This is a mixture of prosecutorial misconduct, divertions of facts,
neglect from the courts, unreliable witnesses and no way to be able to get up the innocence to light, superficial investigations, suppression/hiding of all acts supporting the accused,
the use of deals and favours to get testimony and planned, premediated execution of an innocent person.
 
Sissel
 
 
----- Original Message -----
From: sissel
 

Individuals reported seeing the victim alive hours, days, and months after the State alleged that she was killed by Mr. Tompkins.
 
The State's star eyewitness gave inconsistent statements to the prosecutor which were never disclosed to defense counsel.
 
Unbeknownst to the jury, the jailhouse snitch used by the State--who only "came forward" after the first snitch committed suicide--was permitted to withdraw his guilty plea to an escape charge which was later dropped by the State just weeks after Mr. Tompkins' trial.
 
Not a shred of physical evidence links Wayne Tompkins to the murder.
 
The Eleventh Circuit did not even address these issues despite affirming the conviction and sentence of death in this case.
 
The federal district court determined that this information "would [not] have changed the outcome of trial" (App. 15 at 27), or that the witnesses were not "reliable."
 
Yet no court--state or federal--has ever heard these witnesses testify.
 
The disposition of these issues by the federal courts is completely contrary to fundamental principles enunciated by this Court.
 
 The Trial.
 
On March 24, 1983, Barbara awoke at around 7 a.m. when Wayne woke her up and told her that Lisa had a headache and wanted to stay home from school (R. 204).
 
Barbara acknowledged that after the day Lisa disappeared, she had been informed by several people that Lisa had been seen elsewhere in the community (R. 219). Lisa had also been suspended from school (Id.).
 
In the period between March, 1982, to June, 1984, Barbara had three other boyfriends in addition to Wayne Tompkins (R. 227), including Gary Francis; she denied that she moved out of the trailer park because Gary had harmed Lisa (Id.). It was also true that a man named Bob McElvin, a neighbor, had propositioned Lisa, that he would do "certain things for her for sexual favors" (Id.). 
 
After March, 1984, Barbara went on vacation and gave permission for Wayne to stay with her children (Id.).
 
On March 24, 1983, Stevens went to Lisa's house; on the previous day, both girls had been suspended from school, and Stevens went to Lisa's because "Lisa and me had made plans to run away because Lisa could not face her mother"
 
Stevens left, did not call the police, and instead "went up to the store" and ran into Lisa's boyfriend (R. 254). She advised the boyfriend that she wanted to call the police, but she did not because "it was a little bit of being scared and not knowing what to expect" and Lisa's boyfriend "just walked away like it was nothing" (Id.).
 
Stevens told her that Lisa "had left for New York" (Id.). Barbara asked if Stevens expected to hear from her, and Stevens replied "Yes, she will call me when she gets there" (Id.).
 
told prosecutor Benito her story after he called her (R. 263). She initially told Benito that she knew nothing about what happened to Lisa that day, and that this conversation was in mid-March 1985.
 
On cross-examination, Burke acknowledged speaking to numerous witnesses in addition to Barbara and Wayne (R. 285). Burke was not sure if he spoke with a Wendy Chancey (R. 286), nor was he sure if he spoke with a Bob McKelvin; he also did not recall the name of a black man who was a neighbor of the DeCarrs and whether he spoke with him (R. 287). Burke was aware of someone having made sexual advances toward Lisa DeCarr, and "[i]f it was Bob McKelvin who lived next door, yes, I was aware of some information regarding that" (Id.). Burke never followed up on that investigation (id.), and McKelvin was never interviewed by the police (R. 288).
 
According to Burke, the investigation revealed that Barbara had been arguing with Wayne in 1983 and 1984 about his having other girlfriends or affairs (id.), and that Lisa had a record as a run-away (R. 293).
 
Turco contacted prosecutor Benito, who visited him personally, and promised only "my safety in the jail and that you would tell the judge at my sentencing hearing that I cooperated and I came forward and testified in a murder trial" (R. 311).
 
Turco acknowledged that there was a confidential informant system in prison and he had been part of that for the last 4 or 5 years, and that he was "trustworthy"
 

The Postconviction Evidence.

At the time of trial, evidence existed that Lisa DeCarr was alive after the date and time specified, but the jury never heard it through a combination of counsel's deficient performance and the prosecution's suppression of material exculpatory information.

Some of the evidence was never evaluated by the jury because the trial judge erroneously precluded the defense from eliciting it. Regardless of where the breakdown in the adversarial process occurred, it is clear that the sum of the evidence unknown to the jury "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles v. Whitley, 514 U.S. 419 (1995).

Information Withheld by the State.

Undisclosed Memoranda regarding Kathy Stevens.

What was not known to defense counsel was that significant impeachment evidence existed which would have thoroughly discredited Stevens.

Approximately two years after Lisa's disappearance, prosecutor Michael Benito had two (2) conversations with Stevens, which he memorialized into written memoranda. According to the first memo (App. 8), Stevens talked to Benito on March 7, 1985, and said she spoke to Lisa on March 23, 1983, the day before her disappearance, and Lisa said she was going to run away from home. Stevens said she had no further contact with the victim after that date and that her original statement to Barbara DeCarr that Lisa had contacted her and that she was all right and in New York was false.

Mr. Tompkins was never allowed to question Stevens or cross-examine her on these statements because he was not allowed to call her as a witness at the state court evidentiary hearing due to a state objection.

The State also failed to reveal to the defense that after providing the information memorialized in the second memorandum, the prosecutor did a favor for Kathy Stevens. According to Benito's testimony, he "arranged a visit with [Stevens] and her boyfriend in the jail because she didn't have proper ID, and I did make it easy for her to get in there. I brought her over to visit her boyfriend" (Testimony of prosecutor Benito) (EH 20). Despite knowing that he had provided Stevens with this benefit, the prosecutor nonetheless argued to the jury that Stevens had no motive to lie (R. 346, 348).

Undisclosed records from victim's school.

Additional exculpatory material in the form of school records regarding Lisa DeCarr and Kathy Stevens were also undisclosed (App. 4). One of these records reveals the following notation "4/21 - students said child called from N.Y. Is pregnant." (App. 3). This document is significant because it (1) corroborated Kathy Stevens' original statement to the prosecutor that Lisa had run away to New York because she was pregnant (App. 8); and (2) provided independent corroborating evidence that Lisa was alive significantly after the date and time set forth in the Bill of Particulars. This evidence is also significant as it would have led to additional investigation and other discoverable evidence, for example, the students that actually spoke with Lisa in New York.

Undisclosed records from Missing Children's Center. Still more exculpatory material was kept from the defense. The police and the state attorney had in their files a copy of the Missing Children's Help Center's file on the victim (App. 9). According to a notation in that file, Detective Gullo wrote that Barbara DeCarr was wrong when she claimed that she had told the police all along that Mr. Tompkins was the last person to see the victim alive: "Det. Gullo insisted that she did not tell him this" (App. 9) (emphasis in original). Gullo could have been called at trial to demonstrate Barbara DeCarr's bias; without Gullo's statement, the prosecutor was able to argue in closing that Barbara DeCarr "knew who had last seen Lisa alive" (R. 351).

Undisclosed deal with Kenneth Turco.

Prosecutor Benito never disclosed to the defense that he would subsequently permit Turco to withdraw his guilty plea to an escape charge within two weeks after Turco's testimony even though Turco had already pled guilty to those charges. At trial, Benito emphasized to the jury that Turco "can be believed" because he is "a man who has got to go back to jail now and run the risk, while he serves a thirty-year sentence being known as a snitch in the prison population" (R. 357) (emphasis added). Benito also told the jury the fact that Turco had already pled guilty to the escape and was pending sentencing at the time of Mr. Tompkins' trial. This left the jury with the impression that Turco would surely serve more than thirty years. In fact, two weeks after Mr. Tompkins' trial, Benito told Turco's sentencing judge:

He came forward with some vital information for me in a murder case I tried before Judge Coe two weeks ago. This guy who killed a 16 year old girl and found the body under the house. Turco coming forward with this admission from this inmate assisted us in putting this guy on death row two weeks ago. At the time when I talked to Mr. Turco I told him I could not promise him anything more than I would come in front of you, advise you that he assisted us. Now after he's testified, Judge, it is going to be my position, 'cause I tried to balance this, I -- -- I wanted to tell this to the Court earlier but I didn't get the chance. I am going to recommend to the Court to allow Mr. Turco, on my suggestion, to withdraw his plea of guilty to the escape and then it will be my intention just to nol-pros it, 'cause I feel, Judge, he's got a 30 year sentence.

 

The jury was never apprised of this significant deal, which clearly would have affected Turco's credibility.

Information Known But Not Presented by the Defense.

Considerable information that Lisa DeCarr was alive later in the day of March 24, 1983, and even that she was alive as much as a month or more later, was available to fully apprise the jury of the facts of this case. 

 This evidence was readily available to defense counsel but was never presented; some of this evidence was erroneously kept from the jury due to rulings of the trial court.

Evidence existed indicating that Lisa was alive later in the day on March 24, 1983, and that she was wearing the clothes Mr. Tompkins had said she was wearing that afternoon. Evidence also existed indicating that the victim was alive as much as a month after the day on which the State contended she was murdered.

The defense inquiries, however, were cut off and the State's objections were sustained based on hearsay. See R. 217-221. Furthermore, during the cross-examination of the lead detective regarding the scope of his investigation, the defense was again limited from eliciting evidence which impeached the detective and supported the defense theory. See R. 285-287; 294-295.

The proffered evidence was not only valid impeachment but also was clearly exculpatory and corroborated by substantial additional evidence which buttressed the trustworthiness of the evidence. A police report filed at the time of Lisa's disappearance stated that it was Wendy Chancey who last saw Lisa at approximately 3:00 p.m. on March 24, 1983:

Interview: Witness [Wendy Chancey] stated she observed Lisa get into the suspect vehicle at 12th St and Osbourne and was last scene heading North on 12th St. Witness could give no more information, but can identify the suspect vehicle.

Another police report dated April 26, 1983, stated that Lisa had run away to New York because she was pregnant:

Received a telephone call from Mrs. DeCarr who advised that her son told her that Kathy Sample told him that Lisa called her. Mrs. DeCarr then contacted Kathy who told Mrs. DeCarr that Lisa called her yesterday (25 April) from N.Y. and told her she was OK and that she was pregnant. Kathy could not supply any further information.

Yet another report, dated June 22, 1983, again by Barbara DeCarr, indicated that "the only information that they had was a neighbor said that they had seen LISA getting into a green car, somewhere in the area of 15th and Osborne (R. 517).

Finally, another police report by Detective Gullo dated September 2, 1983, stated that Lisa had been sighted 6 months after she was allegedly murdered by Wayne Tompkins:

Despite trial counsel's awareness of these reports, the jury heard none of the specific exculpatory evidence that Lisa DeCarr has been sighted by numerous people on numerous occasions hours, days, and months after the State maintained she was killed by Wayne Tompkins.

 

CONFIDENCE IN THE OUTCOME OF PETITIONER'S CAPITAL CASE IS UNDERMINED BY THE CUMULATIVE EFFECTS OF THE STATE'S WITHHOLDING OF EVIDENCE, TRIAL COUNSEL'S PREJUDICIALLY DEFICIENT PERFORMANCE, THE TRIAL COURT'S ERRONEOUS PRECLUSION OF RELEVANT CROSS-EXAMINATION, AND THE PROSECUTION'S FALSE AND/OR MISLEADING ARGUMENTS.

Mr. Tompkins alleged the withholding of various statements made by the State's key witness,

A prosecutor has a duty to disclose favorable treatment given to a witness.

Because the prosecutor "intentionally painted for the jury a distorted picture of the realities of this case in order to secure a conviction," due process was violated.

The cumulative effect of the suppressed information and the false and/or misleading argument undermine confidence in the result in this case; however, the materiality of the suppressed information in this case is compounded by the prejudice that accrued to Mr. Tompkins due to trial counsel's unreasonably deficient performance.

Wendy Chancey was never called to testify regarding her sighting of Lisa DeCarr on the afternoon of March 24, 1983, hours after the State alleged she was murdered by Mr. Tompkins. Nor was she called regarding the fact that when she saw Lisa, Lisa was wearing the identical clothing that Mr. Tompkins told the police that Lisa was wearing the last time he saw her.

Mitigating evidences

the Eleventh Circuit dismissed both the family member mitigation and the testimony of Mr. Tompkins mental health expert as, essentially, lacking in credibility. As to the mental health expert, the panel made no pretense at objectivity, concluding, without ever laying eyes on her, that she was palpably biased.