OPENING STATEMENT

All too often we witness in our system of justice a prosecution team’s willingness to push ethical boundaries. Unfortunately, and all too often, the courts as well are seemingly acquiescent to this behavior. Indeed, quoting the court in Moore v. Hopper, a case where detectives were permitted to lie on the stand when they stated that the murder weapon had been found, the court favorably cited the detectives’ (false) testimony by stating that “the way to get police work done is to do it, the best way you can.” Then in Commonwealth v. Cressinger, the magistrate is quoted as saying, “society and the criminal are at war, and capture by surprise or ambush, or masked battery, is as permissible in one case as in the other.” Lest anyone believe such thinking belongs to another century, the judge presiding over my own trial, ruling that the defense could not explore acknowledged inaccuracies in an investigator’s report, put it this way: “I don’t care if he drew something that was a thousand percent inaccurate. That was totally wrong. Right? … And it’s in a report. And it’s not utilized for anything. He’s not called to testify to any of it. It’s irrelevant.” (RT 7384:24–7385:2.) My counsel’s reply — “Sloppy police work is irrelevant? … reasonable doubt?” — was met with: “The objection’s sustained for the reasons indicated.” (RT 7385:3–8.) With this mentality, how can our justice system possibly balance the scale? One finger on this scale should not be tolerated, much less the heavy hand the courts often allow. The frustration of law enforcement in their quest for justice can clearly be understood. However, where a decisive line is not drawn, and deception is allowed in our courts, we can no longer have confidence in the outcome.

Ethics is the science of moral duty. It deals with the rules of conduct in our society. This is especially poignant in a justice system founded on due process. Quoting from the book Do No Wrong by Peter Joy and Kevin McMunigal: “The standard of conduct that lawyers and law enforcement must obey are high, and are generally followed as the most exalted rules that govern men on earth. They are bound by these standards and must obey them. They may and should fight hard for justice, but they must fight fairly. They may and should state matters honestly and honorably. They may say them with fervor, and all the persuasion in their power. But in saying it, they may not deceive, they must not lie.”

“The very integrity of the judicial system and public confidence in the [same] depends on full disclosure of all the facts within the framework of the rules of evidence.” U.S. v. Nixon, 418 U.S. 683, 709 (1974). Defense counsel’s primary role is to protect their client from any potential mischaracterization of the evidence, and to ensure that this evidence is not only accurate, but complete. This burden, however, is not borne by defense counsel alone. “The investigation and gathering of evidence relating to criminal offenses is a responsibility which is inseparable from the District Attorney’s prosecutorial function, and constitutes an inherent aspect of prosecution.” Scott v. Common Council, 44 Cal.App.4th 684, 52 Cal.Rptr.2d 161 (4th Dist. 1996). This responsibility makes the probity of the prosecutors, and its agents, imperative if our justice system is to be trusted. As implied, this probity extends to the prosecutor’s agents. These agents include police involved in the investigation, and expert witnesses alike.

Research reveals that as much as 7% of all criminal prosecutions end in wrongful convictions. There are a constellation of causes: police and prosecutorial misconduct, faulty scientific evidence, judicial error and/or blatant abuse of discretion by the courts. Unfortunately, inadequate representation by defense counsel more often than not plays a significant role. Often, the ineffectiveness comes in the form of their time and/or financial mismanagement. More often, however, is that they seem to forget that a trial is more of a fact suit than a law suit. Indeed, mismanagement and/or lack of research concerning the facts of the case often cause the advocate to over-rely on the law to win the day, and is one of the primary reasons a winnable case is lost. This fact brings to mind Quintilian’s advice, given nearly 2000 years ago, yet just as applicable today: “It is less inconvenience to listen to the superfluous than to be left ignorant of what is essential.” Advocacy, without the most minute study and preparation, is nothing. This concept warrants repeating. No knowledge of the law can be a substitute for a mastery of the facts.

I fully understand that allegations of impropriety in our courts forwarded by an accused — and even more so, by a man already convicted and sitting on death row — generally receive a ho-hum, wink-wink response by both appellate courts and the general public alike. Although I have to admit that this type of response is often warranted, there are exceptions. Within this website you will come face to face with those who are indeed willing to subvert our system of justice. More, you will learn that at times this unprincipled and dishonorable behavior is seemingly contagious. Investigating officers, prosecutors, as well as lay and expert witnesses alike are not immune to this contagion. Sadly, neither are defense counsel, or even the court itself. The court said as much on the record, in its own explanation of why it would not intervene: “I’ve allowed both sides to do — say things and do things that were improper and making allegations that were either partially true or not true at all. And we could certainly side track the entire trial and have a whole trial just on the conduct of counsel, that of course would be to the benefit of the defense because we would never finish the trial, so I’m not going to do that. I’m going to keep focus on the trial and let others deal with misconduct of counsel at a later point.” (RT 7676:4–12.) Mark what was just said. The court acknowledged that it had allowed the improper — allegations “partially true or not true at all” — and declined to adjudicate any of it, for the stated reason that stopping to do so would benefit the defense. The remedy was instead handed to “others,” at “a later point.” But a trial court’s duty to protect the accused from prejudicial misconduct is not one it may set aside for a later point, because the harm does not wait — it happens in real time, in front of the jury deciding whether a man lives or dies. Post-trial review un-rings no bells. And this was not misconduct that escaped the court’s notice: a judge who says “I’ve allowed” it has witnessed it, identified it as improper, and permitted it to continue. Nor would stopping it have cost the trial anything. The ordinary tools — sustain the objection, strike the statement, admonish counsel, instruct the jury — take a sentence or two each. The court spent that sentence explaining why it would not use them. I write this from death row, years into that later point, still waiting to learn who those others are, and when their point arrives. This website will reveal just how fragile our system of justice actually is. A fragility that is not due to a lack of rules governing our courts, but a willingness to circumvent those rules in a quest to win. This website will reveal clear overtones of the Machiavellian maxim, “the end justifies the means,” and how this aphorism permeated the investigation and subsequent trial. A concept that is, of course, plainly incompatible with our constitutional concept of ordered liberty.

In Erskine’s summation in the defense of Thomas Paine, he stated: “The first thing that presents itself in the discussion of any subject is to state distinctly and with precision what the question is, and when prejudice and misrepresentation have been exerted, to distinguish it accurately from what it is not.” That is precisely what you can expect from this website. Although I did not choose this battle, for I did not commit this crime, fight it I will. In the years I have been on death row for this insidious crime I have come to the realization that public opinion — indeed, your opinion — is a critical component if I ever intend on winning my freedom.

I sincerely believe that one’s origin story is of great significance when it comes to perception. In short, what occurred in the past often determines your ultimate destiny. I mention this because I want it to be understood that I in no way fault law enforcement for their original decision to scrutinize me in their investigation. After all, I do indeed have somewhat of a checkered past. Indeed, if I were heading the investigation at the time, I would have put myself at or near the top of the list of suspects. With that said, it is important to note that I have never had any instances of violence, domestic or otherwise. I am in no way capable of committing this crime. My sincere hope is that, once you have had an opportunity to see all of the facts, you, the thirteenth juror, will agree.

I most assuredly mourn the loss of my friend and his family. However, I do not believe for an instant that my grief could compare to that of their immediate families. Indeed, I have experienced the loss of family members — my mother and father, a younger sister, as well as my grandmother. As devastating as these losses were, I don’t feel they can compare to losing someone, much less an entire family, to such a cowardly and unjustifiable act of violence. We are not supposed to outlive our children, much less grandchildren. My heart goes out to those who lost the most.

Although I desperately long to return to my three children, my brothers and sisters, and everyone else I hold dear, I feel I have a desperately difficult fight ahead. My prayer is that this website, these truths, may bring me one small step closer to going home. To quote a passage from one of my favorite movies, The Shawshank Redemption — wherein, by the way, he as well was innocent — “Get busy living, or get busy dying.”