This post is lengthy and has to do with events that unfolded in my legal case.
Part one, with the case background, is here.
Public defender Chris McNeill complaint, continued:
McNeill waived my presence at a pretrial chambers conference where several motions in limine were decided without my knowledge or consent. During the conference, he agreed not to present my defense and never told me that he had done so.
Note: SCR 3.130-1.4(b) provides that “[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
1. On the first morning of my trial of January 22, 2008, McNeill and Harris met secretly with the Court in chambers to discuss several motions in limine that would affect the outcome of my trial.
2. That is, the tape starts rolling AFTER they all listen to and tamper with, AND modify and alter, the recorded 911 dispatch evidence wav files – all 11 of them.
3. Since they recorded the secret meeting but intentionally did not record the evidence examination and evidence tampering, I believe the meeting was staged to benefit McNeill: he appears genuine, baffled and just doing his best to deal with harmful and confusing court behavior. This is not 11.42 worthy, when he was just doing his job. Otherwise, why bother to record the secret conference at all? Nobody knew about it. The reason the meeting is recorded is simple. When, on 11.42 I claim ineffective assistance because my lawyer failed to present a defense, McNeill could claim, “What on earth was I supposed to do, given that I was barred by ruling, from doing so? Look, see, I was barred from functioning!”
4. McNeill waived my appearance at this meeting without my consent. He failed to tell me that such a meeting was scheduled, let alone that I had a right to be there. He failed to explain what he had done in the meeting. Also, as his handwritten note in his case file shows, he falsely told my Frankfort attorney that the meeting tape was inaudible. The meeting tape is audible. He lied to my appeal attorney.
5. Please note: What I also did not know until just a couple of weeks ago when I examined the CDs in McNeill’s case file closely is, that there was some kind of a meeting-before-the-meeting, where McNeill apparently altered audiotape evidence of the recorded conversation between 911 dispatch and the deputies. In fact, all of the wav files of 911 dispatch that were recorded on the night of my arrest on June 26, 2008 were “created, modified and accessed” on the morning of my trial, January 22, 2008, at and around 8:35, 8:36, 8:37 and 8:38 AM. This information is readily available on the “properties” tab for each wav file. During the trial, McNeill entered a typewritten, Harris-authored and fake undated, sheet of paper called an ‘unofficial transcript’ of the 911 dispatch recording, the same recording that he had apparently listened to and examined that morning . At no time did McNeill ever submit any actual recorded evidence, with time stamps, to the court record as evidence or to the court record on appeal. This led to an important and misleading finding from the Court of Appeals, which had only the typed ‘unofficial transcript’ to work with: in reality, two different officers were looking to pull me over on the night of my arrest, based upon a 911 call, and in reality, the two officers were talking to each other, in addition to replying to dispatch.
6. The Court of Appeals, working off the fake document, was misled, and combined two different statements from two people into one. They did not have access to the time stamps, nor did they have a list of codes that dispatch and officers use, to communicate. The “unofficial transcript” was typed by Harris, who deliberately left off the time stamps and CAD call code meanings, because they conflicted with the perjury he was planning to suborn at trial as well as the post-trial agreed order based on the upcoming trial ‘testimony’ he was crafting, where the officer falsely testified that I got his attention on the road because I had my turn signal on “for and unusual period of time for no apparent reason.” That testimony was refuted by the CAD call sheet and by the dispatch statements, that were time-stamped. That testimony came up, not surprisingly, for the very first time, at trial.
7. McNeill likely never would have admitted that the pretrial meeting ever happened but for my husband’s pointed question upon noticing that a gathering had occurred. McNeill misinformed him, dismissing it as a minor housekeeping session. In reality, the meeting proceeded as follows:
8. The meeting began with a couple of Harris false statements about what is on the DUI arrest cruiser dash-cam videotape recording. Harris says the stop lasted only a few minutes, when in fact, it was a stop and search by three officers from two agencies that lasted 1.25 hours. Harris states that I was stumbling, when, in fact the tape refutes this, and also, the officer testified previously under oath at the preliminary and suppression hearings, that I was “steady on (my) feet.” McNeill does not correct the false statements even though he had copies of both transcripts.
9. The two lawyers shared some vague arguments about Schrimsher v. Commonwealth, 190 S.W.3d 318 (2006) that originated in the same court some years prior, having to do with the admissibility at trial of an exculpatory statement by a defendant during a taped custodial interrogation at the police station. The Kentucky Supreme Court held that, subject to the rule of completeness that did not apply in that case, the statement was inadmissible hearsay, unless offered by the prosecution as an admission by a party opponent.
10. Schrimsher did not apply, in part, because it did not involve a DUI arrest, or a DUI dash-cam videotape of a DUI arrest, which is governed by a Kentucky statute that is specific to DUI cases. KRS 189A.100 states, in pertinent part:
(2) Law enforcement agencies may record on film or videotape or by other visual and audible means the pursuit of a violator or suspected violator, the traffic stop, or field sobriety tests administered at the scene of an arrest for violation of KRS 189A.010 or such tests at a police station, jail, or other suitable facility subject to the following conditions:
b) The entire recording of the field sobriety tests and the entire recording of such portions of the pursuit and traffic stop as were recorded is shown in court unless the defendant waives the showing of any portions not offered by the prosecution; and
(c) The entire recording is available to be shown by the defense at trial if the defendant so desires regardless of whether it was introduced by the Commonwealth;
11. The DUI arrest videotape contained my recorded statements that night about an incident where, during the course of the DUI arrest, I directed the officer to do something and he did it. Specifically, at the hospital for the blood draw portion of the sobriety testing, I asked the officer to move the back seat of his cruiser, and retrieve my watch, which had fallen during the ride, through the crack at the back of the seat, to the floorboard underneath. I could not reach to the floorboard underneath the seat because I was handcuffed. The officer moved the seat as I requested and got my watch, but then suddenly claimed that I had put “heroin” with the watch. On the cruiser videotape, I ask, “Why would I ask you to get my watch if I had just put some kind of drug with it? Explain that. That makes no sense.” Also on the dash-cam tape, the officer insists that he has found heroin. Twice, I pointedly ask him to both “field test and lab test” his discovery, because it could be “some kind of bread crumb.” My clear speech and specific statements exhibit presence of mind and mental clarity. They show no sign of mental impairment and would have been admissible to contradict the deputy’s testimony at trial that I exhibited confusion, could not follow simple directions and was obviously impaired. In addition, the statements were not hearsay because they would have been offered to prove that he found the suspected controlled substance under his back seat in response to my request that he look under the seat for my watch. This is what he testified to under oath at the preliminary hearing, so it was also admissible as a prior inconsistent statement under oath. For these reasons my statements were not hearsay. McNeill, who is a licensed attorney, is presumed to know the law. At the very least, he should be presumed to know how to find, read and understand Schrimsher and the hearsay rule. Instead of objecting and preserving the objection for appellate review, he said nothing. His failure was deliberate, because my husband and I both showed McNeill the statute and the relevant portion of the deputy’s testimony at the preliminary hearing. My husband also explained to McNeill why my statement was not hearsay and why Schrimsher did not apply.
12. I believe McNeill may have also tampered with the dashcam DUI arrest recording so that it is cut short, eliminating this critical audio portion, and the last hour of the tape, for the record on appeal. The Court of Appeals states “Unfortunately, there is no audio.” This is false. There is audio, in the original, unmodified recorded evidence. His actions constituted a violation of the statute that prohibits tampering with evidence, a felony under Kentucky law.
13. Ironically, I was the only person charged with tampering and the only person in the case who did not tamper with evidence.
14. There would now be a planned and deliberate move of the drug exhibit evidence from ‘not in plain view’ before trial, to ‘plain view’ during trial, as if the events from the night of arrest as well as the under-oath testimony from the preliminary hearing, never existed.
15. McNeill pretended to be baffled when the court asked him about my specific request that the officer move the seat and get the watch. He says he did not know if I said that, even though the deputy testified about it at the preliminary hearing, and even though and I had given McNeill an official transcript of the testimony.
16. McNeill pretended to be baffled even though, just days prior, without my knowledge and without informing me, he spent the day with Harris, and with the arresting deputy, and, according to the chain of evidence log, the actual drug exhibit, taking dozens of photos of the cruiser backseat, with the drug exhibit, apparently, placed in various places in relation to the seat. In many photos, the seat is completely removed from the car. The photos were taken on January 16, on the same day that the ‘drug exhibit’ was checked out of the evidence locker. (Notably, the ‘evidence’ was not weighed, nor was it checked back into the locker, until after the trial ended on January 23. The evidence log corruption will be under separate heading.) McNeill never told the court that he, Harris, and the officer (and likely KSP Lab analyst Ryan Johnson) spent the better part of the day with drugs and a camera, six days prior, taking photos and planning trial testimony.
17. In the same pre-trial conference meeting that I never knew about, Harris promised not to mention a cup of beer found in the console during the vehicle stop, if McNeill would promise not to mention that the Commonwealth suborned blatant perjury at the Grand Jury to get the indictments in the first place, as McNeill well knew because he had the grand jury testimony in his briefcase. This was a motion in limine, from Harris, who knew about the grand jury perjury, but did not want the trial jury to hear about it.
18. Harris knew that the officer lied to the grand jury about: lab test results for alcohol, the smell of alcohol on my person, and me being essentially stumbling drunk. My alcohol blood test result was 0.00, and the Commonwealth knew it, because the exculpatory result was faxed to the Commonwealth four days prior to the grand jury meeting. Nonetheless, the Commonwealth and the officer took turns lying to the grand jury about 1) having blood test results back, claiming they weren’t available when they were 2) me stumbling, when the officer testified at preliminary that I was “steady on (my) feet” and 3) me smelling of alcohol, when my blood alcohol level was 0.00, the officer had previously testified that “alcohol wasn’t a factor” and the tape shows me passing 4 roadside PBT (portable breath test) tests, that the officer also testified to previously.
19. Harris moved in limine that McNeill be prevented from asking questions about the deputy’s perjured testimony, in front of the grand jury, that led to my indictment in the first place.
20. McNeill agreed not to mention any perjured statements made to the grand jury during the trial.
21. Ultimately at trial, Harris violated the agreed motion in limine, and he talked about a cup of beer in the console, but McNeill did not respond by 1) moving for a mistrial 2) exploring the suborned Grand Jury perjured testimony or 3) at the very least and as a Hail Mary pass, preserving the record with objection. The cup of beer would be addressed in the affirming published opinion, (even though I had zero alcohol in my blood) but the suborned perjured testimony would not be addressed in the published opinion affirming, as a direct result of McNeill’s actions.
22. Harris moved in limine for an order that would characterize my consenting to chemical blood testing at two Kentucky State labs as well as consenting to two out of four roadside sobriety tests during a 1.25-hour vehicle stop as a “refusal” to consent to sobriety testing. McNeill did object, even though the KRS statute is clear on refusals (ie, they concern blood, breath or urine). In other words, with the court’s consent and no objection by McNeill, Harris changed my consent into a refusal.
23. In the meeting, Harris wishes to use 404(b) evidence.
24. The court ruled that 404 (b) evidence was inadmissible. Harris violated this ruling with the first sentence of his opening statement. I asked McNeill to object and move for a mistrial, but he refused.
25. McNeill never did inform me of any of these developments, nor did he inform me that he would not be presenting defense, nor did he inform me that jury instructions were amended on a ‘refusal’ issue. I never knew until a couple of weeks ago, what he had done with recorded evidence, prior to the start of the videotape for the meeting.
26. Being in the dark until the trial was nearly concluded, I thought McNeill was still going to mention the main issue in my defense: that it would not make sense for anyone to ask for an officer to move the seat and retrieve a watch, if the person was attempting to conceal something with the watch. The officer himself had testified on this point previously. Late on the second and last day of trial I asked McNeill when he would be presenting my defense, and when he would be confronting the officer on his prior inconsistent statements about the watch. McNeill wrote it off with the statement: “The jury might be offended if they learned the cop was telling different stories.”
27. McNeill’s criminal behavior by tampering with evidence and his inexcusable failure to defend me deprived me of my Sixth Amendment right to present a defense in a criminal trial, where a person’s liberty and future is at stake.