determine whether racial or geographical bias figures in death sentences. "I would hope our governor recognizes the very same problems exist here in Louisiana," Prejean said in a statement released Friday.

Stafford-Smith, won last-minute clearance Friday to witness the execution, but he wasn't Martin's first choice for a familiar face in the witness room. Martin asked Thursday that an investigator on his legal team be allowed to witness his final moments, but Corrections Secretary Richard Stalder turned down the request. The denial resulted in a flurry of legal filings and a hearing Friday morning before U.S. District Judge Frank Polozola in Baton Rouge.

Stalder testified the law allows no more than seven people to be present for an execution, and Martin waited too late to make his request because the seats in the witness room had been allotted. Polozola gave the attorneys a few minutes to resolve the dispute outside of court. "I'm not going to micromanage who gets an invitation and who doesn't," the judge said. After a brief meeting, the attorneys returned to court with a compromise -- Stafford-Smith, but not the investigator -- would be given a seat that had been assigned to Assistant Corrections Secretary Johnny Creed.

Cain said Martin ate his last meal consisting of boiled crawfish, crawfish stew, garden salad, cookies and chocolate milk at 4:45 p.m. after saying good-bye to his mother and sister about an hour earlier. "They visited with him all day, and I extended the visit by an hour. They were more calm than last time," Cain said during a news conference before the execution.

Cain said Martin joked with his Buddhist spiritual adviser about peeling crawfish during the meal. Martin sat on the floor of his holding cell to have an unobstructed view of his spiritual adviser though an opening for meal trays in his cell door, the warden said.

Martin had a date with death on Feb. 8, but U.S. Supreme Court Justice Antonin Scalia halted the execution about 20 minutes before Martin was scheduled to enter the death chamber at Angola's Camp F. The high court decided in March, however, not to hear his case.

The temporary stay of execution was Martin's fifth, and followed attempts by his attorneys to discredit the testimony of a witness they called a "jailhouse snitch." The witness, Marlin Sweet, testified that Martin confessed to him that Martin raped and killed Burgin.

A document turned over to defense attorneys in February showed that Sweet had been diagnosed as a "pathological liar" at the time of Martin's trial. Former prosecutor Patricia Minaldi, now a state district judge, said in February that the defense attorneys failed to mention that Martin told a friend that Burgin accused him of raping her and "that's why he killed her." Louisiana law allows the death penalty only when there are certain aggravating circumstances in a murder. In Martin's case, it was the commission of a rape.

In November 1999, Martin and three other condemned men rocked Angola when they escaped from their cells and the building that houses Louisiana's Death Row. After officers found them missing, an Angola chase team and a bloodhound tracked them down in a swampy area of the prison grounds near the Mississippi River.

Cain blamed the security lapse on a guard who accepted a bribe to smuggle hacksaw blades to the inmates and inattention by other officers who should have noticed the men cutting their cell doors and a window during a two- to three-week period. No one was prosecuted because of the incident, however.

In January, two guards reported hearing Martin and another inmate discussing a possible escape attempt, including the taking of hostages, Cain said. Cain immediately ordered Martin's transfer to the death chamber holding cell at Camp F, which is several miles from the Death Row building at the prison's front gate.

Editor's note: Staff writer Michelle Millhollon contributed to this report.

 
 

Convicted Killer Executed for 1991 Murder

By Vincent Lupo and Sonny Marks - Lake Charles Press

May 11, 2002

ANGOLA -- Leslie Dale Martin was executed here Friday, nearly 10 years after he was convicted of raping and killing a McNeese student he met at a bar. Martin, 35, was declared dead at 8:16 p.m. He was intravenously injected with a combination of three drugs designed to put him to sleep, stop his breathing and then stop his heart.

He told Warden Burl Cain something directed at Martin's attorney, Clive Stafford-Smith: "You're fired." Martin said it "kind of light and funny," Cain said. Martin "was calm, collected, and his demeanor was OK," he said. "He showed very little reaction." Cain told him he always tells the condemned: "Be ready to see Jesus' face." When the injections began, Martin said to Cain, "When am I going to feel something? I don't feel anything." "You're going to feel sleepy in just a minute," Cain told him. Martin left his glasses on until minutes before he died. Cain said Martin wanted to see the witnesses and his spiritual adviser, humanist Paula Emanuel from the Nether-lands.

Emanuel said after the execution, "Any criminal has been many times a victim before." The parents of murder victim Christina Burgin witnessed the execution. Both smiled at the news conference afterward. "I'm just happy," her mother, Diane Godeaux of Lake Charles, said. "My smile says it all," said Burgin's father, Charles Burgin of Lake Charles. "My smile is all I've got to say. I'm finished with him." The parents stood up and left the room as Stafford-Smith stepped to the microphone.

"(Martin) did ask me to say some things, and one was that he is indeed very sorry for what happened. And so am I very sorry for what everyone has gone through," he said. "But I don't want people to be left with the impression that this is somehow someone who is cold and calculating. "We are all better than the worst things we ever did in our lives. I'm very sorry that everyone feels that way and can't see past the worst thing each of us ever did."

Last-minute efforts to halt the execution failed -- unlike Feb. 8, when Martin won a reprieve from the U.S. Supreme Court less than 30 minutes before he was scheduled to die.

Thirteen witnesses watched last night as Martin breathed his last. At 4:45 p.m., he ate his last meal -- boiled crawfish, crawfish stew, toasted French bread, garden salad with Italian dressing, banana-nut-oatmeal cookies, and whole milk with chocolate syrup.

His "last meal" in February, on his previous execution date, included king crab and gumbo. This time, as last time, he ate a lot, Cain said. "His demeanor was good. He smiled a lot," Cain said.

Martin sat on the floor in the air-conditioned room so he could view his spiritual adviser clearly, without bars in the way. They spoke to each other through the slot where the plate is inserted. He and Emanuel were allowed no physical contact during the meal.

Two correctional officers were with Martin. He and Cain peeled crawfish for Emanuel, who "couldn't believe we were eating crawfish," Cain said. Her incredulity produced a laugh from Martin. His mother, Trisha Martin of Shreveport, and a sister were with him until 3:30 p.m. Cain said he allowed them to spend 30 more minutes with him before they were asked to leave. They waited outside the front gates to listen for word of his death.

 
 

Execution Timeline

7:45 p.m. -- The 13 witnesses are led to the death house. The viewing room is divided into two segments by a wall and a sliding door. Members of the victim's family and a Lake Charles TV news reporter are among witnesses on one side. Martin's attorney, the West Feliciana Parish coroner and two print media reporters are included on the other.

7:50 p.m -- Richard Stalder, secretary of the Department of Public Safety and Corrections, hands documents to Martin's attorney, Clive Stafford-Smith. The paperwork indicates the U.S. Supreme Court's refusal to halt the execution.

7:52 p.m. -- Similar paperwork is handed to a representative of Gov. Mike Foster. The representative is also a witness to the execution.

7:58 p.m. -- Martin is led into the death chamber. His spiritual adviser joins Stafford-Smith in the witness room. As 10 straps are used to tether Martin to the gurney, laughter and loud talking can be heard from the family's side. The mood on the other side is somber and subdued. Stafford-Smith and spiritual adviser Paula Emanuel embrace each other, hold hands and, at times, wipe away tears. Martin is seen mouthing inaudible words to Emanuel.

8 p.m. -- The window curtain dividing the witnesses and the death chamber is closed to maintain the anonymity of the medical technicians who install the intravenous devices.

8:05 p.m. -- The curtain is opened. Martin speaks frequently with Warden Burl Cain, who remains at his head the entire time. The words cannot be heard by the witnesses. Sound is only turned on if Martin has any official last words, and he declines to make a statement. Martin has a monitor clipped to his finger and tubes running into his wrist and stomach. He is dressed in a white T-shirt and white pants with prison-issued slippers. Several minutes after Martin's chest stops rising and falling, his face and hands turn blue. Cain gets the flat-line signal from monitors. The warden signals for the coroner to enter the death chamber.

8:16 p.m. -- Both the coroner and the medical director of the prison check Martin's chest and neck with a stethoscope. They pull his eyelids up. They declare over the microphone that Martin is officially dead.

The body is sent from the death chamber to the prison morgue, where it will be held overnight. Martin's family will get the body Saturday. Cain says they intend to cremate the body.

 
 

ProDeathPenalty.com

A man convicted of raping and killing a 19-year-old college student in 1991 was executed by injection Friday night.

Leslie Martin, 35, made no final statement but, after the drugs were injected, could be seen mouthing the words "You're fired," to his defense attorney who watched the execution. The lawyer, Clive Stafford-Smith, later said Martin's remarks were part of a long-running joke between the two.

Martin was convicted in 1992 of killing Christina Burgin, a student at McNeese State University in Lake Charles. She was last seen alive leaving a lounge with Martin on June 20, 1991. Her decomposed body was found nearly two weeks later in a pumphouse in the rural southwestern Louisiana town of Iowa.

Prosecutors said Martin raped Burgin and then strangled her to keep her from turning him in.

 
 

Lake Charles Press

February 08, 2001

In Lake Charles, lawyers for a man set to die this week for raping and killing a 19-year-old woman in 1991 say they have new evidence to discredit the jailhouse "snitch" who testified against him.

Leslie Dale Martin is scheduled to die Friday for the death of Christina Burgin after she left a lounge with him on June 20, 1991. Prosecutors said she was choked with a rope, her throat cut, her eyes dug out, and she finally was killed by someone who jumped up and down on a board placed across her neck.

Attorney Clive Stafford-Smith of the New Orleans-based Louisiana Crisis Assistance Center said Wednesday that he found new evidence in papers which the Calcasieu Parish district attorney gave him.

Stafford-Smith said documents found in a file on an unrelated murder case indicate that inmate Marlin Sweet, who testified against Martin, was undergoing mental health evaluations and was believed to be a sociopath. Sweet also was supposed to testify in the other case but the defendant, who was charged with 1st-degree murder, pleaded guilty to obstruction of justice and accessory to murder after the fact.

District Attorney Rick Bryant said the evidence in question, which has existed since 1991, was never turned over to defense lawyers because prosecutors did not know about it until several months after Martin's May 1992 conviction.

Bryant also argued that the file was not relevant, but Stafford-Smith said it relates to the credibility of the witness. State District Judge Mike Canaday agreed to consider the defense request for a new hearing on the question of whether District Attorney Rick Bryant should be ordered out of the case.

Canaday had already rejected a motion to get rid of Bryant on Tuesday. That challenge, like the one Wednesday, was based on discrediting Sweet. The hearing was expected to continue Thursday, which a records custodian being subpoenaed to testify on when authorities and prosecutors should have known about Sweet's mental health evaluation.

The legal flurry to block Martin's execution centered on the courts after Gov. Mike Foster said he would not step in to cancel the death sentence. The ACLU had asked for clemency, saying there is no reliable evidence to support the rape conviction and that it is the only aggravating factor which makes the killing a capital crime.

Foster "is not going to grant clemency, based on the fact that this case has made it through the long and winding legal process," deputy press secretary Steven Johnston said.

Asked whether the governor disagreed with the American Civil Liberties Union's contention that the legal process in this case was flawed, Johnston would say only, "He's relying on the findings of the legal process, particularly the state Supreme Court." "There is no direct physical evidence that the rape occurred," the ACLU letter said. "The only evidence of this additional aggravating crime is the testimony of a jailhouse snitch."

Under Louisiana law, a murder conviction can lead to the death penalty only if there are aggravating circumstances such as another felony. On Tuesday, District Judge Mike Canaday denied 3 attempts to keep Martin off of the execution gurney, saying they brought up nothing new. Another lawyer filed a 4th motion, which which was denied Wednesday. The new challenge, filed by Denise LeBoeuf of the Capital Post-Conviction Project of Louisiana in New Orleans, said Louisiana's Pardon Board is so biased toward victims that Martin has no hope of clemency.

 
 

Governor Foster Asked to Stay Execution of Leslie Martin

LAACLU.org

Governor Foster:

The American Civil Liberties Union urges you to grant clemency to Leslie Dale Martin. He is scheduled to be executed on February 8th. The relief that we request on his behalf is warranted because there is no reliable evidence to support the sole aggravating factor upon which this death sentence is based.

Unsubstantiated Aggravating Crime

Mr. Martin was sentenced to die because he allegedly committed rape in connection with murder. Yet there is no direct physical evidence that the rape occurred. The only evidence of this additional aggravating crime is the testimony of a jailhouse snitch.

Snitch-testimony has been demonstrated to be notoriously unreliable. It has been found to be a factor in 21% of wrongful conviction that were later overturned due to exonerating DNA. Here such testimony, with no corroborating evidence, is the sole basis upon which Mr. Martin has been sentenced to die.

Louisiana law defines first-degree murder as “the killing of a human being when the offender has specific intent to kill, or to inflict great bodily harm, and is engaged in the perpetration or attempted perpetration of…aggravated rape…” Without the commission of another aggravated felony, resulting in the intentional death of the victim, an offender can only be convicted of second-degree murder, which is punishable by life with no possibility of parole.

Inadequate Representation

Had Mr. Martin’s been allowed at trial to present an adequate defense, these issues would have received a fuller hearing and a more appropriate conviction and sentence. However, Mr. Martin did not receive the adequate representation at trial. His lead attorney was appointed only three weeks before the trial date. Then, he spent most of that time seeking a postponement of the trial so that he could prepare to represent Mr. Martin. Mr. Martin’s other lawyer spent only a week and a half preparing a defense and had little criminal, let alone death penalty, experience.

The Louisiana Supreme Court itself stated that the trial judge should have granted more time, to ensure that Mr. Martin received a fair trial. Nevertheless, they did not find that Mr. Martin was entitled to relief.

It now falls to this clemency process and to you to do justice. There is a very serious question presented concerning the appropriateness and lawfulness of the death sentence that the state of Louisiana is poised to impose. This is the forum of last resort that must determine whether, on balance, this death sentence deserves our confidence, and we respectfully submit that it does not.

In the interest of fairness, we ask that you grant Mr. Martin a reprieve, refer his case for review to a properly constituted Pardon Board, and consider commuting his death sentence to life without possibility of parole.

Respectfully, Diann Rust-Tierney - Joe Cook

 
 

ProDeathPenalty.com

State prison officials are taking no chances with Leslie Dale Martin, a 1-time escapee who faces a Feb. 8 execution for a murder in Calcasieu Parish. Burl Cain, warden of the state penitentiary at Angola, said Martin has already been moved to the prison's death house, 5 miles from the prison gates.

He had been in one of the death row cells, where condemned prisoners are usually held, which are closer to prison gates. Those facing execution usually are moved to the death house on the day of execution or a few days before.

Martin was moved on Jan. 9, nearly a month before his execution date, Cain said. Cain said 2 death row corrections officers had overheard Martin talking with another inmate about an escape attempt, including the possibility of taking hostages and trying to commandeer a vehicle to ram through the prison gates. "He was plotting an escape, how he was going to take hostages and what he was going to do to the hostages," Cain said. "So we moved him to a place where he wouldn't have access to hostages." He was put in a cell near the room where he will be put to death by lethal injection, where he has only a guard to talk to. "We're treating him good, in a little cell block of his own," Cain said.

Were Martin to try to escape, it would be his 2nd attempt. He and 3 other inmates briefly escaped from death row in November 1999. Authorities said the 4 condemned men used smuggled hacksaw blades to cut their way through their cell doors and a steel-barred window during a 2 to 3-week period prior to the escape.

Prison chase teams caught them about 2 miles from their cells. "They had paid a corrections officer to bring them blades," Cain said Tuesday. He said 2 guards were fired and 2 demoted following the escape. Martin is in excellent physical health, Cain said.

However, the warden was unsure how Martin will behave on execution day. Cain said he often helps prepare condemned prisoners for execution by discussing religion with them. That usually means talking about Christianity and the soul. Not with Martin. "He's a member of the Buddhist religion," Cain said. "It's harder for us to communicate with him ... I'm actually getting a quick lesson in Buddhism."

Martin raped and strangled Christina Burgin, 19, after meeting her at a Lake Charles bar while he was playing pool with friends on the night of June 20, 1991, according to court records.

Martin offered Christina a ride home and she was beaten, choked, and her throat was cut. Martin also gouged her eyes out, put a board on her neck and jumped up and down on it, then left her body in a shed. The body was not found until July and was so badly decomposed that identification was almost impossible.

Martin had previous convictions from age 14 and was on parole for an aggravated rape charge. In 1984, Martin had raped his own 14-year-old sister at knifepoint while their mother was in the hospital.

He was sentenced to 10 years but served only five. Martin had repeatedly made statements that he would never go back to prison and killed Christina so she would "not complain."

 
 

Louisiana Execution Stopped by U.S. Supreme Court

North County Times

February 9, 2002

ANGOLA, La. (AP) ---- The U.S. Supreme Court halted the execution of a Louisiana inmate Friday night less than a half-hour before he was scheduled to die. Warden Burl Cain told inmate Leslie Martin and witnesses that the justices had blocked the execution so they can consider whether to hear Martin's appeal.

"The prisoner was a little bit stunned, a little bit shocked," Cain said. He said Martin, a Buddhist, was sitting on the floor of his cell with his spiritual adviser when he got word of the stay.

Martin, 34, was convicted of raping, killing and mutilating 19-year-old Christina Burgin in Lake Charles in 1991. Her parents were among witnesses at the prison.

Appeals centered on several issues, including Martin's claim that prosecutors had no physical evidence of rape -- an important element since rape was an aggravating factor which backed up the death sentence under Louisiana law.

Defense attorney Clive Stafford-Smith has also challenged testimony that Martin confessed to another inmate while in jail. Prosecutors said Martin choked the victim, cut her throat, gouged her eyes out, put a board on her neck and jumped up and down on it, then left her body in a shed.

 
 

Victim's Family Awaits New Date for Martin's Death

American Press

February 10, 2002

"I swear to God, we're going to get him," Charles Burgin said yesterday, a day after Leslie Dale Martin's execution was stayed.

Martin was scheduled to die for killing Burgin's daughter, Christina, 11 years ago. Martin was convicted of raping, strangling and killing the 19-year-old after they met at a Lake Charles bar. Burgin's eyes were gouged. Her killer put a board on her neck and jumped on it.

Charles Burgin arrived at the Louisiana State Penitentiary at 3 p.m. Friday with his family. Burgin, president of Louisiana Fasteners in Lake Charles, said he was not prepared for guards to take his wireless phone, tape recorder, heart medication and maps before he could enter the prison gates. "I'm the boss. I'm the top man. I have my lieutenants," he said. "For me to be checked like I was, it just surprised me."

The execution was scheduled for around 6:30 p.m. Burgin said it was 6:06 p.m. when Warden Burl Cain went in the family room to inform them of the stay. Burgin's wife and daughter cried. The family left Angola immediately. Burgin said they got back to their North Tamela Drive home at 9:33 p.m. He didn't sleep Saturday night. "This has hardened my heart even more," he said. "I have no sympathy whatsoever for neither (Martin) nor his family. I want him dead. If you've ever seen a shining smile, you'll see one on the day he's finally executed. That's when I will smile."

Burgin suffered a heart attack three years after Christina's death. He takes three blood-pressure pills every day. At Martin's trial, he asked the deputies if he could have five minutes alone with the defendant. Last week, he was up at 3:30 a.m.

Tuesday, wondering what Leslie Dale Martin was thinking about at that moment. Burgin went outside to get his paper and found out for the first time, on the front page, about motions filed on Martin's behalf. "I never thought I could hate someone as much as I hate (Martin). And I do. I could take care of him myself without a problem and never look back," Burgin said last week as his face turned red. "If I knew I could get him to hell quicker, I'd grab him and we'd slide together."

It was at the trial in 1992 that the mothers of the victim and the defendant came together from opposite sides of the courtroom during a recess and sobbed in each other's arms. Christina Burgin's mother, Diane Godeaux of Lake Charles, said last week, "At that point, I felt for her as a mother. She's lost her son just as surely as I've lost my daughter. I know, as a mother, this is not what she wanted for her son."

Nine years after their embrace, Martin's mother wrote a letter to the American Press editor arguing the unfairness of her son's legal treatment. "Apparently death penalty cases are too important to leave to the courts because they don't care enough for the integrity of the system to care whether or not the accused get a fair trial," wrote Trisha Martin of Shreveport.

Godeaux responded with her own letter to the editor. She told Trisha Martin "to thank God for the mercy and defense her son has had because it was more than he gave my daughter. "I will be there on that final day to represent my daughter and to see the court's justice carried out. And yes, I will and have prayed for her son's soul."

Godeaux and Charles Burgin divorced before Christina's death. Godeaux was remarried at the time of the murder. She said it was easy for her to deny her daughter's death because she never saw the body. The casket was never opened. "I had to take strangers' word for it that it was my daughter," she said. "It was easy for me to say, 'No, that's not my daughter they found. She's just away.' " Godeaux got ulcers and migraines. She took medication for depression.

She and her second husband divorced. "Anything could make me cry," she said. "... I'd be thumbing through a magazine and see someone that looked like her and I'd start crying in public. "Your life is no longer yours. You're at the mercy of anything that may appear that gives you a memory, regardless of where you are or who you're with."

She began to notice healing after three years. She became a bereavement counselor through Our Lady Queen of Heaven Catholic Church. She was sent to parents whose children died. Godeaux works for an insurance company. She gardens, writes in her journal and reads. She's likes biographies, but has stuck to novels recently. "The fiction is relaxing for me. The non-fiction sometimes gets to be more than I can handle when I'm stressed," she said.

Her daughter, Dawn Hymel, also works for a local insurance company. The family buried Christina the day before Hymel's 16th birthday. "It's been horrible," she said. "If I drive to a gas station and there are strange-looking people there, I'll drive 30 miles out of my way to find the next gas station. "If I go to the mall by myself, I'm constantly looking over my shoulder. If there's someone strange in the parking lot, I'll wait in the mall an hour before I go to my car by myself. "I check my front-door locks a hundred times every night. I check my windows, even though I know they don't open."

Hymel was in the family room Friday night at Angola. She was not on the list to witness Martin's execution. Godeaux and Charles Burgin were to witness it. Burgin said Martin's death would not change the most important issue. "People talk about closure — I'm tired of hearing this," he said. "Even when he dies, there's not going to be any closure. Christina's never coming home."

 
 

LOUISIANA - Stay of execution by U.S. Supreme Court.

Associated Press

February 8, 2002

The execution of convicted killer Leslie Dale Martin was called off by the U.S. Supreme Court less than half an hour before he was scheduled to die Friday night.

Warden Burl Cain told the inmate and witnesses that justices had blocked the 6:30 p.m. execution with an order that said they wanted to consider whether to hear his appeal.

Martin, 34, was sentenced to die for the rape and strangulation of Christina Burgin, who was 19 when she was killed in Lake Charles in 1991. Burgin's parents were among witnesses at the prison, Cain said. Prosecutors said Martin choked the victim, cut her throat, gouged her eyes out, put a board on her neck and jumped up and down on it, then left her body in a shed. The body was found so badly decomposed that identification was almost impossible.

Upon learning of the delay, "The prisoner was a little bit stunned, a little bit shocked," Cain said. He said Martin, a Buddhist, was sitting on the floor of his cell with his spiritual adviser when he got the word. It was his 5th stay, but none of the others had been this close. He already had eaten his last meal and had said goodbye to his mother, which left him in tears, the warden said.

Cain said he sent Martin back to death row, to be held in a new cell on a different tier. "I feel he'll be very, very safe and secure on death row," Cain said. Earlier Friday, Martin had 6 visitors, 3 of whom were allowed in his cell with him: his mother, his sister and the spiritual adviser. "I always try and let the mother touch and hug his neck. She didn't do the crime but has to suffer through this," Cain said.

Martin's attorneys had a request for a stay pending at the U.S. Supreme Court. A handful of anti-death penalty protesters were at the gate of the state penitentiary in rural southeast Louisiana. Dozens more picketed the Supreme Court building in New Orleans.

Martin briefly escaped from death row with 3 other inmates in November 1999 but was recaptured on prison grounds. Cain said security was extra tight because of that, and because guards had heard Martin several weeks ago talking about possibly taking a hostage in another escape attempt.

Martin was moved from death row to the death house, about 5 miles inside the vast prison grounds, on Jan. 9. Those facing execution usually are moved to the death house on the day of execution or a few days before.

Appeals centered on several issues, including the claim that prosecutors had no physical evidence of rape -- an important element since rape was an aggravating factor which backed up the death sentence under Louisiana law. In addition, defense attorney Clive Stafford-Smith challenged testimony that Martin confessed to another inmate while in jail.

Stafford-Smith said a document turned over this week by the district attorney showed "that the snitch, the jailhouse informant, had been diagnosed as a pathological liar at the time of trial. How can anyone be put to death based on that evidence?"

In Lake Charles, Judge Mike Canaday rejected arguments Thursday that a mental health evaluation of the snitch was not admitted at the 1992 trial. Canaday said prosecutors did not have the evaluation at the time.

The agencies which had those records were not working with the state on Martin's case, the judge noted. Other issues in the case included a claim that Martin could not get a fair hearing from the state Pardon Board because it is biased toward victims. Canaday rejected the claim Wednesday, and his ruling was upheld 6-1 by the state Supreme Court on Thursday with Justice Bernette Johnson the only dissenter.

The Moratorium Campaign, a nationwide group calling for a moratorium on executions, has been trying to persuade Gov. Mike Foster to commute Martin's sentence. The organization said that more than 500 faxes were sent through it to the governor calling for a reprieve. Foster said earlier that he would not interfere with the execution.

 
 

State v. Martin, 645 So.2d 190 (La. 1994) (Direct Appeal).

On June 20, 1991, defendant and Michael Roland went to the 12th Street Lounge in Lake Charles at about 11:00 p.m., after playing pool and drinking beer for about two hours.

The victim, a college student and part-time employee at a pizza outlet, also went to the lounge between 11:00 p.m. and midnight with some of her friends. Defendant and the victim met through Roland, who had known the victim previously.

During the evening, the victim danced with defendant, while each shared beverages and companionship with other friends in the lounge. When defendant returned to his aunt's home, where he was residing at the time, he was wearing different pants than he wore at the time he left the previous evening, and he had no shirt or shoes.

He washed his clothes and his truck seat cover, telling his aunt that they got muddy when he engaged in mud slinging with Roland. Defendant also had scratches on his chest and back, a bite mark on his shoulder, and a tear under his tongue. He told his cousin he had fought with a "country boy" in the lounge.

The same morning, defendant told Huey Rushing that he thought he may have killed someone the previous evening and asked Rushing to provide him with an alibi by saying he had spent the night at Rushing's home. Rushing refused, and defendant told him that on the way back to Lake Charles the woman threatened to report him for rape.

Defendant talked about a shed in Iowa (a town in Calcasieu Parish) and related that he had put a rope around the girl's neck, choked her, cut her throat, dug her eyes out, and jumped up and down on a wooden board placed across her neck. In response to a question, defendant asserted that he did not want to be turned in for rape again. (Defendant had a previous conviction for sexual battery and had served several years of a ten-year sentence.)

Rushing related defendant's story to his girlfriend, but they deemed it unreal until Rushing heard nine days later that a girl was missing after leaving the 12th Street Lounge.

Rushing reported the story to the police, who found the victim's decomposing body in a search of sheds in the Iowa area. The police found a rope around her neck and a wooden board nearby which contained human blood. The police then obtained a warrant and arrested defendant.

At the trial, Rushing, Guimbellot and Roland testified to the facts stated above. Other testimony was provided by inmates with whom defendant was incarcerated after his arrest. Robert Williamson testified that defendant stated he left the lounge with the victim, drove to a side road past Iowa and had sex with the highly-intoxicated victim.

When the victim accused him of taking advantage of her, he feared a return to the penitentiary, and he pulled her from the truck and strangled her, but had difficulty killing her. Defendant disclosed that he had revealed the incident to a friend with whom he had "done time," and the friend had betrayed him to the authorities.

Michael Fontenot, who was also incarcerated with defendant, testified that defendant stated the victim asked for a ride home from the lounge, and he took her on a dirt road where he had sex with her after removing her tampon which she later reinserted.

When she accused him of rape during the ride back, he pulled over near Iowa and strangled her until she passed out. When she resumed breathing, defendant strangled her with a rope and dragged her to a shed, where he left her. His friend told the police "where he put the body and everything."

Marlin Sweet was a cellmate that defendant had known some years earlier. Defendant related to Sweet the events of the evening of the murder, stating that he wanted to have sex with the victim, but that she refused because of her menstrual period. Defendant said he "had to have her" and "overpowered her," although she resisted and fought back.

When the victim became hysterical after the sexual encounter and threatened to go to the police, he decided he was not going back to prison for "nobody." He choked her, first with his hands and then with a rope. She did not die, however, and he put a wooden board across her neck and jumped on it two or three times. Defendant then cut out her eyes with a knife so that she could not identify him.

There was little physical evidence because of the condition of the body. However, human blood was found on defendant's pants and truck seat cover, as well as on the wooden board recovered near the body.

After the completion of the evidence in the guilt phase of the bifurcated trial, the jury returned a unanimous verdict of guilty as charged. In the penalty phase, the prosecution relied on the evidence presented in the guilt phase.

The defense presented mitigating evidence by a psychiatrist and members of defendant's family. The jury unanimously recommended the death penalty, finding as aggravating circumstances that (1) the offender was engaged in the perpetration of an aggravated rape, La.Code Crim.Proc. art. 905.4 A(1), and (2) the offense was committed in an especially heinous, atrocious or cruel manner.

 
 

Martin v. Cain, 206 F.3d 450 (5th Cir. 2000) (Habeas).

On 20 June 1991, Martin went to a bar in Lake Charles, Louisiana, where his companion, Roland, introduced him to the victim. Around 7:30 the next morning, Martin told his work supervisor that he had met a college student, left the bar with her, and woke up alone on Galveston Beach. The supervisor noticed scratches on Martin's forehead, neck, and shoulder that had not been there the day before.

When Martin returned to his aunt's home (where he was residing), wearing different clothes from the previous night, and no shirt or shoes, his cousin observed scratches on his chest and back, a bite mark on his shoulder, and a tear under his tongue. Martin explained he had fought a "country boy" at the bar.

That same morning, Martin related to another, Rushing, he thought he may have killed someone the previous night, and asked him for an alibi. Although Rushing refused, Martin confided that the victim had threatened to report him for rape. Martin mentioned a shed in Iowa, Louisiana, and stated that he had choked the victim with a rope, cut her throat, dug her eyes out, and jumped up and down on a wooden board placed on her neck. Rushing testified that Martin, who had served several years of a ten-year sentence for sexual battery, told him (Rushing) "he didn't want to be turned in for rape again".

Rushing did not believe Martin's story; but, nine days later, when he learned the victim had been missing since leaving the bar, he provided the information to police. During a search of sheds in the Iowa area, authorities discovered the victim's decomposing body, with a rope around her neck, and a wooden board containing human blood nearby. There was little forensic evidence. A tampon taken from the body tested negative for seminal fluid; but, a forensic expert testified that, due to decomposition, the test could be a "false negative".

Under Louisiana law, first degree murder includes "killing ... a human being ... [w]hen the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of ... aggravated rape...." La.Rev.Stat. Ann. § 14:30(A)(1) Rape is aggravated "[w]hen the victim resists the act to the utmost, but whose resistance is overcome by force". La.Rev.Stat. Ann. § 14:42(A)(1)

Three inmates who had been incarcerated with Martin after his arrest, Williamson, Fontenot, and Sweet, each testified, in varying detail, that Martin told them he had sexual relations with the victim; she accused him of rape; and he killed her, because he did not want to return to prison. But, only Sweet's testimony established aggravated rape:

In May 1992, the jury found Martin guilty of first degree murder. After a penalty phase hearing, it found that he should be sentenced to death, as a result of finding the following aggravating circumstances: the aggravated rape and that the offense was committed in an especially heinous, atrocious, and cruel manner.

 
 

Leslie Dale Martin, sentenced to death in Louisiana state court for first degree murder, appealed the denial of his federal habeas application, the district court having granted a certificate of appealability (COA) on two interrelated claims regarding the testimony of the State's key witness concerning Martin's committing the murder in connection with aggravated rape: ineffective assistance of counsel and a Brady claim. Applying our court's thencontested standard of review, we affirmed the denial of habeas relief. Martin v. Cain, 206 F.3d 450, 461 (5th Cir.), vacated, ___ U.S. ___, 121 S. Ct. 32 (2000).

That standard of review was rejected subsequently in Williams v. Taylor, 120 S. Ct. 1495 (2000). Concomitantly, concerning the proper standard of review for the case at hand, the Supreme Court granted certiorari, and vacated and remanded for us to consider this case in the light of Williams. Martin v. Cain, ___ U.S. ___, 121 S. Ct. 32, 32 (2000).

On remand, and applying the standard adopted in Williams, we AFFIRM. Other than those parts of the opinion in which we apply that standard, this opinion closely tracks our previous one.

I.

On 20 June 1991, Martin went to a bar in Lake Charles, Louisiana, where his companion, Roland, introduced him to the victim. Around 7:30 the next morning, Martin told his work supervisor that he had met a college student, left the bar with her, and woke up alone on Galveston Beach. The supervisor noticed scratches on Martin's forehead, neck, and shoulder that had not been there the day before.

When Martin returned to his aunt's home (where he was residing), wearing different clothes from the previous night, and no shirt or shoes, his cousin observed scratches on his chest and back, a bite mark on his shoulder, and a tear under his tongue. Martin explained he had fought a "country boy" at the bar.

That same morning, Martin related to another, Rushing, he thought he may have killed someone the previous night, and asked Rushing for an alibi. Although Rushing refused, Martin confided that the victim had threatened to report him for rape. Martin mentioned a shed in Iowa, Louisiana, and stated he had choked the victim with a rope, cut her throat, dug her eyes out, and jumped up and down on a wooden board placed on her neck. Subsequently, Rushing testified that Martin, who had served several years of a ten-year sentence for sexual battery, told him (Rushing) "he didn't want to be turned in for rape again".

Rushing did not believe Martin's story; but, nine days later, when he learned the victim had been missing since leaving the bar, he provided the information to police. During a search of sheds in the Iowa area, authorities discovered the victim's decomposing body, with a rope around her neck, and a wooden board containing human blood nearby. There was little forensic evidence. A tampon taken from the body tested negative for seminal fluid; but, a forensic expert testified that, due to decomposition, the test could be a "false negative".

Under Louisiana law, first degree murder includes "killing ... a human being ... [w]hen the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of ... aggravated rape...." La. Rev. Stat. Ann. 14:30(A)(1) (emphasis added). Rape is aggravated "[w]hen the victim resists the act to the utmost, but whose resistance is overcome by force". La. Rev. Stat. Ann. 14:42(A)(1).

Trial testimony indicated there may have been a time lapse between the charged rape and the charged murder. On direct appeal, the Louisiana Supreme Court noted: "when the sexual crime and the homicide 'formed one continuous transaction'", the elements of 14:30(A)(1) are met. State v. Martin, 645 So. 2d 190, 194 (La. 1994) (quoting State v. Copeland, 530 So. 2d 526, 540 (La. 1988) (holding that raping victim, driving across parish line, and then committing murder, was "one continuous transaction")). In any event, Martin confirmed at oral argument here that he is claiming there was no rape, not that a time lapse between the charged rape and charged murder would preclude the capital conviction.

Three inmates who had been incarcerated with Martin after his arrest -- Williamson, Fontenot, and Sweet -- each testified, in varying detail, that: Martin told them he had sexual relations with the victim; she accused him of rape; and he killed her, because he did not want to return to prison. But, only Sweet's testimony established aggravated rape:

Q: [PROSECUTOR] You said that he didn't say where they went, it was to be together, but what happened then?

A: Well, he said that he wanted to have sex with her.

Q: Uh-huh (yes).

A: But she refused because her ministration [sic] was on.

....

Q: What did he do then?

A: He said he had to have her.

Q: Okay.

A: So he overpowered her.

Q: He overpowered her. Did he tell you how he overpowered her?

A: He struggled with her.

Q: He struggled with her?

A: Yes, sir.

Q: Did he tell you if she fought back?

A: Yes, she did. She resisted.

Q: And what happened then?

A: He overpowered her and had sex with her.

....

Q: ... Did he tell you what happened next?

A: Yes. He said that after he was finished she became hysterical and went to threatening him about she was going to tell the police, and that he was wrong for what he did.

Q: She was hysterical at the time according to him?

A: Yes, sir.

....

Q: What did he think then? Did he tell you what he was thinking about then?

A: He said he was thinking about going back to the prison.

Q: Okay.

A: And he said he wasn't going back to prison for nobody.

Q: What happened next?

A: He said his mind clicked and he began to choke her.

....

Q: Did he tell you if she was fighting back?

A: Yes, sir, she was struggling.

Q: While he was trying to kill her?

A: Yes, sir.

(Emphasis added.)

In May 1992, a jury found Martin guilty of first degree murder. After a penalty phase hearing, it found he should be sentenced to death, as a result of finding the following aggravating circumstances: the aggravated rape; and the offense was committed in an especially heinous, atrocious, and cruel manner.

On direct appeal, Martin contended, inter alia, that the State, at most, proved forcible, not aggravated, rape. Martin, 645 So. 2d at 194. The former occurs when "the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape". La. Rev. Stat. Ann. 14:42.1 (emphasis added). The difference between aggravated and forcible rape is "the degree of force" and "the extent of resistance". Martin, 645 So. 2d at 195 (citing State v. Parish, 405 So. 2d 1080 (La. 1981)).

The Louisiana Supreme Court affirmed Martin's conviction and death sentence, based, inter alia, on the victim's small size and Sweet's testimony that the victim "refused [Martin's] advances, that he struggled with her and she fought back, and that he overpowered her". Id. (The sufficiency of the evidence for aggravated rape is not one of the certified issues here.) The Supreme Court of the United States denied certiorari. Martin v. Louisiana, 515 U.S. 1105, reh'g denied, 515 U.S. 1179 (1995).

In April 1997, the state district court, having held a two-day evidentiary hearing that January, denied Martin's application for post-conviction relief. State v. Martin, No. 9459-91. The claims certified for appeal by the federal district court are the same as two of the many rejected by the state district court.

Martin filed a federal habeas application, presenting 17 claims, in November 1998. The district court, adopting the detailed and comprehensive report and recommendation of the magistrate judge, denied relief. Subsequently, it granted a COA on two claims regarding Sweet's testimony: whether Martin received ineffective assistance of counsel; and whether the State violated its disclosure obligation under Brady v. Maryland, 373 U.S. 83 (1963).

II.

The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-32, 110 Stat. 1214 (AEDPA), applies because, subsequent to its enactment, Martin filed his federal habeas application. Green v. Johnson, 116 F.3d 1115, 1119-20 (5th Cir. 1997). Under AEDPA, a COA, granted by a circuit justice or judge, is required in order for us to review a habeas claim. 28 U.S.C. 2253; Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997). As noted, two issues were certified: Brady; and ineffective assistance of counsel.1

Under AEDPA, habeas relief is not available to a state prisoner with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. 2254(d) (emphasis added). Therefore, "pure questions of law and mixed questions of law and fact are reviewed under 2254(d)(1), and questions of fact are reviewed under 2254(d)(2)". Corwin v. Johnson, 150 F.3d 467, 471 (5th Cir.), cert. denied, 525 U.S. 1049, 119 S.Ct.613, 142 L.Ed.2d 548 (1998). Because this appeal involves mixed questions of law and fact, 2254(d)(1)'s standards apply. See Trevino v. Johnson, 168 F.3d 173, 184 (5th Cir.) (whether State must disclose evidence under Brady "is a mixed question of law and fact"), cert. denied, 527 U.S. 1056 (1999); Creel v. Johnson, 162 F.3d 385, 395 (5th Cir. 1998) (ineffective assistance claims "present a mixed question of law and fact"), cert. denied, 526 U.S. 1148 (1999).

In his appellate brief, Martin claims the state district court's concluding, on post-conviction review, that "the standard for a Brady violation ha[d] not been met" (emphasis added), was not a "full and fair adjudication", and therefore, subpart (d)(1) should not apply. At oral argument here, however, Martin acknowledged its applicability. Accordingly, he appears to have abandoned this contention. In any event, as did the district court, we find this contention meritless.

As quoted, pursuant to 2254(d)(1), there are two categories of cases in which a state prisoner may obtain federal habeas relief with respect to a claim that was adjudicated on the merits in state court: if the state court decision was either "contrary to ... clearly established Federal law, as determined by the Supreme Court" or "involved an unreasonable application of[] clearly established Federal law, as determined by the Supreme Court". 28 U.S.C. 2254(d)(1) (emphasis added).

Williams interpreted 2254(d)(1)'s "contrary to" and "unreasonable application" clauses. 120 S. Ct. at 1519-21. A state court decision is "contrary to" clearly established Supreme Court precedent if the state court: "applies a rule that contradicts the governing law set forth in [Supreme Court] cases"; or "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent". Id. at 1519-20 (emphasis added). On the other hand, a state court decision falls within the "unreasonable application" clause when it unreasonably applies Supreme Court precedent to the facts. Id. at 1521.

The state court decision at issue was not "contrary to" clearly established Supreme Court precedent because: it did not apply a rule contradictory to applicable Supreme Court precedent; and it did not reach a result, under "materially indistinguishable" facts, in conflict with such precedent. Accordingly, we focus on 2254(d)(1)'s "unreasonable application" clause: whether the state district court unreasonably applied Supreme Court precedent to the facts.

Williams instructs: "[A] federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively reasonable". Id. at 1521 (emphasis added). We cannot reverse the denial of habeas relief simply by concluding that the state court decision applied clearly established federal law erroneously. Id. at 1522. Instead, we must conclude that such application was also unreasonable. Id.

A criminal defendant may establish a Brady violation, affecting his constitutional right to due process, by showing the prosecution suppressed favorable evidence, including impeachment evidence, material to his guilt. Jackson v. Johnson, 194 F.3d 641, 648-49 (5th Cir. 1999), cert. denied, 529 U.S. 1027 (2000). See United States v. Bagley, 473 U.S. 667, 682 (1985). "The State's good or bad faith" in depriving the defendant of exculpatory evidence "is irrelevant", Rector v. Johnson, 120 F.3d 551, 558 (5th Cir. 1997) (citing United States v. Agurs, 427 U.S. 97, 110 (1976)), cert. denied, 522 U.S. 1120 (1998); and the reviewing court must assess "the cumulative effect" of the nondisclosure. Hughes v. Johnson, 191 F.3d 607, 629 (5th Cir. 1999) (citing Kyles v. Whitley, 514 U.S. 419, 436 (1995)), cert. denied, 528 U.S. 1145 (2000).

"[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different"; and such "'reasonable probability' is a probability sufficient to undermine confidence in the outcome". Bagley, 473 U.S. at 682 (emphasis added). Therefore, to succeed on his Brady claim, Martin had to "show[] that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict". Kyles, 514 U.S. at 435; Hughes, 191 F.3d at 629.

Brady's "materiality" standard "is identical to" the prejudice standard Martin had to satisfy to prevail on his ineffective assistance claim. Johnson v. Scott, 68 F.3d 106, 109-10 (5th Cir. 1995), cert. denied, 517 U.S. 1122 (1996). For the latter, he had to likewise demonstrate "a reasonable probability that, but for counsel's unprofessional errors", the verdict would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984); Davis v. Johnson, 158 F.3d 806, 812 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999). (Because, as discussed infra, the requisite prejudice is lacking for the ineffective assistance claim, we need not address the other prong of the Strickland test -- deficient performance vel non by counsel.)

A.

For the two interrelated, certified claims, Martin contends: contrary to Brady, the State failed to produce, and his counsel, due to inadequate investigation -- contrary to Strickland -- failed to discover2, substantial impeachment evidence relative to Sweet -- in his pre-trial video statement, cell location history, and criminal record.

1.

On 17 July 1991, nine months before trial, and approximately two weeks after Martin's arrest, Sweet provided for the sheriff's office a videotaped statement about Martin. That September, Martin requested witness statements and any Brady material. Responding that there was no Brady material, the State refused to disclose the statements.

In May 1992, 11 days before trial, Martin filed a supplemental motion for exculpatory evidence, again requesting discovery, or an in camera inspection, of certain inmate statements, including Sweet's. At the motion hearing, the State objected to disclosure, again claiming no Brady material. Based on that representation, the motion was denied.

On the other hand, before the State rested in the guilt-innocence phase (but after the inmate-witnesses had testified), the trial court did offer Martin's counsel an opportunity to inspect the requested statements. Counsel asked the judge to review the statements instead.

The judge did so. At a bench conference, he related that, in the video, Sweet stated that Martin told him he and the victim had been drinking, and "they had sex but she didn't want to do it, but he was all worked up and he overpowered her and she was hysterical". The judge also reviewed and related portions of the statements by Fontenot, Williamson, and three inmates who did not testify. The judge reminded Martin's counsel that, if they used portions of the statements, the State could use the rest.

Again, only Sweet's testimony supported aggravated rape. Martin contends that this late disclosure, and his counsels' failure to independently review the statements, prejudiced his defense, asserting that, during closing arguments, the prosecutor "compounded" the Brady violation by using Sweet's pre-trial statement, not produced to Martin, to strengthen Sweet's credibility.

Sweet and Martin became reacquainted in July 1991 when Martin, having recently arrived at the jail, reminded Sweet they had known each other previously. They were in the same jail section that July (the offense was in late June) when Sweet gave his video statement, and thereafter, becoming cell mates later that summer, from 31 August to 4 September. Martin contends that the following differences between Sweet's pre-trial statement and his trial testimony could have been used to impeach Sweet.

First, Sweet testified that Martin told him details of the murder; in the statement, that Martin told him only that he "grabbed [the victim] with both hands around the neck ... [and] he killed her then", and "didn't get into details".

Second, without mentioning any earlier consensual activity by the victim, Sweet testified that Martin said the victim refused to have sexual relations because of her "ministration" [sic]; in the statement, that Martin "was all worked up because [the victim] had been kissing on him and hugging all on him and he was aroused and she didn't want to go through with it ... for some unknown reason".

Third, Sweet testified that Martin told him his (Martin's) friend, "Pinky" (Rushing's nickname), "turned him in"; in the statement, that Martin never mentioned the name of the informant. (Martin notes that Sweet also related that the same friend was with Martin when he met the victim, but trial testimony established it was Roland, not Rushing.)

Fourth, and finally, Sweet testified that Martin never told him the victim was intoxicated or that he had been drinking; in the statement, that Martin said "they had been drinking".

The discrepancies between Sweet's statement and testimony are favorable to Martin, because they could have been used to attempt to impeach Sweet's credibility. And, because Sweet was the "key witness on an essential issue", United States v. Weintraub, 871 F.2d 1257, 1262 (5th Cir. 1989), then, arguably, the evidence was material. See Wilson v. Whitley, 28 F.3d 433, 439 (5th Cir. 1994) (finding withheld evidence material, relative to testimony "essential" to defendant's conviction), cert. denied, 513 U.S. 1091 (1995).

Martin also maintains his counsel failed to properly cross-examine Sweet when, in response to a question by Martin's counsel, Sweet stated: "I don't know if [Martin] said he raped her or had sex with her". Martin's counsel did not question Sweet further about this inconsistency.

The State responds that the differences in Sweet's statement and his testimony can be explained by the fact that, when Sweet gave the statement, he and Martin had only been in the same jail about two weeks, and Martin could have told Sweet the details later, when they became cell mates. It asserts that the video did not contain Brady material, until Sweet gave the somewhat differing testimony at trial; notes that it did disclose his statement during trial; and maintains that his testimony is reliable because, about eight years prior to their joint incarceration, Sweet and Martin had formed a friendship in a juvenile facility.

On post-conviction review, the state district court concluded: "A comparison of the video statement and trial testimony of Sweet fail[ed] to reveal inconsistencies sufficient to possibly impeach". (Emphasis added.) It also concluded: because Sweet's referenced un-followed-up-testimony was made in the presence of the jury, there was no prejudice.

Upon review of the record, we cannot say the state court's application of federal law was incorrect, much less unreasonable. Martin's counsel could have impeached Sweet generally with his prior inconsistent statements (in the pre-trial statement and his testimony on cross). But, what is material (reasonable probability that trial's result would have been different) is Sweet's description of the victim's resistance and that resistance being overpowered by Martin. In that regard, Sweet's statement and testimony are consistent.

2.

Martin asserts that, because of inadequate investigation, it was only post-trial that his counsel learned Sweet and Martin were not in the same cell in July 1991, when Sweet claimed Martin confessed; and, in fact, were cell mates only much later, that August-September, and then only for four days. He contends: although Sweet's account of his (Martin's) confession - e.g., Martin's pacing the floor of their cell at night on several occasions - sounds rational had it occurred over the "about two months" Sweet testified he and Martin shared a cell, it is not compatible with a four-day time span. Martin maintains the state district court overlooked the significance of Sweet's testimony that he was actually Martin's cell mate when Martin confessed, only to him, the details necessary to establish aggravated rape; and Martin points out that, in its closing argument, the State used Sweet's "cell mate" status to persuade the jury Sweet's account was believable.3

Sweet and Martin were in the same cell only from 31 August to 4 September. The state district court found, however, they were in the same "pod" from 9 July through 25 August 1991, with "access to each other daily from about 5:00 a.m. until 10:00 or 11:00 p.m".

In the light of their extensive opportunities to visit, and of Sweet's testimony that Martin "went into details on a different occasion", counsels' failure to discover Sweet's cell location history does not translate into a reasonable probability that, but for that failure, the verdict would have been different. As with the first issue, the state district court did not unreasonably apply federal law.

3.

Martin maintains also he was prejudiced by the State's failure to disclose, and counsels' failure to discover (and utilize for impeachment), Sweet's full criminal record, which included several prior convictions (for theft and "unauthorized use of a movable", and for simple assault), as well as pending charges (Sweet absconded with over $500 in parish funds given him for use as an undercover narcotics informant, and threatened to kill the officer who subsequently arrested him). In particular, Martin's counsel was unable to counter Sweet's trial testimony that he had only one criminal offense -- for cocaine distribution.

The record indicates, and the state district court determined: at a pre-trial hearing, the State provided Sweet's criminal record to Martin's counsel. At a hearing on Martin's new trial motion, however, Martin's counsel testified that the State provided only "a typewritten list of some charges against one inmate" (unidentified in the record).

The state district court noted: Sweet testified at trial in his prison uniform; the jury was aware he had one prior felony conviction and was currently in prison; and evidence of the then pending charges, admissible only to show bias or prejudice, would not have been admitted, because Sweet denied any promise by the State of leniency or a plea bargain. As a result, it held that Martin had not shown the requisite prejudice.

For this issue, as with the first two, the state court decision was not outside the standard of 2254(d)(1), as defined in Williams.

B.

As he did in district court, Martin asserts that, cumulatively, the referenced suppressed or undiscovered impeachment evidence translates into the requisite prejudice. He contends: the only other evidence of aggravated rape, the scratches and other physical injuries (bite mark on shoulder and tear under tongue) observed by witnesses, could have been caused by his claimed fight at the bar. (As noted, according to Martin's cousin, Martin said the injuries resulted from a fight there with a "country boy".)

The State responds that, in addition to Sweet's testimony, other evidence supported finding aggravated rape: Martin's physical injuries; the removal of the victim's clothing; and the logical inference that, had the sexual relations been consensual, Martin would have had no reason to kill her. The State acknowledges "Sweet is the only State witness who testified that [Martin] told him he raped the victim" (emphasis added); but, it claims Williamson, Fontenot, and Rushing's testimony also supported aggravated rape because they "relayed the last words of [the victim]" - that Martin "took advantage of her" (Williamson) or raped her (Fontenot and Rushing).

Martin replies that this contention by the State -- the victim "spoke through" Martin and then through the inmates -- is hearsay within hearsay, and cannot be used to establish aggravated rape, because such evidence is too unreliable. In support, Martin cites State v. Lubrano, 563 So. 2d 847, 849 (La. 1990) ("[w]here the state's case rests entirely on hearsay evidence ... counsel's failure to object does not necessarily foreclose inquiry into the reliability of the result") (emphasis in original); and State v. Allien, 366 So. 2d 1308, 1312 (La. 1978) (reversing conviction where "unobjected to hearsay" was "exclusive evidence of a defendant's guilt"). Martin contends: by taking the victim's alleged statements out of context, the State ignores the fact that such testimony indicates, at most, the victim thought Martin had taken advantage of her intoxication.

We find, consistent with Martin's assertion at oral argument, that this hearsay issue, even if raised previously, was apparently not a basis for the decisions by the Louisiana Supreme Court on direct appeal, or by the state district court or federal district court on post-conviction review. Accordingly, we decline to consider this (the State's) contention.

To demonstrate the requisite prejudice as a result of the claimed cumulative error, Martin points to the magistrate judge's statement, in his report and recommendation, that, under a de novo review, he might have reached a different conclusion than did the state district court. However, as discussed, this is not the standard of review: "[A]n unreasonable application of federal law is different from an incorrect application of federal law". Williams, 120 S. Ct. at 1522 (emphasis in original).

Concerning this cumulative-error-issue, and as noted for each of the earlier issues, we conclude that the state district court did not unreasonably apply federal law to the facts. Sweet's testimony, with the exception of that about the aggravated nature of the rape, was corroborated by a number of other witnesses and other evidence, and Sweet's testimony concerning the aggravated nature of the rape was, to some extent, corroborated by Martin's visible physical injuries shortly after the murder.

III.

For the foregoing reasons, and consistent with the result reached in our first (vacated) opinion, the denial of habeas relief is

AFFIRMED.

*****

NOTES:

1

In his brief, Martin requests "a COA with respect to the full range" of the claimed counsel deficiencies and Brady violations, as presented in his habeas petition. See United States v. Kimler, 150 F.3d 429, 430 (5th Cir. 1998) (noting that we may certify issues not certified by the district court, if petitioner explicitly requests it). But, because these requests are not briefed, we will not consider them. See, e.g., Dardar v. Lafourche Realty Co., 985 F.2d 824, 831 (5th Cir. 1993) ("[q]uestions posed for appellate review but inadequately briefed are considered abandoned").

2

Martin's trial counsel, Pitre and Williams, were appointed to replace the public defender on 30 March 1991, 42 days before trial. At the state post-conviction evidentiary hearing, Williams testified that he spent 60 hours, at most, on the case; the majority of Pitre's time, as lead counsel, was apparently spent seeking a continuance. See Martin, 645 So. 2d at 197 (discussing denial of continuance).

3

Martin contends that the state district court's rejection of this issue was, pursuant to 2254(d)(2), "based on an unreasonable determination of the facts...." We find this claim -- which is not included in the COA, see note 1, supra -- without merit, in the light of the fact that, after a two-day evidentiary hearing, that court was fully aware of the time period in which Martin and Sweet were in the same section, and when they were cell mates, as discussed infra.