IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

MICHAEL HAROLD CHAPEL )

GDC 845840 )

) PRISONER HABEAS CORPUS

Petitioner ) 28 U.S.C. § 2254

)

v. )

)

HUGH SMITH, Warden ) CIVIL ACTION NO.

) 1: 03-CV-2655-CAP

Georgia State Prison )

)

Respondent )

PETITION FOR A WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2254

SUPPLEMENTAL TO PETITION FILED SEPTEMBER 4, 2003

Comes now Michael H. Chapel and moves this Honorable Court to accept the documentation for the petition submitted on September 4, 2003 as required by 18 U.S.C. § 2254 (f).

Submitted by: Michael H. Chapel

845840

GSPHC01

Highway 147

Reidsville, GA 30499

This __ 8^th ___ Day of ____ October___ 2003

SECTION I -- INTRODUCTION

The United States Supreme Court has recognized that federal courts are empowered under the provisions of this 28 U.SC § 2254 to look beyond state procedural forfeiture and exhaustion where there are claims of constitutional violations[1]. The Petitioner therefore further petitions this Honorable Court to find that the Supreme Court of the State of Georgia erred in refusing to review the findings of the Tatnall County Georgia Habeas Court in denying the Ineffective Assistance of Appellate Counsel in the direct appeal for a new trial motion, Chapel v. State, supra, and in finding all other of the grounds submitted procedurally defaulted by either Gunter v. Hickman, 256 GA. 315m 347 S.E.2d 644 (1986) or Turpin v. Lipham, 270 GA. 209, 510 S.E.2d 32 (1998) and Black v. Hardin, 255 GA. 239, 339 255 GA. 754 (1985).

The Petitioner argues the Georgia Habeas Court erred in not granting the Petitioner’s claim of ineffective assistance of appellate counsel, and that this denial caused prejudice to him of constitutional dimensions by allowing that court to procedurally default all of the other of his well documented grounds[2]. The Petitioner specifically argues that after hearing from the Office of the Georgia State Attorney General who, even with the state’s immense investigative resources was unable to locate the Appellate Counsel to answer claims against the Petitioner, the state habeas court did not default the ground to the Petitioner. That ground should have been defaulted to the Petitioner if, for no other reason, because of his Sixth Amendment right to confront that witness. Instead held the activities and strategies of that counsel as not accusable due to his absence in court.

In spite of hearing about the appellate counsel’s misconduct from the testimony of a Pro Bono, local, assisting counsel, the state habeas court held his absence the fault of the Petitioner, a state prisoner acting Pro Se and held in semi-isolation with limited access to the prison law library and with telephonic communication only with his family.

The Petitioner argues that the appellate counsel’s ineffectiveness was further caused by the misconduct of the state, and this misconduct constituted an “external impediment” to having his claims brought forth in state courts in a proper manner[3], and that Appellate Counsel’s actions for trivial and tangential reasons and inaction regarding the monstrous police, prosecutorial and other misconduct issues constitute cause. The state court’s actions in refusing to hear these other claims constituted prejudice. Together they denied the State of Georgia the opportunity to correct these constitutional violations. This clearly meets the cause and prejudice standards of Townsend, thus calling for reversal.

The Petitioner states he qualifies for remedies under the provisions of 28 USC § 2254, and in particular subsections (a): He is confined illegally in violation of the Constitution of the United States and Subsection (b)(1) (B)(ii): circumstances exist that render such process ineffective to protect the rights of the applicant. Petitioner states that he has met the requirements of subsection (c), and subsection (d)both (1) and (2), and, to meet the requirements of § 2254, Subsection (f), Petitioner petitions this Honorable Court to view the evidence he has amassed to rebut the presumption of correctness in Georgia State Court proceedings.

Further, the Petitioner requests this Honorable Court to hold an evidentiary hearing under the provisions of Subsection (e)(2)(A)(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence exists, and (B) the facts underlying Petitioner’s claims are sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

The Petitioner plans to comply with the provisions of Subsection (f) with the information and attachments in this supplemental petition and with copies of the Georgia state petition that it references*, and further petitions this Honorable Court to request from the State of Georgia the official record as required in Subsection (g) of this section.

The Petitioner now brings the same grounds, with only slightly different organization and supplemented with newly realized information, before this Honorable Court.

The specific grounds the Petitioner now brings to support his contentions are as follows:

1. A Miscarriage of Justice

2. Ineffective Assistance of Appellate Counsel

3, Denial of a Speedy Trial

4. Excessive Bail Imposed

5. Newly Discovered Evidence

6. Police Misconduct

7. Prosecutorial Misconduct

8. Juror Misconduct

9. Ineffective Assistance of Trial Counsel

The issues as described in the Georgia State Habeas Corpus Petition are consistent with the issues as described in this petition. The state however did such a masterful job of covering their crimes, the absolute truth did not become crystal clear until all or most of the motives for their actions were discovered. This was a years-long, continuous process lasting even while these words were written. The Petitioner is still not sure at this point that the cover up conspiracy has been fully developed.

SECTION II -- PROCEDURAL HISTORY

The Petitioner, Michael Harold Chapel, was indicted on October 5, 1993 for the murder of Emogene Thompson on the night of April 15-16, 1993. Michael Chapel had been a highly decorated 8-½ year veteran of the Gwinnett County Police Department. He was charged with malice murder, felony murder, armed -robbery and possession of a firearm in the commission of a felony. The State sought the death penalty. Chapel had initially retained the services of Walt M Britt, a noted Gwinnett County attorney. On a complaint filed by Danny Porter, District Attorney of Gwinnett County, in October 1993, six months after the arrest, charged Britt with conflict of interest because of part time work done by Britt for the county and other jurisdictions within the county. The trial court disqualified Britt. The matter was settled by the Georgia Supreme Court in June 1994 Chapel v. State, 264 Ga. 267. Chapel was not represented until the trial court appointed Gwinnett County attorney Johnny Moore who then secured the services of Elizabeth Rogan, an attorney who, following the career moves of her husband, was then currently in Atlanta. Chapel’s trial began on August 4, 1995 (before Gwinnett County Judge Fred A. Bishop), and he was convicted on all counts on September 8, 1995. Chapel was sentenced two days later to two life terms plus five years.

STATE OF GEORGIA POST-CONVICTION HISTORY

FIRST MOTION FOR NEW TRIAL

The Petitioner, through counsel [Moore], filed a Motion for New Trial on October 3, 1995. Attorney Moore did not pursue the motion vigorously. In view of his activities during the trial, he could hardly have been expected to do so. Moore never consulted with Chapel who remained unaware of this appeal and its contents. The facts presented in this petition prove Moore was just going through the motions, perhaps only to satisfy trial critics. However, the motion did serve to establish that The Petitioner is not subject to the more restrictive requirements of AEDPA standards since Moore filed the motion in October 1995 Duncan v. Walker, 533 U.S. 167 (2001). (Incorrectly cited)

SECOND MOTION FOR NEW TRIAL

The Petitioner then moved to replace Moore as his Attorney of Record. After Judge Bishop failed to find acceptable counsel in Gwinnett County, he replaced Johnny Moore with out-of-state attorney, Randy Mott. Mott then recruited Atlanta Attorney John Pickens who rendered minor almost clerical assistance. Mott then filed a new motion, and at a hearing held on October 8, 1997 on this motion, the trial court denied the motion, and the denial was affirmed by the Georgia Supreme Court on November 16, 1998, Chapel V. State, 270 Ga. 151 (1998).

In reviewing the Prosecution’s case at trial, the Georgia Supreme Court defined 7 issues. Even though the Court was required to view these issues in a light most favorable to the decision of the jury, it must be the truth. All of the issues require some clarification.

DNA evidence showed a spot of blood found in Chapel’s patrol car matched that of the victim, Emogene Thompson (SCD, 152): The DNA evidence, though possibly flawed, showed conclusively that the blood in the patrol car was that of the victim. At trial, District Attorney Danny Porter in a question posed to the accused posited the only way the blood spot could be transferred to the middle passenger armrest of the patrol car was when he threw the purse into his vehicle after murdering Mrs. Thompson and retrieving her “bloody purse.” At the time of the trial, the victim’s purse was missing and not in evidence at the trial.

Months after the trial on March 6, 1996 a child playing in the woods behind the victim’s trailer found the missing purse buried in the woods behind her trailer (GHCP, 7-1, GHCP, 8-2). When recovered by the police, the purse was subjected to thorough testing by technicians using the most up-to-date technologies. No evidence of fingerprints or, more importantly blood or any kind was evident on or in the purse or its contents (GHCP, 7-1).

The District Attorney countered with testimony by the then Captain Latty who testified according to his statement at the time the area in question had been thoroughly searched on April 1, 1994, after Chapel had been incarcerated (GHCP, 7-1). The Supreme Court mentions only the lack of fingerprints and the search in finding lack of error by the trial court on this issue. Latty’s testimony does not mention the size of the wooded area searched, from aerial photographs that area (CG-Wooded Area) seems to consist of several acres.

Latty does mention the timeline of the events leading up to the search; and from Latty’s testimony, the search by only two police officers was conducted in the dark. According to the US Naval Observatory and confirmed by Professor D.B. Caton, Director of the Dark Sky Observatory at Appalachian State University (CD-ASUDSO-1, CD-ASUDSO-2, CD-ASUDSO-3). Sunset on that day was at 18:56 EST, and the end of civil twilight came 25 minutes later. Daylight Savings Time would not start until the next Saturday at midnight. Even before the end of civil twilight, it is very dark in thickly wooded areas, and a search of that wooded area could not have started before then.

Now with the absence of a bloody purse, the District Attorney’s argument about the origin of the blood spot in Chapel’s unit was as naked as Chapel’s argument that the blood was planted. The choice of which of these negative propositions to accept can only be decided by which is the more rational. As the evidence will confirm, the planted blood proposition is the more rational of the two.

Witnesses passing the muffler shop saw two cars in the driveway sometime between 9:30 and 10:PM): Driver-witnesses saw the victim’s car in the driveway with a police car with its blue lights on behind her. The Prosecution contended that Chapel left the firehouse between 9:20 and 9:30 and placed himself in the driveway awaiting Mrs. Thompson by 9:30. Then at 9:45 Mrs. Thompson arrived in the driveway and somehow Chapel got behind her with his blue lights on. Chapel then shot Mrs. Thompson twice in the head, stole her purse and exited the scene.

A careful analysis of all of the driver witness information, including entries in Chief Investigator Burnette’s notes, told quite a different story. At Chapel’s preliminary hearing, Chief Investigator Burnette testified that a witness told him that when he passed the driveway at 9:30 going southbound to mail his taxes, the driveway was empty. Beginning at 9:45, three separate driver witnesses stated that they saw only the victim’s car in the driveway between 9:45 and 9:57. Sometime between 9:30 and 9:45, a witness passed the scene and saw two civilian cars in the driveway with several people around the cars. The first car was apparently the victim’s and the second, a blue car that badly needed maintenance because of the exhaust smoke on PIB behind the vehicles [Flashner Report in Burnette’s Notes, 00:45, April 17, 1993]. The second civilian car was backed into the driveway so that their trunks were adjacent.

The police car with its blue lights on behind the victim’s car would not show up until about 9:57 while it was still raining very heavily. The rain then abruptly stopped, and the other blue light witnesses would then pass the driveway.

Officer [Sergeant] Stone testified that Chapel was at the fire station with him that night but left between 9:20and 9:30 PM: This was his testimony, but it contradicts what Stone told his superior GCPD Captain Davis shortly after the murder that Chapel left the fire station between 10:00 and 10:15 PM. Stone also related that Chapel left the fire station 20 minutes before he did, and telephone record evidence establishes that Stone was still at the fire station at 10:17 PM. This would have placed Chapel’s departure from the fire station as 9:57, and that coincided almost exactly with what Chapel alleged.

A witness saw Chapel driving along PIB between 9:30 and 10:00 PM: This so-called identification contradicts a later ruling that the “hearsay evidence is validated” because Chapel “was the officer seen at the muffler shop where Thompson was shot and the state was unable to locate any witnesses to provide that identification (SCD, 155).” The second part of that quote is true. The state could not find any witnesses that could place Chapel in the muffler shop or its driveway. The first part of the quote is rendered invalid by the second part. In any event, there was a witness identification of Chapel made near the crime scene, and it will be discussed below.

There was evidence that Chapel “was facing an IRS verification audit with the potential of $4,000 in additional tax liability and that he owed a friend $1,400”: This is true, but the first part was from Petitioner’s “accountant” a full time employee at Home Depot who did tax preparation only a part time. He had few stated qualifications and the District Attorney himself stated he was not qualified to testify about Chapels financial status. The audit was the type where the taxpayer had to provide documentation for every deduction he claimed. He testified that he had seen a document from IRS stating that if Chapel could provide no evidence for any his claimed deductions his liability could be $4,000. Chapel owned a small business. He was also a police officer and his wife was a waitress both of who had to furnish job-related tax-deductible materials. The notice was received just before Chapel’s arrest, and the witness did not know how successful he was in securing the necessary documentation. If the couple kept any records at all, their tax liability would diminish with each item they documented. It is not unknown for taxpayers to leave such audits with refunds.

As to the second part, a few weeks before the murder, in March, Chapel received a business loan of $1,400 to advertise his business from a friend and sometime employer. It was a handshake loan, and the funds were 14 crisp, new 100-dollar bills. This witness should have testified for the defense because the loan explained where the money Chapel spent in one hundred dollar bills came from. The money was not from a robbery.

Witnesses saw Chapel spending one hundred dollar-bills in the week after the murder: For T-shirts advertising his small business gym. Chapel was simply following through with his oral contract with his investor.

A witness saw a large sum of money in the purse of Chapel's wife: The witness was rifling Mrs. Chapel’s purse at the time she was using a payphone. She saw this and immediately returned and grabbed the purse from him. She checked the envelope she kept her waitress tips in. The money seemed all there, but there were no hundred-dollar bills in it. This witness came forward almost two years after the murder and was located by the District Attorney through the witness’s attorney.

There was a witness who said that Chapel responded to a call a little after 10:00 the night of the murder, refused to assist the complaining witness, and left, saying he had problems of his own: The witness’s wife who was also present described Chapel to the GCPD Case Chief Investigator, Jack Burnette as friendly, cooperative and helpful, saying he knew the boys involved and where they played basketball every day. He promised to stop by and talk to them the next day about their behavior. This was pure Chapel. He would handle the matter without bringing in the SWAT team.

What is significant about this evidence list is the prosecution evidence not included. For example, there is no mention of the extensive crime scene evidence collected by the crime scene technicians. There were well over 100 photographs taken of the crime scene at the muffler shop and later. These included many photos of the exterior and interior of the victim’s automobile. Only a select few of these photographs were presented to the jury, and most of these photographs were in an altered state or hidden from their immediate viewing.

These crime scene photographs prove the Prosecution presentation of how the murder was committed was a fantasy. There was absolutely no physical evidence to support the Prosecution hypothesis about how the shots that killed Mrs. Thompson were fired. The allegation of high velocity blood spatter on Chapel’s raincoat, crucial to the Prosecution’s case, was invalid. If, as the prosecution alleged, Chapel fired two shots into the head of Emogene Thompson through the open driver’s window, it was an act of pure magic to get high velocity blood spatter on his raincoat when the inside driver’s door and partially open window did not show a drop of blood (CS-Drivers Door and Window-1, CS-Drivers Door and Window-2).

There was also the considerable telephone record evidence in the form of incoming and outgoing telephone calls from and to the victim’s and Chapel’s homes, Chapel’s gym, and the Northside Precinct and Fire14. These records were subpoenaed by the District Attorney and then destroyed when they disproved the State’s case and would exonerate the Defendant. These Bell South records were not given to the defense, a pure Brady violation because they would exonerate the Defendant. Co-council Elizabeth Rogan had never seen them until the day before closing arguments when the custodian of these records testified, and the District Attorney gave her some of the outgoing phone records saying that incoming records were not available. This last was a bald face lie (TR-Powell Memo).

These records were requested to prove contacts between 3/4/93 and 3/15/93 between Chapel and Emogene Thompson. They showed only those contacts as described by Chapel. More importantly, the incoming records to the victim would have corroborated the hearsay evidence given by Delores Burel about the victim’s activities on the evening of the murder.

It is a safe bet that if those records showed the information he expected, the District Attorney would have presented them in court, as they were admissible under Rule 803(6). It is an even safer bet that they proved the victim and Delores Burel were not in telephone contact on the day of the murder. The DA and the police did not realize this at first, and when it was realized the records would destroy all of the hearsay testimony, the records had to be destroyed to preserve the Prosecution’s case. The destroyed records would have also proved the same regarding the testimony of the victim’s son, Michael Thompson and about his activities on the night of the murder.

Thus the hearsay evidence of these two hearsay witnesses would lack “the particularized guarantees of trustworthiness” as required by OCGA § 24-3-1(b)(1) and Rule 803 Hearsay Exceptions and should never have been admitted. The hearsay testimony of the other two friends of the victim then also became suspect because no one really knew who said what to whom, and information attributed to the victim may well have originated with one of the others.

STATE OF GEORGIA HABEAS CORPUS PETITION

The Petitioner then filed a Writ of Habeas Corpus in Tattnall County Georgia, Habeas Corpus-00-HC-45 in which he alleged 16 grounds but the court then redefined as 13 grounds. The only ground litigated was that of ineffective assistance of appellate counsel, and it was denied. All of the remaining grounds were also denied as procedurally barred by either default for not raising in direct, Black v. Hardin, 255 Ga. 239 or the re-litigation bar, Gunter v. Hickman, 256 Ga. 315.

THE GEORGIA SUPREME COURT HABEAS DECISION

On September 18, 2002, the Georgia Supreme Court denied Chapel’s probable cause appeal from that decision, Supreme Court of Georgia, Case Number S02H0028 (September 18, 2002)[4].

SECTION III – BACKGROUND

A limited description of the crime and consequences for Gwinnett County Police Officer Michael Chapel in this case would not give the reviewer a complete picture of what the atmosphere was like in the Gwinnett County Police Department (GCPD) and other County agencies, especially that of the District Attorney, at the time of this crime. Facts regarding this problem are included so that this Court may understand the background and possible reasons for some of the police and prosecutorial misconduct in the Petitioner’s case.

On the night of Thursday, April 15, 1993, North Georgia experienced one of the worst storms of the year on a northwest track through Atlanta and the smaller communities of Sugar Hill and Buford and cities between (CS-Atlanta Area). The storm included extremely heavy rains from about 8:30 until just after 2 AM on the 16^th, and was preceded and followed by several hours of heavy winds.

Just after 8 AM, Emogene Thompson was found dead of two gunshot wounds to the head in her automobile in the driveway of the Gwinnco Muffler Shop (CS-Gwinnco Muffler Shop) on Peachtree Industrial Boulevard (PIB), just south of Highway 20 in Sugar Hill (CS-Buford Sugar Hill Area). The shop owner and his first customer discovered the body and called 911.

First to answer the emergency call were firemen and paramedics who immediately pronounced Mrs. Thompson dead. Next to arrive were Sugar Hill City Marshall Robertson and just behind him, GCPD Officer Beyers who taped off the scene. Crime scene technicians (CST) Mary Ann White and Judy Graham then arrived and took a short video of the shop and of the victim’s car and 34-35mm color photographs (CS-Negatives) and 7 Polaroid photographs (CS-Polaroids-1 and CS-Polaroids-2) all from outside the vehicle. Photographs of the interior of the vehicle were taken through the windows.

Medical Examiner Technician Hal Bennett then arrived to remove the body. Although it is highly questionable because of the nature of these photographs, Bennett is purported by the GCPD and the District Attorney to have taken 2 additional 35mm photographs (ME-Negatives). A wrecker arrived and removed the victim’s car to a garage area behind police headquarters in Lawrenceville. The CSTs followed and then examined and took an additional 35 35mm photographs of the interior of the vehicle.

Within minutes of the arrival of the first two officers, the victim’s son, Michael Thompson, arrived on the scene after being notified by Virginia Chance, his mother’s neighbor, co-worker and friend. On her way home from work, Virginia saw his mother’s car in the shop driveway with a flat tire.

After a few minutes of hysterics, Thompson began a story about some $14,000 in one hundred dollar bills that his mother kept secreted in their home. Michael admitted to his mother stealing a few hundred dollars from the cache; but on or about April 1^st, Emogene discovered that half of the money, $7,000 was missing. Michael denied taking it, and on April 3^rd, Emogene called 911, and GCPD Officer Michael Chapel responded. Chapel immediately determined that there had not been a burglary, and told Emogene that Michael, whom he knew by reputation, was probably the thief. Emogene refused to file a complaint against her son. Michael Thompson continued on about many communications about hundred dollar bills, bank wrappers and meetings planned by Chapel and his mother.

As police officers continued to arrive on the scene, each seemingly higher in rank, they all remained bunched at the foot of the driveway talking about the victim and Chapel (CS-Vehicle From Front). They were all fascinated by Michael Thompson’s story about the relationship of the victim and Officer Michael Chapel. Chapel, a highly decorated 8-½ year veteran of the GCPD and one of, if not the department’s “top cop”. Importantly, not one of these officers would examine the murder vehicle even cursorily. On arrival, GCPD Lieutenant John Latty of CID took charge of the investigation and named Sergeant Steve Cline as his assistant and Jack Burnette as Chief Investigator. Investigator Burnette alone would claim he approached Emogene’s vehicle, but the few facts he related came directly from CST Judy Graham

Still at the scene with the vehicle gone, information began coming in to these police officers and DA investigators about 3 friends of the victim who had information about her activities during the past two weeks. Virginia Chance, Marsha Smith and Delores Burel all gave statements that involved Chapel with Emogene Thompson during the period 4/3/93-4/15/93.

Delores Burel claimed special knowledge because she was on the phone 5 or 6 times a day with the victim and Emogene confided in her especially. She would state that Chapel and Mrs. Thompson were to have a meeting on the night of her murder.

What none of these people knew at this time, including the detectives, was that on leaving the Thompson home on the afternoon of April 3^rd, Chapel described the call as a domestic dispute in his log. Chapel’s supervisor, Sgt Donald Stone, was waiting outside, and Chapel described the incident to Stone. Stone advised Chapel to write a report, and Chapel started to, but became involved in higher priority calls. The incomplete report was discovered in Chapel’s briefcase at the time of his arrest 7 days later (TR, 3907).

The next day, Emogene called the Northside precinct and asked Sgt. Winderweedle for Chapel. Chapel was not yet on duty, and when he arrived, he noted Winderweedle’s note to him and tried without success to telephone the victim. Later, after a traffic stop near the victim’s home, Chapel stopped and chatted with Emogene on her front porch for less than five minutes. Emogene begged Chapel for another way to force Michael to return the money. Chapel responded with a stratagem with which he was very successful. He called it “Running the Boo”. He told her to “bluff the boy”. To make up things as she went along. To pretend that she was working with Chapel, and that Chapel had already found some of the bills and bank wrappers at a crack house. Tell him that he, Chapel, was already working on getting a warrant for Michael’s arrest. He could not do more unless Emogene filed a complaint. An older woman, under heavy stress with limited education and life experience, it is impossible to know what Emogene understood about Chapel’s suggestions in the brief, few minutes of their conversation that day but it apparently started a torrent of gossip among the friends, especially Delores Burel.

A few days later, on the 7^th, Chapel stopped at the mall for his meal break. He saw Michael Thompson taking a cigarette break outside of the Subway Sandwich Shop where he was employed. Chapel walked directly to Thompson and asked him if he had returned his mother’s money. When Thompson said the money was still missing, and he did not take it, Chapel threatened him with arrest and told him of all the dire things that would happen in prison. Chapel had used this technique successfully many times, even with the daughter of one of Emogene’s friends – Marsha Smith, but this time Thompson simply stared at Chapel and said nothing. Chapel felt that he had now done everything he could and walked on to the restaurant for his evening meal.

Returning now to the 16^th, that first evening of the police investigation of the murder, and for the rest of the week the GCPD ran roadblocks in front of the muffler shop on PIB. Uniformed Officers, including Mike Chapel when on duty, would stop drivers and ask whether they saw anything unusual in the muffler shop driveway between 8 and 10 PM. Those who said they saw something were ushered to waiting detectives at the top of the shop’s steep driveway. It quickly became clear that there had been police activity in the driveway on the night of the 15^th.

From information that would become available to the GCPD, the following set of events occurred in the driveway. First a police vehicle had been seen monitoring traffic between 8:45 and 9:30. At 9:30, the police vehicle had departed the driveway. Then sometime before 9:45, two civilian vehicles were seen in the driveway with 3 or 4 people around them. Then, between 9:45 and 9:57 or 9:58 only one civilian vehicle was observed in the driveway. Finally at approximately 10 PM or a few minutes earlier, a police vehicle appeared in the driveway behind the civilian vehicle and turned its blue lights on briefly. The scene resembled a traffic stop.

The most important piece of information about the two civilian vehicles dropping the victim’s car in the driveway at what must have been about 9:35 or 9:40, the Flashner report, remained buried in Chief Inspector Burnette’s notes and would never see the light of day.

GCPD investigators immediately became suspicious of Chapel when they learned of the victim’s relationship with him from the son. The gossip of Emogene’s friends about the stolen money, the plans, the meeting and the fact that Mrs. Thompson was reputed to be carrying the remaining $7,000 with her reinforced their suspicions. Now finding out about police activity in the driveway that night and a police car sitting behind the victim’s in that driveway was all they required to convince them. While sitting in a darkened police car in the headquarters parking lot just before midnight, the investigation team decided that Officer Michael Chapel had murdered Emogene Thompson. No further efforts now would be expended to investigate others who might be connected to the murder.

The team was ecstatic. They had cracked the case in fewer than 18 hours. They broke up, and Chief Investigator Burnette returned to his office. It was then, at 12:49 AM (00:41) he would receive a phone call from a driver-witness that he would memorialize in his notes (BN-Flashner Phone Call 041793), but on which he would never follow-up. This witness would have cleared Michael Chapel, but he was never interviewed or called to testify. Investigators continued to take statements from driver witnesses.

On April 23^rd, the District Attorney called GCPD Captain Ron Davis and reported that two driver-witnesses passed the driveway that night while a police car was in the driveway with another vehicle. On a height about two miles south of the muffler shop, they saw blue-lights come on (DW-Blue lights Come On). The blue lights were off when they reached the driveway, but the officer was outside of his car walking toward or leaning into the other vehicle in the driveway (DW-Omodt-Kautter Pass Driveway). Further, a police car then pulled up behind them about 500 feet north of the driveway where PIB began a transition from two-to-four-lanes (DW-Second Police Car Catches Omodt). When the transition was complete, the police car passed them, and Omodt’s passenger, Karl Kautter, observed the passing officer and thought he might be able to identify him.

Officers immediately went to the work location of these witnesses and took their statements. The police came back later with a what was purported to be a hurriedly composed, highly suggestive photo lineup of 7 police officers put together by GCPD Investigator Greg Thompson (LU-Original). The eyewitness, Karl Kautter first observed that all of the officers in the photos had mustaches, and his first reaction was to state: “First of all the officer did not have a mustache.” He was still pressed by the investigators to make the identification. Kautter then first identified another of the officers in the lineup. Then possibly because there was no reaction from the investigators, he then said he was too thin or too tall. The eyewitness then identified Chapel saying something like: “If I have to choose, I would say number 3” – Chapel.”

At the end of his shift at 11 PM that evening, Chapel was told to report to headquarters in Lawrenceville where he was disarmed, interrogated for several hours, arrested and dressed in waiting jail clothing. Chapel explained his three meetings with the Thompson family, and told his interrogators that he was at Fire-14, next to the precinct during the period 8:30 to 10 PM watching broadcast TV with reports on the storm on a crawl at the bottom of the screen with Officer Brian Reddy, Sergeant Stone and several firemen. Stone would say that Chapel was with them, and left some 20 minutes before he, Stone, left the firehouse, but now chapel was told that Reddy had been interviewed that day, and he said that Chapel was not at Fire-14 with them (p. 64). As Chapel was dressing in jail clothing, Burnette left the room for a minute and when he returned he said Brian Reddy had recanted his statement. and Officer Chapel was with them on the night of the murder during that time period (p.99). Lt. Latty responded by saying: “Well its too late now.”

There were 100 plus pages in the interrogation transcript. Of these, interrogators confronting Chapel with Reddy’s lie took up 34. The remainder of the interrogation was also in much the same vain, with Chapel being confronted with what were hearsay statements of the victim’s son and her friends and other just plain erroneous or made up evidence. The jury would watch this tape at trial.

Three days later, on the 27^th, word of Chapel’s arrest for the murder and the time frame reached Fire-14. At the request of their captain, four firefighters gave written statements wherein they said that Chapel was with them at the firehouse from about 8:30 to 10 PM. Their captain passed the statements to the police.

After mulling it over for a day and with Chapel’s preliminary hearing due the next day, a case meeting was called for 9:30 AM of the 29^th (BN-Image021 Check On Off Line). Attending this meeting were District Attorney Danny Porter and two of his investigators, Glen Teatino and David Baker; Deputy Chief of Police Carl White; GCPD Captains Davis and McKelvey; GCPD Lieutenants Latty, Powell and Reonis; GCPD Sergeant Steve Cline and GCPD Investigators Greg Thompson and case Chief Investigator Jack Burnette.

Conspicuous by his absence from this meeting was GCPD Chief of Police Wayne Bolden. Chief Bolden had been appointed from outside the Gwinnett County police community. He had previously been Chief of Police in Fort Lauderdale, Florida until taking the same job with Gwinnett County in 1989. Before he could get his feet planted in the job, Bolden was caught up in a case involving Gwinnett County businessman Robert Wall.

The planning for a large county-federal raid on Wall’s operations in Gwinnett County was coincident with Bolden’s arrival on the job. On February 21, 1990, 71 federal agents and Gwinnett County police carried out the raid on a suspected drug operation, and it was a disaster (BW-Career In Tatters 2 years Later). The raiders found nothing, and 10 days later, a Gwinnett County judge ruled the raid illegal. Robert Wall then sued the Gwinnett County for 20 million dollars, and his suit was settled the day before Chapel’s trial began on August 4, 1995.

The architect and chief proponent of the raid was GCPD Lieutenant John Latty, now in charge of the Chapel murder case. After the Robert Wall raid, Lt. Latty bragged that the raiders knew there was no probable cause for the raid, but they used an almost two-year-old misdemeanor citation to try to get what he termed bigger things (BW-Bankruptcy 2 Years Later). Lt. Latty was banished to a night job in a distant precinct, but he would gradually work his way back into CID in time for the Chapel case.

Chief Bolden was probably least responsible for the disaster, but apparently still not aware of Lt. Latty’s ambitious nature, magnanimously took the responsibility for what his officers had done. For Bolden, everything was downhill from there. The entire department worked against him. Deputy Chief Carl White, would act as Chief Pro Tempore. On August 3, 1995 the day before Chapel’s trial began, Gwinnett County settled the Wall case (BW-Mistake Costs Gwinnett $10 Million) for half of what Wall had demanded, 9.8 million dollars (BW-Settlement 9.8 Million). After Chapel’s trial, Bolden would resign (BW-Bolden Resigns After Settlement), and Deputy Chief Carl White, who was at the meeting, was named his successor.

The case meeting of the 29th attendees then for the first time reviewed their evidence against Chapel:

First: they had Emogene’s body, her vehicle and photographs of the crime scene, but the medical examiner’s autopsy conclusions yet to be carefully examined, and apparently no one would view the crime scene photographs until Chapel’s trial 2 ½ years later.

Second: they had the statement of Emogene’s son, but everything he said except for his contacts with Chapel on the 3^rd and 7^th was hearsay.

Third: they had statements from drivers that passed the muffler shop between 8:45 and 10:15 PM on the night of the murder, but these were unorganized and lacked any analysis that would take into consideration the weather and the blue-light activity. Ronald Flashner, the important witness that called Chief Investigator Burnette just after midnight on the night of April 16-17 and memorialized in his notes (BN-Flashner Report), was ignored and never would be mentioned again.

Fourth: they had Chapel’s admission of contact with both Emogene and Michael Thompson on the 3^rd, his response to Emogene’s telephone call on the 4^th and the accidental meeting with Michael on the 7^th.

Fifth: they had the statements of Emogene’s friends, but that was entirely hearsay.

Finally: without even commenting on the photo-lineup construction problems, they had Eyewitness Karl Kautter’s very tentative, second choice eyewitness guess-identification of Chapel as the officer in the police car that passed he and Omodt just seconds after they passed the Gwinnco Driveway on the night of the murder.

The reason for the exclusion of Chief Bolden from the meeting of the 29^th was now apparent. Those attending the meeting were all certain that Chapel was guilty of Emogene’s murder; and given time they could find the evidence. However, Chief Bolden was still in such hot water because of the Wall case, he likely would have demanded that the charges against Chapel be dropped with so little and such shaky evidence.

The last thing Chief Bolden wanted was another Wall case on his hands. The others also knew they needed something more incriminating if they were to convict Chapel of Emogene Thompson’s murder. In Chief Investigator Burnette’s notes on this meeting there were two “action items”. The first was for Captain Davis and DA Investigator Glen Teatino to get a list of numbers at Fire 14 for subpoenas, and the second action item is a very cryptic instruction for “Steve [Cline] [to] check on off line” (BN-Case Meeting 042993).

On that afternoon, the 29^th, Sergeant Steve Cline gave instructions to crime scene technicians to search Officer Chapel’s Unit 197 to find a receipt from the Sunnyside Car Wash, a strange request since the list of exhibits showed that that document was already in their possession, and to “luminol” the front seat of Chapel’s unit. Luminol is a presumptive chemical test for human blood. The technicians of course could not find the Sunnyside Car Wash receipt, but the result of their luminol testing showed a spot of blood in the most unlikely part of the police unit. The spot was found on top of the passenger armrest (CU-Passenger Armrest) that was always kept in the “up” position (CU-Armrest Up) because it interfered with the operation of communications equipment (CU-Armrest Down). Additionally, in the “down” position the armrest interfered with access to his weapon, Chapel was right-handed, and his “pursuit pack”, kept on the passenger seat. Georgia Bureau of Investigation (GBI) Crime Lab DNA testing would show that the DNA in the blood spot in Chapel’s unit matched that of Emogene Thompson.

IV PRELIMINARY HEARING

At the preliminary hearing the next day the following information was brought before the court by Chief Investigator Jack Burnette:

· Emogene Thompson’s body was found in her automobile in the driveway of the Gwinnco Muffler Shop about 8:15 AM on the morning of April 16, 1993, dead of two gunshot wounds to the head.

· The victim’s son, Michael, last saw his mother alive at 8:30 PM the previous evening after they had dinner at one of the area Waffle Houses.

· Two witnesses saw the victim leave her residence for work at her routine time of 9:50 PM.

· The victim’s residence was 2.1 miles from the Gwinnco Muffler Shop.

· Emogene Thompson had also been the victim of a burglary when half of $14,000, hidden in her trailer home went missing.

· Several friends of the victim told a story of her relationship with the officer that answered the burglary call who they claimed was assisting Mrs. Thompson in retrieving the missing money. One or more of these friends also stated that Mrs. Thompson carried the money remaining after the burglary in a large purse that she kept with her.

· A driver-witness had passed the muffler shop at 9:30 PM, on his way to post his tax return in Norcross, and the driveway was empty. On returning between 10 and 10:30 PM, he noted a brown car with a flat tire and partially opened window in the shop driveway.

· Several witnesses had seen a police car in a monitoring position in the shop driveway between

· 8:45 and 9:30 PM.

· One driver-witness stated that she saw some sort of large, dark-colored car that might have been a law enforcement vehicle in the driveway at 9:45 PM.

· One driver-witness stated that he saw a traffic stop with both cars in the shop driveway and the police car’s blue lights on between 9:50 and 9:55 PM.

· Two additional driver-witnesses [Omodt and Kautter] in the same car saw an officer in rain gear outside his vehicle next to what must have been the victim’s at about 9:45 PM (DW-Omodt-Kautter Pass Driveway).

· The same witnesses almost immediately then saw a police car behind them (DW-Second Police Car Catches Omodt). The police car then passed them (DW-Passing Completed) before the “road that goes to Petro Lane” [At Trial, District Attorney Porter himself would identify this road as Roosevelt Circle before Georgia 20 (DW-GHCP Photo Exhibit P-06). The Roosevelt Circle intersection is just behind the leaning pine tree.

· These witnesses did not state that they had the police vehicle in sight from the driveway until it pulled behind them [This would have been impossible. Woods on north side of the driveway blocked sight access (CS-Gwinnco Muffler Shop and Environs) before PIB reached the transition].

· As the police car passed these witnesses, the passenger stated that he looked at the officer and several days later identified Officer Michael Chapel from a photo-lineup (LU-Original) as the officer that passed them.

· Other witnesses saw the victim’s car alone in the driveway at 10:30 PM or later.

· Two “ear” witnesses claimed to have heard two gunshots coming from that area between 9 and 10 PM that night (GHCP, 5-38).

· Officer Michael Chapel was unable to account for his time between 9 and 10 PM on the night of the murder [?]. At 9:56 PM Chapel was dispatched to a call on Arden Drive on the other side of Buford.

· In the days following the murder, Officer Chapel paid for some advertising T-shirts for his business with six new one hundred dollar bills. He paid for a car wash with a one hundred dollar bill, and he had helped to raise something just over $200 for a friend of his wife and was rumored to have paid some utility bills.

· At the very end of his interrogation Officer Chapel became confused and stated that he left Fire 14 at 9:30 PM, but otherwise he always maintained that he did not leave the firehouse until he received the assignment to go to Arden Drive at 9:56 (records establish the time as 9:57).

· Other information about an automatic rifle and equipment to build a silencer were found in Chapel’s trunk after his arrest. (Remember Chapel was in a leading position on the county’s SWAT team, and SWAT was always experimenting with weapons.)

· Other data from the crime scene technicians about the flat tire on the victim’s car and the projectiles recovered was testified to, as well as the blood spot in Chapel’s unit found by crime scene technicians in the luminol test of the previous night. That the blood was to be tested for DNA by the GBI was explained.

For the defense:

· Attorney Walt Britt cross-examined Investigator Burnette but the information was all so vaguely defined, all Britt could do is get an admission from Burnette that much of what Chapel did or did not do would be considered normal and routine for his job.

· Eren Chapel, Officer Chapel’s wife, adequately explained the family’s finances, including a business loan of some $1,600 in new one hundred dollar bills from a friend and sometime employer of Officer Chapel the previous month.

Officer Chapel was bound over for trial on the charge of murdering Emogene Thompson largely on the basis of the district attorney’s promises of DNA and other new evidence. This was essentially the end of the investigation of the murder. During the next two and one-half years the Gwinnett County police and district attorney investigators combed through Georgia’s criminal element both inside and outside of jails and prisons for any dirt they could find about Chapel. With this they were unsuccessful.

The only “new evidence uncovered” against Chapel by the prosecution would come in January of 1995, seven months before Chapel’s trial in August and September of that year. The district attorney would obtain a statement from Kendon Curtis, a questionable witness who described himself as at the time as owning a tree trimming business and as a manager of a male review (read stripper) dance group. In the week after the murder, the witness stated that he saw one hundred dollar bills in an envelope in Eren Chapel’s purse while he was apparently rifling it when she left it unattended briefly. Mrs. Chapel would explain the envelope held her tips as a waitress, and she did open her purse when she saw it being rifled by the witness, but there were no one hundred dollar bills in it.

This then, two and one-half years later was the evidence that the District Attorney had to work with when he started to prepare the “open and shut” case for trial. The most important piece of evidence, the crime scene vehicle, had been inexplicably returned to the victim’s son within weeks after the preliminary hearing. If he did not yet know about the police treatment of the photographic evidence, Mr. Porter must then have decided he had to support the illegal police evidence alterations at trial. Several of the most important photographs were omitted from presentation at trial. Other crime scene photographs were intentionally misidentified at trial in an attempt to lay a false foundation for his raincoat “blood spatter” arguments, and still others were hidden from view of the jury by illegal tactics of the prosecution.

At this time, Danny Porter suddenly realized he had one more “problem”. On leaving Fire-14 a few minutes before 10 PM, Chapel had answered an assigned call on the other side of Buford from the crime scene at 10:07, and this time was verified by the householders. Porter had been OK with the approximate time of 10 PM for the blue-light activity in the muffler shop driveway as late as the hearings of July 10, 1995, only a few weeks before the trial. Now however, he had to get several witnesses to change their testimony to support an earlier time for the blue-lights. This he managed, but not well, and like the crime scene photographs, several driver witnesses were not called to testify.

There were a number of other “problems” the District Attorney had to fix, the most important of which were telephone records that he himself subpoenaed and gave to the police for organization. When he discovered that use of these records would exonerate the Defendant, Porter saw to it they were destroyed before trial.

SECTION V -- GROUNDS

INTRODUCTION

There are several recurring themes that constantly bubble to the top in the Michael Chapel murder case:

First: There was the complication of the Robert Wall case (RW-Bankruptcy 2 Years Later), and its effect on the career of the newly appointed Chief of Police from outside the GCPD, and the Chapel case. Wall was a Gwinnett County businessman that GCPD CID head, Lieutenant John Latty was certain was dealing in drugs. The joint Federal and Gwinnett County task force that raided Wall’s home and businesses ruined Wall personally and professionally. Ten days after the raid, a Gwinnett County Superior Court ruled the raid illegal, and Wall then sued the county for 20 million dollars. The raid netted Lt. Latty a slap on the wrist with a transfer to a night job in a distant precinct from which he quickly recovered. The consequences ruined the newly appointed Chief of Police Bolden and left him as an emasculated figurehead for the department unable to adequately supervise the activities of his officers. The Wall fiasco was always in the minds of the police and district attorney, and the precipitant arrest of Chapel for the murder of Emogene Thompson too closely resembled the circumstances of the Wall debacle. Thus, in the minds of the police, the district attorney and the rest of Gwinnett County government, Chapel had to be convicted of the murder. To further strengthen this contention, Gwinnett County settled the Robert Wall lawsuit on August 3, 1995, the day before Chapel’s trial began for almost half the 20 million dollars demanded, 9.8 million (BW-Wall Settles Suit For 9.8 million). Finally the beleaguered Chief of Police Wayne Bolden resigned within two weeks of the verdict in Chapel’s trial (BW-Bolden Resigns After Settlement). Deputy Chief Carl White was named Bolden’s successor.

Second: With Officer’s Chapel’s exemplary record and status in the community, the district attorney and the police resorted to circulating baseless rumors about Chapel being involved in two unsolved crimes in the area without ever presenting a shred of evidence to support these allegations. After the trial, a press release was even issued to that extent, again without any evidence at all, to make it easier for a gullible public to swallow the conviction (AJC-Unsolved Crimes[5]). Chapel was investigated and cleared in the Longhorn robbery, and the owner was the friend who loaned Chapel the $1,400 for advertising.

Third: With insufficient evidence to convict Chapel, the Gwinnett police resorted to the manufacture of evidence. These included placing a spot of Emogene Thompson’s blood in Chapel’s police vehicle, alterations of some of the crime scene photographs and the Prosecution’s attempt to deliberately misidentify others. These police officers and prosecutors willingly performed these acts without a twinge of conscience or any consideration of their own honor. Every one of these officers at least once swore a solemn oath to protect and defend the Constitution of the United States. That oath obviously meant nothing to them.

Fourth: After studying these officers and prosecutors for years now, their individual trademarks become apparent. For example, GCPD Lieutenant John Latty, later to become GCPD Colonel John Latty, always included one legitimate objective to cover his mischief. In the Robert Wall raid it was a months-old forgotten misdemeanor complaint, and in Chapel’s case the blood search of Chapel’s unit was paired with a search for a document already in police hands.

Fifth: Even after testimony began, District Attorney Danny Porter produced additional blood spatter evidence when a juror destroyed his first attempt to lay a foundation for high velocity blood spatter on Chapel’s raincoat. Danny Porter has a ruthless charm that could confuse juries; and pressure prosecution witnesses before and during trial to get the testimony he wanted from them. In Chapel’s case, he even interviewed defense witnesses with the view to altering their testimony, and, in at least one instance, the district attorney was successful. Porter’s trial cross-examination (and probably pre-trial interview) technique was to get defense witnesses to alter their testimony only minutely, and then extract a response like “Anything is possible.” Later he would proclaim to the jury that the witness’s testimony was flawed and the witness recanted his sworn testimony. This district attorney, his deputy prosecutors and the other officials that would do their bidding also took at least one solemn oath to protect and defend the Constitution of the United States.

Sixth: The District Attorney saw blood spatter on Chapel’s raincoat to be the lynchpin of the Prosecution’s case, but like the “bloody shorts” in Miller Porter was equally wrong and misleading about Chapel’s “bloody raincoat”. He knew from the crime scene evidence it was impossible for the victim’s blood to be on the raincoat. Porter alleged Chapel shot Emogene Thompson twice through the head through the partially open driver’s window in her vehicle (CS-Shot 1 Image, CS-Shot 2 Image). The only problem with that theory is the absence of blood on the driver’s door and window (CS-Drivers Door and Window-1, CS-Drivers Door and Window-2). There was however blood spatter (BS), not high velocity HVBS), on the passenger door and window, and he selected two photographs of the passenger door and misidentified them in the trial index as their being of the driver’s door (TR-States Exhibits-1-32), and presented those photographs as States Exhibits 17 and 18. This deception failed during CST Judy Graham’s testimony on the 22^nd because of a remark by an unsuspecting juror who could read the legend on the photograph at a distance said aloud “passenger door”. This innocent remark destroyed the Prosecution’s attempt to lay a foundation for the spots on Chapel’s raincoat to be high velocity blood spatter.

Porter then had to rely for a foundation HVBS analyses performed after August 22^nd by Medical Examiner Dr. Brian Frist and GBI bullet and tool mark specialist Kelly Fite. Neither had seen the crime scene, and both relied for their analysis on the already discredited crime scene photographs.

If this were not enough, any probative value of the raincoat was completely destroyed when it was contaminated by the victim’s blood a few months before the trial during an incident at the GBI Crime Lab (GBI-Victims Sweater On Table and GBI-Chapel’s Raincoat On Table). The incident was fully observed by six credible witnesses -- two GBI scientists, Chapel’s two attorneys, his investigator and a potential blood spatter expert witness. Lead defense attorney, Johnny Moore called none of these witnesses to testify for the defense at trial. In spite of all, Porter managed to get the garment admitted, and with a triumphant flourish, waved the “bloody raincoat” at the jury like captured colors and draped it on an easel immediately in front of the jury box.

Seventh: Chapel’s appointed counsel, Johnny Moore, who was being paid by the Gwinnett County, allowed himself to be recruited and would perform many instances of behavior that defies description in support of the Prosecution’s case. Ineffective assistance of counsel does not begin to describe Moore’s activities. He seemed to object only when Porter was in danger of committing reversible error. He was grossly ineffective, and on at least one occasion introduced into evidence derogative testimony to support the rumors about Chapel they themselves had started. If the Prosecution had attempted to do this, it would have been grounds for an immediate mistrial. So Johnny Moore obliged his old friend and former student from the DA’ office, Danny Porter by doing it for him.

Finally, because of the problems with driver-witnesses who passed the Gwinnco Muffler Shop between 8:45 and 10:15 PM and later on the night of the murder, Porter presented only selected testimony of these witnesses in an unorganized, haphazard fashion to confuse the jury about the timeline. The District Attorney also manipulated the testimony of at least 4 of these witnesses to support his case against Chapel. The District Attorney persuaded the jury into melding two separate sets of sightings of a police car in the muffler shop driveway into one, and then to miraculously have that same police car appear behind the car of two of the witnesses 500 feet north of the driveway while traveling 45 miles per hour (DW-Second Police Car Catches Omodt).

GROUND 1 – A MISCARRIAGE OF JUSTICE

The Petitioner argues that he is a victim of a miscarriage of justice since the day of his arrest; and each day that he is incarcerated for this crime, he is further victimized. The totality of the evidence presented in the remaining grounds, until now never examined and litigated in a court of law, proves his conviction for these crimes resulted only from illegal acts committed by the State. When the scales fall from the eyes, the thin veneer of legality vanishes and the enormous crime committed in the name of the people of the State of Georgia is exposed in all its corruption and brutality.

GROUND 2 – INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

Appellate Counsel Randy Mott with some minor assistance from Atlanta attorney John Pickens presented Chapel’s second attempt to secure a new trial. At a hearing on October 8, 1997, the trial court denied the motion, and the decision, effectively Chapel’s direct appeal, was affirmed by the Georgia Supreme Court on November 16, 1998 CHAPEL v. STATE, 270 Ga. 151 (1998).

The Petitioner argues the Georgia State Habeas Court erred in it rulings[6] that grounds other than this claim could not be heard by the courts due to procedural default. This resulted in a violation of those rights guaranteed the Petitioner under the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States. Appellate counsel’s actions in post conviction proceedings met and exceeded the standards for ineffectiveness set in Strickland[7], and not one but all of Townsend’s[8] standards are met. Appellate counsel’s actions created such prejudice before the court the Petitioner has yet to obtain a fair hearing of his claims to prevent a miscarriage of justice[9].http://www.law.cornell.edu/constitution/constitution.table.html

The Petitioner argues that the state habeas judge abused his discretion by holding that the absence of the appellate counsel at the hearing the fault of the Petitioner[10] even after learning the State Attorney General with all his resources was also unable to locate appellate counsel[11].

The Habeas Court rationalized the appellate counsel’s choice of grounds were “strategic”, but the record reflects a lack of even basic skills being brought to bear in the Petitioner’s defense resulting in constitutional error in his treatment of the claims other than this one. Like a loving mother making excuses for her delinquent child, he commented irrationally and inappropriately on these other grounds. If he was not to rule on the grounds, he should have remained silent about them instead of attempting to trivialize their importance. Nevertheless, that court has now signaled his intention that, were he to adjudicate these grounds, he would deny Chapel on them as well.

Crucial to understanding the hearing of the Habeas Court on this issue was the absence of Attorney Randy Mott. Chapel, because of his incarceration, could not find this witness, and, with all the resources of the State of Georgia, the Attorney General of this state could not find Mott either. Mott, a Washington, DC environmental lawyer at the time of his representation of Chapel was undergoing a personal, professional and financial crisis brought on by a very messy divorce. The Habeas Court assumed, since he was operating under the aegis of the National Police Defense Foundation (NPDF), he was employed by that organization (HC-TR, 7). This was not true. The NPDF in total contributed only $200 or $300 to Chapel’s efforts, and Mott depended upon the limited resources of Chapel’s family for funds to try and pick up the pieces of his ruined career. NDPF Chief Investigator Boris Korczak operated in Chapel’s case under the same conditions as Mott. Korczak was present at the hearing and testified to Mott’s circumstances and shortcomings at the time he, Mott, represented Chapel. Atlanta attorney John Pickens testified for the State testified he worked pro bono as Mott’s local attorney and had a very limited almost clerical role in Chapel’s case.

Besides having violated Chapel’s Sixth Amendment right to adequate counsel, Mott’s absence at the habeas hearing denied Chapel an additional Sixth Amendment right, that of his right to confront this witness. The NPDF team spent only limited time in the Atlanta area. Their efforts were concentrated on an attempt to break open a story of drug activity in Gwinnett County. This would have brought them the national attention they sought, and would have resuscitated Mott’s career. This strategy was apparent from Mott’s choice of issues and witnesses, and those choices did little or nothing to assist Chapel in his efforts to free himself from his illegal incarceration. Chapel’s inability to confront Mott under-oath, deprived Chapel of a defense on this important issue.

The Georgia Habeas Court held that the “proper method of analyzing a claim of ineffective assistance of appellate counsel is set forth in Battles v. Chapman, 269 Ga. 702, 506 S.E.2d 838 (1998). In part, this decision establishes that “it is the attorney’s decision as to what issues should be raised on appeal.” On its face this seems ludicrous. In a capital case, it is the condemned not the attorney who will be executed, and there is a danger that issues not raised or raised only trivially will face future automatic denial as they were in this case. The attorney, Mott, having his own agenda, rendered this precedent further meaningless as his agenda was diametrically opposed to the Petitioner’s.

Chapel had only a single session; a “get acquainted” first meeting with Attorney Mott, and Mott did not give his client an opportunity to review the motion for new trial before it was presented. In the interim, Mott changed his residence numerous times and was literally incommunicado for weeks at a time due to his personal and financial problems. Mott’s investigator Boris Korczak testified in detail regarding these problems during the state habeas hearing. The limited time Mott and Korczak spent in the Atlanta area was wasted in trying to establish a drug connection with the murder of Mrs. Thompson. Chapel and his family were literally frantic in attempting to establish and maintain contact with Mott, and the Petitioner never had an opportunity to examine Mott’s motion[12] with him until it was presented in court.

Another interesting issue regarding this hearing is that the State brought Gwinnett County District Attorney Danny Porter to Reidsville and let him cool his heels all day at the courthouse without calling him to testify. Chapel, even without the recently discovered instances, had a two inch stack of questions to ask Porter, and his inability examine Porter under oath was a crushing blow to Chapel’s cause.

Chapel applied to the Georgia Supreme Court for review claiming the research that uncovered most of these errors was performed only after June 2000 and the results brought to the Court in the supplement dated December 20, 2001. Chapel then described his inability to raise errors of which he was not aware. He further described how the Prosecution at his trial, assisted by cooperating defense counsel, managed to keep these errors from him, the Court, the jury, the public and the press through a combination of illegal tactics. On September 18, 2002, the Georgia Supreme Court denied Chapel’s probable cause appeal from that decision[13].

GROUND 3 – DENIAL OF A SPEEDY TRIAL

This ground is covered in the Petitioner’s state habeas corpus petition (GHCP, Ground Three), especially the Barker factors[14]. Schlei[15], puts forward the principle: “Pursuant to the Speedy Trial Act, a defendant must be tried within 70 days from [the] filing of his indictment or information from the date on which he first appears before a judge or magistrate, whichever occurs later”. The Supreme Court allowed this interpretation of 18 USC 316(c)(1) to stand, but Chapel’s demand for a speedy trial occurred during his interrogation on April 23, 1993 when earlier ruling were in effect (GHCP, 3-6[16]). Under these precedents the right to a speedy trial under the Sixth Amendment begins running at the time of arrest, and at the precise moment when Lt. Latty informed him he was under arrest Chapel made a speedy trial demand by stating he would have to stay in jail “Till we go to court and I can get this cleared up” (GHCP, 3-6). Thus the speedy trial clock for Chapel should have been started at this point in his interrogation, but this demand for a speedy trial was ignored, even though it was well documented on the videotape of the interrogation and subsequent transcriptions.

The 70-day speedy trial clock should have started for Chapel on April 24, since it was past midnight when the demand was made, and the clock would have expired on July 3, 1993. This was months before Chapel’s employment with the GCPD was terminated, the Chapel family ran out of money to pay Chapel’s then attorney Walt Britt. Britt subsequently petitioned the court and was appointed counsel for indigent defendant – Michael Chapel. Britt then moved to determine whether he had a conflict of interest, and District Attorney Danny Porter then moved to disqualify Britt because of conflict of interest[17] on October 28, 1993, the question was not resolved until the Georgia Supreme Court decided the matter on June 10, 1994^[18].

Chapel would remain without counsel for several months until attorney Johnny Moore was appointed. This almost 2½ year delay in beginning of his trial should never have happened, and an extreme amount of prejudice accrued to him because of the delay. The delay was never explained to the jury causing them to believe in Chapel’s guilt since no one would be held that long without good cause. The district attorney would have been forced to make a decision to try or release Chapel; witness memories would have been fresher; there would not have time to plan much of the misconduct and collusion that occurred during Chapel’s trial; Walt Britt would have defended Chapel and Britt was a much more aggressive attorney than Moore, did not have the baggage that Moore carried in his years-long, mentor/student relationship with Porter, and much of the misconduct that occurred before during and after the trial may have been avoided because of the time pressure

.

GROUND 4 – EXCESSIVE BAIL IMPOSED

See Ground Four of the Georgia State Habeas /corpus Petition. There is little to add to this ground at this time except to comment again on the unfairness of the excessive amount of bail demanded of a citizen of Chapel’s standing in the community, and when it appeared that that amount would be met to then change the requirements to ensure the continued incarceration of the accused by limiting property pledged to Gwinnett County properties only.

GROUND 5 -- NEWLY DISCOVERED EVIDENCE

Petitioner argues his constitutional rights under the Sixth and Fourteenth Amendments to the Constitution of the United States have been violated resulting in constitutional error by the state courts failure to weigh new evidence presented in the context of the record of the trial. According to standards set forth in Townsend[19], this evidence meets and surpasses the single issue required for remedy. Petitioner further argues the Georgia Supreme Court[20] failed to correctly interpolate the importance of the new evidence even though they partially concurred in its importance. Yet, mostly due to errors set forth in ground 2, the court ruled the evidence not so compelling as to warrant a new trial.

In U.S. v. Reed[21], the Supreme Court sets out 5 standards of evidence to meet for consideration. The Petitioner argues that these claims are, with special emphasis on #5, “evidence must be of such nature that a new trial would probably produce a new result.”

The Petitioner argues that this evidence could not have been previously discovered through defense diligence, and, that if not for the clear constitutional error of the state courts, the evidence is of such clear and convincing nature that no reasonable trier would have found the Petitioner guilty of the charge[22].

GROUND 6 – POLICE MISCONDUCT (GHCP, 11-1)

CHAPEL’S DRUG DEALER AUDIOTAPES AND OTHER RECORDS

While working in the Buford/Sugar Hill area, Officer Chapel had built a library of recorded conversations with equipment he maintained in his police unit and on his telephone at the gym. He also had several rolls of undeveloped film. He carried them in a cloth bag in the trunk of his unit. Once in police custody (BN-Film, Page 35, Item 31), they were sent for processing and simply disappeared.

LOADED THIRTY-EIGHT CALIBER REVOLVER

Tim Marco, the manager of the American Inn in Buford found a loaded thirty-eight-caliber revolver with two rounds expended of the type that killed Emogene Thompson was found at the American Inn in Buford* (PM-Statement of Tim Marco to Dennis Miller) (GHCP, 11-1). Marco then carefully placed the weapon in a plastic bag and reported it to police. Two police officers arrived, immediately retrieved the weapon, and, according to Marco after a discussion the wiped the gun clean. Once in police custody, the weapon simply disappeared. Marco found the gun between Thanksgiving and Christmas in tall grass and speculated it might have been there since at least since Thanksgiving. A gun of the type used to kill Mrs. Thompson was recovered on October 7, 1993 Burnette (TR, 5379) The American Inn was a place that the victim’s son frequented as a guest. At trial, Lt. John Latty testified vaguely that the weapon was handled routinely and then destroyed (TR, 4488*). Most of that testimony was reproduced in the state habeas (GHCP, 11-2-11-4).

THIRTY-EIGHT CALIBER SHELL CASING FOUND ON OR NEAR THE VICTIM’S PROPERTY

Weldon Seay, the father of Keith Seay, who lived with Amy Parker in a trailer home next to the victim’s and owned by Seay the elder, found a spent .38 shell casing in the grass between the Thompson and younger Seay trailers just after the murder (PM-Statement of Weldon Seay). Weldon then called the GCPD, and the police again immediately retrieved it. Once again it simply disappeared from police custody. The fact that there were most likely three shots that were involved in the murder, and only two projectiles were found in the victim’s car, gives importance to this potential piece of evidence.

Chapel did present all of the material in these claims to the State Habeas Court, but at that time he was aware only of what had been done, and not aware of how and why these actions occurred. The police and prosecution did such a good job of hiding their misdeeds many of them are only now coming into focus.

CONSTRUCTION AND USE OF AN ILLEGAL PHOTOGRAPHIC LINEUP

On April 23, 1993, the day of Chapel’s arrest, a possible eyewitness, Karl Kautter was brought to the attention of the GCPD. The eyewitness was interviewed, and GCPD Officer Greg Thompson hurriedly constructed a photographic lineup. The time necessary to construct the lineup belies a one or two hour construction time. There were seven GCPD officers in the lineup, all with mustaches and all but Chapel from outside the Northside Precinct. Chapel was on duty that night, and it would have far easier and more efficient to have a live lineup with other Northside Officers who were more likely to be in the police car that passed Kautter and his driver Paul Omodt on PIB on the night of the murder. It must have taken days, not hours to put together the photo lineup. First the candidates from the distant precincts would have to be selected and their photographs taken in a specific manner. Then these photographs had to come to GCPD headquarters in Lawrenceville and only then could the lineup be constructed.

In any event, the lineup constructed that day (LU-Original) unfairly and illegally highlighted Officer Chapel. First, Notice Chapel’s photograph (number 3) shows him at least half again as large as all the other officers. Second, notice the lighting is different than in all the other photographs. In 5 of the photographs the lighting is lower than Chapel’s and in 2 of the photographs, the lighting is much higher than Chapel’s. Third, notice the direction of the lighting. In all but Chapel’s photograph, the lighting is direct from the front. In Chapel’s photograph, the lighting is from the side producing a shadow, almost a double image on the wall behind him and hiding the left side of his face, and that was the profile that Kautter saw that night as the police car passed him and Omodt.

IF NOT CHAPEL, WHO WERE THESE POLICE OFFICER ON PIB THAT NIGHT?

The complete body of evidence presented in this petition will prove that neither the officer in the muffler shop driveway nor the officer that passed the Omodt/Kautter vehicle immediately north of the driveway on the night of the murder was Officer Michael Chapel.

IF NOT CHAPEL, WHO WAS THE OFFICER THAT PASSED OMODT AND KAUTTER?

When the eyewitness, Karl Kautter turned up a week after the murder on the 23^rd, rather than constructing a photographic lineup for that witness to view, the conditions were perfect for a live lineup of on-duty Northside officers. A live lineup of Northside officers on duty that night would also have the benefit of the presence GCPD Officer Brian Reddy, Chapel’s close friend who we know was available that night. Reddy was almost Chapel’s double. Both were about 6’4” or 6’5”. Both were body builders, and weighed almost 300 pounds with all their police gear. They referred to themselves often as twins and “six-hundred pounds of cop”. They looked so similar that their wives could not tell them apart at a distance until they moved.

The Gwinnco Muffler Shop on Peachtree Industrial Boulevard (PIB) was also in Officer Reddy’s zone of responsibility. Reddy was at the firehouse on the night of the murder with Chapel, Stone and the firefighters. Something about that night and the murder spooked Reddy badly. On the night of Chapel’s arrest, Reddy gave a signed statement that he did not see Chapel after he, Stone and Chapel left the church parking lot after the decision to wait out the storm at the firehouse. Reddy would state emphatically Chapel was not with them at the firehouse after they left the church. That same night, coincident with the completion of Chapel’s interrogation, Reddy later recanted this lie. However in the same statement Reddy made an even more bizarre assertion. Standing by itself without any explanatory information was the statement that he, Reddy “did not drive southbound on PIB on the night of the murder”. This certainly begs the question as to whether Reddy drove northbound on PIB that night (BR- Statement-1).

Chapel left the firehouse just before 10PM, probably about 9:55 to 9:57, and drove first to his gym and then to the Arden Drive (Just below red colored “WESTHAVEN”) call he was assigned at 9:57. Police records show that he arrived on Arden Drive at 10:07, called in to say he was having trouble finding the address but then almost immediately located and entered the home at 10:08. The 911 callers verified his time of arrival as shortly after 10. Arden Drive is completely on the other side of Buford from Gwinnco Muffler.

Officer Reddy left the firehouse after Chapel but at a vaguely defined interval that could have been a minute or two before 10 PM. His normal pattern of departure from the precinct/firehouse would take him first behind the shopping center on the southwest corner of the intersection of Buford Highway and Highway 20, a high crime area not far from the firehouse. Then driving southbound he could have decided to cut his zone patrol short since it was almost time to return to the precinct. He then could have taken a shortcut from Buford Highway to PIB by swinging abruptly turning right at Old Suwannee Road to North Price, which at this point parallels PIB, and an almost immediate right over the railroad tracks onto Pinecrest Drive (DW-Reddys Route). This would have placed him at the intersection of Pinecrest Drive and PIB at just the time Omodt and Kautter passed it going north. Their attention was riveted on the muffler shop driveway where they had seen the blue lights, and they did not notice Reddy’s vehicle at the intersection (DW-Reddy At Pinecrest). Turning right, Reddy would have passed the muffler shop drive just after Kautter and Omodt, (DW-Second Police Car Catches Omodt) caught them just before the 2-4-lane transition and completely passed them as they approached Roosevelt Circle, as Paul Omodt, helped by the District Attorney would testify (DW-Passing Completed).

This then would account for Officer Reddy’s bizarre statement about not driving southbound on PIB. This is probably true, but then the implied meaning of his statement that he did drive northbound on PIB that night would be equally true.

IF NOT CHAPEL, WHO WAS THE OFFICER IN THE MUFFLER SHOP DRIVEWAY?

Now the question is: Why would Officer Reddy make such a strange statement in his interview on the 23^rd? The answer has to be that he was afraid that someone saw him pass the muffler shop driveway and saw the dismounted police officer. A good investigator would never let such a remark stand by itself. Thus Reddy most likely explained the incident to the GCPD investigators, Sergeants Steve Cline and B.J. Tkacik. Now the GCPD was about to arrest Michael Chapel for the murder, so they very likely to include the “not driving southbound” remark in his statement just to cover Reddy. GCPD Sergeant Steve Cline was then second in command to Lt. Latty on the Chapel case, and he is now by-the-by GCPD Major Steve Cline.

Now why would Brian Reddy believe that someone saw him pass the muffler shop? Could it have been only Omodt and Kautter whose car he passed? No, probably not, but the dismounted officer in the muffler shop driveway possibly could have been able to identify him. Since officers usually patrolled alone, standard operating procedure would have required that Reddy pull into the driveway behind or next to the patrol car to backup the officer already there when such a situation was observed.

There was only one police officer that would cause Reddy to ignore the SOP to stop and aid. This was Sugar Hill City Marshall Chris Robertson. Reddy’s Zone included most of Sugar Hill, and Reddy suspected Marshall Robertson of faking burglary calls in Sugar Hill. This caused Reddy much anxiety since it appeared that he was not patrolling aggressively enough, and for this Reddy had developed a genuine hatred for Robertson and Robertson reciprocated with his own for Reddy. The two were reputed to have come to blows, and Reddy came to a point that he would not talk to Robertson (BR-Statement-2). If the Marshall had to be dealt with, Officer Chapel would have to come from his adjoining zone to do so. For example, on the afternoon of the murder, the high winds that presaged the coming storm caused many alarms to be tripped. One of these alarms was at the Sugar Hill City Hall. Reddy would not answer the dispatcher, and Chapel along with Sergeant Stone answered the call.

Could the police car seen in the muffler shop driveway by so many witnesses have been Marshall Robertson’s? All of the driver witnesses that saw the police car that night and mentioned a large yellow stripe were all interviewed at the muffler shop roadblocks where there were several of these types of county police cars sitting. Robertson’s police car was the same shape as these cars but was a black and white. We are all a little or a lot color blind at night, and with the storm that was raging at the time the colors of the police car in the driveway could hardly been that discernable. The yellow stripe [GHCP, Eyewitness Testimony] was only mentioned by those witnesses interviewed at the roadblocks on PIB where several of the older model police cars with the large yellow stripe were sitting. However, with a remarkable unanimity for eyewitnesses, every one of these witnesses, including Kautter described the police vehicle as an old-style, boxy type police vehicle. The only exception was driver-witness Paul Omodt who in reality saw two police cars. In his statement just after the murder on the 23^rd, Omodt described the police car in the driveway as a “black and white”, and in his testimony Omodt described the police car that passed them on PIB that night as one of newer “bubble type” police cars that both Chapel and Reddy were driving that night (DW-Police Vehicles) Robertson was not interviewed by the GCPD or the DA except for a brief statement about his response to the 911 emergency the next morning. He was the first police officer to arrive on the scene.

Both Paul Omodt and Karl Kautter described the officer [GHCP, Officer in the Driveway] they saw in the muffler shop driveway as of average height, 6 feet or less and build, a description that was a far cry from that of Chapel’s 6’5’, body-builder 280 pound frame. Both described the officer carrying a flashlight in his left hand. Chapel was right-handed and Robertson was left-handed. Both witnesses described the officer facing away from them. Kautter had the officer walking toward the victim’s car, and Omodt had him leaning and looking inside Mrs. Thompson’s car through the driver’s window with his flashlight. When the body was discovered the next morning, the keys were in the ignition and the driver’s window was almost all the way open. It is interesting that the officer did not open her door turn the ignition key on and raise the window on that stormy night with such heavy rain if the car was unoccupied and that window were open..

If these two officers were indeed Reddy and Robertson, and they saw each other when Reddy passed Robertson in the muffler shop driveway (DW-Second Police Car Passes Driveway), it certainly would answer a lot of questions about pair’s trepidation and actions over the following week before Chapel was arrested for the murder. Was either of these officers guilty of the murder? Absolutely not! It is 99 to 1 that Emogene Thompson was not inside her car when Paul Omodt saw Robertson standing by the driver’s window looking into the vehicle. Other evidence (See Prosecution Exhibits 12 And 13 Were Hidden From The Jury under Prosecutorial Misconduct below) indicates the victim was likely lying dead or more likely badly wounded in the trunk of her vehicle (DW-Body Transfer).

The only thing these two officers were guilty of is obstruction of justice and cowardice for not coming forward and clearing Officer Michael Chapel when he was arrested for Emogene Thompson’s murder.

THE DISTRICT ATTORNEY ALSO DID NOT BELIEVE IT WAS CHAPEL’S VEHICLE IN THE DRIVEWAY THAT NIGHT

The District Attorney well knew what Chapel’s police unit looked like (DW-Police Vehicles – The bottom Photo is Chapel’s GCPD assigned unit), yet in his closing argument, Mr. Porter had these words to say:

We know then that the defendant took the five-minute drive from the precinct to the Gwinnco Muffler, and by nine-thirty there was a police car parked in the Gwinnco Muffler. How do we know that? Ms. Johnsa says it. Ms. Turner says it. Mr. Charles says it. Mr. Schmanski says it.

So by nine-thirty a Gwinnett County patrol car was parked in the Gwinnco Muffler facing towards Peachtree Industrial Boulevard with its lights off. Ms. Rogan raises the question, how did these witnesses see that? Well, that's easy. The yellow stripes are designed to reflect. That's what they're there for so that people can identify police cars as police cars. And the important thing is not that it was six inches wide or not that it was four inches wide, but that these people clearly identified the car they saw as a Gwinnett County patrol car (TR, 6652*). [Look again at Chapel’s patrol car.]

GROUND 7 – PROSECUTORIAL MISCONDUCT

DESTRUCTION OF EXONERATING EVIDENCE

TELEPHONE RECORDS

At trial there was much controversy about the telephone records that the GCPD subpoenaed from Bell South (TR, 5737*). Not only would they destroy the hearsay evidence against Chapel by showing that Delores Burel was lying about her frequency of conversations with the victim, especially on the evening of the murder, but they would have been exculpatory in many other ways as well. For example, the pattern of calls might have called attention to the real killers. If the records showed no incoming telephone calls to the victim from Delores Burel, the entire body of hearsay evidence would have become invalid. If Burel lied about talking on the phone with the victim that night, all of the evidence given by Burel and the victim’s son would have been only so many lies.

While Lt. Powell was on the stand, the discussion of these telephone records between the attorneys, Lt. Powell and the Court went on for one hundred or more pages of the transcript beginning about page 5714 and covering the end of that day and beginning again the next. The original records from the telephone company were made a part of a database along with financial records and MDT (Police computer) transcripts being constructed by GCPD Lieutenant Michael Powell (TR-Powell Testimony, 5716*).

Lt. Powell testified that all of the records were now in the custody of the district attorney. Porter did not deny this and then stated the original records from Bell South were destroyed and could not be re-constructed. To cover Porter on the Brady aspects of this evidence, Johnny Moore said that he could find his copies of the records; however Moore would not be able to produce that evidence. Porter then says that he would furnish Moore with whatever records he had. Elizabeth Rogan attempted to build a database from these records furnished by Porter. She complained that she was furnished only outgoing records, and she stated that Lt. Powell told her the records consisted of both calls from and calls to these numbers. Lt. Powell in response Porter’s question stated that Bell South could not capture incoming calls.

This was a lie (TR-Telephone Records Powell Memo). In response to Porter’s question, Powell then testified that he told Porter that Bell South told him, Powell, that there might be some records missing, and Porter continued to object to the introduction of these telephone records on the basis that they incomplete, hearsay and not certified by the telephone company. However, both he and Powell are talking about the summary report produced by Powell. Since Bell South meets the exclusionary rule of 803 (6) and did not need certification, and if they were missing any records it was because of misconduct of the prosecution and the their agents the GCPD. After all these records were the same transactions that Bell South used for customer billing.

It is important to realize that had these telephone records would have destroyed the trustworthiness of hearsay witnesses and thus the Prosecution’s entire case. If the Prosecution were to have any chance at all of success, the original telephone records had to be destroyed, and they were while in the custody of the district attorney.

ILLEGALLY ADMITTED EVIDENCE

The Prosecution was able to present much of this illegal evidence as a direct result of the destruction of the above described telephone records.

THE HEARSAY EVIDENCE

At a hearsay hearing conducted by Judge Bishop on 7/10/95, Delores Burel gave testimony that after Chapel’s first contact on 4/3/93, she could describe only one more. She stated that the victim tried to call Chapel one weekend, but he did not contact her until Monday. This was in error; Chapel contacted the victim the same day, the 4^th. This meeting was described by Chapel as a short meeting on the front porch of the victim’s home where he outlined a plan to bluff her son into returning the money.

In Burel’s description, the word “pretend” was used to describe at least one part of that plan (HS-Hearsay Hearing, 4-41). This excerpt also serves to show that Burel tended to exaggerate more and more as she went on about an issue, and her testimony at trial was carefully coached by the prosecution (TR, 4022).

As for being on the phone 5 or 6 times a day with the victim, telephone records for the victim show only 8 calls made by the victim to Burel, and none on the 15th over the period 4/3/93-4/15/93. The prosecution was in possession of incoming calls to the victim (TR-Telephone Records Powell Memo), and Burel’s claims could easily been supported with this information. The prosecution would certainly have used this information at trial. Instead they argued to deny their admittance based on the hearsay aspects of Lt. Powell’s report where this formation was included. The raw information from the phone company in Lt. Powell’s possession could have been used under CFR Rule 803 (6) or USC § 24-13-4 or 25-4-26 to bolster Burel’s hearsay testimony, but the prosecution chose not to use this evidence, nor was it supplied to the defense as required by Brady.

This issue is more completely described in the Petitioner’s state habeas corpus petition (GHCP, 9-4) with electronically transferred applicable trial testimony complete to attorney questioning and page and line numbers from the official transcript.

THE VIDEOTAPED INTERROGATION OF OFFICER CHAPEL

There was absolutely no reason for the showing of the videotaped interrogation to his jury. There was no confession involved, nor did chapel make any contradictory statements. Indeed Chapel continued to tell his interrogators the same set of facts, often being cut off by the interrogators.

The only thing this viewing accomplished was to get backdoor hearsay evidence to the jury and convey to those jurors Chapel’s demeanor during the interrogation. The District Attorney would spend a great deal of time in his closing argument discussing Chapel’s perceived, arrogant demeanor both at trial and in this interrogation.

This issue is more completely described in the Petitioner’s state habeas corpus petition that is complete with electronically transferred applicable trial testimony complete to attorney questioning and page and line lumber from the official transcript.

CRIME SCENE EVIDENCE

THE VICTIM’S VEHICLE

Emogene Thompson’s vehicle was returned to her son Michael only a few weeks after the murder and, thus the only crime scene evidence in possession of the Prosecution were the recollections and reports of the crime scene technicians and photographs of the victim’s vehicle. At the muffler shop, thirty-four 35mm photographs (CS-Negatives) and several Polaroid photos (CS-Polaroids-1) (CS-Polaroids-2) were taken of the shop: the exterior of the vehicle to place it in the context of the muffler shop and its driveway and interior photos of the vehicle taken through the windows. Federal HC Attachments\ME-Negatives 1-2.htm

On arrival, the medical investigator was reputed to take two 35mm photos (ME-Negatives 1-2 [better view]). When the body was removed, the vehicle was moved to GCPD headquarters in Lawrenceville only a few hours after the body was discovered and placed in a garage type building behind the HQ building. There an additional thirty-five 35mm photos were taken of the interior of the vehicle.

There is no evidence that any investigator examined the victim’s vehicle, either at the crime scene or elsewhere. At the preliminary hearing, Chief Investigator Jack Burnette claimed to have approached the vehicle at the crime scene, but the information he gave at that hearing came directly from that given him by CST Judy Graham. Thus the prosecution was totally dependent on the memories of the crime scene investigators and the photographs they took.

In their case against the Petitioner, the GCPD and later the District Attorney posited that Officer Michael Chapel arranged a meeting with Emogene Thompson with $7,000.00 in her purse at the muffler shop with sole intention of murdering her and robbing her of the money in her purse. Further, they posited that Chapel had been lurking in the driveway for almost an hour when the victim arrived at the meeting place.

When the victim pulled into the driveway, Chapel got behind her in the driveway in a manner that was never explained, turned on his blue lights, dismounted from his patrol car, walked to the victim’s open driver window and immediately shot her in the head (CS-Shot 1 Image), Chapel then placed the weapon to her neck and fired again (CS-Shot 2 Image). In the execution of these two shots, backward high velocity (HV) blood spatter from the victim came through the open driver’s window and stained the yellow police raincoat that he was wearing. Chapel then grabbed the victim’s purse, returned to his vehicle and fled the scene. From a neighbor who had seen the victim leave for work, the time was first placed at a few minutes before 10:00 PM on the night of the murder, Thursday April 15, 1993. Two years later, as the GCPD and the Prosecution prepared for trial, the crime scene photographs and time estimate simply blew up in their faces and collapsed.

DELIBERATE MISIDENTIFICATION OF EXHIBITS 17 AND 18#

While there was plenty of blood in the victim’s car, even HV blood spatter, none of it supported the postulations of the police and prosecutors in their version about how the shots were fired into the victim’s head from outside the vehicle through the open driver’s window resulting in HV blood spatter staining Chapel’s rain jacket (BS-Raincoat-1) and (BS-Raincoat-2) that they felt was their most important piece of physical evidence. The possibility that these photographs were deliberately misidentified had not yet occurred to the Petitioner at the time his state habeas corpus petition was filed (GHCP, 14-1-9).

There was absolutely no blood at all on the driver’s door or window (CS-Drivers Door and Window-1, CS-Drivers Door and Window-2) to support their shot 1 and shot 2 theory. Thus the HV spatter would have to get onto Chapel’s raincoat only through a feat of magic.

To rectify this problem and lay a foundation for the future testimony, the state listed in their Index of Exhibits (States Exhibits-1-32), (TR, Master Index) two photographs of the passenger door, State’s Exhibits 17 (TR, 3247) and 18 (TR, 3247), as of the driver’s door These did show blood spots although not high velocity spatter. Prosecutor Scott Smeal prompted the photographer, CST Judy Graham, to perjure herself by identifying those photographs of the passenger door as photographs of the driver’s door (States Exhibits 17-18 on the stand. For the complete exchange from the transcript see (GHCP, 14). Without examining the photographs, defense counsel Johnny Moore offered no objection to their admittance into evidence along with all Exhibits 14 through 22 (GHCP, 14).

Prosecutor Smeal then stood as far as he could from the jury and identified the postcard sized photograph exhibits by only stating their numbers, i.e., “This is Exhibit 17”, “This is Exhibit 18”, etc. (GHCP, 14-8). When Smeal identified Exhibit 17. A sharp-eyed juror in the front row was able to read the legend. Out loud he said: “passenger door”, Smeal immediately replied: “yes, this picture was identified as the passenger door (GHCP, 14). This was wrong and a lie by Prosecutor Smeal. CST Graham identified the photograph as of the driver’s door a few minutes before.

After a few minutes of interplay between Prosecutor Smeal and the jury’s desire to more closely examine these photographs, Defense Counsel Johnny Moore broke in and complained that Smeal was too close to the jury and the TV cameras might identify them*. Smeal obliged and happily moved further away from the jury so that they could not make out any legends on the photographs. Trial Judge Fred Bishop called a bench conference where he described the jury as too active after which he ordered the jury to submit their questions in writing (GHCP, 14-4).

This issue, minus the why and how, was presented to the State Habeas Court, and that court’s response was that the issue of the door on which bloodstains appeared was of little consequence, and besides the juror had corrected the problem.

The Habeas Court erred because the photographs had been described separately but presented to the jury all together. As far as the jury was concerned, there was blood on the driver door and window. The State Habeas Court erred in this comment because he apparently also did not realize the reasons for the misidentification.

THE PROSECUTION’S THEORY REGARDING SHOT 1 WAS SIMPLY WRONG.

There was an almost pristine projectile (CS-Shot 1 Projectile) found on the floor of the vehicle (CS-Passenger Floorboard), probably resulting from the shot through the soft tissue of the neck, the brain matter and the thin bone matter of the eye socket. This projectile was not in the position it was found at the crime scene. A photograph taken of that area through the passenger window at the crime scene clearly shows (CS-Passenger Seat). the projectile had to have been under the passenger seat. When the car was pulled onto the transport vehicle by its rear, the projectile as well as other debris under the seat moved forward to the positions shown in (CS-Passenger Floorboard). How the projectile came to be there will be explained in the discussion of State’s Exhibits 12 and 13 below.

THE PROSECUTION’S THEORY REGARDING SHOT 2 WAS SIMPLY WRONG.

There was a bullet hole in the passenger seat (CS-Shot 2 Bullethole), and there was a projectile found in the frame (CS-Passenger Seat Frame) of the passenger seat below that had to have caused the bullet hole, but outside of very two small spots (white circles), there was no other blood spatter on the passenger seat, HV or other (CS-Passenger Seat). If shot 2 had happened as postulated by the prosecution (CS-Shot 2 Image) (GHCP, Photo Exhibit 5-01,5-02), the passenger seat should have been covered with blood. There were also yellow, gunpowder stains around the slightly burned edge of the bullet hole indicating the bullet was fired very close to the seat itself and not through anyone’s head (CS-Shot 2 Bullethole).

PROSECUTION THEORY REGARDING BOTH SHOTS WAS SIMPLY WRONG AND A BULLET WAS MISSING

The prosecution’s theory regarding both shots was clearly not supported by the photographic evidence and was clearly wrong. The near pristine condition projectile found on the floorboard of the victim’s vehicle (CS-Shot 1 Projectile) indicates it is the bullet that was fired into the victim’s neck and exited out her right eye socket. The badly damaged projectile found in the framework of the passenger seat, could only have resulted from the bullet fired in near contact with the seat upholstery (CS-Shot 2 Projectile). Neither of these shots could account for the second set of entry and exit wounds in the victim’s head shown as shot 2 in the autopsy drawing (ME-Entry and Exit Wounds).

The conclusion is inescapable. Emogene Thompson was killed or badly wounded and unconscious by shot 1 elsewhere. Additional evidence shows she was then transported at about 9:40 PM to the then empty muffler shop driveway. Her body was probably then stored in the trunk of her vehicle (DW-Body Transfer), and sometime after 2 AM, retrieved and placed in the driver’s seat through the passenger door of her vehicle before shot 2 was fired into her head by the killers. Then, to account for the two sets of wounds, the killers fired an additional round into passenger seat and hoped for the best. All of the blood stains on the interior of the vehicle support this and blood on the exterior of the car and on the pavement around the car trace a route from the vehicle’s trunk area to first the driver’s door and then around to the passenger door then into the driver’s seat.

PROSECUTION EXHIBITS 12 AND 13 WERE HIDDEN FROM THE JURY

There was both forward and rearward high velocity blood spatter in the victim’s automobile, but the two photographs that showed the spatter indicated the bullet was fired from the left rear passenger seat and impacted the right, passenger side of the front windshield. These photographs were first altered and entered into evidence as Prosecution Exhibits 12 (CS-States Exhibit 12) and 13 (CS-States Exhibit 13-1, CS-States Exhibit13-2, CS-States Exhibit 13-3).

Exhibit 12 is a photograph of the passenger side front windshield taken from outside the vehicle, making the spatter difficult to see, but clearly shows a classic pattern of HV blood spatter. There is even a small nick in the glass where the projectile hit. This photograph is one of the 34 35mm photos taken by CST Graham at the scene. Found in the defense files was a photocopy of these negatives reversed. It is #18 (CS-Negatives), on the roll, and the photocopy of the reversed negatives shows it was extensively altered, almost to the point of non-recognition. The photograph was probably altered as well to dim out the HV spatter, but an expert would have to determine that.

Exhibit 13 is undoubtedly one of the Polaroid pictures taken by CST White at the scene. While there are 7 Polaroid photos in the two sets (CS-Polaroids-1 and CS-Polaroids-2), Polaroid film at that time came in rolls of 8 or possibly 10). There is no reason why CST White would not have taken the final Polaroid at the crime scene. The GCPD altered the missing Polaroid in an attempt to remove the exterior bloodstains, and the rearwards HV blood spatter on the backrest of the driver’s seat and extreme right part of the window lining. Then to cover their criminal act, they combined this photograph with another of the Polaroid photographs (CS-Polaroids-2 at the bottom) and photographed them in their altered states onto 35mm film (ME-Negatives 1-2). The GCPD attributed this manufactured evidence to photographs taken by Senior Medical Technician Hal Bennett, and placed the negatives in the ME file (Police Exhibit E-30). At trial, Exhibit 13 would be described by the first officer to arrive at the scene as “a picture of the flat left front tire.” Again at trial, Hal Bennett was never questioned about photographs he took at the crime scene (TR, Beginning 5005*).

In a lucky accident recently, a researcher found that the contrast and brightness of State’s Exhibit 13 was altered, and when this was corrected (States Exhibit 13-1), the result showed blood stains all over the exterior of the victim’s car, and the blood stains picked up by the police yellow tape described how the killers removed Emogene’s body from the trunk and first intended to place her through the driver’s door (States Exhibit 13-2). When this was too exposed to oncoming traffic, they carried her around the front of her vehicle to the passenger door. The blood drops in the passenger door well (CS-Passenger Doorwell) and the other interior blood spots describe how Emogene was then moved through the passenger door and placed into the driver’s seat (… CS-Passenger Window Decal, CS-Passenger Armrest, CS-Passenger seat, CS-Middle Console, States Exhibit 12).

GCPD Officer Ed Beyers, one of the first to testify and who took none of the photographs, was asked to describe Exhibits 12 and 13 (See above) (GHCP, 14-5). He described 12 as a photo of the victim in the driver’s seat slumped to the right, and 13 as a photo of the flat left front tire. These photographs were quickly and without objection admitted into evidence without any kind of viewing by the jury or defense counsels.

Another, mystery photograph has recently surfaced from some out-of-the-way spot in the defense files that might be the well-hidden State’s Exhibit 13. The exhibit labeled Possible State’s Exhibit 13 (CS-Flat Tire-2) shows the front left portion including the flat tire of victim’s vehicle. In this photograph however the vehicle does not show the blood smears the other Exhibit 13 indicates. This photograph appears also to be Negative #9 (CS-Negative-09) and was edited more expertly than Exhibit 13. [After all they had 2 ½ years to practice.] Possible stains on the left front fender were expertly removed to give the vehicle a showroom appearance in contrast to the other exterior photographs showing blood smears. Even the bloodstains on the left-front headlight (see other alterations below) have been cleaned. The support cone must have just been blown over to produce the new-looking yellow Police-Fire tape.

One of these photographs was shown to and identified by Officer Ed Beyers at trial as State’s Exhibit 13. Beyer’s description of the photograph as a picture of the flat left-front tire is more descriptive of the new 13 than of the other, but, since the photograph was hidden from the jury and not examined by the defense attorneys at trial, Only the Prosecution and Beyers know which photograph was used as Exhibit 13. The prosecution could have easily switched the photographs again after Beyers identified the photograph he examined and described on the stand. The “Old Switcheroo” was not alien to the District Attorney’s bag of tricks (see below under Kautter’s Trial Testimony.

EXAMINATION AT TRIAL BY THE JURY OF EXHIBITS 12 AND 13 DENIED

When CST Graham, who took the Exhibit 12 photo, took the stand, it became apparent that the jury would not see 12 or 13, one of the jurors asked the judge to view the photos (See GHCP, 14-3). Judge Bishop refused the request saying that the jury would see them when they were admitted In fact they already had been admitted, and the jury would never see them and know what State’s Exhibit 13 looked like unless they carefully combed every box of evidence for them in deliberations.

OTHER POLICE AND PROSECUTION ALTERED PHOTOGRAPHS

When the same photo-editing technique was tried with the photo taken through the driver’s window (CS Drivers Backrest and CS-Driver’s Backrest Adjusted), the blood on the driver’s backrest again appeared. In the photograph of the victim’s vehicle taken from the front, there is still some blood and yellow tape markings just to the right of the right-headlight (CS-Vehicle From Front). In the photograph taken from the rear of vehicle (CS-Vehicle From Rear), half of the car’s license plate is missing, and what seem to erasures appear on the trunk of the car and on the yellow tape. When the apparent positive of the negative is viewed, the entire license plate is blank (CS-Negative-04). The question then is how was a photograph with half a license plate produced from a negative with no visible license plate. The license can be easily seen on other negatives (CS-License Plate). There are undoubtedly other altered crime scene photographs, but the researchers are not expert in this area.

There were absolutely no examinations of these photographs nor were their objections to their introduction as evidence by the defense attorneys at trial.

DANNY PORTER MUST MOVE THE TIME OF THE BLUE LIGHTS FROM 10 PM TO 9:45 PM

After Danny Porter began to prepare for Chapel’s trial, he realized that if the time of the blue lights in the driveway were about 10:pm, Officer Chapel could not arrive at his assigned call at the Arden Drive address at 10:07 PM as records indicated. He therefore had to have the blue-light witnesses give an earlier time between 9:40 and 9:50. Thus he did, and the witnesses so testified, but the testimony of these witnesses was easily impeachable either by the own statements and testimony those of other driver-witnesses.

The severe storm with extremely heavy rains played havoc on the time estimates of northbound drivers who were coming from considerable distances. When these estimates are adjusted for possible driving speeds under those weather conditions and what the witnesses observed in the driveway, there is a define pattern for each driver witness passing the muffler shop driveway. Southbound drivers on the other hand had only just left their homes for a timely arrival at their destinations, and their estimates of the time they passed the muffler shop driveway were considerably more reliable.

Raymond Daniel Gravitt: Mr. Gravitt was the driver most aware of the time he passed the muffler shop driveway. He had to pick up his babysitting daughter at 10 PM at an address 5 minutes south of the muffler shop. Going south on PIB in very heavy rain, he testified there were blue-lights in the driveway. At trial under prosecution questioning by Danny Porter, Mr. Gravitt testified to the agreed 9:40-9:50 passing time going southbound, but later when the prosecutor asked when he passed the shop on the return trip, he slipped and began thinking out loud. He said that he arrived at his daughter’s location a few minutes after 10 PM and on returning past the driveway at about 10:15 PM (GHCP, 5-14, 5-17). Since the driveway location was about 5 minutes away from his destination, that would put him passing the muffler shop driveway southbound at 9:57 or 9:58 PM. All other drivers to pass at this time were driving northbound for long distances through the wind-driven rain of the storm..

Alan Robertson: Mr. Robertson provided a written statement that the rain had slowed to a drizzle as he passed the driveway going north from Roswell, GA between 10 and 10:15 PM and saw both cars in the driveway with blue-lights, but the officer had not yet dismounted. Danny Porter persuaded Robertson that it must have been much earlier because of hospital visiting hours. Porter then called the hospital head nurse, but she was to testify that she was not sure what the hospital visiting hours were, and if there were any they were not extensively observed.

Paul Omodt and Karl Kautter: “Regardless of his testimony at trial, Karl Kautter six weeks before, at a 7/10/95 hearing would indicate that the pair passed the driveway about 10 PM. At that hearing Kautter would testify that he did not live far from the driveway (about 7-8 minutes at speed limits, and arrived home shortly after 10 PM (GHCP, 5-16). These witness were in the same car, and Omodt was driving from Sandy Springs, GA. The extremely heavy rain through which they had been driving had slowed about 4 miles south of the driveway. As they reached a crest some 2 miles south of the driveway and started their decent, they saw the blue-lights come on. They lost sight of the driveway on the decent, and when they reached the smaller crest at Pinecrest, the blue lights were out. They saw an officer walking toward the civilian car but described him as much smaller than Officer Chapel (DW-Omodt-Kautter Pass Driveway). As they reached the 2-4-lane transition a few hundred feet north of the driveway, another police car came behind them (DW-Second Police Car Catches Omodt). It was clearly impossible for that police car to be the one in the driveway. As they approached Roosevelt Circle, the passing maneuver was completed (DW-Passing Completed). In his opening, Danny Porter would claim that the passenger, Kautter had a 45 second viewing window to see the officer passing, but time-distance arithmetic indicate 4 seconds or less. A one-mile per hour difference in speeds would yield a six foot, 4 second viewing area. Higher passing speeds would yield less time. A week later Kautter would pick Chapel out of an illegal photo-lineup as a second choice by indicating he was guessing: “I would have to say number 3 (Chapel)”.

SERGEANT STONE’S TRIAL TESTIMONY

GCPD Sergeant Donald, nicknamed “Rooster”, was Officer Chapel’s supervisor and, like Officer Brian Reddy and Investigator Jack Burnette was one of Chapel’s close friends in the department. Stone was older, and he expected to retire within a few years. Under these circumstances, rocking the County’s boat was out of the question.

STONE’S PROSECUTION TESTIMONY

Stone’s testimony for the Prosecution is discussed above under “Problems with the Supreme Court Decision (4)”. Stone testified that Chapel left the firehouse between 9:20 and 9:30 that night. This testimony was contradicted by a statement he made just after the murder made to Captain Davis that Chapel had left 20 minutes before he did, and the illegally suppressed telephone records indicated that Stone was still at the firehouse at 10:17 PM. That Stone was willing to commit perjury is not surprising under his circumstances, and, besides, most of the GCPD officers perjured themselves when testifying at Chapel’s trial.

STONE’S DEFENSE TESTIMONY

It is Sergeant Stone’s testimony for the defense, for his close friend Michael Chapel that is so outrageous. With Mr. Moore questioning him, a portion of that testimony is so extraordinary that it is reproduced here:

By Mr. Moore:

Q. Sergeant Stone, I issued a subpoena to the Gwinnett County police department for the ID photographs of all the officers assigned to the Buford precinct on April 15, 1993, for their photographs.

A. Yes, sir.

Q. Pursuant to that, Mr. Danny Porter, the district attorney, delivered to me a series of photographs that -- from the police department and they're numbered on the back D-14 through D-44, and I'm going to ask you to look at these pictures and see if you recognize those people. And if you would, identify each one by the number on the back. If you could identify each officer.

A. D-44 would be Officer Yeager, D-43 would be Officer Hughy, D-42 would be Sergeant Tim Hunter, D-41 would be Officer Mornings, D-40 would be Officer Bridgefarmer, D-39 would be Sergeant Tyson, D-38 would be Corporal Stratameyer, D-37 would be Officer Jack Garner, D-36 would be Lieutenant Greenwood, D-35 would be Corporal Wilhoit, D-34 would be Corporal Byers, D-33 would be Officer Rosa, D-32 would be Sergeant Winderweedle, D-31 would be officer J. P. Morgan, D-30 would be Officer Danny Burke, D-29 would be Officer Geidner, D-38 would be Sergeant Edmunds.

THE COURT: That's 28?

THE WITNESS: D-28.

THE COURT: Okay.

BY MR. MOORE:

A. [Continuing] D-27 would be Lieutenant Morgan, D-25 would be -- D-25 would be Officer Drake, D-26 would be Officer Reddy, D-24 would be Officer Yonker, D-23 would be Officer Zimmerman, D-22 would be Officer Pusbach, D-21 Officer Awtry, D-20 would be Sergeant Shell, D-19 is Officer Martin, D-18 is Lieutenant Knight, D-17 is myself, D-16 is Officer Evans, D-15 is Sergeant Staunton, D-14 -- and I don't recognize D-14.

Q. Even though you don't recognize the name, do you recognize the face?

A. Yes.

Q. Okay.

A. I don't recall his name.

Q. Okay. That's fine. Well, you did very well, I think, to remember all you did. Now, those pictures, D-14 through D- -- was D-44 the last one?

MS. ROGAN: Uh-huh.

BY MR. MOORE:

Q. Okay. D-44 -- were those the officers that worked the northside precinct during April 1993?

A. Yes, sir. It appears to be so.

Q. Okay. And you knew all of them personally, and even though you didn't know the name of one of them, you knew that officer by his face and everything?

A. Yes.

MR. MOORE: Your Honor, at this time, we would tender Defendant's Exhibit Number 14 through Defendant's Exhibit Number 44.

Now lead defense counsel Johnny Moore stated without exception these photographs were of all the police officer who worked at the Northside Precinct on April 15, 1993, and the district attorney who furnished the photographs in response to Moore’s subpoena did not quarrel with Counsel Moore about the number of photographs furnished. Now who is missing from Stone’s photograph-to-name matches? It is none other than Officer Michael Chapel, Sergeant Stone’s close friend. Who was the officer in D-14, the name of whom escaped Stone, but who knew the officer by his face? By process of elimination, D-14 must be a photograph of Officer Michael Chapel. This becomes critical when eyewitness Karl Kautter’s trial testimony is examined.

KARL KAUTTER’S TRIAL TESTIMONY

Karl Kautter’s experiences on the night of the murder are by now well described by elements from his statement just after the murder, his testimony on July 7, 1995 and elements of his and his driver’s testimony at trial. At trial, there was an area of Kautter’s testimony that relates to Johnny Moore’s direct examination of Sergeant Stone for the defense.

At the hearing of July 7, 1995, Kautter was handed the same deck of photographs that Sergeant Stone was to later identify. He was then asked if any of the officers on the likenesses seemed familiar. Kautter then selected photograph 20 -- Officer J.P. Morgan, photograph 27 -- Officer Mornings and Photograph 30 – Sergeant Stratameyer.

At trial, Danny Porter showed Kautter D-38, identified by Stone as Sergeant Stratameyer, and asked him if that was the officer that passed he and Omodt on PIB just north of the muffler shop driveway. Kautter responded that it was not, but the officer looked like him. Porter then showed Kautter what Porter said was photograph D-31, identified by Stone as Officer J.P. Morgan and asked if that officer is the one that passed he and Omodt that night. Kautter replied: “That is not J.P. Morgan”. Porter then asked Kautter the exact same question, and Kautter started to give the same answer. When Porter realized this, he interrupted Kautter and asked him again whether the officer in photograph D-31 was the officer that passed he and Omodt just north of the muffler shop on PIB on the night of the murder. At that point, all the air seemed to go out of Kautter, and he meekly replied: “To the best of my knowledge, yes”. This testimony is reproduced in (GHCP, 5-41-42).

In his closing argument, Danny Porter would admonish the jurors to “look very carefully at the D-38 photograph. Was this another of Porter’s “switcheroos”? Was it meant to confound and confuse the jury? The hallmark of Chapel’s jury was indeed total confusion.

CHAPEL’S “BLOODY” RAINCOAT

MEDICAL EXAMINER, MD BRIAN FRIST’S BLOOD SPATTER TESTIMONY

As Michael Chapel’s trial began on August 2, 1995, one of the first witnesses was CST Judy Graham. During her testimony, Prosecutor Smeal attempted to lay a foundation for high velocity (HV) blood spatter on the victim’s vehicle driver’s door. As Smeal was questioning Graham about the crime scene photographs both made sure that State’s Exhibits 17 and 18 (CS-States 17 and 18) were identified as photographs of the driver’s door. As the postcard size photograph exhibits were shown from a distance in front of the jury box by Smeal, he identified Exhibit 17 as “Exhibit 17”. A juror with good eyesight in the front row could read the legend at the bottom of the photograph, and he casually remarked “passenger door” aloud. Smeal immediately stated: “Yes, this was identified as a picture of the passenger door” (GHCP, 14-3). It was not of course, but with so little information about these photographs, the juror was trying to relate the photo to CST Graham’s testimony and involuntarily uttered his thought out loud when he was able to read the legend at the bottom of the photograph.

The juror did not know what he had done, but District Attorney Danny Porter certainly knew the consequences of that juror’s utterance. At the beginning of the day, Porter told the court that he would bring the Medical Examiner, Dr. Brian Frist to the stand to discuss several issues, one of which was high velocity blood spatter.

Now, because Prosecutor Smeal and CST Judy Graham had failed to lay a foundation for HV blood spatter on Chapel’s raincoat, when Dr. Frist testified two witnesses later, the jury seemed to now know enough of Porter’s plan that, without preparation, Porter did not dare ask the Medical Examiner for his planned blood spatter testimony on the raincoat without a foundation.

After his testimony on the 22^nd, Dr. Frist was asked by District Attorney Porter to perform a high velocity blood spatter analysis of Chapel’s raincoat by looking at pictures of the crime scene. Porter meant to use this analysis as a new foundation for Frist’s blood spatter testimony. Dr. Frist of course was not constantly in the courtroom, and he had no idea why Porter asked for the analysis, but he agreed to do it.

As the day started on the 29^th, Prosecutor Porter told the assemblage that he was recalling Dr. Frist, but only for the purpose of asking a hypothetical question about the time interval between shots. He in fact did this almost as an afterthought, but the real purpose of the recall was to attempt to repair the failed foundation for blood spatter on Chapel’s raincoat. Mrs. Rogan smelled the coming blood spatter testimony and said so.

The Prosecution’s case was winding down, and Porter was counting on the juror’s memories being clouded after several days of mind-numbing DNA testimony. Dr. Frist was again called to the stand. Unaware of the near destruction of the State’s case when Smeal and CST Graham were unable to lay a blood spatter foundation on the 22^nd, Dr. Frist was asked by District Attorney to do just that. Frist had been shown the same photographs showing the pattern of blood spatter (not HV) inside the victim’s vehicle and asked to prepare a HV blood spatter analysis for a second round of testimony. During voir dire on his blood spatter qualifications and in her cross-examination of the hapless medical examiner’s direct testimony, Mrs. Rogan performed admirably, and this should have put paid to the HV blood spatter issue. It did not, and eventually the District Attorney managed to admit Chapel’s rain jacket by clouding that issue with a mound of contradictory testimony from Dr. Frist and Kelly Fite.

Counsel Elizabeth Rogan was clearly unhappy about Dr. Frist’s blood spatter expert witness Qualifications. Before she began her cross of Frist, she was given the opportunity for voir dire. Dr. Frist admitted that his knowledge of blood spatter came for the most part from viewing bodies in his capacity as a forensic pathologist as he viewed bodies during his autopsies. When Mrs. Rogan suggested that blood spatter was a study of blood that issued from bodies not from the bodies themselves, Dr. Frist tapped danced around the issue. Frist did not fare well during the entire voir dire, and Mrs. Rogan objected to his qualifications; however Judge Bishop found him qualified.

During cross-examination, Dr. Frist admitted to Mrs. Rogan that he had not examined the victim’s car, had not been to the crime scene and had not mentioned anything about blood spatter in his autopsy report. He said that people from the District Attorney’s Office asked him to do the blood spatter analysis from photographs of the interior of the victim’s car. These included the exact photographs that Prosecutor Smeal and CST Graham attempted and failed to use as a foundation for the blood spatter and were thwarted by a casual remark by a juror.

Nevertheless Frist went on to describe blood spatter on the same door and console that Smeal and Graham had tried to palm off to the jury as being the driver’s door and console. Frist continued on with nonsense statements about blood in the car such as a significant amount of blood on the passenger seat (CS-Passenger Seat) going out toward the passenger door where there was none, etc. When he was asked when he did his analysis, Frist replied it was before the trial, but then changed that to a week or to before. This was the 29^th of August, and one week before would have been the 22^nd. Significantly the 22^nd was the day the state’s blood spatter case fell apart.

GBI TOOL MARKING TECHNICIAN KELLY FITE’S BLOOD SPATTER TESTIMONY

Fite’s blood spatter testimony is treated just as Frist’s, but Moore cross-examined Kelly Fite. Moore was much more gentle than Rogan, and accepted Fite as an expert blood spatter witness almost without question. What he did establish was that Fite did his blood spatter analysis on August 24, 1995, two days after the juror almost destroyed the Prosecution’s case.

Why was Elizabeth Rogan not allowed to handle Fite as a blood spatter witness? She would have torn him to pieces based on her cross of Frist. To his credit, Johnnie Moore did object to Kelly Fite’s qualifications as a blood spatter expert, but Judge Bishop found him qualified anyway.

Fite concluded that the spots he marked in black Chapel’s raincoat were high velocity blood spatter. He stated that he first saw the raincoat on July 7, 1993, the same day that Jennifer Wilson, a qualified GBI serologist tested the garment for human blood and found only 7 or 8 small spots that qualified (BS-Raincoat-1). These she circled in blue (BS-Raincoat-1). Fite then mentioned a police report about the raincoat on June 22, 1995, but this report was never produced or admitted into evidence. Finally, mentioned the date August 24, 1995, 2 days after the Prosecution blood spatter foundation fiasco for the final report.

To ascertain that the spots he marked in black (BS-Raincoat-2) were high velocity blood spatter, Fite merely looked at the garment and compared the spots he found to be similar to those marked by serologist Jennifer Wilson in blue, not exactly scientific*.

THE PROSECUTION’S CLOSING STATEMENT (GHCP, 12-1-10)

The prosecution’s closing argument was rife with his personal opinions and falsehoods each of which could be found to be reversible error. Cumulatively these errors must be found to be cause for reversal.

The District Attorney argued the accused and defense witnesses and attorneys were all liars (TR, 6637). US Supreme Court: The prosecutor engaged in improper excess of advocacy when he called the defense witnesses, by default would include the accused liars; it is improper for a prosecutor to directly express his opinion of a witness [again including accused]. 464 US 862, 104 S.Ct 192,78 led 2D 169 (1983). Trial testimony and other case citations in (GHCP, 12-1).

The District Attorney expressed his opinion that the jury should get even with Chapel (TR, 6649). This is improper language for a prosecutor at anytime. U.S. v. DOE, 860 F.2d 488 (1st Cir. 1988), US v. Doe 860 F.2d 488, U.S. v. YOUNG, 45 F.3d 1405 (10th Cir. 1995), Berger v. U.S 295 U.S. 078 (1935), ABA Standard for Criminal Justice 4-78. Trial testimony and case citations in (GHCP, 12-3).

The District Attorney argued defense counsel lied. (TR, 6664). U.S. v. McLain, 823 F.2d 1462, Federal Rules for Criminal Procedure 52(b). Trial testimony and other citations in (GHCP, 12-3).

The District Attorney Argued that Chapel had impugned the Honor of the Police (TR, 66-37). Porter then commented only about the testimony of Officer Brian Reddy as if he were Chapel. Reddy lied about his location that night (TR, 4973), (GHCP, 12-4). On the night of Chapel’s arrest, Chapel, Officer Reddy and Sgt. Stone rendezvoused in the church parking lot, and all left the Parking lot to again rendezvous at Fire14 to ride out the storm watching a TV movie and storm bulletins. Chapel left Fire-14 just before 10 PM, Reddy about 10, and Stone sometime after 10:17. On the day of Chapel’s arrest, he lied about Chapel’s presence at the Firehouse, recanted that same night, then, under clever questioning by Prosecutor Porter, he appeared to lie again on the same issue on the stand when he stated that he did not see Chapel again after he left the parking lot but cleverly he did not say which parking lot. If it was the church parking lot, indicated by the Prosecutor’s previous question, he lied. If it was the fire-14 parking lot it was true, but the jury was left to believe that Reddy did not see Chapel after leaving the church parking lot at 8:30 PM (TR, 4972), (GHCP, 12-6,7). Thus this cooperation between the Prosecutor with his questions and Reddy’s answer about leaving the parking lot amounted to suborned perjury[23] (GHCP, 12-4). During cross-examination by Elizabeth Rogan, Reddy then admitted that Chapel was with them in the firehouse, but the damage had already been done. Reddy again lied when at trial he explained that he did not tell anyone about owning a weapon of the same type as used in the murder. He only admitted this when, just before Chapel’s trial, the prosecution advised him they were checking area gun stores for Reddy’s purchases (TR, 4976), (GHCP, 12-4). The only other officer that Porter denounced Chapel for defaming could only have been Sugar Hill Marshall Robertson, who was for a few minutes a prime suspect, but Robertson never testified.

The District Attorney again played upon the sympathies of the jury when he triumphantly waved Chapel’s raincoat, with many marks that supposedly indicated HV blood spatter (Remember State’s Exhibits 17 and 18). He then placed the garment in a prominent place directly in front of the jury. (Trial testimony and other citations in (GHCP, 12-7,8). The last thing that Porter did in his closing was to wave pictures of the live and vibrant victim in one hand and her body after removal from her car in the other, and said that Chapel had reduced one to the other.

In his closing argument, the District Attorney ridiculed the defense and the defense witnesses. (TR, 6640), (GHCP, 12-8). Just before trial, Porter met with the four firefighters, both in a group and individually that had in writing on April 27, 1993 stated that Chapel had been with them at Fire-14 from 8:30 to 10PM on the night of the murder. During these meetings Porter attempted to plant a false memory about the movie they were watching that night. He managed to convince one of them, Pierce, that he had been watching a cable movie that ended at 9:30 when Chapel left. Another firefighter, Sloan, though maintained it was a broadcast move with weather bulletins in a scrawl at the bottom, and Pierce was watching the same movie as they were (TR, 5555, 5565, 5575, 5599, 5611), (GHCP, 6-18 – 6-27).

The District Attorney vouched for the credibility of government witness when he talked about Witness Choi’s testimony about the GBI, DNA work, US v. Cotnam (TR, 6646), (GHCP, 12-9), F.3d, 487, U.S. v. Carroll, 26 F.3d 1380, U.S. v. Manning 25 F.3d 570. 572-74, (TR, 6644), (GHCP, 12-9). These District Attorney comments in his closing amounted to another example of District Attorney’s testifying in the entire trial, ABA Standards for Criminal Justice § 3-5.2, 3-5.8 and “Courtroom Demeanor”, US v. Barr (1985) 605 F. Supp. 114, (TR, 6644), GHCP, 12-9).

The District Attorney illegally commented on the demeanor or the accused during his interrogation and trial U.S. v. Leal F.3d 219, 225 et. al., US v. Eyster, 948 F.2d 1196 [1]. Eyster is also another good example of vouching for a government witness. An example would be the subtle way Porter played this to the jury describing the suffering of Chapel’s interrogators on the 23^rd, John Latty and Jack Burnette, who then would plunge themselves into Chapel’s illegal conviction after the 27th at any cost. Mr. Porter then went on to illegally urge the jury to convict Chapel because of his courtroom behavior, U.S. v. Wright, 489 F.2d 1181: The government may not express his or her own opinion or urge the jury to accept that opinion in opening and closing arguments. United States v. Mount, 896 F.2d 612, 625-26.

OTHER PROSECUTORIAL MISCONDUCT

The District Attorney failed to correct the record after implying to the jury that there were additional witness, leaving each juror to make up his or her mind about whether additional witnesses were unavailable to testify or whether the witnesses had testified and they could not remember that testimony. The Georgia Habeas Court dismissed this as a product of a long trial with many witnesses, but the context to this misinformation was powerful in that Porter in his cross-examination asked Chapel whether witnesses, mythical Firefighter Peters was lying (TR, 6280), (GHCP, 12-11), and on three different occasions to Bobby and Sarah Guthrie or the Guthries (TR, 3316), (TR, 6570), (TR, 6782), (GHCP, 12-12). District Attorney Danny Porter is genetically incapable of this kind error, and the fact that there were two of his associates and two defense attorneys in the courtroom to call this to his attention so the record could be corrected is enough to make this “failure to correct” illegal. This also presents some Sixth Amendments problems for the District Attorney and the State of Georgia. Since these witnesses were made-up by the prosecution, Chapel would never have a chance to confront them before his jury. The jury could well have been influenced by their [perceived] uncontested testimony.

The District Attorney attempted to mislead the Court and jury during the entire trial, but one incident seems quintessential of his tactics. Mr. Porter proved his mastery of minutia when he elevated the “Testron Incident” to a blatant attempt by Chapel to lie to the jury. Testron was a nutritional supplement Chapel sold to his members at this Gym. He bought 18 bottles of Testron just before the murder, and the manufacturer as a matter of policy for larger buyers awarded him 4 more. On the night of the murder, Chapel told Brian Reddy of his receipt of 18/4 bottles of Testron. GCPD Lieutenant Powell did an analysis of that MDT traffic. At trial, defense counsel Elizabeth Rogan asked Powell whether Chapel had told Reddy that he, Chapel, had sold 184 bottles of Testron (TR, 5852), (GHCP, 12-14). Lt. Powell answered there was no such entry. Porter then verified this with Lt. Powell (TR, 5866), (GHCP, 12-14). The next day during Porter’s cross-examination of Chapel, he asked the defendant whether he remembered Powell’s testimony of the previous day 6275), (GHCP, 12-14). Chapel responded that he did. Porter then lied to Chapel that Lt. Powell had testified that Chapel had sold 184 bottles of Testron at $30 each (TR, 6278), (GHCP, 12-14). Chapel responded that he had never said that he had sold 184 bottles of Testron. Porter then charged Chapel that in his direct testimony; Chapel did not correct the record of Powell’s testimony. He accused Chapel of lying to the jury in an attempt to make them believe that the money he had after the murder was from that transaction. Chapel again denied this charge. The jury was aghast; they did not remember Powell’s testimony. The other four attorneys in the courtroom clearly did not remember Powell’s testimony either. If they had, the defense attorneys would have strenuously objected, and Porter’s two assistants would have tried to calm Porter and reminded him of just what Powell testified to the day before. This is of course if they did not know what Porter was doing. Porter loved the Testron gambit so much spent a good deal of time on it in closing (TR, 6247), (GHCP, 12-15). He accused Chapel of trying to go into the MDT records, the telephone records and the financial records that he himself must have ordered and now was fighting to keep out of Chapel’s trial. He still insisted that Powell had said Chapel said he sold 184 bottles of Testron and finally, he once again accused Chapel of lying to the jury about Testron. He told the jury that Chapel said during his testimony that the truth would eventually come out, but it was not until his cross-examination of the defendant that “he was prepared to acknowledge the truth. These were all unfounded lies. The truth was, of course, Porter was lying to the jury about these events. The truth was that Porter did not have any issues except the planted DNA evidence to bring up in closing. Thus he, Porter chose to give the jury “a pack of lies, innuendo and outright falsehoods”. Chapel was innocent of all these charges, and Porter was guilty of everything he charged Chapel with in his closing argument. See (GHCP, 12-1) for citations.

DISCUSSION – PROSECUTORIAL MISCONDUCT

Until only a few months before the submission of this petition, Chapel had no idea of the depths of corruption involved in his arrest, pre-trial, trial and post-trial events by officers of the Gwinnett County police and the District Attorneys surrounding his case. It was one thing to believe in the extent of prosecutorial misconduct and ineffective assistance of defense counsel he complained of in his state habeas, but quite another thing to explain the shock he experienced from the most recent revelations as discussed above.

The misidentification of State’s Exhibits 17 and 18 as photographs of the driver’s door by CST Judy Graham in response to Prosecutor Smeal’s prompting was not accidental as was assumed in Chapel’s Georgia Habeas Corpus Petition. The misidentification was deliberate, and the reason for the misidentification was to lay a foundation for the testimony of Gwinnett County Medical Examiner Brian Frist and GBI Technician Kelly Fite. When a juror’s offhand and out-loud comment correcting Prosecutor Smeal was innocently made, Smeal lied to the jury about the identification. The innocent comment by a juror ruined a major strategy of the prosecution, and Exhibits 17 and 18 were never mentioned again except indirectly and incorrectly by the medical examiner, Dr. Frist, in the trial. This violation of the civil rights guaranteed Chapel under the Fifth Amendment to the Constitution stands proven by the exhibits themselves and the questions, answers and other information contained in the official transcript of Petitioner’s trial. The same analysis holds true for the photographs in State’s Exhibits 12 and 13. The official transcript itself proves that the jury was not allowed to view these exhibits during the trial. The Prosecution feared the photographs would, in their unaltered state, indicate to the jury the true trajectory of shot 2. They also feared that these exhibits would demonstrate to the jury a description of what high velocity blood spatter looked like, both forward and rearward.

The same analysis holds true for the altered photographs of the exterior photographs found in the defense file. Some were used as trial exhibits and some were not, but most if not all of them and their reversed negatives were altered in some way.

There is no question the Prosecution knew about these photographs and in fact was the originator of this misidentification strategy as well as that of the hidden and altered photographs. Thus the prosecution in all of these actions violated the defendant’s Fifth Amendment rights to due process, and this deliberate misrepresentation should invalidate Chapel’s conviction. Miller v. Pate, 87 US 785, 87 S.Ct. 785 (1967). In Mooney v. Holohan 294 US 103, 55 SCT 340, 79 L.Ed, 2^d 791, The US Supreme Court held that the Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence. There have been no deviations from that established principle Napue v. People of State of Illinois, 360 US 264, 79 S.Ct 1173, 3 L.Ed 2d 1217, et. al. Thus, the Prosecution in his trial and its pre and post activities also deliberately violated Chapel’s Fourteenth Amendment rights.

GROUND 8 – JUROR MISCONDUCT

This ground is well covered in the Georgia State Habeas Corpus Petition (GHCP, 13-1 TO 13-5). The antics of young Juror Ford can probably be overlooked, but the remark made by Juror Knowlson about Chapel being railroaded and reported to Judge Bishop by Juror McAfee perhaps deserve more comment. The complete comment was reputed to be that Knowlson said Chapel was being railroaded and he knew that at least one other juror agreed with him.

The question would be whether a juror so accused would allow himself to be further implicated in deliberations? This would go for the other jurors sympathetic to the Defendant as well. There was serious trauma inflicted on the jury after this report by Mrs. Mcafee. Each juror was brought alone into the courtroom and questioned about remarks made amongst all the jurors.

If Mrs. McAfee were telling the truth, Mr. Knowlson should never have been allowed into deliberations. He would certainly be on one or the other extreme because of the incident, and in either event he could not be counted on to vote his true conviction regarding guilt or innocence. On the other hand, if Mrs. McAfee were lying, it would have been for some unfathomable and unreasonable reason[24], and she should never have been allowed into deliberations.

There is no question that the district attorney felt he was behind at this point. The “blood spattered” raincoat evidence[25] that he had counted on to convict was in a shambles. His only foundation were the opinions of Brian Frist and Kelly Fite, who after the disaster of the 22^nd, had to step in to provide a foundation, and neither of them could really qualify as an expert in that field. Dr. Frist would have the jury believe that he could explain the blood on the raincoat by simply looking at the body, and Kelly Fite testified that spots on the raincoat were human blood because they looked like those marked on the raincoat by a qualified serologist. If the spots that Fite saw on April 24, 1995, two days after testimony in the trial began, were human blood, why did not the GBI serologist, Jennifer Wilson, mark them in her analysis of July 7, 1993?

Going into closing arguments, Danny Porter was so desperate that he engaged in the most vituperative denunciation of the Defendant and all connected with him in an attempt to disabuse the jury of the shortcomings of his own case. When a careful analysis is made and all the inapplicable, illegal and just plain wrong statements made in that argument are removed, the only words remaining are “Thank you.”

GROUND 9 – INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Johnny Moore and Elizabeth Rogan had already shown their ineffectiveness from the first day of trial when they passed with no objections on State’s Exhibits 12 and 13, the photographs that were hidden from viewing by the jury. They also did not support the jury when they asked to see the exhibits. They also passed on their opportunity to examine State’s Exhibits 17 and 18 where the prosecution would try to lay a false foundation for blood spatter in the victim’s automobile. Throughout the trial, the ineffectiveness of assistance of defense counsel can be measured by what the Prosecution was allowed to do.

There two occasions however that can only be described as collusion by the defense in their aiding of the Prosecution’s case, and these should be commented on.

Prosecutor Smeal asked and received permission to just hold up the postcard sized* crime scene photo exhibits to the jury by holding them up several feet in front of the jury box. Smeal began by showing small photos to the jury and identify them by simply stating their exhibit number (TR, 3248), (GHCP, 14). When the jury challenged Prosecutor Smeal on the identification of these photographs, both defense attorneys sat on their hands. In fact, after this challenge, Johnny Moore invited Smeal to get farther from the jury so they could not read the legends on the photographs. Moore broke into the proceedings with a comment to Judge Bishop about TV cameras and Smeal being to close to the jury (TR, 3248), (GHCP, 15-4). He in fact gave Smeal the opportunity to move farther away from the jury with his postcard sized photo exhibits. This, the relieved Smeal then gratefully and immediately did. This is just one example of the defense collaborating with the prosecution to produce the conviction of Michael Chapel.

As another proof of this corroboration between the prosecution and defense, Johnny Moore introduced information that was prejudicial to his client. These were rumors in Gwinnett County that were pushed by the GCPD and the District Attorney after Chapel’s arrest that Chapel had been involved in two other crimes, an armored car robbery in Dekalb County, and the murder of a “Russian” in Gwinnett because the body was found in Chapel’s zone. If there had been a scintilla of evidence, the police and District Attorney would have immediately pounced on Chapel.

When cross-examining GCPD Captain Ronald Davis, Moore invited Davis to testify about other crimes where Chapel was a suspect (TR, 4286), (GHCP, 15-5[26]). Of course the Prosecution could not do this, so Johnny Moore accommodated his former protégé with this unconstitutional, illegal, unethical and unprecedented act.

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[1] Francis v. Henderson 425 US 536, 538, 96 S.Ct. 1708, 1709, 48 LE.2d 149] (1963); Fay v Noia, 372 US 391, 398-399 83 S.Ct. 822, 826-827, 9, LE.2d 837 (1963).

[2] US v. Frady, 456 US 152 102 S.Ct. 1596 71 L.Ed2d 837 (1952).

[3] Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 2649-50, 91 L. Ed.2d 397 (1986).

* Two copies of the Petitioner’s Georgia State Habeas Corpus Petition (GHCP) are included with this Petition. The Georgia Attorney General and the Warden of the Georgia State Prison at Reidsville already should have in their possession copies of that document furnished them in connection with the Georgia State Habeas Corpus Appeal.. If these organizations cannot locate the documents, they may download copies from the web at http://projectinjustice.org/chapel/

[4] Chapel maintains in so doing that court caused an error of constitutional dimensions in that all other of Chapels claims were not heard (US v. Frady 456 US 152, 102 S.Ct. 1596, 71 L.Ed.2d 816 (1952).

[5] Chapel was investigated and cleared in the Longhorn robbery. He is accused in the murder of the Russian and the armored car robbery, but, since both cases were still open at the time, the police would not make public their evidence. Chapel was investigated as to drug charges and cleared. The wink in the article should be taken at face value.

[6] Chapel v. Hall, State Habeas Ruling p. 5, Conclusion of Law

[7] Strickland v. Washington, 466 US 668, 104 S.Ct at 2056 (1984)

[8] Townsend v. Sain, 372 US 313, 83 S.Ct at 757

[9] Murray v. Carrier, 477 US 496, 106 S.Ct at 2649-2650, McClessky v. Zant, 499 US 494, 111 S.Ct at 1470.

[10] Strickland, Supra 2067-2069

[11] Chapel v. Hall, H.C. Ruling.

[12] A signed document by Mott will be forthcoming to further show that Chapel did not see Mott’s appeal before it was presented.

[13] Supreme Court of Georgia, Case Number S02H0028 (September 18, 2002)

[14] Barker V. Wingo, 407 U.S. 514 (1972) , 407 U.S. 514 (OSCN 2003)

[15] United States v. Schlei, 122

[16] In State v. Hight,156 Ga. App. 246 (1980), 274 S.E. 2d 638, citing Dillingham, (Dillingham v. United States, 423 U.S. 64, 65 (96 SC 303, 46 L.Ed. 2d 205)), and Marion, (United States v. Marion, 404 U.S. 307, 321 (93 SC 455, 30 L.Ed.2d 468)), it was held that a suspect becomes an “accused” and the right to a speedy trial under the Sixth Amendment begins running at the time of arrest. Thus the speedy trial clock for Chapel should have been started at this point in his interrogation.

[17] Britt was the part-time city attorney for several cities in Gwinnett County and did occasional part-time work in unrelated areas for Gwinnett County.

[18] Chapel v. State, 264 Ga. 267 (1994).

[19] Townsend v. Sain, Supra at 313

[20] Chapel v. State, Supra p. 4

[21] United States v. Reed, 887 F.2d 1398, 1404 (11^th Cir 1989) p.4

[22] 28 USC § 2254(e)(2)(A)(ii) and (B) Fed. Cr.C..R.

* Marco described the first officer to arrive as older. Lt. Latty identified one of the officers as Mike Plunket (TR, 4488) (GHCP, 11-2), Marco described the second officer to arrive as tall and younger than the first. Latty testified they identified the two officers but was not asked to give their names.

# See GHCP Ground Fourteen for actual testimony regarding these photographs.

* At the time, Petitioner thought Mr. Moore’s mind was just wandering from the testimony.

* Dr. Frist claimed he could do the same.

[23] US v. Augers, 427 US97, 103 S.CT 2392,L.Ed 2d 342 (1976), (TR, 4973)

[24] It was rumored among the jurors that Mrs. McAfee’s son was in the Gwinnett County Jail awaiting sentencing.

[25] Even in Miller, the “bloody shorts” were never called into such question as this “bloody raincoat” was (Miller v. Pate, 386 US 1, 87 S.Ct 785 (1967).

* It is curious indeed that the crime scene photographs were display as only postcard sized when even the photograph of Chapel’s wife Eren was blown up to poster size.

[26] AJC Article