The View From Under The Bus
In the 1600's, French philosopher Rene Descartes wrote, "In order to know anything with certainty, we must first question that which we deem to know."
Unfortunately, people are generally apathetic towards issues that don't personally affect them. But in recent years, because of extensive media exposure, there's been a trend in our society to instigate thinking that won't accept the status quo, reaching a level of consciousness that's strong enough to instigate change. Even so, it took years of seeing countless acts of police brutality to enact legislation and policy changes to prevent such acts without consequences.
My purpose is to attack the criminal justice system from another angle by calling attention to systemic flaws in the judicial system, beginning with the state courts where the violation of defendants' constitutional rights have been prevalent for so long that it has become the accepted paradigm. District attorneys and police agencies are more focused on obtaining convictions than seeking the truth in the interest of justice, the onus placed upon them when appointed to their positions. It's estimated that 1% of the prison population were wrongly convicted, and it's nearly impossible to be exonerated.
My name is Joseph Cua, and I was convicted in 2008 for the murder of my friends, Fernand and Suzanne Wagner, with special circumstances for using a knife. From day one I have maintained my innocence, but have now spent 17 years without my freedom for a crime I did not commit. I now possess the perspicacity of how it happened, and feel compelled to tell my story. I will offer facts and documentation and allow the reader to make his own conclusions. I will also offer insight into who I am both before and after my incarceration and discuss people in my life who profoundly influenced me and how this story played out.
A MISCARRIAGE OF JUSTICE!
An illegal arrest
I was arrested based on double hearsay claims taken over the phone be a 3rd party living 1800 miles away - of my having severe bruising to my face, ribs and hands - that turned out to be false.
Exculpatory evidence
The DNA and forensic evidence pointing to a 3rd party was overwhelming (bloody fingerprint, bloody footprints, third party DNA, including on the bodies, in a diluted blood spot on the toilet seat cover, and on the staircase) and raised more than a reasonable doubt. The prosecutor tried and failed to use false testimony to prove I was present when the crime occurred, and failed to link me to any of the weapons used. Although Fernand's knuckles indicated he fought, I had no injuries to indicate I'd been in an altercation.
Prosecutorial misconduct
Sean Gallagher knowingly elicited false testimony from witnesses to prove I was at the scene when the crime occurred, that I left an incriminating voicemail when there was no evidence of such from records, and led a witness to negate exculpatory evidence by an expert witness. He withheld evidence so he could do so, and supported the false testimony/perjured testimony he had suborned from witnesses and argued against the evidence given during the trial in his closing arguments. All of which violated state and federal constitutional law
Court error
The court cannot lessen the prosecution's burden of proof; yet it did so by instructing the jury that (1) it wasn't necessary to know when the crime occurred; (2) gave an instruction on my fleeing the area, which the prosecutor knew to be untrue; (3) failed to give required instructions on the defense theory/evidence; (4) failed to instruct on the requirements for guilt regarding use of a knife, for which I was charged; and (5) failed to effect answers to jurors' written questions. All of the above violated constitutional law.
It's been estimated that about 4-6% of the prison population in the U.S. should not have been convicted and imprisoned. The following is just one of these stories. I will present the facts about my arrest and trial, and allow you to formulate your opinion on the case. If the constitutional violations presented happened to me, they've also happened to countless others in hundreds of courts across the country.
The Anatomy of a Wrongful Conviction
An illegal arrest
My Kafkaesque nightmare began on the evening of June 18, 2006, when I was arrested in Oxnard, CA after dropping off the registration for a sailboat I'd sold on EBAY. The affidavits for warrants for my arrest and search and seizure stated that I had extensive bruising to my chin, ribs and hands. That information was double hearsay, given over the phone by a party in Iowa who had no fi r s t hand knowledge of the situation, and was not corroborated by authorities prior to issuing the warrants. My ex, Joy Desomber, het alleged source of the information, wasn't interviewed until six hours after the warrants were issued. Most importantly, the claims of the bruising on my person were false. Det. Taylor, who interviewed me five days after the murders testified during the trial that he saw no bruising on my face, torso or hands, as the affidavits for warrants indicated.
When any part of an affidavit is false, the warrant is void and a subsequent arrest is illegal. My attorney, Ed Pomeroy, had sufficient cause to attack the validity of the warrants under Penal code 995 (which I urged him to do so on numerous occasions), but he failed to do so. He also should have filed a P.C. 1538.5 motion to suppress any illegally obtained evidence. Had he filed such motions, the case would have likely been dismissed; and the police would have explored all avenues of investigation, instead of playing build-a-case against me.
I discovered that my ex mother in law, Linda Desomber, suspected my involvement in the crime when she read a few days after the incident that the Wagners had been severely beaten, not shot as I had told her daughter, Joy - the question being: Why did I lie about how the Wagners were killed unless I did it? Lost in their hysteria, Joy and Linda forgot that initial news accounts stated that someone had heard a shot. Marc Wagner testified that he called to tell me about the shooting according to information given him by Barbara Chagniot, whose husband, Phillip, had been at the scene, told her that his uncle had been shot.
Prosecutor’s case theory
ADA Sean Gallagher theorized that I committed the murders soon after I spoke on the Wagners' house phone with Edith Edmonds, a mutual friend of the Wagners and mine around 9:30 a.m. on 6/13/06. He speculated that I set up the scene to look like a sex crime (Suzanne was found lying nude in the den), then fled the Bay Area to Southern California, driving down Hi. 101 instead of I-5 (the quicker route) in order to get rid of evidence along the way - after canceling a flight from Oakland to Ontario.
The trial
The axiom of criminal law is that the defendant must be proven guilty beyond a reasonable doubt. The prosecutor has the burden of proving not only that a crime occurred; he must also prove that the defendant was the one who committed the crime. The court must test the prosecutor's narrative against alternative hypotheses. If it's not possible to rule out any other explanations, there exists reasonable doubt, and the court must acquit. The minimal requirement for a guilty verdict is that the defendant was at the crime scene when it occurred (opportunity), had the means to do so, and any and all other potential perpetrators can be ruled out.
During the trial, the following exculpatory evidence was given by forensic experts: (a) a bloody fingerprint on Suzanne's belt was attributed to an unknown third party - the onsite coroner stated in his report that the bruising on Suzanne's neck matched the belt found next to her on the floor; (b) bloody crime scene footprints did not match any of my shoes; (c) unknown third party DNA was found on Suzanne's breast, under fingernails on both hands, in a diluted blood spot on the toilet seat cover, in blood on the staircase, in a blood spot on Fernand's shoulder, and in blood on the front and back of Fernand's pants. All of the above had to be left during the commission of the crime and raised reasonable doubt as to my guilt.
The prosecutor knowingly used perjured testimony from a detective to prove when the crime occurred and that I was present at the time. His timeline for the time of death (TOD) was disproved numerous times, yet he still supported the perjury during his closing argument. There was no other evidence given as to the time of death, so the element of opportunity, necessary to support a guilty verdict, went unproven. Without establishing the TOD, the required elements of intent to kill and premeditation were also off the table.
When a weapon is used during the commission of a crime, a causal link must be established between the defendant and the weapon(s) used. No evidence was given linking me to either a knife or blunt force instrument like a bat or candlestick. Fernand was found lying face down with a cut from his Adam's apple to below his left ear, a pool of blood to the left of his head. The pathologist testified that the cut was made while he was still alive, so cause and effect dictates that the cut was made from behind and above by a left-hander. The only evidence given regarding a knife was that a steak knife was missing from a boxed knife set that was in a drawer; which was irrelevant since Fernand, a chef, had a plethora of knives on the kitchen counter. It would be unreasonable for someone to go into a drawer to grab a knife from a matched set of knives. In light of the messy crime scene, there would have been DNA/blood evidence on the drawer or around the knife set from the Wagners, or me had I grabbed such a knife. I had no bruising to my hands. Fernand and Suzanne had numerous lacerations to their heads and torsos which according to the pathologist were caused by a blunt force instrument - making any argument by the prosecutor that I had bruising to my hand moot, as well as false. Fernand had numerous scrapes/bruises across his knuckles, which means he fought and made contact. I had no bruising anywhere on my body, as Detective Taylor testified to at trial.
The jury was instructed: "Before you can rely on circumstantial evidence to conclude that every fact necessary to find the defendant's guilt has been proven, you must be convinced that the people have proven every fact essential to that conclusion beyond a reasonable doubt. If you can draw two or more conclusions, you must accept the one that points to innocence." The prosecution failed to meet the requirements for a guilty verdict since they failed to explain the unknown third party DNA/forensic evidence presented during the trial; failed to prove the element of opportunity, even with the use of false testimony; failed to prove I had the means to commit the crime since no causal link was made between the weapons used to cause Fernand's and Suzanne's injuries; and I had no injuries indicating that I'd been in a fight as was reported in the initial affidavits for warrants. Consequently, the jury misapplied the instruction given on the evidence.
Any verisimilitude of guilt in the jurors' minds wouldn't have existed were it not for the egregious amount of constitutional violations that occurred during the trial as explained on the following pages.
Prosecutorial misconduct
The prosecutor is an officer of the court whose duty it is to present a forceful case to the jury; but not to win at any cost. Sean Gallagher lost sight of that directive - violating state and federal constitutional law and even the penal code to obtain a conviction. A prosecutor cannot procure false evidence from a witness, cannot support such evidence or go outside or against the evidence presented during his closing argument, and cannot withhold impeaching or exculpatory evidence from the defense.
PERJURY is a violation of the CA Penal Code and is punishable by imprisonment for 2-4 years. Under P.C. 127 every person who willfully procures another person to commit perjury is guilty of suborning perjury, which is punishable in the same manner as he would be if personally guilty of the perjury procured.
To support his theory that I committed the crime around 9:30 a.m. on 6/13/06, Sean Gallagher knowingly elicited perjury from Det. John Aronis, who testified that he had studied the Wagners' caller ID and deduced, since he had the same machine at home, that only missed calls were listed on the caller ID. He and Gallagher went over each call listed, and he confirmed each one as a missed call - the inference being that the calls were missed because the Wagners had already been killed by me at around 9:30. However, near the end of the trial, Donald Kent, who lived two doors away from the Wagners, testified that he saw Fernand as he drove by and they waved to each other around noon per the police report. Then stipulations were entered that (1) Norbert Wagner, Fernand's brother, called and spoke with Fernand about the World Cup soccer match that they both were watching about 10:30 a.m., and (2) Lorraine Peterson spoke on the phone with both Wagners for about fifteen minutes, wishing Suzanne a happy birthday and discussing Fernand's health with him. Both of those calls had been testified to as missed calls by Det. Aronis. Gallagher's agreeing to those stipulations proves that he knew that he suborned false testimony from Aronis. Aronis knew that he was committing perjury since he knew from his investigation that the calls from Norbert and Lorraine had been answered by the Wagners. He even told his Sergeant in the police report, "The last call came in at 11:36 a.m. All calls after that were missed calls. The prosecution's case should time the prosecutor wanted the jury to believe I committed the crimes. But during cross-examination, Det. Aronis admitted that some calls had been answered, and I had been known to be in the house earlier - which went against the stipulations he had agreed to an hour earlier about the phone call from Lorraine and the conversations she had with both Wagners. Since there had been no other evidence about the time of death, the jury had to believe that I committed the murders when he posited I did.
Gallagher knowingly suborned perjury from Phillipe Chagniot, the Wagners' nephew, who testified that I left a voicemail on the morning of 6/16/06 that "I was in charge and would sell the buildings," which was prejudicial because it gave me the motive of getting a large commission from the sale of the buildings. Chagniot's testimony lacked foundation since the voicemail wasn't entered into evidence, rendering his testimony hearsay, which should not have been allowed by the court. Gallagher supported this perjury in his summation. Another point to consider is that I did not find out that the buildings would be sold until late afternoon from Marc Wagner, who found out my role in the probate from the attorney handling the matter. Prior to that, Marc and I were both under the impression that the properties would be held for the family in perpetuity, so we were surprised by the news.
Gallagher led criminalist, Mona Tento, to conclude that unknown third party DNA had been left by a guest on the guest bath toilet seat. She wasn't part of the crime scene crew, so didn't know that the DNA she had tested had come from a diluted blood spot on the toilet seat cover (not the seat), which meant that someone splashed onto the toilet seat cover while washing up. While her perjury wasn't perjurious, it was intentionally used by the prosecutor to negate exculpatory evidence that had been given weeks earlier. Gallagher supported this testimony by stating in his summation that a guest left the DNA on the toilet seat. Suzanne would not have let blood go uncleaned in the guest bath which was next door to the den on the first floor, and used by her to shower in the mornings.
Brady violation
The prosecution's suppression of the Aronis caller ID investigation and the Chagniot voicemail (if it existed) violated my due process rights. I have tried ardently to obtain both pieces of evidence, but have been unsuccessful in doing so; even though I obtained a discovery order from the San Mateo Superior Court for the district attorney and my counsel to provide me with post-conviction discovery. Had these items supported Aronis' and Chagniot's testimony, they would have been entered into evidence with alacrity. Gallagher also suppressed two pieces of evidence that were vital to my defense. Det. Taylor testified that he noticed a hair on Fernand's left hand. I discovered in the police reports that the hair was actually under his fingernail, making it much more relevant to the case since it probably got there during a struggle. After being told that none of the crime scene hair had enough material for DNA analysis, I asked my attorney to conduct a comparative analysis between the crime scene hair against samples taken from me and the Wagners, as to length, width, color, grain, bend, and ethnicity; but was ignored. I discovered in the police reports unidentified microscopic photos of hair. It's highly unlikely that such specialized photos be taken and a comparative analysis not be done. If the test results had incriminated me, they would have been turned over to the defense at the first opportunity. The police reports also indicated that internal/external vaginal swabs were taken, but no results were released to the defense or during the trial. The only reason to withhold such evidence would be if they pointed to another party, destroying the prosecution's speculation that I had set up the crime scene to look like a sex crime.
Misconduct during summation
The prosecutor's closing arguments are the last words the jury hears about the case. He cannot argue against or outside the evidence presented during the trial. Sean Gallagher violated this rule with impunity in this trial. He stated that I made a mistake by leaving the bloody footprints. He stated that Det. Taylor saw and photographed the bruising to my hand - when Taylor actually testified that he saw no bruising to my hand. Furthermore, the pathologist stated that the Wagners' injuries were caused by a blunt force instrument - making the claim of bruising to my hand moot; but saying so influenced the jury since they were inundated over four weeks by forensic and DNA data that was much too recondite for the average person to assimilate and comprehend. He also claimed that I had set up the scene to look like a sex crime and claimed that "We know that she wasn't sexually assaulted." - when pathologist, Thomas Rogers, was asked if Suzanne had been sexually assaulted, he replied, "I have no opinion on that." Furthermore, there was unknown third party DNA on Suzanne's breast and under her nails which excluded me.
Media prejudice
The DA released to the media upon my arrest that a "confidential informant" had pointed me out as the perpetrator, and "there was a mountain of evidence", inferring that it had already been tested and incriminated me. People who knew me and potential witnesses assumed my guilt from that account. Phillipe Chagniot was even willing to commit perjury to secure my conviction. The only reason for the prosecutor to commit these violations is that he felt he needed to in order to secure a conviction.
Ineffective assistance of counsel
Ed Pomeroy, my trial attorney, possessed the knowledge and evidence to destroy the prosecution's case but chose to allow Gallagher to violate constitutional law and even the penal code at will. He could easily have exposed the perjury of Det. Aronis and Phillipe Chagniot and objected to the lack of foundation for their testimonies relative to the caller ID information and the purported voicemail I left with Phillipe. He could have pointed out the discrepancy between Aronis' testimony that all calls on the morning of 6/13/06 were missed calls and his statement in the police report that the last call came in at 11:36, all calls after that were missed calls. I pointed out to my attorney that there was no record of my making a call to Phillipe on 6/16/06; but he remained silent. He was aware that there was no way for a guest to leave a blood spot on the toilet seat cover and not have Suzanne clean such immediately. Had Pomeroy impeached these testimonies, the dynamic of the trial would have changed drastically in my favor since the jury would have seen that the prosecution was willing to break the law to obtain a conviction.
He could have objected to the prosecutor's arguments that backed false testimony and contradicted evidence that had been presented. He should have noticed, as I did when reviewing the police reports, that the prosecution withheld key impeachment/exculpatory evidence from the defense. It's apparent that he was content to offer a mere modicum of representation; not the effective assistance of counsel guaranteed by the U.S. constitution. A defendant in the county court system is confronted by a conundrum fraught with irony: being represented by someone who is, in effect, paid by the system trying to convict him. Ed Pomeroy seemed unwilling to make the prosecutors and his investigators look bad when they had the ability to do so with evidence - and that failure seriously compromised my case.
Court error
Instructional errors by the court that lessen the prosecutor's burden of proof violate a defendant's rights to due process and a fair trial. The court undeniably lessened the prosecutor's burden of proof concerning the required element of opportunity by instructing the jury that it wasn't necessary to know when the crime happened, even though the prosecutor had already tried and failed to prove I was present when the crime occurred. This negated my constitutional right to establish an alibi.
"It is alleged that the crime took place on or about June 13, 2006. The people are not required to prove that the crime took place on that day, but only that it happened reasonably close to that day."
The court failed to issue defense theory instructions that I was entitled to, which would have reminded the jury that: (1) There was a plethora of exculpatory evidence that excluded me and pointed to an unknown third party perpetrator - which precluded a finding of guilt beyond a reasonable doubt; (2) the prosecutor failed to establish the time of death and my opportunity to commit the crime, using knowingly false testimony from a detective; (3) there was no evidence of the required element of intent to kill and premeditation necessary for a guilty verdict because the prosecution failed to prove I had the opportunity to commit the crime; and (4) the required element of "means" went unproven.
The court failed to instruct the jury as to the requirements for establishing guilt beyond a reasonable doubt of the weapons enhancement (P.C. 12022 - special circumstance for use of a weapon). This was important because there was no proof of a causal relationship between me and the weapons used during the crime, and "means" is a crucial element for a guilty verdict.
The court wrongly gave an instruction for the jury to consider "flight," based on the prosecution's theory that I canceled a scheduled flight from Oakland to Ontario (to get to my house in Hemet, Riverside County), then drove down Hi 101 instead of the shorter route I-5, so I could get rid of evidence along the way. The very fact that I had a flight reservation on 6/13/06 indicates that the trip was a planned one. The prosecution and my attorney knew that an eBay auction for a sailboat I had berthed in Oxnard closed around 10:30 a.m. on 6/14/06, and that I had received two emails on the previous day that indicated bids were coming. The market had been soft, and there had been no activity to that point. Expecting a sale, I no-showed the flight, then drove down 101 (the shorter route to Oxnard) to clean the boat, install some woodwork I'd been working on, and leave the pink slip on the boat for the new owner. Since I was doing that, I brought my hand and power tools for the remodeling I was doing on my father's house in San Diego and another boat I was working on in Long Beach. I told Det. Taylor about the boat sale and the auction page was readily available online. He testified that the tools were in the cab of the truck. I also took six large cane dining room chairs in my truck's bed to the Hemet house, which Joy testified to in the preliminary hearing.
Two jurors submitted written questions at the end of the trial, which the court is obligated to have answered. The jury was told that the raised issues would be answered by the attorneys in their closing arguments; but that never happened. There is a set procedure to assure that written questions are answered to the jurors' satisfaction which was not adhered to by the court, violating due process and my right to a fair trial. Following are the pertinent questions and why they were important to have answered, and which also indicate that at least two of the jurors had doubts about my guilt.
Jurors felt that there were unresolved issues to address prior to the closing arguments and jury deliberations.
Unresolved issues prior to jury deliberation
Why didn't Joy Cua testify?
This was pertinent because Joy had been touted as the prosecution's star witness but didn't testify at trial. She lied extensively during the preliminary hearing and police interviews, contradicting herself often. This was an opportunity for my attorney to push that issue, as well as influence the verdict towards innocence.What time was the Southwest flight canceled, or was Cua a no-show?
After deciding to drive to Oxnard because of the boat sale, I no-showed the scheduled flight to preclude a cancellation fee, which would kick in had I canceled the flight. Since I was driving the truck, I transported the six chairs Suzanne had given me. The explanation would have prevented the flight instruction.What size shoes does Cua wear?
The size and brands of my shoes, as well as their not matching the crime scene prints, had been explained a few hours earlier. Detailing this again may have prevented the prosecutor from falsely stating in his closing argument that I had mistakenly left the bloody footprints that were all over the house.What did Cua claim on his tax return?
It should have been explained that I claimed the income I received from my work with the Wagners on my tax return, which I never would have done had I embezzled those funds, which were about what I would have received for managing the properties. This would have prevented the court's instruction to consider embezzlement.Did family suspect Marc of involvement?
This was an irrelevant question since there was no evidence presented of Marc's involvement and he wasn't on trial.Was a candlestick used to cut Suzanne's vagina?
A candlestick would be considered a blunt force implement, not a cutting device. This indicates that at least one juror didn't comprehend the forensic evidence.What happened to the candlestick that was mentioned?
This had no bearing on the case.If fingerprints are wiped off an object, will non-identifying prints still remain?
This is an unbelievable question, indicating that some of the jurors were not equipped to discern guilt vs. innocence from the evidence.No dress found?
If a relevant dress had been found, it would have been entered into evidence. It's obvious from some of the questions that some of the jurors were absolutely not qualified to render a decision on this case based on the evidence presented to them. It's also obvious that there were pertinent questions that needed to be answered to allow for a fair verdict based on all the evidence being made clear to all the jurors. The court and my attorney were obligated to obtain the answers. This failure seriously compromised my defense.
The court wrongly instructed the jury to consider embezzlement in their determination of the case, which was based on the prosecution's theory that I had been stealing from the Wagners for years and made up the concept of having a master lease to explain the shortage. The lease was in my office files, but the prosecution stated that they did not find such a document. There was an abundance of evidence to disprove the prosecution's theories.
Dan Doherty, a partner in the Mission Ale House, the major tenant in the building the Wagners bought in 1993, stated that I showed them a document (which was the master lease) when they were told to send their payments to me from that point on.
Marc Wagner stated to police per the police reports that when he had noticed some checks from me to Wagner Buildings, his uncle explained that he had an agreement with me that I would collect the rents from tenants, then would make payments to him. My attorney should have mitigated the embezzlement claim by putting Marc or Det. Taylor on the stand to discuss the police report regarding Marc's statement.
No one would dispute that I had been managing the Wagner properties for years. People get paid for that work. The amount I made from my work with the Wagners was about what I would have been paid for just managing the properties.
Because of my relationship with Fernand and our agreement, I went way beyond what a manager would do. I made repairs, painted, laid carpet and tile, and worked on renovation projects with Fernand, and at times with Marc. I paid for items without compensation that a normal manager wouldn't have because I was invested in the project.
When I refinanced the San Jose building to get a better interest rate, we used the rental structure that was paid to me on the required income/expense statement, which was reflected in the MAI appraisal required by Wells Fargo. The appraisal was sent directly to the Wagner home.
A required estoppel certificate indicating what the tenants paid as rents was signed by all tenants.
The income/expense statement and estoppels were initialed/signed off on by the Wagners in escrow.
Fernand was a hands-on owner who visited his properties on a regular basis, at times on his own, at other times with me. On occasion, tenants gave him checks to give to me. He also deposited checks I gave him to deposit when I was going on vacation.
There was no question that Fernand knew what I was receiving as rents, as opposed to the prosecution's narrative. The court's instruction for the jury to consider the uncharged issue of embezzlement was unduly prejudicial to me.
Why a master lease?
I specialized in IRS 1031 tax deferred exchanges, which allows an owner to defer capital gains taxes on the appreciation of property he sells. I'd handled all of the Wagners' real estate transactions and management of those properties for over twenty-five years. In 1993, they bought a retail/residential building through me that was located on a vital corner in Downtown San Jose. I'd discovered that the city was planning a city hall complex with a retail mall and housing that covered four city blocks a block away from the subject building. We knew that this would be a long-term investment with high reward, requiring some renovation and a complete turnover in tenancy since the rents were way below market. I planned to gradually increase income by obtaining higher-end tenants on net leases (they pay all expenses), while cosmetically improving the facade and interior spaces. We expected the project to be in the red for a few years considering the vacancy factor while finding solid tenants.
I immediately negotiated a grant (free money) for a $450,000 earthquake retrofit, and over the next five years effected facade improvements worth $500,000 for which the Wagners paid only $8,000. I worked with the city, BMP Engineering, and various contractors to monitor and complete these projects that I negotiated and signed off on. Since I made a lot in commissions for this purchase as well as the property the Wagners exchanged from, I offered to help out by not taking any payment for the management of this building and the two other commercial buildings the Wagners owned, and not take commissions for the leasing of the San Jose building for the first five years. This amounted to about $200,000 over that period and helped to keep the property in the black while it appreciated drastically over the next ten years.
I offered to do this because of my friendship with Fernand, but he wanted to compensate me, coming up with giving me a master lease on the building. We'd be assessing the net income annually and increase my share accordingly. From his standpoint, he was keeping me involved in the project. Since I was heavily invested, I did things a normal manager wouldn't do. I helped with repairs and painting, laid tile, and made light repairs on the roof, along with Fernand and his nephew, Marc, sometimes on my own. I paid for certain expenses after discussing them with Fernand, such as appliances, lock services, wall hangings, and legal costs for evictions.
Ineffective assistance of counsel
By allowing these instructional errors, my trial counsel failed in his duty to render effective assistance of counsel. He should have fought hard to not allow the instruction that allowed for a conviction without having to prove the element of opportunity. He failed to effect defense theory instructions that described the exculpatory evidence that pointed to an unknown third party perpetrator and excluded me, and the failure of the prosecutor to prove time of death and my being present at that occurrence, even though he tried to use false testimony to do so. He failed to effect instructions on the requirements for a conviction on the weapons enhancement, which would have affirmed that there was no connection made by the prosecutor between the weapons used in the commission of the crime and me. He failed to prevent the instruction on flight when both he and the prosecutor knew that I drove instead of flying because of the eBay boat sale the next morning, and drove down 101 instead of I-5 because it was the shortest and most logical route to Oxnard marina which is on the coast about 50 miles north of Los Angeles, and that I transported six chairs and tools in my truck, which I could not do if I had flown. He failed in his responsibility to effect answers to the written questions from jurors which may have changed the verdict by preventing some of the prosecutor's misconduct during his summation. He failed to argue effectively against the instruction for the jury to consider the uncharged embezzlement when he had the knowledge to do so. These failures lessened the prosecutor's burden of proof and resulted in an unfair trial, a violation of due process, and made for a questionable verdict.
Failure to move for a new trial
My trial counsel had good cause to move for a new trial under P.C. 1181(5) if (a) the prosecutor is guilty of prosecutorial misconduct; and/or (b) if the court failed in a matter of law. Under P.C. 1181(6) the motion is warranted if the verdict was contrary to the evidence. In this case, it was all of the above. Clearly, an attorney who files this motion would be exposing his own inadequacies. However, his inaction in this regard was prejudicial in light of the exculpatory evidence, failure to prove motive, means, opportunity, and intent to kill/premeditation beyond a reasonable doubt; as well as the prosecutorial misconduct, instructional errors, and ineffective assistance of counsel leading to a wrongful conviction. After considering these issues, the court more likely than not would have reversed the guilty verdict; and the San Mateo County District Attorney would have opted to not retry the case since there was insufficient evidence for a conviction, and because of the desire to not have the nefarious acts by Sean Gallagher be made public since it would have affected other cases he had previously prosecuted.
The trials & tribulations of post-conviction relief
In the first century B.C., Juvenal posed the question, "Who will watch the watchers?" I had always believed that our country's justice system was the best in the world, designed to prevent wrongful convictions and providing those wrongly convicted with avenues to correct those convictions when warranted. However, personal agendas and aspirations can get in the way of justice, and there's a tendency by some to protect their own.
It's my contention that a system of appeals originally created to overturn wrongful convictions has metamorphosed into a series of steps to frustrate petitioners to the point of giving up the fight. I also believe that petitioners who aren't represented by counsel aren't given the same standard of review of their claims as those filed by attorneys. It's easier for judges and clerks to deem a petition procedurally barred than to consider if a petitioner's claims are valid. In my case, it's apparent that some courts didn't look past the face page of my filings. One judge in particular was predisposed to issue a denial prior to seeing my timely filed arguments. The standard for review for an appeal/writ of habeas corpus is if on its face a claim may more likely than not be true, it must be granted. I submitted documentation to support my claims; but have been wrongly denied due to time/procedural bars. For example, in 2015 the U.S. District Court stated that my petition was not without merit, but denied my petition for untimeliness. Being a neophyte regarding post-conviction filings, I didn't know and couldn't argue that the following were exceptions to procedural bars: (1) Claims of actual innocence and ineffective assistance of counsel are not time/procedurally barred; (2) The CA Supreme Court ruled on my habeas petition to that court, rendering it ripe for federal review; (3) I was actively pursuing my claims, even filing for a motion for discovery with my petition; (4) my trial attorney took 1½ years to deliver court-ordered discovery to me (without such I couldn't know the degree of his ineffective representation, as well as the other violations of constitutional law during my trial; (5) the denial of my motion for discovery was wrongfully denied since I'm entitled by federal law to find the evidence to support my contentions. The judge knew these exceptions to procedural bars, yet deemed my petition to be untimely.
In June of 2021, I filed a Rule 60(d) motion to contest the 2015 denial for untimeliness because the ruling that precluded a merits determination was in error as detailed above. I submitted newly found evidence that also precludes procedural bars, and requested leave to file a new petition. The attorney general filed an opposition to my motion, and I filed an immediate response to the opposition a week before it was due, destroying the AG's arguments which were weak and full of errors. I was shocked when I received a denial from the court that was issued eight days before my response was due, and before the court received my timely response to the AG's opposition, which was a serious breach of due process. I only found out when I received an action register from the court clerk that Judge Vince Chhabria, who had adjudicated the 2015 action, issued an order setting deadlines for the AG to file an opposition and for me to file a subsequent response. This order, or a notification of any kind, was not served on me. It was only because I had been prepared that I unknowingly filed my response before the court's deadline. Not wanting to overturn his previous decision and assuming that I wouldn't be able to file a timely response, Judge Chhabria had a predilection towards a denial, so ultimately issued an Order of Denial prematurely before receiving a response from me, an egregious act of enormous magnitude that seriously violated my due process rights.
These were just two of the many circumstances where officers of the court and courts violated case and constitutional law to prevent me from being exonerated. On another note, I filed complaints against Det. Aronis of the Millbrae P.D. for perjury, and against ADA Sean Gallagher for prosecutorial misconduct - including suborning of false testimony, suppression of evidence, and going outside/against the evidence in his summation during the trial; but the entities involved chose to protect their own and ignore the claims, even though the law and their own internal policies required investigation. My conviction was obtained through violations of constitutional law and even the penal code that can only be deemed unconscionable. Steps need to be taken to rectify a seriously flawed system that maintains a policy of "ends justifying the means," and a system of public defense that falls far short of the effective assistance of counsel guaranteed by the U.S. Constitution. One of the citations I've used in my filings is, "history has shown that nothing can destroy a government more quickly than a failure to observe its own laws; or worse, its disregard for the charter of its existence."