Materially False
Information
Part I
“It is more important that a proposition be interesting than
that it be true.”
Alfred North Whitehead, 1947 (?)
This quote is lifted from “Deadly Decisions, (Christopher
Burns, Prometheus Books 2009) in regard to organizations that refuse, or have
lost the ability, to objectively evaluate evidence and reach non-deadly
decisions. It is my experience that Mr.
Whitehead’s quote is an operating canon for prosecutors. In the legal theatre the courtroom stage
demands “interesting propositions” over mundane truths and the drama produces
decisions that are, if not deadly, terrible and without foundation.
In my decade effort to contest and digest all the
interesting falsehoods our legal system had inflicted upon me, I came to see
that anyone associated with this case – friend, family, or foe of perpetrator,
victim or witness – is victimized by materially false information.
“Everything you believe is wrong.”
Jason Pecci, re: realization a
defendant undergoes when confronted with the dissonance of civic expectation
vs. actual treatment by “judicial” system.
I am the only witness to the homicide I am convicted
of. Since there was no defense
investigation the sheriff’s investigator is the only other person who may know
what happened. This is what really went
down:
Sunday afternoon April 1st, 2001. I went for a
bike ride and stopped at an acquaintance’s, (Terrance Tucker) house. Earlier in
the year, January 4th, I had left a note on his door asking what he
had been up to and he had been incommunicado over the winter. He was at home now and we put my bike in the
back of his pickup truck and retreated to my house. I invited a new girlfriend (Tracy) to come up
from in town and proceeded to cook dinner for the three of us. Terrence drank a dusty bottle of rot gut
tequila from my coat closet and the whole evening turned into a fucking
disaster. (If you’re predisposed to off
the cuff dinners, drunks and incompatible people are contra-indicated. Terrance is not compatible with anyone and
should have been left incommunicado – spastic, social retard.)
By agreement with my near-ex-wife / housemate we would not
have anyone over when the other was expected home, thus I announced we had to
leave by 10 p.m. Terrance decided going
to the local bar was prudent and collapsed in exuberance about midway from the
porch to his truck. Tracy Tracy
I drove Terrance, in his truck, to the bar and he stumbled
in. Tracy and I retreated to the boat
ramp in her car, where I fielded her complaints of exposing her to such a souse
as Terrance and decided that I should dislocate myself from the whole shitty
scene there and crash in town at her apartment.
She dropped me back at the bar to pick up blind drunk Tucker
and take him home and I noted that my house-mate’s car was in front of the
bar’s front door and that we may not have had to leave my house. Tracy
Terrance was just inside the front door. The ease of locating him was inverse to his
mental accessibility. He could not
understand why I felt responsible to extract him from the bar and get him home,
nor could he understand the logistics I was dealing with, trying to swap
vehicles and get into town, the toxic drunk.
My housemate was standing next to Terrance and both were facing the bar.
I could not deal further with Terrance with her in such close proximity. I told her the house would be available to
her; that I was not staying there that evening.
Her boyfriend, Marc Bender, turned and glared at me over her, as
offering them the house was some presumed slight. The situation was untenable. I held my hands up in the air and stated in
the general direction of the bartender, “He’s your problem,” and left.
Two prosecutors (Jolene Blair and Greg Lammons) would later
say that this was a verbal altercation with the glaring boyfriend of such
magnitude as to inspire me to kill him. The surveillance video clearly shows
that we did not speak, nor did I enter any further than necessary to try to
extract Terrance.
I walked back to my house and changed from flip-flops to
shoes and warmer clothes, packed toiletries in my backpack, wrote a note saying
I would clean the dinner mess the next day and left in my truck. The prosecutors characterized this as one
single act of acquiring my revolver.
I was angry that I had been making an effort to vacate the
house and avoid the bar while my housemate was blatantly parking her red car in
front of the front door of the scandal zone, and generally flaunting the
divorce agreement we had made. One, of
course, should not put stock in verbal divorce agreements, but I could not see
past the insult. I wanted to address her
provocation and was contemplating damage to her car – maybe pushing it sideways
into the next parking place. Since I had to drive by the bar to go to town why
not at least spit on the windshield. As
her car came into sight I saw that my housemate and her boyfriend were sitting
in it. Ramming was then excluded. Instead, I coasted in on a ramming vector to
the passenger side and veered behind the car.
This was later seen as an act of aggression, not for the ramming feint
but for blocking the car in.
My housemate immediately made herself available at my
drivers window to apologize for her prevocational behavior by asking me what
the fuck my problem was. Fair question.
Why should I not be a tolerant whipping post? I responded equally that she was not
reversing this: she was the one in violation and it was my turn – for the first
time – to be angry. Since I do not know
how to be angry and argue I overshot a little here. The net result is that my not-yet-ex-wife /
housemate challenged me to kill her. “Go ahead if that’s what you really want
to do.”
Well, since my revolver was in reach (I keep it under my
truck seat emulating my room mate’s partner in a horse trading venture – very
cowboy) and her raise was called by my production of the gun. The prosecutors of course acquitted her of
any responsibility for the spousal challenge to homicide and I alone was
reckless for introducing a weapon to an emotionally charged situation. Wasn’t the situation charged by the challenge
to kill?
So the old lady jumps out of her shoes and splits back to
the driver’s side of her (our?) car and scowls at me over the roof. I reversed the truck almost parallel to the
car on it’s passenger side and put the truck in forward gear to leave. I almost made a getaway and had a different
life. I just couldn’t leave unaddressed
the smug, “fuck you, see how much of a loser you are, I win again,” look she
was shooting at me.
[I have wondered dozens of times each of the 4325 days I
have been incarcerated if the vehicles had been reversed and when looking over my
shoulder to back up the truck I looked away from the car; would I have driven
obliviously away?]
So, I put the truck in neutral, set the brake, and got out
to really delve into this confrontation; unfortunately with the gun in
hand. The housemate did not want to
continue over playing her hand, although we did tentatively argue at the back
of the truck while she encouraged the beau to retreat to the bar with her. He chose to step between us.
He came in from my right and I put my firearm up to his
chest and he stepped in, toe-to-toe with me, pinning the arm between us. I extracted the arm and looked up at Marc
with what I recollect as general incomprehension. He spoke by pushing me with his chest, in
what I would describe in a pre-sentencing investigation (PSI) report as a
“bulldozing fashion.” The gun was in my
hand hanging at my left side. I fired a
shot straight down, without moving my hand.
Marc calmly looked down at the hand then back down at me {Marc was 6’4”
235 lbs} and pushed again with his chest.
I was then off balance and half stepped backward with my left foot and
flipped my left wrist and fired the gun literally from the hip. Marc spun 90 degrees to the right and fell
incomprehensibly dead.
Nothing made sense.
How had a low shot had such effect:
There was no one around (the housemate had fled into the bar after Marc
had commandeered the situation. My
vision was grainy black and white and my ears were ringing.
Materially False
Information
Part II
So, here I stand having likely killed someone and I cannot
put together any cognition. “What the
fuck…?” How the fuck…”
I took two steps to the left and looked at Marc – maybe
looking for eye movement. A wrestling
fan named Cliff made a statement that he observed this from the beer garden
adjacent to the bar and that I approached Marc’s head to “finish him off.” Over exposure to world wrestling
entertainment had imbued Clifford with both clairvoyance and x-ray vision since
he would have had to see through my housemate’s car and read minds for his
statement to have any veracity. Like the
drama of the wrestling upon which he premised his life, his statement was
entirely false. This would not deter
prosecutors from sensationalizing Cliff’s clairvoyance and over leveraging it
to indicate intent. Early on I do not see the connection but as I would
discover, conclusory allegations are the privilege and sine qua non (essential
element) of prosecutions.
Back in reality; I threw the gun into the fender of the
truck and yelled, “Fuck” a half a dozen times.
I then went into the bar and told a patron just inside the threshold,
nicknamed “Budley,” “I think I just killed Marc,” turned and ran back
outside. In contrast to the alleged
earlier confrontation that the surveillance video shows did not happen; the
sojourn into the bar and communication with Budley is documented by the video
but completely absent from the minds of those who compulsively spin evidence
for a living.
I ran to find the gun at the front of the truck and wandered
further to shoot myself in the head. I
tried to convince myself that instant suicide was proper by incanting, “It’s
over,” and “Everything’s fucked,” while alternating the gun from my temple to
under my chin. Budley was yelling that I
should “wait…wait.” I suspect that I
only had hesitation in my mind anyway. I
collapsed cross-legged into a semi-catatonia and let Budley take the gun. I
remained thus until first on-scene police asked me to put my hands behind my
back, to be cuffed and remained that way for a while longer. I heard that this post-traumatic collapse was
reported later on Paul Harvey. If so, it
would be the only accurate reporting.
There was, of course, a lot of commotion and the ultimate
determination by the later responders that Marc was indeed dead. All the standard tricks ensued. A corpulent retired captain (who must have
lived to monitor his police scanner) took the collar. In retrospect this was
odd. I insisted on consulting with an attorney when he asked permission for
“his guys” to search my truck. He read
me my Miranda rights and we rode to jail where he promptly threw up into an
office trash can. Since he was the one
who had established rapport and had some legacy credibility we moved to another
office and a bleary eyed man with a tape recorder in his lap stared at me while
Captain Vomitus tried to solicit information from me. I reasserted my right to counsel and was
allowed to call Tracy
Don’t worry, it only get worse. “General information that
has proven universally accurate.”
I met public defender Kathryn Hay by phone through thick
visiting glass early in the morning. She
told me that she would be representing me at the video advisement of charges in
a few hours, and not to talk to anyone about anything. I have never found any percentage in talking
to anyone about anything so her instructions made sense. I told her to order up a death sentence to
dispense with the whole matter and our degenerate relationship was under way.
I attended the video advisement with a room full of other
former citizens who had caught charges over the weekend. At the microphone I stood out from the lesser
offenders in the room when a disembodied judge advised me that I was charged
with felony menacing and first degree murder.
Ms. Hay made all the required perfunctory statements on her end of the
video link. I then went to and eight
cell close observation pod that would be home for seven months.
Ms. Hay came to see me that week. For a reason as yet
undisclosed she insisted that I not tell her what happened until a later
time. She informed me that Marc’s mother
was demanding the death penalty. I
actually felt scooped. Asking for a
firing squad was my purview and felt it should be publicly known that I had
already made the request to counsel.
After Ms. Hay left I empathized with Marc’s mother’s perspective and
realized that I had no say in my legal future.
I now know no defendant does.
Ms. Hay returned a week later and was ready for me to tell
her what happened. Thus nine days after
the homicide I told the public defense counsel all of part one of this
essay. I suspect she had been waiting
for the prosecution to investigate before she commanded her own
investigation. I see less than zero
tactical wisdom in letting the organs of state power selectively investigate
and develop the story they want to tell at leisure. Hay’s only comment to me was that the
homicide was not a first degree murder.
(Homicide is a general term for one person causing the death of another;
murder is a legal characterization of homicide.) She made a less reticent commentary to my
father, stating that there were defensible aspects of the case.
This was the party line until the grand deception at the
sentencing eight months later. There was
a preliminary hearing at which I caught the first whiff of the state’s
scam. A perfectly foul bitch named
Jolene Blair, the prosecutor on my case, made assertions that I had an
altercation with Marc, acquired a gun and exterminated him with malice, intent,
forethought and everything short of a sketch and published manifesto. A preliminary hearing is perfunctory and has
a threshold of evidence will below the standard for trial. It is only to determine if a crime was
committed and there exists sufficient evidence to go to trial.
I faithfully believed fabrication and abject conjecture, -
this dramatic drivel generated for the theater of a perfunctory hearing, - were
not substantive. That is, they were
without merit, without evidentiary foundation, and not admissible. Well…as I stated earlier; in the theater of
the U.S.
“Truth is not a product; it is a process. It is the result of information quality
management practices and standards adopted by the group [the prosecutorial bar]
and followed over time.” - “Deadly
Decisions” by Christopher Burns, pg. 57
If you have never been assaulted by the criminal justice
system you likely will not accept that prosecutors are information oligarchs
that control what is produced as truth in criminal courts. I now understand that I was blind to the
assault I was under, a testament to the legitimacy some pomp and judicial
procedure can give to systematic treachery.
The summer came with a change in angle of the light in the
high security, pre-trial, detainee
area.
I would find out years later that my mother was trying to
procure a psychological evaluation for me at her expense and my attorney was
immensely dismissive of her. Ms. Hay’s position was, since she had snowed my
father she was above reproach from the other parent.
The summer was spent practicing my focus on futility. Had I known of the conflicting signals Hay
was sending my parents it would have merely validated that sense of
futility. Only my mother foresaw the
long shadows of pure deceit.
One afternoon in September Ms. Hay came to the jail with her
boss, Barb Zollars, head public defender, to sell me on a plea. Ms. Zollars convincingly stated, “If you go
to trial you will be found guilty of first
degree murder.” Given that she did not
know the circumstances of the crime she was effectively saying: “We cannot
defend you.” As a lifelong doormat I
agreed to the plea and became complicit in their subjugation to the district
attorney’s office.
Their investigator brought by a boilerplate plea agreement for
second degree murder. You may expect
that something as critical as a plea agreement to second degree murder should
be attended by the attorney of record.
Well, me too. She probably could
have answered my question about the 5th amendment waiver caveat in
the agreement. The investigator’s answer
was that all the caveats needed to be initialed. Notwithstanding such a vapid answer I assumed
he had done this before and was looking out for my best interest. Oh the naïveté of a criminal justice virgin.
The plea hearing was a shameful masquerade. Hay opened with a statement that we had met
more than I had indicated on the plea questionnaire and that we had gone over
the plea agreement together. The judge
asked if that was accurate and I concurred.
The idea – again as a life long door mat- of contradicting my attorney
seemed as implausible then as it seems mandatory in retrospect. (If only I could take a perjury hit on that,
and state the truth: plea invalidated!)
The judge than asked Ms. Hay to approach the bench and initial her
portion of the plea agreement; she had not even looked at it!
At that point the judge wanted me to state what happened.
“Fuck you. I’m under orders from my attorney to not discuss the case,” is what
I should have said. I was not prepared
to tell anyone anything and should not have extemporized but babbled that there
was an emotional incident and Marc ended up shot. That was sufficient. As two deputies pulled me toward the side
door Hay says, “You can talk about what happened now,” and she also commented
on my responsibility and indicated the need for payment. I was already humbled beyond imagination and
later questioned the necessity of her remark. Was it not her responsibility to
present the plea agreement to me and tell me how to accept a plea. Since I had agreed to avoid a trial at which
she would have been impuissant, unable to hold her own; she was off the hook. She
went “hands off” and led me to ambush at the plea hearing.
These masquerades are called “providency hearings.” This reference to divinity is an invention to
bestow judicial procedure with power to invent facts. Give something a holy enough name, with
gilded clothes and reverent procedures; it becomes a self perpetuating truth
system. (See “Deadly Decisions,” Chapter 9)
A judicial district generates a pre-sentencing investigation
(PSI) report to premise a sentence upon.
A probation officer named Patricia Lara interviewed me to generate the
report. I wrote two paragraphs
explaining how Marc had approached me and pushed in a bulldozing fashion to
solicit the warning shot next to my left foot and he continued pushing to
solicit the second shot. Lara did allow
my statement in but she inserted two outlandish assertions for the prosecutor:
(1. She
stated that my soon to be ex-wife worked at the bar, which implied there could
not have been an agreement to avoid the bar.
(2. She
stated that Marc had been “an innocent bystander to the collapse of the
marriage.”
Regarding #1. My ex-wife
never worked at nor patronized the bar.
This falsehood was inserted to obviate any culpability of her behaving
out of the ordinary or in violation of an agreement that would provoke her
spouse. The prosecutor along with the police,
who were friends of my ex-wife, needed to suppress her flaunting of the
agreement; an agreement made between us while trying to divorce amicably. Her appearance at the bar that night was
provocative and insidious; it was
necessary that she be portrayed as an innocent bystander rather then the agente
provocatrice that she was.
Regarding #2. Marc
was not the “innocent bystander to the collapse of the marriage.” He had invited my spouse to move in with him
the first night they had relations and was the impetus for the divorce, but
this was irrelevant to the circumstances of his death. The statement was a plant to introduce the
term “innocent bystander” into the PSI report to be extrapolated to the
circumstances of his being shot.
“Innocent bystander” is a legal term used to free one of any
responsibility.
On November 8, 2001, at the sentencing hearing Ms. Hay
executed the coup de grace of her deception.
She said, “Jason is a citizen, veteran, college graduate, normal guy who
couldn’t resist the reasonable urge to confront his spouse while driving by the
bar enroute to town and he is remorseful that the confrontation resulted in him
shooting Marc from four feet away.”
What!!?? She said nothing about
the lack of communication between Marc and I earlier, nor the spousal agreement
to avoid the scandalous bar, or that I was only there to pick Terrance up and
return him home. Nor did she talk about
the ex-spouse challenging me to kill her.
Most astounding, she said nothing about me standing still and Marc
making contact with me and that I never menaced, spoke to or pointed the gun at
Marc previous to the final moment when set off balance.
She did diligently aver that I shot Marc from a distance of
4’ even though the sheriff’s investigator had conducted test firings following
the autopsy starting a 12” and descending in 1” increment to 0.”
The prosecutor suppressed the conclusion of the range
testing. I can assure you that four feet
is an overestimate by a factor of 25 – 100!
I described this performance in a post-conviction motion as defecating
in the middle of the floor of a fifth floor courtroom in the new $100 million
dollar courthouse in the Beverly Hills of Colorado.
Once this was teed up for the prosecutor a delightful weasel
named Greg Lammons ran with it. Prior
citizenship is irrelevant to sentencing.
All that matters are the materially false presumptions that I had a
confrontation with Marc, ran home to get a gun and ran back to blow him away
from four feet away. To be additionally
contemptuous he added that any declaration I made in the PSI report regarding
the true circumstances must be disregarded by his Honor Terrance Gilmore, a
career corrupt prosecutor turned judge; he was voted off the bench in the 2010
election cycle. Lammons’ rationale was
that, (1. since he had not heard of the true scenario before the PSI report it
must be a fabrication even though my statement matches the evidence and his
fabrication does not, and (2. Lammons refers to the preliminary hearing as
evidence and you will recollect from earlier in this essay that a preliminary
hearing does not provide evidence.
Mr. Gilmore was dishonorably consistent with all his
execrable service as a prosecutor, going back 25 years, and needed to make a
splash with his first big case as a judge, mine. He repeated Lammons declaration that I had
decided to kill Marc when we did not interact while I attempted to extract
Terrance Tucker from the bar. Clairvoyance applied to an imagined event equals
delusional schizophrenia outside a courtroom!
He then repeated my attorney’s false range declaration of four
feet. I asked Ms. Hay, “Where is this
four feet crap coming from.” While
dictating Gilmore’s sentencing diatribe she replied, “I think it was four
feet.” (Are you kidding! Twelve years after the treachery I am still
livid!) After seven months she declares
at sentencing…during the imposition of sentence…that she is prosecuting
me on the false story the prosecutors have invented. It is unlikely that she ever intended to
defend me. Concurrent with this
revelation Gilmore says he sees elements of intent (the pre-requisite for first
degree murder) in this homicide and since I had accepted the luxury of pleading
to a lower charge he had the luxury of believing, or feigning belief of the
materially false information and he sentenced me to the maximum of 48 years
plus 5 years of probation.
The final knee to the groin was when Hay came to the jail a
week later. She offered to file a notice
of appeal and would recommend to the appellate attorney…(can you believe
it)…range testing.
Yes, her own notes, after the sentencing, state this.
Epilogue
A sentencing appeal can only question the discretion of the
judge – hyper or hypo – critical, to arrive at an unreasonable sentence. Since the sentence would not have been
unreasonable if premised upon the material falsehoods he feigned to believe the
appeal was baseless. Now we are really falling into the legal rabbit hole.
Further down in the appeals process are post conviction
rules, based on habeas corpus, that should have addressed the duplicitous
representation of Hay, the invalidity of the plea, false premises of the
sentence…everything that is explained in Part II above.
My mother retained an attorney, Barrett Weisz, to navigate
the post-conviction maze. He filed a
post conviction claim that focused on Hay’s failure to investigate. A nice example would have been range testing
that would have proven conclusions different from the guesses she made in lieu
of investigation. Basically, do the
investigation she was supposed to do and it proves itself. The problem is a defendant has no right to
the evidence after conviction, thus Barrett had to say testing, if allowed,
could prove Hay did not properly investigate.
This allowed Gilmore/Lammons (If you were to read the order you can
deduce Lammons wrote it and Gilmore signed it) to reply that Barrett’s petition
was speculative and by illogical extension, without merit. We are now at terminal velocity in the
bottomless legal rabbit hole.
Since Barrett had not treated the repercussions of Hay’s
lack of investigation his appeal was narrow and stillborn. He expressed hope for fair or less biased
treatment in the federal courts with a petition for habeas corpus. He had likely developed the same ennui for
the case as Hay. Since his fees had
definitely bankrupted my mother his indifference to the case was moot.
I pursued the habeas pro-se (representing myself) and
encountered a total disregard that taught me how expatriated the convicted are. All the repercussions Barrett had left
untreated become “unexhausted issues” that were forever forfeited. The remaining claims were causes that begged
a discussion of the effects to gain legal traction. Thus, like an essay of incomplete sentences
under an instructor’s pen, everything was summarily disregarded.
The invasions and dismissiveness through district, circuit,
and U.S. Supreme Courts is as if the rabbit hole is now deliberately
indifferent to any call for a straight answer.
During my fifth year of incarceration I read Oscar Wilde’s
“A Portrait of Dorian Grey.”
I submit that in the darkest back corners of every judge’s
coat closet sits such a portrait of past youthful equanimity and
thoughtfulness. Upon the first donning and doffing of a judicial robe it begins
to collect particles of curtness and offense that quickly grow into barnacles
of hubris and indifference. Each judges ‘Dorian
Grey’ portrait is their portal to the legal rabbit hole – a toll booth that
chronicles all the tortured logic, feigned umbrage and perverse rationalization
employed to expatriate human beings ever faster, harder and longer.
Allow me to close with a footnote to a letter I wrote to
Judge Gilmore regarding lack of accountability.
(The full text of this letter can be seen attached to the
Opening Brief of the U.S. Tenth Circuit Appellate Court, case # 10-1463. If the court had compelled Gilmore to answer
the letter the legal question of the appeal would have been answered. The appeal was denied by the court. Not ruled
against, nor dismissed, nor other procedural obviation. No, no, no; your words
do not merit reading thus we do not deign to grace them with our eyes.)
“Congratulations on your success in this regard. I was not
able to develop that species of avoidance which is the de rigueur talent for
success in our western culture. Please
consider me to proof your memoir when it is drafted.”
Copyright 2013, Jason Pecci
Please feel free to copy and distribute this essay;
especially to any of the following. (preferably at personal, not work e-mail
addresses.):
Kathryn Hay – Colo.
Barb Zollars – Colo.
Rebecca Love Kourlis – Colo.
Judge Gregory Lammons – 8th District Colorado
Terrance Gilmore
Barrett Weisz – Colo.
And any appropriate bar associations and news outlets
Dominic Dunne should write and expose on Gilmore and Stu Van
Meveren’s 35 year crime spree in Ft. CollinsCO
Peace, Jason
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