Thursday, July 17, 2014

Section 1983 Civil Rights Claim



Update by Mary-Ellen:
In this blog entry you will find Interrogatory Questions we have for his public defender as well as an account of how prosecutors put their own twist on the facts in Jason’s case. (This is how prosecutors play generally speaking.)  The Civil Rights claim to the court follows this entry submitted to the blog on May 1st.

His public defenders poor performance needs to be addressed.  I have read a number of articles produced by the ABA that say this kind of performance may stand up to a Section 1983 Civil Rights violation.

It has been a long struggle for both Jason and me. He is in his 14th year of incarceration. He is now 47 years old.

During this time I lost my home and my business due to financial issues partially brought on by legal expenses to pay an appeals lawyer.  I have since moved from Maine to Massachusetts and found secure employment. Two years ago I graduated cum laude from the University of Maine with several minors, one in justice studies the other in human behavior and presently I am a first year law student at Concord Law. I will be 68 years old this August of 2014.

Everything I have studied about Colorado and Federal Law in the last 14 years tells me Jason had a very good chance at the defense of crime of passion voluntary manslaughter.  I am even more convinced of this as I proceed through my first year law classes. 

We have been through the whole appeals process, and the courts- in most cases - have evaded answering the issues presented. It has been very disappointing and discouraging to see the law function in this way. Personally it has been extremely disheartening as he effectively received a life sentence; 48 years.

We feel that this Civil Rights action is the last thing we can try to obtain a fair and honest outcome.  

Other than that it will be on me to try and transfer my credits to a Boston law school that is recognized by the ABA so I can sit for the Colorado Bar; not sure of the value of that to Jason but … Did you know rat terriers helped clear Europe of rats during the plague.  If you get my meaning!

(As an aside, Terrance Gilmore was the judge on Jason’s case and Jolene Blair was the initial prosecutor.  Both were NOT voted back in as judges due to questionable dealings in the Tim Master’s case.)  If you have been following the blog you will recognize these names.

We are now looking for a lawyer who will submit this Civil rights claim to the court as the courts like to toss anything submitted by an inmate.





Attached is a recount of the events of 01 April 2001 that led to the death of Marc Bender and a comparison of those events with the prosecutor’s position contrary to the facts.   The defendants recount is consistent with information given to defense counsel Kathryn Hay (#20817) and published in the presentence investigation (P.S.I.) report. Prosecutor Gregory Lammons (#         ) professed, at sentencing, to having no prior knowledge of the facts in the P.S.I. report, that they were invalid, and that his envisionment of malicious circumstances was to be the grounds for sentencing.  Judge Terrence Gilmore (#       ) agreed and based upon “signs of premeditation” justified a maximum sentence.
These actual facts remain judicially unverified.  They have been presented to, and denied without investigation, by all levels of state and federal court.  The best source for verification and interpretation of the medical examiner’s report is Larimer County Sheriff’s Investigator Steve Koenig.  Petitioner recommended and interrogatory of Mr. Koenig to the Colorado Appellate Court in case #12CA926[1] to solicit this correct information.  This is a risk for the petitioner because the sheriff’s investigator can only incur penalty for commenting on misuse, distortion, or suppression of the work product.  Unfortunately there was no defense investigation to rely on[2] and correction of misinformation falls to the single source of Mr. Koenig.
Caveat re: State’s Attorney Roger Billotte:  At oral arguments for appellate case #05CA??? State’s Attorney Roger Billotte made the slanderous statement that the petitioner here killed the victims dogs, to an auditorium of high school students and dignitaries.  The petitioner’s mother who flew from Maine to Colorado for the oral argument is witness to this unfounded and slanderous statement.  This represented an exclusive disregard of professional and public responsibility.  This gratuitous impropriety disqualifies Mr. Billotte from any contact with this request for commutation









Actual occurrences
1. Defendant and victim had neither conversed nor interacted since late November, 2000.

2. Defendant packed overnight bag to spend the night with concurring witness, who lived in town, (approx.12 miles away). Left note to housemate/soon-to-be-ex-wife re: intent to return and clean the kitchen.

3. Defendant stopped upon passing the bar, enroute to town, to confront spouse re: broken pre-divorce agreement. She was in the parking lot with boyfriend Marc Bender.  The agreement was to not flaunt extramarital affair publicly. When she challenged defendant to kill her he extracted a gun from under the seat of his vehicle.

4. Defendant stood with gun hanging at his side.  Shot one shot from that position (striking ground next to left foot) when the victim approached to make toe-to-toe full body contact.

5. The victim continued “pushing in a bulldozing fashion,” and the defendant fired a fatal shot. (Medical examiner estimated range to be one to three inches.)
Defendant went into adjacent bar and informed persons within of what had happened. (Confirmed by surveillance video.)



Accepted by the Court (In response to the above facts)
1. Prosecution implied: Defendant and victim argued in the bar for 20 minutes prior to offense.  (Surveillance video shows no interaction.)

2. Prosecution implied: Defendant walked home to “acquire” gun and return to bar (approx. 100 yds.) to kill the victim. This set the defendant up implying a 20 minute period to pre-meditate and then drive the 100 yds. That the defendant had just walked.
 
3. Prosecution implied: The defendant was not going into town to the concurring witness home; that the spouse was rational and did not challenge the defendant to kill her.
 
4. Prosecution implied:  The victim did not approach nor make contact with defendant; defendant shot the ground “in front of the victim” (a mechanical impossibility.)

5. Prosecution implied:  The defendant fired a second unprovoked shot from four feet away with homicidal intent.

6. Prosecution implied: The defendant considered shooting prostrate victim a second time and callously disregarded any nearby persons.


Mary-Ellen Pecci’s questions for Jason’s Public Defender Kathryn Hay -  or probative info for a §1983 Civil Rights claim.

·       At the disposition hearing (plea acceptance), Sept. 13, 2001, you told the court you had spoken to Mr. Pecci, the defendant, “only once” regarding the plea.  The Public Defender’s office sent their investigator Roy Bath with the documents for Jason to sign.  Mr. Bath was unable to answer additional questions Jason had.  Mr. Bath also failed to fill out the paperwork in its entirety and the court asked you to finish the paperwork in the court room at the disposition hearing. (Pgs. 10-11).  Is it true that your case load was too pressing for you to take the documents to Jason to finalize the plea, therefore you had to send a non-attorney to do the job?  (This is a civil rights violation under Title 42 U.S.C. Section 1983)

·       These recorded facts indicate Mr. Pecci lied to the court when the court asked if he had gone over this document with you personally.  Do you agree with this statement?

Also, when the court was assuring itself that you had gone over the document, the court TOLD you that you did - giving you no opportunity to speak to the question.  Do you agree with this statement that is in the record?  Do you remember your reaction regarding that covert act by Judge Gilmore?  Did you question the ethics?  Do you consider this behavior to be bullying?

·       During the day following the terrorist attack on our country (9/11/2001), the prosecution came up with a plea offer.  Did you entertain the thought that the prosecution may very well be using this horror, which caused cases of PTSD all over the country, to manipulate you, your office and your client?

·       Did you entertain the thought that Mr. Pecci’s existing sense of hopelessness could reasonably be exacerbated by these tragic events?

Did you entertain the thought that due to Mr. Pecci’s already weakened mental state that the opportunity was ripe for securing the plea; a plea that the prosecution was pressuring the public defender’s office for?

·       Did you consider that this tactical move by the prosecution; giving the defendant 7 hours to make a decision plus going to court for the disposition hearing all in the space of 24 hours, may force you to forego any discussion with them (the prosecution) over details such as length of sentence - which was not discussed with the defendant.



Proposed Interrogatory Questions To:
Trial counsel Kathryn Hay (#20817) and head public defender Barb Zollars (#15723)

Kathryn Hay:
·       Please state the description of the incident defendant described to you.
·       What is your recollection of discussions with defendant's family about these circumstances? Specifically father, Kenneth.
·       What do you believe the range of the fatal gunshot in this case to be? (Trial Counsel stated, incorrectly, to court and defendant - at sentencing - as sentence was being imposed “3-4 feet.)
·       What evidence compels you to believe such?
·       Was there a tactical reason to misportray the victim/defendant interaction at sentencing?
·       Was there a tactical reason for having Barb Zollars present the plea offer to the defendant?
·       Was there a tactical reason; for not counseling the defendant through the plea contract and telling the Court you had? (In the event of denial here: Why were your portions of the plea contract incomplete at the Rule 11 hearing?
·       You recommended range testing post-sentence, seven days later.  Why did you feel that analysis would have appeal relevance but not trial relevance?

Head Public Defender Barb Zollars:
·       What was your knowledge of the circumstances of the alleged offense at the time you counseled the defendant to accept a plea of 2nd degree murder in 01CR465?
·       What were your sources of this information?
·       Was there any undisclosed information that compelled you to state, “You will be convicted of first degree murder if you go to trial,” to the defendant?


[1] Petitioner recommended that the court pose the query:  “To your knowledge is Mr. Pecci sentenced upon information inconsistent with your investigation?; and to answer the gravamen of the appeal: “Is the sentence premised upon materially false information?”  This incensed the court such that they canceled the state’s pending response and denied the appeal with no answer to the question at issue.
[2] This was the foundation of a Rule 35 ( c )  petition filed by Barrett Weisz (#27601) in the Eighth District Court in 2005.  This was denied by Judge Gilmore with a reiteration of the false suppositions he has accepted from prosecutor Lammons since the defendant first appearance.