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Stella M. Nickell
Case:
Stella Nickell 2255 Petition
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
______________________
Carl P. Colbert
Member, 9th Circuit Bar
Member Western District of Washington Bar
Washington Bar Number 28818
Colbert & Colbert, LLP
56th Street Professional Plaza
3309-56th Street Northwest, Suite 101
Gig Harbor, Washington 98335
253.853.1720 (voice)
253.853.1705 (facsimile)
Counsel for Ms. Nickell
No. ____________________
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
______________________
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.
TABLE OF CONTENTS
TABLE OF AUTHORITIES iv
LIST OF EXHIBITS BY EXHIBIT NUMBER v
LIST OF EXHIBITS BY NAME vi
I. STATEMENT OF JURISDICTION 1
II. PROCEDURAL HISTORY 2
III. STATEMENT OF ISSUES 3
IV. STANDARD OF REVIEW 4
V. STATEMENT OF THE CASE 5
A. BACKGROUND 5
B. SUMMARY OF EVIDENCE USED TO CONVICT PETITIONER 6
C. NEWLY DISCOVERED EVIDENCE SUMMARY 8
D. SUMMARY 10
VI. SUMMARY OF ARGUMENT 12
VII. ARGUMENT 13
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
Introduction: 13
B. HOW PETITIONER MEETS CURRENT STANDARD FOR AUTHORIZATION
TO FILE SUCCESSIVE PETITION 14
Prong 1: 14
Prong 2: 15
Summary: 16
C. PRE-AEDPA STANDARDS SHOULD APPLY AND GATEKEEPING ROLE
SHOULD BE INAPPLICABLE TO PETITIONER’S CASE 17
Case Law: 17
Argument: 19
Application to Petitioner’s Case: 19
Summary: 21
D. SUMMARY 21
VIII. NEWLY DISCOVERED EVIDENCE 23
Introduction: 23
A. DISCOVERY OF “PETITIONER-LINKED MARKER” IN
EXCEDRIN CYANIDE 23
Importance of Evidence at Trial: 23
Evidence at Trial: 23
New Material: 25
Ms. Sandy Scott: 26
Summary: 27
B. PETITIONER’S POSSESSION OF TWO BOTTLES OF TAINTED
MERCHANDISE PURCHASED AT TWO SEPARATE STORES 28
Introduction and Importance at Trial: 28
New Material: 28
Witness – Ms. Anna Jo Rider: 29
Summary: 30
FBI Memorandum -- Page 22: 31
Summary: 32
C. NEW EVIDENCE REGARDING ADDITIONAL “PERSON OF INTEREST” 33
Introduction: 33
Doctor Brian Trimble: 34
Statements of Those Close to Webking and Sue Snow: 36
Summary: 38
D. CINDY HAMILTON (BACA) 38
Introduction: 38
Baca’s Significant Drug Use: 39
Baca’s Veracity: 41
The “I Know What You are Thinking” Conversation: 42
Summary: 44
E. BOOKS ABOUT POISONOUS PLANTS, ETC. 44
Summary: 45
F. THOMAS NOONAN’S TESTIMONY QUESTIONABLE AT BEST 46
Introduction: 46
New Material: 46
G. MOTIVE – LIFE INSURANCE PROCEEDS 48
Introduction: 48
Use at Trial: 48
New Material: 48
Ms. Sandy Scott: 48
Dr.Smith: 49
Amount of Life Insurance: 50
Summary: 51
H. NEW INFORMATION REGARDING PETITIONER’S POLYGRAPH
AND ITS IMPORTANCE VIS A VIS DAMAGING TESTIMONY OF BACA 51
Introduction: 51
Circumstances of Polygraph: 52
Dr. David Raskin: 52
Summary 54
The Importance of the Polygraph: 55
I. SUMMARY 56
IX. CONCLUSION 57
X. REQUEST FOR RELIEF 58
TABLE OF AUTHORITIES
CASES
Burns v. Morton, 134 F.3d 109 (3d Cir. 1998) 18
In re Minarik, 166 F.3d 591 (3d Cir. 1999) 17
Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986) 13
Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229
(1994) 17
Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) 17
Mathews v. Kidder Peabody & Co., Inc., 161 F.3d 156 (3d Cir. 1998) 18
McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) 13
In re Minarik, 166 F.3d 591 (3d Cir. 1999) 19
Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) 22
United States v. Nickell, 883 F.2d 824 (9th Cir. 1989) 2
STATUTES
18 U.S.C. §1365 2
28 U.S.C. §2244 1, 14
28 U.S.C. §2254 18
28 U.S.C. §2255 1, 2, 3, 13, 14
LIST OF EXHIBITS BY EXHIBIT NUMBER
Exhibit 1 Declaration of Petitioner
Exhibit 2 Declaration of Colbert
Exhibit 3 Declaration of Farr
Exhibit 4 Declaration of Cioloni
Exhibit 5 Declaration of Scott
Exhibit 6 Declaration of Hillier
Exhibit 7 Declaration of Rider
Exhibit 8 Declaration of Dr. Whitehurst
Exhibit 9 Declaration of Dr. Trimble
Exhibit 10 Declaration of Webb (Sarah)
Exhibit 11 Declaration of Webb (Rodney)
Exhibit 12 Declaration of Matthews
Exhibit 13 Declaration of Slawson
Exhibit 14 Declaration of Dr. Raskin
LIST OF EXHIBITS BY NAME
Declaration of Ciolino Exhibit 4
Declaration of Colbert Exhibit 2
Declaration of Dr. Raskin Exhibit 14
Declaration of Dr. Trimble Exhibit 9
Declaration of Dr. Whitehurst Exhibit 8
Declaration of Farr Exhibit 3
Declaration of Hillier Exhibit 6
Declaration of Matthews Exhibit 12
Declaration of Petitioner Exhibit 1
Declaration of Rider Exhibit 7
Declaration of Scott Exhibit 5
Declaration of Slawson Exhibit 13
Declaration of Webb (Rodney) Exhibit 11
Declaration of Webb (Sarah) Exhibit 10
I. STATEMENT OF JURISDICTION
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.
II. PROCEDURAL HISTORY
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.
III. STATEMENT OF ISSUES
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?
IV. STANDARD OF REVIEW
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.
V. STATEMENT OF THE CASE
A. BACKGROUND
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.
B. SUMMARY OF EVIDENCE USED TO CONVICT PETITIONER
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.
The prosecution presented further evidence that:
1. A “marker” was found within the subject cyanide
that was only found in one relatively uncommon product;
2. Petitioner had, in the past, owned such a 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.
C. NEWLY DISCOVERED EVIDENCE SUMMARY
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.
D. SUMMARY
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.
VI. SUMMARY OF ARGUMENT
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.
VII. ARGUMENT
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
Introduction:
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).
Prong 1:
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.
Prong 2:
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.
Summary:
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.
Case Law:
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.
Landgraf, at 265-66, as cited in Minarik, at 595-96.
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.
Argument:
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.
Application to Petitioner’s Case:
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.
Summary:
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.
D. SUMMARY
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.
VIII. NEWLY DISCOVERED EVIDENCE
Introduction:
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.
A. DISCOVERY OF “PETITIONER-LINKED MARKER” IN
EXCEDRIN CYANIDE
Importance of Evidence at Trial:
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.
Evidence at Trial:
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.
New Material:
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.
Ms. Sandy Scott:
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.
Summary:
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
Introduction and Importance at Trial:
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.
New Material:
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.
Witness – Ms. Anna Jo Rider:
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.
Summary:
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.
FBI Memorandum -- Page 22 :
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.
Summary:
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.
C. NEW EVIDENCE REGARDING ADDITIONAL “PERSON OF INTEREST”
Introduction:
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.
Doctor Brian Trimble:
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.
Statements of Those Close to Webking and Sue Snow:
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.
Summary:
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.
D. CINDY HAMILTON (BACA)
Introduction:
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.
Baca’s Significant Drug Use:
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.
Baca’s Veracity:
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.
The “I Know What You are Thinking” Conversation:
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.
Summary:
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.
E. BOOKS ABOUT POISONOUS PLANTS, ETC.
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.
Summary:
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.
F. THOMAS NOONAN’S TESTIMONY QUESTIONABLE AT BEST
Introduction:
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.
New Material:
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.
G. MOTIVE – LIFE INSURANCE PROCEEDS
Introduction:
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.
Use at Trial:
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.
New Material:
Ms. Sandy Scott:
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:
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.
Amount of Life Insurance:
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.
Summary:
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
Introduction:
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.
Circumstances of Polygraph:
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. David Raskin:
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.
Summary
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.
The Importance of the Polygraph:
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.
I. SUMMARY
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.
IX. CONCLUSION
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.
X. REQUEST FOR RELIEF
WHEREFORE, Petitioner respectfully moves the Court as follows:
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;
2. An order granting her relief from the prior judgment;
3. An oral argument on this motion; and
4. Any other relief this Court deems just and equitable.
RESPECTFULLY SUBMITTED this ________ day of ______________, 2001.
STELLA M. NICKELL, Petitioner
THROUGH HER ATTORNEY:
COLBERT & COLBERT, LLPBy
CARL P. COLBERT, WSBA# 28818Attorney for
Petitioner
CERTIFICATE OF SERVICE
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
[ ] Via Facsimile
[ ] Via U.S. Mail (postage prepaid)
[ ] Federal Express (next day delivery)
[x] Via Messenger/Hand Delivery EXECUTED in Gig Harbor, Washington, on
this _______ day of _____________, 2001..
CARL
P. COLBERT, WSBA#28818
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