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IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

______________________

IN RE STELLA MAUDINE NICKELL,

Petitioner

______________________

MOTION FOR AUTHORIZATION TO FILE

A SUCCESSIVE PETITION UNDER 28 U.S.C. §2255

WITH THE WESTERN DISTRICT OF WASHINGTON AND IN THE ALTERNATIVE MOTION FOR THIS COURT TO TRANSFER THIS PETITION

FOR CONSIDERATION UNDER PRE-AEDPA STANDARDS

______________________

WITH THE WESTERN DISTRICT OF WASHINGTON AND IN THE ALTERNATIVE MOTION FOR THIS COURT TO TRANSFER THIS PETITION FOR CONSIDERATION UNDER PRE-AEDPA STANDARDS

STELLA MAUDINE NICKELL, (hereinafter “Petitioner”) pursuant to 28 U.S.C. §2244 and 28 U.S.C. §2255, respectfully requests that this Court provide her with authorization to file a successive petition with the Western District of Washington. The document Petitioner would file with the Western District, should this Court grant authorization, is attached to this motion. In the alternative, Petitioner respectfully requests that this Court transmit this petition to the Western District of Washington for consideration under pre-AEDPA standards.

A. WHY PETITIONER SHOULD BE ALLOWED TO FILE A SUCCESSIVE PETITION, OR IN THE ALTERNATIVE, WHY PETITIONER’S PETITION SHOULD BE ACCEPTED AND REVIEWED UNDER PRE-AEDPA STANDARDS 13

B. HOW PETITIONER MEETS CURRENT STANDARD FOR AUTHORIZATION TO FILE SUCCESSIVE PETITION 14

C. PRE-AEDPA STANDARDS SHOULD APPLY AND GATEKEEPING ROLE SHOULD BE INAPPLICABLE TO PETITIONER’S CASE 17

B. PETITIONER’S POSSESSION OF TWO BOTTLES OF TAINTED MERCHANDISE PURCHASED AT TWO SEPARATE STORES 28

H. NEW INFORMATION REGARDING PETITIONER’S POLYGRAPH AND ITS IMPORTANCE VIS A VIS DAMAGING TESTIMONY OF BACA 51

Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) 17

This Court has jurisdiction in this matter as a court of appeals pursuant to 28 U.S.C. §§2244 and 2255. This Court is the proper Court of Appeals as Petitioner was convicted in the Western District of Washington, within the territory covered by this Circuit Court.

Should this Court determine that pre-AEDPA standards should apply to this petition, the Western District of Washington would have jurisdiction over the matter.

Petitioner was convicted on May 9, 1988 of five counts of product tampering in violation of 18 U.S.C. §1365. She was pronounced guilty five days after her case was presented to the jury. Upon the jury’s verdict she was sentenced to a total of 210 years in prison. Petitioner is incarcerated at the Federal Correctional Institute located at Dublin, California. She will not be eligible for early release until 2017.

Petitioner filed a timely appeal of her conviction, which led to the reported decision of this Court, United States v. Nickell, 883 F.2d 824 (9th Cir. 1989), wherein this Court affirmed Petitioner’s convictions, Id. at 829.

Petitioner filed a previous petition challenging her incarceration pursuant to 28 U.S.C. §2255 with the Western District of Washington on or about April 16, 1997 (the “Prior Petition”). The Prior Petition was submitted before the strictures of the Anti-terrorism and Effective Death Penalty Act of 1996 (hereafter “AEDPA or 1996 AEDPA”) were applicable to Petitioner.

The Prior Petition asserted several claims that were held to have been previously raised on direct appeal, and a new claim that her trial defense team provided ineffective assistance by failing to question, and later call at trial, a certain individual who was asserted to have had information that may have exonerated Ms. Nickell. The relief requested in the Prior Petition was denied by the Western District of Washington on November 21, 1997.

Has new evidence been uncovered in Petitioner’s case that if proven, and considered in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found Petitioner guilty of the offenses for which she was convicted? 28 U.S.C. §2255.

In the alternative, based on the specific circumstances surrounding Petitioner’s incarceration, should this motion be transmitted by this Court to the Western District of Washington for treatment under pre-AEDPA standards?

This is Petitioner’s second petition for post-conviction relief. This petition is being submitted directly to the Ninth Circuit Court of Appeals as directed by 28 U.S.C. §2255. Under 28 U.S.C. §2255, this Court has jurisdiction to determine whether Petitioner has made a prima facie case that the requirements of 28 U.S.C. §2255 have been met and that, consequently, this Court should authorize her to file her successive petition for post-conviction relief with the Western District of Washington.

If this Court finds the AEDPA’s standards inapplicable to Petitioner’s case, the Western District of Washington would be the proper venue for review.

Petitioner was convicted under the Federal Products Tampering Statutes in 1988 and was sentenced to 210 years in prison. Petitioner submits that she is actually innocent of the crimes for which she was convicted.

Knowing of her innocence and seeking to prove it, Petitioner sought the help of investigators and attorneys to aid her in proving her innocence and challenging her conviction and incarceration. She has mailed letter after letter and made contact after contact in her attempt to find assistance on the “outside” to help collect the evidence necessary to prove her innocence. See Declaration of Petitioner (as Exhibit 1) at page 1, and attachments to Petitioner’s Reply to Government’s Answer to Section 2255 Motion to Vacate Sentence filed on July 24, 1997, with the Western District of Washington in connection with the Prior Petition.

Petitioner’s efforts, while diligent, were not met with success until very recently -- when she was put in contact with a private investigator, Mr. A.L. Farr (hereafter “Farr”). Petitioner was afforded the opportunity by Farr to tell her story and explain why she was deserving of investigative and legal assistance in her bids to prove her innocence and to challenge her incarceration.

Farr agreed to begin an initial investigation of certain matters represented to him by Petitioner. After this initial investigation, Farr, becoming more and more convinced of Petitioner’s innocence the farther he “dug” into the case against her, began to devote substantial time to Petitioner’s case. See Declaration of Farr (as Exhibit 3) at page 1. Farr engaged in the sort of wide-ranging, “supra-diligent” investigation that, in time, did allow him (after eleven months of investigation and engaging the assistance of another private investigator, Mr. Paul Ciolino (hereafter “Ciolino”)), to uncover the newly discovered evidence presented herein. See Declaration of Farr at page 1.

Petitioner’s husband was one of two people to die from cyanide poisoning in the well-publicized 1986 Washington State Maximum Strength Excedrin product tampering case. Petitioner was convicted on five Federal products tampering counts after the presentation of a largely circumstantial case against her.

The prosecution’s theory of the case was that Petitioner, bored with her marriage and in need of money, poisoned her husband with cyanide in order to collect insurance proceeds. The prosecution argued that when her husband’s death was ruled to have been by natural causes, Petitioner, rather than keeping the life insurance proceeds she was to receive, having seemingly gotten away with a perfect crime, actively sought an additional life insurance payment due to the accidental nature of her husband’s death.

The prosecution argued that in order to show that her husband actually died of cyanide poisoning (a fact that had not, at that time been discovered in autopsy), Petitioner placed cyanide-laced medications in local stores so that others would die, causing her husband’s cause of death to be revisited and declared to be an accidental death for purposes of his life insurance.

In support of their theory of the case, the prosecution presented evidence that Petitioner stood to gain more from her husband’s life insurance policies if his death resulted from an accident.

The prosecution presented what appeared to be the particularly damning evidence that Petitioner had in her home two separate bottles of cyanide-laced Excedrin, purchased from two separate stores. The prosecution highlighted the incredibly low probability of anyone actually purchasing two “tampered” bottles at two separate stores on two separate occasions.

1. A “marker” was found within the subject cyanide that was only found in one relatively uncommon product;

3. Petitioner, who lived in the area where the tamperings occurred, shopped at the stores where the tampered products were found;

4. Petitioner had read and referred to books about poisonous plants and certain poisons at some point in the past;

5. Petitioner approached her daughter soon after her husband’s death and stated words to the effect, “I know what you are thinking, and the answer is no” (the implication being that this was an inculpatory statement alluding to her guilt for killing her husband); and

6. Petitioner talked with her daughter about killing her husband prior to his death.

While not presented at Petitioner’s trial as evidence, the “fact” that she had taken and “failed” a polygraph examination was used as a bargaining chip to keep out any mention of the $250,000.00 to $300,000.00 reward Petitioner’s daughter was expecting to receive to testify against Petitioner. This bargain, while not evidence per se, was important in the prosecution’s case, in that it did, indeed, keep out a mention of the reward Petitioner’s daughter was to receive for her testimony -- thereby limiting cross examination of this star prosecution witness.

The evidence that has been discovered shows that Petitioner is actually innocent of the crimes for which she was convicted. Petitioner submits that she successfully rebuts each aspect of the circumstantial case, as outlined in the previous section, and as presented to gain her conviction.

Petitioner submits that the newly discovered evidence does more than introduce doubt into the question of guilt, as one might attempt to do in a criminal trial situation, but rather, the newly discovered evidence effectively negates the case presented against petitioner -- showing her to be actually innocent.

With no reputable evidence against her, Petitioner submits that she is as innocent as any other person who was not tried for the subject product tamperings (other than, of course, the person or persons actually responsible).

In sum, when considered with the newly discovered evidence, the evidence as a whole now shows:

1. There was, in fact, relatively little life insurance money to be gained by Petitioner, and the policies were not “loaded up” prior to the death of Petitioner’s husband;

2. There was significant reason for Petitioner to doubt that her husband had died of emphysema. Her family doctor had told her that, without question, her husband did not have emphysema. It was for this reason, that Petitioner endeavored to discover what had really killed her husband, not an attempt to gain additional “double indemnity” or other accidental death benefits;

3. Petitioner did not specifically research “poisons” and “poisonous plants” to gain knowledge with which to effect the murder of her husband or others, but rather read up on such subjects in an effort to protect her children and grandchildren from their dangers, among hundreds of other subjects throughout her life;

4. Petitioner did not use the “marker” product that was found in the cyanide at issue in this case, but rather she used an alternative product not found in the cyanide. This fact is attested to by a neighbor of Petitioner who was used by an agent of the Federal Bureau of Investigations to search Petitioner’s home without a warrant or consent. Furthermore, the testimony of the prosecution witness relating to Petitioner’s purported actual purchase of the “marker” product has been shown to have been unreliable;

5. Although he has denied involvement, and was not prosecuted in this case, significant evidence seems to point to another individual as the potential perpetrator of the crimes for which Petitioner was convicted;

6. Petitioner did not purchase two bottles of laced Excedrin at two separate stores. One of the FBI’s investigators detailed within his typewritten reports that, indeed, the two bottles were purchased at the same store. In addition, a witness has a specific independent recollection of Petitioner purchasing the two bottles of Excedrin at a two for one sale, which accounts for the fact that there is no receipt showing a purchase of two bottles at one store;

7. Significant apparent misconduct on the part of those government actors “investigating” Petitioner’s case raises serious questions about all of the material brought to bear against Petitioner at trial; and

8. The prosecution presented a prime witness, Petitioner’s daughter, whose testimony regarding Petitioner’s behavior before her husband’s death appeared particularly damaging at trial. Petitioner’s investigators have uncovered significant credibility issues concerning this witness, which strongly call into question the veracity of her testimony.

Petitioner submits that when taken together, the newly discovered evidence and other material, as presented in this Petition, serves to undercut and eviscerate each aspect of the case presented against her at trial. The evidence presented herein shows that there is no credible evidence against her, and that, in turn, she is actually innocent of the crimes for which she was convicted.

Petitioner argues herein that she has met the strict standards of the AEDPA as regards successive petitions. Sufficient new evidence has been discovered to show by clear and convincing evidence that no rational fact-finder would have convicted her of the crimes for which she was convicted. Furthermore, the AEDPA’s time limitations have been met as this evidence could not have been discovered previously through the exercise of due diligence.

Petitioner argues in the alternative that due to the specific circumstances of her case, the pre-AEDPA standards should apply to this petition and that it should be referred by this Court to the Western District of Washington for direct consideration.

A. WHY PETITIONER SHOULD BE ALLOWED TO FILE A SUCCESSIVE PETITION, OR IN THE ALTERNATIVE, WHY PETITIONER’S PETITION SHOULD BE ACCEPTED AND REVIEWED UNDER PRE-AEDPA STANDARDS

Petitioner argues that new evidence has been discovered, that when considered in light of the evidence as a whole, shows by clear and convincing evidence that no rational fact-finder should have convicted her of any crime. Petitioner further argues that this evidence could not, through the exercise of due diligence, have been previously discovered. Petitioner argues that she makes, herein, the prima facie showing required by 28 U.S.C. §2255 in order to move this Court to authorize her to file the attached successive petition with the Western District of Washington.

Petitioner argues in the alternative that the 1996 AEDPA restrictions on second or successive petitions should not apply to her, and that the newly discovered evidence recited herein would have been sufficient to allow her relief under the pre-AEDPA standards. Under those standards, a showing of actual innocence and cause for and prejudice from the omission of her claim from any prior petitions would have been sufficient to allow for relief on a second or successive petition. Petitioner submits that she has made this showing herein.

B. HOW PETITIONER MEETS CURRENT STANDARD FOR AUTHORIZATION TO FILE SUCCESSIVE PETITION

Petitioner requests authorization to file a successive petition challenging her incarceration by raising the following issue:

Sufficient new evidence has been uncovered to show that (when considered in light of the evidence as a whole) Petitioner is actually innocent of the crimes for which she was convicted. Petitioner further submits that the new evidence could not have been discovered previously through the exercise of due diligence within the time frames imposed by the AEDPA or otherwise.

The AEDPA requires that Petitioner make a prima facie showing that she is deserving of authorization to file her successive petition. As a requirement thereof, Petitioner must satisfy a two-part test to show that:

1. The newly discovered evidence that forms the basis for her successive petition, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact-finder would have found her guilty of the offense or offenses, and

2. The facts supporting the newly discovered evidence could not have been discovered previously with the exercise of due diligence. 28 U.S.C. §2255 and 28 U.S.C. §2244(b)(2)(B)(I)(ii).

The newly discovered evidence contained herein is presented as a whole under the heading “Newly Discovered Evidence” and Petitioner submits that when considered in connection with the evidence as a whole, it shows by clear and convincing evidence that not only would she not have been convicted, but that she is actually innocent of the crimes for which she was convicted. See “Newly Discovered Evidence” section infra.

Petitioner submits that the new evidence that she presents herein was not available to her at the time the Prior Petition was filed. Petitioner further submits that the new evidence that she presents herein could not have been found previously even with the exercise of due diligence.

Petitioner’s claim is not one based on a newly discovered scientific test or recent, yet corroborated confession, where one is faced with one individual salient piece of newly discovered evidence. Hers is a case where individual “pieces” of new evidence and “pieces” of information shedding new light on prior evidence have been uncovered, just recently, through the efforts of a team of private investigators that have obtained this new material only after engaging in an investigation significantly more thorough than “mere” due diligence would have required. See Declaration of Farr at pages 1-2, and Declaration of Ciolino (as Exhibit 4) at page 1.

Nevertheless, Petitioner submits that even though the totality of the newly discovered evidence presented herein could not have been discovered previously through the exercise of due diligence, Petitioner was, indeed, diligent in attempting to have new evidence collected in her case.

Since being transferred to FCI Dublin, Petitioner has used all means at her disposal to contact investigators and attorneys to work “on the outside” to gather evidence of her innocence and/or aid her in the preparation of challenges to her incarceration. Petitioner has sent numerous letters to various attorneys and other professionals and investigators throughout the United States seeking assistance. The fact that these pleas went unanswered for years does not detract from Petitioner’s due diligence in doing what she could to obtain the evidence necessary for this filing in as timely a manner as possible. See Declaration of Petitioner at page 1 and attachments to Petitioner’s Reply to Government’s Answer to Section 2255 Motion to Vacate Sentence filed on July 24, 1997, with the Western District of Washington in connection with the Prior Petition.

Petitioner submits that enough of the newly discovered evidence included herein could not have been discovered previously through the exercise of due diligence and that it has only now been discovered through “supra-diligent” efforts of trained investigative professionals. This being the case, she argues that the AEDPA’s statute of limitations has, indeed, been met. See Declaration of Farr at pages 1-2, and Declaration of Ciolino at page 1 (both attesting to the fact that this new material could not have been discovered previously through the exercise of due diligence).

C. PRE-AEDPA STANDARDS SHOULD APPLY AND GATEKEEPING ROLE SHOULD BE INAPPLICABLE TO PETITIONER’S CASE

Petitioner submits that, as applied to her specific circumstances, (i.e., an actually innocent person convicted and incarcerated before the enactment of the AEDPA -- but for whom sufficient evidence to prove her innocence was not available through the exercise of due diligence either before or after enactment of the AEDPA) the limitations imposed by the AEDPA are not properly applicable to this petition.

Petitioner bases this argument on the Supreme Court’s rulings in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), and Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). She also references in her argument the Third Circuit’s decision based on Landgraf and Lindh – In re Minarik, 166 F.3d 591 (3d Cir. 1999) and other related cases.

In Landgraf, the Court discussed the strong historical presumption against the retroactive application of statutes:

[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. For that reason, the principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal. In a free dynamic society, creativity in both commercial and artistic endeavors is fostered by a rule of law that gives people confidence about the legal consequences of their actions.

The Minarik court addressed specifically the historical presumption against retroactive application of statutes as described in Landgraf and before, as well as the Supreme Court’s holding in Lindh in ruling on the retroactivity of the AEDPA restrictions on successive petitions vis a vis petitioners whose first petition was filed prior to enactment of the AEDPA.

While dismissing Minarik’s petition on other grounds, the Minarik court held that treating his second petition under the more strict AEDPA standards as enacted in 1996 would be an impermissible retroactive application of the AEDPA’s provisions. In making this ruling, the Minarik court considered their previous cases such as Burns v. Morton, 134 F.3d 109 (3d Cir. 1998), and Mathews v. Kidder Peabody & Co., Inc., 161 F.3d 156 (3d Cir. 1998).

In Burns, a state prisoner exhausted all of his state rights of direct appeal and collateral review on September 21, 1995, at which point there was no statute of limitations on his right to a federal habeas petition under 28 U.S.C. §2254. Soon afterwards, in 1996, the AEDPA established a statute of limitations that began to run on September 21, 1995 regarding Burns’ case. See 28 U.S.C. §2254. Burns filed his petition after September 22, 1996 (which would have been the statutory deadline after enactment of the AEDPA) but was allowed to proceed with his motion because “AEDPA’s statute of limitations, if applied to his case, would extinguish his claim. . . . [and such an application] would impermissibly attach new legal consequences to events completed before the statute’s enactment.” Burns, 134 F.3d, at 111, quoted in Minarik, 166 F.3d, at 600-01. As regards this case, the Minarik court noted that “We see no meaningful distinction between that case and Minarik’s assuming that Minarik had a right to proceed on his claim prior to AEDPA.”

In Mathews, the court was faced with an amendment to the Racketeer Influence and Corrupt Organizations Act (hereafter the “RICO Act”). The amendment altered the RICO Act such that “any conduct that would have been actionable as fraud in the purchase or sale of securities” would no longer trigger Federal RICO Act jurisdiction. See Minarik, 166 F.3d, at 601.

In Mathews, the court held that the practical effect of the RICO Act amendment was to alter substantive rights [of a plaintiff] because “prior to the passage of the [RICO Act amendment], the [plaintiff] had a RICO cause of action based upon defendants’ alleged actions, but afterward he would not.” Minarik, 166 F.3d, at 601, referencing Mathews, 161 F.3d, at 163. “Similarly, if a habeas petitioner had a right to initiate federal proceedings to secure release from confinement prior to AEDPA, and had not such rights thereafter, then AEDPA has altered substantive rights and thereby attached new legal consequences to pre-enactment conduct.” Minarik, 166 F.3d, at 161.

Taken together, the cases cited in this section seem to stand for the following proposition:

Retroactive application of the standards of a statute, in situations where such an application alters substantive rights, impermissibly attaches new legal consequences to conduct occurring prior to the enactment of any such statute.

Petitioner’s situation is unlike that of Minarik in that both the Prior Petition and this petition were filed after the AEDPA was passed. However, Petitioner’s situation is like the situations faced by Minarik, Burns and Mathews in that application of the new AEDPA standards on this petition does indeed appear to impermissibly attach new legal consequences to her pre-enactment conduct.

Petitioner was tried and convicted at a time well before enactment of the AEDPA. She was, therefore, not on notice at the time of her arrest and conviction of the consequences of not, prior to her incarceration, putting in place the required team of investigators, attorneys, etc. to effectively and quickly challenge her incarceration should a new time limit be imposed on such a challenge. Under the pre-AEDPA standards (which were in effect when she was accused, tried and convicted), she would have been able to have this team put together at a later date and still make an effective motion to challenge her incarceration.

The AEDPA was enacted and, as enacted, purported to alter Petitioner’s expectations and substantive rights by significantly changing the “rules of the game” for her, as an actually innocent inmate, to effectively challenge her incarceration. She could not go back to a time prior to her conviction and prepare for such a change.

The AEDPA was not passed until Petitioner’s behavior and status as an actually innocent person, convicted by a largely circumstantial case where proving her innocence by refuting such a case would take years were already locked in place. The decision to rely on pre-AEDPA standards, where she could put together a “post conviction relief team” later and still effectively challenge her incarceration was already made. This being the case, applying the AEDPA’s strictures on Petitioner and thereby removing this option would work to attach impermissibly retroactive consequences to conduct that occurred years prior to the AEDPA’s enactment. The AEDPA, if applied to Petitioner, would alter the standard under which evidence showing her innocence would be reviewed, if reviewed at all.

In the case where an actually innocent person is convicted and incarcerated prior to the enactment of the AEDPA, and where the new evidence necessary to show that such a person is innocent cannot be found and presented within the AEDPA’s time frame -- then to the extent the AEDPA restricts the full review of such evidence when found, the AEDPA impermissibly attaches retroactive consequences to pre-existing status and behavior. The pre-existing status being that of suffering conviction for a crime when one is actually innocent but where, due to the circumstantial nature of the case against the individual, the evidence showing that innocence can be found, only over time, through efforts beyond due diligence. The behavior being that of relying upon pre-AEDPA standards and not arranging for timely and sufficient legal and investigative assistance in this endeavor prior to being convicted and incarcerated.

Petitioner submits that she has made the required showing under the AEDPA in order to have this Court authorize her to file a successive motion with the Western District of Washington.

However, if the AEDPA’s successive petition standards to apply to this motion and if the Court finds that the AEDPA’s standards have not been met herein, Petitioner argues that the enactment of the AEDPA will have impermissibly attached consequences to her failure to provide for adequate investigative and legal assistance to challenge her incarceration prior to her conviction and incarceration.

Based on the foregoing, Petitioner requests leave to file and serve a successive petition for post conviction relief under the standards of the AEDPA and in the alternative moves this Court to transmit this petition for consideration by the Western District of Washington with instructions to treat the petition under pre-AEDPA standards.

Significant evidence has been recently discovered and has been synthesized and evaluated in light of the evidence in Petitioner’s case as a whole. The evidence falls into several categories and is organized herein in separate sections, each corresponding to a “leg” of the case that led to the conviction of Petitioner.

The case against Petitioner involved allegations that she had obtained cyanide and used it to kill her husband and then other random victims. At trial, the prosecution submitted evidence aimed at linking Petitioner with the specific cyanide found in the subject Excedrin and other containers. The prosecution presented evidence that a certain compound, or marker, was found “mixed in” with the cyanide in each of the tampered containers, and then presented evidence linking Petitioner to that marker.

The marker consisted of green crystals which were found in limited numbers, but in each of the tampered bottles. The green crystals were allegedly discovered by Mr. Robert Martz at the Federal Bureau of Investigation’s lab in Washington D.C. Mr. Martz headed the laboratory investigation surrounding Petitioner’s case and claimed to have examined all of the tampered bottles and capsules. See Trial Transcript (See attachments to Declaration of Carl Colbert (as Exhibit 2)) at page 1058.

Mr. Martz testified that he performed numerous tests on the green crystals in order to determine what they were and where they came from. Mr. Martz further testified that, upon investigation and testing, he determined that the compound was found in only one product found in the United States, a certain solid, non-liquid, algaecide. See Trial Transcript at pages 1060 and 1068-1069.

The prosecution presented evidence that Petitioner was a “fish fancier” and that she did, indeed, own an aquarium. The prosecution presented evidence from an employee of a pet store regarding Petitioner’s purported purchase and use of this particular algaecide product. See Trial Transcript at pages 696-698. The witness testified that he remembered Petitioner and specifically remembered ordering the particular algaecide product specifically for Petitioner in the past. The witness further testified that he remembered instructing Petitioner to “crush” the solid algaecide product before introducing it into her personal fish tank. See Trial Transcript at page 702.

The implication of this aspect of the prosecution’s case was that the “green crystal marker” allegedly found by Mr. Martz at the lab, was introduced by Petitioner accidentally when she mixed Excedrin and cyanide and then Anacin and cyanide in the same apparatus or container where she crushed the solid algaecide.

This was an important “leg” of the prosecution’s case, as aside from this “evidence” there was nothing linking Petitioner to any cyanide, or in any way to the cyanide found in the tampered products.

Petitioner’s investigators recently discovered that additional evidence supports Petitioner’s contention that, while she did own an unopened bottle of liquid algaecide, she never used any solid algaecide product, and in fact, never used the liquid algaecide product she did own.

One of Petitioner’s neighbors at the time of her husband’s death, and thereafter, was Ms. Sandy Scott (hereafter “Scott”). Scott lived across the road from Petitioner. Ms. Scott is the wife of King County, Washington police officer Harold Scott. See Declaration of Scott (as Exhibit 5) at page 1.

Scott has informed Petitioner’s investigators, and has testified herein via declaration, that she was approached by Agent Cusack (hereafter “Cusack”) of the FBI, due to her connection with the King County Police Department, her proximity to Petitioner and her friendship with Petitioner. She was approached by Cusack in December 1986, before Petitioner’s arrest, and she was asked by Cusack to “keep tabs” on Petitioner for Cusack. This was to include keeping track of all the people who came and left Petitioner’s property as well as the time and date of each such coming and going. She was further instructed to visit Petitioner on a regular basis, at Petitioner’s home, and to conduct certain searches while at Petitioner’s home. Scott was not instructed to inform Petitioner that she was making searches of Petitioner’s home at the direction of the FBI, or that Scott would be testifying at Petitioner’s Grand Jury, and neither she nor anyone else informed Petitioner of either point. See Declaration of Scott at pages 1-2, and Declaration of Hillier (as Exhibit 6) at page 2.

Specifically, Scott was asked by Cusack to search for a solid algae-killing product that may have been used by Petitioner. Scott, indeed, conducted this search, and conducted this search thoroughly. Scott did not find any solid algaecide product, but rather, found a liquid algaecide product. See Declaration of Scott at pages 1-2.

Neither the fact that Scott was used to search Petitioner’s home, nor the fact that even the FBI’s own agent had found, not solid algaecide, but liquid algaecide, were disclosed to Petitioner’s trial defense. See Declaration of Hillier at page 2.

Importantly, Scott noted that the liquid algaecide was full, and appeared unused. Petitioner explained to Scott that she had purchased, but did not use, the algaecide because she already had living plants and algae eating fish in her tank. Scott recalls that she looked into the fish tank and that Petitioner pointed out a few of the algae eating fish. Petitioner explained to Scott that after finding this out, she determined not to use any algaecide product, including the liquid product she now owned, because it would have killed her aquatic plants and algae-eating fish. In fact, in response to Scott’s specific questioning, Petitioner explained that never used a solid algaecide product and that she had never “crushed” algaecide tablets. See Declaration of Scott pages 1-2, see also Declaration of Petitioner at page 2.

Scott was asked to keep a “log” or “diary” of her contacts with Petitioner and the results of her searches of Petitioner’s home. This diary confirms Scott’s recollections regarding the contents of her declaration. See Declaration of Scott at page 1.

This recently discovered information from Scott tends to strongly support Petitioner’s testimony that she did not use algaecide, let alone purchase and “crush-up” any solid algaecide product. Consequently, this information removes an important “leg” of the case against Petitioner by removing any connection whatsoever between her and the cyanide used to kill her husband and Sue Snow.

B. PETITIONER’S POSSESSION OF TWO BOTTLES OF TAINTED MERCHANDISE PURCHASED AT TWO SEPARATE STORES

Significant testimony was introduced against Petitioner regarding her possession in her home of two bottles of cyanide-laced Excedrin. This evidence appeared to gain incredible significance as evidence was further presented that these two bottles were purchased on two different occasions from two different stores. With this evidence in place, the prosecution argued that the chances of one person obtaining two of only five tampered bottles at two separate stores on two separate occasions was astronomical. See Trial Transcript at page 1529.

This aspect of the case against Petitioner appeared particularly damning, as it allowed the jury to imagine for themselves the relative unlikelihood of any person actually making such a series of unlucky purchases.

Significant new evidence has been discovered that undermines completely the “multiple bottles/different stores” evidence. The evidence has been uncovered in two places, in the mind of a witness and in a previously undiscovered/undisclosed FBI memorandum.

One of the individuals contacted by the FBI in connection with the investigation of Petitioner was Ms. Anna Jo Rider (hereafter “Rider”). Rider was previously one of Petitioner’s neighbors and Rider knew Petitioner and her family well. See Declaration of Rider (as Exhibit 7) at page 1.

Rider was contacted by FBI Agent Randy Scott (hereafter “Scott”) on or about June 18, 1986. Scott initially questioned Rider about Petitioner and certain aspects of her family life. Scott then asked about Petitioner’s recent shopping habits vis a vis Excedrin and was informed directly by Rider that Rider had accompanied Petitioner to Albertson’s recently where Petitioner purchased two bottles of Excedrin at a two for one sale. Later in January of 1987, Rider repeated this information to FBI Agent Cusack. See Declaration of Rider at page 1. It appears that this information was not provided to Petitioner’s trial defense. See Declaration of Hillier at pages 2-3.

Additionally, according to Rider, Cusack had telephoned her earlier with a story regarding Petitioner. Cusack explained to Rider that Rider needed to “hide” because Petitioner was in the process of hiring a person or persons to kill Rider and her family.

Rider believed Cusack’s story and accelerated a move to Nevada, where she lived throughout the time surrounding Petitioner’s trial. Rider remembers being told by Cusack that “We need to get you where you can’t be reached by [Petitioner], her investigators and hit men.” See Declaration of Rider at page 1. Rider was, in fact, kept in Nevada throughout Petitioner’s trial.

Furthermore, Rider recalls Cusack stating words to the effect to her that if any investigators came to visit her and ask questions about [Petitioner’s] trial, that she should tell them that she thought [Petitioner] was guilty and that she should send the person away. She was also told by Cusack that each time she moved, she should change her telephone number, leave the telephone in the name of one of her children and keep her telephone number unlisted. See Declaration of Rider at pages 1-2. According to Rider, it was during this time that Cusack also told her that [Petitioner] had failed a polygraph and that the FBI “had her cold.” See Declaration of Rider at pages 1-2.

Rider further testified via declaration that in December of 1987 or January of 1988, Mr. Salvador Ramos, a Staff Investigator for the Office of the Federal Defender, did indeed find Rider and visit her in Nevada. Rider felt that she was in great danger, and told him words to the effect that “[Petitioner] did it” and slammed the door on him. See Declaration of Rider at page 2.

Rider has further stated that she called Cusack immediately after Ramos left and told Cusack what had transpired. According to Rider, Cusack told her that he didn’t know how Ramos found her, but that “she did right” by sending him away. Cusack also told her that she should move as soon as possible and that he would try to “protect her” from [Petitioner]. See Declaration of Rider at page 2.

Rider’s potential testimony regarding the timing and sequence of Petitioner’s purchase of the two bottles of tampered Excedrin would clearly have been significantly detrimental to the prosecution’s case. The fact that an FBI agent affirmatively acted to conceal a potentially exculpatory witness from Petitioner’s defense is, indeed, troubling.

Rider still maintains a “clear recollection” of her shopping trip with Petitioner where the two bottles were purchased simultaneously at Albertson’s. See Declaration of Rider at page 1. Petitioner submits that the new evidence, regarding what Ms. Rider would have testified to, is very relevant to her actual innocence showing.

Petitioner’s investigators have uncovered an FBI memorandum, which it is believed was also not produced to Petitioner’s trial defense team. See Declaration of Farr at page 2, and Declaration of Whitehurst (as Exhibit 8) at page 1, and Declaration of Hillier at page 1. This memorandum was included in a response to a Freedom of Information Act Request made by Dr. Frederic Whitehurst. The memorandum is dated June 24, 1986 and is from “SAC, Seattle (250-11) (P) to Director, FBI (250-117) (Attention: Roger Martz, FBI Laboratory). The memorandum was clearly prepared by an agent or employee of the FBI and specifically referenced Major Case #87 (the FBI case number for the tampering investigation that led eventually to Petitioner’s conviction). See Declaration of Whitehurst at page 1.

The memorandum is relevant to this section of Petitioner’s motion and the corresponding “leg” of the prosecution’s case against her in that it specifically states:

“For the information of the Laboratory, the enclosed bottle was obtained from a PAY N’ SAVE STORE located at. . .This store is located in very close proximity to the ALBERTSON’S STORE at . . .where STELLA NICKELL purchased the two bottles of Extra Strength Excedrin, which were obtained from her residence. . .” (emphasis not in original , capitalization in original).

According to this memorandum (which it appears was not disclosed to Petitioner’s trial defense team, see Declaration of Hillier at page 1, and has only been recently discovered under the FOIA, see Declaration of Whitehurst at page 1) the FBI, as of the date of this memorandum (well before Petitioner’s trial) indeed, knew Petitioner purchased the two bottles of tainted Excedrin capsules at the same time and at the same place.

When one considers Rider’s recollection along with the “Page 22” memorandum, one sees immediately that that portion of the case against Petitioner based upon the incredible coincidence of obtaining two tainted bottles of only five on two separate occasions and at two places has fallen away. It would seem that a product tamperer would, as likely as not, place tampered merchandise in the same area where an unlucky person such as Petitioner might easily grab two at the same time -- as was apparently the case.

Petitioner’s investigators have conducted an extensive review of the product tampering case for which Petitioner was convicted. In connection with this investigation, they have uncovered additional evidence and have come to the conclusion that another individual warrants, at the very least, substantial additional scrutiny in this matter.

When the product tamperings for which Petitioner was eventually convicted were initially discovered and investigated, other persons of interest were initially investigated as potential perpetrators. One such individual, Paul Webking (hereafter “Webking”), was investigated briefly at the time by the FBI and has, indeed, been investigated additionally by Petitioner’s investigators.

Webking was the husband of Ms. Sue Snow, the other individual who was killed in 1986 in Western Washington by cyanide-laced Excedrin. Ms. Snow died five days after Petitioner’s husband died, and was the first victim actually to be identified as having been killed by cyanide.

While Webking was investigated and then apparently cleared as a suspect, new evidence has surfaced which tends to call into question the apparent haste in which this decision was made and the apparent haste in which the investigative focus was transferred to Petitioner.

Petitioner’s investigators, in connection with their investigation of this case, recently uncovered evidence that appears to call into question the decision to pursue Petitioner rather than Webking. This evidence involves statements made by and actions of Webking immediately after Sue Snow’s poisoning.

One of petitioner’s investigators, Farr, as part of his investigation into this case, requested from the Auburn, Washington police department any information and documentation still in their possession and control regarding the tampering case and/or Petitioner. In response to his repeated requests, Farr and an associate were eventually allowed to peruse a “banker’s box” of documentation presented to them by the Auburn City Attorney. See Declaration of Farr at page 2. None of the information contained within the box appeared to shed any new light on the tampering case -- save for one document. A statement prepared by a certain Dr. Brian Trimble, formerly of Harborview Medical Center.

The statement was folded up and was not related to the other documents in the box. It appeared to Farr that the statement had somehow been placed in the box by accident (Farr believed this to be the case because of the way it was folded and stuck within a binder of presumably unrelated materials). See Declaration of Farr at page 2.

The statement was dated June 19, 1986, and was signed by Dr. Brian Trimble, the doctor who saw Sue Snow when she arrived at Harborview Medical Center at approximately 8:00 a.m. on June 11, 1986. It detailed a conversation Dr. Trimble had with Sue Snow’s husband, Paul Webking, while Sue Snow was still alive and being treated.

According to the statement, Webking approached Doctor Trimble and stated in the form of a question words to the effect that “I know this is a stupid question, but is it possible that my wife took some Excedrin capsules with cyanide in them?”

Farr visited and interviewed Dr. Trimble who now practices in Alaska. Farr showed him the statement purportedly signed by him. Dr. Trimble recognized his statement as having been the one given by him to a law enforcement officer and actually remembered his conversation with Webking and remembered thinking it strange at the time. Dr. Trimble represented to Farr that he did not follow the tampering case as it unfolded, and therefore took no action on Webking’s statement due to the fact that he was transferred to Alaska shortly after giving his statement. See Declaration of Farr at page 2, and Declaration of Trimble (as Exhibit 9) at page 1.

The timing of Webking’s statements is obviously very strange. As mentioned above, Sue Snow was the first person actually identified as having been killed by cyanide. There was no cyanide related or tampering related publicity until well after her death. Webking approached Dr. Trimble while Sue Snow was still alive (by necessity, well before her cause of death could have been discovered) and asked, not only about poisoning, not only about over the counter drugs, but specifically about EXCEDRIN and specifically about CYANIDE.

As part of their investigation into Petitioner’s conviction, Farr spoke with Sarah Webb and Rodney Webb, close relatives of Webking and Sue Snow who knew them at the time of Sue Snow’s death.

Sarah Webb and Rodney Webb recall specifically a conversation they had with Webking shortly following Sue Snow’s death. They recall that one day, a short time after her death, Webking indicated to them that he was contacted by the FBI and that the bureau wanted to know if he had any Excedrin, and that if so they would come by to pick it up. Webking further explained that the FBI did indeed come to his home where they searched for Excedrin both in the house and in his vehicles. Webking stated to the Webbs words to the effect that while he did have a bottle of Excedrin capsules in his truck, he was glad that they didn’t find it because if they did, they were going to think he did it. The Webbs declared that after he said this Webking laughed and said the FBI sure was “stupid” for not finding that bottle. Webking and his brother then went out to Webking’s 18-wheeler truck, poured the capsules out and flushed them down the toilet. He then stated that he drove away and threw the container out the window. See Declaration of Sarah Webb (as Exhibit 10) at page 1, and Declaration of Rodney Webb (as Exhibit 11) at page 1.

Sarah Webb was so frightened by Webking’s statements that she called either Auburn Detective Dunbar or FBI Agent Randy Scott and related Webking’s statements. Neither of the Webbs heard back from the person they called, nor anyone else regarding this information until contacted by investigator A.L. Farr in early November 2000. See Declaration of Sarah Webb at pages 1-2, and Declaration of Rodney Webb at pages 1-2.

Petitioner’s investigators also visited with and questioned Ms. Sarah Webb about her other recollections regarding the death of her sister and the aftermath. Among other things, Ms. Webb has declared that while her identical twin sister, Sue Snow, did use over the counter and prescription medications, Sue Snow never took capsules. This fact was confirmed by Rodney Webb who also remembered that Sue Snow never took capsules. See Declaration of Sarah Webb at page 1, and Declaration of Rodney Webb at page 1.

Ms. Webb recalls specifically that when she found out that her sister, Sue Snow, was very ill, she made arrangements to fly to Seattle and see her on June 11, 1986. She recalls finding out when her plane landed that her sister had already passed away. Ms. Webb and her husband then headed directly to Sue Snow’s house and arrived there at approximately 3:30 p.m. See Declaration of Sarah Webb at page 1, and Declaration of Rodney Webb at page 1.

When she arrived at Sue Snow’s home, Ms. Webb, who had developed a headache, went immediately to the kitchen cabinet (where she knew her sister kept her family’s medicines and vitamins) for a pain reliever. When she looked in the cabinet she discovered Excedrin capsules. Ms. Webb reported that she was surprised by this, because her sister “never” took capsules. Ms. Webb then approached Paul Webking with her concern that the capsules may have had something to do with her sister’s death. Sarah Webb reports that Webking stated words to the effect of “come on” and “lighten up” and appeared to brush off the possibility of a poisoning. See Declaration of Sarah Webb at page 1. This was mere four hours after Webking had posed the question to Dr. Trimble whether, specifically cyanide-laced Excedrin could have caused her death.

Before any public knowledge regarding any cyanide tainted Excedrin, Paul Webking asked a doctor treating his wife whether she could be suffering from the effects of such a poisoning. He then went home and acted as if this concern never crossed his mind. He then disposed of a bottle of Excedrin capsules he was “glad” the FBI did not find because if they did, they were going to think “he did it.” Furthermore, two witnesses have declared that Sue Snow never used capsules.

Petitioner submits that together, the “Webking related” materials submitted in this section strongly support her contention that she is actually innocent of the charges against her. Petitioner submits that based on the information contained in this section, there is actually more evidence against another person than there ever was against her.

Some of the most damaging testimony introduced against Petitioner was that of her own daughter, Cindy Hamilton (now known as Cindy Baca, hereafter “Baca”). Among other things, Baca testified that Petitioner had discussed with her, on various occasions, the killing capacity of certain drugs and the possibility of “overdosing” someone with cocaine or other drugs, and the availability of “hit-men” in the community. In addition, she testified to a conversation soon after the death of Petitioner’s husband where Petitioner was alleged to have stated “I know what you are thinking, and the answer is no” or words to that effect.

Petitioner submits that Baca’s testimony was not well corroborated, but was presented in her trial based on the veracity of Baca alone. This being the case, Petitioner submits that, Baca’s honesty and integrity as well as her reputation for truth telling behavior should bear significantly on the weight to be given said testimony in the calculation of whether Petitioner has met her burden herein.

Petitioner’s investigator, Farr, as part of his involvement in Petitioner’s case, investigated Baca and the various aspects of her testimony at Petitioner’s trial. Farr has uncovered evidence which Petitioner believes cuts deeply into Baca’s story as presented at trial and again tends to show Petitioner’s innocence by removing yet another “leg” from the case presented against her.

Petitioner’s investigators interviewed several persons who knew Baca well before and during the time of her testimony against Petitioner. These persons included Leah Matthews (hereafter “Matthews”), Baca’s sister, and Rachel Slawson, (hereafter “Slawson”) Baca’s daughter. A.J. Rider, (please see Rider section supra) was also questioned. In this section, Petitioner reports the various findings of her investigators and argues that, when taken as a whole, together with the other information her investigators have uncovered, Baca’s testimony should be afforded no weight whatsoever.

Both Matthews and Slawson reported to Petitioner’s investigators that Baca, for years prior to and during her testimony against Petitioner was a serious Methamphetamine user. Matthews and Slawson reported that Baca’s use was not merely “recreational” but from the years of 1983 to 1988 (until each terminated contact with Baca), she (Baca) used Methamphetamine almost every day, and would often stay up days at a time on the substance. See Declaration of Matthews (as Exhibit 12) at page 1, and Declaration of Slawson (as Exhibit 13) at page 1.

Matthews, Baca’s sister, lived with Baca for many years, including the time surrounding Baca’s testimony in Petitioner’s case. Matthews has reported that on the days leading up to Baca’s testimony at Petitioner’s trial, Baca had been up two days on Methamphetamine and was very concerned about appearing “high” or “strung out” in court. Baca stated to Matthews that she intended to sleep on the plane on the way up to testify so that she would have at least some rest prior to her testimony. She stated that she hoped the plane ride and the night before her testimony would be enough to erase any “high” or “strung out” look she might have from her recent behavior. See Declaration of Matthews at page 1.

Slawson, while relatively young at the time, corroborated Matthews. Slawson, upon reflection, remembered behaviors of Baca (her Mother) throughout Slawson’s life with her mother that led Slawson to conclude that Baca was, indeed, a heavy drug user. See Declaration of Slawson at page 1.

Petitioner submits that the fact that Baca was coming down from a Methamphetamine binge at the time of her testimony against Petitioner, and even the fact that she was a heavy Methamphetamine user with a very expensive habit, detracts from the weight that should be afforded her testimony.

Petitioner’s investigators spent time interviewing persons who knew Baca at the time of her testimony in order to find out if Baca were known as an honest person. Petitioner’s investigators discovered that far from having a reputation as a truth-teller, Baca had exactly the opposite reputation and the persons they spoke with conveyed their knowledge of Baca’s veracity in no uncertain terms. In addition, according to the FBI’s own investigators, who spent significant time with Baca, she changed her story significantly on a number of occasions.

In connection their investigation into Baca’s truthfulness, Farr and Ciolino again spoke to those persons with substantial personal experienced with Baca. They again spoke with Matthews and Slawson -- Baca’s sister and daughter, respectively.

Matthews did not hesitate in her denunciation of Baca’s truthfulness. In fact, Matthews, who lived with Baca for 11⁄2 years and had ample opportunity to observe Baca and her veracity or lack thereof, stated that her sister was, in her opinion “a pathological liar.” Matthews described Baca as “one of the best liars” she has ever seen. She described Baca also as being “one of the best actors” she had ever seen. Matthews went on to describe various situations where she witnessed Baca lie “bald-face” to people --including situations where Matthews knew from personal information that Baca was lying, but that Baca was so convincing, Matthews almost came to believe her stories. Matthews stated clearly that in her personal experience with Baca, there were hundreds of occasions like the ones conveyed to Petitioner’s investigators and that, in general, Baca was one of the most consistently dishonest people she had ever come in contact with. See Declaration of Matthews at page 1.

When speaking with Petitioner’s investigators, Slawson was also quick to comment on Baca’s general truthfulness. Slawson noted that throughout her (Slawson’s) life, she witnessed her mother lie consistently. Slawson also independently described her mother as a “pathological liar” and noted occasion after occasion where she witnessed her mother lying with amazing skill. Slawson also, independently, described her mother as an incredible actress, noting that “my mom could lie and get away with it better than anyone I have ever known.” See Declaration of Slawson at page 1.

Importantly, when initially contacted by the FBI Baca reported none of the terribly damaging “knowledge” she later claimed to have about Petitioner until after a reward was offered. She made no mention of Petitioner speaking about hiring a hit man, or speaking about poisoning people with drugs or any of the other information Baca later testified to at trial. In fact, when interviewed by the FBI originally, she stated that Petitioner and her husband had a good marriage and that nothing in her mind came close to implicating Petitioner, her mother. See Declaration of Farr at page 3

It was only after a significant reward was offered to Baca that she changed her story and implicated her own mother with fanciful stories of hit men, cocaine-poisoning and the like.

Since the vast majority of Baca’s accusations against Petitioner come down to Baca’s word against Petitioner, Petitioner is, by necessity, restricted in her ability to provide evidence that Baca testified falsely in Petitioner’s trial other than make note of Baca’s reputation for dishonesty. Petitioner submits that this would be the case with any person trying to prove the falsity of another’s testimony when there can be no witnesses to conversations that never occurred. Petitioner submits, however, that there was at least one conversation presented to show the guilt of Petitioner that was witnessed.

At trial, evidence was presented by Baca that soon after Petitioner’s husband’s death, Petitioner visited Baca and Baca’s roommate to inform Baca of Bruce Nickell’s death. Baca testified that immediately after relating the fact that Baca’s step-father was dead, Petitioner looked at Baca and stated words to the effect that “I know what you are thinking, and the answer is no.” Baca testified that she took this to mean that Petitioner knew that Baca would be thinking that Petitioner killed her husband but that that was not the case. Baca also testified that she and a Ms. Denise Button and a Ms. Bonnie Anderson were in the room when Petitioner made this statement. See Trial Transcript at pages 913-916.

This statement was used against Petitioner at her trial and was ascribed a particular importance in showing Petitioner’s guilt by the prosecution in argument. See Trial Transcript at pages 1561-1562.

Petitioner’s investigators have discovered that this statement was absolutely not what it was presented as in Petitioner’s trial. It has been discovered that, indeed, there was yet another person present at Baca’s apartment to witness exactly what Petitioner said and what her words meant. A.J. Rider (Please see Rider section supra) was also present when Petitioner broke the news of her husband’s death to Baca.

Rider has a distinct memory of Petitioner coming to Baca’s house and discussing the death of her husband. Rider explained to Farr that, in fact, it was clear to Rider that rather than meaning “I know you think I did it, and I didn’t” Petitioner’s statement meant “I know you and your father were fighting recently and the answer is no, he didn’t die angry with you.” See Declaration of Farr at page 4.

Had Rider not been hidden away in Nevada for the duration of Petitioner’s trial, and had she not been convinced by FBI Agent Cusack that Petitioner was (a) absolutely guilty and (b) trying to kill Rider, presumably she would not have sent Petitioner’s trial counsel’s investigator away, but would have truthfully explained her knowledge of this statement as well as her knowledge of Petitioner’s two for one sale purchase. She then could have testified at Petitioner’s trial to these very relevant pieces of exculpatory evidence.

Based on what Petitioner’s investigators have uncovered, Petitioner submits that Baca’s testimony should be subject to serious scrutiny. Petitioner, indeed, submits that beyond simple scrutiny, the persuasive impact of her testimony on the whole has been eliminated due to the incredibly serious questions regarding Baca’s truthfulness as discovered by her investigators. In a case such as Petitioner’s where all other “legs” of the case against her have been effectively removed, Petitioner submits that her incarceration cannot stand based on the uncorroborated statements of someone such as Baca.

Evidence was introduced at trial regarding Petitioner’s reading information about poisonous plants and about certain poisons, including Cyanide. The implication of this evidence was that Petitioner was researching poisons in anticipation killing her husband and perhaps others.

Petitioner’s position has always been, and is, that she did, indeed, read up on poisons and plants that were dangerous to people and animals because she was particularly afraid of having her children, grandchildren or others harmed by the various poisonous plants prevalent in her area. See Declaration of Petitioner at page 1.

Petitioner’s investigators have gathered statements from various persons, each of whom personally attests to the fact that Petitioner did indeed voice concern over certain plants accidentally poisoning her children, grandchildren, or others and that she read up on such subjects for this purpose. See Declaration of Scott at page 2, and Declaration of Matthews at page 1.

Witnesses who knew Petitioner well have testified specifically to the fact that she is a voracious reader and that she often read about many different topics. They have also confirmed that Petitioner’s statements regarding concern for poisons and poisonous plants. See Declaration of Scott at page 2, and Declaration of Matthews at page 1.

Petitioner submits that the fact that she had or had used books regarding plants that were potentially harmful to people and animals among the many various books she had read and subjects she studied should not be afforded weight in terms of proving her guilt. Petitioner has always conceded that she did read up on many subjects and submits that her explanations, corroborated by many, should be accepted -- especially considering the extremely circumstantial nature of such “evidence” against her. See Declaration of Petitioner at page 1.

At Petitioner’s trial, the prosecution offered evidence from Mr. Thomas Noonan that purported to link Petitioner to the green algaecide “marker” material allegedly found mixed in with the Excedrin cyanide.

Noonan testified that he knew Petitioner relatively well, and that he knew her as a regular customer of a store where he worked. The Kent, Washington Fish Gallery and Pets. Noonan testified at Petitioner’s trial that he recognized Petitioner from a bell that she wore and that he specifically recollected selling her solid green algaecide tablets and that he specifically recollected instructing Petitioner to pulverize these tablets up prior to placing them in her fish tank. See Trial Transcript at page 702.

Petitioner was cross examined on the point that he told a different story to Ramos, Petitioner’s trial defense investigator and to Hillier, Petitioner’s lead trial attorney. See Trial Transcript at pages 705-706. Hillier has testified via declaration that when he spoke with Noonan prior to Noonan’s testimony, Noonan explained that he did not remember explaining to Petitioner that she should “crush” the tablets. See Declaration of Hillier at page 3.

Noonan also testified that he obtained the solid algaecide product at the specific request of certain customers only, and that Petitioner was one of these customers. See Trial Transcript at page 698.

Petitioner’s investigators have interviewed Noonan and found good reason to severely limit any “value” ascribed to his testimony.

Noonan explained to Petitioner’s investigators that he, in fact, did not recall telling Petitioner to crush any algaecide tablets, or that he even remembered selling them to her in or around 1986. Noonan further explained that when approached by the FBI, he “wanted to help out” and that he testified to “help out with their case.” See Declaration of Farr at page 4. He also specifically stated that he wanted to “help out” because he and his family knew Sue Snow well and that she was a friend. See Declaration of Farr at page 4.

Beyond this, Farr uncovered the actual order slips for the solid algaecide product at issue with respect to Noonan and his store. The “order slips” show that, the particular solid algaecide product was not special ordered for certain customers. Rather, it was subject to the same inventory ordering process as the other normal products at the store. See Declaration of Farr at page 4. Noonan also specifically admitted to Farr that these products were not special ordered. See Declaration of Farr at page 4.

In considering the value of Noonan’s testimony alongside the declarations of Hillier and Farr, along with the fact that he was a family friend of one of the victims and along with the hard evidence contained in the “order slips,” one cannot help but seriously question the value of Noonan’s testimony. In addition, the idea that Noonan was testifying to “help out” is also particularly troubling. With these factors in mind, one is forced to look to Petitioner’s testimony and position from day one, that she never crushed any solid algaecide tablets and hadn’t ever used algaecide of any kind. See Declaration of Petitioner at page 1. See also Declaration of Scott at page 2.

As noted infra, evidence was presented by the prosecution regarding life insurance proceeds and the various amounts Petitioner would receive based on the “classification” of her husband’s death. See, e.g., Trial Transcript at page 607.

The death of Petitioner’s husband was initially ruled to have been from natural causes, specifically emphysema. Later, after Petitioner questioned this finding, it was discovered that her husband had died from cyanide poisoning.

It was argued that if her husband’s death were ruled to have been from “natural causes” Petitioner stood to receive a relatively small life insurance benefit, but if his death were ruled a cyanide poisoning, Petitioner stood to receive more. See, e.g., Trial Transcript at page 607.

The prosecution argued that Petitioner killed her husband but was disappointed that the cyanide was not discovered – because she would not obtain additional life insurance proceeds based on an accidental death classification. The prosecution argued that her motive for tampering with products and placing them back at various stores was that others would die and give her a way to have her husband’s death re-evaluated.

As mentioned infra Petitioner’s investigators have been in contact with Ms. Sandy Scott, the neighbor of Petitioner who was used by the FBI to search Petitioner’s home. Scott had information relevant to Petitioner’s reason for disbelieving the emphysema explanation for her husband’s death and for seeking to have his cause of death re-evaluated.

Scott has testified via declaration that she specifically remembers discussing the death of Petitioner’s husband with Petitioner. She further specifically remembers that she (Scott) brought up initially the idea that she (Scott) did not believe Petitioner’s husband would have died from emphysema. Scott recalls stating that she didn’t believe such a thing and that Petitioner should have his cause of death “looked into.” See Declaration of Scott at page 2.

Scott recalls Petitioner being convinced by Scott’s arguments and stating to Scott that she would, indeed, look into having her husband’s death re-examined, if possible. Scott further recalls that she suggested that Petitioner should visit her family doctor (who also was her husband’s regular doctor) and inquire of him whether her husband could have died of emphysema. See Declaration of Scott at page 2.

Dr. Smith was Petitioner’s family’s “family doctor.” Dr. Smith was consulted by Petitioner soon after Petitioner was convinced by Scott to inquire into her husband’s death.

Petitioner recalls that Dr. Smith told her “in no uncertain terms” that he did not believe her husband died of emphysema. Petitioner recalls that Dr. Smith reported to Petitioner that he would have definitely discovered life-threatening emphysema when examining Petitioner’s husband on occasions prior to his death. Dr. Smith still practices in Auburn, Washington, and would presumably be available to testify to his recollection of these conversations.

While not new evidence, Petitioner feels it is important to revisit the life insurance “numbers” used to create a motive in the eyes of her jury. The absolute total amount alleged to have caused her to murder her husband and another person was subject to dispute, but in any event, even assuming the largest possible amount, it was well under $200,000.00. No reliable evidence was introduced to show any “loading up” of insurance just prior to her husband’s death. Petitioner submits that a life insurance payout, when taken in light of the evidence as a whole, including the new evidence, should not be afforded weight as pointing to her guilt. Petitioner submits that many, if not most people carry life insurance and that with respect to the death of many people, one could almost always point to some economic benefit to a family member and create a motive.

Petitioner reminds the Court that the prosecution’s theory was that she “got away” with murdering her husband, and then later called attention to herself and the murder by calling the police to her house to pick up laced bottles of Excedrin, then proceeded to speak with the authorities over and over again, allowing them to search her house over and over again and even took what she thought was an actual polygraph examination. Petitioner submits that this sequence of events tends to show, if any thing, that her husband was killed by a laced Excedrin product and that she was merely the beneficiary of limited insurance proceeds, as the wife of any decedent would likely be.

When one considers the testimony of Sandy Scott and considers Petitioner’s memory regarding Dr. Smith, one sees that Petitioner’s “motive” also falls away. Petitioner’s contention that she sought re-evaluation of her husband’s cause of death due to the fact that she didn’t believe he died of emphysema is well supported by Scott. In fact, according to Scott, it was her recommendation and advice that she believes led Petitioner to begin to question her husband’s cause of death.

H. NEW INFORMATION REGARDING PETITIONER’S POLYGRAPH AND ITS IMPORTANCE VIS A VIS DAMAGING TESTIMONY OF BACA

Petitioner submits that Baca’s testimony was presented to the jury in such a way as to carry more weight than it would have had Petitioner’s trial defense had the opportunity to fully cross examine Baca. Petitioner refers herein to the importance of the “polygraph exam” purportedly flunked by Petitioner concerning her involvement in the Excedrin case.

In this section, Petitioner will describe the circumstances surrounding her “polygraph” examination and the incredible importance this “polygraph” examination improperly took on in her trial.

Petitioner submitted to a “polygraph” examination on December 15, 1986. The “polygraph” was performed by FBI agent Jack Cusack. Present in the room with Cusack was another FBI agent, Ron Nichols, who was seated behind Petitioner by the “polygraph” machine. Petitioner specifically recalls that Cusack delivered the polygraph questions to her while standing up in front of her and while leaning over her. See Declaration of Petitioner at page 2. According to Petitioner, immediately after the last question of her “examination,” Cusack stated, “We have a very nice Rehabilitation Center, in Northern California, for women.” Petitioner asked “What are you trying to say” and Cusack responded “You know what I am saying. You know and I know you are guilty.” Cusack made these statements while still leaning over Petitioner with his hands on the arms of the chair in which she was sitting, before he even looked at the alleged “polygraph.” See Declaration of Petitioner at page 2.

Dr. Raskin, a renowned polygraph expert, has examined the circumstances surrounding the “polygraph” of Petitioner.

According to Dr. Raskin, having the examination conducted by Cusack and not the examiner, Nichols was a violation of all accepted practice. He further stated that the facts that Cusack was not a trained polygraph examiner and that he had previously interrogated Petitioner (informing her that she was a prime suspect) both greatly increased the risk of a false positive error, (i.e., incorrectly labeling a person deceptive when they are, in fact, being truthful). See Declaration of Dr. Raskin (as Exhibit 14) at pages 3-4.

Dr. Raskin has also declared that it was a violation of all accepted practice for Cusack to have stood in front of Petitioner when asking the examination questions. He declared that the standing position of the accuser, who is a male Federal law enforcement officer, is extremely intimidating to a seated female suspect. He also declared that this situation also greatly increases the risk of a false positive error. See Declaration of Dr. Raskin at page 4.

In addition, Dr. Raskin has stated that the FBI regulations in 1987 (as well as now) required that all polygraph examinations be independently evaluated in the polygraph office at FBI headquarters in Washington, D.C. See Declaration of Dr. Raskin at page 5.

Dr. Raskin concludes in his declaration that “The foregoing violations of acceptable polygraph procedure and the failure of the Government to provide [Petitioner] with access to the polygraph materials make it extremely risky to rely on the purported results of the FBI polygraph examination of [Petitioner]. The likelihood of error is unusually high and unacceptable.” See Declaration of Dr. Raskin at page 5.

Petitioner submits that additional testimony of Dr. Raskin (see infra) tends to show that there was, in fact, not just an improper and invalid polygraph; but no polygraph examination at all.

Petitioner’s attorney at the time, William Donais, hired Dr. Raskin in order to do an independent examination of the purported “polygraph graph” itself. See Declaration of Dr. Raskin at page 2. An appointment was made at 1:00 p.m. on January 9, 1987, for Dr. Raskin to meet with “the FBI polygraph examiner who conducted the examination of Petitioner.” Dr. Raskin flew into Seattle from Salt Lake City on or about January 8, 1987 and proceeded to the U.S. Attorney’s office in order to meet the examiner and review the polygraph charts and supporting material from Petitioner’s “polygraph”. See Declaration of Dr. Raskin at page 2. Dr. Raskin arrived at 1:00 p.m. for his appointment and spoke to the receptionist who stated that “they would be with us soon.” See Declaration of Dr. Raskin at page 2. He asked on several occasions where the examiner was. Eventually, at approximately 4:00 p.m. he was told that “the polygraph examiner we had arranged to meet had left the building for the day.” See Declaration of Dr. Raskin at page 2.

Furthermore, no polygraph result of any kind was ever provided to Petitioner’s trial defense despite Attorney Hillier’s repeated requests (see Declaration of Hillier at page 1), nor has one ever been discovered by Petitioner’s investigators or otherwise.

Based on the foregoing, Petitioner believes that she was never given a polygraph, or that if somehow she was, she would have passed, and that this was the reason no result was ever provided Dr. Raskin or anyone else on Petitioner’s trial defense team. Dr. Raskin’s declaration appears to support this theory. The procedures used by Cusack and Nichols do not appear geared towards doing an actual polygraph. It appears that they were using the polygraph as a ruse to obtain a confession from Petitioner. Petitioner submits that the fact that polygraph itself was never disclosed and the fact that the examiner avoided meeting Dr. Raskin also strongly support the contention that no exam was given, or that if it was, she passed.

As is well known, polygraph results are generally not admissible to prove the veracity of any given polygraph examinee. In Petitioner’s case, however, the alleged “facts” that she was examined via polygraph and that she “flunked” said polygraph were extremely important.

Baca stood to receive $250,000.00 or more as a reward for her testimony against Petitioner. This huge reward would legitimately have been a major point for cross-examination regarding Baca’s motive for her testimony. In fact, Petitioner’s trial defense argued strenuously that he should be able to cross-examine based on this extremely significant reward amount.

The prosecution took the position that Baca had told Cusack that she came forward to testify against Petitioner when Petitioner told Baca that she (Petitioner) had flunked a polygraph exam. The prosecution argued that if Petitioner’s trial defense brought up the reward money to be received by Baca, they would elicit testimony regarding the polygraph examination in order to show that this was truly the reason for her coming forward, not the reward.

There was extensive discussion regarding the reward vs. polygraph examination issue on the record during Petitioner’s trial. The eventual resolution of the discussion was the determination that the reward would not be mentioned by the trial defense, and therefore the polygraph “result” would not be mentioned by the prosecution.

This bargain, in essence, served to increase (Petitioner believes dramatically) the weight that was eventually given Baca’s testimony because, in effect, the most important cross examination point was taken off the table. Petitioner believes that the severe restriction placed on cross examination of Baca greatly impacted her trial in that the damaging testimony of Baca was presented to her jury without the jurors hearing the reason why she was testifying the way she did -- the huge reward.

The facts surrounding this “reward vs. polygraph” bargain, gain relevance as new evidence herein, based on the fact that there appears not to have been a polygraph examination. This being the case, there should never have been the devastating bargain wherein the purported polygraph took on an important role in limiting the extent of Petitioner’s defense, i.e., a full cross examination of the prosecution’s star witness.

Petitioner has, in this New Evidence section described sufficient new evidence to show her actual innocence. Interspersed with this new evidence is evidence of serious government misconduct in the investigation of her case. Also interspersed with this new evidence is rebuttal information and argument aimed at disputing other “pieces” of the circumstantial case against Petitioner. Petitioner submits that this government misconduct and other rebuttal evidence is important, although not strictly “new evidence” because in a case such as hers, new evidence could not be expected as to every circumstance of her prosecution, and that this rebuttal information “completes the circle” around the case against her, most effectively showing her innocence.

Petitioner submits that this newly discovered evidence along with her arguments based thereon, when taken together with the evidence in her case as a whole, does indeed show that she is actually innocent of the crimes for which she has been convicted and for which she is currently incarcerated. Petitioner has shown that each “leg” of the case presented against her has been sufficiently refuted and thereby should be removed from the consideration of any reasonable fact-finder that might review the facts in the case against her. Petitioner submits that with the case that is left against her after consideration of the new evidence, no reasonable fact-finder could find her guilty of any crime. Petitioner submits that she is actually innocent of the crimes for which she was convicted and has presented a prima facie case that she should be authorized to present her petition to the Western District of Washington.

In the alternative, Petitioner argues that this same prima facie case of actual innocence has met the pre-AEDPA standard for successive petitions for post-conviction relief. This being the case, Petitioner submits that she should be afforded relief as requested below under whichever law this honorable Court properly applies to her motion.

Petitioner represents that she would be happy to supplement this motion, to the extent possible, with any materials this Court may request, either with additional declarations of fact, or with additional legal argument should the Court find such materials helpful.

1. For an order authorizing Petitioner to file a successive petition challenging her incarceration in the Western District of Washington or, in the alternative, an order transmitting this petition to the Western District of Washington for consideration as a first petition;

4. Any other relief this Court deems just and equitable. RESPECTFULLY SUBMITTED this ________ day of ______________, 2001.

I HEREBY CERTIFY under penalty of perjury under the laws of the Federal Government of the United States and the State of Washington that on ___________________, I caused to be served in the manner noted below a true and correct copy of the foregoing SECTION 2255 AUTHORIZATION MOTION, complete with all attachments, upon counsel for Respondent:

Ms. Joanne Maida, Esq.U.S. Attorney’s Office601 Union Street, Suite 5100Seattle, Washington 98108

[x] Via Messenger/Hand Delivery EXECUTED in Gig Harbor, Washington, on this _______ day of _____________, 2001..