Tuesday, September 30, 2014

Request for Commutation



REQUEST FOR COMMUTATION

To: Governor Hickenlooper

Request for commutation of maximum sentence – premised upon materially false information – for second degree murder, to a period commensurate with the true circumstances of the offense.

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(#26139) 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 (#1306) 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 an 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
Defendant and victim had neither conversed nor interacted since late November, 2000.


Defendant packed overnight bag to spend the night with concurring witness, who lived in town, (approx.12 miles away). Left not to housemate/soon-to-be-ex-wife re: intent to return and clean the kitchen.


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.

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

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 hadhappened. (Confirmed by surveillance video.


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

Prosecution implied: Defendant walked home to “acquire” gun and return to bar (approx. 100 yds.) to kill the victim. This set the defendant up by implying a 20 minute period to pre-meditate and then drive the same 100 yds. That the defendant had just walked in 90 seconds.


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.



Prosecution implied:  The victim did not approach nor make contact with defendant; defendant shot the ground “in front of the victim” (a mechanical impossibility.)

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

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



REQUIRED INQUIRIES

          His Honor, Governor Hickenlooper, is required to consult with the prosecuting attorney and sentencing judge, in consideration of an executive pardon or sentence commutation.  (C.R.S. §16-17-102).  Petitioner sent an interrogatory letter to sentencing Judge Gilmore, immediately prior to his dismissal from the bench in the 2010 election cycle.  This interrogatory was also included in a 10th Circuit Habeas Corpus appeal (case #10-1463) because the answers could have resolved the legal questions of the appeal.

          An executive commutation investigation may benefit as much as judicial process could have, from answers to these simple questions.  The hitherto unanswered queries to former Judge Gilmore are: 1.) “Given the actual circumstances of Mr. Pecci’s offense do you still support a maximum or near maximum sentence?”  and if so, 2.) Why?”

Prosecutor Lammons will also be unamenable to answering interrogatories.  He exhibited extreme hostility to post-conviction counsel Barrett Weisz – telling him to “fuck himself”, refusing to enter into any written or telephonic discourse, and blocking investigation efforts.  Any query of Mr. Lammons will likely yield only more protection of the fabrications in the “Accepted by Court” column above.  The petitioner hopes that His Honor may temper any prosecutorial self-protection with fact driven information that may be proffered by investigator Koenig, as recommended above.

VICTIM’S FAMILY

Mr. Bender’s family wanted a death sentence for the petitioner and applauded when he was given a maximum sentence for second degree murder.  It is unlikely they will accept that anything different than what the District Attorney’s Office told them is what actually happened and will thus oppose any commutation of sentence.  Mr. Lammons and the District Attorney’s Office may be protecting their story to allow Mr. Bender’s family to not have to confront the reality that: but for his actions there may not have been any gunshots.  His sister has expressed insight that Mr. Pecci’s wife avoided responsibility for creating circumstances that killed her brother.  This insight – beyond the view of the District Attorney’s Office – does show acceptance that Mr. Pecci received all the responsibility for her brother’s death; while Mrs. Pecci acquitted herself of responsibility.

There is a paradox whereby the family has false information that has hardened over thirteen years and only wants expansion of responsibility, but could see responsibility that the D.A.’s office was blind to. Of course there is no mechanism for transference of punitive responsibility to offer Mr. Bender’s family as redress.  Thus the petitioner can only ask them to accept that a person should not be prosecuted or sentenced upon materially false information generally,[3] and extend this premise specifically to Mr. Pecci.

The investigated facts of the petitioner’s case should be uncovered and objectively evaluated.[4]  Such a review by the executive will show that the judicial defects of the Eighth Districts case # 01CR465 created false justification for a sentence of 48 years – the maximum of the aggravated class 2 felony range for knowingly causing death. 
Mr. Pecci requests that His Honor, Governor Hickenlooper, find the true circumstances of this homicide consistent with the lower standard of “Recklessness” and commute this sentence to the midrange of the corresponding aggravated class III felony range (8-24 years).






           

















[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.
[3]   This is a legal precedent, discussed in the 35(a) illegal sentence petition filed to the Eighth District.  See Attachment 2, item #_______.

[4]   This is the intent of current efforts to testify to the Larimer County Grand Jury: to induce an investigation of fraud against the court re Mr. Pecci’s plea.  See attachment 2, item #__________. Testimony to the Grand Jury.

Filinings to the courts since 2005



POSTCONVICTION LEGAL SEQUELAE
     (Reverse chronology by seminal filing)
Please note that all pro-se filings (filed by the inmate without a lawyer)  were universally ignored. Petitioner submits that any of these filings (e.g. Habeas Corpus Memorandum) would have prevailed if they had been given the consideration of a filing by a State's Attorney.
2014 August - 28 U.S.C. §1983 (Fed. Dist. Colo. 14-cv-2375)
                   Obstruction of grand jury testimony by head judge and clerk of
E
ighth Dist./Larimer Cnty. Colorado.
          Pending.
2013 July - Testimony to Larimer County Grand Jury, pursuant to C.R.S.
            §16-5-204(4)(lima)
        Testimony obstructed by head judge and clerk.
2013 October - State Supreme Court (13SA326)
            Court's superintending authority requires demand to remove
            judicial obstruction
.
     Supreme court ignored.
2012 January - C.R.Crim.P. Rule 35(a)-Illegal sentence (8th 01-CR-465)
          Sentence "premised upon materially false information" is an illegal sentence.
          Dismissed as a duplicate of a 35(c) that was improperly dismissed in 2005. [Note that a 35(c)-ineffective counsel claim is
vastl
y different from a 35(a)-illegal sentence claim.]
2012 mid-year - Appeal (12CA926)
          District decision was coram non judice - not before proper judicial authority. Disqualified judge arrogated jurisdiction from assigned judge for political self interest (to quash unfavorable presentation of her in the 35(a) as committing malfeasance similar to recused sentencing judge) and created coram non judice.
    Appellate court ignored.
2013 - State Supreme Court (13SC159)
 Court's superintending authority requires ruling on coram non judice.
 Supreme Court ignored.
2012 - Commission on Judicial Discipline (12-54) & State Supreme Court    (12SA243)
Judge exercising illegal jurisdiction - coram non judice
           should be adjudicated by the Commission.
Commission ignored coram non judice. Supreme Court refused to compel the Commission to acknowledge the complaint.
2008 - Habeas Corpus (Fed. Dist. Colo. 08-cv-1235)
                     Numerous defects neglected by state post-conviction counsel
(Barrett Weisz #27601) found to be "unexhausted"; and thus inadmissible.
 Attempted 35(c) to bring unexhausted issues to the federal habeas. No   go. (See 35(c) below.)
      Contrary to habeas rules for a magistrate recommendation; Judge
Weinsheink pulled the Petition from the magistrate and dismissed, with no reference to the factual claim


2010 - Appeal of Habeas Petition's (Bizarre) Dismissal (10th Circuit10-1463)     
 Cited tenth circuit precedent (Miller v. Champion, 161 F.3d
1249 (10th Cir., 1998» that demands an evidentiary hearing,
if no evidentiary review has been executed, to properly dis-
miss a habeas corpus.
 Included recommended query to sentencing judge Gilmore (see
preceeding Request For Commutation) that could have resolved
the appeal.
 Tenth circuit ignored.
2011 - United States Supreme Court (11-5092)
 Petition for Certiorari paralleled two cases then under consideration.(Missouri v. Frye, 10-444 and Lafler v.
Cooper, 10-209).
 Supreme court denied consideration of similar subject
matter.
2008 - Colorado Criminal Rule 35(c) (8th 01-CR-465)
Attempt to bring issues neglected by post-conviction counsel (Barrett Weisz #27601) into consideration for habeas corpus.
(See above.)
 Infamous judge Terrence Gilmore recused. New judge (Dave Williams) refused to  acknowledge new - unexhausted - issues.
2004/5 - Colorado Criminal Rule 35(c) (8th 01-CR-465) 
           Attorney Weisz denied access to evidence; to preserve the lie
           underpinning conviction and sentence. (See preceding Commutation essay.)
     Filed an obviously handicapped single issue 35(c) petition.
     Denied, to keep the evidence occult and preserve the lie.
2005 - Appeal of improper denial of an evidentiary hearing.
    (05CA2168)
    Evidentiary hearing required to correct materially false               information and establish proper foundation for conviction and sentence.
     Went to oral argument; where AG representative Billotte slandered appellant. (See preceding Commutation essay.)
                               Appellate court preferred materially false information to the
potential
rigors of correcting it, and affirmed the lie.
                   Pro-se petition for rehearing ignored.                            2006 - State Supreme Court ~~
                                           Petitioner proceeded to the state supreme court without
an appellate court response
.
                                            Presented an enumerated list of thirteen lies and misconceptions that the appellate court had relied upon.
 Supreme court ignored.

Fi