Federal Appeal 11

10. THE CHAIN OF EVIDENCE WAS BROKEN.


The cremated remains were brought into evidence at the trial of Richard Pease. At this time the trial attorney should have asked for a mistrial. The brother of the deceased was allowed to get the remains without being accompanied by the police, to protect the chain of custody once this was being investigated as a homicide case. The cremated remains should have been secured by the police to protect the chain of evidence. It was broken when the brother of the deceased picked up the remains without the police, after the death was being investigated as a homicide.

The cremated remains were to be x-rayed. Richard Pease since being convicted has talked to professionals in the funeral home business. The professionals were questioned about this procedure and they said the cremated remains should have never been turned over to the brother. A police officer or officer of the court should have also been along.

He also said that the cremated would be of no value because nothing could be found in the ashes because of the extreme heat used in the cremation process. He did state that occasionally calcium or a chemical could be found. However no metal would ever be found.

The lab reports states the following: the questioned metal found was similar to the jacket material of the fired bullet. It is the opinion of the analyst that the standard jacket material from
the fired bullet and the questioned metal could be of the same type. This analyst recognizes that the sources of metal with properties consistent with the above metal do exist.

District Attorney Paulus argues on appeal that the state did elicit testimony from various witnesses concerning the location of Michael Fitzgibbon's remains. He also argues that the chain of custody issued was not pursued by Pease at the trial. The Judge also states the same claim in his decision.

Pease's position is that his trial counsel was insufficient for failing to raise this issue at the
trial, the fact is a police officer should have gone along with the brother of Michael Fitzgibbons to get the remains. Then procedure would have been followed and the chain of evidence would have been protected.

The chain of custody was broken and also this is another issue for the right to a competent lawyer.

It was later found out that the body was not cremated until the 28th. If the coroner intended on having an autopsy performed he would not have allowed Westgor Funeral Home pick up the body. As he testified at trial to protect the chain of evidence the body would stay locked up in the county cooler at Seefeld's Funeral Home, where the coroner has the only set of keys to the cooler.

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