Truth
is
the greatest of all national possessions.
A state, a people, a system
which suppresses the truth or
fears to publish it,
deserves to collapse. – Kurt Eisner.
I'm accused of murder here,
and the truth ain't working. –
This case arises from
the murder of a 53-year-old [grandmother] in the city of Sugar Hill, which
borders the city of Buford[1],
Georgia. On the morning of April 16, 1993, the body of Emogene Thompson was
found in her automobile in the driveway of the Gwinnco Muffler Shop[2]
on Peachtree Industrial, Boulevard (PIB) in Sugar Hill, dead as a result of two
gunshot wounds to her head.
Over the following week, drivers who
had passed Gwinnco Muffler on the night of the murder were located and
interviewed. Several drivers had passed the shop between 8:45 and 9:30 PM and
had seen a “mystery” police patrol car in the driveway facing out toward the
street. Several other witnesses passed the shop later and saw police “blue
light activity” in the driveway. The scene described indicated that the
victim’s automobile was parked in the driveway with a police patrol car behind.
Both vehicles were facing the shop and away from the street. Two witnesses,
Paul Omodt and Karl Kautter, saw the police officer outside of his vehicle
walking toward or next to the victim’s automobile. After passing the driveway,
traveling north, a police car pulled up behind the Omodt/Kautter car and passed
their vehicle on the right when PIB transitioned from two to four lanes[3].
As the police vehicle passed, Witness Karl Kautter looked at the officer and
later identified that officer as Michael Chapel from an 8-Photo lineup.
Several friends of the victim were
located and interviewed. They told investigators that the victim had received
an amount of money from the insurance policy of a friend who had recently
passed away, of which some $15,000 remained as of April 1, 1993. At
about that time, half of that money, about $7,000.00 was stolen from her home.
Ms. Thompson had reported the theft to the Gwinnett County Police Department,
and Officer Michael Chapel was assigned the call. Since then, they reported,
Chapel had been working with Ms. Thompson to recover the money. One of the
witnesses, Delores Burel, told investigators the victim told her that the
victim and Chapel were to meet at some unspecified time and place to discuss
the case and compare evidence.
One week after the murder, on April
23, 1993, Officer Michael Chapel was arrested for the murder. He was tried and
convicted of the murder of Emogene Chapel in September, 1995 and has since been
confined in the Georgia State Prison at Reidsville, Georgia from where this
petition is submitted.
This
murder was never investigated[4].
By the end of the first day, as Officer Chapel’s involvement with the victim
came to light, all other lines of investigation were abandoned. The most
important item of evidence in this entire case was mentioned only once. That
there was high velocity blood spatter on the front windshield of the victim’s
car was mentioned only in the report of the crime scene analysts[5]
and nevermore. A photograph of this blood spatter was taken from outside of the
victim’s vehicle by a crime scene technician[6].
The District Attorney was aware of this photograph and, knowing that it would
destroy the prosecution’s case, artfully hid it from the jury[7].
This evidence in combination with the autopsy report[8],
a cut tire, latent fingerprints and unexamined debris in the victim’s
automobile told the whole story of the murder and almost names the murderers[9].
It is the quintessential example in this case
of what was most apparent and what was most ignored.
The crime scene is the key to
understanding this crime, and within the first few hours of Chapel’s trial
before the jury, the prosecution had successfully buried this evidence under
the smothering mountain of misdirection that was the remainder of this trial.
The prosecution was allowed to do this by the presiding judge, despite the
pleas of the jurors[10],
and by Chapel’s defense counsel, who could not grasp the importance of this
evidence.
One juror asked to examine two
photographs of the scene that had been slipped surreptitiously into evidence by
the prosecution[11], one of which
was the blood spatter photograph that had been misidentified in testimony by a
police officer who had been on the scene[12].
Another juror asked that photographs be shown again to the jury[13].
In another instance in this process, still another juror had to correct the
prosecutor when another of the photographs was misidentified[14].
Finally there were several confusing descriptions of the content of the
photographs[15] that the
jurors were not allowed to examine closely. All of these instances were
prejudicial to the defendant, and the Court, after just one meaningless
admonition to the prosecution, stood by and allowed the prosecution to continue
with these prejudicial tactics[16].
Defense counsel not only had no objection to these tactics, but made it clear
to all present that the attention of the defense was elsewhere while the
prosecution succeeded in bamboozling the Court, the jury and both defense
counsel[17].
By the time Witness Judy Graham, who had taken the photographs of the crime
scene, had completed her testimony, the jurors had a better idea of what was on
the far side of the moon than they did of the crime scene[18].
Other aspects of the crime scene
were the physical circumstances surrounding the prosecution’s contention that
the police vehicle that passed the Omodt/Kautter car on Peachtree Industrial
Boulevard that night, and which Witness Kautter identified the driver as
Michael Chapel, was the same police patrol car and driver seen by the pair in
the driveway of Gwinnco Muffler a few seconds before. A careful analysis by an
expert witness establishes that based upon the testimony of these witnesses[19],
the physical characteristics of chapel’s patrol car, the distances involved[20]
and the weather that night establishes to a virtual mathematical certainty that
the police car in the Gwinnco Muffler driveway could not have been the same
patrol car that passed Paul Omodt and Karl Kautter a few seconds after they
drove by Gwinnco Muffler[21].
Since the driver of the patrol car
that passed the Omodt/Kautter vehicle could not have been the same officer the
pair had just seen in the Gwinnco Muffler driveway, eyewitness Karl Kautter is
transformed from the State’s star witness to a defense witness, giving Chapel
an alibi, if in fact he was the driver of the second police car. Additionally,
the Georgia Supreme Court’s justification for the admission of hearsay evidence
by the friends of the victim becomes no longer valid in that Chapel could not
have been the police officer seen in the Gwinnco Muffler driveway that night.
[Supreme
Court Decision[22]]
Additionally,
the proponent of the evidence must show that the statement is relevant to a
material fact and that the statement is more probative on that material fact than
other evidence that may be procured and offered. These additional elements will
help ensure that the necessity exception does not render the rules of evidence
meaningless and all the conduct of trial by hearsay. These factors are met
in this case because the testimony tended to establish that Chapel was the
officer seen at the muffler shop where Thompson was shot[23]
and the state was unable to locate any witnesses to provide that
identification.
Another expert witness[24]
establishes that, given the prosecution’s contentions regarding the position of
the killer outside of the victim’s automobile and based on bullet trajectories
and re-enactments the size of the officer in the Gwinnco Muffler driveway would
have been a much smaller person than Chapel. This was corroborated by the
testimony of witnesses Omodt and Kautter[25],
the only two witnesses to see the officer in the driveway outside of his patrol
car, who testified that the officer in the driveway was at least six inches
shorter than Chapel.
What is consistent about this case
is that evidence that could have been exonerating or otherwise useful to the
defense kept disappearing; while evidence that was useful, even critical to the
Prosecution’s case kept appearing at critical and suspicious times.
Audiotapes and unexposed photographs
that Chapel had used to collect information on drug trafficking in Buford were
removed from his patrol car after his arrest and simply disappeared from police
custody. A shell casing of the type that the GBI had determined was used in the
murder was found on or just adjacent to the victim’s property just disappeared.
Several weapons, including a loaded revolver of the type used in the murder
with two bullets fired was found at a Buford hotel that the victim’s son, a
bisexual and crack addict, was known to frequent, again simply disappeared.
The police and Prosecution on the
other hand kept finding new evidence to buttress important issues just as it
was needed. The blood evidence found in Chapel’s patrol car, on the night before
the preliminary hearing, that rehabilitated the crumbling police case is a good
example. Almost two years after the murder, when the District Attorney could
not account for several thousand dollars of the victim’s supposedly stolen
money, a questionable witness came forward to say that he saw an envelope in
the purse of Chapel’s wife, Eren, that contained $3000.00 in one hundred dollar
bills. Finally, even after the trial began, to buttress his case, the District
Attorney requested and received a highly questionable blood spatter analysis of
Chapel’s raincoat by a GBI technician. A raincoat which testimony later
established had been hopelessly contaminated with the victim’s blood at the GBI
Crime Lab a few months before[26].
At the time of this incident, the
Northside Precinct of the Gwinnett County Police Department was embroiled in
controversy over problems with its activities over the previous few years. One
of these problems had involved the precipitous arrest of a citizen who, on
release, successfully sued Gwinnett County for false arrest for an amount in
excess of ten million dollars. As a result of this incident, Lieutenant John
Latty was removed as Chief of Detectives at the Westside Precinct and
transferred. There were rumors of police involvement in drug activities. These
activities included drug dealer shakedowns and dealer tip-offs.
Children
loved Chapel. He could communicate with them at their level. They called him
the “Terminator” because of his size and “Officer Bubblegum” from his habit of
distributing bubble gum to children when patrolling in the poorer areas of
Buford. The District Attorney sarcastically referred to these children when
questioning Chapel on the stand:
[Chapel, Trial, Page 6302, Line 9]
By Prosecutor Porter
Q. What
about John Latty. He would frame you?
A. I
could see it happening.
Q. Why?
A. He's
blown enough cases in his career. He
blew this one. He saw it going down the
tubes.
Q. Why
you? Why Mike Chapel?
A. Convenience.
Q. With
his bubblegum bandits?
A. Convenience. Most logical. The mistakes had
already been made when he put the cuffs
on. Cleaned it up after, six days
later.
Officially
and on his own, Chapel spoke to schoolchildren about the police and their
activities. One teacher wrote:
May
1, 1992
Dear Mr. Chapel,
What
a wonderful example you set for our class with your dedication to the duties of
your job! I thought you worked with the class beautifully. The students have
continued to discuss the things you told them all week.
Today our County Superintendent talked to
them about heroes. When he asked the students who their heroes are, many of
them, including Chad, said you are their hero. You made a very positive
impression. Thank you so much for being with us.
/s/Joyce
Parks
Several
of the children from this particular class also sent thank you notes to Chapel,
and each of them closed their notes with “Your Friend” or Your Pal”.
Emogene Thompson received the
proceeds of an insurance policy on a former boyfriend in early 1993. As of
April 1, 1993, there remained about $15,000.00. After first placing the money
in the bank, Ms. Thompson persuaded herself or was persuaded to remove the
money from the bank because of the possibility of attachment stemming from a
real estate transaction.
The money had been in the residence
only a few days before several hundred dollars went missing. Ms. Thompson
determined that her 26-year-old son, Michael, possibly with another youth, had
taken the money. When confronted, Michael Thompson admitted the theft.
On or about April 1, 1993, Ms.
Thompson again discovered money missing. This time half of the money, or about
$7,000.00, was missing. This time Michael would not admit to the theft and told
the victim there had been a burglary. After several days on April 3, 1993, Ms.
Thompson reported the theft as a burglary. Officer Michael chapel was assigned
to the call and traveled to the victim’s Craig Drive home[31].
Chapel quickly determined that there
had been no burglary, and that Emogene Thompson’s son Michael was the likely
thief. He reasoned that no real burglar would take only half the money, and,
while there was a tear in the screen door of the residence, the door could have
been opened easily even without that damage. Chapel asked the victim whether
she wanted to file a complaint and prosecute; but, since the thief was probably
her son, she refused. Chapel then separately counseled the son to return the
money he had taken to his mother.
Chapel did not immediately write a
report of the incident, but later that evening he verbally reported the
incident to his superior, Sgt. Donald Stone. Sgt. Stone advised Chapel to write
up a report, and Chapel started the report but never completed it. It was found
later in his briefcase.
On arrival at his precinct the next
day, April 4, 1993, Chapel found a telephone message from Ms. Thompson. He
tried to return the call from the precinct but was not successful. Finding
himself in her neighborhood during his shift that day, Chapel stopped to talk
to the victim. Again, Ms. Thompson refused to sign a complaint against her son.
At this point, Chapel counseled the
victim on strategies that would influence her son to return the money. These
strategies were those that Chapel had used in the past in similar situation
where children had stolen from their parents[32].
Essentially, they included bluffing the children into believing that the police
were investigating the crime and were close to making an arrest, what Chapel
referred to as “Running the Boo”.
On April 6, 1993, Chapel found
himself outside the Subway Sandwich Shop where Thompson’s son, Michael, was
working. Chapel asked him to take a break and to step outside. Again he
counseled the san to return his mother’s money and continued the strategy of
“Running the Boo” on him. He told the son that he, Chapel, was working with the
victim and warned him that if he did not return the money that he would be
arrested and jailed on evidence that was found that he was the thief.
At this point, the prosecution and
defense versions of what happened began to disagree. Chapel held that these
were the only contacts that he had with the family, while prosecutors held that
Chapel continued his contacts with the victim finally arranging a meeting with
her in the driveway of the muffler shop on the night of April 15, 1993 where he
murdered her and stole her purse containing the rest of the insurance money. No
evidence of these alleged additional contacts, including the examination of
voluminous telephone records, was ever uncovered.
On the evening of the murder, April 15, 1993, Officer Chapel met
with his superior Sgt. Donald Stone and another GCPD officer, Brian Reddy in
the parking lot of a church in Buford. There had been severe weather during the
afternoon and early evening that day and the trio agreed to meet at Fire 14[33],
the Gwinnett County firehouse that adjoined the Northside Precinct, where they
could monitor the weather on television.
Arriving at Fire 14 separately about 8:30 PM, the officers settled
in to watch a movie with the firefighters where the severe weather warnings were
being displayed at the bottom of the screen.
At this point the Prosecution and Defense again disagree with what
happened next. The Defense held that Chapel left Fire 14 just before 10 PM at
the conclusion of the movie. At 9:57 PM, while still in the Fire 14 parking
lot, Chapel received a call to proceed to Arden Drive[34]
on the other side of Buford from Gwinnco Muffler to handle a nuisance
complaint. On his way to the call, Chapel proceeded first via Lee St.[35]
to the Iron World gym[36],
his part time business, to pick up the days receipts. Chapel then arrived at
the Arden Drive residence at 10:07 PM. The Prosecution claimed that Chapel left
Fire 14 at 9:30 PM, drove to the Gwinnco Muffler Shop on PIB by 9:35,
intercepted Emogene Thompson and murdered her at 9:40 and left the shop
traveling North on PIB at 9:45 PM.
D. Overview Of Pre-Trial Activity
An
issue that impinged upon Chapel’s right to choice of counsel and his right to a
speedy trial worked against Chapel. As the grounds for this petition will describe[37],
Attorney Walt Britt was precluded from representing the defendant on the basis
of a conflict of interest. Attorney Britt was one of many part time counsels
for the County of Gwinnett Georgia. Although the District Attorney was well
aware of these circumstances, he did not act on this until Britt was appointed
as counsel for an indigent defendant, six months after Chapel’s arrest and
Britt’s retention as counsel. By litigating what amounted to a trivial matter
that had no relationship to the capital crime with which the defendant was
charged through to a Georgia Supreme Court decision, no meaningful legal work
was done on the defendant’s behalf until new counsel was appointed eighteen
months after the crime, and the actual trial was delayed until two and one-half
years after the defendant’s arrest.
The trial of Michael Chapel before a
jury began on August 22, 1995. The prosecution had to establish that Michael
Chapel had a need for money and an unusual amount of money in the form of one
hundred dollar bills in his possession at or near the time of the murder; that
he had unusual contacts with the victim prior to the murder; that a police
officer had been involved at the most probable time of the murder; and that
Michael Chapel was the police officer seen in the driveway of Gwinnco Muffler
with his patrol car behind that of the victim.
To establish that Chapel spent a lot
of money just after the murder, the prosecution called a witness who attested
to the fact that Michael Chapel had a twenty- dollar car wash the day after the
murder and paid for it with a one hundred dollar bill. Other witnesses
established that Chapel had ordered and paid for a-number-of T-shirts, jackets
and tank tops that advertised his gym and paid for them just after the murder
with several one hundred dollar bills. Chapel also paid the bond for one of his
wife’s friends on a disorderly conduct charge. One final witness testified that
he saw Chapel’s wife Eren in possession of $3,000.00 in one hundred dollar
bills just after the murder. To establish that Chapel needed money at the time
of the murder, another witness established that Chapel was facing an IRS audit
with the possibility of a four thousand dollar liability. Finally, a witness
established that Chapel had received a loan of fourteen hundred dollars from
his sometime employer and friend Jack Dudley.
Jack Dudley, the friend who loaned
Chapel the fourteen hundred dollars, was really a defense witness. He in fact
established for the defense where Chapel received the money, in the form of one
hundred dollar bills, that he was spending at the time of the murder. In a
brilliant stratagem, the District Attorney hijacked this witness from the
defense and twisted and perverted his testimony to fit the prosecution’s case.
Dudley was not pressing Chapel for repayment. In fact, the money he loaned
Chapel was an investment that Chapel was to use to advertise and improve the
operation of the gym.
The IRS audit was just that – an IRS
audit. It did not show any desperate need for money. The results of the audit
as with all such audits were unknown before the audit was complete. The results
depended completely on how well the Chapels could defend their returns. The
witness that testified regarding the audit, John Spearman, was in fact Chapel’s
accountant, and, as such, he had a large stake in presenting Chapel’s case to
the IRS. When he spoke of a possible four thousand dollar liability, this would
have been the absolutely worst case. The best case would have been that the
Chapel’s would have received a refund for the contested year.
The testimony of Valerie Heath who
testified about the one hundred dollar car wash was impeached by the defense
that presented a statement made by Ms. Heath a few days after that car wash in
which she stated that Chapel had paid for the $19.95 car wash with a
twenty-dollar bill.
Laurie Pace, the lady who sold
Chapel the T-shirts, jackets and tank-tops that advertised his gym testified
that the bill was $597.99, and Chapel paid for them with six one hundred dollar
bills.
Kiersten Frazier-Forg, was a guest
at Eren Chapel’s birthday party thrown by her fellow employees. The police were
called by a neighbor, and Ms. Franzier-Forg became disruptive and was arrested
for disorderly conduct. Chapel was at home baby-sitting. A hat was passed for
bail money, and Chapel made up the difference to a total of $120.00 for Ms.
Frazier-Forg’s bail.
Returning home from this party, Eren
Chapel was a passenger in the back seat of a car along with Kendon Curtis, a
sometime tree trimmer and manager of a male dance revue (read male stripper).
Curtis testified a stop was made where Eren Chapel got out of the car to make a
phone call. From the telephone, Ms. Chapel saw Curtis rifling her purse and ran
back to the car. Curtis then testified that he saw Ms. Chapel pull an envelope
from the purse and flip through the contents that Curtis stated were one
hundred dollar bills. Curtis estimated the
amount at $3,000.00. Eren Chapel was very close to a nervous breakdown at the
time of the trial, and Chapel refused to allow her to testify. She presents a
declaration with this petition stating the money in that envelope were her tips
she earned as a waitress, and they amounted to only a few hundred dollars.
Curtis only came forward with his information in January 1995, almost two years
after Chapel’s arrest.
Testimony at trial did establish
that Chapel did in fact have contacts with the victim on April 3rd
and 4th of 1993, and that he had an additional contact with the
victim’s son on April 6th as a result of a seven thousand dollar
theft from a fourteen thousand dollar cache in the victim’s trailer. Three of
the victim’s friends testified that the victim told them that Officer Chapel
was still working on her case and that she expected to have a meeting with him
regarding hundred dollar bills and bill wrappers that he had recovered. Chapel
countered this testimony with an explanation that the most probable thief was
the victim’s son whom the victim did not wish to prosecute. He testified
further that he advised her that since she did not wish to prosecute, her only
option was to try and bluff the son into returning the money, which she may
have misunderstood[38].
The testimony of driver witnesses who
passed the muffler shop the night of the murder established that there was a
“mystery” police patrol car in the driveway facing out to Peachtree Industrial
Boulevard (PIB) beginning as early 8:45 PM, at a time there was no question
that Chapel was at Fire 14. At 9:30, several of the drivers saw the police car
with its dome light on, and one of these, Robert Brusie identified the driver
as Chapel. It turned out later, that Dr. Brusie, a veterinarian, had met Chapel
some months before when Chapel responded to a “horse down” situation and the
animal had to be destroyed. Brusie also saw the driver wearing a white shirt,
and this was not the uniform of the Gwinnett County Police Department (GCPD).
All of these driver witnesses who were asked the question identified a patrol
car different than the shape and style of the car driven by Officer Chapel that
night.
Other driver witnesses testified to
seeing the victim’s car and a police car in the Gwinnco Muffler driveway, both
pointing toward the shop, away from PIB. Each of these driver witnesses
testified that they were passing this area of blue-light activity at or very
near 9:45 PM. In every instance of these witnesses, the remainder of
their own testimony impeached the 9:45 PM time of passing, and, instead, established
that the time of this blue-light activity in the Gwinnco Muffler driveway
occurred no earlier than 10 PM.
Two driver witnesses, Paul Omodt and
Karl Kautter, testified that they saw the police officer outside of the patrol
car at the time of the blue-light activity. Each described a police officer in
raingear approximately six feet tall, much smaller than Chapel’s six feet six
inches, and either walking toward or alongside the victim’s automobile. As they
proceeded north on PIB[39]
after passing the muffler shop, they described a police patrol car approaching
from behind, which the District Attorney then maintained was the same car they
saw in the driveway[40].
The patrol car began passing them on the right just as PIB transitioned from
two to four lanes[41],
completing the maneuver as the cars approached Roosevelt Circle[42].
Witness Omodt described this patrol car as a newer more aerodynamic vehicle of
the type driven by the GCPC officers that night, and testified that the police
vehicle was well ahead of them by the time it reached First Ave.[43]
and finally turned right when it reached Raymond K. Smith Boulevard[44].
As the police vehicle passed their car, Witness Kautter stated that he looked
at the officer in the patrol car and later identified the driver as Chapel. At
trial, it turned out that he also had met Officer Chapel previously.
During this time, it was established
that Officer Chapel was at the Northside Firehouse -- Fire 14. Independent
testimony established that Chapel, Officer Brian Reddy and GCPD Sgt. Donald
Stone arrived at Fire 14 at about 8:30 PM, and according to the statements of
several firemen and a statement made by Sgt. Stone to his Captain, GCPD Capt.
Ronald Davis, Chapel did not leave Fire 14 until 10 PM or later. At trial, Sgt.
Stone simply perjured himself and testified that Chapel left Fire 14 between
9:20 and 9:30 that night. Three of the four firemen who gave statements about
Chapel’s departure confirmed the 10PM or later departure. The District Attorney
succeeded in planting a false memory in one fireman, Firefighter David Pierce.
In his original statement, Pierce said Chapel had left at 10PM or later;
however at trial he gave a confused account about movies and when they ended,
confusing his original statement. Officer Brian Reddy simply lied about
everything, including the fact that he owned a weapon of the same type used in
the murder. Chapel himself testified that he left Fire 14 just prior to 10PM
when at 9:57 PM he received an assigned call to investigate a juvenile
disturbance at a home on Arden Drive[45]
on the other side of Buford from Gwinnco Muffler. He testified that he stopped
quickly on his way, at his gym, to pick up the day’s receipts, and arrived at
the Arden Drive address at 10:07 PM.
Chapel was arrested on the night of
April 23rd. Three days later the firefighters voluntarily gave their
statements regarding Chapel’s presence at the firehouse to their Captain. The
case against Chapel, based on hearsay evidence and questionable lineup
identification began to collapse. Two days later, on the Eve of Chapel’s
preliminary hearing, crime scene analysts were ordered by detectives to check
Chapel’s patrol car for the victim’s blood. At trial, crime scene analysts
testified that they found a small amount of blood on the raised armrest of
Chapel’s front seat. Testimony from DNA scientists from the Georgia Bureau of
Investigation (GBI) Crime Lab confirmed that the blood was from the victim,
Emogene Thompson. Much of the trial was devoted to the examination of this
evidence by the various experts from both sides.
The District Attorney claimed that
the blood evidence was transferred from the murder car to Chapel’s patrol
vehicle when her purse containing the other seven thousand dollars remaining
after the earlier theft was taken by Chapel and thrown into his patrol car.
Three years after the murder in February 1996, six months after Chapel’s trial,
the victim’s purse was found by accident by a child, residing in the trailer
next to the victim’s, in the wooded area behind the trailers. There were no
fingerprints or blood evidence found on the purse.
Chapel’s raincoat was presented to
the GBI Crime Lab after the murder, and, on July 7, 1993, Serologist Jennifer
Wilson tested the raincoat for the presence of human blood. She found several
stains that on testing proved to be blood of human origin. These she circled in
blue marking pen. None of these stains were tested for DNA evidence. On March
15, 1995 a few months before trial, Chapel’s raincoat was hopelessly
contaminated with the victim’s blood in the presence of Defense Investigator
Dennis Miller, Defense Attorney’s Johnny Moore and Elizabeth Rogan, Defense
Blood Spatter Expert Reese Smith, GBI Serologist Jennifer Wilson and GBI DNA
Expert Keith Goff. None of these potential defense witnesses were called to
testify to this incident, but both GBI witnesses Jennifer Wilson and Keith Goff
confirmed the incident. A few months before trial, at the request of the
District Attorney, GBI technician Kelly Fite, whose specialty was ballistics
and tool marks and not serology and blood spatter, marked several dozen stains
on Chapel’s raincoat and testified at trial that they were blood spatter that
he observed on July 7, 1993, the same day that Jennifer Wilson testified she
examined and tested the raincoat for human blood and marked several stains.
Either Jennifer Wilson was incompetent in determining bloodstains on garments
or Kelly Fite simply perjured himself with the full knowledge and encouragement
of the District Attorney.
On the day of closing arguments, two
of the jurors came into conflict when one of them, Daisy McAfee, accused
another, James Knowlson, of stating aloud in the presence of other jurors that
he believed that Chapel was being framed and railroaded. None of the other jurors
would admit to hearing the statement, and both were allowed to continue. The
District Attorney however was so concerned about obtaining his verdict that in
closing he launched into a most vitriolic denunciation of Chapel, accusing him
and his defense team of lying and other such scandalous behavior. All of these
charges were untrue, and at least one, ”the Testron incident” was simply a
series of lies by the District Attorney[46].
On September 7, 1995, based largely,
according to the jurors after the trial, upon Chapel’s spending after the
murder, the hearsay statements of the friends, the DNA evidence, the blood
spatters on his raincoat and the District Attorney’s closing arguments Michael Chapel was found guilty by the jury
and sentenced to two life terms without parole plus five years.
F. Overview of Post Trial Activity
There was nothing done as far as
post-conviction effort on behalf of Michael Chapel until in late 1996 when the
National Police Defense Foundation (NPDF) injected themselves into the case.
This organization and its
investigators and attorney were largely ineffectual in their efforts. The most
notable of these was the discovery in an interview with then GCPD Captain Latty
that the victim’s purse had been found the previous February and this Brady
evidence had never been turned over to the defense.
The NPDF did manage to bring about a
new trial hearing before the trial judge, Fred Bishop. As basis for a new
trial, Appellate Counsel Randy Mott cited newly discovered evidence that the
victim’s car needed a new muffler; the victim’s purse had been recovered; and a
new witness who stated he was present when the victim’s son was asked to kill
his mother. Another issue, exculpatory material not released to the defendant, consisting
of a gunpowder analysis of Chapel’s raincoat and specific “evidence” that other
officers had a motive to plant evidence that was not disclosed. The final issue
was ineffective assistance of trial counsel. Specific grounds were that counsel
had not interviewed Chapel’s alibi witnesses; that defense counsel ignored a
recommendation for a jury visit to the crime scene; that defense counsel could
have determined that the blood on Chapel’s raincoat could have been determined
to be not the victim’s; that defense counsel did not question Chapel about the
drug related problems he was having with GCPD Officer J.P. Morgan and others;
and that a defense witness, Dana Blount, had tried to tell Trial Attorney
Johnny Moore that Michael Thompson had made a statement exonerative to Chapel
in her presence.
The trial Judge denied Chapel’s
motion for a new trial, and the case was then set for appeal. On November 16, 1998,
the Supreme Court of the State of Georgia rendered a decision upholding the
decision of the trial judge denying a new trial for Chapel. The Supreme Court
found that the fact that the victim’s car needed a new muffler was meaningless.
That the victim’s purse had been recovered was given some weight; but because
Capt. Latty of the GCPD stated that the area wherein the purse was found was
thoroughly searched by the GCPD in April 1994, this issue was also dismissed.
The statement that the victim’s son had been asked to kill his mother was
adjudged as simply hearsay. The fact that the defense had not been told that
there was no gunpowder residue on Chapel’s raincoat was dismissed as
insignificant, and that other officers had a motive to frame Chapel was again
hearsay. The ineffective counsel arguments of the appellate counsel were
dismissed for the most part as strategic decision of the trial counsel, and,
the only issue that was not, Dana Blount’s account of the son’s exculpatory
statement, was appropriate, but of not such prejudicial value as to affect the
jury’s decision. In short, the Supreme Court blew away the appeal as so much
fluff, and quite rightly so.
On July 7th, 2000, a
skeleton petition for a writ of habeas corpus was filed with this court
by Michael Chapel as Petitioner, Pro se. The grounds for that petition were
cited as 1) The verdict was not supported by sufficient evidence; 2) A
conspiracy existed between certain members of the GCPD the Gwinnett County
District Attorney’s Office and a member of the GBI Crime Lab to illegally
convict Michael Chapel of this murder; 3) Newly discovered evidence; 4)
Exculpatory evidence not released to the defense; 5) Improperly admitted
evidence; 6) Evidence was improperly suppressed; 7) Ineffective assistance of
trial counsel; 8) Prosecutorial misconduct; 9) Illegal Photo lineup; and 10)
Improper relationships between the trial judge and a juror and jury conflict.
On August 9, 2000, the Respondent,
Hilton Hall, filed a “Return and Answer” to Chapel’s petition. The Respondent’s
Answer presents the Petitioner with a “catch-22” situation by simply denying
all allegations presented in the petition and stating that those issues the
Petitioner presented in his direct appeal to the Georgia Supreme Court are
precluded from re-litigation as res judicata,
and all other issues the
Petitioner are procedurally defaulted because the Petitioner did not raise them
at trial or in his appeal to the Supreme Court.
The answer and return of the Respondent in this case does not reflect the Georgia Legislature’s stated policy to move Georgia habeas corpus procedure more closely to those of the federal courts. In the first instance, federal habeas policy is clear. Habeas corpus is a civil action to which the doctrine of res judicata does not apply. While, under Federal doctrine, subsequent habeas corpus petitions containing the same grounds as the original may be dismissed without hearing, the Respondent is claiming that any grounds adjudicated in direct appeal of a criminal action should be treated as a first habeas corpus petition. In the second instance, the same argument applies to those grounds not brought at trial or in direct appeal. This policy of attempting to convert federal habeas procedures to apply to Georgia law as reflected in Respondent’s answer is clearly nowhere near federal habeas corpus policy and procedures and is in conflict with the stated policies of the Georgia Legislature.
4. Res Judicata And
Habeas corpus The Petitioner holds that there is
adequate precedent to bring each and every ground described in the skeletal
petition and described in this amended petition before this Honorable Court for
determination, and these issues will be adequately defended in this petition.
Before this however it would seem valuable to examine the entire issue of habeas
corpus in the State of Georgia.
O.C.G.A. § 9-14-40, Statement of Policy
states in part: (a) The General
Assembly finds that:
(1) Expansion
of the scope of habeas corpus in federal court by decisions of the
United States Supreme Court together with other decisions of the court
substantially curtailing the doctrine of waiver of constitutional rights by an
accused and limiting the requirement of exhaustion of state remedies to those
currently available have resulted in an increasingly large number of conviction
of the courts of this state being collaterally attacked by federal habeas
corpus based upon issues and contentions not previously presented to or
passed upon by courts of this state;
(2)
The
increased reliance upon federal courts tends to weaken state courts as
instruments for the vindication of constitutional rights with a resultant
deterioration of the federal system and federal-state relations; and
(3)
To
alleviate such problems, it is necessary that the scope of state habeas
corpus be expanded and the state doctrine of waiver of rights be modified.
If the Legislature of the State of
Georgia is attempting to state that the treatment of habeas corpus in the State of Georgia should more
nearly resemble that of the United States, then the issues are very clear.
First, under the Federal system, the
doctrine of res
judicata does not apply to habeas corpus. Mr.
Justice Brennan writing in Sanders
v. United States, 373 U.S. 1 (1963) cites what he calls “the familiar
principle” that res
judicata is inapplicable in habeas proceedings
and cites Fay
v. Noia, 372 U.S. 391, 423. He further states that “conventional notions of
finality of litigation have no place where life or liberty is at stake and
infringement of constitutional rights is alleged. And, further, the
inapplicability of res
judicata to habeas, then, is inherent in the
very role of the writ.”
Justice Brennan then goes on to describe
what he feels have been abuses of habeas petitions.
First, what might be called “shopping the
petition”:
A prisoner whose motion under ¶ 2255 will
often file another, sometimes many successive motions. We are aware that in
consequence the question whether to grant a hearing on a successive motion can
be trouble-some – particularly when the motion is prepared without the
assistance of counsel and contains matter extraneous to the prisoner’s case.
But the problem is not new, and our decisions under habeas corpus have
identified situations where denial without hearing is proper even though a
second or successive application states a claim for relief. One such situation
is that involved in Salinger
v. Loisel, supra. There a first application for habeas corpus had
been denied, after, hearing, by one District Court, and the
Page 9
Denial was affirmed by the Court of
Appeals. The prisoner then filed subsequent applications, all identical to the
first, in a different District Court. We indicated that the subsequent
applications might properly have been denied simply on the basis that the first
denial had followed a full hearing on the merits. We there announced a
governing principle; while reaffirming the inapplicability of res
judicata to habeas, we said: ”each application is to be disposed of
in the exercise of a sound judicial discretion guided and controlled by a
consideration of whatever has a rational bearing on the propriety of the
discharge sought.
A prisoner whose motion under § 2255 is
denied will often file another, sometimes many successive motions. We are aware
that in consequence the question whether to grant a hearing on a successive
motion can be trouble-some - particularly when the motion is prepared without
the assistance of counsel and contains matter extraneous to the prisoner's
case. But the problem is not new, and our decisions under habeas corpus
have identified situations where denial without hearing is proper even though a
second or successive application states a claim for relief. One such situation
is that involved in Salinger v. Loisel, supra. There, a
first application for habeas corpus had been denied, after hearing, by one
District Court, and the Page 9 denial was affirmed by the Court of Appeals. The
prisoner then filed subsequent applications, all identical to the first, in a
different District Court. We indicated that the subsequent applications might
properly have been denied simply on the basis that the first denial had
followed a full hearing on the merits. We there announced a governing
principle; while reaffirming the inapplicability of res
judicata to
habeas, we said: "each application is to be disposed of in the
exercise of a sound judicial discretion guided and controlled by a
consideration of whatever has a rational bearing on the propriety of the
discharge sought. Among the matters which may be considered, and even given
controlling weight, are . . . a prior refusal to discharge on a like
application." 265 U.S., at 231. The Court quoted approvingly from Mr.
Justice Field's opinion in Ex parte Cuddy, supra, at 66: "`The
action of the court or justice on the second application will naturally be
affected to some degree by the character of the court or officer to whom the
first application was made, and the fullness of the consideration given to
it.'" 265 U.S., at 231-232. The Petitioner's successive applications were
properly denied because he sought to retry a claim previously fully considered
and decided against him. Similarly, nothing in § 2255 requires that a
sentencing court grant a hearing on a successive motion alleging a ground for
relief already fully considered on a prior motion and decided against the
prisoner.
The
second might be called “sandbagging the petition”: Justice Brennan goes on:
Another such situation is that which was presented in Wong Doo v. United States, 265 U.S. 239. In Wong Doo the prisoner in his first application for habeas corpus tendered two grounds in support of his position. A hearing was held but the Petitioner offered no proof of his second ground, even though the return to the writ had put it in issue. Relief was denied and the denial affirmed by the Circuit Court of Appeals. Later, he filed a second application relying exclusively on the second ground. Page 10 Relief was denied. We upheld the denial: "The Petitioner had full opportunity to offer proof of . . . [the second ground] at the hearing on the first petition; and, if he was intending to rely on that ground, good faith required that he produce the proof then. To reserve the proof for use in attempting to support a later petition, if the first failed, was to make an abusive use of the writ of habeas corpus. No reason for not presenting the proof at the outset is offered. It has not been embodied in the record, but what is said of it there and in the briefs shows that it was accessible all the time." 265 U.S., at 241. Similarly, the prisoner who on a prior motion under § 2255 has deliberately withheld a ground for relief need not be heard if he asserts that ground in a successive motion; his action is inequitable - an abuse of the remedy - and the court may in its discretion deny him a hearing. The interaction of these two principles - a successive application on a ground heard and denied on a prior application, and abuse of the writ - was elaborated in Price v. Johnston, 334 U.S. 266, 287-293. The Petitioner had for the first time in his fourth application alleged the knowing use of perjured testimony by the prosecution. But the Court held that regardless of the number of prior applications, the governing principle announced in Salinger v. Loisel could not come into play because the fourth application relied on a ground not previously heard and determined. Wong Doo was distinguished on the ground that there the proof had been "accessible at all times" to the Petitioner, which demonstrated his bad faith, 334 U.S., at 289; in Price, by contrast, for aught the record disclosed Petitioner might have been justifiably ignorant of newly alleged facts or unaware of their legal significance. The case also decided an important procedural question with regard to abuse of remedy as justification for denial of a hearing, namely, that the burden is on the Government Page 11 to plead abuse of the writ. "[I]f the Government chooses not to deny the allegation [of knowing use of perjured testimony] or to question its sufficiency and desires instead to claim that the prisoner has abused the writ of habeas corpus, it rests with the Government to make that claim with clarity and particularity in its return to the order to show cause." Id., at 292. The Court reasoned that it would be unfair to compel the habeas applicant, typically unlearned in the law and unable to procure legal assistance in drafting his application, to plead an elaborate negative[47].
As in Wong Doo above, for those
issues that appellate counsel did raise, counsel offered either no or only
empty proofs that could only prejudice the defendant. Even if Respondent’s
claims that these issues were raised and adjudicated on direct appeal of a
criminal action are accepted, there is sufficient issue to show that the
grounds now brought are sufficiently different in scope than the like grounds
brought in direct appeal because of the previously unrecognized misconduct of
the State. In this case, appellate counsel proved to be both ineffective and
incompetent. Chapel’s pretrial activity and trial were pervasively tainted with
both police and prosecutorial misconduct. That appellate counsel did not
recognize this and chose to bring only tangentially related issues and not to
bring the real issues in direct appeal was testimony to this. In addition, this
misconduct of the State is sufficient in relationship to issues that were
brought in direct appeal to invalidate their adjudication in direct appeal.
Thus Petitioner brings a brand new set of grounds to this habeas corpus
action that could not have been brought before in direct appeal by reason of the
unrecognized misconduct on the part of the State.
[1] See Photo Exhibit P-05, The Buford-Sugar Hill area
[3] See Photo Exhibit P-06, Peachtree Industrial Boulevard Going North
[4] See Document Exhibit 8-01, Chief Investigator Burnettes Notes. These are included in their entirety and demonstrate that, after the coincidental contacts between Chapel and the victim were discovered, no other lines of investigation were opened, and only cursory contact with several other excellent suspects were made.
[5] See Document Exhibit 6-01, Crime Scene Report
[6] See Photo Exhibit 5-04, High velocity blood spatter on windshield of victim’s car from outside the vehicle
[7] See Ground 14, B “The Prosecution Hides Critical Photographs From The Jury”
[9] See Ground 5, B “Autopsy And Crime Scene Reports Prove Shots Fired From Inside Victim’s Car” for a discussion of this evidence.
[23] Emphasis added
[32] See Ground 9, B “Hearsay Statements Of Friends Of The Victim Were Improperly Admitted”, Testimony of Marsha Arnold
[34] Ibid, Arden Drive
[36] Ibid, Moreno St.
[40] An interesting aside is that the question posed to each of these witnesses by the District Attorney referred to the car that passed them as “another police car”.
[47] Emphasis added.
