IN
THE SUPERIOR COURT OF GWINNETT COUNTY
STATE OF GEORGIA
)
Michael
H. Chapel )
Petitioner/Movant )
)
v. ) Case No. 93-B-01818-6
)
State of Georgia )
Respondent )
______________________________________________________________________________
BRIEF IN SUPPORT OF EXTRAORDINARY MOTION FOR NEW TRIAL
PART ONE
______________________________________________________________________________AUTHORITY
Comes now Michael H. Chapel before this court to plead for action pursuant to O.C.G.A. § 5-5-41(c)[2] regarding the testing of untested critical evidence[3] used in the trial, judgment and conviction against him in August and September of 1995.
In subsequent argument, the Petitioner will meet[4] and show cause as to why this court should at a minimum grant the required hearings allotted under this statute and/or grant the Petitioner’s motion for a new trial.
Crawford v. State[5], 278 GA 95 (2004) clearly sets out the State of Georgia’s view of O.C.G.A. § 5-5-41(c) and its application.
REQUIREMENTS
Subsections (c)(3) and (4) dictate the requirements a petitioner must meet in order to be granted a hearing and Subsection (c)(6)(A) provides the Court with a means to order such a hearing.
O.C.G.A. § 5-5-41 SUBSECTIONS WITH APPLICABLE COMMENT AND DOCUMENTATION
Subsection (c)(1): Petitioner avers that he is convicted of crimes listed as prerequisite under O.C.G.A. § 17-10-6.1[6] .
Subsection (c)(2): Not Applicable.
Subsection (c)(3): Petitioner avers that he has verified this motion, and further avers:
Subsection
(c)(3)(A)[7]:
The evidence that potentially contains deoxyribonucleic acid (DNA), henceforth
referred to as “Raincoat or Rain Jacket[8]”
was obtained by the State in relation to the crime, indictment, prosecution and
subsequent conviction of the Petitioner.
Subsection
(c)(3)(B)[9]:
The raincoat was not subjected to DNA testing because in a meeting described in
testimony by Keith Goff, the GBI’s resident DNA expert, Dr. George Herrin, the
lab director and Assistant District Attorney Scott Smeal determined that the
available technology for recovery of DNA from such minute stains as existed on
the garment at that time, 1993, rendered a successful recovery too problematic
and thus inappropriate:
I was involved in a conference, and I was there, Dr. Herrin was there, and I think Mr. Smeal was there, and we were looking at the stains on the rain jacket. And our conclusion was that we – it might be possible to get a PCR result, but more than likely we would not get a PCR result from it.[10]
Subsection
(c)(3)(C)[11]:
The identity of the perpetrator is significant in this case. The state based
its case on the untested raincoat[12];
falsely leading the jury to believe the raincoat was covered in the victim’s
blood, though no determination of whose blood might or might not be on the
garment had been made except through inference by the Prosecution. In light
other evidence[13] alleged to
have been “bloody” that would turn out to be contrary to the unfounded
allegations allowed to be put forth to the jury, It is imperative this Court
order such testing as required by O.C.G.A. 5-5-41(c).
Subsection
(c)(3)(D)[14]:
DNA Testing of the raincoat would indeed raise a reasonable probability that
the jury[15] would have
been aware of exculpatory value of the DNA evidence on the raincoat. Since the
State made the raincoat the lynchpin of its case, Acquittal would have been the
jury’s only logical decision if the DNA on the raincoat were not the victim’s.
In light of all the evidence in the case, seen and unseen by the jury, this
evidence weighs critical in the State’s case against the Petitioner.
Subsection (c)(3)(E)[16]:
Petitioner’s raincoat is a size 6X, of yellow, waterproof material; button 
up
(snap-tab), with 4-inch reflective blue letters on the back spelling “POLICE”.
It has no hood or pockets attached and only a small silver metal badge attached
to the upper left chest area in front. Petitioner has no knowledge of this item
or any other item seized by the police since the trial ended in September 1995.
Petitioner hopes the state, in view of its past history in this case of “losing
or destroying” vital evidence in this case, has followed directions set forth
in O.C.G.A. § 17-5-56(B). The raincoat was taken as evidence on 23 April 1993
from Petitioner’s locker located at the police Northside Precinct in Buford by
then Sergeant Cline.
Subsection
(c)(3)(F)[17]:
The only testing of the raincoat was done on July 7, 1993 by GBI Crime Lab
Serologist Jennifer Wilson when she tested stains on the garment for the
presence of blood of human origin chemically using tetramethylbenzadine (TMB)
and phenolphthalein. She then circled the positive stains with a blue marking
pen. In view of the location of the positive stains, including under the
collar, under the zipper overlap, under the top of the right arm sleeve and at
the very end of the left “blood of human origin” on that date. She then
immediately placed the raincoat in a freezer at 20 degrees Fahrenheit. As far
as Petitioner knows, no further testing of his raincoat was done. Any other
markings on that raincoat must have been placed there after that date. The
raincoat was removed for display in March 1995 where these photographs were
taken. It was immediately replaced in the freezer.
Subsection (c)(3)(G): Petitioner, acting Pro se from prison and without access to the weight of this Court to order discovery, can only provide names, addresses and numbers from the available trial data[18].
Subsection (c)(3)(H): Again the Petitioner is at the disadvantage in being able to provide all-inclusive lists compliant to this subsection.
Subsection (c)(4)(A): Petitioner avers that this motion is not being filed in any attempt to delay.
Subsection (c)(4)(B): Petitioner further avers that the DNA testing of the raincoat was not raised by the Petitioner or ordered in the courts of this State or the United States.
ARGUMENT
Petitioner would plead to this Court to grant his “Extraordinary Motion for New Trial”, using the guidelines set forth in O.C.G.A. § 5-5-41(c), “DNA Testing”, and U.S.C.A. § 14131, “DNA Identification”.
The State was allowed to manipulate and illegally enter evidence so prejudicial toward the Petitioner[19] that the many Constitutional violations that resulted warrant, indeed demand immediate remedy.
This trial began on 02 August 1995. On the first day of testimony, August 22, 1995, the State attempted to manipulate the jury regarding the raincoat by misrepresenting crime scene photographs[20] to create a fictitious “high velocity blood back-spatter or blowback” theory that would tie Petitioner’s raincoat to the crime. This was accomplished by the State getting the CSI technician, Judy Graham, to falsely testify that blood spots on an inside front seat door of the victim’s automobile to be of the driver’s side door, when actually the photographs were of the passenger side door. This was no “harmless error” on the part of the Prosecution. Great pains were taken in the preparation and presentation to the jury to hide this from the jury, and when a sharp-eyed juror noticed the deception on the tiny photograph displayed from several feet away and involuntarily blurt out “passenger door”, Prosecutor Scott Smeal lied to the jury in order to cover-up and minimize the importance of the deception. This sequence of events were allowed to go unchallenged and uncorrected by the Prosecution or the trial court and laid the foundation for the rest of the illegal fabrication of evidence.
The jurors could not understand the true significance of this deception because of the manner in which the evidence was presented: even after a caution by the Court[21]. Unsure of the effect on the jurors, DA Danny Porter postponed the promised blood spatter testimony of Dr. Brian Frist[22], the next witness, plus one until the end of the Prosecution’s case, and persuaded GBI Technician Kelly Fite[23] to further mark up the raincoat and prepare a report that was dated August 24, 1995, two days later.
The following page documents this criminal act on the part of the State with excerpts from the trial certified transcript and photographs furnished the Defense by the State:
[8] Evidence Misrepresented To The Jury -- The Doors:[24]
|
|
Excerpt from Certified Trial
Transcript [Judy Graham, Trial, Page
3243, Line 22, by Prosecutor Smeal] Q. I'm handing you what's been
previously marked as State's
Exhibit 17. Can you identify that photograph, please? A. Yes, sir.
This is a photograph of the driver's side door from the inside -- the
inside of the driver's side door. The
door was open. Q. And what do those marks appear to be on that door? A. These appear to be blood spatter and maybe also some flesh up
here in the corner. Q. Does that fairly and accurately depict how that door appeared
to you that day? A. Yes. Q. I'm handing you what's been previously been marked as State's Exhibit
18. Can you identify that
photograph, please? A. Yes.
This is another picture of the same door. Q. I'm sorry. Which door is that? A. This is the driver's side door. Q. Okay. And does that
fairly and accurately depict how the driver's side door appeared to you that
day? A. Yes. Prosecutor Smeal, Trial, Page 3248, Line
8]
MR. SMEAL: The next photograph is State's
Exhibit 17. [[Presenting to
the jury] JUROR: Passenger side door? MR. SMEAL: This was identified as the passenger side
door. THE COURT: You're just stating the Exhibit Number,
Mr. Smeal. MR. SMEAL: That was State's Exhibit 17. The next photograph is State's
Exhibit 18 Excerpt
from Trial Transcript Exhibit Index S-17 Photograph, Vehicle, Inside Driver's
Side Door 3247 S-18 Photograph, Vehicle, Driver's Side
Door 3247 |
This deception can in no way be considered “harmless error”, the evidence from the transcript and the photographic exhibit constitute incontrovertible proof of the State’s criminal misconduct during this trial. The basis herein laid by this deception would permeate the entire course of the trial and would bias even honest testimony. In the absence of any blood spatter on the driver’s side door and partially open window, the State’s allegation that the victim was shot twice through the open driver’s window by the “rain-coated” Petitioner would go largely unchallenged. Petitioner feels this deception so important[25] to an understanding the course of the trial and the importance of the raincoat that an analysis from federal habeas proceedings was excerpted and is reproduced here in the body of this motion.
Both Frist and Fite were qualified as blood spatter experts by the Court over objections by the Defense. Neither of these witnesses visited the crime scene and had no idea of what the blood spatter in and around the death vehicle looked like other than from descriptions given by the police and prosecution and from photographs of the scene that have now shown to be significantly altered.
Dr.
Frist was the medical examiner that did the autopsy on the victim, and stated
that he could testify about blood spatter by viewing the victim on the autopsy
table. Dr. Frist’s testimony consisted mostly of a “straight out of the book
primer” on blood spatter and a description of bloodstains in the vehicle known
not to exist from those photographs that were clearly unaltered[26].
One of the first acts of the
GCPD crime scene technicians on arrival at the crime scene was to 
take photographs[27]
of the interior of the victim’s vehicle from positions outside of the vehicle.
A few of originals of these were unaltered, e.g., the photograph of the
passenger seat, or only slightly altered with brightness and contrast and a 
failed attempt to blend
colors to disguise the bloodstains, e.g., the left side of the vehicle from
outside. Most of the photographs were altered using hue saturation[28]
to produce a black and white photograph and then to add the necessary features.
When hue saturation was reversed, the colors reappeared. If no significant
difference, the photograph was unaltered.
Kelly Fite was a GBI Crime Lab “firearms and tool mark examiner” expert with no training or experience in serology[29]. The Court would explicitly state that Fite did not qualify as an expert in serology. Fite’s “scientific method” consisted of “examining the blue circled spots” on the raincoat that had been identified as blood of human origin after testing by Serologist Jennifer Wilson and circling any spots that to him appeared alike on the raincoat in black.
Fite stated that he first examined the raincoat on July 7, 1993, the same day as Ms. Wilson’s analysis and did his spot circling sometime in May 1995, two years later, finally producing a blood spatter report on August 24, 1995, two days after the prosecution-generated false testimony of CSI Tech. Judy Graham was accidentally exposed by a confused juror.
Two questions come to mind immediately: 1) If Fite felt that Ms. Wilson made mistakes in her analysis, why did he not bring it to her attention immediately, i.e, July 7, 1993, and 2) why was Ms. Wilson not fired for gross incompetence in her examination and analysis of the garment and for allowing evidence under her control and responsibility to be removed without her permission from the freezer, handled and corrupted with markings unknown to her in May of 1995? For the same reason Dr. Frist’s blood spatter testimony was postponed after the juror’s exposure, it is more likely that Fite made his analysis sometime between that incident and the production of his report on the 24th, two days later.
Since Kelly Fite was not a serologist and in view of all of the other very vague and unlikely circumstances, the marks made by Fite, whenever he made them, cannot be considered “evidence” but must be considered for what they are: “the malicious dawdling of an incompetent amateur”, having no probative value.
The
relevance of the “raincoat blood spatter” evidence permeated the entire trial
from beginning to verdict. District Attorney Danny Porter and his Deputy Scott
Smeal immediately and lovingly hung the now corrupted raincoat on an easel
before the jury like it was the Mona Lisa in the Louvre. It would remain in
this place of honor throughout the remainder of the trial, and all the while
the Prosecution knew the prejudicial value of that untested evidence.
Again and again the State bolstered this flawed
theory with evidence not before the Court and, worse, that would prove totally
contrary to the State’s fabrications before the jury. Here District Attorney Danny Porter holds a pretend purse up to
Petitioner and demands to know any way other the blood found in Petitioner’s
police unit could have been transferred from the victim’s vehicle than from the
trial’s ubiquitous “Phantom Purse”. The purse was never
introduced into evidence and was only accidentally found buried in the woods
behind the victim’s trailer home, six months after the trial ended, with no
evidence of blood on it or its contents despite exhaustive testing. As an
aside, the victim’s driver’s license was never found.
Q. So do you have any plausible reasonable explanation to give the jury of why Emogene Thompson’s blood was in your patrol car other than the fact[30] it transferred from the purse that you took out of her car after you shot her?[31]
And:
When asked what the officer at the murder scene looked like, witness Omodt replied: “A Caucasian male wearing a rainsuit and rain hat.”[32]
And:
“He [Omodt] saw a large white police officer[33] wearing a rain jacket, rain hat, carrying a flashlight[34], leaning into a car[35].”[36]
And [To Firefighter]:
Q. And do you remember him [Chapel] putting anything on as he left the fire station?
A. Yes, he [Chapel] put on a raincoat.
Q. And what did he do after he put the raincoat on?
A. He Walked out the door.[37]
Again, in his closing statement, District Attorney Danny Porter emphasized the importance of the raincoat to the State’s case quite clearly:
And
the rain jacket was discovered, the rain jacket which you'll look at. I urge you to take a look at it, because Mr.
Moore is correct. Not all the blood[38]
was tested. But look at the pattern.
Look at the pattern on the rain jacket of the high velocity blood
spatter. Look at the interspersing of
human blood in that pattern. And what
other reasonable explanation has been presented, and what other reasonable
explanation can be determined from the interspersing of human blood with spots
that are consistent with human blood than that it's all human blood, because
there has been no other reasonable explanation presented as to animals or
anything else[39]. And I urge you to look at that.
CONCLUSION
Petitioner prays this Court to honor the legislative intent of justice and order hearing(s) as allowed under statute. Georgia Supreme Court Chief Justice Fletcher, dissenting in Crawford said:
A key part of this process is a hearing at which the Petitioner and DA are permitted to present evidence by affidavits or testimony.”
This same justice would comment about another critical piece of evidence unseen by this trial jury, the “bloodless” purse found after trial by police. That same “phantom purse” that even unseen, permeated the entire trial:
______________________________________________________________________________
BRIEF IN SUPPORT OF EXTRAORDINARY MOTION FOR NEW TRIAL
PART II
______________________________________________________________________________
AUTHORITY
Petitioner further pleads for action pursuant to O.C.G.A. § 17-7-52 and O.C.G.A. § 45-11-4 regarding his exclusion from appearance at the Grand Jury of Gwinnett County Georgia that resulted in a Bill of Indictment.
CIRCUMSTANCES
On 05 October 1993, the Grand Jury of Gwinnett County Georgia considered evidence against him in Indictment Number 03-B-01818.6; and further that as a result of the consideration of said evidence, Petitioner was accused in said indictment with violation of the laws of the State of Georgia; and further that the time period of the alleged violations committed by the Petitioner commenced on 15 April 1993.
ARGUMENT
Petitioner shows that at the time of the alleged violations he was a sworn member of the Gwinnett County Police Department in the capacity as an uniformed patrolman of said department.
Further Petitioner shows that as a result of his status with the Gwinnett County Police Department that he was a peace officer within the contemplation of the provisions of O.C.G.A § 17-7-52 and O.C.G.A. § 45-11-4 which provide in part:
“The indictment shall specifically set forth the merits of the complaint against the accused public officer. A copy of the indictment shall be served on the accused public officer at least 15 days before it is presented to the Grand Jury. The accused shall have the right to appear before the Grand Jury to make such sworn statement as he shall desire at the conclusion of the presentation of the state’s evidence. The accused shall not be subject to examination, either direct or cross, and shall not have the right individually or through his counsel to examine the state’s witnesses. The accused and his counsel have the right to be present during the presentation of all evidence and alleged statements of the accused on the proposed indictment, presentment, or accusation, after which he and his counsel shall retire instanter from the Grand Jury Room to deliberate upon the indictment.”
Petitioner shows that he was not
afforded:
1) The rights of having the Indictment laid upon him;
2) Notice to be and appear before the Grand Jury;
3) The right to make a sworn statement.
Also Petitioner was deprived of any and all remaining rights that are
included in the aforementioned provisions.
Petitioner shows his pleas are based in law with cites aforementioned.
The Georgia Supreme Court has ruled lower courts are in violation of Federal
and Georgia constitutional rights. The case in point was not decided until 16
February 2001, wherein the Georgia Supreme Court in Dudley v. State, 273
GA 466, 542 W.E. 2d 99 (2001), held that the General Assembly has seen fit to
afford to peace officers, “Without Apparent Limitations”, the enhanced
protection given to all other public officials as to accusations arising from
the performance or non-performance of their duties. Id.
The Supreme Court held in Dudley:
A copy of the indictment
shall be served on the accused public official at least 15 days before it is
presented to the Grand Jury. The Accused shall have the right to appear before
the Grand Jury to make such sworn statements as he shall desire at the
conclusion of the State’s evidence … Id.
The
State no doubt will make the standard Mize argument that the crimes
charged were not part of the Petitioner’s job description; that the right to
appear before the Grand Jury was forfeited. The State will no doubt cite
O.C.G.A. 45-11-4(b) which the Supreme Court has ruled to be in error in that
the “without apparent limitation” phrase gives the police officer the right to
confront his accusers, a right Petitioner was denied.
CONTENT OF PETITIONER’S
GRAND JURY SWORN STATEMENT[42]
No Prosecutor should
knowingly fail to disclose to the Grand Jury evidence which will tend
substantially to negate guilt.[43]
Had Petitioner’s statutory right to appear and make a sworn statement
before the Grand Jury been available to him, the Panel would have been made
aware of the exculpatory evidence negating Petitioner’s guilt, and of the
gaping holes in the State’s case against Petitioner. Within 18 hours of the
discovery of the murder victim’s body, and based upon the sketchiest of
information based almost entirely upon the worst kind of hearsay, the Gwinnett
County Police, in their desperation to enhance their image and to draw
attention away from the ongoing corruption at the Northside Precinct, decided
in secret that Petitioner was guilty of the murder of Emogene Thompson.
In his sworn statement, Petitioner would also have had an opportunity
to inform the Panel of the facts surrounding the pattern of behavior of the
State and its agents now forced upon them by their knee-jerk reactions on the
first night of the investigation. The State could only construct a case based
upon the worst kind of hearsay, a failed eyewitness identification, perjury,
manipulated and coached testimony, a co-opted defense witness and the like, all
interwoven into a blanket of confusion; while all exculpatory evidence exonerating
Petitioner would be lost, destroyed, covered-up, avoided, confused by
ill-description, or simply ignored and/or just failed to be mentioned.
In their awareness of the sum of all the information that would then
have been presented, the only logical assessment the Grand Jury could have made
was that there was not an adequate basis for the bringing of a criminal charge;
and a “no-bill” would have issued.
EXCULPATORY EVIDENCE
The
State claims that the murder of Emogene Thompson took place between 9:00 and
10:00 PM on the night of April 15-16, 1993 in the driveway of the Gwinnco
Muffler Shop on Peachtree Industrial Boulevard (PIB) in the City of Sugar Hill,
Georgia.
In his sworn statement, the Petitioner would have told the Grand Jury
Panel that he, Officer Brian Reddy and Supervising Sgt. Donald Stone were all
present and in the company of the firefighters of that shift in the Fire 14
(Northside) firehouse where they could monitor the storm raging outside on TV
during the period 8:30 to 10:00 PM on that night. They were all watching a TV
broadcast movie with storm information in a crawl at the bottom of the screen.
Petitioner would add that the movie would end a few minutes before10:00
PM, and at that point the firefighters noticed and later would make statements
to the effect that Petitioner rose from his chair, dressed himself in his
raingear and left the building to pick up the daily receipts and close his
small business gym located a short distance away in Buford. On his way out of
the firehouse, Petitioner would receive a dispatch at 9:57 PM ordering him to
an address on Arden Drive on the other side of Buford away from Gwinnco
Muffler. Stopping for only to pick up his receipts and wave at his volunteer
manager and his girlfriend, Petitioner arrived at the Arden Drive address at
10:07 PM.
Further, Petitioner would inform the Grand Jury that after his arrest
on April 23rd, the police would not seek (despite police assurances Petitioner
could take that action on to the bank) and would delay for days signed
statements with their observations from these firefighters. Upon learning of
Petitioner’s arrest the firefighters had to demand from their captain they be
allowed to make statements from their, whose brother by the way was a Captain
in the Gwinnett County Police Department. On April 27, 1993 four of these
firefighters made formal statements that were then delivered to the police.
Petitioner would then tell the Panel that in contrast to the actions of
the firefighters, the two officers with him at the firehouse that night,
Patrolman Brian Reddy and Sergeant Donald Stone both lied about Petitioner’s
presence at Fire 14. Brian Reddy would deny in a signed statement that
Petitioner was even at the firehouse that night. When contradicted by all
others present, including Sgt. Stone, Reddy would explain he was drunk and
scared because of Petitioner’s arrest and the fact that he lied on his official
log sheet for the reason he lied. Sgt. Stone would state that Petitioner left
the firehouse about 20 minutes before he left the firehouse sometime after 10
PM. Telephone records would show that Sgt. Stone made a telephone call to his
wife from the firehouse at 10:17 PM that night. This would make Petitioner’s
departure to have been 9:57 PM, exactly the time Petitioner stated he left the
firehouse. The Panel would also have heard that Sgt. Stone told the police that
Reddy left after Petitioner driving his police unit, identical to Petitioner’s,
out and to the left onto Commerce Drive toward the crime scene and toward the area
of PIB from two to four lanes near Georgia Highway 20 and where the State’s
eyewitness who “had to say” he saw someone who resembled the Petitioner, which
Reddy very much did. The panel would also have heard that Reddy’s unit log
sheet placed him very close to this intersection during the period in question.
Reddy would explain that he lied on his log sheet.
Finally, Petitioner would have told the Grand Jury how he received a
business loan for advertising from his silent partner in his gym of $1,400.00
in $100 bills from the same bank that both he and his partner and the murder
victim Emogene Thompson banked and how this explained the $100 bills he used to
pay for the tee-shirts advertising his gym shortly after the murder.
for itself could have seen that the case had dissolved within days of his
arrest, and the State then was frantic in its attempts to bolster it.
Petitioner could have shown a pattern of behavior on the part of the State
wherein any and all exculpatory evidence found by the Gwinnett County District
Attorney and/or its agents the police and, in several instances, the GBI Crime
Lab would lose, destroy, cover-up or just fail to mention or confuse that
evidence.
This pattern of behavior would continue even after the Grand Jury had brought the indictments. For example, no murder weapon had been found at the time of the grand jury hearing, but within days of the indictment, the probable murder weapon would be located at a hotel the victim’s son Michael, an excellent candidate for the murder of his mother, often stayed when involved in homosexual an perhaps even more nefarious activities. Knowing the implications of this evidence being found, the police ordered the weapon destroyed before it could be tested and without notifying the defense of its discovery.
When confronted at trial about this weapon, Lt. Latty, the officer in charge of the case, blithely explained away the destruction of a weapon that fit all the characteristics of the that weapon used in the victim’s murder without any detail, documentation or accountability for such a critical decision.
A very large shadow of suspicion surrounds the police claim of the destruction of that weapon. In October of 1994, Chief Investigator Burnette personally brought a weapon with all the characteristics of the so-called destroyed gun, including its exposure to the elements, to GBI firearms expert Kelly Fite who test fired it and prepared a report stating that the weapon could not be ruled out as the murder weapon. Confounding this skullduggery, 18 days after Petitioner’s trial began, the district attorney’s office brought Fite another weapon of the same type, owned at the time of the murder by another police officer and claiming it had been overlooked at the time of the investigation. This weapon was test fired as well, and Kelly Fite this time could rule it out as the murder weapon. Fite then gave the second report the same identification number as the “destroyed” gun, and attempted to exchange the reports or at least to confuse the two weapons.
The Grand Jury unfortunately could never hear his story, but what Petitioner could have included in his sworn statement to that body would have confounded any testimony given by the State’s only witness, Investigator Jack Burnette. For example The Grand Jury would have heard, as a minimum, much of the following.
On the night in question, April 15, 1993, one of the worst storms of the year roared through the area, starting about 8 Pm and lasting until 2 Am in the morning. High winds and driving rain to the extent that drivers automatically would form themselves into little convoys, straining to maintain sight of the lights of the car in front and praying for the eyesight of the driver behind them.
Petitioner, with two other police officers monitoring the storm was continuously at Fire 14, a firehouse adjoining the Northside Precinct during the entire window of time the State maintained the murder was committed: 9:30 to 10 PM on the night of the murder. Petitioner was observed continuously at Fire 14 by several firefighters, four of who gave written statements to their captain when they heard of the circumstances of Petitioners arrest.
If only an elementary
analysis of the driver witness statements had been done at the time, police
investigators would have determined from that body of evidence in toto
that the only possible time period the two automobiles, police and victim’s,
was between 9:57 and 10:03 PM[44],
a time during which Petitioner was responding to a dispatch to Arden Drive
completely on the other side of Buford, arriving there at 10:08.
To
summarize Petitioner’s own driver-witness analysis, Drivers passing the muffler
shop between 8:45 and 9:30 pm that night when there is no doubt Chapel and the
other officers were sheltering at the firehouse, saw a police car of the same
type as the precinct spare monitoring traffic in the driveway. This was
undoubtedly Sugar Hill Marshall Robertson who drove a police car of the same
shape as the spare, but was colored black and white. While shape can be easily
be determined under such terrible weather and lighting conditions, color
cannot. A driver rushing to post his taxes passed almost exactly at 9:30, and
the driveway was empty. Investigator Burnette’s log shows a call received about
midnight on the 16th reporting that he passed the driveway at what
must have been about 9:40 and saw two civilian cars back to back in the
driveway. From his descriptions, there is little doubt that the lead car was
the victim’s and the car behind was her son’s. Drivers passing northbound at
about 9:45, 9:50 and 9:55 saw only the victim’s car in the driveway. A driver
passed the driveway southbound at about 9:57 and saw the policecar’s blue
lights flashing in the driveway. Driver Paul Omodt saw the blue lights come on
from the top of a hill about 1 to 2 miles south, but when he descended and
ascended to the top of the next hill, the lights had gone out. Police
interviewers who talked to drivers one or more days after the 15th,
neglected to remind northbound drivers of the severe storm. As a result, since
most of these drivers commuted this stretch of highway every night gave
interviewers their normal time for passing the muffler shop. All of this
information complete with data from statements given to police and testimony at
trial can be found on Chapel’s web site. http://www.projectinjustice.org/chapel
by clicking on the “Driver Witness” button on the left of the home page screen.
The Prosecution’s single police car, i.e., the same police car in the driveway passing the “Omodt/Kautter (eyewitness) vehicle was a physical impossibility. See the same study as cited above.
While eyewitness Karl Kautter did select Petitioner’s photograph from the photo-lineup, it was in fact his third selection. After first examining the lineup and noting that all the police officers pictured had mustaches, Kautter rejected all the possibilities saying: “First of all, the police officer did not have a mustache.” At Sgt. Cline’s request, Kautter re-examined the lineup and pointed to an officer other than Petitioner, and when a response from Cline was not immediately forthcoming, Kautter remarked: “No he is too tall,” and then finally selected number 3, Petitioner. The first officer was of average height while Petitioner’s height is 6 feet 7 inches.
The money Petitioner spent about the time of the murder is simply explained by a business loan from and friend and sometime employer for some $1,600.00 in one hundred dollar bills. With typical cunning, District Attorney Danny Porter co-opted this witness for the Prosecution to demonstrate that Petitioner needed money. What young family with two toddlers’ just starting out on a police officer’s salary does not?
Then, there were the hearsay statements of the victim’s friends and her son, Michael. As shown in information received even the very first night, Michael Thompson should have been the “prime suspect” in his mother’s murder. Thus anything he said was self-serving. In addition, Michael and all the “friends” were reacting to Mrs. Thompson’s own plan to retrieve her money from her son by bluffing him with threatening statements about her and Petitioner’s investigation. Her plan was an alternative to bringing charges against her son Michael. It was quickly outlined by Petitioner to Ms. Thompson in a few minutes of conversation on her front porch the day after her burglary report, i.e., April 4, 1993. This tactic had served Petitioner well in such cases as a victim who will not press charges on a close relative. Indeed, one of the friends, Marsha Smith, would relate how Petitioner successfully worked such a ploy on her own daughter when some jewelry went missing.
There are very good reasons
for the “hearsay evidentiary exclusion” rule, and Delores Burel, the victim’s
self-described “best friend”, is a superlative demonstration of those reasons.
Ms. Burel appears to be illiterate but hides this fact from others with usually
harmless fictions like “never having her glasses available” and with the help
of others sympathetic to her problem[45].
For example, at trial Judge Bishop gave Ms. Burel that kind of sympathetic help
by calling a short recess when Defense Attorney Elizabeth Rogan was heartless
enough to ask Burel to refresh her memory by reading some from her statement of
the 20th:
For these and probably some other reasons, Ms. Burel is very manipulative and anxious to please those she feels are “in authority”. She insisted on face-to-face meetings with police investigators, probably in order to gauge their reactions to her generalized and mostly unrelated information in order to give the police the answers they wanted to hear regarding Petitioner. Her interview with Investigator B.J. Tasick on the first night of the investigation would use up both sides of an audiotape and would run to many pages of transcription[46].
When Investigator Tasick returned on the 20th with Sgt. Steve Cline, hoping to gain some clarity from the rambling of the first interview, the interview ended abruptly after only 6 or 8 pages of transcription with Ms. Burel laughing and giggling over the “dumb and silly” things that she and Ms. Thompson would do when they were out partying at night. This interview was taped as well and resulted in an original transcription that was again given to Chief Investigator Jack Burnette along with a number of canceled checks given her for safekeeping by Ms. Thompson that her son Michael had forged.
Both of these original transcriptions were reported by Investigator Tkasik to be in the case file of Chief Investigator Burnette. The original transcription of the Burel interview of the 16th , given to Chief Investigator Burnette was not available to Petitioner’s Juror/Researcher, but a form of that transcription is in the case file as Exhibit E-44. The original transcription of the interview of the 20th was available[47] to the researcher, and the transcription in the case file as Exhibit E-54 is quite different in both form and substance from the original transcription Tkasick gave Chief Investigator Burnette.
Both the original and Exhibit E-54 described a missing portion at the beginning of the interview. The original transcription described that portion of the interview as “Static”, while exhibit E-54 described the missing portion that began as “Interview in progress when recording began”.
Probably unknown to both the Police and District Attorney, Defense Investigator Dennis Miller, who was hired almost a year after the murder, had an opportunity to listen to the complete tape of the Burel interview of the 20th, and Investigator Miller’s report of the interview mentions[48] three (3) major items, the first of which is not in any of the police transcriptions:
1. Mom[49] had heated talk with Michael about theft of money. Mom threw money at Michael and said, “if you want half, then you can have the rest. In argument, mom says “if it wasn’t to be, it wasn’t to be. I got this where I could have a mobile home, where I could have a car and a grandbaby”.
THERE IS MORE TO THE ARGUMENT THAT MOM WAS ON MICHAEL ABOUT CUSTODY OF THE GRANDCHILD. HE [MICHAEL] MISSED THE MEETING WITH THE ATTORNEY BY STAYING GONE THE WEEKEND OF THE MEETING, ETC..
The police were anxious to show that Mrs. Thompson kept the remaining money with her at all times in her purse. Delores Burel was anxious to give the officers the answers they wanted to hear, so she just provided the two with a smorgasbord of answers until she felt they had their answer. In the original
transcription of the
interview of the 20th on Page 5 was the following exchange:
The officers now had what they wanted. They now knew that Delores would say anything they wanted. The actual coaching was left to District Attorney Danny Porter. Now contrast this babble with the crisp, no nonsense testimony and the image Ms. Burel projected at trial, complete with tears; and her performance for the Dateline “Show”. It was obvious Delores had been coached, no, coached big time by the Office of District Attorney Danny Porter.
There is at least one example of this coaching in evidence. During his examination of Ms. Burel at the July 10, 1995 hearing, Prosecutor Davis became flustered with her answers, leading to the following:
Q. Did
she talk to you -- well,
let's -- I'm not sure we did this for your testimony. The time frame of the theft
and the call to police, would you agree that
that was somewhere
In the face of all of this coaching and preparation for testimony, Delores Burel knew exactly what Ms. Thompson was attempting to do with her son Michael in following Officer Chapel’s suggestion to bluff and scare him. Just a few lines later on this same page of the transcript of the July 10, 1995 hearing, Delores began to deviate from the script as it then was:
Q.
Please tell the Court what she said about those things.
A. Well,
there's one time she called -- she tried to
40
call
over the phone that weekend, and she couldn't get a hold of the officer until
that following Monday or that following week, and when she did talk to him he
said that he felt like Michael, Gene's son, knew something, was aware of
something, so she -- he was going to get a warrant, a pretend warrant or something like that,
and go to Michael and kind of scare him or something and make him say if he
stole the money. And then another call
was he said he had four hundred dollars that's around what she said -- and some
new bills with her a wrapper that goes around bills and that he was going to
compare with fingerprints and compare the fingerprints and the bills with what
she had and was going to try to scare Michael.
If Emogene Thompson confided in Delores about Officer Chapel’s suggestion to “bluff the boy” as an alternative to having him arrested, or if she did, one or the other or both got were getting things horribly wrong in their gossiping about Petitioner. Delores Burel’s price for her 15 minutes of fame terribly high, but she did not have to pay that cost. Murder was the price that Emogene Thompson paid, and her family dealt with their pain. Officer Michael Chapel, Gwinnett County’s “Supercop”. waited two and one-half years until District Attorney Danny Porter and the Gwinnett County Police Department, and others, many others could manufacture enough evidence to have even a ghost of a chance to convict Petitioner. His family almost exploded and dealt with that, but Petitioner, his family, his many admirers in the community and cops everywhere still have to deal with the shame and the pain of this false conviction and unjust incarceration. Each time the sun now rises, these families, their friends, the community and police officers everywhere, to a greater or lesser degree, feel that shame and pain anew.
Typically, on the night of the 16th, Ms. Burel did not know Petitioner’s name and asked another of the three “friends” who had already been interviewed by the police to write down his name so that she could have it during her own police interview scheduled for later that night. When asked for the officer’s name by the interviewer, she had already forgotten it and showed him the piece of paper. Of course she couldn’t find her glasses to read it to him. Ms. Burel was interviewed on the night of the 16th, but when her tape-recorded interview was examined, the same interviewer returned on the 20th with another investigator in an attempt to secure more coherent information. Bottom-line, the information gibed with the propaganda Ms. Thompson was feeding her son in order to bluff him into returning her money without his arrest.
Once the subject of telephone calls between Ms. Burel and the victim came up, the police investigators became very interested. Eventually Ms. Burel would elaborate the calls to “all the time on the phone with Ms. Thompson”, and 3 or 4 or more a day including on the evening of her murder. This led the police to subpoena thousands of telephone records from Bell South Telephone and to construct an in-house computer analysis of the data. When these business records did not support Ms. Burel’s allegations, District Attorney Danny Porter lost or misplaced or destroyed the Bell South business records leaving only the police analyses which then the Porter persuaded Judge Bishop to reject as evidence because of their the telephone records were only in the Police Analysis Report and now contained “hearsay” content.
Finally, just as Ms. Burel was beginning her marathon interview with B.J. Tasick at 11:45 PM on the night of the 16th, an impromptu meeting in a darkened police car sitting in the headquarters parking lot was just ending. The three (3) police officers now in charge of Emogene Thompson’s murder case and another had just decided that Gwinnett County Police Officer Michael Harold Chapel had murdered and robbed Emogene Bertha Thompson. The officers were jubilant. They had just broken a complex murder case in less than 16 hours.
Returning to his police department desk a few minutes later, Chief Investigator Jack Burnette received a telephone call from a citizen about the events in the muffler shop driveway as he passed it the previous night. Ending the call, Burnett entered the information into his case log herein reproduced:
Subsequent Analysis of the statements of the driver-witnesses would show that Flashner passed the muffler shop driveway within a few minutes of 9:40 PM. Even at this early stage or shortly thereafter, Chief Investigator Burnette should have realized that the big car on the inside was Mrs. Thompson’s and the outside car pointed out, i.e., parked trunk-to-trunk with the victim’s and creating the huge cloud of smoking because it desperately needed maintenance belonged the victim’s son Michael. The son’s car was drivable because, in a statement to police on the 16th, Thompson’s neighbor across the street, James Craig, noticed both Ms. Thompson’s and her son Michael’s cars missing from their usual place when he left for work sometime before 10:30 PM that night. Mr. Craig was surprised to see the son’s car gone because the City Marshall had been out the week before about the car, and Craig thought it was not drivable.
Mr. Craig returned from work at 1:45 AM, and he thinks the son’s car was still gone. Sometime later he heard and saw the car being started. It took four or five attempts to start the car, and each attempt generated very loud noises as it tried to “crank-up”.
Neither of these two witnesses were ever again contacted about their statements by the police, the district attorney or Chapel’s defense attorneys. Everyone was so intent upon convicting the Petitioner, they all, especially Chief Investigator Burnette, missed this golden chance that can only be described as almost a self-indictment of the victim’s son Michael and others unknown for Emogene Thompson’s murder.
PETITIONER AND HIS
FIREARM
Petitioner
would argue that the State, by virtue of its charging the Petitioner with the
crime of possession of a firearm during the commission of a crime, acknowledges
the proven fact that Petitioner was an active duty sworn officer in performance
of his duties[50], part of
which is being armed with the issued weapon of the Gwinnett County Police
Department. Thus, the indictment should be thrown out and a new trial afforded
because due process was denied to the Petitioner.
CONCLUSION
Petitioner points out to this court the letter attached (Exhibit 2) from his then attorney Walt Britt. He clearly states that at the time of the indictment, he and others were adhering to the long time interpretation of Mize v. State, 152 GA APP 190(1) (1979), that like other individuals charged with a criminal misdeed, police officer are presumed innocent until proven guilty.
Whereas the Petitioner swears the forgoing to be truthful and understands the penalties of misleading this court.
Respectfully submitted this ______ day of _____________, 2005.
Michael H. Chapel, Pro se
845840, D2
Wayne State Prison
P.O. Box 219
Odum, GA 31555