Federal Appeal 3

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1: THE UNCONSTITUTIONAL SUPPRESSION OF EVIDENCE BY THE STATE. Either with or without a specific request or with a general request for all exculpatory material, the district attorney has a duty to disclose evidence that is clearly supportive of a claim of innocence. There is no physical evidence as to how the victim, Michael Fitzgibbons died. No Autopsy was performed and the body was cremated. The death certificate reads as follows cause of death,undetermined, immediate cause drowning/hypothermia,autopsy performed? No. The death certificate was signed March 23, 1990, by the coroner. The death certificate was signed the same day and the coroner had checked NO to an autopsy. Pease now has a copy of the coroner notes, which the coroner wrote while he notified the mother of Michael Fitzgibbons of the death of her son. These notes read as follows son told me he would jump from bridge, troubled young man, Multiple-history alcohol-drug abuse, treated repeatedly-Alc/du. Ab probable suicide- C. Fitzgibbons These notes were not entered into the court as evidence, thus the DA failed to provide exculpatory evidence. He was aware of these statements but failed to provide them to the defense. Defense Attorney Mares said he wasn't provided with this information of suicide attempts in discovery. It is for the jury to decide between the defense theory and the state's theory. Defense Attorney Mares wanted to file a motion that had to do with the suicide issue. Mares wanted to question Fitzgibbons relatives regarding his attempting suicide in the past. With regards to this issue the Judge stated he needed an offer of proof, but Attorney Mares never went any further on this issue. Trial Counsel's defense was that the state had to prove that a homicide had occurred. This was crucial evidence to the defense and should have been put in front of the jury. Trial counsel's defense was that the state could not prove that a homicide had occurred. The suicide issue would be of importance to the defense. Attorney Mares was not aware of the prior suicide attempts until he had seen an article in the newspaper the weekend before the trial started. When Attorney Mares raised this issue in court, District Attorney Paulus, denied the suicide issue, he in fact, mislead the court, claiming he knew nothing about it. The statements made by Doug Seefeld and Susan Duerr also were withheld from the defense. Pease first became aware that these statements existed, when Robin Pease in 1998 went to the office of district Attorney McCann to see the file for the investigation into the coroner. McCann would not turn over those statements until he called DA Paulus. Paulus told McCann that they had to be turned over because they were exculpatory. Then they should have been turned over prior to trial and they weren't turned over at all. Doug Seefeld's statement was withheld from the defense because he states that the coroner never returned to the funeral home, and he states the body was not looked at, nor turned over during the first and only exam done by the coroner. Doug Seefeld's statement also is in conflict to the testimony of Kevin Arne's (funeral home employee) testimony and Doug Seefeld's statement is of major importance. Kevin Arne states that Doug Seefeld and the coroner left together, and he stayed behind and cleaned up and that's when he noticed the wound in the back of the head. Doug Seefeld states that the three of them, Kevin Arne, the coroner and himself, left the funeral home together, and the three of them cleaned the area together, and never mentioned seeing the wound. The affidavit of Susan Duerr was also not turned over to the defense attorney, it states that the coroner was abusing drugs. And it also states, Todd Crawford (state's key witness) involvement in this case and a lot of other things would have been harmful to the prosecution's case, like the fact that the body was not shot nor beaten. Evidence favorable to defendant must be disclosed if there is a reasonable probility that disclosure would have resulted in different trial outcome. Criminal defendants have a right to the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before the jury evidence that might influence the determination of guilt. The omitted evidence creates a reasonable doubt [of guilt] that did not otherwise exist. On July 16, 1996 an amended death certificate was issued in the death of Michael Fitzgibbons. Coroner Jane Van DeHey issued the following statement, Although, Forensic Autopsy Data was impossible to obtain due to cremation, I believe the Adjudication Process clearly describes the nature of his injuries and provides my office with enough information to rule his death a homicide and the mechanism as Cerebral Hemorrhage secondary to two gunshot wounds.In the jury trial of Pease the State only describes one gunshot wound. And according to this statement there was no evidence of cause of death, because no autopsy was done, so this is more evidence that there is no evidence as to the cause of death, and Richard Pease's conviction should be overturned.