Petition For A Writ of Habeas Corpus

Case 3:20-cv-00306-HEH Document 1 Filed 04/29/20 Page 1 of 65 PageID# 151
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
GEORGE WESLEY HUGUELY V,
Petitioner,
3:20-cv-306
Civil Action No. __________
v.
HAROLD CLARKE, Director, Virginia

Department of Corrections
Respondent.
PETITION FOR A WRIT OF HABEAS CORPUS
Jeffrey M. Harris* (VA Bar #93883)

Jonathan P. Sheldon (VA Bar #66726) Bryan K. Weir (VA Bar #82787)
Sheldon & Flood, PLC Jordan M. Call*
10621 Jones Street, Suite 301A CONSOVOY MCCARTHY PLLC
Fairfax, VA 22030 1600 Wilson Boulevard, Suite 700
(703) 691-8410 Arlington, VA 22209
jsheldon@sfhdefense.com (703) 243-9423
jeff@consovoymccarthy.com
bryan@consovoymccarthy.com
jordan@consovoymccarthy.com
* Pro hac vice application pending
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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
JURISDICTION ............................................................................................................................. 4
A. The Relationship Between Mr. Huguely and Ms. Love .............................................. 5
B. Yeardley Love’s Death ................................................................................................ 6
A. Mr. Huguely’s Indictment and the Highly Sensationalized Press Coverage

Surrounding this Case. ................................................................................................. 9
B. Trial............................................................................................................................ 11
1. Malice ............................................................................................................. 12
2. Cause of Death/Reperfusion ........................................................................... 13
C. Verdict ....................................................................................................................... 16
D. Direct Appeal ............................................................................................................. 17
E. State Post-Conviction Proceedings ............................................................................ 18
STANDARD OF REVIEW .......................................................................................................... 18
CLAIMS FOR RELIEF ................................................................................................................ 20
I. Mr. Huguely’s Due Process and Sixth Amendment Rights Were Violated
When the Jury Consulted a Dictionary Regarding the Meaning of Malice. ............... 20
II. Mr. Huguely’s Sixth Amendment Rights Were Violated When He Received
Ineffective Assistance of Counsel At Trial. ................................................................ 27
A. Mr. Huguely’s Sixth Amendment Right to Effective Assistance of Counsel Was

Violated When Trial Counsel Violated the Rule on Witnesses, Thereby Causing
Crucial Expert Testimony to be Excluded ................................................................. 28
B. Mr. Huguely’s Sixth Amendment Right to Effective Assistance of Counsel

Was Violated When His Counsel Failed to Call Crucial Expert
John S. Daniel, III, M.D. ........................................................................................... 33
III. Mr. Huguely’s Rights Under the Due Process Clause and Brady v. Maryland Were
Violated When the Commonwealth Failed to Disclose the Love Family’s Imminent
$30 Million Civil Suit Against Mr. Huguely .............................................................. 37
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IV. The Circuit Court Violated Mr. Huguely’s Sixth Amendment Right to Counsel
by Forcing Him to Proceed in the Absence of his Retained Counsel of Choice ........ 40
V. The Circuit Court Violated Mr. Huguely’s Right to a Fair and Impartial Jury
Under the Sixth Amendment ...................................................................................... 47
A. The State Courts Unreasonably Applied Clearly Established Federal Law by

Refusing to Order Individualized, Sequestered Voir Dire......................................... 47
B. The State Courts Unreasonably Applied Clearly Established Federal Law by

Refusing to Allow the Defense to Ask Questions During Voir Dire That Were
Directly Relevant to Jurors’ Ability to Remain Impartial ......................................... 50
C. Mr. Huguely’s Sixth Amendment Right to an Impartial Jury Was Violated

When the Circuit Court Refused to Strike for Cause a Juror Whose Answers
During Voir Dire Revealed Serious Doubts about Her Impartiality ......................... 52
VI. There Was Insufficient Evidence Offered at Trial to Support Mr. Huguely’s
Conviction for Second-Degree Murder. ..................................................................... 53
PRAYER FOR RELIEF ............................................................................................................... 56
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TABLE OF AUTHORITIES
CASES
Brady v. Maryland, 373 U.S. 83 (1963) ....................................................................................... 37
Canipe v. Commonwealth, 25 Va. App. 629 (1997) ............................................................... 22, 54
Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989) ........................................ 40
Carty v. Thaler, 583 F.3d 244 (5th Cir. 2009) .............................................................................. 19
Clark v. United States, 289 U.S. 1 (1933) .................................................................................... 53
Connors v. United States, 158 U.S. 408 (1895) ............................................................................ 50
Dietz v. Bouldin, 136 S. Ct. 1885 (2016) ...................................................................................... 20
Dugas v. Coplan, 428 F.3d 317 (1st Cir. 2005) ............................................................................ 32
Duncan v. State of La., 391 U.S. 145 (1968) ................................................................................ 52
Essex v. Commonwealth, 322 S.E.2d 216 (Va. 1984)................................................. 12, 22, 54, 55
Gonzalez v. United States, 553 U.S. 242 (2008)........................................................................... 46
Gordon v. Braxton, 780 F.3d 196 (4th Cir. 2015) ........................................................................ 19
Harrington v. Richter, 562 U.S. 86 (2011) ................................................................................... 32
Haywood v. Commonwealth, 20 Va. App. 562, 458 S.E.2d 606 (1995) ...................................... 56
Huguely v. Commonwealth, 754 S.E.2d 557 (Va.App. 2014) ...................................................... 17
Huguely v. Commonwealth, No. 140678 (Va. Nov. 19, 2014 and Jan. 15, 2015) ........................ 17
Huguely v. Commonwealth, No. 1697-12-2 (Va.App. March 27, 2014) ...................................... 17
Huguely v. Virginia, 136 S. Ct. 119 (2015) .............................................................................. 4, 17
Huguely v. Warden, Cir. Crt. File No. CL 16-23 .......................................................................... 18
In re Greensboro News Co., 727 F.2d 1320 (4th Cir. 1984) ........................................................ 47
In re R.D., 2012 PA Super 84, 44 A.3d 657 (2012)...................................................................... 38
In re South Carolina Press Ass’n, 946 F.2d 1037 (4th Cir. 1991) ............................................... 47
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In re State Record Co., 917 F.2d 124 (4th Cir. 1990)................................................................... 48
Irvin v. Dowd, 366 U.S. 717 (1961).............................................................................................. 20
Jackson v. Virginia, 443 U.S. 307 (1979) ..................................................................................... 54
Kimmelman v. Morrison, 477 U.S. 365 (1986)....................................................................... 27, 28
London v. Commonwealth, 49 Va.App. 230, 638 S.E.2d 721 (2006)........................................... 42
Marina v. Vasquez, 812 F.2d 499 (9th Cir. 1987) ........................................................................ 22
Marshall v. United States, 360 U.S. 310 (1959) ........................................................................... 52
Mayhue v. St. Francis Hosp. of Wichita, Inc., 969 F.2d 919 (10th Cir. 1992) ............................. 21
McNeill v. Polk, 476 F.3d 206 (4th Cir. 2007) ............................................................................. 21
Miller-El v. Cockrell, 537 U.S. 322 (2003) .................................................................................. 19
Morgan v. Illinois, 504 U.S. 719 (1992) ....................................................................................... 52
Morris v. Slappy, 461 U.S. 1 (1983) ............................................................................................. 40
Murray v. Carrier, 477 U.S. 478 (1986)....................................................................................... 32
People v. Wallert, 98 A.D.2d 47 (N.Y. 1983) .............................................................................. 38
Perricllia v. Commonwealth, 229 Va. 85, 326 S.E.2d 679 (1985) ............................................... 55
Powell v. Alabama, 287 U.S. 45 (1932) ....................................................................................... 40
Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) ..................................................... 47
Remmer v. United States, 347 U.S. 227 (1954) .......................................................... 20, 21, 24, 26
Ristaino v. Ross, 424 U.S. 589 (1976) .......................................................................................... 52
Rodriguez v. Chandler, 492 F.3d 863 (7th Cir. 2007) .................................................................. 45
Rompilla v. Beard, 545 U.S. 374 (2005)................................................................................. 27, 28
Rosales-Lopez v. United States, 451 U.S. 182 (1981) .................................................................. 50
Schledwitz v. United States, 169 F.3d 1003 (6th Cir. 1999) ......................................................... 38
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Schriro v. Landrigan, 550 U.S. 465 (2007) ............................................................................ 20, 24
Smith v. Phillips, 455 U.S. 209 (1982) ......................................................................................... 21
Strickland v. Washington, 466 U.S. 668 (1984) ............................................................... 27, 32, 36
Strickler v. Greene, 527 U.S. 263 (1999) ..................................................................................... 37
Swain v. Alabama, 380 U.S. 202 (1965) ....................................................................................... 50
Tice v. Johnson, 647 F.3d 87 (4th Cir. 2011) ............................................................................... 32
Townsend v. Sain, 372 U.S. 293 (1963)........................................................................................ 24
Turner v. State of La., 379 U.S. 466 (1965).................................................................................. 20
United States v. Dansker, 565 F.2d 1262 (3d Cir. 1977) .............................................................. 40
United States v. Duncan, 598 F.2d 839 (4th Cir. 1979)................................................................ 21
United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) .................................................... 40, 42, 45
United States v. Lancaster, 96 F.3d 734 (4th Cir. 1996) .............................................................. 50
United States v. Laura, 607 F.2d 52 (3d Cir. 1978)...................................................................... 45
United States v. Lawson, 677 F.3d 629 (4th Cir. 2012) ................................................................ 21
United States v. Nevils, 598 F.3d 1158 (9th Cir. 2010) ................................................................ 54
United States v. Pelullo, 105 F.3d 117 (3d Cir. 1997) .................................................................. 38
United States v. White, 492 F.3d 380 (6th Cir. 2007) ................................................................... 39
Wiggins v. Smith, 539 U.S. 510 (2003) ................................................................................... 27, 36
Williams v. Martin, 618 F.2d 1021 (4th Cir. 1980) ...................................................................... 33
Williams v. Stirling, 914 F.3d 302 (4th Cir. 2019) ....................................................................... 19
Williams v. Taylor, 529 U.S. 362 (2000) .......................................................................... 19, 27, 53
Winston v. Kelly, 592 F.3d 535 (4th Cir. 2010) ............................................................................ 19
Wolfe v. Johnson, 565 F.3d 140 (4th Cir. 2009) ........................................................................... 19
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Workman v. Commonwealth, 272 Va. 633 (2006) ........................................................................ 37
STATUTES
28 U.S.C. § 2254(d) ...................................................................................................................... 18
28 U.S.C. §2241(d) ......................................................................................................................... 4
28 U.S.C. §2244(d)(1)(A) ............................................................................................................... 4
28 U.S.C. §2254(a) ......................................................................................................................... 4
28 U.S.C. §2254(b)(1)(A) ............................................................................................................... 5
Va. Code §18.2-10(e) .................................................................................................................... 12
Va. Code §18.2-32 ........................................................................................................................ 12
Va. Code §18.2-35 ........................................................................................................................ 12
Va. Code §18.2-36 ........................................................................................................................ 12
OTHER AUTHORITIES
Groot, Criminal Offenses §6 ................................................................................................... 22, 54
Rules Governing Section 2254 Cases in the United States District Courts, Rule 8, Advisory
Committee notes ....................................................................................................................... 25
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. VI .................................................................................................................. 40
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INTRODUCTION
George Wesley Huguely V (VA Offender ID #1458946), who is currently in the custody
of the Virginia Department of Corrections at the State Farm Enterprise Unit in State Farm, VA,
respectfully submits this petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254.
Mr. Huguely was convicted of second-degree murder following the death of Yeardley Love
while both were students at the University of Virginia in the spring of 2010. Although
sensationalist press coverage falsely portrayed this case as a brutal, intentional killing, the actual
evidence presented at trial told a very different story of what happened on the night in question.
Mr. Huguely and Ms. Love had an altercation earlier that night in which they briefly
wrestled on the floor of her bedroom, but the defense offered abundant evidence that Mr.
Huguely’s actions were not the cause of Ms. Love’s death. It was undisputed at trial that Mr.
Huguely—who was severely intoxicated after a day of heavy drinking—did not intend to kill Ms.
Love and went to her apartment to talk to her only after another friend refused to socialize with
him. It was also undisputed that Ms. Love was alive when Mr. Huguely left her apartment; that
Ms. Love’s roommates called 911 because they believed she was suffering from alcohol poisoning;
and that Mr. Huguely was genuinely shocked and devastated when he later learned that Ms. Love
had died. The defense also offered evidence that Ms. Love’s relatively minor external injuries were
consistent with a fall to the floor from the bed, and that she likely died from positional asphyxia
(accidental smothering) from sleeping face down on a wet pillow while she was heavily
intoxicated. The prosecution, by contrast, argued that Ms. Love died from blunt force trauma that
caused a fatal brain injury.
Given this competing evidence, two of the critical issues before the jury were whether Mr.
Huguely acted with malice—which was the difference between second-degree murder and
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manslaughter—and what caused Ms. Love’s death. Yet, on both issues, the proceedings were
plagued with problems that deprived Mr. Huguely of his constitutionally guaranteed right to a fair
trial. As to malice, Mr. Huguely presented evidence to the state habeas court that the jury—which
was clearly confused about the meaning of malice—consulted a dictionary during its deliberations
to supplement the instructions provided by the court. This was a flagrant violation of the
constitutional rule prohibiting external influences on the jury. Yet the state habeas court dismissed
this claim without even holding an evidentiary hearing even though the Warden’s own evidence
showed that at least one juror had a clear recollection of using a dictionary.
Mr. Huguely’s trial counsel also severely prejudiced his defense through their deficient
performance. Due to counsel’s violation of the rule on witnesses, the trial court excluded critical
expert testimony that the defense needed to rebut the prosecution’s evidence regarding the cause
of Ms. Love’s death. And trial counsel failed to call another expert witness whose testimony was
needed to bolster the defense’s theory of the cause of death and respond to the prosecution’s
evidence. This deficient performance severely hindered Mr. Huguely’s defense and resulted in the
jury having an inaccurate picture of the critical medical evidence regarding the cause of death.
The Commonwealth also violated the Due Process Clause and the Brady doctrine by failing
to disclose the fact that the Love family was planning to bring a $30 million civil suit against Mr.
Huguely after the completion of the criminal trial. The defense learned for the first time at a post-
trial hearing that the Loves’ civil attorneys had been in contact with the prosecution, and had
postponed bringing the civil suit at the prosecution’s request. This information was plainly material
to the criminal case against Mr. Huguely. The civil case advanced a negligence theory and
characterized Ms. Love’s death as an “accident.” That view of the facts is flatly inconsistent with
the Commonwealth’s theory of the criminal case—namely, that Mr. Huguely should be convicted
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of second-degree murder because he acted with malice. The imminent $30 million civil suit that
was about to proceed under a legal theory contrary to the Commonwealth’s theory in the criminal
case would have unquestionably been material to Mr. Huguely’s defense at trial it been properly
disclosed by the Commonwealth.
Those deficiencies were further compounded by several highly prejudicial errors
committed by the trial court. This was a remarkably high-profile case in Charlottesville that
implicated a number of sensitive and emotionally charged issues, and received unprecedented
coverage in the local media. Yet the trial court made a number of erroneous rulings that valued
expediency and convenience over Mr. Huguely’s right to a fair trial. The court declined to grant a
short continuance when trial counsel fell ill to ensure the protection of Mr. Huguely’s right to
counsel of choice. It refused to impose safeguards to ensure that Mr. Huguely would receive a fair
trial from an impartial jury despite the extremely high-profile nature of this case. It barred the
defense from probing the potential bias of jurors during voir dire. And it refused to strike for cause
a juror who taught at the University of Virginia and had seen extensive information about the case
through the University.
* * *
In sum, these serious errors resulted in a fundamentally skewed proceeding in which Mr.
Huguely was deprived of his ability to mount a comprehensive and effective defense based on the
actual facts rather than the sensationalist and inaccurate press coverage of this case. Mr. Huguely
respectfully requests that this Court order Respondent to show cause why the writ should not be
granted and thereafter grant the petition and vacate the conviction. Alternatively, the Court should
order an evidentiary hearing to ensure the development of a full record on the serious constitutional
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errors that fundamentally skewed the trial and deprived Mr. Huguely of the opportunity to mount
a comprehensive defense.
JURISDICTION
“The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an
application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment
of a State court only on the ground that he is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. §2254(a). This Court has jurisdiction over this petition
under §2254 because Mr. Huguely contends that he is being held in state custody in violation of
the Constitution and laws of the United States. Venue is proper in this Court because Mr. Huguely
is currently in the custody of the Virginia Department of Corrections at the State Farm Enterprise
Unit within the State Farm Correctional Complex in State Farm, Virginia, which is within this
judicial district. See 28 U.S.C. §2241(d). The respondent is Harold Clarke, the Director of the
This petition is timely. A person in custody pursuant to the judgment of a state court may
seek federal habeas relief within one year from “the date on which the judgment became final by
the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C.
§2244(d)(1)(A). Here, direct review concluded on October 5, 2015, the day the U.S. Supreme
Court denied Mr. Huguely’s petition for certiorari in his direct appeal. See Huguely v. Virginia,
136 S. Ct. 119 (2015). Section 2244(d)(2) provides that “[t]he time during which a properly filed
application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of limitation under this
subsection.” Mr. Huguely filed a petition for state habeas corpus relief on January 19, 2016, which
was 106 days after the conclusion of direct review. Mr. Huguely thus had an additional 259 days
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(365 minus 106) in which to file his §2254 petition following the conclusion of state habeas review.
The state habeas proceedings concluded when the Virginia Supreme Court denied Mr. Huguely’s
petition for appeal on September 3, 2019. The due date for this petition is accordingly May 19,
2020 (259 days after September 3, 2019). This petition is being filed in advance of that date and
is thus timely.
Mr. Huguely has also satisfied Section 2254’s exhaustion requirement. A §2254 petitioner
is required to “exhaust[] the remedies available in the courts of the State” before bringing claims
for federal habeas relief. 28 U.S.C. §2254(b)(1)(A). All claims for relief being raised in this
petition were previously raised on either direct review or state habeas review and were thus
properly exhausted.
STATEMENT OF FACTS
A. The Relationship Between Mr. Huguely and Ms. Love
In spring 2010, George Huguely and Yeardley Love were 22-year-old seniors at the
University of Virginia nearing graduation. Both lacrosse players, they had been in an “on-and-off”
romantic relationship for approximately two years. 2/8/12 Tr. 99, 163. The relationship was
tumultuous at times (both had been unfaithful to the other), but they remained friends and intended
to continue their friendship after graduation. 2/8/12 Tr. 163-64.
On February 27, 2010, Mr. Huguely and Ms. Love had an altercation about text messages
she had found on his phone. 2/9/12 Tr. 204-05. A visiting lacrosse player, Michael Burns, testified
that he saw Mr. Huguely using his arm to hold Ms. Love down on top of him on the bed as she
sought to get away. 2/9/12 Tr. 156, 160-61. Two days later, however, Ms. Love told Burns that
everything was fine with Mr. Huguely, and she expressed no concern about him. 2/9/12 Tr. 169.
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Mr. Huguely later gave Ms. Love an apology letter stating that she was his “best friend,” and that
he was “horrified with the way I behaved and treated you.” Ex.21.
On April 27th, Ms. Love became angry when someone mentioned that Mr. Huguely was
seeing and texting another woman. 2/8/12 Tr. 104-08, 120-22, 171-73. That evening, she entered
Mr. Huguely’s room without knocking and saw two visiting female high school seniors who were
staying at Mr. Huguely’s apartment while waiting to meet their host. Ms. Love demanded to know
whether these were Mr. Huguely’s “new girlfriends” or the women he had been texting, and she
hit him repeatedly with her purse. 2/9/12 Tr. 191-92, 217-18; 2/17/12 Tr. 37-39. Ms. Love also
told Mr. Huguely that she had “hooked up” with Michael Burns earlier that week. Mr. Huguely
calmly backed away from Ms. Love and asked her to leave. 2/17/12 Tr. at 39; 2/9/12 Tr. at 219.
Ms. Love later emailed Mr. Huguely an apology, writing that she was “sorry [I] went
crazy.” Ex.132. The emails descended into a vitriolic exchange in which Mr. Huguely fumed at
Ms. Love for “hooking up with [B]urns then attacking me.” Ex.132. On April 30th, Mr. Huguely
sent Ms. Love an email that read in its entirety, “We should talk tonight.” Ex.132. One day later,
on May 1st, Ms. Love and Mr. Huguely appeared friendly and were holding hands at a gathering
of lacrosse players and their families. 2/17/12 Tr. 71-79.
B. Yeardley Love’s Death
On Sunday May 2nd, Mr. Huguely began drinking early in the morning, and was already
“slurring his words” by 9:00 a.m. 2/9/12 Tr. 185-86, 194-98, 242; 2/15/12 Tr. 49, 55-56, 96-99.
At a lacrosse team golf tournament later that morning, Mr. Huguely continued to drink heavily and
became increasingly intoxicated and uncoordinated to the point where could not even finish the
last few holes. 2/15/12 Tr. 100. At a post-tournament reception, Mr. Huguely was slurring and
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inarticulate and was described as being unable to maintain a conversation. 2/9/12 Tr. 186-87, 199-
200; 2/15/12 Tr. 75-76, 121-22.
Mr. Huguely, his father, and some teammates subsequently went to a restaurant, where
they continued to drink wine. Mr. Huguely tipped over a bottle of wine and later urinated on the
side of the building. 2/15/12 Tr. 76, 123-24. The group ended dinner early because they did not
want to be in public with Mr. Huguely while he was so drunk. At 10:30 p.m., Mr. Huguely met
teammates Kevin Carroll, Ken Clausen, and Mikey Thompson in his apartment; he was visibly
drunk and incoherent. 2/15/12 Tr. 58-59, 77-78, 124-25.
Around 11:40 p.m., Carroll and Clausen went out to get more beer and Thompson went
back to his apartment. 2/15/12 Tr. 59-60, 77, 79. At roughly the same time, Mr. Huguely walked
downstairs to the apartment of teammate Chris Clements, who was working and told Huguely to
go away. 2/15/12 Tr. 102-03. Mr. Huguely—dressed in tennis shoes, cargo shorts, and a golf
shirt—then walked across a well-lit path to Ms. Love’s apartment. He carried no bag, weapon, or
object. According to Mr. Huguely, he wanted to talk to Ms. Love about the arguments they had
had earlier that week. Ex.26.
After a day of drinking, Ms. Love ended the day by celebrating a friend’s birthday from
around 5:00 p.m. to 10:00 p.m., where she consumed at least four drinks. 2/8/12 Tr. 113-15, 124,
182-86, 212. Ms. Love and her roommate, Caitlin Whiteley, then returned to their apartment,
intending to shower and go back out. As Whiteley prepared to leave, however, she found Ms. Love
lying in bed in just her underwear. According to Whiteley, Ms. Love was drunk and seemed like
she might “pass[] out,” but said she would consider meeting up later. 2/8/12 Tr. 188-92, 213-14.
Ms. Love’s blood alcohol level was between 0.14 and 0.18. Ex.105.
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Mr. Huguely arrived at Ms. Love’s apartment around 11:40 p.m. and let himself in through
the external door to the apartment, which was unlocked. According to Mr. Huguely, when he
arrived at Ms. Love’s internal bedroom door (which was closed), she told him to go away. He then
kicked a hole in the hollow composite door and reached through to let himself in. The two had an
altercation and ended up wrestling on the floor, after which Mr. Huguely “tossed” her onto the
bed. Mr. Huguely later told police that when he left the apartment, Ms. Love’s nose was bleeding
but he did not believe she had any serious injuries. Ex.26. Anna Lehmann, a student in the
downstairs apartment, heard Mr. Huguely’s steps on the stairs and one loud noise by the door.
2/8/12 Tr. 137-38. But, even though the apartment walls were “very thin,” Lehmann heard no
running, yelling, banging, or hitting of the walls or floor. 2/8/12 Tr. 135-36, 142, 153-54. Lehmann
saw Mr. Huguely walking away at a normal pace and in a normal manner roughly ten minutes after
he had arrived. 2/8/12 Tr. 138, 141-44, 158. On his way out of Ms. Love’s apartment, Mr. Huguely
took her laptop computer, which he threw in a nearby dumpster as he was walking home. He later
explained that he took the laptop to ensure that Ms. Love would have to talk to him the next day,
a drunken action he described as “not reasonable logic.”
Once home, around 12:15 a.m., Mr. Huguely sat with Clausen and Carroll in the living
room drinking beer for around 15 minutes; he was “really, really drunk” but did not appear injured
or disheveled. 2/15/12 Tr. 65-69. Carroll, Thompson, and Will Bolton—who arrived shortly after
Mr. Huguely returned—noted that Mr. Huguely was tired and intoxicated but otherwise saw
nothing unusual. Id. Mr. Huguely went to bed by 12:30 a.m.
On May 3rd, at 2:15 a.m., Caitlin Whiteley and a friend (Philippe Oudshoorn) returned to
the apartment and found Ms. Love in bed under her comforter in her usual sleeping position, face
down on her left-hand pillow. 2/8/12 Tr. 193-95, 226-28. Ms. Love had injuries around her eye
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and chin and there was a small amount of blood on the sheets and pillow, but those injuries did not
appear serious; indeed, Whiteley and Oudshoorn initially believed that Ms. Love was suffering
from alcohol poisoning. 2/8/12 Tr. at 232-33. Oudshoorn called 911 and attempted to perform CPR
while waiting for the first responders to arrive. 2/8/12 Tr. 196-201, 211-15, 228-33. Rescue
personnel arrived shortly thereafter and continued performing CPR using firm compressions for
approximately 24 minutes but could not resuscitate Ms. Love. 2/9/12 Tr. 42-43, 48-50, 67.
Around 6:30 a.m., the police arrived to speak to Mr. Huguely, who was fully cooperative.
See Ex. 26 (video of police interview). The officers took him to the police station and read him his
Miranda rights. Mr. Huguely did not ask to make any phone calls or to talk to a lawyer, and he
calmly answered all questions asked of him. When, after an hour of police questioning, the
detective informed Mr. Huguely that Ms. Love was dead, Mr. Huguely reacted with shock and
disbelief, exclaiming repeatedly, “She’s not dead,” “She’s dead?,” “How is she dead?,” “Tell me
she’s not dead,” “There is no way she’s dead,” and “She cannot be dead.” Mr. Huguely told the
police about their altercation but insisted that he had done nothing that could have resulted in Ms.
Love’s death. He said that they had briefly wrestled on the floor and that her nose was bleeding
when he left, but he did not believe she was seriously injured. Forensic testing revealed no blood
on Mr. Huguely or his clothes, or at his apartment. Ex.152; Ex.143.
PROCEDURAL HISTORY
A. Mr. Huguely’s Indictment and the Highly Sensationalized Press Coverage

Surrounding this Case.
On April 18, 2011, Mr. Huguely was indicted on six counts of first-degree murder, robbery,
burglary in the nighttime, statutory burglary, grand larceny, and murder in the commission of a
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robbery. R.126-131. The robbery, burglary, and larceny charges were based on Mr. Huguely taking
Ms. Love’s laptop as he left the apartment.
This case attracted a staggering amount of sensationalized press coverage from both the
local and national media. Between May 2010 and July 2011, the local ABC, CBS, and FOX
stations covered this case more than 100 times. R.174-76. And, by late 2011, there had been 144
articles about this case in the Charlottesville Daily Progress, 45 in the Cavalier Daily, 90 in the
Richmond Times-Dispatch and 84 in the Washington Post. R.177-96. Many of those articles
contained highly sensationalist and inflammatory rhetoric about Mr. Huguely. See, e.g., R.144-45
(Mr. Huguely was “an Anger Prone Scion of Prominent DC Family,” “Students at All-Boys
Landon School Planned Sex Parties, Sources Say,” “More Drunken Violent Episodes Emerge,”
“Source: Huguely Attacked Teammate”). Others provided extensive coverage of earlier alleged
“bad acts” by Mr. Huguely, R.149, or attempted to inject into this case issues of class, wealth, race,
and domestic violence, R.150-51. And these media reports contained a number of demonstrably
false statements, such as the suggestion that a “bloody shirt” had been found in Mr. Huguely’s
apartment. R.148.
In addition to the round-the-clock media coverage, this case was also addressed extensively
by the University of Virginia, which has long played an outsized role in the Charlottesville
community. Shortly after Ms. Love’s death, the University held a vigil in her memory, with
University President John Casteen delivering an impassioned speech calling students to action on
issues of domestic violence. R.204-06. Even though the police investigation had barely begun, Mr.
Casteen falsely stated that Ms. Love had been “attacked and beaten” and “thrown against [the]
wall[].” R.205; see id. (referring to the “blows and abuse” that “ended Yeardley’s life” and her
“attacker’s advantage or arrogance or mindless sense of right to abuse”). In fact, forensic evidence
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clearly showed that there had not been any violent beating and there were no signs of a struggle
within Ms. Love’s apartment. There were no dents or marks on the walls, 2/10/12 Tr. 197-98; the
wall art and furniture, including Ms. Love’s personal effects on top of the furniture, were
undisturbed, 2/10/12 Tr. 92-129, 199-203; and Ms. Love’s downstairs neighbor who overheard the
incident heard no yelling or hitting, 2/8/12 Tr. 135-36, 142, 153-54.
The April 11, 2011 preliminary hearing in this case produced a flood of local and national
media far beyond anything previously seen in Charlottesville. The courtroom was packed with
reporters from virtually every media outlet in the United States, and the hearing had to be moved
to a larger venue to accommodate the overwhelming media presence. Due to the high-profile
nature of this case within the Charlottesville community, Mr. Huguely filed a pre-trial motion for
individual sequestered voir dire and sequestration of the jury during trial. R.143, R.336, R.364.
On January 26, 2012, the court denied the motion for sequestered voir dire and to sequester the
jury, although it granted the motion to the extent it requested individual voir dire. R.456.
Voir dire was conducted from February 6-8, 2012. During voir dire, the court refused to
allow the defense to ask potential jurors if they could fairly consider evidence that could be seen
as “blaming the victim.” The court also refused to strike for cause several jurors with close
connections to this case, including Juror 211, who taught at the University of Virginia, had heard
extensive information about the case through the University, and had excused one of Ms. Love’s
friends from class for the funeral.
B. Trial
Mr. Huguely’s trial took place over twelve days between February 8-22, 2012. Two of the
key issues before the jury were whether Mr. Huguely had acted with malice and the specific cause
of Ms. Love’s death.
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1. Malice
In deciding whether Mr. Huguely was guilty of manslaughter or second-degree murder,
“malice” was the key issue. “If a killing results from negligence, however gross or culpable, and
the killing is contrary to the defendant’s intention, malice cannot be implied.” Essex v.
Commonwealth, 322 S.E.2d 216, 220 (Va. 1984). This was an enormously consequential issue for
Mr. Huguely, as the sentence for second-degree murder (which requires a showing of malice) is
imprisonment of 5 to 40 years, see Va. Code §18.2-32, while the sentence for voluntary or
involuntary manslaughter is between 1 and 10 years imprisonment, see id. §§18.2-35, 18.2-36,
18.2-10(e).1 The defense argued that the jury should convict Mr. Huguely of, at most, involuntary
manslaughter. 2/18/12 Tr. 222-26, 249-50. As Mr. Huguely’s counsel argued at closing, “you can’t
believe or infer or find a brutal beating or conduct that showed such a level of force that you think
he, you know, did it intentionally.” 2/18/12 Tr. 224.
Undisputed evidence showed that Mr. Huguely was extraordinarily intoxicated on the night
in question and went to Ms. Love’s apartment to talk only after his teammate Chris Clements
refused to socialize because he was working. 2/15/12 Tr. 102-03. The lay and forensic evidence
overwhelmingly supported Mr. Huguely’s explanation that he and Ms. Love briefly wrestled on
the floor but that he never applied a degree of force likely to cause death or great bodily harm.
There were no dimples, dents, or marks on the wall. The furniture and Ms. Love’s personal effects
were in order. Anna Lehmann, who lived downstairs and heard Mr. Huguely’s footsteps on the
stairs and a single crash near the door, heard no other hitting or banging sounds. Ms. Love had no
1
The Commonwealth had initially charged Mr. Huguely with first-degree premeditated
murder but abandoned that theory in closing after no evidence at trial supported it. 2/18/12 Tr.
186-88.
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injuries to her left side, no fractures, and no grab marks. And Mr. Huguely had no blood on his
person or his clothes. Ex.152; Ex.143. Mr. Huguely also reacted with genuine shock, disbelief, and
horror when the police (who initially told him they were investigating an assault) told him that Ms.
Love had died. In short, there was abundant evidence that Mr. Huguely never intended to commit
a wrongful act against Ms. Love—who he called his “best friend” and with whom he was seen
holding hands just 24 hours earlier.
In rebuttal, the prosecution argued incorrectly that there was no intent requirement for
second-degree murder, and the defense asked for permission to respond on that issue. 2/18/12 Tr.
261-65. The Court denied the motion, but took the unusual step of directing the jurors back to the
malice instruction and re-reading part of it to them. 2/18/12 Tr. 264-65. The malice instruction
(instruction 21) stated in relevant part:
Malice is that state of mind which results in the intentional doing of a wrongful act
to another, without legal excuse or justification, at a time when the mind of the actor
is under the control of reason. Malice may result from any unlawful or unjustifiable
motive including anger, hatred or revenge. Malice may be inferred from any
deliberate, willful, and cruel act against another, however sudden.
The jury clearly continued to struggle with the mens rea element during its deliberations,
and requested additional clarification about the what the phrase “under the control of reason”
meant in the malice instruction. 2/22/12 Tr. 22-24. The jury also sent a note to the judge stating
that instruction 23 (degrees of homicide) appeared to contradict instructions 14 (indirect causation)
and 15 (direct causation). The Court asked the jury to clarify its question, but the jury never did.
2/22/12 Tr. 25-31, 34-36.
2. Cause of Death/Reperfusion
Another central issue in the trial was the cause of Ms. Love’s death—namely, whether she
died due to the altercation with Mr. Huguely or due to another cause. The prosecution’s theory
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was that Ms. Love died of injuries related to blunt force trauma to the head because bleeding was
found in her brain. 2/8/12 Tr. 18-19. But bleeding in the brain can also be caused by CPR through
a process known as “reperfusion.” When blood flow is restored after the heart has stopped,
bleeding in the brain can result even if the person has minimal or no external injuries and suffered
no direct brain trauma. That is precisely what the defense argued here: that any bleeding in Ms.
Love’s brain was caused by the 25 minutes of forceful CPR performed by the paramedics who
sought to resuscitate her.
The defense’s theory of the cause of death was that Ms. Love likely died from positional
asphyxia (accidental smothering) because she was heavily intoxicated and sleeping face-down on
a wet pillow. 2/8/12 Tr. 57-58. The defense presented substantial evidence in support of that
theory. For example, it proffered testimony from a toxicologist who opined that Ms. Love was
intoxicated and thus both her judgment and psychomotor control would have been impaired.
2/15/12 Tr. 185-86. The defense also presented testimony from a neuropathologist (Dr. Leestma),
who testified that Ms. Love’s external injuries were not severe enough to cause a fatal brain injury.
2/15/12 Tr. 259, 270-73. Dr. Leestma further opined that any changes to her brain were likely
caused by a lack of blood flow or oxygen resulting from the position of her body. Id. The defense
explained the bleeding in Ms. Love’s brain by introducing evidence about reperfusion—i.e., that
CPR pushes blood back into the brain’s capillaries, which can bleed if they have been without
blood for a few minutes. 2/8/12 Tr. 48, 59-60; 2/15/12 Tr. 260-69.
The prosecution sought to show that Ms. Love died of a lethal brain injury caused by blunt
force trauma. But the prosecution’s own witnesses acknowledged that her injuries could have been
caused by a single-impact event such as a fall from the bed rather than the application of intentional
force by Mr. Huguely. See 2/13/12 Tr. 192, 218-21; 2/14/12 Tr. 41-52. The prosecution’s multiple
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experts also opined that reperfusion could not have caused the bleeding in Ms. Love’s brain. See
2/14/12 Tr. 68-83, 100-05, 156-58, 163-76; 2/9/12 Tr. 72-92; 2/10/12 Tr. 40-41, 48-49.
Because of the prosecution’s substantial expert testimony attempting to disprove the
defense’s reperfusion theory, compelling rebuttal evidence on this point was critical for the
defense. Indeed, the defense promised during its opening argument that it would show that the
bleeding found in Ms. Love’s brain resulted not from blunt force injury, but from reperfusion
caused by CPR. 2/8/12 Tr. 59-60.
The defense had planned to present much of this critical reperfusion testimony through a
clinical neurosurgeon, Dr. Uscinski. But trial counsel violated the rule on witnesses—which
prohibits witnesses from hearing the testimony of other witnesses—by emailing Dr. Uscinski (and
another defense expert, Dr. Daniel) about the substance of the prosecution experts’ testimony.
2/18/12 Tr. 4-5. Trial counsel learned of this violation when Dr. Daniel (who was a lawyer as well
as a physician) brought it to their attention that they should not be communicating about court
proceedings with witnesses who planned to testify.
When this violation was revealed, the prosecution objected to Dr. Uscinski's testimony on
this basis, and the trial court precluded Dr. Uscinski from testifying about a number of critical
issues, including reperfusion, reperfusion injuries caused by CPR, and the concept that cerebral-
vascular damage makes people susceptible to reperfusion injury. 2/18/12 Tr. 44-45. The Court
stated, “[t]his is very troublesome and I wouldn’t have expected this from counsel and I’m
incredibly disappointed with it, but this is an incredibly important issue for the parties and I’m not
going to bar him from testimony generally, but I’m not going to let him testify about
reperfusion ....” Id. (emphasis added).
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The defense called Dr. Uscinski as their last witness, who testified that Ms. Love’s external
injuries were inconsistent with a traumatic brain injury. 2/18/12 Tr. 63-71. But, because of trial
counsel’s violation of the rule on witnesses, Dr. Uscinski could not offer testimony in support of
the defense’s reperfusion theory. Notably—and inexplicably—the defense then argued in closing
that Dr. Leestma “holds the opinion that the blood, and this is a different [sic] than Dr. Uscinski
holds, but that the blood in the lower brain/upper brain was the result of the reperfusion.” 2/18/12
Tr. 226 (emphasis added). Of course, Dr. Uscinski’s opinion did not actually contradict Dr.
Leestma’s theory. Rather, Dr. Uscinski agreed with Dr. Leestma but was barred from presenting
his testimony in this manner because of trial counsel’s rule violation.
C. Verdict
On February 22, 2012, the jury returned a verdict finding Mr. Huguely guilty of second-
degree murder and grand larceny, and not guilty of robbery, burglary, statutory burglary and first-
degree felony murder. R.622-23. The jury recommended a sentence of 25 years imprisonment on
the second-degree murder count and one year imprisonment on the grand larceny count. R.623-
24.2
On May 25, 2012, Mr. Huguely filed a motion to set aside the verdict and for a new trial.
R.632-703. The circuit court denied that motion on August 13, 2012. R.1364. On June 5, 2012,
Mr. Huguely also filed a supplemental motion for a new trial based on violations of the Brady
doctrine, R.705, R.1376, which the court denied on August 29, 2012, R.1463, R.1365. On August
30, 2012, the court sentenced Mr. Huguely to 23 years imprisonment on the second-degree murder
2
Mr. Huguely did not appeal the grand larceny conviction and does not challenge that
conviction here.
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charge and one year imprisonment on the grand larceny count, with the sentences to run
concurrently. R.1474-78.
D. Direct Appeal
Mr. Huguely filed a timely notice of appeal on September 25, 2012. R. 1479. In his petition
for appeal, Mr. Huguely raised several assignments of error, including (1) violation of the Sixth
Amendment when the circuit court forced him to proceed with trial notwithstanding the illness of
one of his trial counsel; (2) violations of the Sixth Amendment for refusing to sequester the jury,
refusing to allow relevant questions about potential juror bias, and refusing to strike jurors who
could not remain impartial; (3) violations of the Brady doctrine when the Commonwealth failed
to disclose information about the Loves’ planned civil suit; (4) instructional errors; and (5)
insufficiency of the evidence.
On April 23, 2013, the Court of Appeals granted in part and denied in part Mr. Huguely’s
petition for appeal. Per Curiam Decision, Huguely v. Commonwealth, CR11-102-1 (Va. Ct. App.
April 23, 2013). Two months later, the Court of Appeals granted additional grounds for appeal.
See Decision of Judges Elder, Petty, and McCullough, Huguely v. Commonwealth, CR11-102-1
(Va. Ct. App. June 14, 2013). On March 4, 2014, the Court of Appeals affirmed the conviction,
Huguely v. Commonwealth, 754 S.E.2d 557 (Va.App. 2014), and then denied rehearing en banc.
Huguely v. Commonwealth, No. 1697-12-2 (Va.App. March 27, 2014).
The Virginia Supreme Court subsequently denied Mr. Huguely’s petition for appeal and
petition for rehearing. Huguely v. Commonwealth, No. 140678 (Va. Nov. 19, 2014 and Jan. 15,
2015). On October 5, 2015, the U.S. Supreme Court denied Mr. Huguely’s petition for writ of
certiorari. See Huguely v. Virginia, 136 S. Ct. 119 (2015).
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E. State Post-Conviction Proceedings
On January 19, 2016, Mr. Huguely filed a timely petition for a writ of habeas corpus in the
Charlottesville Circuit Court. See Huguely v. Warden, Cir. Crt. File No. CL 16-23. On May 5,
2016, Mr. Huguely filed his First Amended Petition for a Writ of Habeas Corpus. The state habeas
petition raised a number of grounds for relief, including, inter alia, violations of the Sixth and
Fourteenth Amendments in light of the jury’s consultation of a dictionary during deliberations and
ineffective assistance of counsel. On May 16, 2016, the Attorney General filed a Motion to
Dismiss, to which Mr. Huguely replied on August 1, 2016.
On June 28, 2018, the court set a two-day evidentiary hearing, for August 17 and October 3,
2018. Mr. Huguely and the Attorney General both subsequently subpoenaed witnesses for the
August 17, 2018 hearing. On August 10, 2018, the Circuit Court issued a letter opinion rejecting
all of Mr. Huguely’s claims and dismissing his petition without a hearing. On August 17, 2018,
the court entered a final order dismissing the habeas petition.
On August 23, 2018, Mr. Huguely filed a petition for appeal in the Supreme Court of
Virginia, Huguely v. Woodson, No. 181357. That petition was denied on September 3, 2019.
STANDARD OF REVIEW
A federal habeas petition under §2254 should be “granted with respect to any claim that
was adjudicated on the merits in State court proceedings” when the state court’s decision
(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).
A state court’s decision is “contrary to” clearly established federal law if it is “substantially
different” from the relevant Supreme Court precedent. Wolfe v. Johnson, 565 F.3d 140, 159 (4th
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Cir. 2009). And a state court’s decision is an “unreasonable application of” clearly established
federal law if its analysis of the relevant issues is “objectively unreasonable.” Id.; see also Williams
v. Taylor, 529 U.S. 362, 405-06 (2000) (decision is an unreasonable application of federal law if
the state court “correctly identifies the governing legal rule but applies it unreasonably to the facts
of a particular prisoner’s case”). Alternatively, a state prisoner may be granted relief pursuant to
§2254(d)(2) if the state court’s decision was based on a factual determination “sufficiently against
the weight of the evidence that it is objectively unreasonable.” Williams v. Stirling, 914 F.3d 302,
311-12 (4th Cir. 2019) (quoting Winston v. Kelly, 592 F.3d 535, 554 (4th Cir. 2010)). Although a
“federal court’s collateral review of a state-court decision must be consistent with the respect due
state courts in our federal system,” the Supreme Court has stressed that “deference does not imply
abandonment or abdication of judicial review” and “[d]eference does not by definition preclude
relief.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Moreover, any deference to state court decisions “does not apply if the petitioner properly
exhausted his claim by raising it in the state court, but the state court did not adjudicate that
particular claim on the merits.” Carty v. Thaler, 583 F.3d 244, 253 (5th Cir. 2009). The federal
court will instead “review such claims de novo” without applying any deference. Id. And “[a]
claim is not ‘adjudicated on the merits’ when the state court makes its decision ‘on a materially
incomplete record.’” Gordon v. Braxton, 780 F.3d 196, 202 (4th Cir. 2015). “A record may be
materially incomplete ‘when a state court unreasonably refuses to permit further development of
the facts of a claim.’” Id. In such a case, the federal court reviews the claim de novo. Id.
At a minimum, Mr. Huguely is entitled to an evidentiary hearing on several of his claims,
including whether the jury improperly used a dictionary to define the critical legal term in the case;
what prejudice Mr. Huguely incurred as a result of the exclusion of two key trial witnesses due to
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ineffective assistance by Mr. Huguely’s trial counsel; and the circumstances surrounding the Love
family’s undisclosed pending civil suit. “In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could enable an applicant to prove the petition’s
factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Schriro v.
Landrigan, 550 U.S. 465, 474, (2007).
CLAIMS FOR RELIEF
I. Mr. Huguely’s Due Process and Sixth Amendment Rights Were Violated When the
Jury Consulted a Dictionary Regarding the Meaning of Malice.
A. The right of a defendant to “a fair trial by a panel of impartial, ‘indifferent’ jurors”
is “priceless.” Irvin v. Dowd, 366 U.S. 717, 721–22 (1961). That is because the “guarantee of an
impartial jury … is vital to the fair administration of justice.” Dietz v. Bouldin, 136 S. Ct. 1885,
1893 (2016). A critical part of that impartiality is that the jury must not be influenced by anything
not presented in the courtroom in making its decision. Irvin, 366 U.S. at 722 (jury verdict “must
be based upon the evidence developed at the trial”); Turner v. State of La., 379 U.S. 466, 472–73
(1965) (“In the constitutional sense, trial by jury in a criminal case necessarily implies at the very
least that the ‘evidence developed’ against a defendant shall come from the witness stand in a
public courtroom where there is full judicial protection of the defendant’s right of confrontation,
of cross-examination, and of counsel.”).
In its landmark decision Remmer v. United States, the Supreme Court set forth a clear
standard for extra-judicial juror influence: “In a criminal case, any private communication, contact,
or tampering directly or indirectly, with a juror during a trial about the matter pending before the
jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known
rules of the court and the instructions and directions of the court made during the trial, with full
knowledge of the parties.” 347 U.S. 227, 229 (1954) (emphasis added). A defendant must be tried
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before “a jury capable and willing to decide the case solely on the evidence before it, and a trial
judge ever watchful to prevent prejudicial occurrences and to determine the effect of such
occurrences when they happen.” Smith v. Phillips, 455 U.S. 209, 217 (1982). Anything less is a
violation of a defendant’s constitutional rights under the Sixth Amendment and the Due Process
Clause.
As Remmer explains, a defendant’s constitutional rights are clearly violated when a jury
looks to a source other than the judge for its understanding of the law. See Remmer, 347 U.S. at
229. This includes the use of dictionaries, as several courts have recognized. See, e.g., United
States v. Lawson, 677 F.3d 629, 645 (4th Cir. 2012) (“[T]his presumption … is applicable when a
juror uses a dictionary or similar resource to research the definition of a material word or term at
issue in a pending case.”); McNeill v. Polk, 476 F.3d 206, 226 (4th Cir. 2007) (use of dictionary
an impermissible external influence); United States v. Duncan, 598 F.2d 839, 866 (4th Cir. 1979)
(same); Mayhue v. St. Francis Hosp. of Wichita, Inc., 969 F.2d 919, 922 (10th Cir. 1992) (“A
rebuttable presumption of prejudice arises whenever a jury is exposed to external information in
contravention of a district court’s instructions.”).
B. As noted above, the existence or absence of malice was a central issue at trial—it
was a hotly contested issue in the parties’ arguments to the jury and was the difference between a
sentencing range of 1 to 10 years in prison (for manslaughter) or 5 to 40 years in prison (for second-
degree murder). Indeed, the jury forewoman later stated in a press interview that “the difference
between second-degree murder and voluntary manslaughter” was one of the “big argument points
in the jury room.” Cathy Harding, Inside the Jury that Convicted UVA Student George Huguely of
Murder, Slate (Feb. 23, 2012), available at https://slate.com/news-and-politics/2012/02/george-
huguely-convicted-of-second-degree-murder-in-yeardley-love-case-how-the-jury-decided.html.
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Malice is “an essential element of murder and is what distinguishes it from the crime of
manslaughter.” Canipe v. Commonwealth, 25 Va. App. 629, 642 (1997). To elevate a homicide to
second-degree murder, “the defendant must be shown to have willfully or purposefully, rather than
negligently, embarked upon a course of wrongful conduct likely to cause death or great bodily
harm.” Essex, 322 S.E. 2d at 220; see also Groot, Criminal Offenses §6 (second-degree murder
requires “a mental state of extreme recklessness—proceeding with conduct in the face of a known,
very significant risk that death will occur”). That distinction is “close but crucial” and must be
enforced with vigilance. Essex, 322 S.E. 2d at 222; see also Marina v. Vasquez, 812 F.2d 499, 506
(9th Cir. 1987) (observing that the “concept of malice goes to the very heart of the deliberative
process of a jury in a murder case.”).
The malice instruction given at trial (instruction 21) stated in relevant part:
Malice is that state of mind which results in the intentional doing of a wrongful act
to another, without legal excuse or justification, at a time when the mind of the actor
is under the control of reason. Malice may result from any unlawful or unjustifiable
motive including anger, hatred or revenge. Malice may be inferred from any
deliberate, willful, and cruel act against another, however sudden.
During its deliberations, the jury was clearly confused about what malice entailed.
Struggling with the meaning of malice, the jury sent a note to the trial judge requesting clarification
about what the instruction meant when it said that the defendant was “under the control of reason.”
2/22/12 Tr. 22-24. The trial judge responded by re-reading part of the instruction and merely telling
the jury to apply the “ordinary and common usage in everyday life and parlance.” 2/22/12 Tr. 22-
23. The jury was also struggling with other aspects of the instructions. It sent another note stating
that instruction 23 (degrees of homicide) appeared to contradict instructions 14 (indirect causation)
and 15 (direct causation). The court asked the jury to clarify its question, but the jury never did.
Tr. 2/22/12 at 25-31, 34-36.
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In an effort to clear up this confusion, at least some of the jurors appear to have taken the
extraordinarily inappropriate step of consulting a dictionary. Mr. Huguely provided the state
habeas court with an affidavit from Juror 42 stating that the jury consulted a dictionary to define
malice. See Sealed Appendix to First Amended Petition for a Writ of Habeas Corpus (May 5,
2016), Juror 42 Decl. ¶7.3 This juror unequivocally stated that the jury used a dictionary during its
deliberations, and “[t]his helped in deciding if there was malice and whether it had been shown in
these charges.” Id. (emphasis added). Mr. Huguely also provided the state habeas court with
evidence that despite exhaustive efforts, he was unable to interview at least eight jurors, either
because they declined to talk or did not answer their door or return a call. Two other jurors who
initially spoke with the defense declined follow-up interviews regarding the dictionary issue. See
Reply to the Warden’s Motion to Dismiss, Ex. B (Sealed Declaration of Investigator Samuel
Dworkin).
The Warden provided the state habeas court with affidavits from eleven jurors, including
an affidavit from Juror 42, who stated that “the jury had an issue with the definition of the word
‘malice.’ The jury dealt with the issue by getting a dictionary.” One other juror stated that a
dictionary “might have been provided,” seven jurors stated that they did not remember, one juror
stated “I am 100% sure nobody brought a dictionary into the jury deliberations and 99% sure if
the jury ever had a dictionary it was provided by the court,” and only one juror stated that a
dictionary was not used. See Letter Ruling on Motion to Dismiss (Aug. 10, 2018) at 3-4 (“Letter
Ruling”).
3
Juror 42’s Declaration and Reply Declaration that were filed in the state habeas
proceedings are reproduced in the Sealed Appendix to this petition.
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Mr. Huguely also submitted a reply declaration from Juror 42 addressing what appeared to
be inconsistencies between her first declaration and the one she submitted to the Warden. See
Reply to Warden’s Motion to Dismiss, Ex. A (Sealed) at 1-2. The reply declaration stated
unequivocally that “[i]t was a dictionary” the jury used during deliberations. Juror 42 further stated
that when she signed the Warden’s declaration, she was “in a rush,” did not read it “thoroughly,”
and “did not review the statement line by line like I had done with the defense’s statement.”
In short, both Mr. Huguely’s evidence and the Warden’s own evidence showed that at least
one juror had a clear recollection of using a dictionary to interpret the meaning of “malice”—a
critical concept in the jury instructions and the difference between manslaughter and second-
degree murder. Under the long line of Supreme Court cases cited above, this evidence was easily
sufficient to show that Mr. Huguely’s constitutional rights were violated when the jury looked to
extra-judicial sources as part of its decisionmaking process. See Remmer, 347 U.S. at 229. This
injection of extraneous, extra-judicial influences into the jury room violated clearly established
federal law and is sufficient by itself to justify granting Mr. Huguely relief under §2254.
C. At a minimum, the credible evidence proffered by Mr. Huguely—which came
directly from one of the jurors who voted to convict him—should have resulted in an evidentiary
hearing to conclusively determine whether the jury’s deliberations were tainted by extraneous
sources. “In deciding whether to grant an evidentiary hearing, a federal court must consider
whether such a hearing could enable an applicant to prove the petition’s factual allegations, which,
if true, would entitle the applicant to federal habeas relief.” Schriro, 550 U.S. at 474; see also
Townsend v. Sain, 372 U.S. 293, 313 (1963). Here, if Mr. Huguely were able to conclusively prove
that the jury had consulted a dictionary, this unquestionably would have entitled him to habeas
relief. Moreover, because the state habeas court refused to hold a hearing on this issue, Mr.
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Huguely “did not receive a full and fair evidentiary hearing in a state court, either at the time of
trial or in a collateral proceeding.” Rules Governing Section 2254 Cases in the United States
District Courts, Rule 8, Advisory Committee notes (citing Townsend).
The state habeas court initially scheduled an evidentiary hearing on this claim, but then
abruptly cancelled it and dismissed this claim without a hearing. The court’s dismissal of this claim
was contrary to clearly established federal law as set forth in Remmer and rested on an
unreasonable determination of the facts. The habeas court first stated that its “primary reason” for
dismissal was that “I cannot find by a preponderance of the evidence that the incident occurred at
all.” Letter Ruling at 2-4. But, as noted, Juror 42 unambiguously stated in affidavits provided to
both Mr. Huguely and the Warden that the jury did consult a dictionary.
The state habeas court seized on what it believed to be inconsistencies in Juror 42’s
testimony regarding whether the jury had consulted a dictionary or instead a “single sheet of
paper.” Id. But that finding rested on an unreasonable determination of the facts given that the state
habeas court entirely ignored the reply declaration that Juror 42 provided to the defense. In that
declaration—which the state habeas court did not even acknowledge—Juror 42 stated that the
Warden had not sufficiently reviewed the affidavit with her and that she did not carefully go
through it line by line. She further stated, unequivocally, that: “It was not a single sheet of paper.
It was multiple pages. It was a dictionary.” Reply to Warden’s Motion to Dismiss, Ex. A (Sealed)
at 1-2. Juror 42 further attested in no uncertain terms that “[a] juror read the definition of malice
out loud from the dictionary.” Id.
The state habeas court also relied heavily on the fact that nine deputies who claimed to
serve as bailiffs during Mr. Huguely’s trial provided affidavits stating that they did not provide a
dictionary to jurors. Letter Ruling at 4. But those affidavits hardly deserved the weight the habeas
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court attached to them. None of the deputies identified the bailiffs who were actually present during
Mr. Huguely’s trial, and neither the affidavits nor the Warden claimed that all of the bailiffs who
worked at the trial had provided affidavits. Furthermore, even if the deputies did not provide a
dictionary, a different court employee—such as a law clerk, courtroom clerk, or clerk’s office
employee—could have brought the dictionary to the jurors. (Juror 42 was unsure who brought the
dictionary to the jury because she did not see the person. Reply to Warden's Motion to Dismiss,
Ex. A (Sealed) at 2-3.)
In sum, Mr. Huguely clearly made a sufficient factual showing, supported by multiple
affidavits from one of the jurors who voted to convict him attesting that a dictionary was brought
into the jury room and that the dictionary definition of malice was read out loud to supplement the
jury instructions. “[A]ny private communication, contact, or tampering, directly or indirectly, with
a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed
presumptively prejudicial ....” Remmer, 347 U.S. at 229. A credible allegation of external influence
on the jury establishes “not only a presumption of prejudice, but also a defendant’s entitlement to
an evidentiary hearing ….” Barnes v. Joyner, 751 F.3d 229, 242 (4th Cir. 2014) (citing Remmer)
(emphasis added).
The Fourth Circuit recently explained when a hearing is necessary: a “defendant must first
establish both that an unauthorized contact was made and that it was of such a character as to
reasonably draw into question the integrity of the verdict.” Barnes, 751 F.3d at 244(citation
omitted). In other words, the “Remmer presumption and hearing requirement are triggered after
the party attacking the verdict satisfies the ‘minimal standard’ of showing that ‘extrajudicial
communications or contacts [between a juror and a third party] were more than innocuous
interventions.’” Id. at 245.
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Here, Mr. Huguely has offered evidence of extrajudicial communications or contacts that
were far more than “innocuous interventions.” Given the centrality of malice to this case, the jury’s
use of a dictionary rather than the judge’s instructions to define malice may well have resulted in
a case-dispositive mistake in the jury’s verdict. The state habeas court’s dismissal of this claim
rested on a decision that was contrary to or an unreasonable application of the Remmer doctrine
and an unreasonable determination of the facts in light of Juror 42’s own declarations. This Court
should either grant Mr. Huguely relief under §2254 or, at a minimum, hold an evidentiary hearing
on the issue of whether and how the jury’s deliberations were tainted by extraneous influences.
II. Mr. Huguely’s Sixth Amendment Rights Were Violated When He Received
Ineffective Assistance of Counsel At Trial.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth the standard
for a claim of constitutionally ineffective assistance of counsel. Under Strickland, a defendant must
show that (1) trial counsel’s performance was deficient; and (2) the deficient performance
prejudiced the defense. Id. at 687. “The Strickland test provides sufficient guidance for resolving
virtually all ineffective-assistance-of-counsel claims.” Williams, 529 U.S. at 391.
Trial counsel are constitutionally deficient if their actions “seriously compromis[e] their
opportunity to respond to [the prosecution’s] case.” Rompilla v. Beard, 545 U.S. 374, 385 (2005).
Trial counsel’s failure to develop critical evidence has also been found to constitute deficient
performance. See id. at 390-93; Kimmelman v. Morrison, 477 U.S. 365, 384-85 (1986); Williams,
529 U.S. at 395; Wiggins v. Smith, 539 U.S. 510, 524–25 (2003). As for prejudice, when “[a]
specified attorney error results in the omission of certain evidence,” the defendant “must show that
there is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. That reasonable probability
means a showing “sufficient to undermine confidence in the outcome.” Id. The Supreme Court has
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emphasized that “[t]he result of a proceeding can be rendered unreliable, and hence the proceeding
itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to
have determined the outcome.” Id.
Here, Mr. Huguely’s trial counsel performed deficiently and severely prejudiced his
defense in at least two related ways: by violating the rule on witnesses, thereby resulting in the
exclusion of critical expert evidence, and by failing to call another key expert witness whose
testimony was needed to rebut the Commonwealth’s expert medical evidence.
A. Mr. Huguely’s Sixth Amendment Right to Effective Assistance of Counsel Was

Violated When Trial Counsel Violated the Rule on Witnesses, Thereby Causing
Crucial Expert Testimony to be Excluded
Mr. Huguely’s trial counsel provided constitutionally inadequate representation when they
violated the rule on witnesses, thereby resulting in the exclusion of vital expert testimony from Dr.
Uscinski on reperfusion. See Rompilla, 545 U.S. at 385 (trial counsel cannot “seriously
compromis[e] their opportunity to respond to [the prosecution’s] case”); Kimmelman, 477 U.S. at
374. As noted above, reperfusion was a critical issue at trial and was highly relevant to the cause
of Ms. Love’s death: the defense’s theory was that Ms. Love died from positional asphyxia and
that any bleeding in her brain was caused by reperfusion from CPR rather than blunt force trauma.
2/8/12 Tr. 48, 57-60. Unsurprisingly, the prosecution offered expert testimony of its own—through
at least five different experts—to rebut the defense’s reperfusion theory. See 2/14/12 Tr. 68-83,
100-05, 156-58, 163-76; 2/9/12 Tr. 72-92; 2/10/12 Tr. 40-41, 48-49.
But trial counsel’s deficient performance prevented Mr. Huguely from fully responding to
the prosecution’s reperfusion evidence. Trial counsel violated the rule on witnesses—which
prohibits witnesses from hearing the testimony of other witnesses—by emailing defense expert
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Dr. Uscinski about the substance of the prosecution experts’ testimony. 2/18/12 Tr. 4.4 As a result,
the trial court refused to allow Dr. Uscinski to offer any testimony about reperfusion even though
“this is an incredibly important issue for the parties.” 2/18/12 Tr. 44-45 (emphasis added). The
court emphasized that “[t]his is very troublesome and I wouldn’t have expected this from counsel
and I’m incredibly disappointed with it.” Id. The defense ultimately presented rebuttal testimony
from Dr. Uscinski but not about reperfusion. 2/18/12 Tr. 63-71. And then, in closing, Mr.
Huguely’s attorneys inexplicably suggested that Dr. Uscinski disagreed with the other defense
witnesses about reperfusion. 2/18/12 Tr. 226.
The state habeas court expressly found that trial counsel’s violation of the rule on witnesses
“was deficient performance.” Letter Ruling at 13. The court found that prejudice was a “close
case” but ultimately held that Mr. Huguely was not prejudiced because Dr. Leestma had also
testified about reperfusion. Id. at 13-14. The habeas court found that Dr. Uscinski’s testimony was
not meant to focus on reperfusion and “combined with Dr. Leestma’s ... gave the defense all that
it needed to argue their theory.” Id. at 13.
That conclusion—which was based on the self-serving and self-interested affidavit of trial
counsel5—rested on a decision that was contrary to and an unreasonable application of Strickland
and an unreasonable determination of the facts. Although Dr. Uscinski would have agreed with
4
The key portions of the trial transcript regarding the exclusion of Dr. Uscinski’s testimony
are reproduced in the Public Appendix to this petition. The exhibits introduced at trial during the
hearing on whether to exclude Dr. Uscinski’s testimony are reproduced in the Sealed Appendix to
this petition.
5
Trial counsel alerted their insurance carrier regarding their violation of the rule on
witnesses, and then cooperated ex parte with counsel for the Warden over Mr. Huguely’s
objections. Because Mr. Huguely was deprived of an evidentiary hearing, he was never able to
examine trial counsel about their post hoc alleged trial strategy.
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Dr. Leestma’s testimony that Ms. Love’s brain injuries were caused by reperfusion, they would
have approached the issue from different areas of expertise. Medical testimony was the crux of
this case with respect to the cause of Ms. Love’s death, and both sides recognized the need to
engage and present experts from different backgrounds. The prosecution accomplished this by
calling Dr. Brady, an expert in CPR and emergency medical services, to counter the defense’s
anticipated reperfusion theory. The prosecution also called Dr. Gormley (medical examiner), Dr.
Fuller (neuropathologist), Dr. Lopes (neuropathologist), and Dr. Virmani (cardiologist) to attempt
to rebut the defense’s theory.
Yet, due to trial counsel’s deficient performance, the defense was barred from calling
anyone other than their neuropathologist (Dr. Leestma) on the issue of reperfusion. As trial
counsel’s affidavit notes, however, they had retained “well-respected practicing neurosurgeon”
Dr. Uscinski specifically to counter the prosecution’s theory of Ms. Love’s brain injuries. See
Warden’s Motion to Dismiss, Ex. A, Affidavit of Quagliana at ¶11.
Moreover, the defense offered only very cursory testimony on reperfusion through Dr.
Leestma, since they were intending to develop these issues more comprehensively through Dr.
Uscinski. 2/15/12 Tr. 260-69. Indeed, the very emails that violated the rule on witnesses also show
that the defense intended to develop this evidence through Dr. Uscinski. For example, Dr.
Uscinski’s email made clear that he was prepared to respond to Dr. Lopes’s contention that
reperfusion injuries tended to be present only in the “watershed areas” of the brain. Exhibit C from
Uscinski Hearing. Although the state habeas court credited trial counsel’s self-serving assertion
that they were not relying on Dr. Uscinski to prove their reperfusion theory, see Letter Ruling at
13, trial counsel’s contemporaneous emails belie that assertion. See Exhibits A-E from Uscinski
Hearing. As trial counsel herself emphasized in those emails, “the jury is waiting to hear from
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someone with the right expertise that CPR creates enough blood pressure in the body to sufficiently
perfuse the brain with blood so as to potentially cause injury.” Exhibit A from Uscinski Hearing
(emphasis added).
The state habeas court also unreasonably ignored the critical fact that trial counsel promised
to present the jury with the reperfusion defense, and then, after getting Dr. Uscinski’s testimony
excluded, inexplicably told the jury that Dr. Uscinski disagreed with Dr. Leestma on this issue.
2/8/12 Tr. 59-60; 2/18/12 Tr. 226. The state habeas court characterized this claim as being about
the failure to present “corroboration” or “[a]dditional cumulative evidence[.]” Letter Ruling at 14.
This is not, however, a case where one expert was excluded but another expert offered the same,
uncontradicted testimony on reperfusion. Rather, this is a case where one defense expert (Leestma)
testified to reperfusion, one defense expert with very different qualifications (Uscinski) testified
without mentioning reperfusion, and then trial counsel informed the jury that the two experts
disagreed on this issue. This left the jury to conclude that Dr. Uscinski was silent on reperfusion
because he thought Dr. Leestma was wrong, thereby undermining the defense’s entire argument
on this critical issue.
The state habeas court also acted unreasonably in finding that Mr. Huguely “proffered no
specific testimony, by affidavit or otherwise, as to what exactly Dr. Uscinski would have said
about reperfusion ....” Letter Ruling at 14. First, Mr. Huguely provided the state habeas court with
trial counsel’s original proffer, which made clear that Dr. Uscinski would have testified to the
phenomenon of reperfusion injury in the context of CPR. 2/22/2012 Tr. 13-16; see also Exhibit E
from Uscinski Hearing (Proffer as to Excluded Testimony). Second, Mr. Huguely provided an
email from Dr. Uscinski—responding to trial counsel’s plea for testimony addressing the specific
area of bleeding in Ms. Love’s brain—with a detailed explanation of how “reperfusion in the
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‘watershed areas’ may lead to bleeding ….” Exhibit C from Uscinski Hearing. Moreover, habeas
counsel was prepared to present detailed testimony from Dr. Uscinski himself at the evidentiary
hearing before the court suddenly cancelled it on the unreasonable ground that a hearing would
not “add anything on this point beyond what has been presented.” Letter Ruling at 15.
Finally, the state habeas court found no ineffective assistance in light of “the overall
performance of counsel.” Letter Ruling at 14. But the ineffective assistance inquiry focuses on the
specific actions or incidents at issue, not the attorney’s overall performance. “[T]he right to
effective assistance of counsel ... may in a particular case be violated by even an isolated error of
counsel if that error is sufficiently egregious and prejudicial.” Murray v. Carrier, 477 U.S. 478,
496 (1986); see also Harrington v. Richter, 562 U.S. 86, 111 (2011) (quoting Murray for the
proposition that “in some instances ‘even an isolated error’ can support an ineffective-assistance
claim”); Tice v. Johnson, 647 F.3d 87, 106 (4th Cir. 2011) (holding that counsel’s performance
was deficient based on a single error, and recognizing that counsel’s performance “was otherwise
laudably effective and competent”).
For all of these reasons, the state habeas court’s dismissal of this claim rested on a decision
that was contrary to and an unreasonable application of clearly established federal law regarding
the right to effective assistance of counsel and an unreasonable determination of the facts in light
of the evidence in the record. Trial counsel’s deficient performance that led to the exclusion of
critical expert testimony was especially harmful to Mr. Huguely’s defense given that this was a
“close case,” in which “the failure of defense counsel to present certain evidence or effectively
challenge the state’s evidence on important issues can be particularly prejudicial.” Dugas v.
Coplan, 428 F.3d 317, 335-36 (1st Cir. 2005); see also Strickland, 466 U.S. at 696 (“[A] verdict
or conclusion only weakly supported by the record is more likely to have been affected by errors
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than one with overwhelming record support.”). Trial counsel’s actions deprived Mr. Huguely of
the effective assistance of counsel and should be sufficient grounds to grant this petition or, at a
minimum, hold an evidentiary hearing to conclusively determine the prejudice Mr. Huguely
suffered as a result of trial counsel’s concededly deficient performance.
B. Mr. Huguely’s Sixth Amendment Right to Effective Assistance of Counsel Was

Violated When His Counsel Failed to Call Crucial Expert John S. Daniel, III, M.D.
Trial counsel also performed deficiently by failing to call Dr. Jack Daniel to testify as an
expert regarding the cause of Ms. Love’s death, thereby resulting in significant additional prejudice
to Mr. Huguely’s defense. See, e.g., Williams v. Martin, 618 F.2d 1021, 1025-26 (4th Cir. 1980)
(recognizing unique need for expert testimony where cause of death is “an essential element of the
state’s case”).
The defense retained Dr. Daniel, a highly respected forensic pathologist and attorney, to
testify about the cause of death. Dr. Daniel conducted a forensic analysis, prepared to testify in the
case, traveled to Charlottesville for the trial, and remained outside the courtroom along with the
other testifying experts—but then was not called as a witness. This was a surprise to Dr. Daniel,
because trial counsel repeatedly informed him he would testify, probably as the last medical expert
to give “an overview of all the forensic medical information to assist in tying the evidence together
into a single coherent theory.” See Appendix to Petition for a Writ of Habeas Corpus, Huguely v.
Woodson, No. CL16-23, Declaration of John S. Daniel, III, at 7.6 Specifically, Dr. Daniel intended
to testify that Ms. Love died of asphyxia rather than blunt force trauma, that bleeding on her brain
was caused by reperfusion from CPR, and that there were significant problems with the medical
examiner’s analysis. Id. at 4-7.
6
Dr. Daniel’s declaration is reproduced in the Public Appendix to this petition.
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At the outset, it is likely that the reason trial counsel declined to call Dr. Daniel is that he
was also copied on the emails that violated the rule on witnesses, see Exhibits A-D from Uscinski
Hearing, and thus his testimony on reperfusion would have been excluded for the same reason as
Dr. Uscinski’s. But that only underscores the severe prejudice resulting from trial counsel’s
violation of the rule on witnesses, and provides yet another reason to grant Mr. Huguely habeas
relief on that ground.
In all events, the state habeas court acted unreasonably when it dismissed this claim based
largely on trial counsel’s self-serving affidavit. The court concluded that Dr. Daniel’s testimony
would have been cumulative and that trial counsel declined to call Dr. Daniel for “tactic[al]”
reasons. Letter Ruling at 11-12. But Dr. Daniel’s testimony would not have been cumulative; to
the contrary, he would have provided critical missing ingredients in support of the primary defense
theory, while also supporting the other favorable evidence admitted at trial, particularly, Dr.
Leetsma’s limited testimony on reperfusion. See Daniel Declaration at ¶¶5-16 (discussing
proposed testimony); 12/15/10 Tr. 43-53 (Daniel’s testimony at pretrial hearing regarding cause
of death and in support of the reperfusion theory); 12/15/10 Tr. 6-7 (trial counsel discussing
important testimony that Dr. Daniel planned to offer).
Dr. Daniel was the only forensic pathologist retained by the defense, and he would have
tied together expert testimony specific to the brain with a more holistic view of the cause of death.
For example, Dr. Daniel would have testified that intoxication “is a known risk factor for asphyxial
deaths of various types, and an intoxicated individual may become asphyxiated accidentally when
their face and air passages become buried in a pillow or other bedclothes.” Daniel Declaration at
3. Moreover, Dr. Daniel would have explained the connection between asphyxia and reperfusion,
setting out that lack of oxygen to the brain causes damage to the blood vessels, and those vessels
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then become vulnerable to reperfusion injury when CPR is later administered. Id. at 3-4. And, as
a former medical examiner himself, Dr. Daniel would have been uniquely well situated to respond
to the prosecution’s medical examiner, Dr. Gormley. Id. at 5. For example, Dr. Daniel would have
explained that Dr. Gormley failed to “recognize or acknowledge or consider the significant
mismatch between the catastrophic lethal outcome and the extremely limited volume and
distribution of intracranial bleeding.” Id.
The notion that Dr. Daniel’s testimony was critical to the defense was apparently shared
by the prosecution. At closing, the prosecution highlighted the gaps in the defense’s evidence by
arguing that “[t]here’s no medical evidence supporting the theory that intraparenchymal, petechial
hemorrhages are caused by anything other than trauma.” 2/18/2012 Tr. 179 (emphasis added). But
that, of course, is the precise evidence that counsel could have introduced through Dr. Daniel if
defense counsel had called him—and through Dr. Uscinski if his testimony had not been excluded
due to trial counsel’s rule violations.
Trial counsel’s self-serving assertion (which the state habeas court accepted) that they
failed to present Dr. Daniel’s testimony for “tactic[al]” reasons also does not withstand scrutiny.
Although lawyers frequently make mid-trial strategic decisions regarding the presentation of
evidence, the record shows this is not what happened here. First, before trial, counsel had heard
Dr. Daniel testify about cause of death and reperfusion, and intended to call him as a witness at
trial. They thus made him subject to the rule on witnesses, rather than having him in the courtroom
to consult during dense expert medical testimony. Second, even near the close of the
Commonwealth’s evidence, trial counsel was still proposing to Daniel topics on which they wanted
him to testify. See Exhibits A-D from Uscinski Hearing. Furthermore, virtually every one of the
post hoc reasons proffered by trial counsel to excuse their deficient performance was well-known
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to trial counsel long before trial. Trial counsel’s affidavit asserts that they were concerned about
Dr. Daniel’s cross-examination due to the amount of compensation he had received and
information about his past employment at the medical examiner's office. But trial counsel was
aware of these topics when they made Dr. Daniel subject to the rule on witnesses and when they
continued to email him with specific reference to his future testimony.
In sum, the so-called “strategic decision” the state habeas court “invoke[d] to justify
counsel's” conduct “resembles more a post hoc rationalization of counsel’s conduct than an
accurate description of their deliberations prior to” trial. Wiggins, 539 U.S. at 526-27. And “[t]he
… evidence counsel failed to … present” here is “powerful.” Id. at 534. Given the centrality of Dr.
Daniel’s testimony to Mr. Huguely’s defense, there is certainly a “reasonable probability that a
competent attorney … would have introduced it.” Id. at 535. Moreover, there is at least a
reasonable probability that the “result of the proceeding would have been different” had this
evidence been introduced, Strickland, 466 U.S. at 694, since without Dr. Daniel’s testimony,
significant portions of the prosecution’s medical evidence on reperfusion were left unrebutted. In
light of trial counsel’s own actions before and during trial—and Dr. Daniel’s affidavit attesting
that he was expecting to testify—trial counsel’s bald invocation of tactical choices should not have
been accepted as a basis to summarily deny Mr. Huguely’s Sixth Amendment claim without even
granting a hearing. The state habeas court’s dismissal of this claim rested on a decision that is
contrary to and an unreasonable application of clearly established federal law and an unreasonable
determination of the facts, and this Court should either grant §2254 relief on this claim or grant
Mr. Huguely an evidentiary hearing.
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III. Mr. Huguely’s Rights Under the Due Process Clause and Brady v. Maryland Were
Violated When the Commonwealth Failed to Disclose the Love Family’s Imminent
$30 Million Civil Suit Against Mr. Huguely
The Due Process Clause of the U.S. Constitution requires the prosecution to disclose to the
defense any evidence in its possession that is favorable to the accused and “material either to guilt
or to punishment.” Brady v. Maryland, 373 U.S. 83, 87 (1963). That obligation applies even when
there has been “no request by the accused,” and it “encompasses impeachment evidence as well as
exculpatory evidence.” Strickler v. Greene, 527 U.S. 263, 280 (1999) (citations omitted). When a
jurisdiction adopts an “open file” policy—as the Commonwealth has done—the defendant may
reasonably assume that the file contains all potentially exculpatory evidence known to the
prosecution. Workman v. Commonwealth, 272 Va. 633, 644-50 (2006).
Just weeks after the conclusion of Mr. Huguely’s criminal trial, Sharon and Lexie Love—
Yeardley Love’s mother and sister—filed a civil complaint against Mr. Huguely seeking more
than $30 million in damages. R.886-92. The core theory of their suit was that Ms. Love’s death
was an “accident,” and that Mr. Huguely was civilly liable for negligence. R.887.
In anticipation of that suit, one of the Loves’ attorneys, Mahlon Funk, appeared in circuit
court on April 19, 2012, in an attempt to obtain exhibits and trial materials from the criminal case
for use in the civil suit. At that hearing, Mr. Huguely’s attorneys were surprised to hear Mr. Funk
describe a nearly two-year-long relationship with the City Commonwealth’s office. Most notably,
the Loves’ civil attorneys had apparently agreed to “hold any and all civil proceedings and
investigations … until after the criminal trial was over.” 4/19/12 Tr. 44-45; see also R.1093 (sworn
affidavit from Mr. Funk stating that the Commonwealth asked “that we await the conclusion of
the criminal trial so as not to interfere with witnesses and the like”). The civil attorneys “complied
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with every request of … the Commonwealth to make sure nothing … in any way could have at all
affect[ed] adversely [] any aspect of [the] criminal proceedings.” 4/19/12 Tr. 44-45.
The Commonwealth’s failure to disclose the Loves’ imminent civil suit against Mr.
Huguely rested on an unreasonable application of clearly established federal law, namely the
Brady doctrine. See, e.g., People v. Wallert, 98 A.D.2d 47, 48-50 (N.Y. 1983) (finding a “clear
Brady violation” where the prosecution “knew prior to trial that the complainant had consulted a
[civil] attorney who was but awaiting the outcome of the criminal action,” but “felt no duty to
disclose this information to defendant’s counsel”); In re R.D., 2012 PA Super 84, 44 A.3d 657,
676 (2012) (“Introduction of the existence of the civil suit in a criminal case is permissible ‘to
show the complainant’s possible bias and interest in the outcome of the case.’”).
For nearly two years, the Commonwealth had been aware that the Loves were working
with attorneys on a civil suit. Yet the Commonwealth did not disclose either this fact or that
prosecutors had been coordinating with those attorneys on major strategic decisions, such as the
timing of the civil suit. This violates Brady. See, e.g., Schledwitz v. United States, 169 F.3d 1003,
1008 (6th Cir. 1999) (Brady violation occurred where a key witness was presented as a “neutral
and disinterested” expert, when, in fact, he had been “actively and intimately involved in the
investigation” against the defendant for years); United States v. Pelullo, 105 F.3d 117, 123 (3d Cir.
1997) (Brady violation occurred where FBI agent’s undisclosed notes and FBI surveillance tapes
could have been used to impeach government witness whose credibility was central to case).
The Court of Appeals nonetheless rejected this argument on direct appeal on the ground
that the Commonwealth discharged any Brady obligations through a January 30, 2012 letter in
which it noted that the Loves have a “potential cause of action” against Mr. Huguely. See Per
Curiam Decision at 8-9, Huguely v. Virginia (Va. Ct. App. Apr. 23, 2013). But a boilerplate
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reference to a “potential” cause of action is a far cry from confirmation that the Loves had already
engaged civil attorneys—and that those attorneys were coordinating case strategy with the
prosecution. Indeed, in light of the Commonwealth’s “open file” policy, this statement was not
just incomplete but an affirmative misrepresentation, as it suggested that the Commonwealth did
not have any additional information about the Loves’ civil claims.
The Loves’ imminent civil suit was plainly “material” to the criminal case. Most important,
the theory of the case underlying the Loves’ civil complaint was flatly inconsistent with the theory
under which the Commonwealth prosecuted Mr. Huguely in the criminal case. From the very start
of this case, the Commonwealth argued that Mr. Huguely should be convicted of first- or second-
degree murder because he acted with malice. In contrast, the civil suit rests on a negligence
theory—namely, that Mr. Huguely did not intentionally cause Ms. Love’s death, and that she died
as the result of an “accident.” R.887. Under that view of the facts, Mr. Huguely would be guilty
of, at most, involuntary manslaughter. Had the imminent civil suit been disclosed under Brady, the
defense could have highlighted for the jury the significant disparities between the
Commonwealth’s arguments in this case and the Love family’s arguments in the civil suit. Indeed,
it is likely because of this inconsistency that the prosecution asked the civil attorneys to “await the
conclusion of the criminal trial” before filing their suit. R.1093.
The Court of Appeals’ rejection of this claim rested on an unreasonable application of the
Brady doctrine and an unreasonable determination of the facts regarding the materiality of the
withheld information. At a minimum, this court should hold an evidentiary hearing to assess both
the scope of the withheld information and its materiality to this case. See United States v. White,
492 F.3d 380, 413 (6th Cir. 2007) (failure to conduct an evidentiary hearing for “serious” Brady
claims would “effectively permit the government to ride roughshod over the accused, stripping the
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accused of both sword and shield”); United States v. Dansker, 565 F.2d 1262, 1264 (3d Cir. 1977)
(court should hold a hearing whenever the Brady claims are “neither frivolous nor palpably
incredible”). Mr. Huguely expressly requested an evidentiary hearing to further explore these
issues, R.882-884, yet the trial court refused to take even that modest step, R.1374. This court
should rectify that error by granting him a hearing on the issue.
IV. The Circuit Court Violated Mr. Huguely’s Sixth Amendment Right to Counsel by
Forcing Him to Proceed in the Absence of his Retained Counsel of Choice
A. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right … to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI.
A critical component of that right is the “right of a defendant who does not require appointed
counsel to choose who will represent him.” United States v. Gonzalez-Lopez, 548 U.S. 140, 144
(2006). As the Supreme Court has explained, “[i]t is hardly necessary to say that, the right to
counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his
own choice.” Powell v. Alabama, 287 U.S. 45, 53 (1932). That is, “the Sixth Amendment
guarantees a defendant the right to be represented by an otherwise qualified attorney whom that
defendant can afford to hire.” Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624
(1989). Moreover, the right to counsel is violated where a court demonstrates an “unreasoning and
arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’” See Morris
v. Slappy, 461 U.S. 1, 11-12 (1983).
From the day of his arrest, Mr. Huguely chose to be represented by two retained attorneys,
Fran Lawrence and Rhonda Quagliana. Mr. Huguely decided that he wanted two attorneys with
their specific and complementary skills and outlooks to represent him at trial. Neither Mr.
Lawrence nor Ms. Quagliana was designated as “lead counsel,” and they served as equal partners
throughout the representation.
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Both attorneys participated extensively in the trial. Ms. Quagliana conducted voir dire of
potential jurors over a two-day period, handled the examinations of police, rescue squad, and
medical witnesses, and addressed the jury regarding sentencing. Mr. Lawrence gave the opening
and closing statements and examined a number of other witnesses. Throughout the trial, Mr.
Lawrence and Ms. Quagliana repeatedly sought each other’s advice and conferred with one
another regarding strategic decisions and the examination of witnesses.
On the ninth day of trial, February 16, 2012, Ms. Quagliana developed stomach flu and
was unable to attend court because she was extremely ill. Ms. Quagliana’s illness is well-
documented and is not in dispute. See 8/22/12 Tr. 137 (THE COURT: “Let me just state this. I
never doubted you were sick…. You have never, ever misrepresented anything to the Court.”);
R.1417-1431 (sworn affidavits documenting illness). That morning, Mr. Lawrence represented to
the court that Ms. Quagliana was too sick to continue with trial in her condition. The court recessed
the proceedings until 12:30 p.m. 2/16/12 Tr. 3-4. Ms. Quagliana was still “not doing terribly well”
at that time, and the court granted Mr. Lawrence’s request to adjourn for the day. Id. at 6-9.
The next day, February 17th, Ms. Quagliana continued to be actively ill and unable to
attend court; she was admitted to the infusion center at Martha Jefferson Hospital that afternoon.
Mr. Lawrence again objected to proceeding in Ms. Quagliana’s absence, explaining that Mr.
Huguely “has been surrounded by two counsel for the last two weeks and for the last two years
who have been his team who have assisted him,” and that he “objects to proceeding at all until he
has his full defense team.” 2/17/12 Tr. 8-9. The court nonetheless overruled this objection,
asserting that “this case is going forward this morning with these witnesses.” Id. at 9.
Mr. Lawrence was thus forced to examine a number of witnesses in Ms. Quagliana’s
absence. And, because Mr. Lawrence was not prepared to examine the medical witnesses who
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were scheduled to testify on February 17th, id. at 4-6, the defense was forced to call its witnesses
out of order. Even then, the court continued to insist on expeditiousness above all else, emphasizing
throughout the day on the 17th that “[t]he defense needs to be ready to go tomorrow.” Id. at 143;
see id. at 89 (court stating that “I’m trying to avoid going into next week with the case and … I’m
going to do everything in my power to keep the case moving quickly and on time”).
The circuit court’s insistence that Mr. Huguely proceed in the absence of his retained
counsel of choice violated his Sixth Amendment right to counsel and requires a new trial. As the
Supreme Court has emphasized, the Sixth Amendment commands “not that a trial be fair, but that
a particular guarantee of fairness be provided—to wit, that the accused be defended by the counsel
he believes to be best.” Gonzalez-Lopez, 548 U.S. at 146 (emphasis added). Thus, “[w]here the
right to be assisted by counsel of one’s choice is wrongly denied … it is unnecessary to conduct
an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation.” Id. at 148. The
constitutional violation is “‘complete’” when the defendant “is erroneously prevented from being
represented by the lawyer he wants, regardless of the quality of the representation he received.”
Id.; see also id. at 148-51 (violation of the right to counsel of choice is “structural” and is not
subject to harmless-error review); London v. Commonwealth, 49 Va.App. 230, 239, 638 S.E.2d
721 (2006) (holding that Gonzalez-Lopez “calls into question our prior holdings requiring
prejudice be shown” in order to prove a violation of the defendant’s right to counsel of choice).
This rule makes good sense. The choice of an attorney is an inherently subjective and
personal one, and it would be extremely difficult to “assess[] the effect of the error” when a
defendant is denied his counsel of choice. Gonzalez-Lopez, 548 U.S. at 149 n.4. Different attorneys
“will pursue different strategies with regard to investigation and discovery, development of the
theory of defense, selection of the jury, presentation of the witnesses, [] style of witness
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examination, and jury argument.” Id. at 150. It is simply “impossible to know what different
choices the [alternative] counsel would have made, and then to quantify the impact of those
different choices on the outcome of the proceeding.” Id. The Supreme Court thus had “little
trouble” concluding that “erroneous deprivation of the right to counsel of choice, ‘with
consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as
structural error.’” Id.
Indeed, even if Mr. Huguely were required to demonstrate prejudice, that standard is
readily satisfied. When Ms. Quagliana returned to court on the morning of Saturday, February
18th, she was forced to examine several witnesses even though she had not seen the testimony or
cross-examinations of the five critical defense witnesses who had testified the day before. And the
defense was forced to call its witnesses out of order. The defense planned to have its medical
experts, Dr. Jan Leestma, Dr. Ronald Uscinski, and Dr. Jack Daniel testify back-to-back-to-back,
in order to give the jury a cohesive picture of the medical evidence regarding the cause of Ms.
Love’s death—one of the most critical issues in this case. But because of the court’s refusal to
grant a short continuance to accommodate Ms. Quagliana’s illness, the defense was forced to call
several other witnesses in between the medical experts, thus undermining counsels’ strategic goals
and theory of the case. Proceeding in Ms. Quagliana’s absence also undermined her status as an
equal partner in the defense by suggesting to the jury that her presence was not necessary to the
defense team.
B. In rejecting Mr. Huguely’s Sixth Amendment counsel-of-choice arguments on
direct appeal, the Court of Appeals badly misconstrued the relevant inquiry under Supreme Court
precedent. Most importantly, the Court of Appeals—in direct contravention of Gonzalez-Lopez—
impermissibly imported a prejudice inquiry into the threshold question of whether the defendant’s
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Sixth Amendment rights were violated. The court claimed that it was addressing only whether “the
trial judge committed Sixth Amendment error here.” Opinion at 13 (Va. Ct. App. Mar. 4, 2014)
(“3/4/14 Op.”). But the court made a showing of prejudice a prerequisite to finding any
constitutional error at all, in direct contravention of Gonzalez-Lopez. For example, the court
emphasized that “[t]here is no indication that Ms. Quagliana’s absence had a meaningful effect on
the style or manner in which [] defense witnesses were examined by defense counsel.” 3/4/14 Op.
at 17. That is a paradigmatic example of the kind of prejudice inquiry Gonzalez-Lopez forbids.
Similarly, the Court of Appeals identified nine ways in which different lawyers might
handle a trial “differently”—i.e., nine ways in which a lawyer’s absence could prejudicially affect
a trial—and suggested that Ms. Quagliana’s absence had little effect on those factors. 3/4/14 Op.
at 16. But Gonzalez-Lopez squarely rejected the argument that the constitutional right to counsel
of choice—as opposed to effective assistance—“is not ‘complete’ until the defendant is
prejudiced.” 548 U.S. at 147-48 (contrasting two constitutional rights). The denial of counsel of
choice is structural and does not require a showing of prejudice. 548 U.S. at 148-51. The Court of
Appeals’ analysis is irreconcilable with Gonzalez-Lopez because it required Mr. Huguely to show
prejudice in order to establish a violation of the right in the first place, despite the undeniable fact
that he was forced to proceed, over his personal objection, on one of the most critical days of his
murder trial in the absence of Ms. Quagliana.
The Court of Appeals further concluded that there was no Sixth Amendment violation
because Mr. Huguely continued to be represented by Mr. Lawrence while Ms. Quagliana was ill.
See Opinion at 18 (Va. Ct. App. Mar. 4, 2014) (noting that Mr. Lawrence “was still in the
courtroom and assuring the court that he felt comfortable with examining witnesses that he was
prepared to examine”). But in Gonzalez-Lopez, the Supreme Court squarely rejected the notion
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that a violation of the right to counsel of choice can be excused as long as the defendant received
effective representation from any lawyer. As the Court explained, that argument—which was
advanced by the dissenting Justices—is based on a “misunderstanding of the nature of the right to
counsel of choice” and “confus[es] … this right with the right to effective assistance of counsel.”
548 U.S. at 151 n.5 (emphasis added). Indeed, the defendant in Gonzalez-Lopez continued to be
ably represented by constitutionally adequate “substitute counsel,” but this did not in any way
excuse the trial court’s violation of the defendant’s right to be represented by his counsel of choice.
The Third Circuit similarly emphasized even before Gonzalez-Lopez that it is not
“decisive” that the defendant “continued to have the services of” one attorney when the defense
team was “composed of two attorneys who may have served distinct and important functions.”
United States v. Laura, 607 F.2d 52, 58 (3d Cir. 1978). When the defendant “wished to retain both
attorneys,” the court must “presume that she felt that she needed both attorneys.” Id. That choice
is “[the defendant’s] to make and not the court’s, unless some appropriate justification for the
dismissal is provided.” Id. Put simply, as long as a retained attorney “perform[s] a defense
function,” the defendant need not prove “the importance of his assistance” in order to establish a
Sixth Amendment violation. Id.; see also Rodriguez v. Chandler, 492 F.3d 863, 865 (7th Cir. 2007)
(Easterbrook, J.) (explaining that Gonzalez-Lopez “does not distinguish among degrees of
preference,” and that a court violates the Sixth Amendment when the defendant “found two
lawyers [he] trusted but [was] allowed to use the services of only one”).
Finally, it is equally irrelevant that Mr. Lawrence “represented to the trial judge that he was
prepared to examine those witnesses” after the circuit court made clear that it was going to deny a
continuance. 3/4/14 Op. at 17. Notwithstanding Mr. Lawrence’s representation, Mr. Huguely
himself personally objected to proceeding without Ms. Quagliana present. 2/17/12 Tr. 8-9. And
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the right to counsel-of-choice clearly belongs to Mr. Huguely and is uniquely not subject to
forfeiture by the lawyer who is present. See Gonzalez v. United States, 553 U.S. 242, 254 (2008)
(Scalia, J., concurring in the judgment) (“action taken by counsel over his client’s objection” is
not a valid waiver because it “would have the effect of revoking the agency with respect to the
action in question”). Indeed, the Court of Appeals’ emphasis on Mr. Lawrence’s representation
underscores the incompatibility of the court’s analysis with the Sixth Amendment right to counsel
when the accused has two counsel of choice. If only Ms. Quagliana had represented Mr. Huguely,
proceeding in her absence simply would not have been practical. By using the presence of a
different attorney as an excuse to move forward, the circuit court effectively denied Mr. Huguely
of his right to be represented by two attorneys of choice, including Ms. Quagliana.
* * *
In sum, the defense faced an unfortunate turn of events in the middle of trial when one of
Mr. Huguely’s chosen attorneys—who had been a trusted counselor and advisor since the day of
his arrest—became too sick to be present in court. This was the defense’s first request for a
continuance, and there was no suggestion whatsoever that Ms. Quagliana’s illness was not
legitimate or that the defense was acting in bad faith to gain some tactical advantage. See 2/17/12
Tr. 87 (court stating that “no one in the room has misrepresented … ever anything to me,” and that
all counsel have been “just exemplary in terms of being honest and forthright with the Court”).
Under these circumstances, the refusal to grant a short continuance to protect Mr. Huguely’s right
to counsel of choice rested on a decision that is contrary to and an unreasonable application of
clearly established federal law and an unreasonable determination of the facts.
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V. The Circuit Court Violated Mr. Huguely’s Right to a Fair and Impartial Jury Under
the Sixth Amendment
A. The State Courts Unreasonably Applied Clearly Established Federal Law by

Refusing to Order Individualized, Sequestered Voir Dire
As the Supreme Court has explained, there is a “presumption of openness” in all criminal
proceedings, but that presumption may be “overcome” if “closure is essential to preserve higher
values and is narrowly tailored to serve that interest.” Press-Enterprise Co. v. Superior Court, 464
U.S. 501, 510 (1984) (citation omitted). The “selection of a fair and impartial jury is a right
protected by the Sixth Amendment and is one of the ‘high values’” that may trump the presumption
of open proceedings. In re South Carolina Press Ass’n, 946 F.2d 1037, 1043 (4th Cir. 1991). “Full
and frank answers from potential jurors … are essential to the process of selecting such a jury,”
and “fear of publicity that might be given to answers of venirepersons during voir dire may so
inhibit or chill truthful responses that an accused is denied the fair trial to which he is entitled
under the Fourteenth Amendment.” Id.
In a high-profile criminal case, in camera voir dire of potential jurors may be necessary to
ensure “frank and forthcoming” responses. In re Greensboro News Co., 727 F.2d 1320, 1321-23
(4th Cir. 1984). Closed voir dire can be used to ensure that “defendants will be tried by an impartial
jury which will render its verdict on the basis of evidence adduced at trial rather than information
from the newspapers or television.” Id. at 1325.
The Fourth Circuit has found closed voir dire to be appropriate in a criminal case involving
“many highly charged and emotional issues,” that had been covered extensively in the media.
South Carolina Press Ass’n, 946 F.2d at 1041. As a result, the voir dire necessarily elicited “very
personal and emotional responses from potential jurors,” many of whom were “reluctant to speak
frankly” in open court. Id. at 1042. The district court concluded that “the presence of the press and
others creates a substantial probability that the candor of the venire would be impaired and would
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impinge on the Sixth Amendment rights of the defendant.” Id. In determining whether pretrial
proceedings such as voir dire should be closed to the public, courts must consider whether:
(1) there is a “substantial probability that the defendant’s right to a fair trial will be prejudiced by
publicity”; (2) there is a substantial probability that “closure would prevent that prejudice”; and
(3) reasonable alternatives to closure “cannot adequately protect the defendant’s fair trial rights.”
Id. at 1041 (quoting In re State Record Co., 917 F.2d 124, 128 (4th Cir. 1990)).
In this case, each of those factors strongly counseled in favor of closed voir dire. As Mr.
Huguely explained in his pretrial motion, this case attracted a staggering amount of press coverage
from both the local and national media. Between May 2010 and July 2011, the local ABC, CBS,
and FOX stations had covered this case more than 100 times. R.174-76. And, as of late 2011, there
had been 144 articles about this case in the Charlottesville Daily Progress, 45 in the Cavalier
Daily, 90 in the Richmond Times-Dispatch and 84 in the Washington Post. R.177-96. Many of
those articles contained highly sensationalist and inflammatory rhetoric about Mr. Huguely. See,
e.g., R.144-45 (Mr. Huguely was “an Anger Prone Scion of Prominent DC Family,” “Students at
All-Boys Landon School Planned Sex Parties, Sources Say,” “More Drunken Violent Episodes
Emerge,” “Source: Huguely Attacked Teammate”). Others provided extensive coverage of earlier
alleged “bad acts” by Mr. Huguely, R.149, or attempted to inject into this case issues of class,
wealth, race, and domestic violence, R.150-51. And these media reports contained a number of
demonstrably false statements, such as the suggestion that a “bloody shirt” had been found in Mr.
Huguely’s apartment. R.148.
In addition to the round-the-clock media coverage, this case was also addressed extensively
by the University of Virginia, which has long played an outsized role in the Charlottesville
community. Shortly after Ms. Love’s death, the University held a vigil in her memory, with
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University President John Casteen delivering an impassioned speech calling students to action on
issues of domestic violence. R.204-06. Even though the police investigation had barely begun, Mr.
Casteen stated—falsely—that Ms. Love had been “attacked and beaten” and “thrown against [the]
wall[].” R.205; see id. (referring to the “blows and abuse” that “ended Yeardley’s life” and her
“attacker’s advantage or arrogance or mindless sense of right to abuse”). Although the evidence
presented at trial flatly contradicted Mr. Casteen’s statements, those were the initial
characterizations of the incident that colored the perception of the Charlottesville community in
the days after Mr. Huguely was arrested.
The April 11, 2011 preliminary hearing in this case produced a flood of local and national
media far beyond anything previously seen in Charlottesville. The courtroom was packed with
reporters from virtually every media outlet in the United States, and the hearing had to be moved
to a larger venue to accommodate the overwhelming media presence.
Under these unique circumstances, the circuit court unreasonably applied clearly
established federal law by denying Mr. Huguely’s motion for sequestered voir dire of prospective
jurors. There were likely few, if any, citizens of Charlottesville who were not familiar with this
case through the University, discussions with family and friends, or the non-stop media coverage.
And this case implicated extremely sensitive and emotionally charged issues involving domestic
violence, alcohol use, wealth, and college sports. Prospective jurors would be justifiably tentative
about answering questions about their experiences with these deeply personal topics in front of a
packed courtroom.
Indeed, the circuit court itself recognized the outsized media coverage and attendant risks
by the need to threaten criminal prosecution of anyone who published the names or photographs
of the jurors. That was not an idiosyncratic view. For example, “several” of the jurors noted to the
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court that they were “concerned about the Cavalier Daily publishing their names … if they’re on
the jury.” 2/9/12 Tr. 129. Sequestered voir dire was needed to ensure that potential jurors would
provide truthful and candid answers about their backgrounds, views, or connections to the case,
and would not be swayed by how their responses would be perceived by the public and the media.
B. The State Courts Unreasonably Applied Clearly Established Federal Law by

Refusing to Allow the Defense to Ask Questions During Voir Dire That Were
Directly Relevant to Jurors’ Ability to Remain Impartial
As the Supreme Court has explained, voir dire “plays a critical function in assuring the
criminal defendant that his Sixth Amendment right to an impartial jury will be honored.” Rosales-
Lopez v. United States, 451 U.S. 182, 188 (1981). Without adequate voir dire, “the trial judge’s
responsibility to remove prospective jurors who will not be able impartially to follow the court’s
instructions and evaluate the evidence cannot be fulfilled.” Id. Moreover, peremptory challenges
to prospective jurors are widely seen as a “necessary part of trial by jury,” Swain v. Alabama,
380 U.S. 202, 219 (1965), and a “lack of adequate voir dire impairs the defendant’s right to
exercise” those challenges, Rosales-Lopez, 451 U.S. at 188.
Thus, “a suitable inquiry is permissible in order to ascertain whether the juror has any bias,
opinion, or prejudice that would affect or control the fair determination by him of the issues to be
tried.” Connors v. United States, 158 U.S. 408, 413 (1895). A court abuses its discretion if voir
dire does not provide “‘a reasonable assurance that prejudice would be discovered if present.’”
United States v. Lancaster, 96 F.3d 734, 740 (4th Cir. 1996) (en banc).
In this case, certain evidence that was critical to Mr. Huguely’s defense involved
unflattering and unfavorable facts about Ms. Love, such as the couple’s “on-and-off” relationship
and the fact that Ms. Love was herself extremely intoxicated on the night of May 2, 2010. The
defense was justifiably concerned that jurors’ emotional reaction to such evidence would hinder
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their ability to weigh the facts impartially. Mr. Huguely thus submitted to the circuit court a voir
dire question asking whether potential jurors would have difficulty considering evidence that was
seen as “blaming the victim.” The court approved this question in advance of trial.
The usefulness of that question in identifying jurors excusable for cause was borne out in
practice. On the first day of voir dire, several prospective jurors expressed reservations about how
they would handle evidence that was seen as “blaming the victim.” See Feb. 6-8 Tr. 75 (juror
would “have to think about it”). Indeed, Juror 34 stated that his reaction to evidence that was seen
as blaming the victim “might depend on how you presented it,” id. at 327-28, 375-76, and the court
granted the defense’s motion to strike this juror for cause based on his answer. Id. at 376. On the
second day of jury selection, several other prospective jurors indicated that they, too, might have
difficulty with evidence that was seen as blaming the victim. Id. at 572-73 (some jurors “responded
affirmatively” to question about whether unfavorable evidence about Ms. Love would be seen as
blaming the victim).
Despite the demonstrably relevant evidence that this question was eliciting, the circuit
court—in the middle of voir dire—granted the Commonwealth’s motion to prevent defense
counsel from continuing to ask it. Id. at 575-76. The court held that the question was not “helpful”
because it could not be fully answered unless the juror “[knew] what the evidence shows.” Id. at
575. There was subsequently a discussion of whether the question could be rephrased, but the
court’s interest in forging ahead without delay took precedence, as the court stated that “we don’t
have time to do it.” Id. at 596.
These rulings were an unreasonable application of clearly established federal law and
deprived Mr. Huguely of his constitutional right to ensure that all jurors seated on the panel were
truly impartial. There is no doubt that the question about “blaming the victim” was helpful and
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relevant, as dramatically illustrated by the court’s willingness to strike at least one juror for cause
based on his answer to this very question. Any juror who was unable to fairly and impartially
consider evidence that might have cast Ms. Love in an unfavorable light should not have been
seated on the panel, and the circuit court violated Mr. Huguely’s constitutional rights by
prohibiting the defense from inquiring about this matter during voir dire.
C. Mr. Huguely’s Sixth Amendment Right to an Impartial Jury Was Violated When
the Circuit Court Refused to Strike for Cause a Juror Whose Answers During
Voir Dire Revealed Serious Doubts about Her Impartiality
“[T]rial by jury in criminal cases is fundamental to the American scheme of justice.”
Duncan v. State of La., 391 U.S. 145, 149 (1968). Given that, “[a] criminal defendant in a state
court is guaranteed an ‘impartial jury’ by the Sixth Amendment as applicable to the States through
the Fourteenth Amendment. Principles of due process also guarantee a defendant an impartial
jury.” Ristaino v. Ross, 424 U.S. 589, 595 n.6 (1976) (citations omitted). To that end, each
individual juror “must be as ‘indifferent as he stands unsworne.’” Irvin v. Dowd, 366 U.S. 717,
722 (1961) (citation omitted); see also Morgan v. Illinois, 504 U.S. 719, 727 (1992) (“[T]he jury
must stand impartial and indifferent to the extent commanded by the Sixth Amendment.”). Each
juror’s “verdict must be based upon the evidence developed at the trial,” not based on any outside
information or swayed by any personal affiliations. Id. That is because “a juror who has formed
an opinion cannot be impartial.” Morgan, 504 U.S. at 727.
Such preconceived opinions may arise because a juror was exposed to outside information
about a case. The Supreme Court has held that a new trial may be warranted where a juror has
been exposed to outside information about a case, such as a prejudicial news article, even where
the jurors insist that they “would not be influenced” by it. See Marshall v. United States, 360 U.S.
310, 312 (1959). Bias may also arise out of affiliations that a juror has with family or an employer.
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See Clark v. United States, 289 U.S. 1, 7 (1933) (upholding a contempt judgment against a juror
who falsely concealed her connections to and former employment at a company where the
defendants had been officers, suggesting impermissible bias); Williams, 529 U.S. at 440 (petitioner
entitled to a hearing to develop facts showing bias arising out of a juror’s previous marriage with
a witness and prior representation by one of the prosecutors).
The circuit court violated Mr. Huguely’s right to an impartial jury by refusing to strike
Juror 211, who was ultimately seated on the trial jury and participated in the determination of Mr.
Huguely’s guilt or innocence. Juror 211 was a professor at the University of Virginia who taught
a close friend of Ms. Love and excused this student from her final exam for Ms. Love’s funeral.
Feb. 6-8 Tr. 268-75. She had also read “memos” from the University about the case and Ms. Love,
and she remembered hearing that there was a “break in” and “blunt trauma.” Id. at 268-69, 274.
Although Juror 211 claimed that she could render an impartial judgment, see id., her close
connections to this case and the University clearly raised at least a reasonable doubt about her
impartiality.
Given the inordinately high profile of this case within the Charlottesville community, the
circuit court should have been especially vigilant about the need to ensure an impartial jury. Yet
the court instead chose to disregard responses during voir dire that raised serious doubts about
Juror 211’s ability to remain impartial. Juror 211 should have been struck for cause, and the state
courts’ refusal to grant Mr. Huguely relief on this claim rested on an unreasonable application of
federal law.
VI. There Was Insufficient Evidence Offered at Trial to Support Mr. Huguely’s
Conviction for Second-Degree Murder.
When a challenge is brought alleging insufficient evidence, federal habeas corpus relief is
available if, based on the evidence adduced at trial, viewed in the light most favorable to the
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prosecution, no rational trier of fact could have found “the essential elements of the crime” proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The court must “reverse
the verdict if the evidence of innocence, or lack of evidence of guilt, is such that all rational fact
finders would have to conclude that the evidence of guilt fails to establish every element of the
crime beyond a reasonable doubt.” United States v. Nevils, 598 F.3d 1158, 1165 (9th Cir. 2010)
(citing Jackson).
As noted above, malice is “an essential element of murder and is what distinguishes it from
the crime of manslaughter.” Canipe, 25 Va.App. at 642. To elevate a homicide to second-degree
murder, “the defendant must be shown to have willfully or purposefully, rather than negligently,
embarked upon a course of wrongful conduct likely to cause death or great bodily harm.” Essex,
322 S.E. 2d at 220; see also Groot, Criminal Offenses §6 (second-degree murder requires “a mental
state of extreme recklessness—proceeding with conduct in the face of a known, very significant
risk that death will occur”). That distinction is “close but crucial” and must be enforced with
vigilance. Essex, 322 S.E. 2d at 222.
At trial, the Commonwealth abandoned any claim that Mr. Huguely acted with express
malice—that is, that he killed Ms. Love “with a sedate, deliberate mind, and formed design.”
Canipe, 25 Va. App. at 642 (citation omitted). The evidence flatly refuted any “design” to kill: Mr.
Huguely went to talk with Ms. Love, while heavily intoxicated, only after being turned away at
the door of his friend Chris Clements, who was too busy to get together. He was dressed casually
in tennis shoes, shorts, and a t-shirt. He brought no weapon, object, or bag. He also chose a well-
lit, busy path to the apartment. Indeed, in acquitting Mr. Huguely of burglary with the intent to
commit assault and battery, the jury specifically concluded that he did not enter Ms. Love’s
apartment with any intent to commit assault or battery.
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The Commonwealth nonetheless sought to establish implied malice, which may be inferred
from “conduct likely to cause death or great bodily harm, willfully or purposefully undertaken.”
Essex, 322 S.E. 2d at 220; Perricllia v. Commonwealth, 229 Va. 85, 91, 326 S.E.2d 679 (1985).
Based on the evidence at trial, however, no reasonable factfinder could have concluded beyond a
reasonable doubt that Mr. Huguely’s conduct during his altercation with Ms. Love rose to that
level.
Abundant evidence supported Mr. Huguely’s account that, though he briefly wrestled with
Ms. Love on the floor, he never applied a degree of force likely to cause serious injury. The walls
revealed no dimples or marks. The furniture was in order. Anna Lehmann, who lived downstairs
and heard Mr. Huguely’s footsteps on the stairs and a single crash near the door, heard no other
hitting or banging sounds. Ms. Love had no injuries to her left side. Nor did she have any skull
fracture, grab marks, or bleeding in the carotic sheath, all of which would have indicated greater
applications of force. And Mr. Huguely had no blood on his person or his clothes. Ex.152; Ex.143.
Moreover, there was insufficient evidence from which to infer that Mr. Huguely acted with
willful, malicious intent. Mr. Huguely described Ms. Love as his best friend and one of the people
he loved and cared for most. Ex.21. He was seen holding her hand just a day before. When
approached by police, he believed he was being investigated for an assault and was in a state of
shock and disbelief upon hearing of Ms. Love’s death. Mr. Huguely was also heavily intoxicated
both before and after his altercation with Ms. Love; he had written months before that he was
“scared to know that I can get that drunk to the point where I cannot control the way I behave or
act.” Ex.21. As the Virginia Supreme Court has stated in no uncertain terms, “if a killing results
from negligence, however gross or culpable, and the killing is contrary to the defendant’s intention,
malice cannot be implied.” Essex, 228 Va. at 280.
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In sum, substantial facts corroborated Mr. Huguely’s claim that his actions were not so
cruel as to amount to malicious conduct. See Haywood v. Commonwealth, 20 Va. App. 562, 567,
458 S.E.2d 606 (1995) (“while the evidence may support a hypothesis that [the defendant] acted
with malice and intended to run over or through anyone or anything that got in his way,” the
evidence did not exclude a reasonable hypothesis of innocence). In light of the evidence offered at
trial, no reasonable jury could have convicted Mr. Huguely of any offense more serious than
manslaughter. His conviction and sentence rest on an unreasonable determination of the facts and
an unreasonable application of clearly established federal law and should be vacated.
PRAYER FOR RELIEF
For the foregoing reasons, Mr. Huguely respectfully requests that this Court grant the
petition, vacate the conviction and sentence, and take such other and further action as it deems
reasonable and appropriate. In the alternative, this Court should order an evidentiary hearing to
ensure the development of a full record regarding Mr. Huguely’s claims of external influence on
the jury, ineffective assistance of counsel, and violations of the Brady doctrine.
Respectfully submitted,
/s/ Bryan K. Weir
Jonathan P. Sheldon (VA Bar #66726) Jeffrey M. Harris* (VA Bar #93883)
Sheldon & Flood, PLC Bryan K. Weir (VA Bar #82787)
10621 Jones Street, Suite 301A Jordan M. Call*
Fairfax, VA 22030 CONSOVOY MCCARTHY PLLC
(703) 691-8410 1600 Wilson Boulevard, Suite 700
jsheldon@sfhdefense.com Arlington, VA 22209
(703) 243-9423
Dated: April 29, 2020
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CERTIFICATE OF SERVICE
I hereby certify that a true and exact copy of the foregoing was sent via first class mail
postage prepaid this 29th day of April, 2020, to Leah Darron, Senior Assistant Attorney General,
Office of the Attorney General, 202 North Ninth Street, Richmond, VA 23819, and a PDF copy
emailed to oagcriminallitigation@oag.state.va.us.
/s/ Bryan K. Weir
58
58
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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
GEORGE WESLEY HUGUELY V,
Petitioner,
Civil Action No. __________
v.
HAROLD CLARKE, Director, Virginia

Respondent.
APPENDIX TO PETITION FOR A WRIT OF HABEAS CORPUS

(PUBLIC MATERIALS)
Jeffrey M. Harris* (VA Bar #93883)

Jonathan P. Sheldon (VA Bar #66726) Bryan K. Weir (VA Bar #82787)
Sheldon & Flood, PLC Jordan M. Call*
10621 Jones Street, Suite 301A CONSOVOY MCCARTHY PLLC
Fairfax, VA 22030 1600 Wilson Boulevard, Suite 700
(703) 691-8410 Arlington, VA 22209
jsheldon@sfhdefense.com (703) 243-9423
1
TABLE OF CONTENTS
Exhibit A: Declaration of John S. Daniel, III, M.D. (filed in state habeas proceedings as exhibit
to Petition for Writ of Habeas Corpus, Huguely v. Woodson, Case No. CL16-23 (Jan. 19,
2016)).
Exhibit B: Excerpts from Feb. 8, 2012 Trial Transcript, pp. 59-60
Exhibit C: Excerpts from Feb. 18, 2012 Trial Transcript, pp. 4-48, 226-27
1
EXHIBIT A
Declaration of John S. Daniel, III, M.D. (filed in state habeas

proceedings as exhibit to Petition for Writ of Habeas Corpus,
Huguely v. Woodson, Case No. CL16-23 (Jan. 19, 2016)).
DECLARATION OF JOHN S. DANIEL, III, M.D.
I, John S. Daniel, III, M.D., give the following declaration under the penalties of perjury:
1.! My name is John S. Daniel, III. I am a forensic pathologist. I am adult and reside
in Midlothian, Virginia. I was retained as by the defense as an expert witness in the case of
Commonwealth v. George Huguely V.
2.! I received my medical degree from the Medical College of Virginia in 1981, and
completed an internship in general surgery in 1981-82, and then a residency in Anatomic and
Clinical Pathology in 1982-86, all at the Letterman Army Medical Center in San Francisco,
California. From 1986-89, I worked as a military hospital pathologist at Womack Army Hospital
at Fort Bragg, North Carolina. Between 1988 and 1993, I also worked as a part-time Designated
Pathologist conducting autopsies for the civilian State North Carolina Medical Examiner System
in Fayetteville, North Carolina (1988-89); as a Forensic Pathology Fellow at the Armed Forces
Institute of Pathology (AFIP) in Washington, D.C. and then Local Medical Examiner for the
Richmond Metropolitan area as a visiting fellow-in-training at the Office of the Chief Medical
Examiner (OCME) in Richmond (1989-90); and then as Forensic Pathology Consultant to the
Commanding General of the Seventh Medical Command for the United States Army, Europe and
European Regional Medical Examiner for the Armed Forces Medical Examiner System,
stationed in Landstuhl, Germany (1990-93). From 1993 through 1997, I was employed as an
Assistant Chief Medical Examiner for the OCME in Richmond. Since January 1998, I have
owned and operated a forensic medical consulting practice. Since completing my formal medical
training, I have held teaching positions with the Virginia Commonwealth University (1994-
2004), and I have also earned a Juris Doctor (University of Richmond, 2007). I am board
certified by the American Board of Pathology in Anatomic and Clinical Pathology (1987), as
well as in Forensic Pathology (1990).
3.! I currently hold an active license to practice medicine in the Commonwealth of
Virginia, as well as an inactive license in North Carolina. Over the course of my career I have
performed approximately 2,000 autopsies and have been engaged in both the teaching of medical
students, pathology residents, and forensic pathology fellows in training, as well as in peer
review of my postmortem evaluations conducted by colleagues. I have been appointed or
retained as a forensic pathologist in over five hundred cases, and been accepted as an expert in
forensic pathology by the circuit courts of Virginia numerous times.
4.! In the summer of 2010, I was retained by Charlottesville attorneys Fran Lawrence
and Rhonda Quagliana to work as an expert in the matter of Commonwealth v. George Huguely
V, to assist the defense with preparations for and at trial. After being retained I reviewed
materials provided to me by defense counsel including but not limited to: (a) the report of
autopsy on Yeardley Love completed by OCME pathologist William Gormley, M.D., with
associated toxicology findings; (b) the neuropathological report by VCU pathologist Christine
Fuller, M.D.; (c) the crime scene and autopsy photographs related to the death; (d) the formalin-
preserved brain and heart tissues retained by the OCME; (e) the microscopic tissue slides
prepared from the brain and other body organs and tissues, and (f) transcripts of police
interviews with Mr. Huguely Based on this information and lingering questions about the
Medical Examiner’s (M.E.’s) conclusion, I sought and considered the input of a number of other
experts including toxicologist Alphonse Poklis, Ph.D.; cardiovascular pathologist Allen Burke,
M. D.; .neuropathologist Jan Leestma, M.D.; and neurosurgeon Ronald Uscinski, M.D.
! 2
5.! Based on all the information available to me, I concluded that the postmortem
findings were consistent with Mr. Huguely’s account to police of his final encounter with Ms.
Love, and that the postmortem findings did not clearly or specifically indicate either intentionally
inflicted traumatic injury or traumatic injury of any kind as the cause of death. I disagree with
the M.E.’s conclusion that the findings establish that Ms. Love died from blunt force trauma to
the head. Rather, based on the available forensic medical evidence. I was impressed with the
absence of traumatic skull injury or clearly traumatic intracranial hemorrhage or other clearly
trauma-specific brain damage, particularly in light of her having been found with face down in a
pillow and intoxicated at the time of death, conditions entirely consistent with lethal
asphyxiation. With respect to the theory of death due to blunt force head trauma, the primary
putative indicia of traumatic brain injury relied upon comprise a very limited number of localized
perivascular hemorrhages with features characteristic for reperfusion-related damage, and which
are not typical for traumatic cerebral cortical contusions. Considering these findings, and in the
setting of a known significant period of vigorous postmortem CPR, I concluded that the probable
cause of death was asphyxiation due to airway obstruction. Critical to this finding is the
undisputed fact that Ms. Love was indeed found face down on her bed in the type of position
whereby asphyxial death due to airway obstruction can occur.
6.! Alcohol intoxication is a known risk factor for asphyxial deaths of various types,
and an intoxicated individual may become asphyxiated accidentally when their face and air
passages become buried in a pillow or other bedclothes. Physical obstruction or other
impairment of a person’s breathing apparatus (variously, “asphyxia”; “asphyxiation”;
“suffocation”; “smothering”; “mechanical asphyxia”; “postural asphyxia”; or “positional
asphyxia”) deprives the brain of oxygen, leading to associated brain tissue damage with brain
! 3
swelling, then further tissue damage, followed by more brain swelling, more tissue damage, and
ultimately to death. In this context, cerebral reperfusion injury results when small blood vessels,
damaged already by lack of oxygen getting to the brain, are subjected to forceful perimortem or
postmortem pulsatile blood flow such as occurs with cardiopulmonary resuscitation (CPR). In
addition, the risk for lethal deprivation of oxygen to the brain is compounded when such an
individual is also predisposed to the development of a cardiac arrhythmia such as with
sensitization of heart tissue related to amphetamine usage, including even legal and properly
prescribed preparations such as the Adderall taken by Ms. Love.
7.! I believe that the very limited bleeding present in the brain is from reperfusion
instead of from blunt force trauma for the following reasons: (a) the intracranial hemorrhage was
extremely limited both in terms of volume and distribution of bleeding; (b) the types of
hemorrhage present were characteristic for reperfusion damage and for increased intracranial
pressure but were unusual for trauma; (c) there were no associated scalp lacerations, no skull
fractures, no epidural or subdural blood collections, no brain tissue tears, and no obvious coup or
contrecoup cerebral contusions; and (d) the findings are present in the context of vigorous CPR
sustained for a significant period of time during the postmortem period.
8.! I believe that this is an asphyxial death rather than one due to blunt force trauma
because: (a) none of the blunt force injuries present were clearly lethal or even incapacitating, so
other, non-traumatic causes of death require consideration; (b) the deceased was found dead with
her face down in a pillow, so asphyxia must be considered a possible non-traumatic cause of
death; and (c) under these conditions, her risk for asphyxia related to unconsciousness were
increased by both alcohol intoxication as well as by the presence of potentially arrhythmogenic
amphetamine.
! 4
9.! Specific problems with the M.E.’s analysis leading to the conclusion that blunt
force trauma was the cause of death appear to have included the following: (a) apparent failure to
recognize or acknowledge or consider the significant mismatch between the catastrophic lethal
outcome and the extremely limited volume and distribution of intracranial bleeding,
accompanied by the complete absence other usual indicia of lethal head trauma such as scalp
lacerations; skull fractures; epidural or subdural hematoma; obvious traumatic cerebral
contusions of either the “coup” variety (at the surface of the brain situated directly beneath the
point of impact on the head) or of the “contrecoup” type (located on the surface of the brain
directly opposite the point of impact); or overt tears of the brain tissue; (b) apparent failure to
consider that unexpected cardiac arrhythmia might have caused or contributed to death by non-
traumatic means such as asphyxia occurring in an unconscious person; (c) apparent failure to
consider that the “watershed” theory apparently propounded by one or more or prosecution
experts to discount the explanation that certain brain hemorrhages represented reperfusion-
associated tissue changes might in fact be inapplicable in instances of global hypoxia or in the
postmortem setting at all; and (d) in light of the face down position, the alcohol intoxication, the
apparent increased potential risk for cardiac arrhythmia related to amphetamine usage, and the
extensive postmortem CPR, the apparent failure to recognize or acknowledge or consider that the
history provided by Mr. Huguely might in fact be true and that Ms. Love died an unconscious
asphyxial death and not a traumatic death at all.
10.! Findings of other experts that corroborated my interpretation included: (a)
toxicologist Dr. Poklis confirming that Ms. Love’s blood alcohol concentration (BAC) during the
timeframe surrounding and immediately following the encounter with Mr. Huguely was higher
than the postmortem BAC of 0.14% found at the time of autopsy, as high as 18%; (b) both
! 5
cardiac pathologist Dr. Burke as well as prosecution expert Dr. Gormley [see transcript of
December 15, 2010 medical records hearing, page 28, lines 17-19] confirming that Adderall
(amphetamine) does in fact have potential for sensitizing the heart and increasing the chances of
unexpected cardiac arrhythmia; and (c) neuropathologist Dr. Leestma together with (d)
neurosurgeon Dr. Uscinski confirming: - [i] that the pattern of intracranial hemorrhages was in
fact unusually limited in both extent and distribution and was unlikely to have resulted from
blunt force trauma; - [ii] that the hemorrhages interpreted as traumatic in origin by the
prosecution’s experts could be reasonably explained otherwise as the artefactual product of
reperfusion injury related to sustained CPR administered in the postmortem period; – [iii] the
incongruity inherent in necessarily attributing the worst possible functional outcome – death – to
the relatively minor intracranial structural disruptions present here; and - [iv] regarding any
expectation that reperfusion injury would necessarily be confined to cerebral vascular
“watershed zones”, that it would be both unreasonable to anticipate such under conditions of
global hypoxia, or to expect devitalized tissues to respond to pulsatile increases in intravascular
pressure in the same fashion as similar tissues during life.
11.! Intraparenchymal (i.e., within the substance of a particular organ or tissue)
hemorrhages of the brain and other parts of the central nervous system - petechial (i.e., pinpoint
to pinhead-sized) or otherwise - are associated with a number of different pathologic processes.
Intraparenchymal petechial hemorrhages of the brain are not specific for trauma; they are also
seen in association with increased intracranial pressure (ICP). Increased ICP occurs with brain
swelling, known causes of which include asphyxiation (such as I believe occurred in this matter).
Had I testified in this case, one subject would have been the lack of specificity for trauma of
! 6
intraparenchymal petechial hemorrhages generally, as well as my disagreement with the
assertion that the particular hemorrhages present here could only have been caused by trauma.
12.! During my involvement in this case, I regularly consulted with defense counsel
and made suggestions for possible investigations they might pursue, including seeking Ms.
Love’s medical records and retaining other experts. As I testified at the hearing cited above,
related to a subpoena issued for Ms. Love’s medical records, I believed that the information
contained in those records could provide information about medications she was taking;
symptoms that she was experiencing; and information about her physical condition including
whether she may have a cardiac arrhythmia. Such records might possibly contain one or more
electrocardiograms providing actual documentation of abnormal heart function. The question of
cardiac arrhythmia was potentially critical in this case because such a process could have
significant adverse physiologic consequences including unconsciousness or death.
13.! Throughout my involvement in this case, defense counsel advised me that I would
likely be needed as a testifying witness at trial. It was my understanding there was a substantial
likelihood that I would be the last medical expert to testify for the defense, with the goal of
providing an overview of all the forensic medical information to assist in tying the evidence
together into a single coherent theory.
14.! After the start of the trial, trial counsel advised me that the rule of witness
sequestration had been invoked and that testifying witnesses could not be informed about
evidence that was admitted during the trial. During the course of trial proceedings in mid-
February of 2012, I received two emails from Ms. Quagliana that appeared to disclose testimony
from various witnesses who had testified during the trial. Because I believed these emails may
have inadvertently violated the rule against witnesses, I contacted Mr. Lawrence and raised the
! 7
issue. As I recall, after our discussion Mr. Lawrence proceeded to advise the trial court of the
situation.
15.! Subsequently, although I was aware that the matter had been addressed in court, I
was not advised regarding the specifics of what transpired in the courtroom in connection with
the situation, so all I knew was that I was never called as a witness. Since I had previously
understood that I was a likely witness for the defense case, I was ever since curious to know the
particular reason(s) as to why I was not called to testify regarding the cause of Ms. Love’s death.
16.! I was recently contacted by attorneys representing Mr. Huguely exploring
whether to seek habeas corpus relief. During that conversation I learned for the first time that the
violation of the rule against witnesses resulted in an adverse ruling that limited the testimony of
neurosurgeon Ronald Uscinski, M.D., defense medical expert on the issue of brain damage due
to traumatic and other causes. Specifically, Dr. Uscinski was apparently precluded from giving
testimony on the issue of reperfusion, including the Commonwealth’s assertion that reperfusion
injuries tended to be present only in the “watershed zones”. Because this issue was central to
understanding and considering the reasonable and non-traumatic alternative cause of death
advanced by the defense at trial, it appears that the jury may have never learned about this
matter.
!
I declare under penalty of perjury that the foregoing is true and correct.
John S. Daniel III, M.D.

Date: January 16, 2016
! 8
EXHIBIT B
Excerpts from Feb. 8, 2012 Trial Transcript, pp. 59-60

59
1 abrasion on her chin, and the cuts here I think Dr. Gormley,
2 I know at an earlier time he has said that the injuries on
3 her head are consistent with as few as two blows, two
4 somethings, two events, so- --and certainly I think this all,
5 this may all have occurred in the falling on the floor. Our
6 experts will say that the falling to the floor didn't kill
7 her, and Dr. Gormley may well say again that her obvious in-
8 juries weren't the injuries that killed her. There's no
9 suggestion that all of these things and any bruises anywhere
10 else, whether they were from the altercation or whether they
11 were from a lacrosse match, none of those either individual-
12 ly or in total caused her to die. The Commonwealth's own
13 people say that and I think the Commonwealth's people think
14 somehow that this torque in the lower brain, that it would
15 be sufficient torque to have caused this b]_eeding that would
16 have cut off a life support system, Our expert will say, in
17 essence, that's impossible and I'm not sure he'll use this
18 analogy but, basically, that no fall or other thing could
19 have caused an injury to the lower brain, upper top of the
20 neck without, in essence, like a tree, there would be chops
21 on the outside. In other words, you can't---you can't get
22 there by any kind of torque action and that that's not how
23 she died, and our expert will actually tell you that he be-
24 lieves that the blood that they find in the base of the
25 brain is a result of the thirty (30) minute CPR which caused
LANE'S COURT REPORTERS, INC.

401 8`h STREET NE
CHARLOTTESVILLE, VIRGINIA 22902
1 what is called reperfusion and as the body, basically,
2 you'll know from the EMT people that CPR, and you may know
3 it, those of you who know how to do it. CPR is incredibly
4 forceful and I think they'll tell you an inch or an inch and
5 a half of the chest is done and that happens a hundred (100)
6 times a minute for thirty (30) minutes so that's not- --the
7 blood at the bottom of the brain way more likely came from
8 that than from anything that George did and it couldn't have
9 come from anything that George did. It couldn't have come
10 from anything any of us could have done. All our evidence
11 and all the nuances and everything about all the little
12 pieces of evidence, the big pieces that are overwhelmingly
13 big pieces in the death of Yeardley and the other big pies-
14 es, the door, the computer, all the other evidence will sup-
15 port that George had no intention of killing Yeardley. He
16 ,was unaware that she had received serious injury. That he
17 acted with immature compulsiveness. She had come to his
18 apartment without getting permission so he was going to go
19 in her apartment without getting permission. The computer
20 was on the floor on his way outs He thought that's a guar-
21 anteed way. Everybody needs a computer at Virginias That's
22 a guaranteed way. That she'll have to reach out to me to-
23 morrow morningo We'll figure things out. It was an after-
24 thought. His changing direction, he goes to his Yiouse, he's
25 still drunk, he's still making bad decisions. For whatever

401 8`" STREET NE
EXHIBIT C
Excerpts from Feb. 18, 2012 Trial Transcript, pp. 4-48, 226-27
4
1 February 18, 2012
3 Good morning, everyone. We are resum-

THE. COURT:
4 Just a few matters to take upo
ing Commonwealth v. Huguely.
5
We have a letter from the treating physician for Ms.
6
Quagliana verifying that her medical condition which I can.
7 That was done at my request.
make that part of the record°
8
We do have a faxed verification from the doctor about coming
9 It was deliv-
in and being present today and I have that.
10
ered sometime after 4:30 yesterday and I have that to put
11 Some new matters have surfaced. Mr.
that in the record.
12
Chapman, you want to lead off with those matters?
13 Yes, sir. Judge, we object to the
MR. CHAPMANe
14 become aware of commu-
testimony of Dr. Uscinski. We have
15
nications by Ms, Quagliana, counsel, directly to Dr. Jack
16
Daniel, Dr. Ronald Uscinski, Dr. Jan Leestma in. which the
17
substance of testimony of Commonwealth witnesses has been
18
provided to them by name and by substance, and from the e-
19
mails with which we've been provided, we now tell, in addi-
20
tion to the question of Dr. Uscinski's ability to testify,
21
that Dr. Leestma testified in this case having been provided
22
(with the substance of information from Commonwealth witness-
23
es after having been advised by counsel and it was not dis-
24
closed to the Commonwealth prior to Dre Leestma's testimony.
25
LANE'S COURT REPORTERS

401-8~h STREET NE
CHARLOTTESVILLE, VA 22902
5
1 It has only been disclosed this morning, so there's an ini--
2 tial area of concern in that regard and so- - -~
3 THE COURT: So there's additional information that
4 Dr. Leestma was told about testimony during the trial?
5 MR. CHAPMAN: He's copied on- --he testified.
6 THE COURT: He already testified.
7 MR. CHAPMAN: He was copied on these e-mails be-
8 fore he testified and that was not disclosed.
9 THE COURT: All right, Mr. Lawrence?
10 MR. LAWRENCE: Good morning, Your Honor. So, I
11 think the appropriate thing is for the Commonwealth to voir
12 dire Dre Uscinski and we'11. move from there, Let me say
13 this, Your Honor. This was not done with conscious intent.
14 The Court can see from the materials that all of the infor-
15 mation contained in the letters could have been provided for
16 the expert witness in different ways, If there had been in-
17 tent to---which would have been---which would have been what
18 one would have done if one had been conscious. The e-mails,
19 I think, change the way we communicate. It's almost- --you
20 know, unconscious, multi-day trial° It's not something we
21 see often. Every bit of information that was given to the
22 witness could have been given to the witness by basically
23 saying, please be prepared to address this issue but it
?4 wasn't° I understand that, but I just want to understand
25 that there's no---there's no---there's not necessarily any

401-8'h STREET NE
1 advantage here, Your Honor, and we think it's cured by- --if
2 the Commonwealth would like to voir dire the witness about
3 that, I think the Commonwealth will- --if the Commonwealth
4 has issues about Dr. Leestma, we can- --I don't know how we
5 deal with it right now, but I think the Commonwealth proba-
6 bly has to decide what it wants to do with the status of
7 things. As the Court well knows and we have authority on
8 this, Your Honor, is that even where the Commonwealth's
9 attorney has improper contact with a witness, that doesn't
10 result in exclusion, It's critically important that the
11 defendant as well as the Commonwealth have his or her wit-
12 nesses available to testify. It's perfectly curable and
13 that's what we hope will happen.
14 THE COURT: Well, should we go forward and bring
15 the doctor out and see where we go with the voir dire?
16 MR. CHAPMAN: I think that's the next step. Now,
17 one of the components of the standard in this issue is the
18 finding that it is by counsel and it's intentional, and- --
l9 THE COURT; There's no question about that, is it
20 MR, LAWRENCE: Oh, .it's---
21 THE COURT: 4Ve have the e-mails here from counsel.
22 MR. LAV~7RENCE: I think the evidence wi11 speak for
23 itself. Your Honor, I'd say it was---whether it was- - -I
24 think there was no consciousness at the time it was done of
25

401-8~h STREET NE
1 wrongdoing but on its face is improper so that's the answer
2 to that.
3 THE COURT: That's also---also---fine. It was
4 done by counsel and it was done in violation of the rule on
5 witnesses, and we will have to see if it's prejudicial and
6 where we go from here.
7 MRo LAWRENCE: That's fine, Your Honor. The only
8 other thing I'm going to add to this is, you know, we have
9 diligently, as the Court knows, (unintelligible).
10 THE COURT: We just basically---we're only going
11 to have one witness for the defense today assuming that
12 we're going to allow- --
13 MR. LAWRENCE: That's fine by me, Your Honor, yes,
14 sir.
15 THE COURT: - - -the doctor to testify and this doc-
16 tor, is it Uscinski?
17 MR. LAWRENCE° Yes, sir.
18 THE COURT: All right, should we bring him out
19 now, Mro Chapman?
20 MR. CHAPMAN: Thank you,
21 MR. LAWRENCE: Your Honor, let me just add that we
22 simply-- -this was discovered at one o'clock yesterday. We
23 started looking for Mr. Chapman last night (unira.telligible(
24 for-what-it's-worth category as soon. as we were able to un-
25 derstand it, so it certainly hasn't been inactivity-__

401-8'h STREET NE
C~
1 THE COURT: All right.
2 MR. LAWRENCE° ---once we were conscious of ito
3 THE COURT: I guess that's not really the issue at
4 this point,- --
5 MR. LAWRENCE: Okay.
6 THE COURT: - - -is it?
7 MR. CHAPMAN: It is a little,
8 THE COURT: Okay.
9 MR. CHAPMAN: S mean, the e-mail string ends on
ZO February 14th. We didn't hear about it till Thursday or
11 Wednesday before trial began and the defendant presented his
12 case° We didn't hear about it then. We're hearing about it
13 snow, what, on the 18th, four days- --
14 THE COURT: Well, I think there was some activity
15 last night.
16 MR, LAWRENCE: (Unintelligible)
17
18 (Several voices speaking at the same time)
19
20 MR. LAWRENCE: It was- --it was not in our con-
21 sciousness until one o'clock yesterday when we got a commu-
22 nication from one of our witnesses and basically stepped in
23 time and figured out what we were going to do about it, We
24 managed- --as soon as we were able to figure it out, surgi-
25 cally starting with Mr, Chapman- - -~

401-8~h STREET NE
9
1 MR. CHAPMAN: T don't ]snow what that communication
2 is.
3 THE COURT: Okay, we11, let's wait for the doctor°
4 I don't get into a back-and-forth on it right now° Let's
5 put the doctor- --
6 MR. CHAPMAN: That might be material.
7 THE COURT: It might be, but I don't- --I want to
8 do that separately. Let's get---
9 MR. CHAPMAN: Very good.
10 THE COURT: -- -while they're waiting for the doc-
11 for to come testify.
12 THE BAILIFF: Right in the middle, sir.
13 THE CLERK: Doctor, if you could stand right next
14 to the witness stand and raise your right hand. (Witness
15 sworn)
16 THE COURT: Okay. Have a seat, sir, yeah. A11
17 right, Mr, Chapman?
18
19
20 RONALD IJ~CINSICI, having been so duly sworn, testi-
21
fied as follows:
22
23
VOIR DIRE EXAMINATION
24
By: Mra Chapman
25

401-8th STREET NE
~o
1 Q You're Ronald- --Dr. Ronald Uscinski?
2 A Yes, I am.
3 Q Were you expecting this morning to be ques-
4 tinned by somebody besides the prosecutor?
5 A Xes.
6 Q Thank you. Good morning.
7 A Good morning.
S Q Dr. Uscinski, have you been a witness in a
9 criminal case before?
10 A Yes.
11 Q How many times would you say?
12 A Multiple dozens.
13 Q Have you been a witness in a civil case before?
14 A Yes,
15 Q How many times would you estimate?
16 A Multiple dozens, probably less than criminal,
17 but, yes, also.
18 Q Now, does that include the Commonwealth of
19 Virginia?
20 A Yes.
21 Q Does it include other jurisdictions?
22 A Yes, it does.
23 Q How many times out of all the times that you've
24 testified have you been subject to what is called the rule
25 on witnesses?

401-8th STREET NE
11
1 A I don't know.
2 Q Do you know what the rule on witnesses is?
3 A No.
4 Q Did counsel in this case take any steps to ad-
5 vise you what the rule on witnesses is?
6 A Not that I recall,
7 Q Okay, now, do you know what the rule is---
8 regardless of what it might be called, by which a witness is
9 told not to discuss their testimony with any other witnesses
10 and not to allow an attorney to tell you what some witness
11 in the case may have said?
12 A I'm aware of the concept°
13 Q And did you know you were subject to that in
14 this case?
15 A No.
16 Q No one on defense counsel told you that.
17 A I don't recall°
18 Q How many communications would you say you have
19 received from defense counsel of any sort since the begin-
20 ning of the case?
21 A Several.
22 Q And by several, your best estimate.
23 A It would be an estimate and it would be an es-
24 timate of around---probably more than ten and less than
25 twenty (20) .

401-8`h STREET NE
12
1 Q Okay, and could you tell the Court the type of
2 communications that have been included when you think of the
3 total number?
4 A There have been verbal conversations, e-mails.
5 I think that's all I can think of.
6 Q Can you think of any other means of communica-
7 tion?
8 A Not offhand.
9 Q Okay, and by verbal, would that have been over
10 the telephone?
11 A Yes.
12 Q All right, thank you. Now in any conversations
13 that you have had over the telephone with counsel, have you
14 been advised of the name of any of the witnesses who have
15 testified in the case thus far?
16 A I'm not sure- --I'm not sure I understand your
17 question° Try and rephrase ita
18 Q In any of the telephone conversations- -_
19 A Right.
20 Q ---that you have had with counsel for the de- !~
21 fens°, have you been advised of the name of any of the wit-
22 nesses who have testified previously?
23 A Only one,
24 Q And what witness was that you were told over
25 the telephone?

401-8`h STREET NE
13
1 A That would be Dr. Leestma.
2 Q Okay. Were you told anything whatsoever about
3 the substance of his testimony?
4 A No.
5 Q What was the conversation about in. which you
6 were told- --in which the name, Dr. Leestma, came up?
7 '~I A The conversations that we had regarding Dr.
8 Leestma were all conversations before the trial.
9 Q Okay, I'm only asking you about after the trial
10 (began.
11 A Oh, after the trial.
12 Q Yes, sir.
13 A Oh, none.
14 Q Okay, so you're telling the Court and I'm just
15 trying to make sure we're all on the same page. You're !,
16 telling the Court that in no telephone conversations has the''
17 name of any witness who testified previously been described
18 to you.
19 A Yes, that's correct,
20 Q Okay, Now, with respect to e-mail communica-
21 Lions, how many would you say you have received from counsel
22 for the defense since the beginning of the trial in which
23 the name of witnesses who have testified has been disclosed?
24 A There are none that ~ recall,
25 Q Are you sure?

401-8°i STREET NE
14
1 A As we sit here today, I can't say I'm positive.
2 I'd have to go back and look but I'm reasonably sure.
3 Q Okay. Thank you. We'll ~o on and maybe come
4 back to that.
5 A Sure.
6 Q Among the e-mail communications that you've re-
7 ceived from counsel since the beginning of the case---
8 MR. LAWRENCE: Case or trial? Sorry, case or tri-
9 al?
10 Q Thank youe
11 MR. LAWRENCE: Thank you.
12 Q Since the beginning of the trial, in how many
13 e-mail communications have you been advised of_ the substance
14 of the testimony of a witness who has testified previously
15 in the trial?
16 A The substance of the testimony of a witness who
17 has testified previously during the trial. Specifically,
18 with regards to specific witnesses, there were none that I
19 can recall.
20 Q Are you sure?
21 A Reasonably sure.
22 Q Okay, all right, now let me show you a document
23 that we've marked as Exhibit A of the Commonwealth.
24
25

401-8`h STREET NE
15
1 (Counsel confers at this time)
3
Q Let me show you this document that is marked as
4
Exhibit A of the Commonwealth, and up at the top it has the
5
name, Rhonda Quagliana, and on the from line, it has Jack
6 10th
Daniel. On the sent line, it has, Friday, February
7
2012, and on the to line, it includes, Ruscinski@aol.com,
8 Could you look at that
and the re line says, Dr. Virmani.
9
and please take your time to read it?
10 (Reviewing) Okay.
A
11
Q Okay, now, were you able to look at that and
12
understand it?
13 Reasonably so, yese
A
14
Q Okay. Do you remember being a party to those
15
communications?
16 I may have received the e-mail, but I
A No,
17
don't recall reading this.
18
Q Is your e-mail address R-u-s-c-i-n-s-k-
19
i@aol.com?
20
A That's correct.
21
Q And does that e-mail refer- --let me look at it
22
for a moment. In the original message portion, identifying
23
from, and then to, does that identify Dre Virmani and in the
24
paragraphs describe the substance of her testimony?
25

401-8~h STREET NE
1 A Yes, it does, or it seems toe
2 Q All right. Did you or did you not receive it?
3 A According to this, T received it, but to be
4 honest with you, I'm not sure if I ever opened it and I
5 don't recall reading it.
6 Q Are you able to say with any greater degree of
7 certainty than that?
8 A Well, I'm reasonably certain about this because
9 the language is not familiar to me.
10 Q which language are you relying on to make that
11 determination.?
12 A First, effective CPR by definition involves re-
13 peated pulses of increased intervascular, etcetera, etcet-
14 era, etcetera, and then she ended up by testifying. 1 don't
15 recall reading an. e-mail with that kind of verbiage°
16 Q Regardless of the source of the in:Eormation, do
17 you recall having received information about the substance
18 of the cardiac pathologist who testified for' the Common-
19 wealth in this case? Her name is Dr. Renu Virmanie
20 A I do recall- --I thought it was a report on car-
21 diac pathology. If my recollection serves me correctly, it
22 was a report on cardiac pathology.
23 Q And what I'm asking you: about communications
24 after this trial began.
25 A After this trial began.

401-8"' STREET NE
17
1 Q Yes, sir.
2 A I don't remember if it was before or after the
3 trial began. I just remember receiving it, but I think it
4 was a report, not an e-mail.
S Q Thank you. Now, 1e L- me show you some- --let me
6 show you an exhibit marked---we'll move For introduction of
7 A.
9 MRe LAWRENCE: No objection.
10 THE COURT: A11 right.
11 MR. LAWRENCE: Your Honor, this would be (inaudi-
12 ble) .
i~ MR. CHAPMAN: Not something that would go to the
14 ~ urors ,
15 MR. LAWRENCE: Your Honor, maybe call it Chambers
16 Exhibit 1?
17 THE COURT: Chambers Exhibit 1?
18 THE CLERK: It's marked with A so I'll put Cham-
19 bers___
20 THE COURT: Why don't we call it- --
21 MRa CHAPMAN: We're numbering it. We're lettering
22 ita I'm sorry. Thank you.
23 MR. LAWRENCE: I don't care just as long as you
24 understand (inaudible).
25 MR. CHAPMAN: It's not to go to the (inaudible),

401-8"' STREET NE
1 THE COURT: It's a motion- --Commonwealth's Motion
4 (Commonwealth's Motion Exhibit A was so marked and
5 received into evidence at this time)
8 Q Let me- - -let show you this exhibit marked B of
9 the Commonwealth and ask you if you would take a look at
10 that, please?
11 1~ (Reviewing) Okaya
12 Q Have you had an opportunity to read it in full?
13 A Yeso
14 Q Are you able to understand what's shown in
15 there?
16 Z~ Yes, I think so.
17 Q If I could borrow it but I'll hold it so you
18 can see it. Now, to identify this for the record, it's a
19 document that up in the left-hand corner shows, Rhonda
20 Quaglianae In the from section, it says Jack Daniel, In
21 the sent section, it says, Friday, February lOt'', 2010. In
22 the to section it says, rgCstlaw,va.com, subject, re: testi-
23 ',moray, and then. in the original message section, it refers in
24 the from section, Rhonda Quagliana and in the to section, it
25 refers to Jack Daniel, J. Leestma, and R. Uscinski, sent

401-8~h STREET NE
19
1 Friday, February 10th, 2010, Re/Subject: testimony, and it
2 talks about, they had a cardiac guy testify yesterday. Now,
3 do you recall receiving this e-mail? It says, Cardiac/ER
4 guy,
5 A Right. This is- --this is going to sound dumb,
6 but I don't- - -I don't know. I don't recall specifically. I
7 may have received it, but I don't recall specifically look-
8 in.g at this e-mail.
9 Q Have you received any communications since the
ZO trial began regarding the question of the effect of blood
1]. pressure that can be created or established by CPR and from
12 that, the likelihood or lack of likelihood of producing
13 hemorrhage in some remote part of the body such as the
14 brain?
15 A To the best of my recollection, I recall some-
16 thing about pressures of 90 to 100 or maybe 80 to 100 but
Z7 nothing more, nothing more- --I'm aFraid I can say nothing
18 more than that.
19 Q Okay, so might that information received by you
20 have come from this e-mail?
21 A I suppose it's possible. There are things in
22 this that I- --as T'm looking at it, there are things in this
23 that I don't recall and there are things that Z don't agree
24 with also, but then that's the best I can tell you.
25

401-II`h STREET NE
20
1 Q Have you come prepared to talk about this sub-
2 ject matter?
3 A .This?
4 Q Yes.
5 A No.
6 Q Not at all, any whatsoever° You're not going
7 to talk as a witness about blood pressure in .remote areas of
8 the body- --
9 A No.
10 Q ---established by CPR?
11 A No.
12 Q Now looking at paragraphs up at the top, the
13 reply by hack Daniel, the numbered paragraphs, has any of
14 the information in those numbered paragraphs come to your
15 attention?
16 A Has any of this come to my attention?
17 Q Since the beginning of the trial,
18 A I would have to---yes.
19 Q Okay, and what was the source of that communi-
20 cation?
21 A The only thing I can tell you is that I seem to
22 have seen it in print° The only print I see is the e-mail,
23 and as I said, I don't recall the e-mails, but, you know,
24 it's not impossible that I've seen it. That's the best I
25 can tell you (inaudible).

401-8`h STREET NE
21
1 MR. LAWRENCE: If counsel could- - -I'm not- --if
2 counsel identify- - -in most cases, counsel has identified who
3 it was apparently sent to (unintelligible)---
4 Q Sure.
5 MR. LAWRENCE: - --at this time so
6 Q This is a reply rq@stlaw.virginia.com. It
7 does not appear to have included you in the reply.
8 A Right.
9 Q Right, but my question is, from any other
10 source or by some other e-mail has the information in any of
11 the numbered paragraphs in Jack Daniel's reply come to your
12 attention since the beginning of the trial?
13 A No.
14 Q Have you come prepared to discuss in your tes-
15 timony any of the information contained in the numbered par-
16 agraphs?
17 A Numbered para- - -you mean numbers 1, 2, 3, 4,
18 and 5?
19 Q Yes, sir,
20 A In the generic sense, T'm not prepared, but
21 item #l.
22 Q when you say, in a generic sense, I'm not pre-
23 pared, let me ask you if you could explain that° I may not
24 be fully appreciating what you're describing.
25

401-8`h STREET NE
22
1 A We11, Z---the statement is, the whole purpose
2 of CPR is to get blood to the brain and that's correct. If
3 anybody wants me to talk about that, I can talk about that.
4 Q That's something from your general training,
5 education, and experience about what you could talk at any
6 given moment.
7 A And taking CPR courses, yes.
8 Q What I'm hearing you say is that as a result of
9 any communication since the beginning of the case, the sub-
10 stance of---
11 MR. LAWRENCE: The trial, I'm sorry.
12 Q Trial, thank you.
13 THE COURT: Trial, yeah.
14 Q The substance and information contained in the
15 numbered paragraphs has not been brought to your attention
16 through any means.
17 A I don't believe so.
18 Q All right, thank you. Move for the introduc-
19 tion of B.
20 MR. LAWRENCE: No objection.
21 THE COURTa Okaye B will be admitted,
22
23 (Commonwealth's Motioxz Exhibit B was so marked and
25

401-8~h STREET NE
23
1 Q Showing you Exhibit 3 which is the---
2 MR. LAWRENCE: C.
3 Q - --C. If you would take your time to look at
4 lit first.
5 A (Reviewing) Yes, I remember it.
6 Q How is it that you're able to remember that?
7 A well, I wrote- - -I wrote the first paragraph.
8 Q Okay. Now, first, let me direct your atten-
9 tion- - -and to clarify it and identify it for the record. Up
10 in the left hand, it has the printed information, Rhonda
11 Quagliana, from Ruscinski@aol.com sent Tuesday, February
12 14th, 2012 to Docyak@aol.com, rq@stlawvirginia.com, and
13 and Jleestma@aol.com, and it contains verbiage that we'll
14 get back to, but down in the original message part, it's
15 from Rhonda Quagliana at rq@stlawvirginia.com to J, Leestma,
16 R. Uscinski and Jack Daniel and directing your attention,
17 the paragraph that was sent to you to which you responded,
18 does that provide you information about the substance of
19 testimony in this trial after its commencement and before
20 your own testimony?
21 A You mean the bottom half- --
22 Q Yes, sire
23 A From Quagliana? Yes, it does,
24 Q Okay, and did you reply to that?
25 A 'Yes.

401-8'h STREET NE
24
1 Q The reply that you made, is that the infor-
2 mation to which you were replying?
3 A Yes.
4 Q Now, in your reply, you refer to reperfusion in
5 the, quote, watershed area, may lead to bleeding if that
6 alone is the area. Now, before receiving the communication
7 from Ms. Quagliana on February 14th, had you prepared your-
8 self in this case, specifically in this trial, to talk about
9 reperfusion injury and the effects of it observed typically
10 in watershed areas of the brain?
11 A Yes to the first part, no to the second, mean-
12 ing,- --let me- --I can clarify it if you want. I understand
13 the concepts of reperfusion injury and I am somewhat famil-
14 iar with that concept. As far as addressing the topic of
15 the, quote, watershed area, no.
16 Q So that topic had not come to your attention
17 before this communication to you.
18 A Right.
19 Q And you did address the substance of that topic
20 in your response to the e-mail.
21 A I did.
22 Q And agreed, sounds okay, and then went on to
23 say, in a superficial sense, but not when subjected to a
24 little more thinking°
25 A Right,

401-8~`' STREET NE
25
1 Q And you have prepared yourself to address that
2 topic now as a result of this.
3 A I would say no more prepared than I would have
4 been had it been introduced de novo:
5 Q And had this not been communicated to you, you
6 wouldn't even have known.
7 A Wouldn't have known- --
8 Q That it was a topic of potential testimony for
9 you in this trial.
10 A That's correct, as would be the case with CPR
11 and just general information.
12 Q But you've had this many days within which to
13 prepare.
14 A Except I haven't prepared.
15 Q So you are unprepared to talk about that topic.
16 A I am no more or less prepared than I would have
17 ~'~been had this been introduced de novo without any prior com-
18 munication.
19 Q Now, when you write in your reply, I suspect
20 the pathologist will agree to that, you're suggesting to Ms.
21 Quagliana they're the ones to address this topic at trial.
22 A Noe I'm just suggesting that they agree with.
23 I .i t e
24 Q That phrase doesn't have anything to do with,
25 get this from somebody else like Dr. Leestma?

401-8~h STREET NE
26
1 A No.
2 Q Who you copied on your reply.
3 A Right, no.
4 Q That isn't what you mean by that.
5 A That's correct°
6 Q Explain to me again what it is you mean by
7 that.
8 A Sure. This is fundamental information and this
9 is stuff that I learned in medical school and certainly in
10 the training as a neurosurgeon, and it has to do with the
11 circulation to the brain and my reply is actually a generic
12 reply. I'm very familiar with the concept of watershed
13 zones in blood flow to the brain and that was really what I
14 was saying.
15 Q But you invited the consideration of the use of
16 the other medical doctors in the defense side of the case in
17 your reply.
18 A Simply because this is general information and
19 I believed that they were going to agree with it.
20 Q That's not a hint of, talk to them about that?
21 A No.
22 Q Thank youo Move for introduction of C,
23 THE COURT: Okay, C wi11 be admitted.
24
25

401-8"' STREET NE
27
1 (Commonwealth's Motion Exhibit C was so marked and
4 Q Giving you Exhibit D of the Commonwealth.
6 Q Tf you would look at that.
7 A (Reviewing) Okaye
8 Q Did you have an opportunity to read and under-
9 stand it?
10 A Yes.
11 Q All right. Now, this is, to identify for the
12 record, up in the left hand side, Rhonda Quagliana, from
13 Jack Daniel, sent Tuesday, February 14th, 2012, to
14 rq@stlawvirginia,com, not to you. It doesn't appear to have
15 copied you on that, regarding attachments 1987, Gueugniaud,
16 Subarachnoid Hemorrhage/A Complication of CPR, and in the
17 original message portion, from Rhonda Quagliana to J.
18 Leestma, R. Uscinski, and Jack Daniel, this would appear to
19 be a second response by Dr. Daniel to an earlier e-mail that
20 we've asked you about and you've described previously. Do
21 you recall seeing this e-mail?
22 A From Daniel, I don't,
23 Q Do you recall having received communication
24 since the beginning of this trial regarding the substantive
25 information of a letter to the editor or this reference to

401-8"' STREET NE
1 1987, Gueugniaud, Subarachnoid Hemorrhage, with references
2 to Hashimoto and Gueugniaud?
3 A No.
4 Q Did you receive from any source any communica-
5 tion on those topics?
6 A I just don't recall, It certainly would stand
7 out in my mind.
8 Q Okay, move for the introduction of D.
9 MR. LAWRENCE: No objection.
10 THE COURT: All right°
11
12 (Commonwealth's Motion D was so marked and re-
13 ceived into evidence at this time)
14
15 Q Now, have you had any communication during the
16 course of this trial independently of e-mails from Ms.
17 Quagliana, from Dr, Jack Daniel?
18 A I saw him because he was here. I saw him yes-
19 terday.
20 Q Did you communicate with him about the case?
21 1~ No.
22 Q Since the beginning of this trial, have you had
23 any communication, regardless of the means, with Dr. San
24 Leestma?
25 A Since the beginning of the trial?

401-8`h STREET NE
29
1 Q Yes.
2 A Have I had any communication with him?
3 Q Yes.
4 A Yes.
5 Q And what communications and when?
6 A Well, we had dinner together the night after
7 his testimony.
8 Q The night after his testimony?
9 A Right.
10 Q Okay, and what did you talk about in the way of
11 his testimony at the dinner you had after his testimony?
12 A We didn't talk about his testimony.
13 Q Have you had any other communication from him?
14 A From him?
15 Q From him.
16 A No.
17 Q Is there any communication you can think of
18 since the beginning of this trial that has taken place that
19 has exposed you to the name of witnesses who have previously
20 testified or to the substance of their testimony?
21 A None that I can think

ofe
22 Q Okay. Now, when you got the e-mai.l to which
23 you responded, what was your. thinking about whether or not
24 that was okay to receive it and okay to respond to it?
25

401-8'h STREET NE
30
1 A It's important to understand I'm behind about
2 four thousand (4,000) e-mails and- --behind, four thousand
3 (4,000) unopened emails and I'm opening up as best I can.
4 Q I'm asking you about this one.
5 A Right, I understand. My thinking was Z would
6 look at them and just not think about them.
7 Q Why doesn't it remain or become four thousand
8 and one (4 , 001) of the unopened?
9 A Pardon?
10 Q I mean, you opened this one.
11 A Yes.
12 Q So it wasn't one of the four thousand (4,000)
13 unopened.
14 A Right.
15 Q It's catch as catch can.
16 Q And then why didn't it occur to you that it was
17 not okay for you to receive it?
18 A I'm sorry?
19 Q Why did it not occur to you that it was not all
20 right for you to receive that e-mail in light of it bringing
21 to your attention the testimony of a witness who---
22 A Simply because 1 wasn't thinking along those
23 lines, and I don't really pay much attention to witness tes-
24 timonye My aim of being here is to give my testimony.
25

401-8'h STREET NE
31
1 Q But you're an experienced witness and you know
2 what the rules areo
3 A I understand that.
4 Q And so why didn't it just- - -why isn't there a
5 light bulb that goes off right then, this is not right?
6 A Well, that may be quite exactly what happened.
7 It's just I looked at it and didn't say, gee, I'm not sup-
8 posed to have this. I looked at it and said, forget about
9 it, something else.
10 Q Those are two different things.
11 A I understand that, but that's the best answer I
12 can give you as I sit here,
13 Q Thank you,
14 A You're welcome.
15 THE COURT: Cross-examine?
16 MR. LAWRENCE: Yes, sire
17
18 CROSS-EXAMINATION
19 By: Mr. Lawrence
20 Q Dr. Uscinski, how long have you been a doctor?
21 A Since 19680
22 Q And do you get e-mail from a lawyer and assume
23 the lawyer is acting properly?
24 A Yes.
25

401-5`h STREET NE
32
1 Q Okay. May I see, please, the- --Dr. Virmani's-
3 THE COURT: Let's give the exhibits back.
4 Q And also Dr, Virmani- --
5 THE COURT: Just pass them back, yeah.
7 (Court and Clerk confer at this time)
9
THE COURT: It may be helpFul just so they can
io access theme
11
Q Let me have these in your hand. Thank youe
12
Dr. Uscinski, I'm handing you what's been admitted into evi-
13
Bence as Commonwealth's Exhibit 149. I'd ask you to take a
~4
look at that, please.
15
MRe CHAPMAN: Now, he's not going to be able to
16
testify about any of this whatsoever if he looks at this.
17
i THE COURT: Yeah, (inaudible).
18
', Q Judge, Judge, let me say something, Your Hon-
19
or.
20
THE COURT: Yeah, yeah, I- --
21
Q This is- --one of the things that---this is in
22
evidence and witnesses- --expert witnesses can- --
23
THE COURT: Well, is this something he's already
24
been given because it was given to you in discovery?
25

401-8`h STREET NE
33
1 Q The question of him by counsel was, Virmani,
2 did he read that e-mail? He didn't recall reading ite He
3 recalled that he had seen a report and so I wanted to re-
4 fresh his memory to see- - -let me just show him the date of
5 the report.
6 THE COURT: Well, let's stop right here. Is this
7 something that you were given in discovery that was-- -that
8 you shared?
9 MR. CHA~MAN: This would have been filed with the
10 Court. Tt was filed under seal as part of the disclosure by
11 the Commonwealth of the reports that were provided°
12 THE COURT: So this report would have been given
13 to counsel (inaudible) trial°
14 MR. CHAPMAN: Yes, definitely.
15 THE COURT: And with leave for counsel to show to
16 experts.
17 MR. CHAPMAN: Yes, definitely,
18 THE COURT: Okay, so that's not the issue.
19 MR. CHAPMAN: So I don't have any objection- --I
20 don't have any objection to, in an appropriate way, deter-
21 mining if he is able to recognize the report as one he re-
22 ceived or was likely to have received it.
23 Q I'l1 hold it just far enough away so you can
24 see it but not read it.
25 A Got it.

401-8"' STREET NE
34
1 I, Q Doctor, is this-- -does this refresh your
2 memory as to whether you had seen a report from Dr. Virmani?
3 A Yes.
4 Q Okay, and can you tell us whether you have
5 seen Exhibit 149 before the trial started?
6 A Before the trial started, I think I did, but I
7 don't recall for sure.
8 Q Okay. Hand these back to counsel, and having
9 seen that and having also looked at the e-mail that's in Ex-
10 h.ibit A, does that help you make a decision about whether
11 you got information from Dr. Virmani from the e-mail or from
12 the report?
13 A From the report.
14 Q Okay. Now if I understand your response to
15 counsel with respect to D, is that you don't expect to offer
16 any testimony in those areas.
17 A That's correct.
18 Q .And you have it in front of you so make sure
19 you're lool~ing at it.
20 MR. CHAPMAN: Yeah, he has it,
21 Q He's got it, Your Honor.
23 Q Okaye And then with respect to-- -anal now I'm
24 moving to C. With respect to C, which deals with your e-
25

401-8`h STREET NE
351
1 mail in response to Ms. Quagliana's e-mail, is that a
2 subject matter that you do not intend to offer testimony on?
3 A C?
Q Reperfusion in the watershed area and the
5 other one deals with testimony that was offered today.
6 A No.
7 THE COURT: No, what? No means you're prepared
8 not to testify about that, is that right?
9 A Either waye
10 THE COURT: You're not going to testify about ite
11 A Either way. I mean, I'm not- --I didn't read
12 anything since or absorb anything since receiving this e-
13 mail specifically with regards to testimony in this
14 particular Subject. It's just simply background information
15 that I have.
16 THE COURT: Okay, all right, all right.
17 Q May I have one second, Your Honor?
18 THE COURT: Yes.
19 (Pause) And then D is a reinstatement of C
20 with respect to Dr. Daniel's response there. Was that
21 information that you were aware of or intended. to use? To
22 of D,
23
24
25

401-8`h STREET NE
36
1 Q Is there any question in your mind that the
2 opinion that you will render to this jury is completely your
3 own work and completely your own thinking unaffected by
4 anything else?
5 A There's no such question.
6 Q Saying that mostly in your thirty-five (35)
7 years of work?
8 A Right, there's no such question in my mind.
9 Q And had you developed your view and opinion of
10 the case prior to the trial beginning on the 6th of
11 February?
12 A Yes.
13 Q And it's whatever testimony you give in this
14 trial going to be that same opinion?
15 A Yes.
16 Q Is there any question at all in your mind
17 about that?
18 A No.
19 Q Those are my questions.
20 THE COURT:- Any redirect?
21
22
23
24
25

401-8'h STREET NE
37
1 REDIRECT EXAMINATION
2 By; Mr. Chapman
3 Q Did you write it down in a report previously?
4 ~! A Did I- --
5 Q Did you write your opinion down in a report
6 previously?
7 A I think I wrote a paragraph on my opinion.
S Q A big one or a little one?
9 A A little one.
10 Q And who did you send it to?
11 A Z believe I sent it to Ms. Quaglianae
12 Q And was that handwritten or typed?
13 A No, it was typed.
14 Q Did you sign it?
15 A I don't remember if I signed it or not. 1
16 don't think I did.
17 Q Did you in. some way identify it with yourself?
18 A Well, I think T sent it as a document attached
19 to an e-mail, if I recallo
20 Q Okay, and what would have been the approximate
21 date of that?
22 A Oh, gosh, I don't remember. It wasn't
23 recently. It was months and months and months ago.
24 Q Thank you,
25

401-8"' STREET NE
1 MR. LAWRENCE: Follow up on that. Follow up on
2 that?
3 THE COURT: Yes.
5 RECROSS-EXAMINATION
6 By: Mr. Lawrence
7 Q I can find the document. You got a copy of the
8 letter from Ms, Quagliana that had some opinions of experts
9 in it, and in that letter she asked you to confirm in e-mail
10 that that was your opinion.
11 A Right.
12 Q Does that refresh your memory?
13 A Yes,
14 Q Is that what you responded to?
15 A Yes.
16 Q To confirm so that you were on record of having
17 adopted that information°
18 A Yes, that's correct.
19 MRe CHAPMAN: But that wouldn't have been months
20 and months ago. That would be on or about January 9th of
21 this year or later.
22 A That~s correct, but my opinion was expressed
23 months and months earlier,
24 MR. CHAPMAN: In writing to counsel?
25 A I believe so.

401-8~h STREET NE
391
1 THE COURT: Anything else?
2 MR. CHAPMAN: No.
3 THE COURT: All right, can we excuse the doctor
4 while we take this up?
5 MR. CHAPMAN: Yes, sir.
6 THE COURT: All right, Doctor, if you'll stand
7 down and go with the sergeant?
8 A Yes, sir.
9 THE COURT: All right, and we'll go from here.
10 Please stay in the building.
11 A I won't go far.
12 THE COURT: Okay, thank you, sir. All right, Mr.
13 Chapman.
14 MR. CHAPMAN: Judge, of course, you've had the
15 opportunity to hear from him firsthand and see how he
16 appeared while he was testifying, and we are at the mercy of
17 what he says and we're at the mercy of what he says because
18 of something that should never have happened. The purpose
19 of excluding the witnesses from the courtroom is, of course,
20 to deprive a later witness of the opportunity of shaping his

i
21 testimony to correspond to that of an earlier one, and we ~'
22 would add to that, or to know new and additional topics
23 addressed by other witnesses that they may be called upon to
24 address and this witness had very clearly had identified to
25 him new and different topics. Whether he could do it off

401-8~h STREET NE
1 Ithe seat of his pants or not, there's an advantage in
2 knowing that that's a topic that he may need to address if
3 he has that knowledge and that shouldn't happen unless it
4 happens in a perfectly appropriate way and it didn't here°
5 Counsel know and are responsible to the Court not to cause
6 any indirect violation of the rule by themselves discussing
7 what has occurred in the courtroom with the witnesses. The
8 factors to be considered in resolving the question include
9 whether there was prejudice- --in the particular case I'm
10 referring to, the Bennett case, it's prejudice to the
11 defendant, and almost all cases come up in that manner.
12 Whether there's prejudice to the defendant here, it's
13 whether there's prejudice to the Commonwealth where there is
14 intentional impropriety. It is pertinent whether the out-
15 of-court comments concern any substantive aspect of the case
16 and whether they have any effect on the witness' testimony.
17 These clearly touch and concern substantive aspects of the
"18 case and we're left to the evaluation of his credibility to
19 determine whether it has had any effect on him, and we
20 submit to the Court that to the extent that you're made
21 aware in advance of topics of possible discussion, you're
22 given a material advantage that you would not have otherwise
23 have because it's different from being in the midst of
24 cross-examination or examination and (iunintelligible) to
25 address something that you don't know coming in comparison.

401-8~h STREET NE
41
1 to something that's brought to your attention days in
2 advance when it shouldn't be. The Commonwealth---it's just-
3 --it is beyond belief that we're having to address this
4 issue in the middle of this trial. We throw our file open
5 to the defense from the inception of the case after the
6 offense occurs and it continues throughout the case. We
7 raised the issue with the Court previously about the lack of
8 reports, and Your Honor has no objective standard against
9 which to measure what this gentleman or any of the others
10 have said and that is- --in the absence of that, the Court
11 can't make a finding that this gentleman is completely
12 without taint.
13 MR. LAWRENCE° May it please the Court.
14 THE COURT: Yeah.
15 MR, LAWRENCE: We have a doctor of longstanding
16 who is imminently qualified and who the Court could view on
17 the stand. Basically, he looked at each one of these things
18 and gave the Court his candid, open response to it and he's
19 telling us that these are not areas in which he is going to
20 be testifying an/or he is not. aware of seeing the
21 information, and he tells in direct examination he says
22 about Dr. Virmani, I remember information about that from a
23 report, and at that point, there's na evidence that there
24 was such a report. Of course, there was a report and it was
25 exchanged amongst counsel and it was sent to him quite

401-8~`' STREET NE
42
1 properly. That's the source of his providing information.
2 He has testified in a candid manner, responded to Mr.
3 Chapman's questions. He looked the Court in the eye in
4 terms of it not having any impact or influence at all on his
5 testimony. I think- --I think the Court's not going to have
6 any hesitation about that. It's our job to take care of the
7 lawyer rules in our interplay with the professional
8 witnesses, and it's his job to give his testimony based on
9 his experience in a forthright manner and I think that's
10 what he did and, Judge, the authority in the area is pretty
11 significant. You know, we- --the defendant, Mr. Huguely, has
12 a right to his evidence and this is not going to affect the
13 testimony of this doctor. It's not going to do that° He
14 doesn't need it, in fact. He wouldn't use that so, Judge,
15 we recognize we created this problem and, you know,
16 certainly whatever has to happen happens, but now we have
17 this young man on trial basically for his future and it's a
18 trial that has been fairly run and this witness is so
19 important, critical, and there's no question that he is
20 going to testify from his own study and experience, not from
21 somebody else.
22 THE COURT: You want to respond?
23 MR. CHAPMANo Judge, the only response I would
24 make is that, that's great° I mean, we've gone out of our
25 way in every way, shape, and form to provide this gentleman
L.ANE'S COURT REPORTERS

401-8'h STREET NE
43
1 with a fair trial, but how can you separate what has
2 happened from the intentional, and as it appears from these
3 e-mails, systematic violation of the rule as a tactic daring
4 the Court to take extreme relief which the Court would be
5 enormously reluctant and properly so to take? How can you
6 tell the difference between A and B?
7 MR. LAWRENCE: Judge, let me- - -I asked to respond
8 to this, Your Honor. The Court had a long practice as an
9 attorney and the way this information is conveyed carefully
10 and thoughtfully and when you're not in the middle of a big
11 trial, you give all the information out that you don't
12 attribute to witnesses. You say, be prepared to address
13 blood pressure between 80 and 100e Be prepared to address
14 the watershed issues, Be prepared to do every single fact
15 in those letters could probably, if carefully, been sent to
16 the expert. That's what we do and so it was amazingly
17 thoughtless and sort of-- -what were you thinking? - but it
18 was not calculated and all the information could have gotten
19 there some other way, and this witness has said, that
20 information, one, I'm not either not using it or I'm not
21 going to- - -I'm either not testifying in that area or I'm not
22 going to use it.
23 THE COURT: All right, last- --you get---your
24 motion.
25 MR. CHAPMANa Your Honor, we would---

401-8`h STREET NE
~4
1 THE COURT: This is where I am with it. Did you
2 (want to add something?
3 MR. CHAPMAN: No, sir, we've been heard.
4 THE COURT: Mr. Worrell seems to want to say
5 something or talk to you. This is very troublesome and I
6 wouldn't have expected this from counsel and I'm incredibly
7 disappointed with it, but this is an incredibly important
8 issue for the parties and I'm not going to bar him from
9 testimony generally, but I'm not going to let him testify
10 about reperfusion and the items that---that particular item
11 he said that he wasn't going to testify to, and I think the
12 other items to which he has agreed that he isn't going to---
13 counsel is agreeing he will not testify about. Of course,
14 the exception is, if the subject is offered in cross-
15 examination by the Commonwealth and opens the door to these
16 things, then that might be something we'd revisit. The
17 other thing I want to revisit, if it appears during the
18 course of his testimony that for some reason he appears to
19 have, indeed, been influenced by these e-mails and improper
20 communication about the prior testimony of the case, then
21 I'll look at this again, so---but I think at this point, I
22 think the doctor's pretty persuasive that this really wasn't
23 a whole lot that he gave much attention to, and given how
24 busy these neurosurgeons are, I know that because I've tried
25 a lot of cases (unintelligible) surgeons, and if he's not

401-8"' STREET NE
45
1 busy, he's the only one I know that's not busy, so I'm going
2 to grant the motion in part and deny it in part, and the
3 part I'm granting is he's not going to be able to testify
4 about the items that I'll hear- --particularly- - -I'm focusing
5 on the reperfusion part of it and on the rest of it where he
6 has agreed and counsel has agreed that it won't be covered.
7 MR. CHAPMAN: Does that include CPR?
8 THE COURT: Even CPR. So, with that can we- --
9 MR, CHAPMAN: Judge, I need- --
11 MR. CHAPMPN: - --to make sure we have specificity
12 on that.
13 THE COURT: ---okay.
14 MR. LAWRENCE: (Unintelligible) otherwise we would
15 get in an awkward- --
16 THE COURT: All right, absolutely.
17 MR. CHAPMAN: Jack Daniel replied- --
18 THE COURT: Those four points?
19 MR, CHAPMAN: Yes, including cerebral-vascular
20 damage brought up iri Ms. Quagliana's e-mail. It's the
21 numbered paragraph three- --
22 THE COURT: Yeah.
23 MR. CHAPMAN: - --in Jack Daniel's reply, but it
24 relates to the information brought up in Ms. Quagliana's
25 originating e-mail°

401-8`F' STREET NE
1 THE COURT: To me the critical areas of this- --the
2 ramifications around that reperfusion answer. Did he
3 generate it in response to the information? He actually
4 testified he doesn't even remember seeing the rest of it as
5 I recall and has no memory of it, so, I mean, I think that's
6 the critical part and then if you are going to identify
7 others so we can talk about it, that's fine, but it seems to
8 me that---the CPR. and the reperfusion is the- --is what he's
9 clearly focused his response to.
10 MR. LAWRENCE: Thank you, Your Honor,
11 THE COURT: Mr. Chapman.
12 MR. CHAPMAN: well, thank you. Now, there are two
13 things. One is counsel has represented that Dr. Jack Daniel
14 will not testify so, obviously, we don't- --no need to go
15 into that. So as far as I know, it's a unique issue when
16 this is discovered after a witness has already testified.
17 THE COURT: Yeah, it is.
18 MR. CHAPMAN: And---
19 THE COURT: I'm not going to be able to address
20 that now I don't think, and if further information comes to
21 light and you want to address it later, we can talk about
22 it, but I'd like to continue, get the witness on/off. We've
23 got a lot to do.
24 MR, CHAPMAN: So Your Honor at an appropriate
25 time---

401-8`h STREET NE
47
1 THE COURT: I reserve on that.
2 MR. CHAPMAN: - --(unintelligible) entertain such
3 whatever process is needed, obviously, not in the presence
4 of the jury.
5 THE COURT: Yeah to address that issue if either
6 side wishes to address it, all right? Now, do we need a
7 break before we pick up from here?
8 MR. LAWRENCE: Yes, thank you, Your Honor.
9 THE COURT: Yes.
10 MR. CHAPMAN: Judge, we would except Court's
11 ruling allowing Dr. Uscin]cski to testify at all,---
12 THE COURT: Absolutely.
13 MR. CHAPMAN: ---and we understand the Court's
14 ruling related to two specific topic areas and except from
15 it because of the objection we have to ruling itself.
17 MR. LAWRENCE: And, Judge, -- --sorry.
18 THE COURT: We'll---
19 MR. LAWRENCE: We object, too, Your Honor. We

i
20 think the doctor- --the Court found him to be credible and
21 none of this would have any influence on. his testimony,
22 THE COURT: Okay, yeahe The problem is I'm not so
23 sure about the part that I've ruled on, and he's---
24 MR. LAWRENCE: Thank you, Your Honor.
25 THE COURT: - --agreed to it and --

401-8~h STREET NE
1 MR. CHAPMAN: We will---just to preserve the
2 issue, we will go ahead and make a motion right now to
3 strike Dr. Leestma's testimony.
4 THE COURT: Okay, and the motion will be
5 overruled---
6 MR. CHAPMAN: And we'll defer any proceeding on
7 that.
8 THE COURT: - --in part and granted in part as I've
9 previously indicated.
11 THE COURT: Was there anything else we should put
12 on the record about that---
13 MRe CHAPMAN: No, we need- --
14 THE COURT: ---with the exhibits?
15 MR. CHAPMAN; - - -we need a couple of minutes to
16 set the exhibits upo
18 MR. CHAPMANe Thank you.
19 THE COURT: All right, we'll to}ce a few minutes
20 and then maybe about ten of we can start.
21
22 (OFF THE RECORD)
23
~4 THE BAILIFF: Remain seated. Come to order.
25

401-8"' STREET NE
226
1 started in force or started in play would have ended up in
2 her being alive for two hours at an unknown level of con-
3 sciousness was reversible and, you know, your job, unfortu-
4 nately, is to go back there and cry about this and then get
5 your tears cleaned up and find out kind of objectively
6 whether it happened. It's just tragedy on tragedy, It's
7 going to be difficult for you to separate these things out
8 and that's even another part of this that's sad and unfortu-
9 pate. She says that the injuries were a result of blunt
10 force trauma to the head, but she can't---she said she
11 couldn't rule out the other cause of death and she observed
12 injuries that are consistent with no trauma. We've already
13 done Dr. Brady, okay? I don't care what he said.. When he
14 hedged his bet the second time around about the higher level
15 of blood pressure, that was the end of him, I respectfully
16 submit. Dr. Leestma was intensely cross-examined, very com-
17 petently, very skillfully by the Commonwealth and he is a
18 respected doctor and educator, wrote the booko He is- --he
19 relies on his reputation and experience° He holds the opin-
20 ion that the oxygen asphyxia was the cause of death. He
21 holds the opinion that the blood, and this is a different
22 than Dr, Uscinski holds, but that the blood in the lower
23 brain/upper brain was the result of the reperfusion. Inter-
24 estingly, although the Commonwealth suggested that in ex-
25 pressions to its own experts that, would it be possible for

407 8~h STREET NE
227
1 reperfusion to occur in a, quote, remote area of the brain?
2 And, actually,_we Find out a little later that it's four
3 inches from the heart to the area where we're talking about
4 in the lower brainstem, and I think it's, you ]snow, like, a
5 main highway so that area would be one of the first areas
6 that would be affected by reperfusion if you're dealing with
7 one and a half inches a hundred times a minute for twenty-
8 five (25) minutes. So the- --Marjorie Harris came in and ex-
9 plained something and I'm going to show you a picture of
10 this in a minute, but in (unintelligible) part, Dr. Lopes
11 alive, and we'll talk about Marjorie Harris'- - -we look at
12 them differently than the Commonwealth does. I told you in
13 opening, you don't show movement. She didn't get out of the
14 bed and we don't know what level of consciousness she was.
15 You know, we know she was, you know, pretty drunk also and
16 we know that George was pretty drunk also, so not necessari-'
17 ly perceiving each other perfectly, but we know that she was
18 alive for up to two hours and that she was on three differ-
19 ent spots in the bed and we'll talk about that, the last
20 spot being on her pillow where we respectfully submit she
2"1 moved herself and it was long after---you have to just use
22 your own judgment. It's long after there were a smaller
23 amount of transfer of blood accumulated in a larger amount
24 of transfer of blood accumulated and then ultimately on her
25 pillow, So, yes, in contribution, George contributed to her

407 8'h STREET NE

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Case 3:20-cv-00306-HEH Document 1 Filed 04/29/20 Page 1 of 65 PageID# 151

IN THE UNITED STATES DISTRICT COURT

GEORGE WESLEY HUGUELY V,

HAROLD CLARKE, Director, Virginia

PETITION FOR A WRIT OF HABEAS CORPUS

Jeffrey M. Harris* (VA Bar #93883)

* Pro hac vice application pending

A. The Relationship Between Mr. Huguely and Ms. Love .............................................. 5

B. Yeardley Love’s Death ................................................................................................ 6

A. Mr. Huguely’s Indictment and the Highly Sensationalized Press Coverage

2. Cause of Death/Reperfusion ........................................................................... 13

D. Direct Appeal ............................................................................................................. 17

E. State Post-Conviction Proceedings ............................................................................ 18

STANDARD OF REVIEW .......................................................................................................... 18

CLAIMS FOR RELIEF ................................................................................................................ 20

A. Mr. Huguely’s Sixth Amendment Right to Effective Assistance of Counsel Was

B. Mr. Huguely’s Sixth Amendment Right to Effective Assistance of Counsel

A. The State Courts Unreasonably Applied Clearly Established Federal Law by

B. The State Courts Unreasonably Applied Clearly Established Federal Law by

C. Mr. Huguely’s Sixth Amendment Right to an Impartial Jury Was Violated

PRAYER FOR RELIEF ............................................................................................................... 56

Brady v. Maryland, 373 U.S. 83 (1963) ....................................................................................... 37

Canipe v. Commonwealth, 25 Va. App. 629 (1997) ............................................................... 22, 54

Carty v. Thaler, 583 F.3d 244 (5th Cir. 2009) .............................................................................. 19

Clark v. United States, 289 U.S. 1 (1933) .................................................................................... 53

Connors v. United States, 158 U.S. 408 (1895) ............................................................................ 50

Dietz v. Bouldin, 136 S. Ct. 1885 (2016) ...................................................................................... 20

Dugas v. Coplan, 428 F.3d 317 (1st Cir. 2005) ............................................................................ 32

Duncan v. State of La., 391 U.S. 145 (1968) ................................................................................ 52

Gonzalez v. United States, 553 U.S. 242 (2008)........................................................................... 46

Gordon v. Braxton, 780 F.3d 196 (4th Cir. 2015) ........................................................................ 19

Harrington v. Richter, 562 U.S. 86 (2011) ................................................................................... 32

Huguely v. Commonwealth, 754 S.E.2d 557 (Va.App. 2014) ...................................................... 17

Huguely v. Commonwealth, No. 1697-12-2 (Va.App. March 27, 2014) ...................................... 17

Huguely v. Virginia, 136 S. Ct. 119 (2015) .............................................................................. 4, 17

Huguely v. Warden, Cir. Crt. File No. CL 16-23 .......................................................................... 18

In re R.D., 2012 PA Super 84, 44 A.3d 657 (2012)...................................................................... 38

In re State Record Co., 917 F.2d 124 (4th Cir. 1990)................................................................... 48

Irvin v. Dowd, 366 U.S. 717 (1961).............................................................................................. 20

Jackson v. Virginia, 443 U.S. 307 (1979) ..................................................................................... 54

Kimmelman v. Morrison, 477 U.S. 365 (1986)....................................................................... 27, 28

London v. Commonwealth, 49 Va.App. 230, 638 S.E.2d 721 (2006)........................................... 42

Marina v. Vasquez, 812 F.2d 499 (9th Cir. 1987) ........................................................................ 22

Marshall v. United States, 360 U.S. 310 (1959) ........................................................................... 52

McNeill v. Polk, 476 F.3d 206 (4th Cir. 2007) ............................................................................. 21

Miller-El v. Cockrell, 537 U.S. 322 (2003) .................................................................................. 19

Morgan v. Illinois, 504 U.S. 719 (1992) ....................................................................................... 52

Morris v. Slappy, 461 U.S. 1 (1983) ............................................................................................. 40

Murray v. Carrier, 477 U.S. 478 (1986)....................................................................................... 32

People v. Wallert, 98 A.D.2d 47 (N.Y. 1983) .............................................................................. 38

Powell v. Alabama, 287 U.S. 45 (1932) ....................................................................................... 40

Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) ..................................................... 47

Ristaino v. Ross, 424 U.S. 589 (1976) .......................................................................................... 52

Rodriguez v. Chandler, 492 F.3d 863 (7th Cir. 2007) .................................................................. 45

Rompilla v. Beard, 545 U.S. 374 (2005)................................................................................. 27, 28

Rosales-Lopez v. United States, 451 U.S. 182 (1981) .................................................................. 50

Schriro v. Landrigan, 550 U.S. 465 (2007) ............................................................................ 20, 24

Smith v. Phillips, 455 U.S. 209 (1982) ......................................................................................... 21

Strickland v. Washington, 466 U.S. 668 (1984) ............................................................... 27, 32, 36

Strickler v. Greene, 527 U.S. 263 (1999) ..................................................................................... 37

Swain v. Alabama, 380 U.S. 202 (1965) ....................................................................................... 50

Tice v. Johnson, 647 F.3d 87 (4th Cir. 2011) ............................................................................... 32

Townsend v. Sain, 372 U.S. 293 (1963)........................................................................................ 24