Federal Appeal 4

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2: STATE KNOWINGLY USING PERJURED TESTIMONY, SUBORNING PERJURY, AND OBSTRUCTION OF JUSTICE. The most compelling evidence to the state knowingly using perjured testimony at the preliminary hearing and at the trial verses the letter from Detective Forseth to District Attorney Paulus. At the preliminary hearing District attorney Paulus never let the court know that the coroner did not return to the funeral to perform a second examination of the body. The District Attorney did not let the court know that the coroner never noticed a contusion. Pease could not raise this issue prior to the preliminary hearing or the trial, he was not aware of this until January, 1998 when he obtained the files from District Attorney McCann. Judge Haase also states in the 974.06 motion filed to the trial court, that Coroner Stelter acknowledged that he never saw any sort of wound. Judge Haase is aware of the perjury by the coroner at the preliminary hearing for Pease, which resulted in the bind over of Pease for trial. The coroner testified that he saw a wound on the right side of the head and was then corrected by DA Paulus that it was the left side of the head. In opening statements the District Attorney states that two funeral home attendants who saw the body and reported to the police later that they had seen a puncture wound. On may 18, 1990, Gary Derksen one of the funeral home attendants from Westgor Funeral Home told the police he did not look at the body, remembers talking to a man from Seefeld's Funeral Home, he didn't think he did look at the body, because the body was released by the coroner and he was there to pick up the body. At the trial Gary Derksen testified that he did look at the wound. This just constitutes more evidence of perjury, known by the District Attorney. Furthermore throughout the testimony of Coroner Stelter on direct, the District Attorney solicited the perjured testimony. For example he asked the coroner, Between the first and second visit at the funeral home? The District Attorney knew that the coroner never returned to the funeral home a second time. Then the District attorney again asked the coroner about a second examination, and the wound, and it was never fully disclosed that the coroner perjured himself And what was adduced at the trial was that he didn't examine the back of the head the way he should have. This leads the jury to believe that he did look at the back of the head but did not do a thorough exam. Deliberate deception of the court and jurors by the representation of known false evidence will justify a writ of habeas corpus, and this principle applies even though the false evidence was not solicited, but merely allowed to go uncorrected. Special Prosecutor Peter Grimm(conducting the investigation of the coroner for the mishandling of the body and perjury at the preliminary hearing and trial of Pease) also talked with District Attorney Paulus, concerning another meeting he had with Coroner Stelter. It says when the coroner decided to cremate, he decided it was a suicide after talking to the mother. This is more evidence that the district attorney was aware of the perjury that the coroner committed during the preliminary hearing and the trial of Pease. Then there is the statement of Doug Seefeld was discussed in ground one of this motion. This issue is also brought up here as to why the District Attorney could not let this statement get into the hands of the defense prior to trial, because it would have offered proof that the coroner lied at the preliminary hearing and at the trial concerning the examination of the body. When Pease presented this to the court in his 974.06 motions, Judge Haase replied, It is true that former Coroner Stelter made statements which were contradictory and some may have been untrue. The Judge claims that Pease's attorney knew about this information. Pease also feels, the following is more evidence, not only to perjury but to obstruction of justice by the District Attorney. The District Attorney was aware of the statements that were made by other witnesses, in which Todd Crawford participated in the beating of Mike Fitzgibbons. Todd Crawford also went around bragging that he killed Mike Fitzgibbons and that Mike Fitzgibbons is fishy food. These statements were in the police reports from Joe Pease and Sue Lawler, and in the affidavit from Detective Forseth to obtain search warrant for Richard Pease's car. Along with the testimony, at the post conviction hearing for Pease. Todd Crawford claims he never hit Mike Fitzgibbons, only when he tried to grab at his feet. Vern Weiggers testified that Todd Crawford said to him, you should of been there, we beat this guy up at Joey Pease's. At post conviction the District Attorney testified that he was not aware that Todd Crawford had pummeled Mike Fitzgibbons at the apartment. There were statements that were made prior to the trial that state that Todd Crawford participated in the beating of Mike Fitzgibbons. More evidence that the District Attorney knew about Todd Crawford's involvement and he wasn't the forced participant as he and the District Attorney portrayed to the jury. The DA had seen all these statements. Because of the various statements given by various witnesses about Todd Crawford's participation, the accomplice theory should have been given to the jury, in instructions. The judge would not allow this instruction to be given to the jury It should be noted that there are 2 affidavits. One is dated May 18,1990 this is to obtain the search warrant for Richard Pease's car. This included statements made that Todd Crawford said, We beat and shot him. Todd Crawford stated, I killed him, I killed him. During the conversation, Todd Crawford also stated that he took a stick and shoved him under the ice. It is further reported that Todd Crawford kicked Mike Fitzgibbons in the face while he was lying on the floor at the apartment. [Affidavit for search warrant dated May 18, 1990] In the other affidavit which is for the arrest of Richard Pease and Mark Price dated May 25,1990 it states nothing whatsoever about Todd Crawford's participation. [Affidavit for the arrests dated May 25, 1990] All this adds up to the District Attorney intimidating Joe Pease into not testifying because the District Attorney knew that his testimony would discredit his key witness. He also with held this from the jury. Attorney Brian Mares states in an affidavit after the trial, the following.That as part of pretrial discovery, I named XXXXX X. XXXX as a witness on behalf of Richard Pease. The Winnebago County Sheriff's Department executed a search warrant on behalf of District Attorney, Joseph Paulus, on the residence of XXXXX X. XXXX shortly after I notified District Attorney Paulus, of my intent to call XXXXX X. XXXX as a witness. The execution of the search warrant resulted in television coverage on the evening news of XXXXX XXXX's home and his families bus­iness. Mr. XXXX notified me that he would not be testifying on behalf of Richard Pease because of the publicity and notoriety associated with the television coverage regarding the search warrant. That I notified the District Attorney's office that XXXX XXXX would be testifying on behalf of Richard Pease as a witness. This notification would have been sent to the District Attorney's office after the events described in the previous paragraph inĀ­volving XXXXX X. XXXX. That within days of my notifying the District Attorney's office, of XXXX XXXX's testimony, a search warrant was executed against the home of XXXX XXXX and numerous paraphernalia were seized. District Attorney, Joseph Paulus, called a press con­ference resulting in television coverage of the paraphernalia seized at XXXX XXXX's home. That XXXX XXXX contacted me shortly after the television broadcast and notified me that he would not be testifying on behalf of Richard Pease because of his fear of future harassment and conduct by the District Attorney's office similar to that related to the execution of the search warrant. That to the best of your knowledge, none of the items seized from XXXX XXXX's home or XXXXX XXXX's home were in any way related to the trial involving Richard Pease or any other criminal proceedings commenced against either XXXX XXXX or XXXXX XXXX. [Affidavit of Brian Mares] Another act of suborning perjury was the use of the testimony of Joe Berger. Joe Berger's statement is as follows; that after the beating of Mike Fitzgibbons and that they left the apartment. Later that night Richard Pease, Mark Price and Todd Crawford returned, and that Richard Pease said that he didn't have to worry about that guy calling the police because he was under the ice. Joe Berger claimed he saw blood over Pease and Price's clothing. Richard Pease threatened Joe Berger if he said anything he would get his wife and kids. And these false statements given by Joe Berger were also used in the search warrants and the arrest warrant, and at trial. And they were falsely cohobated by Sam Griffin, because of his getting the police reports prior to his trial. Even though there were written statements by Sue Lawler and Joe Pease that only Todd Crawford returned to the apartment, and that the state's key witness Todd Crawford himself had written a statement that only he returned to the apartment, not Pease or Price as Joe Berger said. There were statements by Joe Berger that were proven untrue and the DA had statements contradicting Joe Berger's statements. One being that the victim was stripped down to his underwear in search of a wire. In Joe Pease and Todd Crawford's statements they state that this never happened and in cross-examination Todd Crawford testified that it never happened. But this false statement was needed by the DA so he could use it to bring up the other acts and the whitty evidence which was used at trial.. That if not for the use of these false statements and perjured testimony the outcome of the trial would have been different.