Francis Harris
There are two elements of this crime that need to be reviewed in order to fully
understand it. The first is a bar fight that took place with the defendant, Francis
Bauer Harris and the victim, Daryl Martin. Second the murder of Martin that
took place about one year later. The defendant and a woman, Sherry Henry, were
entering a bar that he worked at one night. It was his night off and it was
near closing time he was stopping in to see how things went that night. Once
inside sherry was assaulted by another woman already in the bar named Maxine
Snook. He then separated the women and went out front of the bar with Maxine to
talk to her. During that verbal exchange a drunkard who was outside of the bar,
Martin, started to get aggressive with the defendant because he thought that
Maxine may have been in danger. The girl and the defendant both assured him
that was not the case and told him to go away. He persisted and when the
defendant thought things were going to get physical he tried to move away from
the area going around to the side of the bar. Maxine at that time went back in
the bar and continued her assault on the woman who she had hit earlier. Outside
of the bar the drunkard, had made a move to assault the defendant. Defendant
struck the drunkard, causing him to fall and hit his head on the pavement. (The
punch was to the face). The drunkard started to get back up and try again, the
defendant kicked him one time in the upper torso area, right up under the arm.
And rolled the drunkard onto his back. At that point the drunkard did not
attempt to come after the defendant again so the defendant turned and left the
scene.
He defendant left with a friend he had arrived with named Jimmy Smith. Also
present for the fight was a bouncer named Mark Dodge. Working inside the bar
was a couple named Steve and Elaine Shengerger. The defendant had no way of
knowing this but after he had walked away from Martin, he was told that the
bouncer Mark Dodge kicked the helpless Martin in his head until he passed
out. Also in the bar Maxine was at that time being restrained by Elaine
to keep her from attacking sherry again. The defendant did not know this either
but after he left the scene a security guard who was inside his car sitting
behind a row of parked cars in a parking lot across the street saw a
disturbance and came over to see what had happened. His name was Hector
Modesto. The drunkard would go to the hospital and then be released the next
day. HE COULD NOT REMEMBER WHAT HAPPENED TO HIM. He had a blood alcohol level
of .236!!! HE COULD NOT IDENTIFY ANYONE WHO HE WAS IN A FIGHT WITH NOR COULD HE
EVEN REMEMBER BEING IN A FIGHT!! He would NEVER change this story, NOT EVER. At
no time was he ever able to ID the defendant as the guy he was in a fight with
or EVER even remember being in a fight! The police investigated and at the
scene they took statements from two people, Mark Dodge and Hector Modesto.
Maxine was there but did not give a statement. Dodge said..."this guy got
in a fight with some unidentified' male” and gave a brief but vague description
to the police. (At that time he and the defendant were friends) Hector at that
time gave the same statement to the police!! (A fact he now denies, and a
statement he would never again repeat!!) No other statements were taken. Months
would pass by and Maxine would be at the bar again, this time with a different
man. The man started a fight with the defendant and was removed by the bouncers
at the bar. (One was Dodge.) During the removal the man got into a fight with
the bouncers and Maxine herself would join in. As a result the police were
called. Maxine and the man she was with were put in handcuffs and taken away.
It would be at that moment that Maxine would decide to tell the police that it
was the defendant who was in the fight with Martin months earlier. She was
released and never charged with anything that night. She was told to come back
the next day, when she was sober, to give the police a statement about the
fight that had taken place earlier. She did, but the statement she gave was a
far cry from what had actually happened. She claimed she and the defendants
were having "words" outside the bar, leaving out the part where she
assaulted the woman he was with first. And then martin came up to her and
defendant and said "leave the lady alone" she then told the police
that the defendant beat Martin mercilessly
KICKING HIM WITH SUCH A FORCE THAT HIS BODY ROSE OFF THE GROUND, (Mr. Martin
weighted about 230 lbs at the time), then kicking him repeatedly in the face
and head while he lay unconscious. She claims she was outside the bar the whole
time and witnessed this herself. Up to this point no one had given any
statements to the police even close to what she was saying. Based on
this, the police arrested defendant and charged him with aggravated
assault. The defendant had never had to go thru this process before so he went
to a lawyer and hired him to defend him in court. He had told his lawyer from
the very first meeting "I will plead guilty just do what you can for
me". The lawyer all along assured him, "this is nothing, it is your
first offense and no one was seriously hurt you were put in jail for this and
more than likely you will get "time served” and a fine.". Based on
that advice the defendant went about his life not worrying about it. The police
tracked down Hector Modesto and after a $5000.00 reward for information was
posted in the local newspaper, hector changed his story; it was now not the
same as Mark Dodge, but instead identical to Maxine’s. The DA then told
defendant that he was facing about 5 years in state prison. At this time his
lawyer, Steve Briet, still assured him, "it is just a scare tactic; you
are not in any danger! At the most you might get a few months more in the
county, don't worry they will wait until the last minute and then come to us
with their real offer, you'll see"!! Once again, defendant went about his
life. During this time unknown to the defendant after he and dodge had a
falling out in their relationship, dodge ad been arrested by the police and
charged with helping the defendant get away with the crime. He then struck a
deal with the DA. He would testify against his former friend in exchange for a
plea bargain. Oddly enough the police never bothered to ask dodge what he would
actually say. This would come back to bite them at a later time! As defendants
guilty plea hearing grew closer his now new girlfriend Kim Kistler, was
pregnant with his child. She was expressing worry to defendant that she did not
want to be raising their child alone. She was worried about what would happen
to him at the guilty plea. Defendant assured her "Mr. Briet told me not to
worry about it, it is just a stupid bar fight, no big deal ", yet she was
still on edge about it. About one week before the guilty plea hearing the
victim Mr. Martin was found dead. When it came time for the guilty plea the
police were waiting for the defendant in the court house. He was told if he did
not agree to give the police a statement to the DA. He would pull the deal off
the table. (A 9 month deal had been offered at the last minute just like Steve
Briet had said they would do). With Mr. Briet present he reluctantly gave the
police a statement. (A fact both Briet and police now deny, claiming it was
defendants decision to give the statement all along and no threat was made
regarding the deal). Defendant went in the court plead guilty to the AGGRAVATED
ASSAULT and went right to jail. During that time his girlfriend Kistler was
being questioned by police. She at first did not blame the defendant for the
murder but then the police did two things that changed her mind. They first
lied to her and said her boyfriend was having affairs with several women, (never
once has a woman ever came forward and said that) and that HE WAS BLAMING HER
FOR THE MURDER OF MARTIN!! (Defendant has not said a word about that until
years after being abandon by Kistler), it was then Kistler started to tell the
police that defendant had arranged to kill Martin and his reason, to keep him
from testifying against him???? (Keep in mind the victim had already given
testimony and he could not remember the fight or ID the defendant!!!) Defendant
was charged with murder and put on death row. Kistler got a deal in exchange
for her testimony against him.
Kistler would say the following things at the murder trial: She at the
defendant’s instruction took part in the stalking and killing of the victim.
She claims that at his request she called the victim to arrange a meeting. (All
phone calls entered into evidence were made from her house, not one was made
from defendants) She said at his request, she would drive him to find the
victims house. She was the only person ever seen near or at the victim’s house.
No one ever said they saw defendant there. She claimed that she and defendant
drove to the crime scene the night of the murder in his brothers "jacked
up pickup truck." (Worth noting since it sits so high off the ground and
has "flare kits' and chrome it stands out and would be noticed!!) She
claims they stopped at a mini market in the area to buy a phone card. No
witness ever id's the truck and a video surveillance tape from the mini market
DID NOT SHOW DEFENDANT! She claims both she and defendant wait in a parking lot
for victim then drive across the street to a well lit open spaced parking lot
and get Chinese food. (Not one single witness could place defendant at the
crime scene, several ID Kistler as being seen there). She claims she never actually
witnesses the murder that she dropped off defendant off at a point and then
pick him back up. She claims that he drove to New Jersey and had her make
several calls from her house to set up an elaborate alibi placing defendant in
New Jersey at the time of the murder. She then claims that defendant, after
taking the time to craft an elaborate plan for an alibi, calls her from a phone
in PA. 20 minutes after he sets up his alibi, thereby annihilating it??? She
claims that she was not getting any favors from the DA. In defendants trial,
but in her own appeals claims that her lawyer told her that he was going to
walk her out of the courtroom at her trial. Meaning she was under the
impression that she was to be found not guilty so the "time" she was
facing was not real! She claimed that defendant wrote a list of addresses for
her to investigate of witnesses she was to track down. Yet in her own trial the
DA introduced her sister who drove with her to find the witness! (At the
defendants trial the police claimed they suddenly had no idea where Kim's
sister was!) Kistler told the defendant’s jury that she was never
threatened by the police yet after the trial the police had been withholding
letters, written by Kim that says she was threatened with the death penalty by
the police. After the trial the defense would find letters used in Kim's trial
where she describes the color of the victim’s shirt and the type of and
location of the fatal wound! This was written BEFORE any newspaper prints it or
any discovery was filed!! During the police interview, kistler tells that there
was a phone call made by defendant to her the night of the murder where HE asks
HER, "is he dead". There is no phone record of this call. There is a
record of every other call made both BEFORE AND AFTER this call supposedly took
place! She claims it was the 11 o'clock news! It was shown on the phone records
at 10:03 p.m. Second, how did she know he was dead?? No news report! And
if the defendant did murder him, why is HE asking HER is he dead? Should not it
be the other was around???
A shirt was found at the crime scene. Oddly enough the crime scene happens to
be one block away from Dodge's house, and in an earlier statement to police him
told them she had actually seen mark in the area that night!! A statement she
would never again repeat. The shirt belonged to KISTLER! Yet because defendant
had worn it before some of his hair was on it. (Testimony exist that they both
shared clothes commonly, also found on the shirt KISTLER'S HAIR AND SOME UNIDENTIFIED).
A knife was found at the scene no one could ID it. A pair of sneaker's
allegedly belonging to the defendant was recovered about one mile from the
crime scene. Some blood was found on the shirt. Yet the first round of testing
came back with inconclusive results. The police then took custody of both the
shirt and the blood vials and months later would re request testing and now lo
and behold, there was a match on the blood. (Needless to say this is one of the
items defendant wants to test. NO TESTING OF FORENSIC EVIDENCE WAS DONE BY
COURT APPOINTED ATTORNEY FOR THE DEFENSE!) The DA had described a violent and
very bloody attack yet there is virtually no blood on this shirt. Not a drop on
any of the sleeves which would have been right against an open neck wound,
according to the DA's own expert. Hairs found on both the shirt and in the
defendant’s brother’s truck are said to be similar to the victim’s hair. NO DNA
testing was done and defendant wants those hairs tested!! THEY ARE NOT THE
VICTIMS HAIRS! Defendant is willing to bet his life on this!!
Appeal update:
Since the guilty plea two attorneys were court appointed to represent the
defendant in his Capital trial as well as an appeal to the bar fight. They were
William Boyd, and Thelia Jean Eaby. They were the first set of lawyers to
explain for the first time to defendant, the rules governing the charges of a
simple assault charge and an aggravated assault charge. Something the lawyer
Steve Briet should have done but did not. Apparently an Aggravated assault
charge is an Assault that for some reason a murder did not occur. In
Other words a vicious “ass whooping" in which the victim is almost killed.
A simple assault covers anything from spitting on someone up to your average
fist fight. (Fn1). After this was explained to the defendant he was informed
that he never should have been charges with an aggravated assault. In fact the
only thing he was guilty of was a simple assault. Therefore the lawyer, Briet
was wrong in advising him to plead guilty to anything greater then what he was
actually guilty of. To compound matters, the defendants attorneys came into
possession of an interoffice memo from the district attorney Mark Walmer who
was prosecuting that case, to the district attorney Craig Steadman, who was
prosecuting the murder case that stated, they were aware of that fact as well.
(Fn2) It said..." we agreed we could only prove BODILY
INJURY"....Since the aggravated assault statute calls for a ˜serious
bodily injury", and the simple assault statue calls for " bodily
injury" it would seem that the DA's own memo shows that he knew the week
before the murder, (Fn3) that is was a simple assault case. The question the
defendant had was why did they charge him with aggravated assault? The answer lies
in a common practice known thru all law enforcement agencies across this
country, and was backed up by Briet's earlier statement to defendant, (...
"It is a scare tactic; they will offer the REAL deal at the last
minute..."). That turned out to be true in some part! When you are charged
with a crime it is common to "overcharge" the defendant, because this
gives them the impression they are facing a lot of time and makes them more
willing to accept a plea bargain, saving the taxpayer time and money in the
process. Most lawyers will tell their client the same thing Briet told his, do
not worry it is a scare tactic. Now of course that begs the question why then
at the last minute leave it a felony aggravated assault, when in the memo they
clearly indicated they were going to come down to a "bodily injury"
charge, which could have only been a simple assault? You have to jump ahead to
the murder trial to find the answer to that. The district attorney Steadman,
was doing the murder case, in order for it to have been a “death penalty"
case, he needed an "aggravator". In this case he needs the victim to
be a victim of a "felony", (Fn4). A simple assault is not a felony,
and he wouldn't have been able to try this as a death penalty case. Up until
that point, he had tried two other death penalty cases, and had failed to get
the "chamber" for those two defendants. He was not going to fail this
time! He went to Walmer and asked him to keep it as an aggravated assault!
Walmer did. Briet never did anything to warn his client about it. And once the
guilty plea was accepted viola', Steadman had his first real shot at the
winning of a death penalty trial! (Since that trial Steadman has tried at least
one other death penalty case that he won, but then the death penalty was thrown
out as illegal. Comm v. Leroy Stallworth).
Once the lawyers for the defense explained this to him they filed to have the
guilty plea of the bar fight withdrawn as illegal. A hearing followed that
request and these are the relevant facts that were brought out at that hearing.
Walmer testified to several things, first of all he now insists that he could
have prosecuted this case as an aggravated assault. (Fn5) his reason? He states
there is a provision in the laws that allow him to prosecute any attempt to
cause serious bodily injury! (Fn6). Now interestingly enough, the DA agrees
with the defense that there was NO SERIOUS BODILY INJURY IN THIS CASE! (Fn7).
They insist that because the defendant jumped up and down on the defenseless
Martins head that is enough to prove an attempt to cause the serious bodily
injury! (Fn8). The defendant agrees. The issue he has is HE DID NOT DO THAT!
(Fn9). There are cases that support a single punch to the face, followed by a
kick, only constitute simple assault. (Fn10). This is all the defendant says he
did! HE SHOULD ONLY BE CHARGED WITH A SIMPLE ASSAULT! Now what evidence does he
offer to prove this? One is the memo from the DA (Fn11). In it they agree it
was only bodily injury. The DA, says he still thought he could go forward under
the "attempts to cause" issue? Then why does it not say that in the
memo? Why did he not say, “we believe we can only prove bodily injury, BUT WE
CAN GO WITH THE ATTEMPTS TO CAUSE"? Also the defendant offers the actual
testimony of the witnesses, and the police reports, as well as the hospital
records of Martin. Since this is an “attempts to cause " issue, we are not
looking for proof of an actual "serious " injury, but just proof that
such an attempt was made. There is no damage to the victims head that back up
the states claims of a 230 lb man jumping up and down on top of his head.
(Fn12). There was not a single scratch on the torso area, the areas the state
Claims that he kicked
with such a force that his 230 lb frame lifted OFF THE GROUND!! (Fn 13). In
fact, Walmer himself said he feared the testimony of Maxine since she had bias
against the defendant. (Fn14). He also said he feared the testimony of Modesto
because he could not see clearly from where he was. (Fn 15). So, if the two
main witnesses for the state were no good, and the medical records did not
support it, why did the DA think he could still prosecute this case? He said
simply, "I felt Dodge was my best witness". Well the defense put that
to the test. (Fn16). Here is what Dodge offered under oath. “Martin grabbed
defendant from behind, so defendant turned and punched him in the face".
(Fn17). When asked if the defendant was the one who did he NECESSARY
jumping up and down on his head and/or repeated kicking of a helpless victim?
Dodge said "NO". The states best witness did not back up what the
state needed to support the "attempts" to cause part of the charge!
That is not all the defendant offers as proof, remember the Shenberger couple
inside the bar? They had given an interview to police and the DA Steadman was
aware of this at the time he was arguing the appeal, (Fn 18), that said, MAXINE
WAS INSIDE THE BAR BY THE TIME THE FIGHT HAD STARTED between Martin and defendant!
HOW COULD SHE WITNESS THIS FIGHT SHE TESTIFIED TO?? Briet denied ever being
told by his client the whereabouts of the Shenberger’s or what they would say
when called to testify, and never called them to investigate. (Fn19). Yet his
own file betrayed him! During those hearings the lawyer that passed that file
to Briet, Alan Goldberg, said he gave the ENTIRE file to Briet, and when asked
to open that file in court that day, right on top was a note with Steve
Shenberger’s name and phone number. (Fn20). Briet denied he ever had that
information. (Fn 21). Briet also denied the DA ever told him to tell his client
that if he refused to give a statement to the police about the murder BEFORE
the guilty plea hearing they were going to withdraw the deal. (Fn22). A deal
they withdrew anyway and added on time to. (Fn 23). Despite the fact Briet told
an obvious lie to the judge about knowledge of the Shenberger’s, Judge
Goergelis, says he found him to be credible!! (Fn24). And went on to say
"the note only had Steve Shenberger’s name on it, so Briet was not
informed about Elaine Schenberger".(Fn25), apparently where Georgelis is
concerned happy couples do not share the same address! (Steve and Elaine are
still happily married and living under the same roof together as they have been
since the day the defendant gave his lawyer their phone number to call!) What
else did the defendant offer, remember Modesto? Well, the original statement
taken at the scene by police from him was identical to Dodge's. (Fn26). now
Dodge changed his statement, but never gave the state what they needed fro the
“jumping up and down on his head “part. Modesto changed his statement as well.
(Fn27). But what the DA left out is his change did not come until AFTER he saw
a notice about a reward for $5000. (Fn28). The DA also neglected to point out
that Modesto was not even available as a witness since he was in Puerto Rico at
the time the trial would have been and had notified the DA about it!! (Fn29).
In fact the DA went as far as to claim that dodge's testimony was not helpful
to the defendant because he was "not available" for trial? DODGE was
under a subpoena BY THE STATE AND PRESENT INT EH COURTROOM THE DAY OF THE
PLEA!! How much more available can he be?? (Fn 30).
What else can the defendant offer? Well he tried to offer the witness Jimmy
smith, but the DA did something very revealing here, he threatened to charge
Smith with a crime when he took the stand. (Fn31). Now keep in mind the police
has already let Maxine off the hook on an assault and/or resisting arrest
charge from her night at the bar, (Fn32) the DA never charged her with a crime
when she admitted on the stand to assaulting Sherry Henry, (Fn33) and they had
given Dodge a deal in exchange for his testimony, (Fn34) plus no one ever charged
Modesto with lying to police since his statement the night of the fight was the
same as Dodge's (Fn35), yet for some reason when Smith shows up in court, the
DA seems fresh out of "get out of jail free " card's! Why?? Look at
the defendant’s testimony, Smith was a clear witness to the whole event! Look
at what the investigator tells the court Smith is planning to say. (Fn36). He
is about to get up on the stand and echo both what Dodge has already said, as
well as the defendant, there was no kicking in the head by the defendant, the
crucial element to the "attempts to cause" issue. Now take one more
thing into consideration, at this time, Smith has finally come forward and
given a sworn statement (Fn37) some 8 years after his first attempt, and told his
story, only because the statute of limitations has passed and the DA can no
longer charge him. (Fn 38) despite all this the courts have still not tossed
out the aggravated assault charge on this defendant, why?? Because if they did
they would have destroyed, the SOLE aggravator in the death penalty case, as
well as the states SOLE motive for the murder!! In short the defendant will no
longer be a legally convicted death row inmate!!
——————————————————
(Fn1); 18 PA.C.S.
section 2702(a) (1), first degree felony assault, 18 Pa.C.S. section 2701(a)
(b) simple assault misdemeanor
(Fn2) see memo
dated Dec. 9 1996 to Craig Steadman from Mark Walmer, entered into evidence in
the first P.C.R.A. hearing by Thelia Jean Eaby.
(Fn3) second
paragraph of memo, "...in the week before the murder, perhaps Wednesday, I
talked to Joe whether we could prove serious bodily injury with just a broken
nose and some dental problems, we ended up agreeing we could only prove bodily
injury. Accordingly, I changed the guidelines..."
(Fn4) the
aggravating circumstances to the murder was, 42 Pa. C.S. S9711 (d) (5),
"the victim was a prosecution witness to a murder or another felony
committed by the defendant..."
(Fn5)P.C.R.A. #1
NT. Pg.70-75.
(Fn6) and further
explains it is the stomping on the head of the victim Martin by the defendant
that would justify his claim. See P.C.R.A. #1 NT. Pg.75.
(Fn7) see any
reply brief from the Commonwealth after the first P.C.R.A. hearing.
(Fn8) P.C.R.A. #1
NT. pg.75, testimony by Mark Walmer.
(Fn9) see
defendant testimony P.C.R.A. #1 NT. Pg.11-112. See also Dodge testimony same
hearing, pg. 43.
(Fn10) Comm.V.
Coleman 496 A.2d. 1207, (Pa. Super) (1985).
(Fn 11) Memo
reads as follows:
To: Craig Steadman, ESQ.
From: Mark F. Walmer
Subject: Francis Harris-Notes of negotiations
Date: December 9, 1996
My September
trial list indicates that Commonwealth vs. Francis Harris was to go November
12, 1996. The guidelines indicated 42-60 months in the standard range, and I
had talked to Steve about a five year sentence without actually offering that
to him Briet was working on me to take a simple assault, or at least a county
sentence.
In the week
before the murder, perhaps Wednesday, I talked to Joe about whether we could
prove serious bodily injury with just a broken nose and some dental problems,
and ended up agreeing we could only prove bodily injury. Accordingly, I changed
the guidelines from an 11 to a 9 which lowered the standard range from 42-60 to
8-20. At that point I knew Breit might consider taking a straight plea even if
I didn't offer a negotiated sentence.
During the week
of October 28-November 1, I was calling Breit’s office to communicate the
change in my position. Breit was busy that week, and I left messages with April.
At one point Breit called and I told him of the changes in the guidelines, and
in my position. He said he would send out a letter to Francis who was living in
New Jersey,. April told me later, that she sent out the letter on Friday( I
think I was pestering her to see if Francis was going to plead or not). It was
over the intervening weekend that the victim was killed.
My understanding
and communications to Breit was that Francis had to be ready to go to trial on
Tuesday, November 5, 1996. And the only offer was a straight plea as outlined
above, or maybe a five year sentence. The reduction which April said she mailed
out Friday, November 1, 1996 would have been communicated to Breit between
October 29 and the 31st of 1996.
(Fn12)the
documented injuries to Martin in the face and head areas are, a broken nose, a
swollen eye, and a cut lip. (See medical records) it does not take a doctor to
figure out that if the defendant, a six foot tall 230 lb man was to jump in the
air landing on his head 4-5 times and then repeatedly kick the unconscious
Martin several times in the head as well, there would at the very least be
several injuries from that, foot sized bruises, cuts, and broken bones,
something!! There were none. The only injuries Martin had were contained to a
"fist sized" area of about 3-5 inches from the bottom of the eye to
the top lip! All which could have been done with a punch to the face. As for
the kick that was allegedly reported to have raised the 230 lb Martin "off
the ground" to the torso areas?? There was not a single scratch, bruise or
broken bone or cut to his torso at all!! The prosecution by entering this
obvious lie into evidence would like the truth to be stretched to the breaking
point.
(Fn13) see
preliminary hearing, NT pg. 37, by Maxine Snook.
(Fn14) see
P.C.R.A.#1 NT pg.91.
(Fn15) same as
Fn14.
(Fn16)same as
Fn14.
(Fn17)see
P.C.R.A.#1 NT. Pg. 36,42,43.
(Fn18)see
P.C.R.A. #1 NT. Pg.19, DA Steadman argues that the "Shenberger""
affidavit's are not relevant to the case. At the very moment he was telling
this to the judge he would have in his possession a set of taped interviews
from the Shenberger’s taken by police in Florida during the murder
investigation and turned over to him long before this hearing. Those tapes would
ell that Maxine Snook DID NOT SEE THE FIGHT! It was also shown on those tapes
that she was not a credible witness! Steadman never turned those tapes over to
the defense and from the way he acted during the hearing it was like he never
thought the defense would find out about them. The defense did, years later!!
Steadman even in light of the tapes challenging Maxine’s credibility, still
offered her as a "good witness", he even called her to testify in the
murder trial!!
(Fn19)see
P.C.R.A. #1 NT. Pg. 133-134.
(Fn20) see
P.C.R.A. #1 NT pg. 28-29, by Alan Goldberg.
(Fn21) same as
Fn20. (Fn22) see P.C.R.A.#1 NT. Pg.184.
(Fn23)see
P.C.R.A.#1 NT. Pg.154.
(Fn24) see lower
court opinion December 23, 1998 pg. 8, by Judge Georgelis.
(Fn25)see same
opinion as Fn24 pg. 9.
(Fn26)see police
offense report, Lancaster Bureau of police submitted by officer Anthony J.
Hall, approved by Lt. Miller, dated August 1, 1995, lcwc assign #9533454, (2
page report).
(Fn27)see
P.C.R.A. #1 NT. Pg. 65, 78. By Modesto.
(Fn28) see
P.C.R.A. #1 NT. Pg 73, by Modesto, compare to report taken night of fight
mentioned in Fn26, also to statement taken by police on December 1995 from
Modesto.
(Fn29) see
P.C.R.A. #1NT. Pg.161, also see letter from Breit to defendant entered into
exhibit during defendant’s pro se appeal to the third circuit. ( letter dated
after October 10, 1996),
(Fn30) see
P.C.R.A. #1 NT. Pg. 10,.11, 99-105.
(Fn31) see
P.C.R.A. #1 NT. Pg. 14, 66-68.
(Fn32)see
preliminary hearing fro aggravated assault, NT. Pg. 45.
(Fn33) see
preliminary hearing for aggravated assault, NT. Pg. 32.
(Fn34) he ended
up pleading guilty to a disorderly conduct misdemeanor in exchange for the
promise to be a witness for the state against the defendant. He was being
questioned by the police for the homicide at this time! See homicide trial NT.
Pg. 2331-2333, 2338-2340.
(Fn35) see
preliminary hearing for aggravated assault. NT. Pg. 50-78. Compare to the
statement given by Modesto to the police at the scene on the night of the fight!
(Fn36)see
P.C.R.A. #1 NT. Pg 12-14 Jefferies statement to the judge.
(Fn37) see
p.C.R.A. #2 filed August 3, 2005 pg. 12, 13. (Fn 38) see P.C.R.A. #2 Pg. 11,
also see Fn7.
Appeals update #2 (murder trial)
A P.C.R.A. has been filed in the lower court. The issues are still being
investigated, so there are still witnesses to locate and talk to. There are
still a number of documents the defense has to try to get a hold of. So the
appeals in the murder trial will constantly be changing until the evidence is
all looked at. In the meantime here is what has been filed so far.
Jury issues; the
defendant really does not care about the jury issues to much because he is
innocent and only cares about that. BUT he is told that this is important to
look at all aspects of the case from a legal standpoint so they will be briefly
discussed here. The main issue revolves around an age old practice by
prosecutors that they remove al minorities from the jury. The reason being?
Most people in jail are?? You guessed it, minorities. So they know the system.
More importantly they know how corrupt it is. So the last thing a prosecutor
wants on his jury is someone who had a friend who was mistreated by the police
once. BECAUSE when a defendant makes a claim of police misconduct the DA wants
a jury that will say...."oh they would never do that." Instead of a
jury who will think, "yeah they did that to my friend once". So no
matter where you go the DA always tries to remove all " lower income,
minorities" from the jury. The problem with this is the courts say you are
not allowed to do this ! All Americans have the right to serve on a jury, and
using race as a reason for removal is unconstitutional! Problem is, how do you
prove it? This is almost impossible to prove. So lawyers make attempts at it
and that is what they are doing here as well. The only thing the defendant
thinks even comes close to showing that "race" was a part of the DA's
selection process, was the argument he offered in defense of it! Here is what basically
happened. A jury pool was called, in it only one Latin person and one black
person was called for questioning.! This was from 132 people. Lancaster county
has a big black and Latin population, ask anyone who lives in Lancaster!9one
Asian was seated as an alternate, (she was never called to decide on the
case!). Now the people that were struck are named Mr. Santiago and Ms. Cameron.
Both answered the question, "could you apply the law in your decision
making and do your duty?", they said yes!, but were removed by the DA. The
reason this is important is every time the DA had a juror that was "gung
ho" for killing the defendant, he would "fix " that by asking
the same question and then later claim that their answer is what makes them
acceptable! So the argument is they answered the questions the same way all the
other jurors did, so why were they struck? Then you have to prove the obvious,
because of the "race". But the part that seemed most telling was the
prosecutor’s reason. He first says, "hey the defendant is not black!"
what does he care! (Defendant is Polynesian and German) well the defense points
out his adoptive family is black and they are being called as witnesses, so the
impression the jury will have is that he is black. Then the DA says "well
he does not LOOK black". (I wonder what he would have accepted as
"black looks"?) Anyway to further prove his point, "well he is
Hawaiian, and we gave him an Asian, so that's close enough!: in his argument he
says that Hawaiian cannot be included as an African American if it was to be
included as any other race it was linked to the Asian race, and then he points
out he let one Asian be an alternate, even though she never actually worked on
the verdict! The thing that this whole argument shows is that, certainly race was
on his mind in his selection since it was a large part of his argument in
defense of it! ( he don't even look black! We gave him an Asian that's close to
Hawaiian!) The end result was an all white jury! Incidentally Hawaiians are not
of Asian decent! They are indigenous people, they migrated from the
Letters from
defendant to Kim Kistler; several letters written by the defendant to his
former girlfriend Kim Kistler were entered into evidence and use against him.
The point is simple here. One, at no time does he admit guilt in these letters,
he tries to explain to Kim that there are other things that could happen and
what he was willing to do. The DA argues this is a confession! Yet he never
EVER confesses to anything! The real problem the defendant has is that one of
the letters was EDITED by police or Kim’s lawyer. Only half the letter was
shown. The defendant wants to other half to be shown because in the other half
the defendant talks about KIMS GUILT and his willingness to TAKE THE RAP FOR
HER!! If this was a confession it was not about defendant’s guilt! Defense has
to ask the court to force them to
produce the rest of the letter or disallow them to use the half they used!
Missing witness
Kathy Gehr; Kathy is Kim’s sister. During the trial the DA says that defendant
wrote a list of people that he gave to Kim to track down. Kathy tells a
different story, she says it was Kim that wrote the list and that she took Kim
to look for these people. Then she gave statements that incriminated Kim in the
manner that she reacted once she tracked down the victim. However when the time
came for the trial and the defense asked the DA where this witness was WHO WAS
UNDER SUBPOENA BY THE STATE TO TESTIFY! they claimed they did not know where
she was! They said all we know is she moved to
Interestingly
enough, when Kim went to trial a few months later, guess who they suddenly
found? Kathy Gehr was a witness for the state against Kim in her trial. Kim’s
trial vs. defendants trial; a picture emerges after Kim’s trial that shows how
much the DA actually knew that Kim was lying. Yet he still offered her to the
jury as a truthful witness. Here are some examples; in defendants trial he told
the jury "if you believe Kim your analysis as jurors is over". At
defendants trial Kim constantly minimized her participation in finding the
victim, denied any knowledge there was a murder to be committed, denied she had
any motive, said she was in fear of the defendant, said she only waited so long
to talk to police because she wanted to be sure defendant was in jail before
she talked, NOT because she was told he was having affairs, or telling on her
for committing the murder. In Kim’s trial the DA would suddenly argue a
completely different case. Saying Kim lied in numerous aspects, minimizing her
own guilt was inconsistent with evidence and her own statements. Her testimony
was inconsistent with her sisters Statement. Part of Kim’s testimony was
"unbelievable", " absolutely implausible", her actions are
inconsistent with being frightened, "Kim expands her own lies". They
also go on to say how Kim did manage to destroy the evidence that actually
implicates her in the murder!(referring to a jacket she says she got rid of )
other things to look at; At defendants trial the DA told the jury that Kim
waited until she was told by police that defendant was in jail to tell them
what really happened. At her trial the DA told the judge that was a lie! No cop
ever told her when defendant was in jail, she did not start to implicate the
defendant until the police told her he was having affairs and was blaming her
for the murder. In defendants trial the DA told the jury Kim saw the murder on
the
In defendants trail Kim gave a story that never put her close enough to the
victim to see the color of the stripes on his shirt. She also would have no
idea of the location or type of stab would he suffered until after told by
police. In Kim’s trial DA introduced a letter from Kim written BEFORE any
discovery was filed and before Kim would have had any knowledge of those two
aforementioned details, in which she describes the color of Martins shirt and
the location and type of wound! The point is this, had the jury had some or all
of this information presented to them, they would have disbelieved Kim and the
defendant would be acquitted of the charge. The DA knew this and broke every
rule in the book to make sure the jury would never hear these things.
Kim’s deal. The
jury was told one thing from Kim, that in exchange fro her testimony she was
facing a 40-80 year sentence. This was done to give the impression she was
doing this because it was right NOT because it was to get away with anything.
HOWEVER in letters that would turn up after trial( the DA had in his possession
but refused to turn over to defense) and turn up in testimony from Kim herself
during her appeals, she was told by her lawyer, "I am gonna walk you out
of that courtroom", in other words they are not gonna convict you! Kim was
always of the believe she was going to get off! Even after the trial they still
came to her and said they had a 2-10 year deal for her. She had already served
a year so she would be looking at less than a year in the county left. She
refused the deal, showing she still thought she was getting off! THIS was not
what the defendant’s jury was led to believe. They were under the impression that
this woman at a MINIMUM was going to spend 40 years in jail. That weighs a lot
when you put that on the credibility scale!
Kim’s
disappearing charges; in the opening segments the prosecutor tells the judge,
" oh we are not going to drop the intimidation of witness charges!",
referring to a charge they apparently threatened Kim with but NEVER FILED ON
THE RECORD! In other words, they use it to keep her in line but never put it on
paper so the jury will never have to hear about it! The " is he dead"
phone call; Kim had given an early statement to the police where she says that
she received a phone call from defendant asking, is he dead? Two things that
should be discussed here. One the phone call happens at
So if the phone
call happened BEFORE the
Kim’s affidavit against
Maxine Snook and Paul Janowski; during the murder trial the prosecution
introduced two witnesses to ID. a shirt found at the crime scene as one the
KNEW AS A FACT TO BELONG TO DEFENDANT! Maxine said she could not ID. the shirt
but I.D'd a pair of "cameo" pants that the police had in their
possession as a pair she had seen before. ( she says in the summer of 1995).
Paul gave a positive ID of the shirt and says he too seen it in the summer of
1995. Neither one of these witnesses claimed to have any contact with the
defendant past 1995! Kim herself would submit an affidavit after the trial to
defendant stating the items they both ID'd were purchased in the FALL OF
1996! There by making it impossible for them to have seen these items. The
defense did nothing about this on direct appeal ! Turkey Kill tapes: during the
earlier interviews with police while Kim was "confessing " she told
police that she and defendant stopped in a local Turkey Kill mini market BEFORE
the murder and he went in to buy phone cards. The police went to the store and
seized the surveillance tapes from the store for that time and date. THE
DEFENDANT DID NOT APPEAR ON THOSE TAPES! Kim would never again repeat that
statement and the police "forgot" to mention it in trial as well as
"lost " the tapes and any interviews from the store employee's.
DNA evidence;
The defense never
requested to test ANY forensic evidence in the trial! A shirt was sent in to be
tested for DNA In a large blood "swipe" on it. (As if a knife
was wiped off on the shirt!) The test came back UNABLE TO IDENTIFY ANY DNA! The
blood vials and the shirt was sent back to the police dept. that was in charge
of prosecuting the case. The cop in charge was Pete Savage. ( his brother was
involved in the Lisa Lambert case). The cop in charge of the evidence locker in
this police department.... ?? ... Peter Savage! Four months later the shirt
shows back up to be tested; a "new stain was to be looked at. ( pinpoint
blood droplets had now been :"found"! An earlier examination by the
states own expert found none!) Now all of a sudden they had a DNA match to the
victim! The defense wants to test these "samples:" There were also
hairs found at the scene. Some on the shirt and some in the defendant’s
transportation for that weekend. The prosecution claims they belong to the
victim. THEY NEVER TESTED THEM FOR DNA! The defense wants to test them to prove
they are NOT the victims!
Altered
statements;
There are several
items in the discovery' that have out of sequence page #'s and altered pages
#'s as well. In some areas the pages are just missing, and in one instance
there is a clear sheet of paper placed over half of a document to block out
half of what is on there. WHY?? If they got the right guy, why tamper with
evidence? Why hide things if everything they told the public is the truth!??
The defendant wants these missing documents turned over to him.
Good character
evidence; During the trial the defendant was constantly portrayed as the bad
guy. That was not enough for the DA he went so far as to portray the victim as
the good guy so they jury would clearly know who they were hear to hate! In
doing so he left out in his own police reports several items that painted a
picture of the victim that was anything but nice. Now the defendant does not
believe he should take time to attack the victim in his trial, BUT does believe
that the DA is bound to offer the WHOLE truth to the jury! In other
words, if he is going to tell the jury about the victim he should tell the
whole truth. If he for some reason is afraid of the truth then DO NOT introduce
"good" character evidence! This way the defendant cannot offer it
either! BUT when you do offer it, if the defendant has information to dispute
that he has the right to present it to the jury. In other words the defendant
would never seek to speak ill of the dead as a defense, But once the DA
introduced evidence that the victim was this "saint", the defense has
no choice but to introduce the police reports that the DA filed as discovery, not
to "bash" the victim, but to show the DA is lying. In regard to that
the defendant offers the following; A.) An interview where a friend and
co-worker of the victim describes a "date rape" that he was told
about from the victim that took place between the victim and a girl he talked
about. B.)A co-worker talks about a time when victim was aggressive to her when
she turned down his romantic advances. C.)An interview with a best friend of
the victim , an admitted drug dealer, who spoke of a violent relationship between
victim and his brother. D.) Interview with a friend of victim who spoke of an
area that is known to police as a "drug traffic" area where he took
victim to "pay a debt". E.)A report from police that state the
victim was known to buy sex from illegal massage parlor prostitutes. F.) Report
from a friend of the victim that state he was trying to meet with one of the
witnesses for the state before the guilty plea and that he was planning to sue
the bar the fight occurred at.
Eyewitnesses; Several people placed Kim Kistler at the scene the night of the
murder. There were several descriptions of various types of vehicles that were
seen in the area that night. NOT ONE WITNESS ever placed defendant or the truck
he was driving in that area, ( except Kim). The only thing found at the scene
connecting defendant was one of his hairs on a shirt that KIM herself said that
defendant wore that shirt several times! Her hair was also found on the shirt
with other unidentified hairs. The police dusted the car for prints and found
none!