April 17, 1998
Record No. 971647





William W. Sweeney, Judge
Present: All the Justices

Petitioner Jens Soering was convicted in 1990 by a jury in the
Circuit Court of Bedford County of two counts of first degree
murder for the 1985 killings of Derek Haysom and Nancy Haysom in
their Bedford County home near Lynchburg. Soering is being
detained by the respondent under two terms of life imprisonment
for the murders.

In 1995, the convict filed a petition for a writ of habeas
corpus invoking the original jurisdiction of this Court. In
August 1996, the Court, pursuant to Code ? 8.01-657,
awarded the petitioner a writ of habeas corpus returnable to the
Circuit Court of Bedford County for determination of the issue
"whether the Commonwealth withheld from the defense
exculpatory evidence as alleged in claim V" of the amended
petition. The Court dismissed the remaining habeas allegations.
Claim Five of the petition alleges: "Soering’s conviction
should be reversed due to the prosecution’s withholding of Brady
material from the defense at his original trial."

In December 1996, the habeas judge, who had presided over the
criminal trial, conducted an evidentiary hearing on the issue
presented. In a June 1997 order, incorporating a 13-page
memorandum opinion, the court determined the convict’s claim is
without merit. The matter is before us for review.

Initially, the evidence adduced during the criminal trial will
be summarized. The murder victims were the parents of Elizabeth
Haysom, Soering’s girlfriend and lover. In 1984, Soering and
Elizabeth were undergraduate students at the University of
Virginia, both attending under academic scholarships. A
friendship between the pair developed into an infatuation.
Elizabeth’s parents opposed their daughter’s relationship with
Soering; this infuriated him. During this time, she also had
"feelings" of "anger" as well as
"resentment" and "hatred" toward her parents.

During the latter part of 1984 and early 1985, Soering and
Elizabeth began discussing "a lot of ideas about how [her
parents] might die." On Friday, March 29, 1985, the students
traveled in a rented vehicle from Charlottesville to Washington,
D.C., and "checked into" a hotel.

On Saturday, "it suddenly became real, we were going to
conspire and commit murder," according to Elizabeth, who was
a prosecution witness at Soering’s trial. The pair made elaborate
plans to establish an alibi to cover Soering’s trip from
Washington to her parents’ home for the purpose of killing them.
He purchased a knife before he departed Washington alone on
Saturday afternoon. She remained, and walked around Washington in
a drug-induced "haze."

Later that night, Elizabeth found Soering on a Washington
street, near where they "agreed to meet," sitting in
the rented vehicle with a bloody bedspread "draped over
him." He told her he had killed her parents.

The victims’ bodies were discovered during the day on
Wednesday, April 3. Her body was found on the kitchen floor and
his body was on the floor between the dining room and living
room. They had been stabbed in their torsos and their throats had
been cut. There were no signs of forced entry into the home.
Exterior lights were burning, but interior lights were not.
Efforts had been made to wipe footprints left in the blood at the
scene. All fingerprints at the scene had been left by known
friends or visitors, except four sets that never were identified.
No murder weapon was ever found.

No valuables had been removed from the home. Silverware, cash,
and jewelry in plain view had not been touched. The contents of a
liquor cabinet were undisturbed. The Haysoms’ motor vehicles were
parked outside and a set of car keys was found in the hallway.

Subsequently, the police investigation focused on Elizabeth,
who voluntarily furnished blood and hair samples, fingerprints,
and footprints. The police had learned about the pair’s rental of
the vehicle and that the miles the car was driven far exceeded
the round trip distance from Charlottesville to Washington. In
fact, the mileage was consistent with a trip from Charlottesville
to Washington, Washington to Bedford and back, then from
Washington to Charlottesville.

The police were unable to contact Soering until October 1985.
Initially, he refused to provide blood or hair samples,
fingerprints, or footprints, but later agreed to meet
investigators to provide the requested forensic information.
Before the appointed time, however, Soering fled to Europe,
leaving school and forfeiting scholarships that provided full
tuition and expenses. Shortly thereafter, Elizabeth fled and met
Soering in Europe.

In 1986, the Bedford police learned the pair had been arrested
and were incarcerated in London on various fraud charges. British
police had searched the pair’s apartment and found documentary
evidence linking them to the murders.

During interrogation in jail in London, Soering confessed in
detail on several occasions to having committed the murders. He
said he had traveled alone from Washington to Bedford, leaving
Elizabeth in Washington to establish an alibi for him. Upon
arriving at the Haysoms’ home, he stated, he conversed with them
over dinner at the dining room table, violence erupted, and he
killed them both by stabbing and cutting their throats. He
demonstrated to the police the manner in which their throats were

Soering stated to the police that during the killings he cut
two fingers of his left hand and that Mr. Haysom had struck him
in the face. A witness testified that, at the victims’ funeral,
Soering had bandages on his fingers and a bruise on his face.

Soering’s blood type proved to be Type "O," the same
type as unidentified blood found at the murder scene. Neither the
victims’ blood nor Elizabeth’s blood was Type "O." His
fingerprints did not match any of the four sets of unidentified
prints found at the scene.

Soering testified at the criminal trial. He denied any
participation in the planning or commission of the murders. He
testified that Elizabeth left the hotel in the rented vehicle,
telling him she had to procure some drugs while in Washington
because she was being blackmailed by another student, her
Charlottesville drug supplier, who threatened to tell her parents
of her continued drug use. According to Soering, Elizabeth
returned to the hotel room after midnight, stating, "I have
killed my parents."

Elizabeth pled guilty as an accessory before the fact to both
murders. She was sentenced to 90 years in prison.

We turn to the evidence presented at the habeas hearing. The
convict showed that, prior to the criminal trial, his attorney
filed a comprehensive discovery motion for "any and all
evidence or information within the possession, custody, or
control" of the prosecution "which is or might arguably
be exculpatory," including information "which may tend
to show that there are other individuals responsible for"
the crimes.

The focus of the 1996 evidentiary hearing was the testimony,
presented on behalf of the convict, of former Bedford County
Deputy Sheriff George Anderson. Within a week of the Haysom
murders, Anderson detained and questioned two men, William
Shifflett and Robert Albright, who were walking or hitchhiking
late at night on the Route 460 East bypass near Bedford. The
officer became suspicious of the men because he rarely had seen
persons walking there late at night. The men told Anderson they
had been to Lynchburg "to see a girl" and were headed
to Roanoke.

Anderson directed each of the men to place the contents of his
pockets on the hood of the patrol car, and then questioned each
of them while the other sat in the rear of the car. One of the
men carried a small beige tablecloth and a small, empty, nylon
travel bag. Neither carried any large amount of money nor did
there appear to be bloodstains on them or their belongings. There
was no testimony that the tablecloth or bag were items missing
from the Haysom home.

Anderson reported by radio the encounter to the Bedford
Sheriff’s Office and was told by a superior to release the men.
Anderson discussed the incident the next day with another
superior officer, who was involved in the Haysom investigation.

Ten days to two weeks after this incident, Anderson noticed
the brass end of an object protruding from the rear seat of his
patrol car. He found a Buck 110 folding knife. The knife had not
been among the belongings the two men produced when Anderson
stopped them on the bypass. Anderson did not recall that anyone
else had been in the rear seat of his car after he stopped
Shifflett and Albright, although he could not recall when, before
the bypass incident, he previously had examined the seat.

Prior to the habeas hearing, the knife Anderson discovered was
subjected, pursuant to the convict’s request, to laboratory
testing for traces of blood. There was no evidence that any blood
was found on the knife.

The medical examiner who performed the Haysom autopsies
testified that the blade of the knife was of such size and shape
that it could have been the Haysom murder weapon, although he
said it was difficult to be certain of that fact because he could
not determine precisely the dimensions of the blade of the murder
weapon from the wounds on the bodies. The knife, a common type of
folding knife, is readily available at retail stores.

On the night of April 5, Albright and Shifflett stayed under a
bridge in Roanoke. The next day, in a drunken condition and after
accosting and attempting to rob two persons, the duo met Marvin
Millikin, a street person. They forced Millikin at knife point to
a field, made him disrobe, beat and kicked him, and took his
wallet. After leaving him in the field, they returned, stabbed
him 26 times, and amputated his penis. Later, they were convicted
of Millikin’s murder.

Deputy Anderson learned of the arrests of Albright and
Shifflett for the Millikin murder and began to suspect they might
have been involved in the Haysom murders. He notified the Roanoke
police of his suspicions.

No evidence was presented that Albright or Shifflett admitted
any connection with the Haysom murders, nor was there any
evidence that Elizabeth Haysom ever met or had any connection
with either of the men. According to the record, the Roanoke
police apparently did not make any connection between the Haysom
and Millikin murders.

During Soering’s prosecution, the Commonwealth never disclosed
to the defense any circumstances of the Albright and Shifflett
stop or the later discovery of the knife in Anderson’s patrol

Upon review, the convict says there is no dispute the
prosecution withheld evidence and no dispute "what the
evidence was." He contends that the withheld evidence was
exculpatory as a matter of law and that his convictions must be

The theory of Soering’s defense was "that the crimes were
committed by Elizabeth, with one or more accomplices." He
argues, "It was established at the evidentiary hearing that
the possibility of an accomplice to work with Elizabeth, and some
suggestion as to who that might have been, was critically
important to the defense of this case because of a jury’s natural
reluctance to find that a child, even an adult child, could
commit this brutal crime on her own parents. This is even more
true where, as here, the family involved was a ‘nice’ family,
well known and respected, with money, educational benefits and
social prominence."

He contends, "This evidence – concerning the presence of
two men in the area of the crime, soon after the crime was
committed, who were known criminals, indeed murderers, and who
when stopped attempted to hide from authorities a knife which is
consistent with being the murder weapon, and who [were] never
interrogated about the Haysom crimes nor had their hair or blood
samples compared with crime scene samples – was clearly
exculpatory." We do not agree.

"[S]uppression by the prosecution of evidence favorable
to an accused upon request violates due process where the
evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the
prosecution." Brady v. Maryland, 373 U.S. 83,
87 (1963). Favorable evidence is material "only if there is
a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different. A ‘reasonable probability’ is a probability sufficient
to undermine confidence in the outcome." United States
v. Bagley, 473 U.S. 667, 682 (1985). Accord Kyles
v. Whitley, 514 U.S. 419, 433, 434 (1995). In other words,
a petitioner must show that when the case is evaluated in the
context of the entire record, including the omitted evidence, a
jury would have entertained a reasonable doubt regarding
petitioner’s guilt. See Bagley, 473 U.S. at 682; United
v. Agurs, 427 U.S. 97, 112-13 (1976). Accord
Kyles, 514 U.S. at 460 (Scalia, J., dissenting).

Additionally, evidence that is inadmissible at trial is not
"evidence" at all, for Brady purposes. Wood
v. Bartholomew, 516 U.S. 1, 5-6 (1995). Thus, it is not
"reasonably likely" that disclosure of such information
would result in a different outcome at trial. Id. at 8.

Urging denial of the habeas petition, the Attorney General
contends that "the information concerning Albright and
Shifflett would not have been admissible at Soering’s
trial." Evidence proffered by an accused that merely
suggests a third party may have committed the crime
charged is inadmissible; only when the proffered evidence tends clearly
to point to some other person as the guilty party will such proof
be admitted. Karnes v. Commonwealth, 125 Va. 758,
766, 99 S.E. 562, 565 (1919). Accord Oliva v. Commonwealth,
19 Va. App. 523, 527, 452 S.E.2d 877, 880 (1995). Although we
have considerable doubt of the correctness of the convict’s
argument on this issue, we will agree with him for the purpose of
this discussion and assume, without deciding, that the evidence
would have been admissible at his trial.

We hold, however, that the convict has not established that
material exculpatory evidence was withheld from his defense. Upon
review of this entire record, we conclude there is no reasonable
probability that, had the evidence in question been disclosed to
the defense, the result of the criminal trial would have been
different. "The mere possibility that an item of undisclosed
information might have helped the defense, or might have affected
the outcome of the trial, does not establish ‘materiality’ in the
constitutional sense." Agurs, 427 U.S. at 109-10. At
most, the convict has established only such "mere

For example, there is no connection whatever between Albright
and Shifflett and the Haysom murders. The convict only has proven
that the men were present in the same county where the Haysoms
were murdered near the time of the killings, and that the
vagrants may have possessed a knife that may have been similar to
the one used to kill the Haysoms. As the habeas judge pointed
out, "There are no confessions, no matching blood on the
knife, no matching fingerprints, no stolen articles, no
connection between these two men and Elizabeth Haysom . . . and
no logical explanation as to why two drunken robbers and
murderers would kill the Haysoms without taking valuables,
vehicles and liquor."

Also, except for the stabbing of the victims, the Millikin and
Haysom murders were dissimilar, as the habeas judge stated. The
respective murders differed in motivation as well as method. The
Haysom killings, committed earlier in time, involved slashing of
the victims’ throats with severing of carotid arteries and
jugular veins. Millikin’s throat was stabbed, not slashed, and he
was sexually disfigured, a circumstance not present in the Haysom
crimes. Albright and Shifflett were motivated by a desire to rob
their victims. The Haysom murders were not motivated by robbery;
many valuable items in plain view were left intact in the Haysom

Additionally, in order to entertain a reasonable doubt based
on the theory that the Haysoms were murdered by Albright or
Shifflett, or both, acting with Elizabeth, the jury would have to
disregard the overwhelming evidence presented at Soering’s
criminal trial that he alone committed the murders. For example,
he confessed repeatedly in great detail, and the majority of
those details fit the facts developed by the criminal
investigation: the slashing of the victims’ throats compatible
with the manner he said he held the knife; the injuries he
sustained during the violence at the time of the murders, which
injuries were later observed at the funeral; the exterior lights
left burning by the murderer controlled by a switch in a back
bedroom, a location unknown to a stranger to the home like
Soering, but known to a family member like Elizabeth; and
documentary evidence (letters and diary entries) implicating him
in the crimes, just to mention a few of the many circumstances
consistent with his confessions. Moreover, Soering had a motive
to kill his lover’s parents, who opposed his relationship with
their daughter. And, his flight to Europe after avoiding the
police, resulting in the forfeiture of valuable scholarships, is
also consistent with his admitted guilt.

In sum, the convict has failed to establish he is entitled to
habeas relief. Confidence in the outcome of his criminal trial
has not been undermined.

Therefore, the judgment of the habeas court will be affirmed
and the petition for a writ of habeas corpus will be denied.

Affirmed and writ denied.