By Michael Perry
Is it right to fear myself, if myself remains to me...the unknown?
Is it right to hate myself, as I realize how vindictive my mind has grown?
Is it right to punish myself, for being forced to live a life of which I had no choice?
Is it right to cry for myself, when I see the extent to which mankind will go to silence a voice?
Is it right to question myself, for doubting God's love for me?
Or is it right to just destroy myself by simply embracing this brutal world which tortures me?
Reasonable Doubt ... and Beyond
5th FEDERAL CIRCUIT COURT:
CLARK V PROCUNIER:
If the evidence “gives equal or nearly equal circumstantial support to a theory of GUILT AND a theory of innocence of the crime charged, then a REASONABLE JURY MUST necessarily entertain a REASONABLE DOUBT….”(755 f2d 394)
This is a ruling that came out of the 5th Circuit Courts. I feel that I definitely apply; although I can not, myself, figure out how a “reasonable jury” if presented with ALL the evidence could entertain ANY theory of GUILT….
In this case, I had two other “co-defendants." One of them eventually got a life sentence. The other, who was never indicted, got “full criminal immunity” and is at home.
KRISTIN WILLIS (REYNOLDS)
Kristin Willis's dad is a police officer in the county that this crime occurred in, a veteran cop in a small county.
They found a hair sample, on a bloody sock on the scene. The match to this sock was found inside of Kristin’s truck. Yet, when the crime lab tested it, they reported that it was “ruined during testing” and want us to believe that they got no result because of this.
One of the scariest pieces of evidence is a T-shirt of Kristin's that they found with “blood back-splatter” on it. Back-splatter, as described by CSI Damon Hall, is the blood that shoots back toward the wielder of the weapon. The piece of information was hidden from my attorneys, so therefore did not come out in my trial. My co-defendants, Jason Burkett’s attorneys stumbled upon this piece of evidence halfway through his trial; otherwise it would still be “hidden." When asked, they told his attorneys that the DNA test on the blood found on the T-shirt, they could not get a good enough sample to run a test on. But when defense attorneys for Jason asked for a piece of shirt, so that his own experts could run a test on it, he was denied????
The victim's (Mrs. Sandra Stotler) blood was found all over Kristin’s truck. Inside and outside.
Shotgun shells, consistent with the one found at the scene, and that was used to kill Mrs. Stotler, were also found inside Kristin’s truck, behind the seat.
At trial, Kristin stated, that she was afraid of Jason. So afraid that she’d do anything for him? Even murder??
Her truck was seen at the scene of the crime, at the same day and time that the state's experts say that the crime occurred, and at the same day and time that the neighbors say they heard gun shots. (At a time record shows I am in jail).
This is a man with a criminal record as long as I am tall. A man, that while he was in juvenile Detention, he tried to stab someone with a spoon. A man that had so many people terrified of him, people were getting restraining warrants on him. A man, that beat his own wife while pregnant with his child. A man who beat me unconscious with a flashlight, which resulted in a concussion to the back of my head….
The murder weapon was a 12 gauge shotgun, which was also Jason’ nickname, Gauge. It was recovered with Jason’s DNA all over it.
They find shoe impressions at the scene that were analyzed by the state’s expert, William J. Bodziak, ex FBI. This man stated that:
“Based on general overall size and dimensions, Jason Burkett could not be eliminated. His foot is the approximate size, and his foot seems to fit the perimeter of the print quite well.”
He was charged and found guilty for murdering Mrs. Stotler’s son, as well as one of his friends. He was also charged with attempted capital murder of the Police Officer he ran over.
Numerous different witnesses testify in affidavits that the murder weapon was Jason’s and that he referred to it as his “Baby”…
He has no alibi for the 26th and 27th.
He confessed to numerous people in the county jail that he did it, and that he was trying to figure out why I would confess to something, I did not do.
He wrote a letter to me in county jail, asking why I was taking the blame for Kristin, he threatened me and my family if I testified on him.
Jason and Kristin were engaged, and both have a lot of evidence pointing their way. Neither of them have alibis for the 26th or 27th…. Besides each other???....
So why, or better yet, “HOW” did I get convicted of this crime? I have several opinions and theories, if you will only read one.
INEFFECTIVE ASSISTANCE OF COUNSEL:
“A representation in which the lawyer can not devote 'Full Effort' to the defendant."
The supreme court has ruled, that ineffective Assistance of Counsel denies the defendant his sixth amendment right.
My trial attorney was and is known around Houston by his clients to be a greedy man, who is only concerned with the money involved, and not the life that money represents. He went after my family’s money, accepting my case, making promises before he even knew what type of case it was. He even continued to raise his fee on several occasions. On his second visit with me at the county jail, he informed me that he would not be concentrating on my Innocence, but on “saving my life”….
Sadly my trial attorney’s mother and father both passed away while he was preparing for my trial. As you read above, if not able to give me “full effort” it is considered against my sixth amendment rights. He had to deal with his father almost passing away with a stroke, and then getting out of the hospital, only to then have his mother pass away…. And days later, his father too, did pass away….
It is an attorney’s duty to inform the courts as well as his client if he feels in any way he will be unable to give me his full effort. This is especially true in a capital case, where a child’s life is on the line. I am very sorry for the loss of Don’s parents, and I pray for him and his family, but, in reality, NO ONE could concentrate on a murder trial, while at the same time preparing to bury both your mother and your father…
During my trial, not once did my attorney imply that I was innocent.
The only defense my attorney put on at trial was my state of mind at the time I made my statement. Where this is a good defense strategy in discrediting a statement, and it helped because I was, at time of statement under the influence of several drugs, it still was nowhere near the whole defense that should have or could have been used. He at the time did not have the knowledge of the T.V. tapings or records of Sgt. Blair. This was due to the lack of investigation on his part. This would have been severely damaging to the Prosecutors stance on Sgt. Blair never “persuading” me, and my statement being “voluntary."
My trial attorney made a sad attempt at introducing statements such as Aaron Geisner’s, into evidence. This would have showed the jury the history of assaultive behavior that this man had and would have helped in proving that this man used “persuasion” in getting a statement to their liking. He was denied by the judge, but then made no further attempts at showing the abuse I went through in the ambulance.
He showed up to court several times late, unshaven, and he even forgot files, subpoenas, etc. and his briefcase on several occasions. In fact, he relied on the district Attorney’s Office to help get his witness to show, because he “forgot” to file his subpoenas. This is an error, for the state does not have to allow us to call witnesses off of their subpoenas. Which my attorney learned, for the D.A. mocked him, and told him to file his own..
The reason why I am stressing this Ineffective Assistance of Counsel to you is because it, if proven, can grant me a new trial, with effective Counsel. And it is the belief of many, that if granted this opportunity, I would be found Not Guilty, and with this, THE JUSTICE can be done.
So my point in bringing up Ineffective Assistance of Counsel is this. My trial Attorney failed to put effort into investigating my Innocence claim in the fact that numerous pieces of evidence relating to my innocence went unnoticed. Such as:
Medical examiners testimony stating crime occurred at a time I was in jail, therefore providing an alibi for me.
Death certificate stating crime happened at time I was in jail (never introduced).
The shirt of Kristin that was found with back-splatter/blood splatter on it. Blood splatter, that was to have matched that which would have been found on the killers’ shirt… (Never introduced).
A witness who stated they saw a truck at the scene on the 26th at 7:00 – 7:30 pm. A truck they had never seen before, and then heard gunshots. The same time I was in jail. The truck was said to have been Kristin’s or a close match. Record supports this (never introduced).
Another big reason that the state was able to convince the jury, with no evidence is this:
They used a tactic that many Prosecutors across the country use. They convicted my past, rather than the crime I am charged with, like LAW dictates they must do. This is against the “Rules of Evidence” (Tex. R. EV.ID.608 (b) ).
Like any witness, I was “fair game” for impeachment once I got on stand. But the state… needless to follow the rules of evidence which govern impeachment. In my case the state departed from the rules on a massive scale. So great as to raise a legitimate question of due process of law under U.S. Constitution Amendment XIV.
In my case, when I got on the stand, I spent hours answering questions about things such as, “failing to attend school” (PRXVIII-123) etc…. a total of 36 extraneous acts I committed as a child. I was on the stand, on trial, for a MURDER of an innocent lady, and the District Attorney’s office is harassing and attacking me for hours, as record shows about “profanity” used as a child? Under TEX. R. EVID. 608 (b) , a witness is not to be impeached with specific acts of misconduct which “did not” result in a conviction…the rule specifically states:
“specific instances of the conduct of a witness, for the purpose of attacking, or supporting the witness’ credibility, other than Conviction of crime as provided in rule 609, my not be inquired into a cross- examination of a witness nor proven by extrinsic evidence…”
The purpose of this rule is to keep a trial focused on relevant issues and not let the trial degenerate into a contest of “character assassinations…” The District Attorney was so caught up in convincing the jury I was a “horrible” child that they seemed to almost forget what I was on trial for. The D.A.’s office threw in a lot of prejudicial facts about “profanity” used as a child, “smoking under age,” etc. They knew exactly what they were doing. They didn’t want the Jury concentrating on the facts, because then the truth will reveal itself. I am NOT on Death Row for any of those 36 acts, as a matter of fact, I was NEVER convicted of ANY other crimes my whole life… I am here for murder. A murder I did NOT commit… KEEP THE FACTS IN MIND!!!
My attorneys and I believe that the abuse of letting these 36 acts into record rose to the level of a due process violation. Such as the “Harm Rule” for constitutional error should apply…
TEX. R. APP. PROC. 44.2 (a) provides:
“If the appellant record in a criminal case reveals constitutional errors that is subject to harmless error review, the court of appeals MUST REVERSE a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment….”
Particularly in death-penalty cases, due process calls for a fundamentally fair adversarial proceeding, which may, at a defendant’s opinion, include the “right to put on a defense." While violations of evidence rules do not often rise to the level of a due-process violation, this cause involves a massive breach of evidence rules which facilitated improper impeachment. My right to put on a defense under the accepted “rules of the game” became a mockery, as I spent nearly as much time addressing extraneous bad acts from my past as I did answering the allegations in the indictment.
Now, it was understood that as a criminal defendant, the rules also serve the purpose of limiting the accusations which a defendant must answer to those presented in the predicament, rather then letting me be tried for being a bad person in general.
There is, however an exception to this rule, where a witness, including a defendent, asserts the absence of any bad acts, for then proof of a particular instance of misconduct would serve to show that the witness was lying in court. As stated in Medina v. State, 828 S.W.2d 268, 270 (Tx. App. – San Antonio 1992), “only if a witness makes a blanket statement, such as never having been in trouble, may specific acts of misconduct be admissible."
Even if I did open myself up to some refutation, however, the State went entirely overboard, delving into prior bad acts which were completely unrelated to any good character claim I may have made a direct examination. As previously set forth, the cross examination brought out thirty-six instances of extraneous bad acts. That would be pushing the limit even as punishment evidence, but this occurred during the guilt stage of trial. Much of it was calculated to be sensational and highly prejudicial, such as a question whether I said I wanted to rip off my father’s head and eat it???? What did this have to do with the guilt of the crime charged???
TEX. R. APP. PROC. 44.2 (a) provides:
"If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment."
I felt it necessary to repeat this, for, with so many extraneous bad acts brought out, there was at least SOME risk that I was convicted because the charged crime was consistent with my character. Even if that particular mischief did not occur, however, it still was improper for me to be impeached in a case where a defender takes the stand and denies committing the crime must have made some contribution to the guilty verdict, therefore calling for a reversal under Tex. R. App. Proc. 44.2 (a).
It breaks down even further. “Harm” can even be found under TEX. R. App. Proc. 44.2 (b).
That rule for non-constitutional errors provides:
“Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded”. Rule 44.2 (b) was explained in HERNANDEZ v. STATE, 976 S.W.2d 753, 756 (Tex. App. – Houston (1st Dist.) 1998, pet. ref’d). Quoting from KOTEAKOS v. UNITED STATES, 328 U.S. 750, 60 S.Ct. 1239, 90 L.ED. 1557 (1946), the standard under Rule 44.2(b) boils down to the question whether the result was “substantially swayed” by the error. If the reviewing court “can not say, with fair assurance”, that such effect was absent, the conviction should be REVERSED. Id.
It is likely that at some point in the testimony of the thirty-six extraneous bad acts, the jury’s opinion was “substantially swayed." And again, therefore dictating I be amended a reversal, and granted a new trial.
Stepping out of a “legal mode” for a minute, I’d like to speak on this issue a little bit. A child is on trial, for a murder. His own life is at stake. And, because the District Attorney can provide NO evidence against him, they attempt to make the jury believe that I am such a bad person, that even if I may be innocent, I’m a “bad person” anyway, so go ahead and find him guilty anyway? How does this work? The law states that they are not allowed to do this. It states that if in fact it is found in ANY way, this helped determine my guilt or innocence, that the court MUST reverse the judgment, and grant me a new trial. Let’s pray they follow the law….
Lets go back to my statement for a minute….
TEX. CODE CRIM. PROC. Art. 38.23(a):
"No evidence obtained by an officer or other person in violation of ANY provisions of the Constitution or laws of the State of Texas, or of the Constitution of laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case."
"In any case where the legal evidence raises or issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of the Article, then and in such event, the jury shall disregard any such evidence so obtained."
This clearly states that any evidence, such as a statement, obtained while at the same time breaking Constitution or laws, is to be disregarded. However, the statements in my case where used. Due to my ineffective Assistance of Counsel, numerous instances that could have helped to support my claim, were never introduced. These have been listed earlier in this report. But it helps to show why the D.A.’s office, as well as the police, will go to such lengths to hide evidence and obstruct justice. For, if they do not, then none of the evidence they find can be used. So no wonder they tend to lie so much….
In this situation they brought me to trial first. In my trial the District Attorney’s Office stated that I was the shooter, that I pulled the trigger that ended Mrs. Stotler’s life, that horrible October night. Yet months later, after they had already convicted me and sentenced me to death, my co-defendant Jason Burkett, went to trial for the same crime, as well as some other murders. In the opening statement in his trial and on a couple of other occasions throughout the trial, the prosecutor stated, that in the murder of Mrs. Stotler, that I was just a “bystander." So the same man, who is employed by the State of Texas, can stand up in front of a jury and jury in my trial, and tell them that I pulled the trigger. Then get up in front of this same judge in my co-defendant’s trial, and tell a different story? What happened to the catch to tell the truth? It is not possible for both, me and Jason, to have pulled the trigger, so he was obviously lying in either my trial or Jason’s. And if he is willing to lie about this, what else did he lie about?? The Death Penalty is the “Ultimate Punishment," it is absolute. There is no “Cops," there is no going back with the life of a child on the line.
Are we willing to uphold a conviction, where the Prosecutor was willing to be dishonest in order to secure a “Win”??? Where is the justice in that? Or does justice stand for “just-us…”?
Now, don’t get me wrong. In no way am I an expert on the law, or how it is to be used. I am no lawyer, I am no professor. I am merely a young man, who has been wrongfully convicted of a horrible crime. A young man in a situation that dictates I write summaries such as this one. A situation where my life depends on me learning the law and reaching out to those who might “hear my cry” and join my fight for JUSTICE. So I ask that if there are any mistakes in spelling or in punctuation, or if there are any misstatements of law, that I be forgiven for they were not intentional. I have tried to stay impartial in this, so that I may be able to get a full understanding of “How” and “Why” I am here. Sometimes this is hard as the frustrations of having my whole life taken away from me, due to overzealous Prosecution, but I try my best.
So as you read through this summary, please keep an open mind. Try to put yourself in my shoes. To understand how one could possibly feel, sitting 23 hours a day in a 7 x 10 cage. With nothing to curb the loneliness or the sadness at knowing that you are innocent. That if you can not reach out and prove this innocence, you will be murdered….
So before we bring this to a conclusion, let me recap the FACTS one more time, to make sure that I have covered everything:
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Supreme Court Expands Ineffective Counsel Doctrine
Texas Rules of Evidence
Texas Code of Criminal Procedure
Did you know...
Texas leads the nation in the number of executions since the death penalty was reinstated in 1976.