Kentucky Public Defender hides 53 photos in Sober DUI and drug case [photos]

May 26, 2014

Good afternoon. We continue our analysis of the Sober DUI and drug case that is now published and affirmed precedent in Kentucky. This is part 3.

Part 1 is here.

Part 2 is here.

A lawyer has a duty to represent his client to the best of his ability, vigorously. He also has a duty to keep his client informed.

Chris McNeill violated both of those duties on a regular basis

In this chapter we present two egregious examples.

Photographs of the back seat of a police cruiser

On January 16, 2008, which was one week before trial, Deputy Eddie McGuire obtained the drug exhibit from the evidence unit at the McCracken County Sheriff’s Office. He took it to a prearranged meeting with prosecutor Jim Harris and defense counsel, Chris McNeill, in the department parking lot.

The purpose of the meeting was to conduct an experiment to determine (1) if Rachel Leatherman’s request for assistance in retrieving her watch from behind the seat was consistent with the configuration of the back seat and the location of the safety belt hole through which the safety belt attached to the body of the vehicle beneath the back seat, and (2) to determine if the deputy’s claim that he saw her watch and the suspected controlled substance together in plain view in the opening to the seat belt hole was credible.

They removed the back seat from the cruiser and took 53 photographs. They certainly did not need to remove the back seat to photograph the suspected drug in plain view in the seat belt hole.

The photographs support Rachel Leatherman’s claim and for that reason they were material exculpatory evidence.

Any competent criminal defense lawyer would have introduced the photographs into evidence in support of her claim because that is required by the rules of professional conduct in order to represent the client to the best of your ability, vigorously.

Not only did he fail to do that, he also failed to inform her about the photographs or the experiment in the parking lot thereby violating his duty to keep her informed about her case.

Chris McNeill is an incompetent lawyer.

The Photos

Crane-Station here. As Fred explains, McNeill never informed me of anything about my case, let alone this. In the next post, we will explain why it was important, that they changed their story at trial, to reflect that a drug was in plain view and on top of the seat, at trial, but in hearings prior to trial, it was underneath the seat and out of view. Obviously no one would direct an officer’s attention to underneath the seat, and to ask the officer to get a watch, if there were drugs, next to the watch. We will refer to this photo set, in future posts. And stay tuned, Chris McNeill gets even worse. Far worse, in fact.

First page, a to-do list from the case file, bates page stamped 1114, dated 1/15/2008, one day before:
IMG_0001
In the middle of the list is the word “car” and at the end is the deputy Eddie McGuire’s phone number, redacted.

Page 2, 2 photos:
IMG_0002

Page 3, 2 photos:
IMG_0003
Seat has been easily removed from the car.

Page 4, 2 photos:
IMG_0004

Page 5, 2 photos:
IMG_0005

Page 6, 2 photos:
IMG_0006

Page 7:
IMG_0007

Page 8:
IMG_0008

Page 9:
IMG_0009

Page 10:
IMG_0010

Page 11:
IMG_0011

Page 12:
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Page 13:
IMG_0013

Page 14:
IMG_0014

Page 15:
IMG_0015

Page 16:
IMG_0016

Page 17:
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Page 18:
IMG_0018

Page 19:
IMG_0019

Page 20:
IMG_0020

Page 21:
IMG_0021

Page 22:
IMG_0022

Page 23:
IMG_0023

Page 24:
IMG_0024

Page 25:
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Page 26:
IMG_0026

Page 27:
IMG_0027

Page 28:
IMG_0028

Taking the seat completely out of the car and snapping multiple dozens of photos is not something one would bother to do, to prove that something seized was in plain view. On the night of my arrest, I directed the officer to look under the seat and get my watch, and that is what he did.

And all of the people at the drug and camera meeting on January 16, 2008 knew it, or else, McNeill would not have hidden fifty-three exculpatory photographs from me.


Chain of Custody of a Drug Exhibit, McCracken County, Kentucky [document dump]

May 25, 2014

by Crane-Station and Frederick Leatherman

We continue our analysis of a published and affirmed Sober DUI and drug case, that is now precedent in the state of Kentucky. For the introduction, please go here.

What is a Chain of Custody?

The chain of custody is a legal term that refers to the foundational requirement that an exhibit offered into evidence at a hearing or trial is in the same condition as it was when it was seized. By foundational requirement, I mean that a party offering an exhibit into evidence (e.g., a gun) must establish that the gun being offered into evidence is the gun that was seized and it is in the same condition as it was when it was seized. The purpose of the rule is to prevent evidence tampering.

Judges and lawyers use the word “chain” because an exhibit typically passes through several hands between seizure and the courtroom. Each person who handles the exhibit is a link in the chain of custody.

In the typical drug case, for example, an officer will seize a suspected controlled substance, weigh it and seal it in a bag with her initials across the seal. She will then fill out a drug-exhibit form listing the weight and describing the suspected controlled substance. She will take the exhibit to the police department’s evidence unit where it will be logged in briefly describing it and listing the date and time she presented it as well as her name and badge number.

At some point later on, she will retrieve the exhibit from the property room, sign the log book acknowledging she received it and send it to the crime lab for testing. Cops often Fedex exhibits to the crime lab. The crime lab also maintains a log book that will record when the exhibit was received and from whom it was received. The exhibit will be placed in the safe where it will remain until it is assigned to a lab technician to test.

The tech will sign it out and take it to the bench where he will open the bag, examine and weigh the substance. He will take a small amount to test, weigh what is left of the exhibit, record the weight, replace it in the bag and reseal the bag signing and dating the bag across the seal. Then he will conduct the testing procedure, record the results, and return the exhibit to the safe. The return will be duly recorded in the log book.

At some point, the exhibit will be logged out at the crime lab and returned to the police agency where it will be logged in to the evidence unit. It will remain there until trial when it will be released to the prosecuting attorney who will take it to court and offer it into evidence.

All competent defense counsel request copies of all of the documents that make up the chain of custody to make certain that every transfer is documented, the descriptions of the exhibit match, and the weights agree. They also request the lab tech’s bench notes that detail what the lab tech did with the exhibit.

If something is missing or out of order, defense counsel will object to the exhibit being admitted into evidence on the ground that the prosecution’s foundation is insufficient.

Any defense attorney who does not do this is incompetent.

The Documents

Now to the documents. Crane-Station here, and in late 2012, after the United States Supreme Court denied cert in my case, I requested the chain of custody for the drug exhibit that a McCracken County Sheriff deputy seized on the night of my arrest, on June 28, 2006. After a two-hour search of my car and person at the roadside, that the Court of Appeals characterized as “thorough” revealed no illegal drugs, the officer arrested me and we went to the hospital for a blood draw. During the ride, my six-dollar wristwatch fell off, and slid through the crack at the back of the cruiser back seat, to the floor. I was handcuffed, and could not reach it. On arrival at the hospital, I asked the officer to move the seat and get the watch. I scooted forward on the seat, and he moved it. He then flashed something in front of my face- but then his hand was gone out of view. He nearly shouted, “Sure looks like heroin to me!!” I told him twice, politely, to field test and lab test his ‘find.’ I also pointed out that, I would not ask him to retrieve my watch, If I had somehow stashed drugs with it. I point this out now, because I was initially told that I had been charged with possession of heroin. Here is that document, from July 5, 2006, a full week after my arrest. This is not part of the chain, but it will become significant. Initially, the drug was “heroin.”

IMG_0004

Now for the McCracken County Sheriff’s Chain of Custody. The title page:

IMG_0006
One small baggie with yellow substance, suspected controlled substance.

Next page:
IMG_0007
Now the substance is yellow and now it is worth $100.00

Next page, a uniform offense report.
IMG_0009
Note that there is no DUI listed, although the arresting deputy, Eddie McGuire, describes the “Sheriff’s Department” as the “Victim” and notes that the “Victim” is “under the influence of drugs.” The DUI, in fact, was added in the next day.

Next page, a narrative:
IMG_0011
You might note that the ‘asking to buy heroin’ was not related in the 911 call, or the dispatch recording, or in the caller’s written statement the next day. We will be uploading all of these documents as well as footage, in future posts. Also, I’ll upload the dash cam arrest video of the roadside stop and search, and you can decide for yourself if my pants are unbuttoned and unzipped. Notable, he says, “Officer fell in behind the vehicle and stopped it.” Remember the Court of Appeals? They concluded that I stopped the cop. That is because the deputy told a brand new and entirely different account at trial 18 months later, when his off memory had had a good deal of time to improve.

Next page, the narrative is typed:
IMG_0015
You may note that the officer alludes to the idea that I lied about my orthopedic surgery, which was the result of a 30-foot fall, just two years prior. I’ll take care of that right now. Here is the xray of internal fixation to my right calcaneus. This photo is not part of the chain of evidence, but it is significant, because at trial, the jury was told that I refused all sobriety testing, even though my blood was sent to at least two labs. Chemical tesding of the blood in Kentucky, is considered a refusal in my case, but not in the Kentucky statutes.

The x-ray:
x-ray showing internal fixation of right calcaneus fracture

Last page of the typed narrative:
IMG_0016
Couple of significant things here. Note that he makes no mention of the DUI here. Also on the vacuuming. He testified in various hearings, that he vacuumed the day before, two days before, or the week before, or at Officer Terry Long’s house, or at the car wash, depending on the day and the version. He was never confronted on these inconsistencies by my trial lawyer, Department of Public Advocacy Director for Western Kentucky Chris McNeill, the most deceitful, worst lawyer in America.

Next page in the chain, the Offense Report:
IMG_0014
Note again, no mention of a DUI. What is significant is, there is a weight, and this is the first document that lists any weight. The item weighs “1.000 Grams.” The item’s description? “Cocaine (all forms but crack).” This form was typed on the night of my arrest. However, as you saw in the document above, my charge is “possession of heroin.”

Next document, Kentucky State Police Request for Examination.
IMG_0013
You will note that there is handwritten on this page “Sent 7/24.” The item sat, for a month, before it was “sent” anywhere. Recall that 7/24 was, coincidentally, the very same day that my blood result was faxed to the Commonwealth, indicating 0.00 alcohol, in my blood. Also recall that, four days later at the Grand Jury, the Commonwealth suborned perjury, claiming that no labs were available, and that I smelled of alcohol, and was “very unsteady” on my feet. During that month, both a preliminary hearing and a Grand Jury hearing had taken place. At the Grand Jury, the deputy said, “It’s gonna be crack.” A field test had ruled out heroin. So the heroin, that turned into Cocaine (all forms but crack) is now “gonna be crack.”

The next document is a typed sheet of paper that is not signed or filled out, nor is it an official form.
IMG_0017
The Kentucky State Police lab forms are notable for their indication of the type of form, at the bottom right hand corner of the form. That is missing, from this typed sheet of paper.
What is interesting is, it appears that a deputy DW Gibson, delivered the item to the lab, two days after it was sent, on 7/24. The item arrived on 7/26. That’s two days later. The lab that the item was sent to is in Madisonville, a little over an hour from here. Where it spent the two nights is unknown. Also, when it arrived at the lab, it had changed color, from yellow to off white, and more significant- It lost 86% of its weight. It weighed 1.000 Grams in Paducah. On arrival in Madisonville, it weighed 0.144 Grams. Also, now it is a solid, but in Paducah it was powder. Plus, there is no signature whatsoever to indicate that the item was released from the lab, to return to Paducah. The typed sheet of paper is blank, for the most part.

Somehow, it made its way back to Paducah, we have no idea how, but the next document indicates that the arresting deputy checked the item out, for some unexplained reason, on January 16, 2008. That is seven days before my trial:
IMG_0012
Released for trial- one full week before the trial, that included a weekend. Where was it? How much did it weigh? We have no idea. It could have been anywhere, including the officer’s back seat, his pocket, his refrigerator…We will return to the subject of January 16, in future posts, because as it turns out, that was a busy day. A busy busy day of photo-taking, emails back and forth, and phone calls. We will get to that.

Curiously, in October of 2012, six years after my arrest, and after I had served time, the item was still available. Oddly, the field test kit that was negative for heroin was also available, in the sealed bag, so I took photos at the Sheriff’s office.
Photo one:
IMG_0018

Photo two:
IMG_0019

That is the chain of evidence, from the McCracken County Sheriff’s office, for the drug item in my case. Chris McNeill never requested the chain of evidence documents.

What do you guys think about this chain of ‘evidence?’


Kentucky Precedent: Zero alcohol, zero drugs, zero impaired driving DUI

May 23, 2014

by Crane-Station

Good afternoon. In the next few weeks, I will be uploading documents and footage from my case in Kentucky. It is the only case that I am aware of, in the entire country, where a DUI has been affirmed on appeal, and published as precedent, where blood analysis showed zero drugs detected and zero alcohol, and there was no impaired driving whatsoever. In other words, this case can and will be cited, in Kentucky, in future Sober DUI cases.

Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000849-MR
RACHEL LEATHERMAN APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
v. HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 06-CR-00408
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING

page 2, the 911 call:

DISPATCHER: Central dispatch. This is Lou.
Could I help you.
MR. WILKEY: Yes, sir. This is Vernon Wilkey.
I live out here on Queensway Drive.
And there is a lady in a dark blue looks like a
Buick LeSabre. I’d say it’s a late ‘80s, early ‘90s model.
And I’ve got a license plate number. But she’s out here
walking around in my neighbor’s yard and everything
and writing stuff down, and she’d talked to him and
mentioned something about tar heroin and all that stuff.
DISPATCHER: Talked to who?
MR. WILKEY: My neighbor next door.

Walking around and writing in a book and mentioning something “about 218A,” a drug statute, which is what the dispatcher related to the officer, is considered criminal activity, in Kentucky, if you are from out-of-state, page 14:

Based upon the prior 911 call, during which the caller described a woman
driving a car that displayed Washington state license plates who was committing
criminal activity,

The stop and search of my vehicle and my person lasted nearly two hours, and was performed by three officers from two agencies. Since the tape was tampered with, however, the court of appeals only apparently viewed a brief portion. I will be uploading the original that I have, but I need to fix something on the computer first, as it will currently not play a DVD. Anyway, the court of appeals found and noted, in pertinent part, the following:

Two hours is reasonable, for the “brief” investigatory stop, page 14:

However, the
law is clear that a stop may only continue long enough for the officer to determine
whether his suspicions were correct.

Also on page 14, and this is significant. They conclude that I essentially stopped the officer, and insisted on the search. This is false. The evidence in in prior testimony, that I was not allowed to confront, and also, in the dispatch recording that was altered and tampered with, in chambers, on the morning of my trial. I will be presenting that. For example, the officer testified at the Grand Jury, but I was disallowed from questioning him on any prior testimony:

As I was going back into town on Highway 60–Queensway is right off Highway 60. I located the vehicle right around the area of Highway 60 and Cairo Road. I stopped the vehicle, asked her to exit–asked her to exit the vehicle.

This disallowment cleared the way for suborned perjury at trial and the following finding in the affirming opinion:

and the undisputed fact that Leatherman pulled to the side of the
road and stopped before Deputy McGuire activated his emergency lights,

Now, for the other significant findings:

We note that the record contains a videotape of the
cruiser cam video; unfortunately, there is no audio recording attached to the video.

This is false. The recording is clear, and I will show that. An altered version was sent to Frankfort.

This is the key part of the sober DUI. The Court of Appeals actually noted in the opinion:

A breath test and later blood tests revealed that there were no drugs or alcohol in
Leatherman’s system.

[emphasis added]

The DUI was solely based on this finding. The arresting officer had a thorough understanding of HGN and its connection to impairment. He told the Grand Jury, as would a scientist:

And it’s the same principle as if you were to spin around in a circle ten times and then check someone’s eyes. The room’s spinning. That’s the same–that’s the same way that we use to detect the presence of any kind of controlled substance, alcoholic beverages in a DUI arrest.

And she showed–she failed that. She showed all six clues of that.

Pfffffffffffffft.

The finding at page 5 of the opinion:

On the horizontal gaze nystagmus (HGN) test, Leatherman showed six clues that indicated impairment.

You might be thinking that the 2-hour search of my car, trunk, personal belongings, crotch, breasts, shoes and person in full view of passing traffic, and also the gas tank, and underneath the seats- a couple of officers on the tape actually disappear inside the car- may have produced illegal drugs. Wrong:

They did not find any illegal drugs during the search.

Deputy McGuire requested that a female officer respond to the scene to
perform a search of Leatherman. Paducah Police Officer Gretchen Dawes
responded, obtained consent to search, and performed a thorough search of
Leatherman, including the front and back pockets of her jeans, the rolled up pants
legs, and under her T-shirt. The search is depicted in the cruiser cam video.
Officer Dawes did not find any weapons or illegal drugs on her person.

[emphasis added]

The documents and footage that I will upload and share will show, among other things: suborned perjury at trial, and suborned perjury at the grand jury. Also- a secret meeting before trial in chambers, hidden from the docket and unknown to me at the time, where several motions in limine were decided, namely, that the rules of evidence would be suspended in my case and I would be barred from cross examining witnesses on prior inconsistent statements; ex parte juror contact post trial, and juror telephone home, work and cell numbers in the case file ahead of a reconstructed and falsified ‘prospective juror’ chart. Also- a secret post trial agreed order denying suppression based on trial testimony, that was written by the prosecutor four months prior to trial and faxed to my attorney, who hid that from me; and a crime lab tech testifying as an ‘expert medical witness’ – qualifying as an expert based on a 30-second internet surf of a lab tech site, where he downloaded two bogus articles and then assured my attorney. “I am your man!” Plus- just minutes before the secret meeting before my trial in chambers, recorded evidence was altered and deleted on 13 occasions, at 8:36, 8:37 and 8:38 AM specifically, and then a fake, prosecutor-generated ‘transcript’ was entered instead of the recording, for the trial.

In addition, I took the case all the way to the US Supreme Court for cert, which was denied, apparently with help from the United States Solicitor General. The petition had to do with the secret post trial agreed order denying suppression that was altered to reflect the new story told at trial, only the order, as I said, was penned four months before trial. So, they deceived the highest court in the nation as well. The Question presented:

Whether the Court’s order denying her Motion to Suppress Evidence, which was amended after the trial and included information presented at trial but not at the suppression hearing violated Petitioner’s right to be free from unreasonable Search and Seizure under the Fourth Amendment of the United States Constitution.

The United States Supreme Court was unaware, as was I until just recently, that the amended post trial order containing trial information was written before the trial ever took place.

Supreme Court of the United States
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No. 11-10420
Title:
Rachel Leatherman, Petitioner
v.
Kentucky
Docketed: May 21, 2012
Lower Ct: Court of Appeals of Kentucky
Case Nos.: (2008-CA-000849-MR)
Decision Date: January 21, 2011
Rehearing Denied: April 12, 2011
Discretionary Court
Decision Date: February 15, 2012

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
May 15 2012 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due June 20, 2012)
Jun 13 2012 Waiver of right of respondent Kentucky to respond filed.
Jun 21 2012 DISTRIBUTED for Conference of September 24, 2012.
Oct 1 2012 Petition DENIED.

~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~
Attorneys for Petitioner:
Roy Alyette Durham II. Assistant Public Advocate (502) 564-8006
100 Fair Oaks Lane Suite
Suite 302
Frankfort, KY 40601
roy.durham@ky.gov
Party name: Rachel Leatherman
Attorneys for Respondent:
Gregory C. Fuchs Office of the Attorney General (502) 696-5342
Counsel of Record 1024 Capitol Center Dr.
Suite 200
Frankfort, KY 40601-8204
Party name: Kentucky

Donald B. Verrilli Jr. Solicitor General (202) 514-2217
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001
SupremeCtBriefs@USDOJ.gov
Party name: Kentucky

May 22, 2014 | Version 2012.0
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Supreme Court of the United States

http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-10420.htm

I was shocked to discover only recently, in the case file, that the post-trial ‘third order’ was not sua sponte, as my appeal attorney and the United States Supreme Court was led to believe. Rather, it was written by the prosecutor and faxed to my attorney, who hid it from me, on September 27, 2007, four months before my trial. What is extra egregious about the third order is, the claim that I requested it. I had no way to request anything. I was in the hole, in jail.

We will break this analysis of this case down in excruciating detail, with documents, over the next several weeks to months, so look for posts, as we continue to cover other topics.

The lab tests are at the end of this post.

(For some outrageous reason, the labs seem to be scrubbed from my flickr photostream. No worries, they are screen grabbed and scanned and mailed all over the country.)

It is also notable that Kentucky flipped the bird to the Sixth Circuit, who allowed this woman to sue over her bogus DUI arrest:

http://www.ca6.uscourts.gov/opinions.pdf/12a0175p-06.pdf

Around this time, Throckmorton momentarily pointed his flashlight inside
Green’s vehicle. Throckmorton stated in his deposition testimony that he aimed the
flashlight’s beam toward the floor of the vehicle so as to illuminate Green’s face without
shining the light directly into her eyes. He “noticed that her pupils were constricted,”
which he thought “was kind of abnormal” because his training had taught him that a
person’s pupils will typically dilate in a dark setting. But, as he noted during his
deposition, “different chemicals or different types of drugs [can] hamper this process.
So. . . if you shine a light into somebody’s eyes, their pupils may stay completely dilated,
they won’t react to the light. Or else . . . they may be constricted, and you put them in
a low lighting and they won’t dilate.”

UPDATE:

CS here. Found em!

On July 24, 2006, four days before the Grand Jury met in my case, the exculpatory alcohol result was Faxed to the Commonwealth:
Exculpatory evidence hidden
and
Exculpatory evidence hidden

On July 28, my birthday, 2006, the Commonwealth suborned perjury at the Grand Jury hearing, saying (transcript linked above):

Q. We don’t have the blood results back?

A. I don’t believe so. Blood or lab, yeah.

Q. Did she admit to drinking at all?

A. No, I don’t believe she did. You can smell alcoholic beverages on a person.

Q. So you could smell it on her?

A. Yes, sir.

I was indicted for an alcohol DUI, when the Commonwealth had a 0.00 alcohol result, in its hand.

On September 25, 2006, the Commonwealth received the exculpatory blood test result for drugs, showing “No drugs detected”
Exculpatory evidence hidden.
and
Exculpatory evidence hidden.

On October 16, 2006 the Commonwealth made me an offer of eight years. The Bill of Particulars with the offer was signed under oath:
Sworn under oath

The problem is, the document claims that the Commonwealth had in its possession NO EXCULPATORY EVIDENCE.
False statement on sworn Bill of Particulars

The document was perjured, and exculpatory evidence was hidden, in the hopes that I would plead guilty. I refused. But just so that you know, it is this sort of prosecutorial and public defender misconduct that results in a great many guilty pleas from people who are not guilty.


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