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.
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