Pleading Wizard

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IN THE CIRCUIT COURT OF THE STATE OF OREGON

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FOR THE COUNTY OF MARION

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PHILIP S. CANNON,

Petitioner,

Case No.: 04C10127

Judge Lynn Ashcroft

FOURTH AND FINAL

AMENDED PETITION FOR POST-

CONVICTION RELIEF 13

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BRIAN BELLEQUE , Superintendent.,

Oregon State Penitentiary,

Defendant.

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Petitioner is unlawfully imprisoned and restrained of his liberty by the above named defendant, in violation of state and federal constitutions and applicable state and federal laws.

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1.

The petitioner is unlawfully imprisoned and restrained of his liberty by the above respondent,

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Petitioner alleges as follows:

Brian Belleque, as further clarified herein.

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2.

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Petitioner's imprisonment is by virtue of a judgment and sentence imposed by the Polk

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County Circuit Court in State v. Philip Scott Cannon , case number 98P3424, by the honorable

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Mark J. Geiger

AMENDED PETITION FOR POST-CONVICTION RELIEF

Attorney at Law

317 Court Street NE, Suite 211

Page 1 of 41

Salem, OR 97301

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Judge Charles E. Luukinen, after a jury trial in which the defendant was convicted of three

2 counts of Aggravated Murder and one count of Felon in Possession of a Firearm. The judgment

3 of conviction and sentence was on March 16, 2000.

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3.

Petitioner was convicted of the crimes charged in the indictment, as stated in paragraph 2;

6 as for the three Aggravated Murder convictions, petitioner received a life sentence without the

7 possibility of parole (on each count) and six months in prison for the Felon in Possession charge,

8 which was served pre-trial.

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Petitioner was represented by Ken Morrow (“Trial Counsel”), who was retained, and by

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Ken Hadley, OSB# 670420, who was appointed. Unless specified otherwise, the claims herein

12 are made against Ken Morrow, since it is petitioner’s belief that Mr. Hadley handled only the

13 penalty phase issues.

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5.

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Petitioner appealed the sentence and the court affirmed without opinion. A judgment was

16 entered on February 22, 2003. A petition for review was filed in the Supreme Court and review

17 was denied.

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Counsel”).

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Petitioner’s appointed counsel on appeal was Robin A. Jones, OSB# 892756, (“Appellate

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Petitioner has not previously applied for post conviction relief as to this case.

CLAIMS FOR RELIEF

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CLAIM 1

INEFFECTIVE AND INADEQUATE ASSISTANCE OF COUNSEL

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Mark J. Geiger


Attorney at Law


Page 2 of 41

Salem, OR 97301

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In each of the claims that follow, Petitioner alleges that Trial Counsel failed to exercise reasonable professional skill and judgment, that trial counsel’s acts and omissions were not the

3 product of an acceptable tactical decision and that counsel’s performance fell below an objective

4 standard of reasonableness for defense counsel in similar felony criminal proceedings under the

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6 standards in existence during the relevant time periods. Petitioner was prejudiced as a result of his attorney’s acts and omissions because under the Oregon Constitution (Article I, section 11)

7 they had a tendency to negatively affect the result of the prosecution against Petitioner

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( Krummacher v. Gierloff , 290 Or 867, 627 P2d 458 (1981). Petitioner was also prejudiced under

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10 the Unites States Constitution, as guaranteed by the Sixth and Fourteenth Amendments, in that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the

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12 proceedings would have been different. ( Strickland v. Washington , 466 US 668, 104 S Ct 2052

(1984). Trial Counsel’s acts and omissions deprived Petitioner of a fair and impartial trial as an

13 additional violation of the Sixth and Fourteenth Amendments to the United States Constitution

14 and in violation of ORS 138.510 et seq ,.; furthermore, Petitioner was denied the effective and

15 adequate assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments of the

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United States constitution and Article I, section 11 of the Oregon Constitution, in that:

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A.

Trial Counsel was ineffective and inadequate when he failed to sufficiently attack the

18 admissibility of Comparative Bullet Lead Analysis (CBLA), offered through witness Conrady,

19 and further failed to retain an expert to attack both the science of CBLA and Conrady’s

20 methodology and conclusions, as follows:

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Admissibility of the Science of Comparative Bullet Lead Analysis

1) CBLA evidence was used mostly by the FBI (the only accredited forensic lab in the

23 country to offer CBLA as a service) as circumstantial evidence (or direct evidence, in some

24 cases) to tie a defendant to a crime scene by analyzing the seven components that make up a

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26 bullet (copper, tin, bismuth, sliver, antimony, arsenic and cadium) and comparing the bullets found at the scene of a crime with the bullets found at the defendant’s residence. The National

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Research Council (via the National Academies of Science) in 2003, stated that expert “witnesses

Mark J. Geiger


Attorney at Law


Page 3 of 41

Salem, OR 97301

1 who testify about CBLA data should take great care not to overstate the significance of a CBLA

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3 match, and to make clear the limits on conclusions that CBLA results can support . . .

[W]itnesses should “avoid over-broad statements . . . [and] should not say that two analytically

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6 indistinguishable bullets come from the same melt, production run, or box, or were made on or about the same day. None of these assertions . . . can be justified by the available data.” All of these assertions were made by the state’s witnesses and/or the prosecution, either directly or

7 through inference, in this case. In the fall of 2005, the FBI completely repudiated the use of this

8 evidence. As such, the evidence is not admissible for any purpose, as follows:

9 a) The state argued in its response to the motion in limine, that “the widespread

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11 use of the technique, combined with other scientific disciplines and methods in determining the appropriate elemental standard, demonstrates not only the technique’s general acceptance in the

12 relevant field, but its reliability as it is perceived by other fields as well.” This statement flies in

13 the face of the Daubert and Frye focus which is on the task at hand and not the general

14 acceptance of the instrumentation used in the analysis.

15 b) The potential rate of error is or should be based on the “task at hand,” not for

16 the instruments used to generate the numbers or for the chance of coincidental matching of three

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18 composition numbers as if they were the numbers on a slot machine. The evidence that was offered had never been studied for “false positives” nor were any blind or double blind studies

19 conducted to determine the probative value of Neutron Activation Analysis (NAA) as it was used

20 in this case;

21 c) There is no probative value for any CBLA testing or the use of ANY type of

22 analysis of bullet lead composition that has any scientific validity, as recently determined by the

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FBI who, after over thirty years of using CBLA, has abandoned the technique;

24 d) The research of Dr. Guinn (who is considered to be the pioneer of bullet lead

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26 analysis) et al , as reported the Atomic Energy Commission, dated June, 1970, indicates that, contrary to the state’s assertion, you cannot analyze three elements to uniquely characterize

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Mark J. Geiger


Attorney at Law


Page 4 of 41

Salem, OR 97301

1 bullet lead. The FBI standard is seven elements, whereas only four were used by the state in this

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4 e) There is no such thing as a “homogenous source of lead,” which is continually referenced by the state and in Conrady’s testimony;

5 f) The calculation of a coincidental match, offered by Conrady—as tested by this

6 predecessor, Professor Roman Schmitt, the calculation incorrectly assumes that there is

7 independence between the concentrations of the trace elements which Schmitt considered;

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9 additionally, Conrady was not qualified as an expert in such a way that he could rely on

Schmitt’s testimony without such reliance violating hearsay rules;

10 g) In correlation with (f), the probability of a coincidental match cannot be

11 estimated in the absence of information regarding manufacturing, packaging, distribution and

12 sales of ammunition;

13 h) In correlation with f) and g) above, the specimens used by Schmitt to perform

14 his analysis were very small and scientifically inadequate; because of the variability across

15 specimens in the concentrations of the various trace elements, the final probability estimate is

16 likely to have a very large standard of error, which was not estimated;

17 i) Schmitt calculated a 0.3% estimate of the probability of a coincidental match;

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19 this represents the probability of observing the evidence under the assumption that petitioner is not the perpetrator. This assumption, often referred to as the “prosecutor’s fallacy,” consists of

20 equating the likelihood of observing the evidence under the hypothesis that the accused person is

21 not the culprit to the probability that the accused is not the culprit given the evidence. It is not

22 correct to equate this probability to the chance that the accused is not the culprit;

23 j) The evidence in this case, with regard to the statistical probability of a

24 coincidental match, ignores the characteristics of the manufacturing, packaging, storage,

25 distribution and purchasing processes for the ammunition.

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Mark J. Geiger


Attorney at Law


Page 5 of 41

Salem, OR 97301

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. Petitioner’s trial counsel was constitutionally ineffective (Article I, Section 11 of the

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Oregon Constitution and the Fifth, Sixth and Fourteenth Amendments of the United States

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Constitution) when he failed to attack Conrady’s methodology and conclusions, as follows:

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Inadmissibility of Conrady’s Test

1) In Conrady’s trial testimony, (tr. 636), he concludes that if the concentrations agree,

6 the source is the same. This is scientifically without foundation;

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2) Conrady improperly extrapolates a chemistry phenomenon to metallurgical practice

8 resulting in an invalid and unjustifiable conclusion about bullet manufacturing (tr. 655);

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3) It is unfounded and without scientific basis to state that there were “three different batches of lead, each unique,” referring to the three bullets at the crime scene (tr. 674);

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4) The following errors existed in Conrady’s processing and testimony:

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22 a) Error in labeling (143112 s/b 143412); b) Operator error in losing samples 03, 11, 09; c) Samples 5 and 1b were not packaged properly; d)

October 15 analysis “did not measure up to normal lab standards;” e)

“typo” of incorrectly indicating 2 samples f/405 (tr. 567); f) Discrepancy regarding number of boxes in evidence (tr. 737); g)

Conrady could not discern “blunt” samples from “hollow points” during exams; h) Mistake in sample selection (tr. 748); i)

Conrady indicated that he might have erred due to “distractions” from people passing by.

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5) Conrady testified that it would take “400 batches of lead before it would be statistically likely that we would produce another batch that [would be] the same.” This statement is “absurd” and is contradicted by the research of Randich, et al , in which the study

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Mark J. Geiger


Attorney at Law


Page 6 of 41

Salem, OR 97301

1 are the same). No body of data supports the assertions that Conrady makes about the batches of

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6) Conrady used “favorable” data from a bad run to draw the conclusion of a “match;” furthermore, he implies it was acceptable to use favorable data from the “bad run” but not

“unfavorable date.”(tr. 755, 759), ie., data which supported his conclusion but not data which

6 contradicted his conclusion;

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7) The exam was rushed (tr. 763-67);

8) Conrady included bullets from a previous case as “standards;” (tr. 774), which is

9 scientifically invalid;

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9) It is without any scientific validity, as indicated in United States v. Mikos , to state that

“when any samples are found to agree across all four rows of chemical elements, matching samples from a homogeneous source of lead have been identified.” (Conrady letter to Krauger

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12/1/99);

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10) To declare a match, Conrady had to have used the grouping technique known as

“data chaining,” a technique discredited by Tobin, et al , and by the National Research Council;

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11) Conrady, as well as the prosecutor, trial attorney and court, failed to understand the

“task at hand” mandate of Daubert and Frye , as indicated by his continual referral to the

18 commonality of bullet lead sources from similar bullet compositions and the alleged forensic

19 significance of such matches, rather than the ability to make accurate compositional

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12) Conrady uses a “database” of bullets previously examined at OSU to boost the reliability of his testimony in petitioner’s case, which is completely worthless in assessing

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13) Conrady presumes the Remington process to be relevant (tr. 537, 538);

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14) Conrady fails to understand the scientific value of an alleged match even with respect to his assumption that a “billet” of lead is the same as an “ingot”, when a billet can be

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215,000 plus lbs. in volume, not the mere 20,000 lbs. Conrady claims (tr. 538);

Mark J. Geiger


Attorney at Law


Page 7 of 41

Salem, OR 97301

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15) Throughout his testimony, Conrady assumes the homogeneity of the lead source,

2 which is a flawed assumption (tr. 540 et seq);

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16) Conrady’s laboratory process was very sloppy with at least seven errors made in his

4 methodology and no peer review of his work or conclusions;

17) Conrady fails to understand that the equation of 1 in 400 as an error rate for a false

6 positive regarding different sources of lead having the same, indistinguishable elemental content;

7 which is a false statement and without scientific validity (tr. 569. 570);

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18) Conrady fails to understand that adding “scrap” to the molten lead is not relevant.

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The FBI concluded that scrap additions have no significant effect on bullet compositions from a

10 forensic standpoint; the technique used by Remington is NOT valid as a universal statement for

11 all manufacturers’ practices; there is no foundation or evidence that the victim bullet lead was

12 manufactured by Remington.

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19) Conrady failed to note that the number of knurling and crimp rings differed between

14 the bullet that killed victim Kinser and the bullets that killed victims Osborne and Graves, which

15 indicated, without the use of NAA, that the bullets came from different brands of ammunition.

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C.

Trial Counsel failed to request a determination by the court regarding the

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18 admissibility of CBLA evidence through an OEC 104 motion, but rather, filed a motion in limine in which he failed to cite the relevant cases (

Daubert, O’Key, Brown

, etc.) and failed to retain

19 any experts to attack the admissibility of CBLA evidence.

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D.

Trial Counsel’s failures, as discussed above, were ineffective, inadequate and had

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24 catastrophic consequences to the defendant, because the CBLA evidence, through Conrady, purported to prove that the bullets from the crime scene and those from petitioner’s garage must have come from the same box of bullets in the petitioner’s possession, which is scientifically invalid and considered to be “junk science;” Trial Counsel’s failure caused prejudice against

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Petitioner in that the jury was led to believe that the CBLA evidence was far more significant

26 that it actually is, as follows: the State claimed that the technique’s accuracy and relevance in

27 this case was such that there was a 1/64,000,000 chance that Petitioner would have bullets, bullet

Mark J. Geiger


Attorney at Law


Page 8 of 41

Salem, OR 97301

1 fragments and/or unfired cartridges in his possession that were chemically indistinguishable in

2 comparison with bullet and bullet fragments taken from the victims, thus linking him to the

3 killings in a very powerful and highly misleading way (as discussed above).

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Trial Counsel was ineffective and inadequate when he failed to retain experts in

5 statistics and probability to dispute the 1 in 400 error rate of the NAA (Neutron Activation

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Analysis) tests or to rebut the prosecutor’s misrepresentation that the error rate of the NAA test

7 somehow could be used to extrapolate the probability of the petitioner having matching

8 ammunition; this failure caused prejudice against Petitioner in that the jury was led to believe

9 that the NAA tests and CBLA theory were concrete, scientifically valid tests, when in fact, they

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11 were based on untested, irrelevant and unscientific methodology and were (and are) “junk science.”

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F.

Trial Counsel was ineffective and inadequate when he failed to attack the

13 admissibility of Firearms and Toolmark evidence as follows:

Admissibility of the Science of Firearm and Toolmark Identification

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1) Trial Counsel filed a completely ineffectual “motion in limine” in which he attacked the admissibility of any evidence relating to the “similarities or dissimilarities of cartridge cases found at the scene and the cartridge cases from other sources . . .” without specifying the reason

18 for the inadmissibility of the evidence; furthermore, trial counsel failed to cite the relevant case

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20 law regarding the admissibility of scientific evidence ( State v. Brown , 297 Or 404 (1084), State v. O’Key , 321 Or 285 (1995), Daubert v. Merrel Dow Phar maceuticals, 509 US 579 (1993),

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Kuhmo Tire Company, Ltd. V. Carmichael , 526 US 137 (1999)). Trial Counsel improperly conceded that the tool mark evidence was admissible, thus relieving the court of it’s “gate keeper” duties in regards to the admissibility of the shell casing evidence (pre tr. 671);

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2) Trial Counsel failed to request an OEC 104 hearing; while the “motion in limine” could be “styled” as an OEC 104 hearing request, the evidence code squarely tests both the

26 scientific relevance and admissibility of proposed testimony, a factor of which trial counsel

27 seemed to be unaware. Had a proper hearing been requested and conducted, the Court would

Mark J. Geiger


Attorney at Law


Page 9 of 41

Salem, OR 97301

1 have limited the testimony of the State’s expert and his conclusion that he could match shell

2 casings to a specific weapon to the exclusion of every other firearm in the world, would have

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4 been prohibited; therefore, the State would not have been able to produce any forensic evidence

“matching” the cartridges taken from Petitioner’s home to the cartridges recovered from the

5 scene of the homicide;

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3) “Toolmark Identification,” often referred to (with respect to this case) as “ballistics identification” or sometimes as “ballistics fingerprinting,” under the legal tests announced in

Daubert, O’Key , and Kuhmo Tire Company, LTD, v. Patrick Carmichael , 526 US 137 (1999),

9 was inadmissible as to this case and/or as a science and was not so challenged by Trial Counsel,

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12 following recent developments support this allegation and are a clear indication that had counsel challenged “toolmark identification,” a record would have been made and supported:

13 when it should have been; furthermore, and in conjunction with allegation 2) above, the

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The National Research Council released a report on March 5, 2008, indicating that, “. .

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. the fundamental assumption underlying forensic firearms identification – that every gun leaves

16 microscopic marks on bullets and cartridge cases that are unique to that weapon and remain the

17 same over repeated firings – has not yet been fully demonstrated scientifically.”

18 b. The report cautions that evidence, in the form of scientific testimony, as in this case,

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20 that matches of ballistic evidence identifying a particular source gun to the exclusion of all other firearms should be avoided.

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22 c. The NRC report states that there “. . . is currently no statistical justification for [the

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25 statement that a bullet can be matched to a firearm with such certainty that it can be excluded from originating from all other guns]; furthermore, such a statement is “. . . inconsistent with the element of subjectivity inherent in any firearms examiner’s assessment of a match.”

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Mark J. Geiger


Attorney at Law


Page 10 of 41

Salem, OR 97301

1 d. In this case, Trial Counsel was constitutionally ineffective (under Article I, Section 11

2 of the Oregon Constitution and the Fifth, Sixth and Fourteenth Amendments of the United States

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Constitution) for allowing Rutter to testify – unchallenged – that the petitioner’s firearm WAS

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5 the firearm through which the cartridges and/or bullets recovered from the scene were fired and/or cycled. The science of “toolmark” identification was, even in the absence of this “new”

6 evidence, just as legally deficient as it is now.

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9 themselves, had changed significantly over the years, such that uniquely, identifiable toolmarks

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11 were no left in each and every gun shaft and in fact, there was little if any variation between the first shaft made in the factory and subsequent shafts made with the same “tool.”

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4) Trial Counsel failed to obtain an expert witness to testify about why, in the absence of

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14 a suspect weapon, the possibility of subclass characteristics cannot be eliminated, and, accordingly, identifications of a “match” cannot be made with certainty;

15 that the materials used to make gun components, and the metallurgical composition of gun shafts

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Trial Counsel was ineffective and inadequate when he failed to exclude Rutter’s

16 e. Evidence existed at the time petitioner was charged and convicted clearly indicating

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18 testimony, methodologies, procedures and conclusions as follows:

Admissibility of Rutter’s Testimony

The allegations in 3), a-e

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1) Trial Counsel failed to properly challenge Rutter’s testimony that shell casing marks

21 from one weapon could be identified to the exclusion of all other weapons;

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2) Trail Counsel failed to obtain experts regarding the defects in Rutter’s methodologies, procedures and conclusions; the flaws in Rutter’s methodologies, procedures and conclusions

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26 include the following: a) Rutter’s use of “pattern recognition” (tr. 2154) has been and is being disputed by members of the field of forensics since the 1930’s. Pattern recognition is, by definition,

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Mark J. Geiger


Attorney at Law


Page 11 of 41

Salem, OR 97301

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2 b) Rutter failed to check the chamber face marks of the shell casings evidence.

These marks are unique in that they are only found on shell casings that have a “rim,” such as the

3 ones involved in this case.

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5 c) Rutter failed to document his work in the following ways:

1. He did not make detailed bench notes; his notes did not include any

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17 specific information regarding the type, location or quantity of microscopic striations that he relied upon to conclude that the shell casings matched.

2. He failed to take any magnified photographs of the evidence he examined and testified about.

3. He did not testify about the criteria he used or how many “microscopic striations” were necessary for him to conclude that there was a match.

Rutter’s statement that the trier of fact should “take his word for it,” is not scientific.

4. Rutter had no way of knowing, or keeping track of, his own potential rate of error.

5. Rutter was unable to describe the fine striations used to support

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6. When questioned about his lack of documentation, Rutter simply stated “take my word for it.” (Tr. 2167).

7. Rutter did not take into account, or inform the jury of the fact that,

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25 without a suspect weapon, the possibility of subclass characteristics makes the conclusion of a “match” less than an absolute certainty.

Trial Counsel’s failures to effectively and adequately attack the admissibility of the science of Firearms and Toolmark Identification as well as Rutter’s testimony, methodologies,

26 procedures and conclusions caused prejudice to Petitioner in that Rutter implied that he could

27 match shell casings to one another and that the marks made upon them could have only been

Mark J. Geiger


Attorney at Law


Page 12 of 41

Salem, OR 97301

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3 made by one gun, to the exclusion of all other guns in the world. As is readily apparent from the allegations in 3) a-e , Rutter’s testimony was and is legally incorrect; counsel’s failure to attack the relevancy and scientifically validity of that testimony violated petitioner’s constitutional

4 rights to effective assistance of counsel (Article I, Section 11 of the Oregon Constitution and the

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Sixth and Fourteenth Amendments to the United States Constitution) and his rights to due

6 process and a fair trial, under Article I, Section 11 of the Oregon Constitution and the Fifth and

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Fourteenth Amendments to the United States Constitution.

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H.

Trial Counsel was ineffective and inadequate when he failed to properly cross-

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1) In a report written by DOJ investigator Kerry Taylor, (discovery, p. 3416) it indicates

11 that the plumbers who gave an estimate for the plumbing work to be done at the mobile home

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(where the murders took place) on November 23, 1998 – the day of the murders – said,

13 according to the Taylor report, that they left the mobile home at about 3:30 PM. At trial, the

14 plumbers (Roberts and Beaudoin) testified that they left the location at about 1:30 PM. This was

15 never brought out on cross-examination.

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2) Jeramy Olsen testified that he arrived at the mobile home 3:30 PM (tr. 1427) and

17 then says that it might have been earlier (between 3:00 and 3:30 PM); during cross, Trial

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Counsel allowed Olsen to fix the time at 3:30 PM (tr. 1484). Trial Counsel further failed to

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20 impeach Weaver (who was with Olsen) with the time discrepancy between what he said in court and what he told officer Mason, as follows: according to Mason’s report (C191-01804), Weaver

21 told him that he left his house at 3:00 P.M., that Jeramy Olsen got to his house at 3:45, that Olsen

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23 got a gallon of water to take to Kinser’s house, that they stopped at a smoke shop on Wallace road before going to Kinser’s house, that they got back to the “house” at 4:00. Not only are

24 these times different than what Olsen and Weaver testified to, but Trial Counsel failed to

25 recognize the importance of the time issue and failed to notice the discrepancy between what

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Olsen and Weaver told the police and what they testified to and failed further to notice that Olsen

27 could not have gotten to work at 4:45 P.M. (verified by his time card) if he did not get to

Mark J. Geiger


Attorney at Law


Page 13 of 41

Salem, OR 97301

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Kinser’s until close to 4:00. Trial Counsel failed to examine Olsen regarding testimony at trial

2 which was inconsistent with his statement to Detective Oja. Since Olsen and Weaver’s

3 credibility regarding the events of the day in question is critical to the State’s case, Trial Counsel

4 caused prejudice against Petitioner by failing to attack the inconsistency in their testimony.

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3) Bimla Boyd testified that she went down her driveway, past the mobile home where

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Kinser, Graves and Osborne lived at what she thought was 4:00 P.M. (to pick up her kids) and

7 then went back up her driveway when she was unable to get past a tree that had fallen across the

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10 driveway (in a storm); she called the mobile home at 3:30 but testified that all she got was the

“answering machine.” This was highly unlikely as the power was out at this time. Since Boyd’s credibility regarding the events of the day in question is critical to the State’s case, Trial Counsel

11 caused prejudice against Petitioner by failing to attack the inconsistency in her testimony.

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4) Boyd testified that when she entered the mobile home, there was smoke all over the

13 place; this was contradicted by Jason Cane, the deputy fire marshal, who testified that the fire

14 lasted only for about five minutes and that there was no smoke damage (tr. 470; Cane’s report on

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16 the fire in discovery); since Boyd’s credibility regarding the events of the day in question is critical to the State’s case, Trial Counsel caused prejudice against Petitioner by failing to attack

17 inconsistencies in her testimony.

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5) Boyd testified that the fire was on the “hearth” and was blazing when she entered the

19 mobile home, that the door to the wood stove was off and on top of the fire (tr. 1294 et seq .), that

20 there was smoke everywhere, that she put a piece of carpet on top of the fire and put the door

21 back onto the stove; Cane testified (tr. 470 et seq .) and/or reported (discovery, Cane report,

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1/15/99) that the doors to the wood stove had been put back on the stove during the OSP crime

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24 lab investigation, that the right side door to the stove had melted carpet debris on the outside of the stove door. Detective Krauger’s Property in Custody (PIC) Log, reflects that the door was in

25 the evidence locker at the Polk County Jail at the same time Cane identifies the door being at the

26 crime scene. Boyd was never cross- examined with respect to the inconsistencies between what

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Cane said and what she said; furthermore, Boyd told the police (Holsapple report) that the stove

Mark J. Geiger


Attorney at Law


Page 14 of 41

Salem, OR 97301

1 door was on the bottom with the fire on top; Trial Counsel never confronted her or any other

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3 witness with this conflicting evidence; since Boyd’s credibility regarding the events of the day in question is critical to the State’s case, Trial Counsel caused prejudice against Petitioner by

4 failing to attack inconsistencies in her testimony.

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6) Trial Counsel failed to recognize that with Bimla Boyd’s testimony (i.e., that when she drove up the driveway at approximately 3:35 PM and the petitioner’s van was still there, and then she drove down the driveway at 3:45 PM and petitioner’s van was gone), that it was

8 impossible for him to have committed murders and still get home by 4:02 P.M., the time that he

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10 arrived home, as testified to by Sarah Miller and verified by phone records. Police officer testimony established that it took at least 26 minutes to get from the crime scene to petitioner’s

11 house:

12 a) Trial Counsel further failed to notice that there was a time discrepancy in

13 association with 6) , above, in that police reports and testimony did not coincide with the travel

14 times that were reported;

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17 b) Trial Counsel failed to point out that no one tested the amount of time it would

16 have taken Weaver and Olsen to travel from the crime scene to their places of work.

7) Both Olsen and Weaver testified (tr. 1403 et seq ) that petitioner did not have any mud

18 on him when he approached them outside the mobile home, which suggests that petitioner had

19 not done what he had claimed, i.e., examine the pipes under the mobile home, when in fact, that

20 evidence could/should have been used to support the inference that the killer had to have mud on

21 him when there was proof that the female victims had been shot and killed underneath the mobile

22 home and that due to the muddy conditions under the home, that the killer had to have gotten

23 mud on him or herself.

24

8) Bimla Boyd acted very strangely on the day of the murders and her medical records

25 were never subpoenaed and examined to determine whether she was on any medication and

26 whether this affected her ability to recall and relate what she witnessed. In a pre-trial hearing, it

27 was established through attorney McDonough that Boyd might be a flight risk; she testified that

Mark J. Geiger


Attorney at Law


Page 15 of 41

Salem, OR 97301

1 she had to leave the country for medical treatment for various ailments (cancer, most notably)

2

3 and although her records were available and her psychologist/psychiatrist was Dr. Suckow, those reports were never examined by Trial Counsel and are believed to be relevant to Boyd’s mental

4

5

6 state and her ability to recall. In addition, Trial Counsel failed to note that Boyd had memory

“problems” 39 times during cross-examination. Since Boyd’s credibility regarding the events of the day in question is critical to the State’s case, Trial Counsel caused prejudice against

7

Petitioner by failing to attack inconsistencies in her testimony.

8

9

9) Trial Counsel failed to ascertain that Bimla Boyd could not have seen the “comings and goings” of individuals in the driveway and at the mobile home from her seat at her sewing

10

11 machine, where she testified to be when she witnessed these things. Since Boyd’s credibility regarding the events of the day in question is critical to the State’s case, Trial Counsel caused

12 prejudice against Petitioner by failing to attack inconsistencies in her testimony.

13

10) Witness Birch testified with respect to the distribution patterns of bullets; such

14

15 testimony was statistically flawed; by failing to attack Birch’s testimony, the jury was led to believe that the State’s reputed evidence regarding the “brick” of Peter’s brand .22 caliber

16 ammunition was far more significant that it actually was, thus causing prejudice against

17

Petitioner.

18

11) Trial counsel failed to argue that Boyd testified that Kinser was “gasping” when she

19

20 was in the mobile home, even though she also testified that she did not even see him when she at first went in; that this was inconsistent with the medical examiner’s testimony that Kinser would

21 have been alive no longer than one minute after he was shot, that he was in fact gasping as

22 evidenced by the blood in his lungs. Furthermore, with respect to this claim, Trial Counsel failed

23

24 to point out that, given the testimony of Ms. Jackson, it was not possible for Boyd to have heard the “gasping” when she said she did, given the timing of the phone call (3:57 P.M.) to the 911

25 operator (who testified tat Boyd told her that Kinser was trying to talk), the testimony from

26

27 witnesses as to when Weaver and Olsen left the mobile home and when petitioner got home.

Trial Counsel’s failure to “connect the dots” caused prejudice to Petitioner in that the jury clearly

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Attorney at Law


Page 16 of 41

Salem, OR 97301

1 did not comprehend the significance of individual facts regarding this issue. To the extent that

2

Trial Counsel failed to properly argue this evidence in his closing, petitioner was further denied

3 the effective and adequate assistance of counsel.

4

12) Boyd initially told police that the wood stove was not operational due to a clogged

5 flue pipe, yet there was testimony by the plumbers that one of the female victims had retrieved

6 wood from Boyd while they were examining the plumbing, and there was evidence (via fire

7 marshal Cane) that the wood stove had been recently used. At trial, Boyd was now aware of the

8 conflicting evidence and changed her story about the ability of the stove to be used. Trial

9

10

Counsel failed to question Boyd about this conflicting testimony. Since Boyd’s credibility regarding the events of the day in question is critical to the State’s case, Trial Counsel caused

11 prejudice against Petitioner by failing to attack inconsistencies in her testimony.

12

13) Trial Counsel failed to cross examine the 911operator, Jackson, regarding the 911

13 call made by Boyd, in which Boyd reported that there was heavy smoke and a fire blazing, that

14

15 the door was off the stove when she entered the mobile home, both of which are contradicted by the fire marshal’s report. Bimla Boyd testified that Jackson told her to block the driveway to

16 keep anyone from leaving or entering. Jackson should have been questioned whether she

17 actually made that statement. Jackson report also stated Boyd had reported seeing Kinser’s

18

19 girlfriend drive off right before arriving at the mobile home. Since Boyd’s credibility regarding the events of the day in question is critical to the State’s case, Trial Counsel caused prejudice

20 against Petitioner by failing to attack inconsistencies in her testimony.

21

14) Trial Counsel failed to cross examine deputy Krauger about there being no other

22 suspects in the case, when there is a “confidential” memorandum supplement to Krauger’s report

23

C-00352-005297 that lists Jamison Ennis as a suspect. In addition, on the day of the murders a

24 photo line-up of Thomas McMahon was generated and shown to Bimla Boyd. McMahon, who

25 police have described as Hispanic looking, was listed as a suspect in the field notes of Deputy

26

Van Laanen. Since it was the State’s contention that Petitioner was the only suspect in this case,

27

Mark J. Geiger


Attorney at Law


Page 17 of 41

Salem, OR 97301

1

Trial Counsel caused prejudice against Petitioner by failing to show the jury that there were, in

2 fact, other suspects and that the State was misleading the jury.

3

15) Trial Counsel failed to question Officer’s Oja and Wallace regarding the

4 representations made to Petitioner during interrogation and the subsequent destruction of the

5 recording device and tape; since the credibility of the police is critical to the State’s case, Trial

6

7

Counsel caused prejudice against Petitioner when he failed to sufficiently attack Oja and

Wallace’s testimonies.

8

16) Trial Counsel failed to cross-examine Linda Johnson about statements that she made

9

10

11 to officer Oja (see discovery report C66) regarding Celeste Graves having told her that Steve

Brobston’s money was in a safe deposit box. Trial Counsel’s failure to present this evidence to the jury caused prejudice in that it could have been used to corroborate Petitioner’s version of the

12 facts wherein, during interrogation by officer Oja, Petitioner stated that Graves had been telling

13 too many people about Petitioner being in possession of Brobston’s money and that she needed

14

15 to take control of it instead. Petitioner further stated that he and Graves agreed to let Graves say that the money was being kept in a safety deposit box. Since it was the State’s contention that

16

17

Petitioner lied about the entire money/safety deposit box issue, it would have been invaluable to

Petitioner’s credibility to have had corroboration about this issue.

18

20

I.

Trial Counsel was ineffective and inadequate when he failed to investigate and/or call

19 as witnesses the following individuals:

1) James Paul Stevenson, who told Detective Krauger that people in the drug trafficking

21 trade were used to entering and leaving the property, where the murders occurred, on foot and

22 undetected. Trial Counsel’s failure prejudiced Petitioner’s case in that the information could

23 have been used to dispute the testimony of Bimla Boyd wherein she told the jury that nobody

24 could enter or leave her 30 acre property without her knowledge, that there was very little traffic

25 on her property and that there was nobody on her property at the time of the murders except for

26

Petitioner.

27

Mark J. Geiger


Attorney at Law


Page 18 of 41

Salem, OR 97301

1

2

2) Keith Morton told police the murders were a “Mexican hit” and that a close associate of Kinser’s, Thomas McMahon, had robbed some Hispanics at gunpoint shortly before the

3 murders. Petitioner’s case was prejudiced by Trial Counsel’s failure to show the jury that Kinser

4 and McMahon:

5 a) Associated with Hispanic drug dealers, and that this

6

7

8

9

10

11

12

13

14 b) created a situation that could have resulted in them being targeted for retaliation.

3) Rebecca Morton told police that some Hispanic men had retaliated against McMahon by shooting at his truck, and that this retaliation was due to

McMahon’s recent attempt to conduct a controlled buy of drugs from these individuals.

Again, Petitioner’s case was prejudiced by Trial Counsel’s failure to show the jury that many people were aware that Kinser and McMahon’s actions had cause them to be in trouble with Hispanic individuals.

4) Tina Shinall told police that there was a “hit” out on Kinser prior to his death;

15

16

5) Debbie O’Hara, who told April Wilson that Dean Reef was at the murder scene and that Kinser’s body was found in the kitchen/hall area; the fact that this evidence was

17

18 not produced is prejudicial because no known press releases or newspaper articles discussed the location of Kinser’s body or more specifically, the body’s condition when found;

19

6) Robert Hendricks told officer Holsapple that Kinser was not fully dressed at the time

20 of the murders, a fact with which he should not have been familiar (see (5) above);

21

22

23

7) Roy Shinall told officer Holsapple (12/4/98 interview) that Jeff Murphy was angry with Kinser for stealing chemicals from him for making methamphetamine and “wanted to get back at him;”

24

25

8) Dan Wakeman told officer Holsapple that Dan Murphy sent Donald Saeger to do a

“tax” on Kinser (a “tax” is done to a person who owes money), that he heard Dan Murphy tell

26

Saeger this in October of 1998;

27

Mark J. Geiger


Attorney at Law


Page 19 of 41

Salem, OR 97301

1

2

9) Jason Campbell told officer, Holsapple that Dean Reef hired Dennis Pennington to do a hit on Kinser over stolen chemicals, that Pennington admitted to Campbell that he’d been hired

3 to do a hit;

4

10) Kimberly Ann Carsens heard Reef threaten to kill Kinser; Reef told her on

5

December 23, 1998, that he thought he’d be arrested for conspiracy to commit murder;

6

According to Carsens, Reef blamed the murders on the Murphy brothers and Don Arnold;

7

8

11) Kristina Hurn told Brian Higgins that Reef killed Kinser;

12) Julie Dotson told Officer Simpson (on November 25, 1998; see discovery report

9

10

C12) that Thomas McMahon seemed to know more about the killings than he should have, that he told her he was going to kill her, that “you should have seen the look on her face,” apparently

11 referencing the killing of one of the women at the mobile home, that Dotson was under the

12 impression that McMahon witnessed the killings;

13

14

13) Teresa Monahan told Officer Simpson (on November 24, 1998; see discovery report

C13) that she talked to “them” (the victims) at 3:30 on the 23 rd

and that Suzan was going to come

15 over to her house to borrow her cell phone because their phone was not working;

16

14) During the trial, both Olsen and Weaver testified about petitioner’s

17 strange behavior at the mobile home, as if he did not want them to enter the mobile home; this,

18 however, was never mentioned by Olsen in his initial contact with detective Oja and not

19 mentioned by trial counsel when cross examining Olsen;

20

21

15) Boyd told officer Pinkerton (on November 23, 1998; see discovery report C5) that she “ran into someone and that they left prior to finding the fire.” She was never cross examined

22 with respect to this statement;

23

16) Kimberly Avery told Detective Bernie Krauger that Louisa Hague told her

24

25

26

On November 23, 1998, at 10:30 P.M. (although no time of death was ever established, it is alleged that the murders occurred between approximately 3:30 and 4:00 P.M. on the 23 rd

) that

Jason was shot at point blank range in the kitchen area with a .22, that Suzan and her “friend” ran

27

Mark J. Geiger


Attorney at Law


Page 20 of 41

Salem, OR 97301

1 out the back door and tried to run up the hill behind the trailer but could not make it up because it

2 was too muddy, that they hid underneath the trailer and were each were shot in the head;

3

17) Summer Rohrback spoke with Salem Police Officer Al Graham (on or about October

4

5

13, 1999) and told him that she had seen “Bubba” (Jamison Ennis) with some jewelry and a gun that was reputedly used to kill “two woman and a man” and that the women were dragged under

6

7 a trailer; neither Ms. Rohrback, Mr. Ennis nor any of the other people involved in this episode were interviewed. By failing to bring this incident to the jury’s attention, Trial Counsel caused

8 prejudice against Petitioner by missing an opportunity to show that there was significant reason

9 to believe that someone else killed the victims in this case.

10

18) Trial counsel failed to investigate the phone numbers that were found on the Pager

11 that belonged to Celeste Graves. Jamison Ennis had it in his possession and claimed he

12 purchased from her;

13

19) Karin Jackson, who took the 911 call from Boyd, said in her report that that Boyd

14 reported that the door was off the stove, that there was heavy smoke damage and that she saw the

15

16 victim's girlfriend leave in a vehicle. This failure by Trial Counsel caused prejudice against

Petitioner in that it could have been used to dispute the State’s assertion that Bimla Boyd was a

17 credible witness and that Petitioner had killed all the victims.

18

20) Reef blamed the murders (according to Carsens) on the Murphy brothers and on Don

19

20

Arnold.

21) Joe and Irene Morrow, neighbors of the Boyd’s, have recently disclosed information

21

22

23 about the timing of the events on the day of the murders that directly conflicts with Bimla

Boyd’s account.

22) In a report from Salem P.D. (see discovery report C178 “h,” SMP 11-24-98), it was

24 disclosed that Tomas McMahon owned a vehicle registered at 1174 Royalty Drive in Salem,

25

26

Oregon, prior to the murders. This address is very near the home of the Petitioner and could explain why the victims in this case had allegedly been seen near the Petitioner’s home. IN

27 addition, the Petitioner has also learned that McMahon was in fact considered to be a suspect in

Mark J. Geiger


Attorney at Law


Page 21 of 41

Salem, OR 97301

1 this case, as evidenced by officer Van Lannen’s field notes and construction of a photo line-up of

2

McMahon (see discovery reports C202-01891) and C10). Both McMahon and Van Lannen

3 should have been questioned as to these reports.

4

5

23) Officer Pinkerton, the first officer to arrive at the crime scene, wrote in a report that

Bimla Boyd stated she had “ran into someone and that they had left prior to finding the fire” (see

6 discovery report C5). This report implies that there was an unidentified person on the property

7 prior to the commission of the crime. Pinkerton should have been called as a witness to related

8 this information to the jury.

9

J.

Trial Counsel was ineffective and inadequate for failing to object to the inadmissible

10 impeachment evidence offered against Kay Sweeny, the forensic toolmark expert that testified

11 for the Petitioner, when the state offered specific instances of character evidence (that were an

12

13 improper impeachment attempt). This failure caused prejudice against Petitioner in that

Sweeney’s credibility was critical to disputing the State’s shell casings evidence.

14

15

K.

Trial Counsel was ineffective and inadequate for failing to object to the relevance of the evidence introduced against the petitioner that he was manufacturing “silencers” and short

16 barrel shotguns, when there was a police report about a neighbor, Larry Wacken, who said he

17

18

19

20

21 heard gunshots in the area around the Boyd’s residence between 4:00 and 4:15 PM (see discovery report C6), and since shotguns played no role in the victim’s death. This was not evidence of Petitioner’s guilt and was not legally relevant to establishing guilt. Therefore, Trial

Counsel caused prejudice to Petitioner’s case by failing to object to the uncharged “bad acts” on the ground that the State put these items into evidence to show that Petitioner had “bad character,” in violation of OEC 404 (inadmissible character evidence).

22

23

24

L.

Trial Counsel was ineffective and inadequate for failing to mount a timely and sufficient attack against the state’s pseudo-science closing argument, in which the state argued

25

26

27

Mark J. Geiger


Attorney at Law


Page 22 of 41

Salem, OR 97301

1 that the rate of error of Conrady’s Neutron Activation Anaylsis

1

could be multiplied times the

2 number of matches that were made, resulting in a 1/64,000,000 chance that the bullets recovered

3

4 from the scene randomly matched the metallurgical composition of bullets taken from

Petitioner’s garage. Trial counsel failed to object during the closing argument (See, tr. 3867 et

5 seq.) but did object after the case went to the jury, which the court held was not a timely

6

7 objection. Counsel should have objected during the trial and should have sought the advice of an expert with regard to the argument’s invalidity. Trial Counsel was ineffective and inadequate for

8 failing to do so. This failure caused prejudice against Petitioner by allowing the jury to believe

9 that the bullet lead evidence was virtually indisputable.

10

M.

Trial counsel was ineffective and inadequate for failing to investigate items in police

11 custody or elsewhere, for exculpatory evidence before they were destroyed, lost or otherwise

12 made unavailable for forensic testing or others investigation, such as:

13

14

1) The wood stove door could have been tested for fingerprints, but was returned to

Boyd’s custody;

15

2) The red Bic lighter could have been tested for fingerprints, but was “lost;”

16

17

3) The bullet hole in the side of the trailer which was removed by reserve officer Woods, but was apparently “lost;”

18

4) The fire place tongs could have been tested for fingerprints;

19

5) The shell casings found at the crime scene could have been tested for fingerprint;

20

6) The police compared the finger prints recovered from the crime scene to Jeremy A.

21

Olson , when the Olsen who was at the crime scene was Jeremy D. Olsen ;

22

7) Bullets from the defendant’s garage that were put into empty coffee cans rather than

23 being labeled as to who found what and where; one was found by a police officer in his pocket

24

25

1

Conrady testified that there as a 1/400 error rate with respect to his finding that the

26

27 metallurgical analysis of the bullets from the scene were compositionally indistinguishable from the bullets taken from Cannon’s garage.

Mark J. Geiger


Attorney at Law


Page 23 of 41

Salem, OR 97301

1 and he stated that he didn’t know how it got there (Detective Oja); this bullet was eventually

2

3 submitted but never tested by the crime lab. Trial Counsel should have argued in closing that

Detective Oja’s mishandling of evidence demonstrated that evidence from the crime scene and

4

5

6 from Petitioner’s home was cross-contaminated. Since the physical evidence and credibility of the police is critical to the State’s case, Petitioner’s case was prejudice when Trial Counsel failed to attack the police’s handling of the evidence and crime scene.

7

8) Forensic experts failed to obtain a body core temperature of the victims to determine a

8

9 probable time of death. Since Petitioner did have an alibi for the most likely time of death,

Petitioner was prejudice by Trial Counsel’s failure to show the jury that the State had no proof as

10 to the actual time of death of any of the victims.

11

9) Deputy Krauger indicates in a police report (Master index #303-4395) that he

12 previously interviewed Ms. Avery on 2/11/99 and the date on the aforementioned report is

13

9/10/99. On a Master Index dated 3/18/99, there is no mention of this interview. It is mentioned

14 on the Master Index dated 1/24/00. It is also listed on a “cross index list,” which was updated on

15

12/31/99. Nowhere in the discovery is there a copy of any reports generated by Krauger from a

16

2/11/99 interview.

17

10) The entire crime scene could have been checked for additional fingerprints and shell

18 casings. The fact that only six fingerprints (none of which belonged to Petitioner) were found in

19 the entire residence indicates that the police were probably less than diligent in their efforts, or

20 that the killer had a considerable amount of time to “sanitize” the crime scene. Also, the fact

21 that, to this day, at least tow shell casings are still missing from the crime scene, indicates that

22 the entire crime scene should have been thoroughly investigated by defense experts.

23

24

11) The .22 caliber ammunition found in the spare bedroom at the crime scene (tr. 893) could have been tested to see if it “matched” the elemental composition of the slugs removed

25 from the victims. Since it has now been established that lead from various batches of .22

26 ammunition can, and often does, match, it would have been beneficial for Petitioner to have the opportunity to have any .22 caliber ammunition associated with the crime scene tested.

27

Mark J. Geiger


Attorney at Law


Page 24 of 41

Salem, OR 97301

1

12) None of the victims were tested for DNA evidence. The autopsy reports (see

2 discovery reports C28, C30) indicated that, contrary to what the prosecution alleged, two of the

3 victims showed signs of a struggle (abrasions, injuries other than gunshots) and it is likely that

4 the victims fingernails, for example, could have been examined for trace DNA evidence.

5

13) Trial Counsel failed to note numerous critical errors within the chain of custody for

6 the evidence.

7

8

N.

Trial Counsel was ineffective and inadequate when he failed to object to the sentence of “Life Without the Possibility Of Parole” due to the sentence having been imposed in violation

9 of the Oregon Constitution, Article I, section 40.

10

O.

Trial Counsel was ineffective and inadequate when he failed to disclose a conflict of

11 interest;

12

13

P.

Trial Counsel was ineffective and inadequate when he failed to disclose that his health was so severely compromised that he could not mount an appropriate defense;

14

Q.

Trial Counsel was ineffective and inadequate when he failed to engage in vigorous

15 and thorough discovery;

16

R . Trial Counsel was ineffective and inadequate when he failed to present expert

17 testimony regarding blood spatter;

18

S.

Trial Counsel was ineffective and inadequate when he failed to object to Detective

19

Krauger being allowed to stay in the court room during the trial;

20

T.

Trial Counsel was ineffective and inadequate when he failed to object and ask for a

21

22 voir dire of the jury members when Sgt. Cox told the judge that he had overheard District

Attorney employees discussing the petitioner’s case in loud and derogatory terms while standing

23 next to the jury room where the jury was residing;

24

U.

Trial Counsel was ineffective and inadequate when he failed to object on several

25 occasions to photos that existed and that he claimed not to have seen before;

26

V.

Trial Counsel was ineffective and inadequate when he did object because he failed to federalize any of his objections;

27

Mark J. Geiger


Attorney at Law


Page 25 of 41

Salem, OR 97301

1

2

3

W.

Trial Counsel was ineffective and inadequate when he failed to object to the second unsolicited comment made by witness Canini that he had “heard” that Petitioner used to be real

“aggressive;”

4

5

X.

Trial Counsel was ineffective and inadequate when he gave a poorly delivered closing argument that failed to note critical flaws in the state’s case, such as:

6

1) The apparent selective memory of Bimla Boyd wherein she had memory problems no

7 les than 39 times while being cross-examined, but she has no problems answering the 300

8

9 questions of the prosecution. This failure caused prejudice against Petitioner in that the jury had to rely, in part, upon the credibility of Boyd’s testimony in order to reach a guilty verdict, had the

10 jury realized the number of time she claimed memory problems her credibility would have been

11 impeached.

12

2) That the state’s theory – the Petitioner killed all of the victims between the time of

Olsen’s phone call with the victims ended and the time Olsen and Weaver arrived at the trailer

13

14

(approximately 3:33PM) -- was impossible given the fact that the state medical examiner

15 testified that Kinser would have gasped for no longer than one minute after being shot and that

16

Bimla Boyd told the 911 operator at 3:57 PM that Kinser was alive and gasping;

17

3) The significance of the fact that numerous people, including Jamison Ennis, had

18

19 access to .22 caliber weapons and ammunition once owned by Petitioner.

4 ) Trial counsel failed to present a credible theory of the case in his closing argument,

20 which would have been very persuasive to a jury who had heard nothing from the state with

21 regard to how the murders occurred nor were they presented any evidence from which a

22 reasonable person could deduce what must have transpired, as follows: Kinser had mud on his

23 clothing, his body was clothed in underwear, his muddy clothes, piled in the bathroom, were still

24 wet when the police took photographs, there was dried mud on his hands and some around his

25 feet, there was mud on a tool chest and mud smears on the top of the wall near the tool chest and

26 there were many mud smears on the exterior surface of the trailer immediately adjacent to the

27 location of the other bodies (which were underneath the trailer). The state emphasized in their

Mark J. Geiger


Attorney at Law


Page 26 of 41

Salem, OR 97301

1 closing that Petitioner did not have any mud on his clothing when he said he was underneath the

2 mobile home doing repairs (which is evidence, according to the state, of a lie). The only one who

3 did not have any mud on him is the Petitioner. This is a powerful fact that would/should lead a

4 jury to wonder how the only person without any mud could be the one that committed the

5 murders. Trial Counsel was ineffective for failing to present this evidence to the jury in a way

6 that leads to one conclusion: Petitioner could not have killed anyone at the trailer.

7

8

9

Y.

Trial Counsel was ineffective and inadequate for failing to object to the evidence of

Petitioner’s recreational drug use. Evidence of Petitioner’s drug use, the drug paraphernalia and the small amount of marijuana found at Petitioner’s home were never linked to the charged

10

11 crimes, nor was evidence ever presented that proved the charged crimes were drug related. The evidence was offered in violation of OEC 404 (to prove that Petitioner had a “bad” character)

12 and that because he was involved in the drug world, he was a killer (which is a violation of OEC

13

14

402 – relevance). The fact that Petitioner was at the crime scene on the day in question for legitimate reasons negates the State’s theory that he came there to kill the victim.

15

Z . Trial Counsel was ineffective and inadequate for failing to object to the evidence

16 referenced numerous times in the prosecutor’s closing which misstated the evidence, as further

17 specified in Claim 2.

18

19

CLAIM 2

20

PROSECUTORIAL MISCONDUCT

21

9.

22

Petitioner was denied due process of law under Article 1, Section 11, of the Oregon

23

Constitution and the Fifth and Fourteenth Amendments to the United States Constitution, and a

24 substantial denial of rights under ORS 138.530 when:

25

A.

The prosecutors in this case committed prosecutorial misconduct when they did the

26 following:

27

Mark J. Geiger


Attorney at Law


Page 27 of 41

Salem, OR 97301

1

2

1) They coached witnesses. As an example, witness Laski testified that he was told what to say; Detective Krauger admitted that he discussed the defense’s opening statements with the

3 prosecution and then proceeded to act upon that discussion prior to his taking the stand;

4 furthermore, Olsen, Weaver and Boyd all testified that they looked at one form of clock or

5

6 another at the same time (3:45 P.M.). These actions caused prejudice to Petitioner in that witnesses were able to corroborate each other’s testimony, thus making them appear more

7 reliable to the jury.

8

2) They argued the 1/64,000,000 claim for the first time in rebuttal. There was no

9 evidence presented on this issue, which amounted to the prosecutor providing expert witness

10

11

12 testimony, knowing that such would make it impossible for Petitioner’s attorney to meaningfully rebut this evidence. In addition, the prosecutor’s closing remarks on this issue was the equivalent of new, “expert testimony” (representing himself as an expert in statistics) before the

13 jury and his arguments were, without question, unsupported by any facts in the abstract, let alone

14 by any evidence on the record. For this argument alone to go unchallenged, the case against

15

Petitioner was prejudiced in that the jury was led to believe that the CBLA evidence was

16 statistically comparable to DNA evidence in its reliability and significance.

17

3) They argued that the mobile home had an “inordinate” amount of smoke in it when

18

Bimla Boyd entered, a statement not supported by the facts;

19

4) The prosecutor made many other arguments in closing that simply mis-stated the

20 evidence and appeared to be intent on forcing a mistrial but Trial Counsel did not oblige with an

21 appropriate objection;

22

5) The prosecutor vouched for the credibility of the police by equating their credibility

23 with his.

24

25

26

CLAIM 3

INEFFECTIVE AND INADEQUATE ASSISTANCE OF APPELLATE COUNSEL

10.

27

Mark J. Geiger


Attorney at Law


Page 28 of 41

Salem, OR 97301

1

Petitioner alleges that Appellate Counsel failed to exercise reasonable professional skill

2

3 and judgment, that Appellate Counsel’s acts and omissions were not the product of an acceptable tactical decision and that counsel’s performance fell below an objective standard of

4 reasonableness for defense counsel in similar felony criminal proceedings under the standards in

5 existence during the relevant time periods. Petitioner was prejudiced as a result of his attorney’s

6 acts and omissions because under the Oregon Constitution (Article I, section 11) they had a

7 tendency to negatively affect the result of Petitioner’s appeal ( Krummacher v. Gierloff , 290 Or

8

867, 627 P2d 458 (1981). Petitioner was also prejudiced under the Unites States Constitution, as

9

10 guaranteed by the Sixth and Fourteenth Amendments, in that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceedings would have been

11 different. ( Strickland v. Washington , 466 US 668, 104 S Ct 2052 (1984). Appellate Counsel’s

12 acts and omissions deprived Petitioner of a fair and impartial trial as an additional violation of

13 the Sixth and Fourteenth Amendments to the United States Constitution and in violation of ORS

14

138.510 et seq ,.; furthermore, Petitioner was denied the effective and adequate assistance of

15 counsel, as guaranteed by the Sixth and Fourteenth Amendments of the United States

16 constitution and Article I, section 11 of the Oregon Constitution, in that:

17

A.

Appellate Counsel was ineffective and inadequate for failing to argue as follows:

18

20

1) That the prosecutors committed acts of prosecutorial misconduct as specified above,

19 at least on the theory that even though not objected to at trial, was error on the face of the record;

2) That there was evidence on the record from which an argument should have been

21

22 made (as obvious on the face of the record and even though not made by trial counsel) that the

Remington expert’s (Birch) testimony regarding the box of shells from petitioner’s garage was

23 indicative of the randomness of the packaging process as opposed to its uniqueness;

24

3) After receiving the respondent’s brief, in which respondent’s primary argument was

25 that petitioner was not prejudiced by the CBLA evidence because there was sufficiently other

26 incriminating evidence, failed to respond by showing that the other evidence was far from

27 credible;

Mark J. Geiger


Attorney at Law


Page 29 of 41

Salem, OR 97301

1

4) That trial counsel failed to object and ask for a voir dire of the jury members when Sgt.

2

Cox told the judge that he overheard District Attorney employees discussing petitioner's case in

3 derogatory terms near the jury room where the jury was residing;

4

5) That trial counsel failed to object on several occasions to photos that were introduced

5 into evidence that he claimed not to have seen before, as these were at least discovery violations;

6

7

6) That trial counsel, when he did object, failed to federalize any of his objections.

B.

Appellate Counsel was ineffective and inadequate for failing to address in the Reply

8

9

Brief, inaccurate and misleading arguments and erroneous citations to the record, contained in

Respondent’s brief;

10

11

C.

Appellate Counsel was ineffective and inadequate when she failed to assign as error the Trial Court’s failure to allow Trial Counsel’s motion relating to the victim’s time of death;

12

13

D.

Appellate Counsel was ineffective and inadequate when she failed to assign as error

Trial Counsel’s failure to object to the sentence of “Life Without the Possibility of Parole” due to

14 the sentence having been imposed in violation of the Oregon Constitution;

15

16

E.

Appellate Counsel was ineffective and inadequate when she failed to assign as error the Trial Court’s decision to allow evidence of Petitioner’s drug use even though there as no

17 evidence that such use was relevant to the case. There was evidence on the record from which

18 an argument should have been made (as obvious on the face of the record and even though not

19 made by Trial Counsel) that the Court should not have allowed evidence of Petitioner’s drug use

20

21 without such evidence having been linked to the crimes charged. Evidence of Petitioner’s drug use, the drug paraphernalia and small amount of marijuana found at Petitioner’s home were

22 never linked to the charged crimes, nor was evidence ever presented that proved the charged

23 crimes were drug related. The evidence was offered to prove that Petitioner was a bad person,

24 that he was participating in the drug world and that, therefore, he was a killer.

25

26

F.

Appellate Counsel was ineffective and inadequate when she failed to assign as error the Trial Court’s decision to allow hearsay testimony from witness Canini that he had “heard”

27 that Cannon used to real aggressive.

Mark J. Geiger


Attorney at Law


Page 30 of 41

Salem, OR 97301

1

2

3

4

5

CLAIM 4

NEWLY DISCOVERED EVIDENCE

11.

Petitioner was denied his constitutional right to due process, as guaranteed by the Fifth,

6

Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10

7 and 11 of the Oregon Constitution when he was convicted of the offenses set out above, in that

8 there exists new evidence, in the form of both the metallurgical composition of bullets, which

9 has been completely repudiated by the FBI, which was testified to by Conrady and not rebutted

10 by any defense witness; furthermore, there exists a body of literature challenging the scientific

11 validity of toolmark identification on the grounds that there is no scientific basis to support the

12 assertion that two or more objects were impressed upon by the same tool to the exclusion of all

13 others. This body of literature, to the extent that it existed in 2000, when the Petitioner was tried,

14 is not newly discovered evidence but to the extent that advances have been made in that area

15 since 2000, it is newly discovered evidence and general due process guarantees of the

16 aforementioned constitutional provisions call the toolmark and CBLA evidence in petitioner’s

17 case into question. Newly discovered evidence that disputes the State’s evidence in this case

18 includes:

19

20

A. Comparative Bullet Lead Analysis has been found to be seriously flawed where:

1) Studies by Randich, Tobin et al, Iowa State University and the National Research

21

Council have concluded that CBLA has serious flaws.

22

2) William Tobin, a former FBI metallurgist with over 27 years experience, concluded

23 that CBLA is not a scientifically supportable technique.

24

25

3) A study by Professor Alicia Carriquiry, commissioned by the FBI and using data from the FBI’s own past cases, concluded that the theory supporting CBLA is seriously flawed.

26

4) The FBI, after using CBLA for over 30 years, announced on September 1, 2005 that it

27 had abandoned the technique.

Mark J. Geiger


Attorney at Law


Page 31 of 41

Salem, OR 97301

1

5) Several cases involving CBLA in other states have been overturned since petitioner’s

2 conviction due to the acknowledged flaws in the theory allegedly supporting the science. These

3 case include (but are not limited to) the following:

4 a) U.S. v. Cornell Winfrei McClure , Criminal No. DKC 01-06-367 (USDC,

5

6

7

8

District of Md.). wherein the honorable judge Chasanow stated:

“Despite [stare decisis] rulings, the undersigned concludes that the so-called expert testimony lacks sufficient foundation and, even if it did not, should be excluded because of the danger that a jury would misuse or misconstrue the opinion by giving it more weight than it deserves.” b) U.S. v. Ronald Mikos , 2003 WL 22922197, No. 02-CR-137 (N.D. Ill., Dec. 5,

9

2003), wherein the honorable judge Guzman stated:

10

11

12

13

14

15

16

17

“We understand that the FBI laboratory has performed comparative bullet lead analysis (CBLA) for years. Furthermore, we understand that persons from the

FBI laboratory . . . have for years been allowed to testify at trials as to their opinions regarding the source of tested bullets based on CBLA. In our opinion, however, the required standard of scientific reliability is met only as to the proposed opinion testimony that the elemental composition of the bullets recovered from the body is indistinguishable from the composition of the bullets found in the Defendant’s car.

There is no body of data to corroborate the government’s expert’s further opinion that from this finding it follows that the bullets must or even likely came from the same batch or melt. [emphasis added].” c) N.J. v. Michael Behn , Superior Court of New Jersey, Appellate Division,

18

Docket No. A-26062-03T3 (March 7, 2005), wherein the honorable judge Weissbard

19 stated:

20

21

22

23

“ . . .we note that the integrity of the criminal justice system is ill-served by allowing a conviction based on evidence of this quality, whether described as false, unproven or unreliable, to stand.” d) Ragland v. Commonwealth , (2006), wherein the Kentucky Supreme Court, in

24 a majority decision, held that the CBLA evidence used to link Ragland to a slaying was

25 based on “unreliable science.” It should be noted that the court overturned the conviction

26

27

Mark J. Geiger


Attorney at Law


Page 32 of 41

Salem, OR 97301

in this case despite the testimony from the defendant’s girlfriend who told the court that

1

2

Ragland had confessed to the killing.

3

4

9 e) Clemons v. State of Mar yland, 392 Md. 339, 896 A2d 1059, 2006 Md. Lexis

192, wherein the court held that “. . . we determine here that conclusory aspects of CBLA

5 are not generally accepted within the scientific community and thus are not admissible.”

6

The court of Special appeals of Maryland also mentioned the Oregon case ( State v.

7

8

Krummacher , 523 P2d (1974)) as having determined that CBLA evidence was admissible without examining whether the evidence met either the standards announced in Frye or Daubert,

10 holding that:

11

12

13

14

“Although the case sub judice was not entirely dependent upon the expert testimony at issue, we are unable to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict” and that “lay jurors tend to give considerable weight to

‘scientific’ evidence when presented by ‘experts’ with impressive credentials.”

It should be noted that the court made this ruling despite the state having presented

15 testimony from an eyewitness who identified Clemons as the shooter.

16

B . Firearms and Toolmark identification testimony has been limited in other courts as

17 to the claims that practitioners of the science can make and peer reviewed articles have been

18

19 published that seriously question the claims made in the science. Furthermore, as alleged below,

20 the National Research Council published a report on March 5, 2008, indicating that no scientist

21 should make a claim (as was made in this case) that toolmark evidence is so reliable that it is

22 scientifically valid to claim that, by examining a cartridge/bullet or even a bullet fragment, and

23 comparing various “toolmarks” of this to the gun can result in an absolute match between the

24 cartridge/bullet or bullet fragment and the gun is no longer a scientifically valid statement.

25

26

1) Professor Adina Schwartz, J.D., Ph.D., an Associate Professor in the Department of

27 Law, Police Science and Criminal Justice Administration at the John Jay College of Criminal

Mark J. Geiger


Attorney at Law


Page 33 of 41

Salem, OR 97301

1

Justice and in the Ph.D. program in Criminal Justice of the Graduate School and University

2

Center, City University, New York, which is the only criminal justice Ph.D. program in the

3 country that has a forensic science track, has published a peer reviewed article that seriously

4 questions the admissibility of scientists using currently accepted Firearms and Toolmark

5 identification protocols that two or more apparently matching shell casings must have been

6 cycled through the same firearm, to the exclusion of all others.

7

2) Numerous cases in other courts have considered the science of Firearms and

8

9

Toolmark Identification in a new light as follows;

10 a) In U.S. v. Darryl Green , 405 F. Supp 2d 104 (2005 U.S. Dist. Lexis 34273), the

11 court allowed state testimony about shell casings evidence but limited the expert to testifying

12 only about similarities that he found between the suspect firearm and shell casings. Any

13 testimony about his conclusions – that he could match shell casings to a specific weapon to the

14

“exclusion of any other firearm in the world,” was prohibited. The court specifically held as

15

16 follows:

17

18

19

20

“. . . when liberty hangs in the balance – and, in the case of the defendants facing the death penalty, life itself – the standards should be higher than were met in this case, and than have been imposed across the country. The more courts admit this type of toolmark evidence without requiring documentation, proficiency testing, or evidence of reliability, the more sloppy practices will endure; we should require more.” (emphasis added).

21 b) In U.S. v. Amando Monteiro, et al., Defendants , 407 F. Supp 2d 351 (2006 U.S. Dist.

22

Lexis 227, 69 Fed. R. Evid. Serv. (Callaghan) 156, the court ruled that the expert opinion about

23

24 shell casings evidence was inadmissible because it failed to comport with the standards for documentation and peer review in the ballistics field due to the State’s expert having failed to

25 document his findings through the use of notes, sketches or photographs and not having had any

26

27 peer review. Also, the court ruled that even if these conditions were met, the expert would not be allowed to testify about his conclusion of a casings “match” to an absolute certainty or to an

Mark J. Geiger


Attorney at Law


Page 34 of 41

Salem, OR 97301

1

2 arbitrary degree of statistical certainty due to the opinion being “largely subjective” and that

“there is no reliable statistical or scientific methodologies that would support such conclusions.”

3 c) In U.S. v. Prochilo , Criminal No. 96-10321-DPW (MA 2000), which was a re-trial of

4 a 1998 conviction of a felon in possession of a firearm charge, the court allowed testimony about

5 the flaws in the science of Firearms Identification. In his first trial, Prochilo did not dispute the

6 science as unreliable and he was subsequently convicted. In his second trial, the evidence was

7 still the same but after presenting testimony about the flaws in the theory of firearms and

8 toolmark identification, Prochilo was acquitted. This case clearly illustrates the Strickland (see

9

Strickland v. Washington , 104 S.Ct. 2052, 466 U.S. 668, (U.S. Fla. 1984) standard that must be

10 met in post-conviction in that it shows the difference between what a jury concluded before and

11 after a change in trial defenses.

12

13

3) In several recent cases involving shell casings evidence in which no suspect weapon was identified, the government’s experts admitted that without a suspect weapon, the possibility

14 of subclass characteristics makes the conclusion of a “match” less than an absolute certainty

15

(See, Sexton v. State , 93 S.W.3d 96, 101 (Tex. Crim. App. 2002); U.S. v. Hicks , 389 F.3d 514

16

(C.A. 5, Tex. 2004) and Commonwealth of Massachusetts v. Meeks and Warner , 2006 WL

17

2819423 at 21 and n. 81 (Mass. Super. 2006).

18

19

4) A report by the National Research Council states that claims made by firearms examiner’s regarding certainty of “matches” is without firm grounding. During its research, the

20 council determined that the fundamental assumption underlying forensic firearms identification –

21 that every gun leaves microscopic marks on bullets and cartridge cases that are unique to that

22 weapon and remain the same over repeated firings – has not been proven as scientifically

23

24

25

26 accurate. The report states as follows:

“Claims of Certainty About ‘Matches’ Without Firm Grounding

The report does not assess the admissibility of firearm toolmark evidence in legal proceedings, since making such a determination was not part of the committee’s charge.

However , it cautions that the statement made by firearms examiners that “matches” of ballistic evidence identify a particular source gun ‘to the exclusion of all other firearms’ should be avoided. There is currently no statistical justification for such a

27

Mark J. Geiger


Attorney at Law


Page 35 of 41

Salem, OR 97301

1

2 statement, and it is inconsistent with the element of subjectivity inherent in any firearms examiner’s assessment of a match.” ( emphasis added).

This report was generated at the request of the U.S. Department of Justice’s National Institute of

3

4

Justice to assess the feasibility of establishing a national database of ballistic images.

Underlying the specific tasks with which the council was charged is the question of whether

5 firearms-related toolmarks are unique; that is, whether a particular set of toolmarks can be shown

6 to come from one weapon to the exclusion of all others. Very early in its work, the committee

7 found that this question cannot be definitively answered (see Ballistic Imaging, The National

8

9

Academies Press, Washington, DC (2008). It should be noted that the language the NRC cautioned against was used in Petitioner’s case. Rutter implied that he could identify a

10

11 mark as having been made “…exclusive to that particular object to the exclusion of all other objects.” (Tr. 2039). The NRC findings support the allegations and evidence in 1)

12 and 3) as follows:

13

14

15

. the fundamental assumption underlying forensic firearms identification – that every gun leaves

16 a. The National Research Council released a report on March 5, 2008, indicating that, “. . microscopic marks on bullets and cartridge cases that are unique to that weapon and remain the

17 same over repeated firings – has not yet been fully demonstrated scientifically.”

18 b. The report cautions that evidence, in the form of scientific testimony, as in this case,

19 that matches of ballistic evidence identifying a particular source gun to the exclusion of all other

20 firearms should be avoided.

21

22

23 c.

The NRC report states that there “. . . is currently no statistical justification for [the statement that a bullet can be matched to a firearm with such certainty that it can be excluded

24

25 from originating from all other guns]; furthermore, such a statement is “. . . inconsistent with the element of subjectivity inherent in any firearms examiner’s assessment of a match.”

26

27

Mark J. Geiger


Attorney at Law


Page 36 of 41

Salem, OR 97301

1 d. In this case, Trial Counsel was constitutionally ineffective (under Article I, Section 11

2 of the Oregon Constitution and the Fifth, Sixth and Fourteenth Amendments of the United States

3

Constitution) for allowing Rutter to testify – unchallenged – that the petitioner’s firearm WAS

4 the firearm through which the cartridges and/or bullets recovered from the scene were fired

5 and/or cycled.

6 e) Although the “newly discovered” evidence regarding toolmark identification was

7

8 subject to scientific scrutiny and a relevancy challenge (in 2000), the NRC report was not; it would be a gross miscarriage of justice to allow Petitioner’s conviction to stand when there is

9 now clear evidence that the forensic evidence linking Petitioner (and very persuasively) to the

10 murders – the use of CABL and toolmark identification – is completely and utterly without

11 scientific merit, as stated by the FBI and now, the NRC (with respect to toolmark

12 evidence).

13 f) Based on a November 22, 2005 Appropriations Act, Congress authorized the National

14

Academy of Sciences to conduct a study on forensic science. The results of that study were

15 published on or about February 18, 2009. The report discusses virtually every forensic

16

17

18

19

20

21

22 discipline, from DNA to toolmark evidence. In the report, the authors state as follows:

“Much forensic evidence – including …toolmark identifications – is introduced in criminal trials without any meaningful scientific validation, determination of error rates, or reliability testing to explain the limits of the discipline. *** In United States v. Green ,

Judge Gertner acknowledged that toolmark identification testimony ought not be considered admissible under Daubert. But the judge pointed out that ‘the problem for the defense is that every single court post-Daubert has admitted this testimony, sometimes without any searching review, much less a hearing. Strengthening Forensic Science in the United States: A Path Forward, The National Academies Press, p. 3-18.

In addressing toolmark evidence specifically, the report notes that “[a] fundamental problem

23 with toolmark and firearms analysis is the lack of a precisely defined process. As noted above,

24

AFTE [(Association of Firearm and Too Mark Examiners)] has adopted a theory of identification

25 but it does not provide a specific protocol.” The report criticizes the “best” that the AFTE has to

26 offer with regard to establishing objective standards for declaring a match in a field in which

27

Mark J. Geiger


Attorney at Law


Page 37 of 41

Salem, OR 97301

1 subjective findings are the norm, stating that “…the AFTE document, which is the best guidance

2 available for the field of toolmark identification, does not even consider, let alone address,

3 questions regarding variability, reliability, repeatability or the number of correlations needed to

4 achieve a given degree of confidence.” Id., p 5-21. Toolmark evidence was critical to the

5 defendant’s conviction and could have been challenged as “junk science” in 2000 but it was not.

6

7

8

9

10

11

12

Other newly discovered evidence includes:

C . The series of unexplained deaths and other killings tied to Bimla Boyd.

D.

The conviction of Jamison “Bubba” Ennis of the murder of a drug dealer (prior to

Petitioner’s conviction), in a manner similar to that of the victims in Petitioner’s case.

E .

Since Petitioner’s conviction, it has been disclosed that witness Rutter of the Oregon

13

14

State Police Crime lab misrepresented his abilities with regard to the matching of shell casings.

F. During recent testimony by a senior DA in Polk County it was disclosed that the DA’s

15

16

17

18 office has a policy of non discovery of “un-reviewed” police reports. That is, if the report is written and submitted to the DA’s office but has not been reviewed by the officer’s superior, it is not “discovered.” Thus, it was the DA’s policy not to discover anything not reviewed by the officer’s superior, regardless if it contained exculpatory information.

During a pretrial

19

20

21 hearing in this case, on August 19, 1999, the Court admonished the State for “playing games with this man’s (Petitioner’s) life,” (see Petitioner’s Exhibit #16). This hearing concerned the

Petitioner’s claim that the State was withholding discovery. There are several claims in this

22

23 petition that could be explained by this type of discovery violation. During a recent “evidence view” on February 17 and 18, 2009, it was discovered that Polk County authorities had

24

25 purposely withheld a police report regarding a man named Lance Gannaway who, in 1999, had informed detective Crabtree of Yamhill County Sheriff’s Office of a conversation that took place

26 between Thomas McMahon and Gannaway wherein McMahon indicated that he killed the

27

Mark J. Geiger


Attorney at Law


Page 38 of 41

Salem, OR 97301

1

2

3 victims in this case. The report was authored by Deputy Bernie Krauger of the Polk County

Sheriff’s Office. This is a clear violation of Brady vs. Maryland .

G.

Joe and Irene Morrow, neighbors of the Boyd’s, have recently disclosed information

4

5 regarding the timing of events on the day of the murders that directly conflicts with Bimla

Boyd’s accounting of the same incident.

6

H. Julie L. Dotson, DOB 8/10/73, has recently disclosed that, contrary to the testimony

7 of Bimla Boyd, Thomas McMahon (who was the initial suspect in the case) was a frequent

8

9 visitor to the Boyd property and supplied and consumed methamphetamine with Bimla Boyd on a regular basis. Dotson was willing to testify at Petitioner’s trial in 2000. Petitioner’s defense

10 team has learned that she was subpoenaed by Trial Counsel, but that Trial Counsel failed to

11 utilize her valuable knowledge by not calling her as a witness.

12

I. Krista Lee, the former wife of James T. Boyd and ex-daughter in-law of Bimla Boyd,

13

14 has recently disclosed that in 1998, Bimla Boyd pointed a revolver at her and said she would

“take care of anyone in her way.” The fact that Boyd was willing to endanger her own daughter

15 in-law by pointing a gun at her is indicative of Boyd’s reckless and paranoid state of mind and

16 that she was in possession of a revolver in 1998. According to Ms. Lee, she has also recently

17

18

19 contacted Polk County detectives about whether a revolver was recovered from the Boyd residence in 2002, and the response was, “no,” thus indicating that there appears to be a

“missing” firearm from the Boyd residence.

20

21

22

CLAIM 5

DOCTRINE OF CUMULATIVE ERROR

23

24

12.

When considered cumulatively, the numerous deficiencies in Trial Counsel’s

25

26 performance are so significant that it undermines the confidence in the outcome of the guilt phase of Petitioner’s trial. The failures discussed in this petition prevented Petitioner from

27 receiving a fair trial, due process, compulsory process, under the Fifth, Sixth and Fourteenth

Mark J. Geiger


Attorney at Law


Page 39 of 41

Salem, OR 97301

1

Amendments to the United States Constitution and Article I, section 11 of the Oregon

2

Constitution. But for Trial Counsel’s errors and incompetent representation, the jury would not

3

4 have found Petitioner guilty of the charged counts. Furthermore, but for the errors committed by

Trial Counsel, Appellate Counsel and the State of Oregon, the outcome of Petitioner’s case

5 would have been different.

6

7

13.

Petitioner’s judgments of conviction were obtained in violation of Petitioner's due

8 process rights under the Fifth and Fourteenth Amendments to the United States Constitution and

15

16

17

18

19

20

9 generally, in violation of the Sixth, Eighth and Fourteenth Amendments to the United States

10

Constitution; furthermore, under Article I, Section 11 of the Oregon Constitution, he was denied

11 due process, his right to a fair trial, to present a defense, to compulsory process, to competent

12 expert assistance, to the effective assistance of counsel and to reliable guilt determination.

13

WHEREFORE , the petitioner prays that his conviction be reversed, that he be released

14 from prison, or that the court grant whatever relief it deems just.

Dated this ___________ day of ____________________, 2009.

Respectfully Submitted,

_______________________________

Mark J. Geiger, OSB #84047

Attorney at Law

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25

26

21

22

23

27

Mark J. Geiger


Attorney at Law


Page 40 of 41

Salem, OR 97301

1

2

CERTIFICATE OF SERVICE

3

I HEREBY CERTIFY that I made service of the foregoing Amended Petition for Post-

4

Conviction Relief upon the parties hereto causing it to be mailed in the United States Post Office

5 in Salem, Oregon on __________________, in the method and manner indicated:

6

7

8

9

10

11

12

Susan Gerber, Esq.

Oregon Department of Justice

1162 Court Street NE, Room 100

Salem, OR 97301-4096

Attorney for Defendant

( ) First Class Mail

( ) Facsimile

( ) Overnight Mail

( ) Email

( ) Hand Delivery

____________________________________

Mark J. Geiger

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20

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Mark J. Geiger


Attorney at Law


Page 41 of 41

Salem, OR 97301

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