Withholding of exculpatory evidence

[cfbochy60]

In 1991 I was charged with 4 felony counts in two seperate incidents. Trial Counsel joined/consolidated these 2 incidents to be tried before the same jury and the out come was a split verdict one of not guilty and one of guilty. The guilty conviction resulted in a 10 and 4 year conviction to run concurrantly commencing on January 21, 1993. After 8 years I was released and to date, I continue to fight the allegations that resulted in my conviction. In late 1997 early 1998, the public defender that was representing me came across some information that was withheld by the court and the prosecuting attornies that could have turned my conviction to an aquital. Thus, to date, the trial court refuses to hear the information, and I continue to do the post-conviction thing. If interested or have comments or know of someone that could aid me, please email me at cfbochy60@yahoo.com or post your reply so that others that may be in the same situation may also be helped. Thank you

 

[Michael Wechsler]

Why does the trial court refuse to hear the evidence you propose?

 

[cfbochy60]

Courts refusal to hear evidence (REPLY)

The evidence the court refuses to hear was obtainable by trial counsel. However, counsel did not obtain this material and I had no idea that it existed until a court appointed attorney brought it to my attention. I have made attempts to have the court review this material, and after obtaining some of my trial transcripts, finding that the trial court itself new of the existance of this material. I do not know why the court refuses to review this material, only that when it is brought up, they avoid the issue. The material is of a sensitive nature, and I have yet to find a criminal attorney that will touch my criminal matter. It is my belief that these materials would have turned my case from a conviction to an aquittal. I am not asking for much, only that I be pointed in the right direction. I live in a small community with no law library that I can access , closest one is 85 miles away, for research and although some materials are accessable on the web, it is limited. Thank you for your response.

 

[Michael Wechsler]

Why are the attorneys refusing to take your case?

 

[cfbochy60]

Reply concerning Counsel

Dear Michael,

The attornies that I have discussed my matter with in this community feel that what I am trying to do is futile venture and because the case deals with issues of a sexual nature. I had no problem during incarceration obtaining counsel, but since my release it has been an up hill battle. One lawyer even had his secretary hang up on me. I am a novice in law and by no means capable of representing myself as I allow my emotions to rule my better judgement. I have held two jobs since my release, and both of them I lost due to interferance from a police officer, and filing a complaint had no effect. Thus I am unemployed. My wife of almost two years works part time at a little above minimum wage, and neither one of us can afford to pay for counsel even if I could locate one that would take the case. As I said in my previous post, I just need the pointing in the right direction for research. If you do not wish to further these communications; I will understand. Thank you for your time and consideration.

 

[Michael Wechsler]

Ah, so you wanted someone to take your case on a minimal fee or pro bono. A very tough request, especially in this very, very difficult economy.

What you need in order for anyone to be able to help you, is the reason why the court refused to hear the fact that you had additional information that was not used. Did you claim that your counsel was inadequate? Was that the case? Was the evidence not turned over properly? If there is a very strong case against you, is it your impression that they think you are definitely guilty and merely trying to get off on a technicality that you think you can find?

It's difficult to know where you are coming from.

 

[cfbochy60]

Evidence, & the courts refusal to hear it

No, I have asked that an attorney work with me in regards to my financial situation not pro bono or at a reduced rate.

NO, I am not guilty and I am NOT looking to get off on a "techniacality". Yes, I did claim ineffective assistance of cousel and it was found by the court not to be.

the evidence was not turned over to trial counsel and it is my belief that it was in violation of Rules of Evidence. Proving however when the cards are stacked against you is another matter.

Regardless of the term "Innocent before found guilty" in some cases is simply a farce and and in my particular case, those rules changed and the burdon shifted.

Evidence that tends to cast doubt on the states case should be turned over to trial counsel regardless, and the Rules of Evidence requires that it is.

It would appear, that in some cases such as mine, one does not have to commit a crime, just as long as one can be proved to have committed the crime under law.

Example of the attempt, In a different matter concerning me in a face to face confrontation, the alleged victim DID NOT identify me as the person who commited the act, the court however, still bound the matter over for trial in an attempt to make me responsible for the act claimed. (AQUITTED at Trial)

In the matter I was convicted, cross examination, evidence with which to disprove allegations was denied. I was accused of something that I did not do. And it would appear that the materials that I have in possession will have to be used in another way. Public Awareness is one of my other options.

Thank you

 

[Michael Wechsler]

Understood but I wasn't asking if you did or being accusatory and I'm hoping it wasn't taken that way. My question was whether you felt or heard that the court was convinced that you were guilty so they were leaning towards the way of saying that the evidence was not relevant/exculpatory, etc. I'm trying to get a slant on why they would deny you the introduction of the evidence.

It might be easier to allude to what the evidence is and why you feel it would be exculpatory or could have changed the outcome of your case. I'm sure the ADA had a reason why this evidence was not turned over to you.

I'm hoping that your claim of ineffective assistance of counsel appeared meritorious to the court. Again, not accusatory, the court may see you as a guilty complainer looking at every method of trying to get out from the verdict with every method you can. My point is that if they perceive you as such, you may need to put something in writing that is clear and gets right to the point. Cite the rule of evidence, state what the items are and how you came to be aware of their existence and being withheld from you, and then come to the "obvious" conclusion. If it is clearly exculpatory as you state, then hopefully this can put someone on notice that cannot be denied. My telling you this is because part of legal training is the hope that you can be clear and quickly -- the court loses patience when it doesn't understand. There are lots of cases and never enough time...

In my speaking to you here I understand what you are trying to say but I'm not getting the clearest message -- perhaps due to your reluctance to share what might be the sensitive nature of the materials.

 

[cfbochy60]

Withholding of excupatory evidence

I am sorry, I did not take it wrong, and I must appollogize if it came across that way. I can not really explain to you why the court refuses to hear this evidence, and altough I can cite the rules that govern this evidence, it is either not discussed or avoided all together.

In 1991 I was accused by a 13 year old girl and her 11 year old sister of sexual misconduct. The family has had a history of incest dating back as far as 1984 with references of the same to 1982.

The information provided a means that would have proved my theory that I was being accused because they were either mad at me or seeking attention. There have been 11 other "men" accused by either these two young ladies or their mother; and the material that I have shows that the mother and the two girls use allegations of this nature to either get rid of the men in their life or to get attention.

Trial counsel never attempted to obtain these materials, I called the court and asked if a petition had been filed requesting this information, none were filed, although the court itself knew of the material.

The 11 year old has a severe mental condition and is easily manipulated and was later diagnosed as being paranoid schizophrenic. This condition, from my uderstanding, can cause one to think and believe things that are not really happening.

I have one more shot at this post conviction remedy under Rule 35(c) and I am at a stand still without the means to obtain the information I need to continue. The fact remains that I have information that should have been heard and in my belief was intentionally withheld, that could have changed the out come of my trial. The is no DNA, marks, scars or other evidence, only an accusation, an accusation that has devistated my life.

In 1993, the 13 year old molested her sister and nothing was done to her, no investigation, no trial, no conviction, only a Social Services Report. Granted she was considered a minor at that time, but the crime remains unpunished, the State placed these girls older brother in a juvenile facility for what he did to both of his sisters and then returned him home to continue what he did before, why wouldn't they punish her for the very thing she accused me of doing?

All this information is contained in the materials that I have in my possession thanks to a public defender who did her best and believed in me.

Thank you

 

[Michael Wechsler]

Hmmm... this is disturbing. Are you telling me that you were convicted of the crime on nothing but the testimony of children? This would seem particularly odd although given recent events I have seen, nothing would surprise me.

I'm not sure what else there is to do except keep appealing the case until someone wakes up. Another is to take some more extreme methods such as press (although obviously you want some contractual arrangement to keep your identity a secret) or possibly even something more extreme such as a civil lawsuit against theese people. The latter is risky because a conviction is "prima facie" (on its face) evidence of your guilt.

It is difficult to answer more specifically since much of the defense is likely contained in the thick file I'm sure you have. What was the public defender's take on the whole process? Having so many claims of sexual abuse prior to yours would seem relevant -- but did all of them result in charges, convictions, etc.? Would it in ANY way affect the evidence that was leveled against you, which might be convincing so that such a factor is really a non-factor, in that what happened in other cases does not affect the direct evidence that connects you to guilt in this case.