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The still-unsolved murder of a beautiful red-haired woman 21 years ago. A wrongly convicted man, released after nearly a decade of incarceration. A trio of obvious suspects ignored. A cop with a bizarre and unstoppable fixation. A heroic cop who risked her career to do the right thing. A forensic psychologist whose word can lock someone up for life. Four separate investigations of official wrongdoing. The true crime enthusiast who hasn't encountered this case yet will find a story destined to become a classic, as complicated and fascinating as those of Nicole Brown Simpson, Jon Benet, or the Black Dahlia. For a complete background on the case see Free Tim Masters Because.
The hearings are over, Tim Masters is free, and the Special Prosecutor's Report (released February 15, 2008) seeks to ease our minds and reset our bullshit detectors to zero. Not so fast, boys.
The report is attributed to Don Quick, undoubtedly with input from team members Mike Goodbee, Thomas Quammen, Frank Spottke and Dan Michals. Perhaps because it is only a quasi-official document, it's written clearly and even with some narrative grace.
Quick's team was assigned in early 2007, after the defense accused the Larimer County bunch of prosecutorial misconduct. The Special Prosecutors were expected to deal only with post-conviction issues having to do with the 35c motion filed by Tim Masters (the one that said he had inadequate lawyering at his trial.) As Quick points out, in this case, the Special Prosecutors played a role different from their usual one. They set out to determine whether Tim got a fair trial. Also, they were called upon to "weigh the merits of his claim of actual innocence."
How many defense lawyers does it take to convict a client?
The report lists the grounds on which Tim Masters filed his 35c motion, a roster of the things he claimed his original trial counsel did wrong or failed to do. This is, after all, the subject matter for which the hearings were created. There's been a lot of talk about what a lousy job Fischer and Chambers did, ranging from not taking certain legal steps before testimony even started, to letting a juror sleep through part of the trial. No doubt, they could have done better. But no matter how much blame anyone feels inclined to place on those two lawyers, they were hobbled and handicapped by the absence of all the things that weren't surrendered as discovery. There's still plenty of blame remaining, to dish out to the prosecution and the police.
The report says, "The defense was not denied access to the evidence section of the police department and, in fact, accessed evidence there during the pendency of the case." About that, there are only two words to say: Thom McAn. Anyone who cares to do a little research will find a close scrutiny of the shoeprint evidence to be rewarding - especially in conjunction with a certain evidence envelope.
When discussing Tim Masters, anyone who says, "Yeah, but the jury convicted him" needs a reality check. No jury can do a good job when they are shown only a fraction of the meaningful evidence, and snowed under with an avalanche of non-evidence, and especially when they are outright lied to.
The Report
At the start, the Special Prosecutors promised to go wherever the evidence took them, which wasn't far enough. We saw tantalizing glimpses of a justice system gone Kafkaesque, but the termination of the hearings left a lot of unslaked curiosity. When the DNA evidence showed up, and Masters was abruptly released, someone was saved by the bell. It's great that Tim got out when he did, absolutely - but it also meant the planned additional hearings were vacated. No doubt this is in line with the law as written. But one thing about the law is, an exception can almost always be found if the motivation is there. Given the revelatory momentum the hearings had gathered, a person can't help wishing they had continued, and wondering if there could have been some way for that to happen.
Reading between the lines, it seems like the Special Prosecutors were disappointed, too. They had planned on "presenting testimony and having a public hearing on several issues." We are told that Jolene Blair and Terry Gilmore, the judges who were deputy DAs back in 1999 when they prosecuted Masters, wanted to testify.
What a coincidence - Tim Masters, wearing civvies for the first time in nearly a decade, walks out the front door on the very day when the two judges were to start answering questions. We'd had every reason to believe they would be heard from, along with Jim Broderick and Becky Hammond. One of the Special Prosecutors said he wanted to bring in Marsha Reed. And we were dying to hear from that quack Reid Meloy. Even Judge Weatherby became impatient with procedural details. After days of testimony from the original trial defense team, Erik Fischer and Nathan Chambers, it was proposed that the judge take charge of some boxes of documents. But he was eager to move forward. "Let's get on with some witnesses," he said, "… the people who know the answers…there is one person in my mind I want to know if is going to testify..."
One of the declared purposes of the report is to give the public some insight into the issues left unaddressed. Which is a nice gesture, though it would have been more edifying to see defense attorney David Wymore dismantle a few witnesses. The other stated reason for the report is to correct media inaccuracies. At the moment, only one inaccuracy is apparent. Some news reports seem to imply that only four problems were found. Actually, there were many. But we'll get to that.
This is incidental, but interesting: If the Special Prosecutor's office had wanted to, it apparently could have avoided ever opening the whole can of worms. A news report in August 2007 said that Quick at that point had the option "to submit a joint request with the defense team for a new trial - or to petition the court to exonerate Masters." It seems that taking one of those courses would have effectively left a lot of things covered up.
Incomplete explanations
In 1992, several years after the murder of Peggy Hettrick, an effort was made to arrest Tim Masters. Quick says the arrest warrant was then withdrawn because of "certain questions." In reality, there was only one question, and it was about the severed nipple, which the police had regarded as holdback information, naively believing that, even after 5 years, it was a confidential detail known only by members of their department. How did Tim know about? Three FCPD officers flew out to Philadelphia to ask him. The answer: he heard it from an Explorer Scout. In the days immediately following the murder, the police had those high school kids out there combing the field looking for - you guessed it: a severed nipple. There probably wasn't a student in the school who didn't know.
Quick goes on to say how in 1997, Dr. Reid Meloy was hired as an "expert witness," and how a new arrest warrant was created, "bolstered" by the expert opinions of the forensic psychologist. In reality, here's how it worked: Officer Broderick fed Meloy information about Tim Masters. Meloy combined Broderick's theories with those of Roy Hazelwood, plus a heaping helping of his own bizarre observations, and came up with the damnedest Rube Goldberg contraption of half-baked notions you ever saw.
One of the things we missed out on was an exploration of the role of an expert witness. Is the expert witness supposed to examine the evidence independently, or be spoon-fed by a cop who does all the homework, marks the (according to him) relevant parts of the evidence, and indicates to the expert exactly what he will be paid to say? Yes, witness preparation is valid, but where does preparation end, and coaching begin? Where does coaching end, and the whole performance become outright theater?
The mood in the courtroom reached absurdity more than once, as documents were unearthed from here, there and everywhere, to defense team exclamations of, "We never saw this stuff!" and Special Prosecutorial cries of "Well, don't blame us, we never saw it either!" Eventually, Judge Weatherby told the two sides to conduct an "omnibus" meeting, and figure out once and for all which documents had not been correctly shared. Of course, this only made matters worse, as another ton of brand-new-to-the-defense documents were disclosed. Although happy to have them, Wymore expressed dismay about the need to recall witnesses he thought he was done with, to question them about these new things.
The Four Stipulated Items
As the Special Prosecutors tell us, "certain police reports and witness statements were not given to the original trial prosecutors" - or, it naturally follows, to the original trial defense attorneys. Consequently, Quick's team filed a paper called "SPECIAL PROSECUTOR'S OFFERED STIPULATIONS" describing a few of the many items that had been withheld from discovery at the 1999 trial. Anyone who sat through those hearing knows we're talking about a multitude of withheld items, not just the four named here.
- The Meloy "Extractions"- 274 pages of psychobabble fabricated by the old windbag. Not even the original prosecutors got this, and nobody thought to ask for it, although Meloy's reports referred to his "extractions." Actually, it's possible to see why this was overlooked. It's a weird way of referring to a set of opinions, and sounds more like it would be excerpts from Tim's writings and drawings, used to back up the opinions. One assumes that an "extraction" is extracted from some larger body of work. So the confusion is almost understandable. Another funny thing about these extractions: Broderick gave this material to Roy Hazelwood, but not to his own prosecutorial team.
- The Anniversary Surveillance - Information on the week-long, tri-locational, dozens-of-officers-involving, much-overtime-pay-accruing stakeout of Tim Masters. This operation was staged a year after Peggy Hettrick's murder, and featured a psychological experiment where various stimuli were used to try and goad the 16-year-old into a violent response. This was done "at the suggestion of the Federal Bureau of Investigation." Too bad they didn't take some other FBI suggestions, such as (translated from officialese), "Forget that stupid idea. We're not watching your back on this one."
- Dr. Tsoi's statement to Officer Reed - A plastic surgeon was asked for his opinion of the wounds to Peggy Hettrick's body. Officer Marsha Reed says she wrote a report, which nobody has seen to this day. Too bad it got lost. The doctor's opinion, not surprisingly, would have been exculpatory of Tim Masters - in other words, indicative that he didn't do it. They got a different guy to testify instead. Further on, the report talks about Dr. Allen, the forensic pathologist who testified at Tim's trial. He said the cuts looked "like a mutilation" not a medical procedure. Dr. Tsoi would have said the cuts were surgical, and made by somebody like a doctor. And Linda Wheeler-Holloway, experienced investigator of both sex crimes and homicide, has said that she wouldn't even class what was done to Peggy as "mutilation," because of the control and deliberation exercised by the wielder of the instrument.
- Statements of Roy Hazelwood - The former FBI crime scene expert and "profiler" gave Broderick $2000 worth of good advice that was ignored, and told him some of his theories were bunk. Once Hazelwood understood what a madman he was dealing with, he politely extricated himself from the case.
But there were many more
The report says, "As to the four items described, we found no evidence that the trial prosecutors ever had these items in their possession to turn over to the defense…There was, therefore, no evidence that the trial prosecutors hid or destroyed any of this evidence."
So the Special Prosecutors officially admitted that trial attorneys Fischer and Chambers were not given these four items to work with. Out of the many possibilities, how were the four items picked? The criterion seems to have been that these items were not revealed to Terry Gilmore and Jolene Blair, either. So don't blame them. The purpose seems to be to minimize the wrongness of withholding things from the defense. If the police refuse to honor the discovery requirement, if they don't let the defense have stuff, yeah, sure, that's naughty. But the real message seems to be: refusing to give information to your own side, the guys who are on the same team, that's really messed up. And it is, and somebody needs to be blamed for it.
The legal point of these "discovery" issues is that it matters when evidence isn't shown to the defense, if it could have changed the outcome of the trial. The law also recognizes the cumulative effect. Maybe a little piece of evidence here or there wouldn't have cleared the defendant, but the weight of all of them together adds up to significance. If ever there was a case that illustrates the meaning of "cumulative," we see it here.
This is how a good part of the hearings went: David Wymore would familiarize original defense counsel Fischer or Chambers with a document. He'd ask if they'd ever seen it before. No! He'd ask if knowledge of the thing would have been useful at the 1999 trial. Yes! He'd ask if the thing should have been turned over to them in discovery. Yes! He'd ask if the police and DA were blameworthy for not turning it over Yes! Then on to the next piece of evidence. For a while there, the ambiance was not courtroom, but factory. Document after lost document just kept coming along the conveyor belt.
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