Francis Harris

 

 

 


There are two elements of this crime that need to be reviewed in order to fully understand it. The first is a bar fight that took place with the defendant, Francis Bauer Harris and the victim, Daryl Martin. Second the murder of Martin that took place about one year later. The defendant and a woman, Sherry Henry, were entering a bar that he worked at one night. It was his night off and it was near closing time he was stopping in to see how things went that night. Once inside sherry was assaulted by another woman already in the bar named Maxine Snook. He then separated the women and went out front of the bar with Maxine to talk to her. During that verbal exchange a drunkard who was outside of the bar, Martin, started to get aggressive with the defendant because he thought that Maxine may have been in danger. The girl and the defendant both assured him that was not the case and told him to go away. He persisted and when the defendant thought things were going to get physical he tried to move away from the area going around to the side of the bar. Maxine at that time went back in the bar and continued her assault on the woman who she had hit earlier. Outside of the bar the drunkard, had made a move to assault the defendant. Defendant struck the drunkard, causing him to fall and hit his head on the pavement. (The punch was to the face). The drunkard started to get back up and try again, the defendant kicked him one time in the upper torso area, right up under the arm. And rolled the drunkard onto his back. At that point the drunkard did not attempt to come after the defendant again so the defendant turned and left the scene.

He defendant left with a friend he had arrived with named Jimmy Smith. Also present for the fight was a bouncer named Mark Dodge. Working inside the bar was a couple named Steve and Elaine Shengerger. The defendant had no way of knowing this but after he had walked away from Martin, he was told that the bouncer Mark Dodge kicked the helpless Martin in his head until he passed out.  Also in the bar Maxine was at that time being restrained by Elaine to keep her from attacking sherry again. The defendant did not know this either but after he left the scene a security guard who was inside his car sitting behind a row of parked cars in a parking lot across the street saw a disturbance and came over to see what had happened. His name was Hector Modesto. The drunkard would go to the hospital and then be released the next day. HE COULD NOT REMEMBER WHAT HAPPENED TO HIM. He had a blood alcohol level of .236!!! HE COULD NOT IDENTIFY ANYONE WHO HE WAS IN A FIGHT WITH NOR COULD HE EVEN REMEMBER BEING IN A FIGHT!! He would NEVER change this story, NOT EVER. At no time was he ever able to ID the defendant as the guy he was in a fight with or EVER even remember being in a fight! The police investigated and at the scene they took statements from two people, Mark Dodge and Hector Modesto. Maxine was there but did not give a statement. Dodge said..."this guy got in a fight with some unidentified' male” and gave a brief but vague description to the police. (At that time he and the defendant were friends) Hector at that time gave the same statement to the police!! (A fact he now denies, and a statement he would never again repeat!!) No other statements were taken. Months would pass by and Maxine would be at the bar again, this time with a different man. The man started a fight with the defendant and was removed by the bouncers at the bar. (One was Dodge.) During the removal the man got into a fight with the bouncers and Maxine herself would join in. As a result the police were called. Maxine and the man she was with were put in handcuffs and taken away. It would be at that moment that Maxine would decide to tell the police that it was the defendant who was in the fight with Martin months earlier. She was released and never charged with anything that night. She was told to come back the next day, when she was sober, to give the police a statement about the fight that had taken place earlier. She did, but the statement she gave was a far cry from what had actually happened. She claimed she and the defendants were having "words" outside the bar, leaving out the part where she assaulted the woman he was with first. And then martin came up to her and defendant and said "leave the lady alone" she then told the police that the defendant beat Martin mercilessly

KICKING HIM WITH SUCH A FORCE THAT HIS BODY ROSE OFF THE GROUND, (Mr. Martin weighted about 230 lbs at the time), then kicking him repeatedly in the face and head while he lay unconscious. She claims she was outside the bar the whole time and witnessed this herself. Up to this point no one had given any statements to the police even close to what she was saying. Based on this, the police arrested defendant and charged him with aggravated assault. The defendant had never had to go thru this process before so he went to a lawyer and hired him to defend him in court. He had told his lawyer from the very first meeting "I will plead guilty just do what you can for me". The lawyer all along assured him, "this is nothing, it is your first offense and no one was seriously hurt you were put in jail for this and more than likely you will get "time served” and a fine.". Based on that advice the defendant went about his life not worrying about it. The police tracked down Hector Modesto and after a $5000.00 reward for information was posted in the local newspaper, hector changed his story; it was now not the same as Mark Dodge, but instead identical to Maxine’s. The DA then told defendant that he was facing about 5 years in state prison. At this time his lawyer, Steve Briet, still assured him, "it is just a scare tactic; you are not in any danger! At the most you might get a few months more in the county, don't worry they will wait until the last minute and then come to us with their real offer, you'll see"!! Once again, defendant went about his life. During this time unknown to the defendant after he and dodge had a falling out in their relationship, dodge ad been arrested by the police and charged with helping the defendant get away with the crime. He then struck a deal with the DA. He would testify against his former friend in exchange for a plea bargain. Oddly enough the police never bothered to ask dodge what he would actually say. This would come back to bite them at a later time! As defendants guilty plea hearing grew closer his now new girlfriend Kim Kistler, was pregnant with his child. She was expressing worry to defendant that she did not want to be raising their child alone. She was worried about what would happen to him at the guilty plea. Defendant assured her "Mr. Briet told me not to worry about it, it is just a stupid bar fight, no big deal ", yet she was still on edge about it. About one week before the guilty plea hearing the victim Mr. Martin was found dead. When it came time for the guilty plea the police were waiting for the defendant in the court house. He was told if he did not agree to give the police a statement to the DA. He would pull the deal off the table. (A 9 month deal had been offered at the last minute just like Steve Briet had said they would do). With Mr. Briet present he reluctantly gave the police a statement. (A fact both Briet and police now deny, claiming it was defendants decision to give the statement all along and no threat was made regarding the deal). Defendant went in the court plead guilty to the AGGRAVATED ASSAULT and went right to jail. During that time his girlfriend Kistler was being questioned by police. She at first did not blame the defendant for the murder but then the police did two things that changed her mind. They first lied to her and said her boyfriend was having affairs with several women, (never once has a woman ever came forward and said that) and that HE WAS BLAMING HER FOR THE MURDER OF MARTIN!! (Defendant has not said a word about that until years after being abandon by Kistler), it was then Kistler started to tell the police that defendant had arranged to kill Martin and his reason, to keep him from testifying against him???? (Keep in mind the victim had already given testimony and he could not remember the fight or ID the defendant!!!) Defendant was charged with murder and put on death row. Kistler got a deal in exchange for her testimony against him.


Kistler would say the following things at the murder trial: She at the defendant’s instruction took part in the stalking and killing of the victim. She claims that at his request she called the victim to arrange a meeting. (All phone calls entered into evidence were made from her house, not one was made from defendants) She said at his request, she would drive him to find the victims house. She was the only person ever seen near or at the victim’s house. No one ever said they saw defendant there. She claimed that she and defendant drove to the crime scene the night of the murder in his brothers "jacked up pickup truck." (Worth noting since it sits so high off the ground and has "flare kits' and chrome it stands out and would be noticed!!) She claims they stopped at a mini market in the area to buy a phone card. No witness ever id's the truck and a video surveillance tape from the mini market DID NOT SHOW DEFENDANT! She claims both she and defendant wait in a parking lot for victim then drive across the street to a well lit open spaced parking lot and get Chinese food. (Not one single witness could place defendant at the crime scene, several ID Kistler as being seen there). She claims she never actually witnesses the murder that she dropped off defendant off at a point and then pick him back up. She claims that he drove to
New Jersey and had her make several calls from her house to set up an elaborate alibi placing defendant in New Jersey at the time of the murder. She then claims that defendant, after taking the time to craft an elaborate plan for an alibi, calls her from a phone in PA. 20 minutes after he sets up his alibi, thereby annihilating it??? She claims that she was not getting any favors from the DA. In defendants trial, but in her own appeals claims that her lawyer told her that he was going to walk her out of the courtroom at her trial. Meaning she was under the impression that she was to be found not guilty so the "time" she was facing was not real! She claimed that defendant wrote a list of addresses for her to investigate of witnesses she was to track down. Yet in her own trial the DA introduced her sister who drove with her to find the witness! (At the defendants trial the police claimed they suddenly had no idea where Kim's sister was!) Kistler told the defendant’s jury that she was never threatened by the police yet after the trial the police had been withholding letters, written by Kim that says she was threatened with the death penalty by the police. After the trial the defense would find letters used in Kim's trial where she describes the color of the victim’s shirt and the type of and location of the fatal wound! This was written BEFORE any newspaper prints it or any discovery was filed!! During the police interview, kistler tells that there was a phone call made by defendant to her the night of the murder where HE asks HER, "is he dead". There is no phone record of this call. There is a record of every other call made both BEFORE AND AFTER this call supposedly took place! She claims it was the 11 o'clock news! It was shown on the phone records at 10:03 p.m. Second, how did she know he was dead??  No news report! And if the defendant did murder him, why is HE asking HER is he dead? Should not it be the other was around???


A shirt was found at the crime scene. Oddly enough the crime scene happens to be one block away from Dodge's house, and in an earlier statement to police Kim told them she had actually seen mark in the area that night!! A statement she would never again repeat. The shirt belonged to KISTLER! Yet because defendant had worn it before some of his hair was on it. (Testimony exist that they both shared clothes commonly, also found on the shirt KISTLER'S HAIR AND SOME UNIDENTIFIED). A knife was found at the scene no one could ID it. A pair of sneaker's allegedly belonging to the defendant was recovered about one mile from the crime scene. Some blood was found on the shirt. Yet the first round of testing came back with inconclusive results. The police then took custody of both the shirt and the blood vials and months later would re request testing and now lo and behold, there was a match on the blood. (Needless to say this is one of the items defendant wants to test. NO TESTING OF FORENSIC EVIDENCE WAS DONE BY COURT APPOINTED ATTORNEY FOR THE DEFENSE!) The DA had described a violent and very bloody attack yet there is virtually no blood on this shirt. Not a drop on any of the sleeves which would have been right against an open neck wound, according to the DA's own expert. Hairs found on both the shirt and in the defendant’s brother’s truck are said to be similar to the victim’s hair. NO DNA testing was done and defendant wants those hairs tested!! THEY ARE NOT THE VICTIMS HAIRS! Defendant is willing to bet his life on this!!


Appeal update:

Since the guilty plea two attorneys were court appointed to represent the defendant in his Capital trial as well as an appeal to the bar fight. They were William Boyd, and Thelia Jean Eaby. They were the first set of lawyers to explain for the first time to defendant, the rules governing the charges of a simple assault charge and an aggravated assault charge. Something the lawyer Steve Briet should have done but did not. Apparently an Aggravated assault charge is an Assault that for some reason a murder did not occur. In

Other words a vicious “ass whooping" in which the victim is almost killed. A simple assault covers anything from spitting on someone up to your average fist fight. (Fn1). After this was explained to the defendant he was informed that he never should have been charges with an aggravated assault. In fact the only thing he was guilty of was a simple assault. Therefore the lawyer, Briet was wrong in advising him to plead guilty to anything greater then what he was actually guilty of. To compound matters, the defendants attorneys came into possession of an interoffice memo from the district attorney Mark Walmer who was prosecuting that case, to the district attorney Craig Steadman, who was prosecuting the murder case that stated, they were aware of that fact as well. (Fn2) It said..." we agreed we could only prove BODILY INJURY"....Since the aggravated assault statute calls for a ˜serious bodily injury", and the simple assault statue calls for " bodily injury" it would seem that the DA's own memo shows that he knew the week before the murder, (Fn3) that is was a simple assault case. The question the defendant had was why did they charge him with aggravated assault? The answer lies in a common practice known thru all law enforcement agencies across this country, and was backed up by Briet's earlier statement to defendant, (... "It is a scare tactic; they will offer the REAL deal at the last minute..."). That turned out to be true in some part! When you are charged with a crime it is common to "overcharge" the defendant, because this gives them the impression they are facing a lot of time and makes them more willing to accept a plea bargain, saving the taxpayer time and money in the process. Most lawyers will tell their client the same thing Briet told his, do not worry it is a scare tactic. Now of course that begs the question why then at the last minute leave it a felony aggravated assault, when in the memo they clearly indicated they were going to come down to a "bodily injury" charge, which could have only been a simple assault? You have to jump ahead to the murder trial to find the answer to that. The district attorney Steadman, was doing the murder case, in order for it to have been a “death penalty" case, he needed an "aggravator". In this case he needs the victim to be a victim of a "felony", (Fn4). A simple assault is not a felony, and he wouldn't have been able to try this as a death penalty case. Up until that point, he had tried two other death penalty cases, and had failed to get the "chamber" for those two defendants. He was not going to fail this time! He went to Walmer and asked him to keep it as an aggravated assault! Walmer did. Briet never did anything to warn his client about it. And once the guilty plea was accepted viola', Steadman had his first real shot at the winning of a death penalty trial! (Since that trial Steadman has tried at least one other death penalty case that he won, but then the death penalty was thrown out as illegal. Comm v. Leroy Stallworth).


Once the lawyers for the defense explained this to him they filed to have the guilty plea of the bar fight withdrawn as illegal. A hearing followed that request and these are the relevant facts that were brought out at that hearing. Walmer testified to several things, first of all he now insists that he could have prosecuted this case as an aggravated assault. (Fn5) his reason? He states there is a provision in the laws that allow him to prosecute any attempt to cause serious bodily injury! (Fn6). Now interestingly enough, the DA agrees with the defense that there was NO SERIOUS BODILY INJURY IN THIS CASE! (Fn7). They insist that because the defendant jumped up and down on the defenseless Martins head that is enough to prove an attempt to cause the serious bodily injury! (Fn8). The defendant agrees. The issue he has is HE DID NOT DO THAT! (Fn9). There are cases that support a single punch to the face, followed by a kick, only constitute simple assault. (Fn10). This is all the defendant says he did! HE SHOULD ONLY BE CHARGED WITH A SIMPLE ASSAULT! Now what evidence does he offer to prove this? One is the memo from the DA (Fn11). In it they agree it was only bodily injury. The DA, says he still thought he could go forward under the "attempts to cause" issue? Then why does it not say that in the memo? Why did he not say, “we believe we can only prove bodily injury, BUT WE CAN GO WITH THE ATTEMPTS TO CAUSE"? Also the defendant offers the actual testimony of the witnesses, and the police reports, as well as the hospital records of Martin. Since this is an “attempts to cause " issue, we are not looking for proof of an actual "serious " injury, but just proof that such an attempt was made. There is no damage to the victims head that back up the states claims of a 230 lb man jumping up and down on top of his head. (Fn12). There was not a single scratch on the torso area, the areas the state

 

Claims that he kicked with such a force that his 230 lb frame lifted OFF THE GROUND!! (Fn 13). In fact, Walmer himself said he feared the testimony of Maxine since she had bias against the defendant. (Fn14). He also said he feared the testimony of Modesto because he could not see clearly from where he was. (Fn 15). So, if the two main witnesses for the state were no good, and the medical records did not support it, why did the DA think he could still prosecute this case? He said simply, "I felt Dodge was my best witness". Well the defense put that to the test. (Fn16). Here is what Dodge offered under oath. “Martin grabbed defendant from behind, so defendant turned and punched him in the face". (Fn17).  When asked if the defendant was the one who did the NECESSARY jumping up and down on his head and/or repeated kicking of a helpless victim? Dodge said "NO". The states best witness did not back up what the state needed to support the "attempts" to cause part of the charge! That is not all the defendant offers as proof, remember the Shenberger couple inside the bar? They had given an interview to police and the DA Steadman was aware of this at the time he was arguing the appeal, (Fn 18), that said, MAXINE WAS INSIDE THE BAR BY THE TIME THE FIGHT HAD STARTED between Martin and defendant! HOW COULD SHE WITNESS THIS FIGHT SHE TESTIFIED TO?? Briet denied ever being told by his client the whereabouts of the Shenberger’s or what they would say when called to testify, and never called them to investigate. (Fn19). Yet his own file betrayed him! During those hearings the lawyer that passed that file to Briet, Alan Goldberg, said he gave the ENTIRE file to Briet, and when asked to open that file in court that day, right on top was a note with Steve Shenberger’s name and phone number. (Fn20). Briet denied he ever had that information. (Fn 21). Briet also denied the DA ever told him to tell his client that if he refused to give a statement to the police about the murder BEFORE the guilty plea hearing they were going to withdraw the deal. (Fn22). A deal they withdrew anyway and added on time to. (Fn 23). Despite the fact Briet told an obvious lie to the judge about knowledge of the Shenberger’s, Judge Goergelis, says he found him to be credible!! (Fn24). And went on to say "the note only had Steve Shenberger’s name on it, so Briet was not informed about Elaine Schenberger".(Fn25), apparently where Georgelis is concerned happy couples do not share the same address! (Steve and Elaine are still happily married and living under the same roof together as they have been since the day the defendant gave his lawyer their phone number to call!) What else did the defendant offer, remember Modesto? Well, the original statement taken at the scene by police from him was identical to Dodge's. (Fn26). now Dodge changed his statement, but never gave the state what they needed fro the “jumping up and down on his head “part. Modesto changed his statement as well. (Fn27). But what the DA left out is his change did not come until AFTER he saw a notice about a reward for $5000. (Fn28). The DA also neglected to point out that Modesto was not even available as a witness since he was in Puerto Rico at the time the trial would have been and had notified the DA about it!! (Fn29). In fact the DA went as far as to claim that dodge's testimony was not helpful to the defendant because he was "not available" for trial? DODGE was under a subpoena BY THE STATE AND PRESENT IN THE COURTROOM THE DAY OF THE PLEA!! How much more available can he be?? (Fn 30).


What else can the defendant offer? Well he tried to offer the witness Jimmy smith, but the DA did something very revealing here, he threatened to charge Smith with a crime when he took the stand. (Fn31). Now keep in mind the police has already let Maxine off the hook on an assault and/or resisting arrest charge from her night at the bar, (Fn32) the DA never charged her with a crime when she admitted on the stand to assaulting Sherry Henry, (Fn33) and they had given Dodge a deal in exchange for his testimony, (Fn34) plus no one ever charged Modesto with lying to police since his statement the night of the fight was the same as Dodge's (Fn35), yet for some reason when Smith shows up in court, the DA seems fresh out of "get out of jail free " card's! Why?? Look at the defendant’s testimony, Smith was a clear witness to the whole event! Look at what the investigator tells the court Smith is planning to say. (Fn36). He is about to get up on the stand and echo both what Dodge has already said, as well as the defendant, there was no kicking in the head by the defendant, the crucial element to the "attempts to cause" issue. Now take one more thing into consideration, at this time, Smith has finally come forward and given a sworn statement (Fn37) some 8 years after his first attempt, and told his story, only because the statute of limitations has passed and the DA can no longer charge him. (Fn 38) despite all this the courts have still not tossed out the aggravated assault charge on this defendant, why?? Because if they did they would have destroyed, the SOLE aggravator in the death penalty case, as well as the states SOLE motive for the murder!! In short the defendant will no longer be a legally convicted death row inmate!!

 

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(Fn1); 18 PA.C.S. section 2702(a) (1), first degree felony assault, 18 Pa.C.S. section 2701(a) (b) simple assault misdemeanor

 

(Fn2) see memo dated Dec. 9 1996 to Craig Steadman from Mark Walmer, entered into evidence in the first P.C.R.A. hearing by Thelia Jean Eaby.

 

(Fn3) second paragraph of memo, "...in the week before the murder, perhaps Wednesday, I talked to Joe whether we could prove serious bodily injury with just a broken nose and some dental problems, we ended up agreeing we could only prove bodily injury. Accordingly, I changed the guidelines..."

 

(Fn4) the aggravating circumstances to the murder was, 42 Pa. C.S. S9711 (d) (5), "the victim was a prosecution witness to a murder or another felony committed by the defendant..."

 

(Fn5)P.C.R.A. #1 NT. Pg.70-75.

 

(Fn6) and further explains it is the stomping on the head of the victim Martin by the defendant that would justify his claim. See P.C.R.A. #1 NT. Pg.75.

 

(Fn7) see any reply brief from the Commonwealth after the first P.C.R.A. hearing.

 

(Fn8) P.C.R.A. #1 NT. pg.75, testimony by Mark Walmer.

 

(Fn9) see defendant testimony P.C.R.A. #1 NT. Pg.11-112. See also Dodge testimony same hearing, pg. 43.

 

(Fn10) Comm.V. Coleman 496 A.2d. 1207, (Pa. Super) (1985).

 

(Fn 11) Memo reads as follows:

To: Craig Steadman, ESQ.
From: Mark F. Walmer
Subject: Francis Harris-Notes of negotiations
Date: December 9, 1996

My September trial list indicates that Commonwealth vs. Francis Harris was to go November 12, 1996. The guidelines indicated 42-60 months in the standard range, and I had talked to Steve about a five year sentence without actually offering that to him Briet was working on me to take a simple assault, or at least a county sentence.

In the week before the murder, perhaps Wednesday, I talked to Joe about whether we could prove serious bodily injury with just a broken nose and some dental problems, and ended up agreeing we could only prove bodily injury. Accordingly, I changed the guidelines from an 11 to a 9 which lowered the standard range from 42-60 to 8-20. At that point I knew Breit might consider taking a straight plea even if I didn't offer a negotiated sentence.

During the week of October 28-November 1, I was calling Breit’s office to communicate the change in my position. Breit was busy that week, and I left messages with April. At one point Breit called and I told him of the changes in the guidelines, and in my position. He said he would send out a letter to Francis who was living in New Jersey,. April told me later, that she sent out the letter on Friday( I think I was pestering her to see if Francis was going to plead or not). It was over the intervening weekend that the victim was killed.

My understanding and communications to Breit was that Francis had to be ready to go to trial on Tuesday, November 5, 1996. And the only offer was a straight plea as outlined above, or maybe a five year sentence. The reduction which April said she mailed out Friday, November 1, 1996 would have been communicated to Breit between October 29 and the 31st of 1996.

(Fn12)the documented injuries to Martin in the face and head areas are, a broken nose, a swollen eye, and a cut lip. (See medical records) it does not take a doctor to figure out that if the defendant, a six foot tall 230 lb man was to jump in the air landing on his head 4-5 times and then repeatedly kick the unconscious Martin several times in the head as well, there would at the very least be several injuries from that, foot sized bruises, cuts, and broken bones, something!! There were none. The only injuries Martin had were contained to a "fist sized" area of about 3-5 inches from the bottom of the eye to the top lip! All which could have been done with a punch to the face. As for the kick that was allegedly reported to have raised the 230 lb Martin "off the ground" to the torso areas?? There was not a single scratch, bruise or broken bone or cut to his torso at all!! The prosecution by entering this obvious lie into evidence would like the truth to be stretched to the breaking point.

 

(Fn13) see preliminary hearing, NT pg. 37, by Maxine Snook.

 

(Fn14) see P.C.R.A.#1 NT pg.91.

 

(Fn15) same as Fn14.

 

(Fn16)same as Fn14.

 

(Fn17)see P.C.R.A.#1 NT. Pg. 36,42,43.

 

(Fn18)see P.C.R.A. #1 NT. Pg.19, DA Steadman argues that the "Shenberger"" affidavit's are not relevant to the case. At the very moment he was telling this to the judge he would have in his possession a set of taped interviews from the Shenberger’s taken by police in Florida during the murder investigation and turned over to him long before this hearing. Those tapes would tell that Maxine Snook DID NOT SEE THE FIGHT! It was also shown on those tapes that she was not a credible witness! Steadman never turned those tapes over to the defense and from the way he acted during the hearing it was like he never thought the defense would find out about them. The defense did, years later!! Steadman even in light of the tapes challenging Maxine’s credibility, still offered her as a "good witness", he even called her to testify in the murder trial!!

 

(Fn19)see P.C.R.A. #1 NT. Pg. 133-134.

 

(Fn20) see P.C.R.A. #1 NT pg. 28-29, by Alan Goldberg.

 

(Fn21) same as Fn20. (Fn22) see P.C.R.A.#1 NT. Pg.184.

 

(Fn23)see P.C.R.A.#1 NT. Pg.154.

 

(Fn24) see lower court opinion December 23, 1998 pg. 8, by Judge Georgelis.

 

(Fn25)see same opinion as Fn24 pg. 9.

 

(Fn26)see police offense report, Lancaster Bureau of police submitted by officer Anthony J. Hall, approved by Lt. Miller, dated August 1, 1995, lcwc assign #9533454, (2 page report).

 

(Fn27)see P.C.R.A. #1 NT. Pg. 65, 78. By Modesto.

 

(Fn28) see P.C.R.A. #1 NT. Pg 73, by Modesto, compare to report taken night of fight mentioned in Fn26, also to statement taken by police on December 1995 from Modesto.

 

(Fn29) see P.C.R.A. #1NT. Pg.161, also see letter from Breit to defendant entered into exhibit during defendant’s pro se appeal to the third circuit. ( letter dated after October 10, 1996),

 

(Fn30) see P.C.R.A. #1 NT. Pg. 10,.11, 99-105.

 

(Fn31) see P.C.R.A. #1 NT. Pg. 14, 66-68.

 

(Fn32)see preliminary hearing for aggravated assault, NT. Pg. 45.

 

(Fn33) see preliminary hearing for aggravated assault, NT. Pg. 32.

 

(Fn34) he ended up pleading guilty to a disorderly conduct misdemeanor in exchange for the promise to be a witness for the state against the defendant. He was being questioned by the police for the homicide at this time! See homicide trial NT. Pg. 2331-2333, 2338-2340.

 

(Fn35) see preliminary hearing for aggravated assault. NT. Pg. 50-78. Compare to the statement given by Modesto to the police at the scene on the night of the fight!

 

(Fn36)see P.C.R.A. #1 NT. Pg 12-14 Jefferies statement to the judge.

 

(Fn37) see p.C.R.A. #2 filed August 3, 2005 pg. 12, 13. (Fn 38) see P.C.R.A. #2 Pg. 11, also see Fn7.

Appeals update #2 (murder trial)

A P.C.R.A. has been filed in the lower court. The issues are still being investigated, so there are still witnesses to locate and talk to. There are still a number of documents the defense has to try to get a hold of. So the appeals in the murder trial will constantly be changing until the evidence is all looked at. In the meantime here is what has been filed so far.

Jury issues; the defendant really does not care about the jury issues to much because he is innocent and only cares about that. BUT he is told that this is important to look at all aspects of the case from a legal standpoint so they will be briefly discussed here. The main issue revolves around an age old practice by prosecutors that they remove all minorities from the jury. The reason being? Most people in jail are?? You guessed it, minorities. So they know the system. More importantly they know how corrupt it is. So the last thing a prosecutor wants on his jury is someone who had a friend who was mistreated by the police once. BECAUSE when a defendant makes a claim of police misconduct the DA wants a jury that will say...."oh they would never do that." Instead of a jury who will think, "yeah they did that to my friend once". So no matter where you go the DA always tries to remove all " lower income, minorities" from the jury. The problem with this is the courts say you are not allowed to do this ! All Americans have the right to serve on a jury, and using race as a reason for removal is unconstitutional! Problem is, how do you prove it? This is almost impossible to prove. So lawyers make attempts at it and that is what they are doing here as well. The only thing the defendant thinks even comes close to showing that "race" was a part of the DA's selection process, was the argument he offered in defense of it! Here is what basically happened. A jury pool was called, in it only one Latin person and one black person was called for questioning.! This was from 132 people. Lancaster county has a big black and Latin population, ask anyone who lives in Lancaster!  One Asian was seated as an alternate, (she was never called to decide on the case!). Now the people that were struck are named Mr. Santiago and Ms. Cameron. Both answered the question, "could you apply the law in your decision making and do your duty?", they said yes!, but were removed by the DA. The reason this is important is every time the DA had a juror that was "gung ho" for killing the defendant, he would "fix " that by asking the same question and then later claim that their answer is what makes them acceptable! So the argument is they answered the questions the same way all the other jurors did, so why were they struck? Then you have to prove the obvious, because of the "race". But the part that seemed most telling was the prosecutor’s reason. He first says, "hey the defendant is not black!" what does he care! (Defendant is Polynesian and German) well the defense points out his adoptive family is black and they are being called as witnesses, so the impression the jury will have is that he is black. Then the DA says "well he does not LOOK black". (I wonder what he would have accepted as "black looks"?) Anyway to further prove his point, "well he is Hawaiian, and we gave him an Asian, so that's close enough!: in his argument he says that Hawaiian cannot be included as an African American if it was to be included as any other race it was linked to the Asian race, and then he points out he let one Asian be an alternate, even though she never actually worked on the verdict! The thing that this whole argument shows is that, certainly race was on his mind in his selection since it was a large part of his argument in defense of it! ( he don't even look black! We gave him an Asian that's close to Hawaiian!) The end result was an all white jury! Incidentally Hawaiians are not of Asian decent! They are indigenous people, they migrated from the Marquesas islands! They are defined by U.S. federal law as Native Americans! But the point is none of that should have ever mattered! It did! (Since the time of his appeals the defendant has located his biological father, the adoption records were mistaken, he is Samoan, which is Polynesian as well! They are still not Asian). The numbers that are relevant to this issue are as follows; .07 % of the panel was African American, and .07% was Hispanic. 2.8%of the population in Lancaster county is African American, and 5.7% is Hispanic. (With another 5.8% representing all other minorities) the jury pool did not even come close to accurately representing the actual people in that county.

Letters from defendant to Kim Kistler; several letters written by the defendant to his former girlfriend Kim Kistler were entered into evidence and use against him. The point is simple here. One, at no time does he admit guilt in these letters, he tries to explain to Kim that there are other things that could happen and what he was willing to do. The DA argues this is a confession! Yet he never EVER confesses to anything! The real problem the defendant has is that one of the letters was EDITED by police or Kim’s lawyer. Only half the letter was shown. The defendant wants to other half to be shown because in the other half the defendant talks about KIMS GUILT and his willingness to TAKE THE RAP FOR HER!! If this was a confession it was not about defendant’s guilt! Defense has to ask the court to force them to
produce the rest of the letter or disallow them to use the half they used!

Missing witness Kathy Gehr; Kathy is Kim’s sister. During the trial the DA says that defendant wrote a list of people that he gave to Kim to track down. Kathy tells a different story, she says it was Kim that wrote the list and that she took Kim to look for these people. Then she gave statements that incriminated Kim in the manner that she reacted once she tracked down the victim. However when the time came for the trial and the defense asked the DA where this witness was WHO WAS UNDER SUBPOENA BY THE STATE TO TESTIFY! they claimed they did not know where she was! They said all we know is she moved to North Carolina and we do not know how to get in touch with her! The judge did nothing! The court file has on record the subpoena from the state, it reads as follows; issued on August 8, 1997, and gives her exact address in NC. It tells her to be available between September 2-19, 1997, (but likely between September 8-19, 1997) it further states, "the district attorney will contact you of the day". Yet Det. Savage lied to the court and said he did not know where she was. Why? Because she hurt the credibility of the states star witness, some thing the DA did not want the jury to hear, the truth!

Interestingly enough, when Kim went to trial a few months later, guess who they suddenly found? Kathy Gehr was a witness for the state against Kim in her trial. Kim’s trial vs. defendants trial; a picture emerges after Kim’s trial that shows how much the DA actually knew that Kim was lying. Yet he still offered her to the jury as a truthful witness. Here are some examples; in defendants trial he told the jury "if you believe Kim your analysis as jurors is over". At defendants trial Kim constantly minimized her participation in finding the victim, denied any knowledge there was a murder to be committed, denied she had any motive, said she was in fear of the defendant, said she only waited so long to talk to police because she wanted to be sure defendant was in jail before she talked, NOT because she was told he was having affairs, or telling on her for committing the murder. In Kim’s trial the DA would suddenly argue a completely different case. Saying Kim lied in numerous aspects, minimizing her own guilt was inconsistent with evidence and her own statements. Her testimony was inconsistent with her sisters Statement. Part of Kim’s testimony was "unbelievable", " absolutely implausible", her actions are inconsistent with being frightened, "Kim expands her own lies". They also go on to say how Kim did manage to destroy the evidence that actually implicates her in the murder!(referring to a jacket she says she got rid of ) other things to look at; At defendants trial the DA told the jury that Kim waited until she was told by police that defendant was in jail to tell them what really happened. At her trial the DA told the judge that was a lie! No cop ever told her when defendant was in jail, she did not start to implicate the defendant until the police told her he was having affairs and was blaming her for the murder. In defendants trial the DA told the jury Kim saw the murder on the 11 o'clock news the night of the murder. This was attempt to explain the "is he dead" phone call. In Kim’s trial the DA says that was a lie, Kim did not see it on TV until the following Tuesday! In defendants trial the DA told the jury Kim told defendant that he could still be charged after the murder. To make her seem like the "reasonable one". In Kim’s trial the DA told the judge Kim only knew that after the murder from Steve Breit. In defendants trial the DA introduced witnesses that said they heard "male" voices arguing in the area around time of the crime. This was to show that Kim was not there! In Kim’s trial the DA told the judge the crime was a surprise and there was no arguing! The male voices could have been Martins or his brother. Not the defendants as alleged in his trial. In defendants trial the DA constantly told the jury Kim was telling the truth and could be believed. In Kim’s trial the DA points out how it took DA Steadman 4 separate visits with Kim to correct "inconsistencies!". In defendants trial Kim gave a very detailed account of where he was dropped off and picked up. In Kim’s trial the DA points out that Kim had said to several people that defendant was coming from the wrong direction, away from crime scene. In defendants trial the DA told the jury that after Kim knew he was in jail she was telling the truth! In Kim’s trial the DA points out that as late as march 1997 Kim is still telling people she does not know if defendant did it, but by trial time she is suddenly sure. In defendants trial the DA says Kim was motivated to testify out of a sense of duty to the Martin family. In Kim’s trial the DA tells the judge Kim was motivated out of revenge for being betrayed!

In defendants trail Kim gave a story that never put her close enough to the victim to see the color of the stripes on his shirt. She also would have no idea of the location or type of stab would he suffered until after told by police. In Kim’s trial DA introduced a letter from Kim written BEFORE any discovery was filed and before Kim would have had any knowledge of those two aforementioned details, in which she describes the color of Martins shirt and the location and type of wound! The point is this, had the jury had some or all of this information presented to them, they would have disbelieved Kim and the defendant would be acquitted of the charge. The DA knew this and broke every rule in the book to make sure the jury would never hear these things.

Kim’s deal. The jury was told one thing from Kim, that in exchange for her testimony she was facing a 40-80 year sentence. This was done to give the impression she was doing this because it was right NOT because it was to get away with anything. HOWEVER in letters that would turn up after trial( the DA had in his possession but refused to turn over to defense) and turn up in testimony from Kim herself during her appeals, she was told by her lawyer, "I am gonna walk you out of that courtroom", in other words they are not gonna convict you! Kim was always of the belief she was going to get off! Even after the trial they still came to her and said they had a 2-10 year deal for her. She had already served a year so she would be looking at less than a year in the county left. She refused the deal, showing she still thought she was getting off! THIS was not what the defendant’s jury was led to believe. They were under the impression that this woman at a MINIMUM was going to spend 40 years in jail. That weighs a lot when you put that on the credibility scale!

Kim’s disappearing charges; in the opening segments the prosecutor tells the judge, " oh we are not going to drop the intimidation of witness charges!", referring to a charge they apparently threatened Kim with but NEVER FILED ON THE RECORD! In other words, they use it to keep her in line but never put it on paper so the jury will never have to hear about it! The " is he dead" phone call; Kim had given an early statement to the police where she says that she received a phone call from defendant asking, is he dead? Two things that should be discussed here. One the phone call happens at 10:03 pm, almost 1 hour before the 11 o'clock news comes on. (The time Kim would say she actually heard about it on the news!) There is NO RECORD OF ANY PHONE CALL GETTING THRU TO KIMS AFTER 11 THAT NIGHT! ( the last call on record was at 10:03, the next call was at 12:08 and by Kim’s own testimony she was not home at that time to answer, in fact she would not talk to defendant until the next day, defendant called several times but never got thru.)

So if the phone call happened BEFORE the 11 o'clock news, how would Kim know if he was dead: secondly even if she did get a call after 11, why would HE be asking HER if he was dead? IF he just cut out this guy’s throat why would he ask her?? Should not it be the other way around??

Kim’s affidavit against Maxine Snook and Paul Janowski; during the murder trial the prosecution introduced two witnesses to ID. a shirt found at the crime scene as one the KNEW AS A FACT TO BELONG TO DEFENDANT! Maxine said she could not ID. the shirt but I.D'd a pair of "cameo" pants that the police had in their possession as a pair she had seen before. ( she says in the summer of 1995). Paul gave a positive ID of the shirt and says he too seen it in the summer of 1995. Neither one of these witnesses claimed to have any contact with the defendant past 1995! Kim herself would submit an affidavit after the trial to defendant stating the items they both ID'd  were purchased in the FALL OF 1996! There by making it impossible for them to have seen these items. The defense did nothing about this on direct appeal ! Turkey Hill tapes: during the earlier interviews with police while Kim was "confessing " she told police that she and defendant stopped in a local Turkey Hill mini market BEFORE the murder and he went in to buy phone cards. The police went to the store and seized the surveillance tapes from the store for that time and date. THE DEFENDANT DID NOT APPEAR ON THOSE TAPES! Kim would never again repeat that statement and the police "forgot" to mention it in trial as well as "lost " the tapes and any interviews from the store employee's.

DNA evidence;

 

The defense never requested to test ANY forensic evidence in the trial! A shirt was sent in to be tested for DNA  In a large blood "swipe" on it. (As if a knife was wiped off on the shirt!) The test came back UNABLE TO IDENTIFY ANY DNA! The blood vials and the shirt was sent back to the police dept. that was in charge of prosecuting the case. The cop in charge was Pete Savage. ( his brother was involved in the Lisa Lambert case). The cop in charge of the evidence locker in this police department.... ?? ... Peter Savage! Four months later the shirt shows back up to be tested; a "new stain was to be looked at. ( pinpoint blood droplets had now been :"found"! An earlier examination by the states own expert found none!) Now all of a sudden they had a DNA match to the victim! The defense wants to test these "samples:" There were also hairs found at the scene. Some on the shirt and some in the defendant’s transportation for that weekend. The prosecution claims they belong to the victim. THEY NEVER TESTED THEM FOR DNA! The defense wants to test them to prove they are NOT the victims!

Altered statements;

 

There are several items in the discovery' that have out of sequence page #'s and altered pages #'s as well. In some areas the pages are just missing, and in one instance there is a clear sheet of paper placed over half of a document to block out half of what is on there. WHY?? If they got the right guy, why tamper with evidence? Why hide things if everything they told the public is the truth!?? The defendant wants these missing documents turned over to him.

Good character evidence; During the trial the defendant was constantly portrayed as the bad guy. That was not enough for the DA he went so far as to portray the victim as the good guy so they jury would clearly know who they were there to hate! In doing so he left out in his own police reports several items that painted a picture of the victim that was anything but nice. Now the defendant does not believe he should take time to attack the victim in his trial, BUT does believe that the DA is bound to offer the WHOLE truth to the jury!  In other words, if he is going to tell the jury about the victim he should tell the whole truth. If he for some reason is afraid of the truth then DO NOT introduce "good" character evidence! This way the defendant cannot offer it either! BUT when you do offer it, if the defendant has information to dispute that he has the right to present it to the jury. In other words the defendant would never seek to speak ill of the dead as a defense, But once the DA introduced evidence that the victim was this "saint", the defense has no choice but to introduce the police reports that the DA filed as discovery, not to "bash" the victim, but to show the DA is lying. In regard to that the defendant offers the following; A.) An interview where a friend and co-worker of the victim describes a "date rape" that he was told about from the victim that took place between the victim and a girl he talked about. B.)A co-worker talks about a time when victim was aggressive to her when she turned down his romantic advances. C.)An interview with a best friend of the victim , an admitted drug dealer, who spoke of a violent relationship between victim and his brother. D.) Interview with a friend of victim who spoke of an area that is known to police as a "drug traffic" area where he took victim to "pay a debt".  E.)A report from police that state the victim was known to buy sex from illegal massage parlor prostitutes. F.) Report from a friend of the victim that state he was trying to meet with one of the witnesses for the state before the guilty plea and that he was planning to sue the bar the fight occurred at.

Eyewitnesses; Several people placed Kim Kistler at the scene the night of the murder. There were several descriptions of various types of vehicles that were seen in the area that night. NOT ONE WITNESS ever placed defendant or the truck he was driving in that area, ( except Kim). The only thing found at the scene connecting defendant was one of his hairs on a shirt that KIM herself said that defendant wore that shirt several times! Her hair was also found on the shirt with other unidentified hairs. The police dusted the car for prints and found none!

 

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