Death Penalty - How It Really Works... « Reply #1 on Jun 11, 2009, 8:08pm »
The following is being added at Eldon's wifes request;
Death Penalty - How It Really Works... The most common reaction to a claim of innocence from anyone in prison is skepticism. If the prisoner is on death row, the doubts automatically increase. Too many people live under the delusion that a person cannot be put to the test by a jury of twelve, then go through years of appeals and still be innocent. I once lived in that fairytale world myself, but today I live within a frightening reality. Not only can innocent people be incarcerated for life and the system never correct the mistake, they can be executed. In fact, they have been and continue to be.
I know too much to ignore including that though I would like to say that Eldon’s case is unique and represents the worst of what occurs, there are actually far worse stories that will never be told. A majority among us prefers ignorance because it is easier to ignore the sins that our society commits than it is to live with what we do. So, most of us as I once did walk around accepting myth as truth and simply ignoring those who would offer us the facts if we would only listen.
Still, I am going to try to clear a few things up and begin by saying the first of the myths that needs to be corrected are the misrepresentations concerning “the right to counsel.” Things are not as people want to believe in our free nation. The Supreme Court in the last decade gave us the right to counsel, however since that time they have repeatedly affirmed that the right to “competent counsel” was not guaranteed by that decision. In fact, they said the same about the right to "choice of counsel" until 2006, when the court finally offered the “right to choice of counsel” in U.S. V. Gonzalez- Lopez.
Not many people know that before that time even those who hired their attorney could not change attorneys if the first attorney hired refused to be replaced. Gonzales-Lopez was just such a case, however, with Lopez refused the chance to replace the attorney that his parents hired with better counsel, because the first attorney refused to release the case and filed a grievance with the court against the second attorney for talking to a represented client. At the time, the courts as the ABA Rules of Ethics expressly forbid us even a second opinion from another attorney without the consent of original counsel. So, the attorney that Lopez wanted to pay to represent him was dragged to court and found to be in the wrong which led to the case that finally changed the rule in the court. However, it is not different in the ABA rules still and so despite the decision a client is still not going to be able to get help if their first attorney is a shyster with something to hide. Plus, there is still a catch in the courts, because if the court has to pay, you get the lawyer they stick you with and are still denied the right to choice.
Sadly, bad attorneys lead to more wrongful convictions in this country than anything else, but as the court makes clear as long as it is the poor who suffer, there is no need for concern. And it is not only defense attorneys that are the problem, appellate attorneys cry for their meager pay on court appointed cases, but a large number of them have learned to overcome that problem. They simply bill the court for diligent effort that is not put forth. It sounds like the rant of a mad woman, but there are a number of actually honest and hardworking attorneys who would back me up in my belief that ABA rules do a far better job of protecting shysters than those they represent who get the shaft. I believe it was David Dow who heads the Texas Innocence Network who pointed out in his book “Executed On a Technicality” that 40% of those represented on appeal during a certain period in the last century were represented by lawyers who were later either sanctioned or disbarred by the ABA with many criminally prosecuted for crimes of their own.
It sounds like maybe the ABA is at least trying to do its job and protect us even if too late, until you refer to cases like the Soto Fong case out of Arizona where an Arizona prosecutor, Kenneth Peasley was proven to have used have falsified evidence to put a man on the row and the ABA said that he could not be disbarred unless he had committed the act twice. Peasley was later disbarred, because he had done it twice, but his other convictions remain steadfast according to the ABA and the state. And just in case anyone missed the point - the ABA made it clear that it is okay for a prosecutor who is one of its members to commit what is no less than premeditated attempted murder - murder if the man is executed as long as they do not do it twice.
In fact, the prosecutorin Eldon's case, Noel Levy, was proven to have used falsified evidence in two cases. Ray Krone was exonerated and pursued a complaint against Levy. However, David Hyde’s case in which the forensics were also wrong was overlooked by the ABA, because David signed a plea of no contest for fear of a second conviction which Ray was subjected to before he was finally released. Levy went on with his practice as if he had done nothing wrong though he knowingly tried to see an innocent man executed.
Still, attorneys looking to profit and political gain is not the only problem. The next myth that needs to be corrected is that the appeals assure the innocent will be discovered. First, the High Court makes it abundantly clear that “innocence” is not a concern - only Constitutional violation. Second, every case is considered in every court “in the light most favorable to the state” even if innocence is blatantly clear. Third, the process most often starts with a direct appeal filed by the same bad defense attorney and then sent for consideration to the same judge who convicted.
From there the case goes to the district court which as in our case means that the appeal is passed along to judges in Phoenix who as in many other places are across the street from the county courthouse at best and who are cronies with the convicting judges. The Circuit Courts are d**ned for the fact that 60% of all cases that received relief got it in the federal courts. However, most people do not stop to consider that there was no where to escape the personal opinion of those who sentenced you until a case left the sentencing jurisdiction in a very large number of cases to begin with. It truly comes down to a district judge having to say that a sentencing judge was prejudice in a majority of his cases, then having to go to the country club and face him on the golf court every weekend.
Then, just as the Justice Projects began to make a real wave within the legal community by exposing many wrongful convictions, including among those scheduled to die, Congress intervened. In 1998, our politicians who gain so much favor by supporting the death penalty passed the Anti terrorism Effective Death Penalty Act to the applause of a majority who had no idea what was actually done. From its inception AEDPA decreased the number of cases that the federal courts can consider to 16% of those previously eligible and that number is growing smaller and expected by some to finally be no more than 5 of every 100 cases that our federal courts would accept without the AEDPA stopping them. In sum, the right to habeas corpus offered by the founding fathers to protect against unjust confinement and protected by the Constitution is now but another American myth for all but the wealthiest among us.
It may all sound crazy, but it is all verifiable fact. Our case involves a defense attorney who did almost nothing and never knew the vast majority of what I now know as a result and what is now 7 appellate attorneys - one in particular who had the case 8 years and did not diligently work, but did bill regularly. At this point, we face the horrifying mess that is left as a result. It is a story that seems unbelievable until you add the fact that Eldon was born Native American in an extremely racist state and then spent most of the years between the age of 12 and the present confined and facing racism and abuse.
He knows that a majority around us simply do not care and is afraid of confronting the system. Besides, as counsel of 8 years continually pointed out the judges are on the side of the court-appointed attorney if a dispute arises. The story I tell sounds unbelievable to many and yet if anyone cares to put forth the effort every thing is backed up at the Maricopa County Clerk’s office and the records of the proper authorities responsible for doling out your tax-dollars to people who do not do the job that they bill for.
A classic example of “justice” in Americas and still not the worst:
By late 2005, I had the North Arizona University Justice Project signed on and ready to help on Eldon’s case and David Dow of the Texas Innocence Network doing his best to get the appellate attorney assigned to Eldon’s case to allow him to work as second counsel. The case was also being considered by Barry Scheck’s Innocence Project where the last I knew Eldon was in the final stages. The case is so bad that I had the NAU Project and Dow paying close attention after a single twelve page letter that both busy men actually took the time to read in full. It is so bad that by now I know far more than I did then that indicates my husband killed no one. Yet, Eldon’s former attorney, Jennifer Bedier of the Arizona Capital Representation Project would not allow any of the Justice Projects to help with any testing or other means of overturning the case or a world renowned expert from here in Texas to look at the blood evidence though he offered his initial report free and heads a nonprofit that could have helped with DNA testing had he believed in the case.
Eldon’s appeals in the District Court were mostly based on IAC or Insufficient Assistance of Counsel claims and should have never been lost, but everything was denied with the judge finding that no more than “ unsubstantiated allegation” had been offered to the court. Bedier never pointed out enough evidence to have overturned the case twelve times. This included that the co-defendant, Patrick Allison whose testimony was the only means of conviction not only walked away on 5 years probation, but was let walk away though he had just been released from custody and likely violated parole, plus he already had another drug charge that had yet to be adjudicated against him at the time of arrest. He was completely relieved of culpability in the murder and only sentenced for attempted aggravated robbery with his prior felonies not even used to enhance the length of his probation.
Then, to top it all off, his sister (also Eldon’s girlfriend), Julie Moore according to whom half of his story was false was exempt from testifying under her brother’s plea agreement, so her story was never told. That is the jury never heard her version, but the brother was allowed to say after denying overhearing the statement 4 times (yes you read right) - 4 times on the stand he said he did not hear then the prosecutor was allowed to explain that if he did not hear the statement it was hearsay that could not be used. So, low and behold Allison promptly said that he had in fact heard Eldon confess to the sister, though that was one of the things that she earlier denied.
The defense and Bedier as detectives and the prosecutor also ignored that Allison and the sister lied to put her in different places trying to remove her from the scene, but two other witnesses say she was there. The police never bothered to verify her whereabouts and strangely, though she should have also an accomplice under the felony murder rule, she was never charged. For some reason, Julie just disappeared and never tried to help the father of her two-year-old child.
Then, there is the transient, Ronnie Yazzie who backed up Allison’s testimony. He was “reimbursed” twice to travel by “plane” and stay in a “room” to be present at attorney interviews and at trial, but no one ever revealed what he was paid. Then, at trial all that he can say he is that he hopes he is getting money, because that is “what they said” and that it is “for a room or something like that.” It never dawned on Bedier that he is on the stand and in Phoenix, but clearly that the prosecutor’s office neither furnished his tickets or a place to stay or that the prosecutor stopped every attempt to reveal the amount that he was receiving. She never even brought up that he admits not only a prior felony record but treatment for mental illness, though Yazzie’s statements change from the initial reports d**ning Eldon to his saying during interviews that he “did not know who” Eldon fought to his being absolutely certain that it was the victim at trial and making certain he puts the fight in the right place for the first time, though it is contrary to prior statements. In fact, he has to correct himself on the stand to get it in the right place and he also forgets to mention that he had earlier admitted that he only knew who the victim was, because “that guy” told him.
Incredibly, there is far more including that a guy that Eldon actually fought could have cleared him from the start. This “white guy” as he is referred to was actually taken in with Yazzie. They rode in the same car and when Yazzie was taken for his interview the guy was in the waiting room. However, this man was supposedly never interviewed and allowed to simply walk away from the station without so much as his name taken. The one person who could have prevented the case ever going to trial simply disappeared without a trace.
And still, it gets better, because the lead detective in another proceeding testified that an alleged stolen twelve pack of beer was taken by the codefendant, but at Eldon’s trial Allison testifies that Eldon took it. The detective also states that “there was no demand” for property at the time of the murder, but Eldon is sentenced to death because he was convicted of Attempted Aggravated Robbery. Also, the co-defendant who asserts that he was only “standing back watching” is said to have been fully culpable in everything at that other proceeding proving that the prosecutor either knew that his detective, Allison or both committed perjury in a courtroom.
Nevertheless, best of all criminalist Gregg Ballard testifies that there is a match between the victim and a drop of blood on Eldon’s pants during enzyme testing and establishes it by repeatedly stating the PGM matches, though his written report is represented in the following diagram and shows that there was no PGM reading available for the stain and according to a far more experienced expert that testified at the Simpson trial, the sub-type would not have been looked for in his lab, because it would not have been reliable if the PGM did not show up. In fact his testimony confirms that with two of three enzymes missing during the first round of testing, it is safe bet the stain was too deteriorated to rely on at all.
(The A on this report does stand out so conspicuously having been gone over multiple times and clearly changing the original marking including that its upper portion is abnormally rounded as if covering what appears to be an O.)
Ballard has an answer for the results that look so doubtful and actually come very close to matching Eldon’s blood if you consider that the heavily written over A certainly seems to conceal an O with 8 out of 10 Native Americans testing type O. The chart at trial was fixed to look like the following, though the PGM and subtype are tested separately and only the first numbers correlate with the PGM sought first and the subtype used for conformation of the result. They are not the same result. Ballard makes it seem that only the GLO is missing, though this is in fact a misrepresentation. Also, it is interesting to note that by coincidence on the typed report from which the chart was created the O for the pants that was not shown on the handwritten page is first typed in as an A, then changed in pen to an O.
Eldon Michael was actually convicted by this malarkey alone of “spraying” a gallon of gas from a bleach jug through a cyclone fence into a small enclosed area and onto a victim that had at least six or seven feet to move back, though the prosecutor alone told the jury it was only “three.” Then, with the space around Eldon also partially enclosed to hold the vapors, he supposedly bent over and set a lighter to a small puddle of the gas. Outrageously this is the story, but Eldon who had long hair was not burned at all and a standing victim with gas sprayed at him was left with unburned shoes. Of course the appellate court was never aware that the medical examiner said that the burns indicated the victim may have been “lying on his back and unconscious” when doused. Supposedly the victim is engulfed in flames including his face but also managed to get down on his hands and knees and “crawl” back out of the enclosure by coming under a “small hole” in the bottom of the fencing if Allison is believed.
There is no doubt that Bedier who held the case for 8 years and fought us tooth and nail to keep from giving up for the last two years deliberately sacrificed my husband. It is not my imagination or exaggeration. It is the truth. The court never knew any of what I have spoken of, though it is all found in what is very little paperwork for a DP case. By the time I became involved to figure out what was going on, the little girl with the law degree had held to the case and did nothing diligently for 6 years, except bill the courts. If you figure up $125.00 an hour for even 200 hours a year which is probably a low figure, you can get her motivation. Eldon never asked to see anything and so she did not do anything. Then when, I tried to make her start using the multitude of evidence that would have won his claims, she could not.
She could not have explained how after all of those years she had missed so much to the courts had anyone questioned the sudden turn around in the case that had saw no sign of relief being offered for so long. She certainly could not have explained considering that if she only billed four hours a week with her pay years ago increased to $150.00 an hour that if she only billed an average of four hours a week Eldon’s case, she earned $25,000 - $30,000 for 8 years with never a single dollar shared with co-counsel. I have little doubt that she made close to a quarter million off my husband as leaving him to die.
You would think in light of the facts that we would be eagerly awaiting Eldon’s release, but with my knowing so much about the case, my husband has never believed that I know a d**n thing. He trusted the attorney and let Bedier go till she had lost all in District Court which only leaves using new evidence to start over at this point. Yet, even that is now under time restrictions because of the AEDPA. I begged him and could only get him to go to the court to try to be rid of her at the last minute and so the judge refused at such a late stage, though that was all he said. He never said that the claims against her were not valid, because he had given her 8 years to offer him the evidence that I feel he knew existed. Then after there was no chance of the case continuing on appeal without someone sought to prove innocence, she decided to let go.
With her knowing that Eldon and I wanted Dow to have the case, she instead went to her friends and had it assigned to the Federal Public Defender’s Office in Phoenix without a word to Eldon. FPD then immediately assigned the case to the absolute least experienced of two dozen attorneys on their staff and told Eldon that their goal was to prove that he is retarded to get him resentenced. Two of the asses actually came to Texas and lied to me twice within the first 20 minutes we were together including telling me that we did not meet with Dow that day because he was out of town which was not true. For some strange reason they also refused to allow Dow to have anything to do with the case or to provide me with anymore paperwork as requested.
I feel that it may have something to do with the strong implication that Bedier would be protected despite the cost to Eldon. Yet, whatever the reason, by the point that FPD told the first lie I was mad as hell. That anyone can face such a travesty and it be called "justice" is outrageous and yet as often as it is denied this is a common occurrence in this great country of ours.
This is the truth of the capital system and the sort of "justice" that it represents. We are not alone I promise you...
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