Justice: Denied - Issue 23, Winter 2004

Table of Contents

N{essa!:e l; lotn ' l

he LditorTrar cst r i r r Trr l ia . Tcras Frarr re-up o l ' . i lJ I rur<.rccrr t Pcoplc ( ) r 'che st ra lcdbr i r ( 'or r r r t r S l rcr r l - f ' . Pr osccrr t r . r r and. l r rdgc--I i rnothr Rrce 's Sto l rT l rc f )cr r rcr iv- i tchc l l Storr : [ )g lcr rdrr ru i r ! : l l r r r \ t i r scrr ra l a t lack lc : r r l ls i r r l r nrarr 's rnt r l r [ - - r 'con\ rc l ronl l r e S rc ld ique A t rdu l l ah l l asan S t ru lT l r r " ' \ ' t r rk t r Pr r t jcct T l runtp l t ( ) r cr I r agctJrTl rc . lc l ' t lc r Scol t Ross Storr A Fat t t t l r Tragccl l' l

he l\ lurio Sirrrs Stor-rT l rc Vrnci Pi t r r l Soddrr Storr : Nakcd Tr t r th Forr t ls f ) r rbtous. l t ts t tcclhc ( iarnet ' l o len StorrTl rc ' Thi r r B lur ' I rc - [ tcr rcu o l ' l l tc r t t r , r r rc' l

he I)etel C -lenkins Stor'1 : Stor-r lrook uttrrt itse cttds IIt. lc l l lc r Scot t Hrrr .nol l "s Mtrr r1u ( 'o t t r ic t ion ls FrposcclArtrcle Subrtrissrott ( ' i tr iclel irres tirt ' ./t i .r/rt i ' . I )t ' t I t t t IPt . rs t r r tc l N ' la r l Tcar t t I ' r v , l t rs l t c t ' l ) t ' t t t r ' t l

I t t t t t t r ' I ) t ' t r r t ' t l ' r l t t f i r t . tua t io r ta l L l roch t r r .e

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l)I ts() l l scntel lccA: A Sharrr \ l 'hcrr T l rc f tca l Ki l lc r ( 'on lesscs

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l 6I rl el el lr l- ) l

Message From The EditorDezrr fblks: Wc arc admittcdly latc with this issue- l, Clara, had devotedmost of my time to raising moncy so that we would not be cla-ssified as apnvate foundation, fbr that would be a vcry bad ouicome lor us. l'hc gtxrdneu's is tlrat we did succced in passing thc tcst fbr public suppon.

However. I havc lqamed that we must pass this test cach and erery ycar.

so plcase do not stop supporting us, for wc will necd your ongolng supporlso thal we may continuc to publish year alier year. Wc do havc someoncwho is trying to get sonrc grurts fbr us. but thosc are al*'ays illy. Our bestbet is to contirrue getting your support. You will note that wc now have"nrcrnberships." and thesc are for your niagazine. We also now have s'hat

is callcd Sponsos. and wc will discuss this individually with those whou,rite to us.

l-his has been a year ol'ups and downs. One of n.ry fbrorttc people, Ka,""

Ryder. is no longer able to continuc her work with us becausc she has beenqu i t e i l l .

' l.hcrc is still much *ork to be done to linish the year linancially.

Beginning with this nerl issue, rve will nou' be published try 'fhc

World

Nervspaper in Coos Bay. t t wi l l secm di f l 'erent to you. but u 'e wi l l be ableto be nrore on time *'ith our issucs once *'e havc a pattcm establishcd uith

thcnr. and I th ink you wi l l be plcased wi th the resul t .

Il 's a ncu vear, nes'things 10 try and ncw vistas. Happy \ew Year. cvcryone!

('lara A. -l'homas

Boggsl :d i tor in C'h iefand Publ isherJustice l)enrcd -- 1-he Magazine fbr the Wrongly Convictcd

ht tp: , i just icedenied.org

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.Justt(e. ! )enicd stalf persons editing or u'rit ing articles in this issue:

( lara Lioggs, Editor in ( 'hiel 'and Publisher

Pam Eller. Editor and Volunteer C'oordinator

Barbara Jean \{cAll in. [ iditor

lerri Smith. f-diror\{ar,r Graham. Editor\lelissa Sanders-Ri\ c'ra- lnlbmtation Requests

Hans Sherer. Associate Publisher

JusrcE DENTED: THE MAGAZTNE oF ThE WRoNGLY coNVlcrED - ISSUE 23. WINTER 2OO4

The Mario Sims Story

By Sunny Sims

Edited by Barbara Jean McAtlin, JD Staff

fh rs i r a s ton o [ \ l r r io 's u i tc o f l { yean scek ing u lcL cus todr dunng a dr ro ree and angered bv hcr

husband's alleged afTain u'ith two olher Bomen. She used

her husband's wil l ing polit ical enemics to assist her ingaining sole custuly and revenge by lalscly clainring herhusband mped heq resulting in Mario receiving a 27-yersentence.

\lario L. Sims Sr-, *'as charged with l lurglaru. a Cla-ss Bt'clony: Ra;r. a class A l 'elony; Criminal l)eviate conduct-a class A l-elony: Rape a clss A felonl,; and cnminalI)c\,iate conduct- a class A felony in a trial by 1ury and theCourt having cntcred judgment on thc Jury's verdict-

Mario L. Sinrs- Sr.. an Afiicm-Amcrican bom and raised

in Chicago came to livc in South Bend to get awav liom thc'

fast l i fe he had in Chicago and to l ive in a quiet communitvci(lse to his elderlv mother. Soon atier he bought a hour

and became involved in the community Mario Simsbc'canrc *idcly kno*'n and surn had a very high prolilc.

Hc cstablishcd his own busincss working out ol 'his honrc.

Sims & Associatcs. Hc bccame the lntcrirn Dircctor lbr the

St. Jriscph ('ounty Urban Lcaguc. he w'as thc foundcr o1-thc Nonhwest Sidc Ncighkrrhmd Association, wrotc a

lb i l - l reck ly l f lb iwcck ly l i co lumn in thc Communica tor ,a ltrcal ne*spaper. Eas on thc Holy ('ross fioard whcre his

son attended schml. wa-s mcmbcr ol' thc Parish linancc

eornrnittce. Chainnan of the Father Malloy St- Joseph('ountr Drug tasktbrce neighborhrnd committec. a

mcmber ofthe Board ot Directors ofthc St. Joseph Count'NAACP- coach al thc Y.M-C.A. rvherc hc was also a

member of'the Board of f)irectos whcrc hc chaircd the

Progmm committee. had a daily A.M. mdio progratn onW IWO that was heard in l3 states fiom

'l-renton, New

Jeney to Boulder. C olomdo that rcgularly leatured Mario's

commcntar) on what he Jrrccired as Bamcs'lailurc toproseculc drug cases and Keman's inabil ity to rnanage

South []end's govcmmcnt. a nrcmbcr ol r arious

comnrunitl organizations and lrequcntly appeared &s

spokesperson lbr thosc organizattons.

\1r- Sirns had served his community by. speaking orrt on

issues ofcommunity concern including crime- l ly doing so

hc las told bl mcmbers of thc community that hc sas

s lcnp ing on umc rn igh ty b ig toes . He \ \a ) no t i luarc ( ) l '

what lhose big tms would one day do to him.

Josph Kemm was mayor of South Bend at the time of fvlilio

Sims'conviction md Michael Bames ws the Prosecutor.

l\{mo and the trvo men repeatedly clashed in the media. f'rior

to Marids anest on Janury 22. 1994 he had been an

outspokcn opponent of thc St. Jorph elatcd Prosccutor.

Michael P. Ilames. and the South Bcnd Mayor, Joscph Kmm.

I hen onc day Mario Sims' world camc Io a halt when he

retrieved a telephone mcssage lrom his ansrvering machine

at l0l5 \. Johnson Strcet. South Bend Indiana. Mario had

moved into one of his rental propenies liom his mrital

residcnce of 1050 N, Johnson Strect alier Linda (his then

uife) had fi led for a dilorce in October of 1991. 'Ihe

marriage produced onc child. a boy bom June 7th. 1984

named lvlario Lee Sims that Mario and Linda called "Junior."

Vario immediatel) contacted his dir orce attome-v. DavidAlbert. On January 22. 199'1 after taking \lario's calldirorce Attomey-' Da\id Albert called the police and hadbeen told bv the South Bend Police that Linda had alleged

that on Fndal'. January I I . 1994 \{ario had broken a glasspanel on the front door of the marital residence at I 050 N.Johnrn Street to gain entry then waited lor Linda to arivehome lrom u'ork and then \vhile a hand gun was nearbvand under threat ofbeing injected with a syringc ti l led with

heroine tbrced her to urite a reconciliation note andcommifted the sex acts.

Mario *ent to the South Bend Police l)epartnrent uithAttomcy Daiid Albert and then fiancec L.C. to gire a

stalement. (L.C. later bccamc a state's witness). Prior togoing to thc Policc Dcpt. Mrio. uho had Junior as part ofhis fbur days o1'visitation and joint custod;". lctr Junior at1025 N. Johnson in thc care of' neighbor Candace-Iornpkins

unti l \4ario's expected retum that da]. '.

While at the policc station with Marn and Attomcy David

Albcrt Ms. C'hristianson told thc- South tsend Policc that

she was an insulin dependent tlpe I diabetic and that she

kept a package containinr l0 syringes in Mario's house at

l0f5 N. Johnson lbr use in an enrcrsency and that she had

used one fiom the package.

On Januan l-1. l9r)4. a da1'alier Vario's anest and r dayalier thc Policc searched Mano's housc at l()15 N.

Johnsn- L.C. wcnt to clcan Vario's h0use . l hc privalc

linc rang ard L.C . drinking she u as thc only one who kneu

thc number mswered it and cntercd into convcrution withl-ori (i izcuski. Mario's ncighbor *'ho l ived 2 bltrks down

liom Mario's housc. I ori l ived across f-rom Maritt 's

mothcr. Mrs. ( ' laudcttc \\ ' inston- Lori thcn cantc o\er to

speak with t-.(. and lhr-y both realizcd thel had been

having a conscnsual sex relationship u'ith Mario without

knowing ofeach othcr and both bccamc angry. [-ori told

L.C. thal Vario must're used her (l-ori 's) gun, thcn L.C.

said Mario nrusl're uscd hcr syringe. L.C. thcn callcd the

South Bend Police and told them she had fbund the

handgun [-ori clairned to havc "loaned" Mario tbr his use

on Januaru I I . I q9.1. L.('. also called Linda to describe the

handgun and thc s-vnngc.

On January 2-1. I 99.1 alrcr thc South Ilcnd Police spoke to

Lori and l-.(. Mario was charged with 1s'o count-s ol 'rapc

as class A l 'elonies and tEo counts ol ' criminal der iatc

conduct as class A lc' lonics in addition to thc burglary

chargc as a clss B l-elon1'with all charges stentming lrom

Ihc alleged assault on January 2 I . I 99'l against Linda.

I wo days laler Lori called the policc and clainred to hare

found Mario's watch on hcr back porch. During the time

Mario was held on thc charges in the St. Joseph ( ount-v- 1aila*'ait ing trial he wirs mored wilhout rcquesting a move

iiom the fir e man cell he rvas mor ed in to a large open unit

that held o!cr 3() inmates.

Son thereaher. three inmates in the unit. Paul Whitrncr,

l)ennis Jones and Lronel Will iams claimed Vario had

conl'essed to them and Whitmer's Iire-page statcment $as

athched to the state's resF)nse to discorery Votion fi led

on tlarch l-i. 1994. Shortl-v- before trial Whitmer rccmted

to Mario. Mario gare Whitmels recantation to his Private

lnlestigator. Denis Bums to give to }lario's Lawyer Ke\ in

Vilner and Bums did so.

Prior to trial Mario's then Larvver Raymond Balough

receired a relephone call f iom State's witness (\ ' lario's

lbmer tiancde) L.C. and Balough had Sims' private

investigator Denis Bums tape it and in the tape L.C. saidthat she wanted some forrn of payment not to testiry'against Mario. She also said that the elecled Prosecutorhad promised to help her get lvlario's \ lercedes in

exchange lbr her testimony. ' l-hey

also sho$ed her Lori

and Linda's statements.

It was not hard to prove Linda was not credihle since shc

had made prior demonstrably lalse allegations of Vario

having raped her on January 4, I 994. During the course o1'the divorce proceedings between Mario and Linda she had

called the South l lend Policc several t imes alleging that

Mario had not rctumed their nine yar old son. Mario Lee

Sims ("Junior") to her in a timely manner aftcr visitations

with his father or that Mario had mng her doorbell at 1 0-s0N, Johnson too many times when retuming Junior. or thaton Dcccmbcr 15- 1993 nhen Linda had invited l!4arioover to have consensual sex then alleged Mario had notlell thc house at 1050 N. .lohnvrn quickly enough afterhavin-q had consensual sex with Linda thcreby making herlatc lbr work.

Linda kncw that i l 'Mario were in prison custod) would no

longer be an issue. Mario had no history of f'elony arests.

\4ario and Linda had agreed after Linda ll led lbr dirorcc

thal Mario would l ive down the street lrom Linda at l()15N. Johnson so that Mario could havc tcmporan Jointcustody and visilation u'ith Junior tbur days then Linda

w0uld havc lbur days.

Mario Sims has lumed that bccausc hc chosc'to tak"-

scriously his first amendmcnt right of frecdom ofs;rech to

lawlully express opposition to those electcd ofticials who

arc supposed to bc scryants of the peoplc. but har e in l-act

beconrc mastes of the pcoplc. lr is crime is bcing \{ario

Sims. Ihis is not downplaying or ignoring the senous

nature ol'charges. But his ex- wil 'e Linda has sid that shc

did nol bring these charges, Shc only uanted a divorce. But

the reality s,as that the p0wcn that bc wantcd Mario

renxrverl tiom s(reicty to scnc thcir purposes. Ihe Cilun

takcs n()te ol Mr. Sims' statements both to thc probation

Ollicer and in olnn courl that lhis is, "a Jxtlitical case."

In Marids taped statenlent hc said he had consensual scr

with Linda that night aflcr har ing tixcd a window on a

dq)r that l.- inda had brokcn. Linda had scnt a note with 3

dtxrr key cnclosed lbr l0-50 N- Johnson Street that sas

gilen by hcr to Junior to giYe lo l lario lhat ntoming ol'

January 21. 1994 so Marnr could l ix the door. Mano

denied breaking into thc housc. dcnied having a slringe.

denied having a handgun and denied forcing Linda to har c

sex. Mari<l also lold policc that hc had becn at the Heritage

Cablc l 'clevision Studio taping his telerision shou liom

2:00 p.m. unti l a l i tt l !- afler.1:00 p.rn. the day oflhe alleged

crime on January 21, 199.1.

Ilalough resigned on March 2u. 1994 bccause \' lario could

not pay him. On April 4, 1994 Attomcy Kerin Vilner

entcred his appeannce. Mario met with Kevin Milncr one

time befirrc trial and Milner took notes at that meetrng

Milner did not visit the alleged crime scene. I hroughout

the pre-trial and lrail proceedings every time Mario would

entcr the Courtrtxrm Judge Jourdan's demeanor would

become visibly hosli le, glaring at \4ario.

A l2-memberjuw was impaneled on June l. 1994 On

June 2, 1994 the State began its case in chiel. ' fhe

theotl

of the State's case was lhat sometime befbre 3:30 p.m. on

January 2 I . 1994 lhal Mario amed with a handgun gil en

to him by Lori Gizewski and with a syringe he tmk out of

a package belonging to L,C. broke into 1050 N- Johnson

JusrcE DENTED: THE MAGAZINE oF THE WRoNGLY coNVlcrED - PAGE 14 . ISSUE 23 . WINTER 2OO4

through a glass panel on the iiont doorand then wailed until Linda arrived a little after 5:00 p.m.and over a period of six hours sexually assaulted Linda.

On June 2. 1994 the State's Case in Chiefbegan when theState called as its first wihess Dr. Brent Crofoot, who hadconducted the medical examination of Linda. Dr. Crof-oottestif ied that Linda's blood pressure and pulse were nomalafter the alleged rape: there were no signs ofany evidenceof tmuma anyu'here on Linda's body. There were noinjuries to Linda's vagina or rectum and there u,as norndication of forced sex ofany kind.

'Iuicc. one ofthe Jurors. Mr. Kelly, sent a note to Judge

Jourdan saying he could not continue as ajurorbecause theEnglish lanr:uage was not precise enough to allo* him toundemtand what they (the Judge and Lawyers) meantspecil icallv. He said rhe State gave evidence that didn'texpiicit ly refer kt the defendant nor nanowed a f 'cus onand o1'deviate serual behavior charyes, only burglary. TheCourt senl a responsc to Mr. Kelly's note and said that hehad to sene as -juror

On Junc 3. 1994 Mario was convicted on all counts. OnJune 8th. 1994 sir days aller L.C. testif ied against Mario.she uas awarded his lVlercedes. On June 9. 199,1 Judge\' leans and St. Joseph (lount\ prosecutor \ l ichael P.Bames. had previously agreed to the sentenccntodil lcation of felonv Lioncl Will iams and granted\\ ' j l l iams an earll rclease liorn prison six days afierWill iams testi l ied against Mario. On June 2,1rh. 1994Mario sent a lcttcr to Judge Jourdan saving that hispolit ical opponents had railroaded him. He lircd Milnerand asked to represent himselfpro se.

On Julv I . | 994 Mario was sentenccd to 27 years in prison.Judue Jourdan appointed a pubic dcl'ender l iom the lndianaStatc I 'ublic Dclcnders Oll lce to pcrl 'ect Marids direcrappeal. \{ario told the Statc Public I)efender. l)arrd[]rcund. that he had witncsses who would pror.ide hinr w ithall idarits saying hc rvas inntxent and that his trial judgcuas biased and pre'judiccd agrinst him. I:reund intonnedllario thal because the trial judgc paid his |ces he u,ould notraisc this issue. Mario thcn l l lcd his Davis Motion in theC'ourt ol Appcals. adr ising this court of'frcund's contliet ofinrcrcsl an(l artached the all idavits hc had told l:reund about.

On April l5. 1995 this court granted Mario's Dar is Motionlbr thc purposcs o1' l i l ing a tselaled Motion to Conccl[:nors. On \la-r- 8. 1995 Mario l l led his verif ied motion i irrchanue ol'1udge. \{ario's change of.judgc rvas denied on\' lar 1li. 1995. \ lario l i led his Belated Motion to ConcctLnors *ith thc afl lda\its of l-orn "-l-f lrooks" Brademus,l)cnis Ilums. Attomcv Charles Asher and f 'andacelompk ins on \ Iav ?5 . l9 i )5 i r thc S t . Joseph Supcr io r( ourt. On Junc l l. 1995 Mario l i lcd additional all ldavitsliom Attome\ I)ar id Albert and Charlcs Hoskins.

On June I 6. I 995 Mario took depositions of t-inda. L.('. andLori and subpoenaet Lioncl Will ians. L)ennis Joncs andKe r in i\ l i lner. \4ilncr and Will iams nercr appearcd at thedeposition. At the conclusion of the Belated Motion toConcct Enors Hearing Judge Jourdan, glaring angrily atl\{ario and then directine her commcnts to Mario u'hile hiselderlr \lother u 'Ls sifting in the courtroom. said that lltario'smother had angered Judge Jourdan for making commentsduring roir dire in an unrelated case rvhere Mario's elderlymother \\as in the.jury pool md had said that Judge Jourdanhad noi been farr to her son and Judge Jourdan uas outraged.

On June 10. 1995 Mario's Belated Motion to Corect

Errors was denied. Mario sought to obiain the record oftrial from the Clerk and fiom John ltamocha. but wasunsuccessful. Having exhausted everl avenue to oblain therecord to prepare rhe brief to appeal issues llom trial andliom the Belated Motion to Conect Errors proceedingMario fi led a pro se peririon in rhe Court of Appealsseekrng permission to mise the issues liom trial and liomthe Belated Motion to Corect Enors proceedings in apetit ion for post-conviction relief. On December I 2. I 995the lndiana Coun ofAppeals. cit ing: Logan r. CruseiDavisv. State granted Mario permission to raise the issues fromtrial and liom the Belated i\ lotion to Conect Enon in hispetit ion lbr post conr iction reliefand dismissed his appeal.

On Januaru ,s. 1996 Judge Jourdan qranted Mario's motionfor change ot' judgc and named a panel ofthreejudgcs. OnJanuary 17. 1996 Mario strikes Judge Albrighr. OnJanuarv 19. I996 Judge Jourdan vacated her recusal andreassumed lurisdiction. On Januan l9. 1996 Marioobjected to Judge Jourdan reassuming jurisdiction byli l ing his \{otion 1br Contelnpt l i tr Rcfusal ro complv withOrder of the Coun of Appeals and fi led a complaint withthe Ind iana Commiss ion on Jud ic ia l Qua l i f i ca t ions . OnFebruaru 20. 1996 on hc'r own motion Judce Jourdanrecuscs herself.

After a u,hilc of' l i l ing motions back and lbrrh Sr. JoscphCounty ccts tircd and decided to play hot potaro *ithMario's crirninal casc. On April ?5. 1996 St. -losephCountv scnds ir to flkhan Counrv. a nciehboring citr ' . l t isthen given an l: lkhart f 'oultrr ' Case t 201)01-9(105-(F-004--s. On August 2. 1996 rhc F-lkhart Coun denicd Mario'sPost Conr iction petit ion for reasons prer iouslv known 10hirn during both oi the appcals and trere not included ineithcr appeals and are thus *air c.d or prer iousll rulcd onin thc l lelated \lotior to Conect F-moni or * erc raised inthe in i t ia l appea l o f thc conr ic t ion . On Scptember 3 , 1996Vano Ii led his praecipe. I 'hc Clerk of thc Ctxrn ol'Appcalsrclirsed to nccepl mattcrs ti led undcr the blkhan Count\C i tsc numhcr a r rd in the contus ion orc r Ih ich case a to usc\ {a r io 's appca l *as d ismissed.

In i997. a Ch icago ne$.spaper corer inc ! la r io 's casedetemrncd that \4ario's trial -ludge's daughtcr had beensexually assaulted bv a black man belbre \4ario's rrial andthat shc lrad instructed hcr daughter nol to datc black nterr.

ln I999- Ml r io 's * i le o l t r ro ye i r rs . San Juara S in rs andtheir Pastor Rer Sanruel ( hasc. mct I lth ne\\, lv elcctedSt. Joscph Prosecutor (hris . loth

and rvere told thatoutgoing St. Joscph Prosecutor \ l ichael I ' . I lames and hisL'hief [)eputy' Prosecutor John \' larnocha had destroyeddrums ol leeal l i les er idence ol the fabrrcation o1 \4ario'scriminal casc. A mcmber ol'the communitl nametl Georuealso mct $ith C'hris Ioth- Pastor Chase and San JuanaSirns and all u erc' told o1' Uames animosity to \lario andd l thc des t ruc t ion o l e rcu lpa ton er idence. ( )n \1a1 ?2 .l00l \{ario l i lcd his \,1otion to takc Depositions at PublicErpcnse sccking to takc thc dcpositions o1 2.1 peopleincluding St. Joseph C ountl l)roscculor Chris I oth. tbnnerclected St. Joseph Counl\ ProsecLrtor \ l ichael P. I larncsand lbmler Depuq Prosecutor John \larnocha regardingthe newlv drscor ered issue oI thc bad faith destruction o1the materiallv exculpaton evidence ot the labrication ofthe case against him and Judce Jourdan reearding thc'issueofhcr bias and preludicc against \ lario.

On May 1.1. 1001. lvlario l i led a Request tbr issuance ofSubpoenas and an ali ldarit seekrng to subpoena -13 peoplc ata pos t -conr ic t ion re i re l e r ident ian hear inc . inc lud ingl\ 't ichael P. Bames. John lt larnocha. and Judse .leanne Jourdan.

On June 19,2001 Mario fi led his Motion to Compel SouthBend Police Sg. George Hal.rvood to answer the requestfor admissions concerning the fabncation of the trialtestimony of felony witness Lionel Will iams. Petit ioner'sEx pane Motion for Order Authorizing Experts at PublicExpense seeking to retain the seruices of Law ProfessorAlan M. Dershowitz, of Law Prcfessors Keith A. Findleyor John A. Pray fiom the Universit_v of WisconsinMadison Innocent Prcject.

On September 10, 2001 the post-con\iction court set ahering on pending motions for September 25. 200 t . OnSeptember 20. 2001 the court entered an order vacaringthe September 25th hearing and that hearing rvascontinued unti l December 17.2001 because Mario Simshad ll led a Veril ied Petit ion lbr Appointmcnr ol SpecialProsecutor where in Mario Sims alleged that the electedSt. Joseph County Prosecutor, Chris

' l-oth. became a

u,itness 1br Mario Sims on the issue of the bad faithdestruction ofthe materiallv exculpatorv evidence and theStatc fi led a response to that requcsr indicating it had noobjection to the appointmcnt of a speciai prosecuror. I 'heCoun gmnted Mario's pctit ion tbr a Special Prosecutorand on October 4. 2001 appointed Jennifc-r Evans.

On Dccembcr 27, 2001 the ( oun hcard oml arsumcnt onrhe pending motions and on January 2-5. l00l the (-oun

cntered an order denving all discor err motions and againdenving thc issuance olsubpoenas. ()n Januar] 18. l(X)lthc post conviction Coun issued its I 'rocedurai Ordersclting lbnh its deteminations that pursuant to Rule l.Scction 9(b) of the Post-Conviction Relief Rules thr-matter bc submittcd by afl idavit and rlrantinc l\, lariopemission to have this matter heard as a writ of habeascorpus and a posi-convictiolr petit ion and thcv set dhcaring lbr April 17. 1001 furthcr orderins thar notestimonv he allowed. but that thc panics submit alf jdar itsand argue thc law al the hcrring.

()n April l?. 2002 oral argumcnts on thc writ and post-conliction pctit ion wcrc hcard. During thc hcaring thcState stipulatcd that the issuc of the bad fbith dcstructionof thc materially exculpatory eridencc was nervlrdiscovered. Yct Mario did not inr ite enor of notsupporting thc issue ol bad laith destruction olerculpatory er' idcnce rvith the all idarit ol Chris l-orh.Ordinarily counscl is not sub-iect to bcing ealled rs a*,itness. I 'hcre arc exceptions lroqcrer. such as *hcn('ounsel is belieled t0 havc material inlbrmation thatcannot be discloscd otherw,ise. Toth. Bames andMarnocha *'ere the onlv sources that could hare pror.idedthe inlbnnation on the bad faith destruction of thecrculpatory evidence and'[oth had alrcadt agreed torecusc himself thercby becuning a rvitness lbr Vario.

On July' I | , 2002 Mario's writ and post-conr iction pctit ionu,as denied. On Jul1, ?-s. 2002 Mario l j lcd his Notice o1'Appeal on August 19. 2002. On August ?3. l00l \ ' larionoli l led the Court thar lurther derelooments in the tbm ofa tactual dctcrmination madc bv the hlkhart Circuit Counshowed that the State had knowingly used lalse testimonrat trial to gain Mario's conviction.

Nou. atier all that what else is lcft to do.) Mario hasexhausted all Courl avenues and continues to fighl tbr hisfieedom. Recently in Scptember 2002 a brief was l l ledhoping to overtum his conviction.

Continued on los'er left of next page

- lssuE 23 - WTNTER 2004JuslcF DENTED: THE N4AGMINE oF ThE wRoNGLy coNVrcrED - PAGE 15

fffi Centurion Ministries2 2 1 \ f i t L e r s p o o n S t . c e t . P r i n c c t o n , N e o ' J c r s c . , 0 . S 5 d 2 . * . w x , , c c l t u r i o n r l i n i s t r i c s . o r a -

July 28,2003

Dear Mr. Sims:

Thank you for writing.

\\/e note that your case appears to be a rape case without DNA evidence. If that is true,Centurion Ministries will not be able to lo^ok at your case. There must be genetic materialthat can be scientifically tested to prove your inn-ocencd in order for C.M. to consider takingon your case' In cas^e: ofrape we try to prove through DNA testing that the convicted p..roi

::l^t:f" innocent of the rape for *hi.h he has been convicted, solhis material is absolutely

cruclal.

We realize that any arnount of time an innocent person spends in prison is too long. Wedeeply regret that we cannot do more for people liki you caught up in a wrongful conviction.

I am sorry we cannot help you in your quest for relief from the hardship of yourincarceration.

Sincerely,

S . e L i n g J u s t i c e f o r t h e I n n o c e n t i n P r i s o n

T H E U N I V E R S I T Y- - J

WISCONSINM A D I S O N

Faculty DirectorWalter J. Dickey

DirectorMeredith J. Ross

Wiscons in lnnocence Pro jec t

Keith A. Findley, Co-DirectorJohn A. Pray, Co-DirectorWendy S Paul

December 19,2002

Mario Sims, #943738Westville Correctional CenterP.O. Box 473Westville, IN 46391

Dear Mr. Sims:

We are sorry that the Wisconsin Innocence Project will be unable to help you prove yourinnocence. We also apologize for the long delay in responding to your application. With a smailstaff, we're buried in applications from inmates from across the U.S.; gradually we're makingour way through the backlog.

We must deny your application for several reasons. The prirnary one is that we take cases onlyfor inmates who have at least 7 more years to serve in prison; your expected release is 2007,which falls short. Also, we must give priority to helping Wisconsin inmates, and therefore we

take only a small number of out-of-state cases. Usually those must have DNA evidence, rvhich

does not exist in your case. There's no dispute that you had sex with your wife, only rvhether it

was consensual. DNA won't help with that. You do, however, state that your wife is willing to

recant her testimony.

If we're misinterpreting information about your release date, let us knotv, and we might reopellyour file, especially given the apparent political motives behind your conviction. Also, you mightwant to contact the innocence project in your own state. They primarily rvork with DNA cases,but also consider others, as we understand. See the contact information on the enclosed sheet.

Sincerely,

Stafl Wisconsin Innocence Project

Frank J. Remington Centert ln ivers i tv o f Wiscon- . in Larv Schoo l 975 Bascor r N4a l l l ' l ac i i sor r , \ \ / l 53705-1399

608/262-1002 FAX 608/263-3380

Citizens for Common Sense" IncP . O . B o x 2 2 6Grainger, Indiana 46530

4pr1126,2007

Dear Indiana Parole Board.

This letter is one of support for a pardon for Mario Sims Sr. I am a student in Paralegal

Studies at I.U.P.U.I. in Indianapolis Indiana. As such, I have personally read all of the transcripts

from Mr. Sims court case, post conviction testimony. and have seen the documentary evidence

myself. I am appalled at the unwillingness of the Indiana Judicial System to actually

acknowlcdgc the undisputed evidencc of lvlario Sims absolute innocents.

I have spoken personally to Mario Sims in length. I find Mr. Sims to be one of the most

intelligent. kind, caring, and mild mannered gentlemen that I have ever had the pleasure of

knowing. If any man alive ever deserved a Pardon, it would be Mario Sims Sr.

Anytime I have ever spoken to Mr. Sims, his spirituality comes through in the most

profound and insightful manner I have ever heard. I firmly believc that if more Americans had

the intelligence, balanced with the kindness and good heart that Mario Sims has, this country

would be so much better off.

I could literally go on and on about Mario Sims and how he has been a great inspiration

to so many, as well as the tragedy of the bogus evidence against Mr. Sims, like the'Jailhouse

snitch" n'ho lied on the stand about getting a "deal'' fbr his testimonv. or the prosecutor u'ho

allou'ed this inconect testimonv to be Dresented to the iun. and then later lied in affidai'it ahout

disclosing these f-acts to \ lario's detense attorne\. as r iel l as al l of the testimon] giren at tr ial

t l ' o t - . . ^ - l - r o ' t n h o f - - l c o

If an1'one desires to contact me to hear more of my testimony on Mario Sims, or to hear it

in person, please fbel free. . ..

Please give- Mario Sims the long an'aited pardon in the interest ofjustice and fair play.

' - /- , / / 't ' ./r. '*-.

. ' M , ' : , t ? : /

Michael Sabo-(317) 35rAs67747 S. Drexel AveIndianapolis, IN 46203

Judge Jourdan's Opinion

Mario L. Sims, Sr.23778 Grove Street

South Bend, IN 46628simsm2@comcast.netfax (574) 217-8005

Phone (5741271-7049

THE MAKING OF A CRIMINAL CONVICTION

The conviction that some comfortably base their "concems" upon was contrived by Mike

Bames. John Marnocha, and Tim Corbett using the racial prejudice of my former trial judge

Judge Jeanne Jourdan (l was not aware of her prejudice until after she denied my first post

conviction efforts and was told by another Jail inmate that he had dated her daughter but had

been told by her daughter her Mom did not like black men because she blamed a black man for

sexually assaulting her so they had to meet at the mall. Of course Judge Jourdan is no longer on

the bench. She later became u D.puty Prosecutor prosecuting sex crimes) After discovering this I

filed a motion for her to recuse in 1996 and it was granted'

Not a sex offender

( 1 ) First I am not a sex offender by law: Upon my release on Decemb er 22- 2006,lnitially

I was required to meet with a sex abuse counselor. Ms. Nowak, of Nowak & Associates P C '

After one session, Ms. Novak reported to my Probation Oftlcer. Ms. Melinda Remble, that I was

not a sex oflbnder and should not be required to attend any sex offender programming. and that

she believed that I was innocent. In fact Det. Charles Oakley of the St. Joseph Sheriffs

Department Sex Offender Unit expressed his fiustration in u'asting his time having to monitor

me as a sex of1'ender. Ultimately Special Judge Steven King of LaPorte Superior Court 2

determined I did not have to rcgister as a sex ofl-ender. with no opposition fiom the St. Joseph

County Sheriffs Department oithe St. Joseph County Prosecutor's O1lice. I successfully

completed probation without any incident. Feel free to contact Marc'liade, Ducomb Center' Det'

oakiey and Melinda Remble. It is odd that the St. Joseph County Sheriff s Department and St.

Joseph County Probation determined I was not a sex offender required to register and posed no

threat to the saf-ety of women in the community. but now some people express "concems" about

me speaking out because of a case more than 1 8 years ago. Check the St' Joseph County Sex

Offender registry you will NOT find me listed'

Wrongful conviction

(2) Now here are the ugly t'acts of Barnes. Mamocha and Tim Corbett's efforts to

v,rongfuliy gain my conviction in State v. Mario Sins. Cause No.: 71D05-9401-CF-0060 ( as

read 6elow teep in mind my trial counsel put no one even me on the stand at my trial):

a. On January 22,1gg4, the date I was supposed to have broken into my home and raped

my then wit'e, I *urin fact at the Heritage Cable *levision Studio on Edison and Hickory taping

my weekly cable show with co-host DaJe Frank (See attached Exhibit #3 )and did not leave

there until after 4:00 pM. John Marnocha solicited testimony from my wife's tenant at 1107

North Johnson, Carla Peat. that she arrived at her home at 3:30 PM that day and noticed her

pipes had frozenso she immediately sat in her u'indow watching the front of our marital

residence 1050 North Johnson waiting for Linda ( my then wife) the alleged victim to arrive,Carla Peat testified she never saw me enter the home. I had been with Dave from 2:00 PM untilafter 4:00PM that day. Mamocha solicited this testimony to shou'I w-as in the home prior to thetime my wife arrived. You may find her testimony on transcript pages 940-951 But Dave Frank'saffrdavit . which I entered into the post conviction record without objection from Marnochaduring the time I represented myself" shows that is not true:

b. The day I went to the South Bend Police Station to give my statement, January 23. andwas arrested, I left my leather band watch on the floor of my home at 1025 North Johnson. I wasin jail and not released until April l. 1994. My next door neighbor Candyce R. Tomkins that wasbabysitting my son until my supposed retum that day discovered my leather band watch on thefloor at my home and picked it up and placed it on my desk. Three days later that watchmysteriously appeared at the home of Lori Gizewski. the state's witness that testified that I haddropped it on her back step at her home after raping my wife and retuming the handgun I hadborrowed from her to commit the rape. That neighbor's affldavit. which I entered into the postconviction record (my criminal appeal was stayed by the Court Of Appeals when I presented tothem evidence of my innocence and was remanded to file a belated motion to correct errors)without objection from Mamocha during the time I represented myself, shows that is was nottrue. My watch had been planted at the Gizewski's home AFTER mv arrest. (See attachedExhibit #4):

c. After my arrest on January 23^ 1994.1 was placed in cell D-3. February 2.1994. I wasmoved from cell D3 a cell holding 5 inmates. to 4North a cell holding over 30 inmates includingDennis "D.J. Brown, Lionel Williams" and Paul Whitmer. See attached St. Joseph County JailShift/detail Log History Officer Wettergren who moved me remarked it was unusual for aninmate to be moved unless there had been a fight or problem. There had been none at 3D. Thereason I was moved to 4North was soon apparent. Tim Corbitt. who was with Special Crimes andSgt. G.D. Haywood sex crimes investigator assigned to my case removed Paul Whitmer from4North on February 14.1994 supposedly to go to the State Police outpost in Bremen for a liedetector test. However Whitmer later stated that Corbett wanted him to provide the State withlestimony against me. Initially Whitmer agreed to state I had confessed to him, then recanted in aletter to me and before ALL of the inmates in 4North. So did Dennis "D.J." Jones. [,ater. LionelWilliams agree to testify that I had confbssed to him. At trial even though John Marnocha knewthat Mike Barnes had agreed on April 19. 1994. weeks before my trial on .lune l. 1994. tomodify Williams sentence he deliberated solicited testimony he knew to be false from Williamsand committing fraud upon the court allowed the jury believe Williams had no inducement totestifu falsely, Marnocha standing silent failing to correct Williams false testimony on June 3.1994. as my trial counsel struggled on cross examination to show Lionel Williams had beenoft-ered an inducement (which at the time he did not have the documents that I attached to proveit). Barnes and Marnocha withheld from the defense the items attached as Group Exhibit #5).Williams sentence was modified on June 9. 1994. days after he testified falsely against me. I onlydiscovered them when I subpoenaed Lionel Williams criminal case file while representingmyself pro se during my post conviction proceeding in 1995. (See Group Exhibit #5). At trial tocover up the fact that Tim Corbett and Sgt. Heywood had enlisted the three to testify falselyagainst me, Mamocha solicited testimony from Lionel Williams that he, Williams, Paul Whitmerand Dennis "D.J." Jones had come to the prosecutors office attention after they had written aletter to the Prosecutor's Offrce. A attached letter from Chris Toth's office shows no such letterexisted. Corbett in swom discovery answers to interrogatories obtained by me in a civil rights

suit says he was not involved in my case. and denies knowing Paul Whitmer, however the St.

Joseph County Jail Detail Log demonstrates otherwise. Whitmer stated it was during this time

that Corbett solicited his help to convict me with the false confession story.

d. During my Post conviction hearing my then wife. Linda my alleged victim was

called by me as a witness and admitted that I could not have broken in thru the three lockeddoors at our home to rape her on January 2l^ 1994. and admitted that she had testified falsely attrial when she testified I had raped her at gun point and left the house at 6:30 PM that night. nowstating on post conviction that I was with her and our son at the marital residence all thatevening, she made dinner and we watched a movie and I slept there over night (See attachedExhibit #6):

e. During my Post conviction hearing I entered into evidence Affidavits from mydivorce lawyer, David W. Albert, which stated that state's witness Libby Christianson. a insulindependent diabetic, had told him she had used and disposed of the needle, that at trial. after beingoffered my car by John Mamocha as an inducement to testiff falsely. she testified t had used thesyringe. (See transcript pages R.627-28,681-84) ( I was alleged at trial to have used a syringefilled with heroin to menace my wife and force her to have sex). Marnocha solicited testimonyfrom Libby that she had left a pack of syringes containing ten in my house and after my arrestthe police found the pack with one missing. Denis Burns my private investigator gave me anAffidavit regarding this. I entered both Affidavits into the post conviction record withoutobjection from Marnocha during the time I represented myself'. At the small claims hearing onthe complaint filed by Libby to get my car (not her car. Libby had NO ownership rights to my carbut as payoff for her testimony she was awarded my car). she stated on the record that JohnMarnocha had given her the legal advice to get my car!!!? ( I will never forget the look on then

Cpl. Mark Kovac's face when she said that. It was shear shock and disgust that a prosecutor

would do such a thing).(See Group Exhibit 7)(Libby later during Post Conviction said she had

mistakenly blurted out John Marnocha's name but could not produce the name or address of thelaw,yer she had intended to say gave her the legal:

f. Of course Judge Jourdan did her racist thing downplaying all of this evidence to rule

against me. I later filed a second motion to remand of this ruling of Judge Jourdan and again the

Court of Appeals remanded fbr me to f'rle a post conviction petition. lt was never heard, my case

was venued to Elkhart County where Judge Donald Jones denied my post conviction petition

without the state filing an answer. I could not appeal because his order was sent to me more than

thirty days after he had denied my post conviction petition. By 1999 Barnes was a Court of

Appeals Judge so that Court sanctioned me fbr truthf-ully putting all of this stuff on the record!!!?g. I have numerous attached letters and articles showing many people and organizations

are aware and have protested what was done to me.The over 80 pages of Court records. Affidavits. letters. articles, and transcripts pages are

available upon request to me by anyone. May God Bless you!

In Christ. I remain.

Deacon Mario L. Sims" Sr.

Mario L. Sims, Sr.23778 Grove Street

South Bend,IN 46628simsm2@comcast.netfax (574) 217-8005

Phone (574)271-7449

THE MAKING OF A CRIMINAL CONVICTION

The conviction that some comfortably base their "concems" upon was contrived by Mike

Bames. John Mamocha. and Tim Corbett using the racial prejudice of my former trial judge

Judge Jeanne Jourdan (l was not aware of her prejudice until after she denied my first post

conviction ef1brts and was told by another Jail inmate that he had dated her daughter but had

been totd by her daughter her Mom did not like black men because she blamed a black man for

sexually assaulting her so they had to meet at the mall. Of course.ludge Jourdan is no longer on

the bench. She later became a Deputy Prosecutor prosecuting sex crimes) After discovering this I

filed a motion for her to recuse in 1996 and it was granted'

Not a sex offender

( I ) First I am not a sex oflender b1,' law: Upon my release on Decembet 22,2006,lnitially

I was required to meet with a sex abuse counselor. Ms. Nowak. of Nowak & Associates P C .

Afier one session, Ms. Novak reported to my Probation Officer. Ms. Melinda Remble. that I was

not a sex oftbnder and should not be required to attend any sex offender programming. and that

she believed that I was innocent. In tact Det. Charles Oakley of the St. Joseph Sheriffs

Department Sex Offender Unit expressed his fiustration in wasting his time having to monitor

meas a sex offender. Ultimately Special Judge Steven King of LaPorte Superior Court 2

determined I did not have to register as a sex oflbnder. with no opposition from the St. Joseph

County Sheriffs Department oithe St. Joseph County Prosecutor's Office. I successfully

completed probation without any incident. Feel free to contact Marc Tiade' Ducomb Center. Det'

oakiey and Melinda Remble. It is odd rhat the St. Joseph County Sheriffs Department and St.

Joseph County Probation determined I was not a sex offender required to register and posed no

threat to the safety of women in the community. but now some people express "concems" about

me speaking out because of a case more than 18 years ago. Check the St. Joseph County Sex

Offender registry you will NOT find me listed.

Wrongful conviction

(2) Now here are the ugly facts of Barnes. Marnocha and Tim Corbett's efforts to

wrongfutiy gain my conviction in State v. Mario Slzs. Cause No.: 71D05-9401-CF-0060 ( as

read 6elow keep in mind my trial counsel put no one even me on the stand at my trial):

a. On January 22.lgg4. the date I was supposed to have broken into my home and raped

my then wife, I was in fact at the Heritage Cable Television Studio on Edison and Hickory taping

my u,eekly cable show with co-host Dave Frank (See attached Exhibit #3 )and did not leave

there until after 4:00 pM. John Marnocha solicited testimony from my wife's tenant at 1107

North Johnson, Carla peat, that she arrived at her home at 3:30 PM that day and noticed her

pipes had frozenso she immediately sat in her windor,l'watching the front of our marital

residence 1050 North Johnson waiting for Linda ( my then wife) the alleged victim to arrive,

Carla Peat testified she never saw me enter the home. I had been with Dave from 2:00 PM until

after 4:00PM that day. Marnocha solicited this testimony to show I was in the home prior to thetime my wife arrived. You may find her testimony on transcript pages 940-951 But Dave Frank'saffrdavit . which I entered into the post conviction record without objection from Marnochaduring the time I represented myself. shou's that is not true:

b. The day I went to the South Bend Police Station to give my statement, January 23, andwas arrested. I left my leather band watch on the floor of my home at 1025 North Johnson. I wasin jail and not released untilApril 1.1994. My next door neighbor Candyce R. Tomkins that wasbabysitting my son until my supposed retum that day discovered my leather band watch on thefloor at my home and picked it up and placed it on my desk. Three days later that watchmysteriously appeared at the home of Lori Gizewski, the state's witness that testified that I haddropped it on her back step at her home after raping my wife and returning the handgun I hadborrowed from her to commit the rape. That neighbor's affidavit, which I entered into the postconviction record (my criminal appeal was stayed by the Court Of Appeals when I presented tothem evidence of my innocence and was remanded to file a belated motion to correct errors)without objection from Marnocha during the time I represented m1'self, shows that is was nottrue. My watch had been planted at the Gizewski's home AFTER nry arrest. (See attachedExhibit #4);

c. After my arrest on January 23.1994.I was placed in cell D-3. February 2,1994. I wasmoved from cell D3 a cell holding 5 inmates. to 4North a cell holding over 30 inmates includingDennis "D.J. Brown, Lionel Williams. and Paul Whitmer. See attached St. Joseph County JailShiff/detail Log History Oflcer Wettergren who moved me remarked it was unusual fbr aninmate to be moved unless there had been a fight or problem. There had been none at 3D. Thereason I was moved to 4North was soon apparent. Tim Corbitt. who was with Special Crimes andSgt. G.D. Haywood sex crimes investigator assigned to my case removed Paul Whitmer from4North on February 14. 1994 supposedly to go to the State Police outpost in Bremen for a lie

detector test. However Whitmer later stated that Corbett wanted him to provide the State withtestimony against me. Initially Whitmer agreed to state I had conl'essed to him, then recanted in aletter to me and befbre ALL of the inmates in 4North. So did Dennis "D.J." Jones. Later, LionelWilliams agree to testify that I had confessed to him. At trial even though John Marnocha knew'

that Mike Bames had agreed on April 19, 1994. weeks before my trial on June l, 7994. to

modily Williams sentence he deliberated solicited testimony he knew to be false from Williamsand committing fiaud upon the court allor,led the jury believe Williams had no inducement to

testifu falsely. Marnocha standing silent failing to correct Williams false testimony on June 3.

1994" as my trial counsel struggled on cross examination to show Lionel Williams had been

oflered an inducement (which at the time he did not have the documents that I attached to prove

it). Barnes and Mamocha withheld from the defense the items attached as Group Exhibit #5).

Williams sentence was modified on June 9. 1994. days after he testified falsely against me. I only

discovered them when I subpoenaed Lionel Williams criminal case file while representing

myself pro se during my post conviction proceeding in 1995. (See Group Exhibit #5). At trial to

cover up the fact that Tim Corbett and Sgt. Heywood had enlisted the three to testify falsely

against me. Marnocha solicited testimony from Lionel Williams that he, Williams, Paul Whitmer

and Dennis ooD.J." Jones had come to the prosecutors office attention after they had written a

letter to the Prosecutor's Offrce. A attached letter from Chris Toth's offtce shows no such letter

existed. Corbett in sworn discovery answers to interrogatories obtained by me in a civil rights

suit says he was not involved in my case. and denies knowing Paui Whitmer, however the St.

Joseph County Jail Detail Log demonstrates otherwise. Whitmer stated it was during this time

that corbett solicited his help to convict me with the false confession story.d. During my Post conviction hearing my then wife. Linda my alleged victim was

called by me as a witness and admitted that I could not have broken in thru the three lockeddoors at our home to rape her on January 2l ^ 1994. and admitted that she had testified falsely attrial when she testified I had raped her at gun point and left the house at 6:30 PM that night, nou'stating on post conviction that I w.as with her and our son at the marital residence all thatevening, she made dinner and we watched a movie and I slept there over night (See attachedExhibit #6);

e. During mv Post conviction hearing I entered into evidence Affrdavits from mydivorce lawyer, David W. Albert. which stated that state's witness Libby Christianson. a insulindependent diabetic, had told him she had used and disposed of the needle. that at trial, after beingoffered my car by John Mamocha as an inducement to testif,v falsely. she testified I had used thesyringe. (See transcript pages R.627-28.681-84) ( I was alleged at trial to have used a syringefilled with heroin to menace my wife and fbrce her to have sex). Marnocha solicited testimonyfiom Libby that she had left a pack of syringes containing ten in my house and after my arrestthe police found the pack with one missing. Denis Burns my private investigator gave me anAffrdavit regarding this. I entered both Affidavits into the post conviction record withoutobiection from Marnocha during the time I represented myself. At the small claims hearing onthe complaint filed by Libby to get my car (not her car. Libby had N0 ownership rights to my carbut as payoff for her testimony she was awarded my car), she stated on the record that JohnMarnocha had given her the legal advice to get my car!!!? ( I will never forget the look on thenCpl. Mark Kovac's face when she said that. It was shear shock and disgust that a prosecutorwould do such a thing).(See Group Exhibit 7)(Libby later during Post Conviction said she hadmistakenly blurted out John Mamocha's name but could not produce the name or address of thelawyer she had intended to say gave her the legal:

f. Of course Judge Jourdan did her racist thing downplaying all of this evidence to ruleagainst me. I later filed a second motion to remand of this ruling of Judge Jourdan and again theCourt of Appeals remanded fbr me to flle a post conviction petition. It was never heard. my casewas venued to Elkhart County where Judge Donald Jones denied my post conviction petitionwithout the state filing an answer. I could not appeal because his order was sent to me more thanthirty days after he had denied my post conviction petition. By 1999 Barnes was a Court ofAppeals Judge so that Court sanctioned me for truthfully putting all of this stuff on the record ! ! !?

g. I have numerous attached letters and articles showing many people and organizationsare aware and have protested what was done to me.

The over 80 pages of Court records. Affidavits, letters, articles, and transcripts pages areavailable upon request to me by anyone. May God Bless y'ou!

In Christ- I remain.

Deacon Mario L. Sims. Sr

Citizens for Common Sense, IncP.O.Box 226Grainger, Indiana 46530

4pr1126,2007

Dear Indiana Parole Board,

This letter is one of support for a pardon for Mario Sims Sr. I am a student in paralegal

Studies at I.U.P.tl.l. in Indianapolis Indiana. As such, I have personally read all of the tralscriptsfrom Mr. Sims court case, post conviction testimony, and have seen the documentary evidence

myself. I am appalled at the unwillingness of the Indiana Judicial System to actually

acknowledge the undisputed evidence of Mmio sims absolute innocents.

I have spoken personally to Mario Sims in length. I find Mr. Sims to be one of the most

intelligent, kind, caring, and mild mamered gentlcmen that I have ever hacl the pleasure of

knowing. If any man alive ever deserved a Pardon, it would be Mario Sims Sr.

Anytime I have ever spoken to Mr. Sims, his spirituality comes through in the most

profound and insightful manner I have ever heard. I firmly believe that if morc Americans had

the intelligence, balanced with the kindness and good heart that MzLrio Sims has, this country

would be so much better off.

I could literally go on and on about Mario Sims and how he has been a great inspiration

to so many, as well as the tragedy of the bogus evidence against Mr. Sims, like the'Jailhouse

snitch" who lied on the stand about getting a "deal" for his testimony, or the prosecutor who

allowed this inconect testimony to be presented to the iurv. and then later lied in affidavit alroutdisclosing these facts to Mario's defense attomey. as well as all of the testimony'given at trialt l ' - t - . ' . '^- I o+a- p-^. 'o- tn l . ro t-a I cp

If anyone desires to contact me to hear more of my testimony on Mario Sims, or to hear it

in person, please feel free....

Please give Mario Sims the long awaited pardon in the interest of.justice and fair play.

(31i) 351-0567747 S. DrexelAveIndianapolis, IN 46203

J:-iit 18 ',9E 10:11Af'l llT .I(lll-PH PFt-tSt3 t;gp

STATE OF

iN :}IE

STATE OF fr\TfAltA

vs .

MA,RIO SIMS

fN]I-qN.A, ST. JOSEIH CC[J}{TY

ST. JOSEPTi SUF.SR.TOR COLIF.T

P.?. , ) . ' )

eq.usE Nc. TlDosnitr-csooo6o. - ' , i ' l . r l .

- ' ' ' . , : l

OPTNTOI.I

The ch ie f Juc ige o f the ind ;ana ccur t o i Acuears on Apr i r . ?5 ,1995, Eer rn i ra tec the appea l 0 f th i -s cause and remanced the cau.seEc ;he st . Joseph superior cou.rt for i l :e purpose of the appelral tf i - l ing e nro -=e Eer-atea Moticn ta co:recE Er:-ors ani for thaEc o u r t ' s p l e n a r v - c o n e i d e r a c i o n o f s a i i p e t i t : u r n .

The Defend.ant eppear=ci pro se and f : ied his Eerated r,roEiontc Cor: i rect ETrors on t4ay 25., 1995 r_o which the Siate f : led i tsresponse on LTure g' a-c-es- The parr- ies each moved to dismiss ch_eother rs mot icn and/or res 'onse Ehere to . rn add i t ion , o r r l lay 31 ,l-9-Q5, thei Defencant movecl the cctrr t for an Eviclent iary, (oraf )l f e = - i s - ^ F r ; -rr+urr-r ! u,* N=wLy Discove:ed E-. ' , , idence :o whrch he aEtachea e_xhib_.1 t5 , Hear ing was had en June - . -e , 1995. The mo. . iox t -s Eo d i_smisswere ceiried a:rc the Ainended gelated l,tction Eo correcE Errors andl{ctj 'on for EvidenEiarrr r{earing were consoridated a:rd Eaken u:rd.erad-t isemenE..

A. TSSIIES BEFCFS TI{E CCIJRT

the lssues raiseci by the Defe.ndani ,s A-nenced Eelatea, Morion.to co*ect Errors as enumerated ;oy rrim are as r-o]rorvs -

3 . Cn Grourds o f Surpr ise

3a " Whet .her the Defendant ,s Ccns t i tuE iona l

(6a)

JJil 18 10: 12Frl"l 5T fC)':l:PH PFt-tSt; t;gP

{P. :1 . , 1 !

r igh t ucder .Ar t i c le I ,

_ _Sect *on 13 o f t i l er r i c ' iana ccnsL: - tu : i cn eo * t t " . t i ve c ross exarn i -na t io r : was v ro ia ted bv e :.he d= = -,.ia.; - ;;;;- _;i= ; ::;:;i;;.T= i ; iT:;;;Tgwi:Eess Lionel Wif. l ia:s" o., wherher he was rhe-rype of perscjr_ r- ikei.r ro be mcii i i ! :"or-fended.by t,he faci rhat, anoiher. p"i=".r*;; ;raj.J_egeclyccrnmj- t ted a cr ine (n""" ia B-as_902) .,?b - No ewider t lar .T_ hear i r :g on Cef endanc ,sMccicn for _ Cfrange 6t

-v:*_.e from Councy fcrFU:_pOse of Eelated l{oEion co corTect Error.

3c. h-hether the defend.ant was d.enied theopFor-cunta". . : .? f_. : . r? by i i , r r i r i - -"ounse1,t ] :a: he wouid not r-o* i been able to havebroken in to

:hu a f feg=O - . , r i cc in ,s

hcrne a t r t_g5oH. , , rc irnscn- - .because "defendanr,= t iJ" l ccunselC- iC nor geE the tape o i -cu .= l " puoJ i " - tesE inron l .

(s ic ) un t i l 15 :b 20 m- cur .es b .e f s re t r ia lbegan cn rJune L , 1_og4-

4 . (Fraue,/Fresecuaor, i .al l l iscor:Cuct )(Seading suppl.ieci b1r Cour-t)

4a. Whethez. _f |1-

tel . r tV pr:osecutor kncrvir :glyused p-er jurec L=st imony to convict , Lhe d.efend_1.tr , c ienying the def enlqanE due trrocess of lawas g'rrarantee_d, by ihe Fif th anc FourteenthAatend,Tents of t .he United St.ates Const icr: t ionand -Ar t rc le I , -sec t ion ] * i , o f the Cccs i iEu t ionof the Sta te o f fn . i rana b" .= l_ ,=e hrs conv ic t ion:1:^trT,u:lqiy used by rhe Depury Frosecutorcausrng fraud to be committea

-up6n Jr=" courr{ in Ci ract examinar icn of L ionel W-* IL:_ams)(supp l i ed by Cour r ) .

{1) } i}:erher. Ehe SLate viof at ed Ehe due:::::=:-_ rishcs of rhe aer=rrG",r

-Ii !:r"*iiJcr-scove=y lmot ion f i leC S/3L/gS)

-

(2) Whether the ie fendanc,s case mustbe d:smrssed, by reason "i

the a_bove {notionf j -1ec s /3L /eS) -

4b - Whei]:.e= Fh? Deputy prosacutor f aj_IeC todisc lose an inc iucemeni f o : . s tsate,s wi tnesaLibby Ch=istiar:.son to cestify by offering thewjtness.

]egal advice t" oULin the defendant ,sau tcmob i l e .

t tar )

._Tijt'l 18 '9E 10: lzFll 5T J{lr-;aPH FR(IS,: IIFF

on the groul,Cs of prosecrrtorj-af misconductr aJxdknowingl-v used by Lhe prose.ut icr ar-r , j ar leqes

4c . Whethsr t_. . ]e a lLeged v i_ct im, L ind, : ( r .m-perj ureci hersetf ;; -=c!i*.rr.d,fr:;;.*oo..[ i;

cour i (extr insi : , - , .=r i i :y . -ng falsely that shewas rap€i bv tr" aefenaanc and the _aefendant

] e f t h l r h o u s e a t 1 0 5 0 - r ] - . - J o h n s o n i R , 7 g g ,8 3 4 - B d 5 l

" = a : r - : j ] o . p . r a . ,

- o , . o . n o r E i w e D e f e n o _an! a key an<i chat CifenOa_n: brcke-i ; ;" . house,.

1 _ T r i a l _ c o u n s e l f a i l e d t o t a J . k t os o n o f d e f e n d a n t E o C a k e h i s s c a t e _

l$, =;::;-"i".3rl55i #*r;#;r*j;, oef elda:rt

4d.. Whether tr .h. Frcsecurion comnitced f :_aud9pon Lhe ccurt b1, =ol.c i-* liig rh;-d;r;J";i =-i"Jc';;ifl.:-i:.H:, =i::i,u1. Defen,Janc di t i nc: se-_ discovery

belore t : : ia l

5 . F :auc , D-*cep: icn ar . , i . su :p r ise

5a. (Whethe: : ) L inby C i r : i s t ia rqon schemed tcoerfraud the court fir firranc:a1 gai:r ancl forthe purpose o f ==r " . rg . - "+1" t jus t i ce .

5b- ga i l "u r "e o i t r ia f counse l to r

1 ' taLk w i th Defe ldant ,s baLkruptcyaEtorney, )avid poelber, .

2 . l i -" ten tc che tape of Jud.1, Lembert, ,

3 . Ca lk w i th Da, r id A lber t abouc' d isso lu t ion proceeq ings ;

4 - talk rvi ;h Dawid Albert about conver_sat ion wi- t ! . f ibby Christ iarr=orrr-- - - .*

5 . fa i l_ r re to c rcss_exami le Lor :Gzzewsk! abcub di :ecl ***nrr l" t ionars i {e rs a t Record EgBf .

The Motio: for Or:al- Evii.entiar,r liearing, on New-ly DiscovereclEv idence f i led on l " tay 31 , 1995 r='q-r ieSts d lsrn:ssal of the ctrarcies

D n , ' r ' :

p erj r:reC testic:oni.r

furcl:e:: grourr.,is for

(L+)

-Tif l 18 '96 10:13Frt ' l r fT f t : l : l=PH PRtl€,1: ' lFF P.5 . , l ' f

rft l_gcono.ucC

fa i iure to

his orig. i :ral- a.r_leEa.ions of f : :aud an. prcsecutorial{ '4a) to f nc lude abuse of d iscc. rerr by Lhe s.agg , ,

d isc l -cse a p lea agreel r renc wi th l jonel h- : l - l :ams.The Cour t na t=s tha t_ i ; r i t ia l l y the f ,e fenoanr pc i ; reed ly

. : *=n ' " ro

to : -nc iude as a parE o ! h is tse laEed Moc ion Eo cor rec tEr ror , the issue c f ine f fec t iwe ass is tance o f ccunse l as noEed ina tr\^renty-seve:t page ciocrrmenE atriached to a MoE.ion hear,C b1r th.eIni.iana Court of A.ooeals; howe.r-er, bot:r prior to hearing anCdu-r ing presentat ion of his cral er- idence. he anrerded the lssuest o a l _ I e g . e i n e f f e c t i v e a s s l _ s t a n c e o f c c u _ r s e L a E j c ; 4 c t L ) , { C ( 1 ) ;5 i r ( t ) , ( .2 ) , t j ) . (4 ) , and (5 ) , S in rs :he : moved the Cour r -_ tca* 'e ' : rq ' his eelateci t r touiorr to ccrrect Erro:-s ro incr.ude the baranceof h is asger t i cns o f ine f 5ec t ive ass :s tance o , : counse_r ra :sedbefcre the court of \ :peals which the co'r t denied. /

t

The ccurt no.es cl:=se rnciude co-rnsel ,s fairure tro carrTom Bradernas asr a charact.er, wirres*l-r ir"re_ to f:1; a Mof ion tcRenedy prosecu-!-oria1 -u"u", fai lure io cal l ca. 'al_ce Tomlcins;fai l : ,re lo ca.rr .r"r i .J*ia:cer,, i- i l ,r=" rc calr. Dnn i q E,r-_ .faiiure ro .i1ljo_lG;;-'?t gI:, .i.r"lr-ii_v*..i*g rape ""T=.rff;li:33iil i '-.aft,1'.g - -:.o ser Pr.cr .,.u.D'. ,l"r-itrrru Eo cross_exarqinef"ii;; r; ;:'"rjjj;.:3"s"*:..*"*:ii. :: in:"nlt"yF*;2100 ro ; ' bcu t 4 :0 -0 p : ; . - - ; Jaauary 2 ! - , - t gg* fa i ru re ro La l k roPauL whltmer re: r.eri-.r hl- 'ga.re nenis rur*s before tr iar_; fa' lureeo move for change of v-ni.*-; fairure Jo-'o'or* Lo di_smiss; farlureto rrie.v-€ to restiict ur.-t." judiciti

"i**.fr; fai_u:.e co exhaustglfl ;::jt:H"" t rairuie ;. " ;;r;- "i.il 'iavi_c Aibert,- raiiure ro

i: : : ;j" - i.,: ii"'5'TiH":;T{S";::"::i:*t*": *: ;; l;f :*:* I il -se4 decision nor_ -;o calt kn";;; ; ; ; ; Max:_o s-ms, rr. ano/orDennis Lannins; ga i rure ; t reLL cr ; -en: - t : (zs) ; t i i mid_rr :a l , .faiLure to ==*L st;;1; i i io=*"*ro=, fai lure ro cal l Tom Mamrnon,sEpD, regarci.ps weikne;;*;-.^ p;t i ; . i ] . lJuri gai ion.

&a)

JUll 18 '9E, 10:13Ar,l 5T J{:}5:PH PRr]SC ,lFF P. 6. ,1 ' l

I n r e a c h i n g r : s c p . n i o n , E h egrcunds into four heaoings: A.Ine f fec t i r ie Ass iscance o f Counse l ;

and D. Surpr ise , Decept :on , Fraud-

couri has grcuFed al l cf E-teI lew lv D iscowe:ed, Ev i ience, . e .

C - p r o s e c u t o r j a f M i s c o n d u c t ;

A. N:riILE Df*qCOVERm_ eVfneNCe?he test fcr grant inc a Mc.Eicr: to ccrracE Erro: based. orf

newl -y d . i scovere i ev i ,Cence ls fcunC a i_ Be l i - w= Sta tg , (1993) , Ind .A p p . , 6 2 5 I I . E . z d , s 7 3 ,

L _ 9rrhen tlas the Ewrdence Discor,-er ed?The defense qiscovered i , ; -bb-g chr isciarrson r s s[atemen. or

rJune 20 ' Lgg4 a : :c the re leas= a f L i :ner wr l l i .ams on J r rne _q , r -gg4af te r the Er ia l ' Den is Burns , -Q ims ' p r i ' " -a te 'nvesc igaror , agreesEi lat he and/or Srns were aware of the. oEher i_nformat:or in theaJf i .dsl ' fss offereC in support of the Amended Belaced Motion Eocor:eet Errors before tr ia l . The information ,* ,as part o. Eurls,pre-t : ia l inrzestrgat ive efforEs except that of David. Fra;1k whowas v r i th S i rns on , fanuary 27 , 1994. Burns gar re h is f i le E .o Rev inI "L i Iner . t r ia l aEtorneyr cn the f i rs t day o f che Cr ia l - (Burns ,D e p o s i t i o n , p . 1 6 f j -

2 ' rs the Ewidense rvate=ial and Rerewant or Me,rely

InpeachinE?

chr is t iansonr s s ta temenE o f June 2c , 1gg4 and i l i j . l i ans ,release on u-une g , 1994 ano Ehe dcci ;ments f i ied iq Cause No -7 r -D049107CF00635 are bo th mater i .a r a r : . re f .evant on the igsue c fprosec-Jcorr-ar mi scoacrrct - ' I 'he ot j :er af f i iavi t . -q prese!, t i .nLpeach_

&q\

.-i:l ' l ; . 7 1 ' :

. ' : lE inatei ' :a: " ' /haen acidress t ; -bb1r chr:-sE. iar lsonrs mocltre io test i -

f ,* , rr i rc ia -cims' moi i- ;e qc t .s: i f rg regardino acts ccmini . ted Janu_ery 4 , 1994, i rd r ' ' c f a re incc ls is ten t * i th her Ees t imcay a .s :o the;: , re Ehe defendant lef : her hcuse cn jar: .uar lr 4, L-f ,94; anc on he=

. re l a t i cns w: ih Ehe oe t=n ia r i i_ Jarua : - r , i3?4 . Davr ,a F :ank ,sa:f ida-;- : t rhajr na-r '= :-m5:eache,] the c:st j -ncnlr of carra peat, . Maric' -r ' ' 's Eest imony at the hearing:mpeachec Llnda sims regard, i_r: .g Lhet i-me his faEhe= rei t on , . ranuari . 4 anc cf fe; :ed his bs.r . :a= thef rcnt croar uincow was br: ,r<*l . rr . ler hi-s mo--he= threw a scapler.L i : lCa S ins -Les t : r ts

th ls c - - - : r - r_ j l3a j_ , - i Cc : . :ber , 1993. Car : i rceTornp'r; n= anci Jan j.ce c:.:---=: a- 5c a:=s=:r:- i nc:achir,S..c - il!o_=t cffhis infor:nat ioa is nei;her mater iai l : .or rele. ,rant Eo the ciarges-brougirt by the sta:e cf rndia;ra rega:dj_ng crj-rnes ar1egec tc bave*cccur rad . o r i Janu=: r , Z \ , i y -9 , : a : . i50 i i - joh_nscn St r ,3€ t , ScuEl :Een i - Tom ts rad .emas is a chara : := : d : -Lne;s -

3 ' rs The E- " - idence c r=d i : i .e , A ;a ' r -eb le and ou :scme

De: :riti l:a;:-,-= ?

A:i of the af f idav: rs c; i l ia ia info=nat icn a1rea,J1i kncwn tcthe defen-ce anc tran be a.: ;ai ia; ie should there be a ne? Errar.Ther-e is no reason tc doul i Ere creCibi . . : iE:, , of Ehe aff iants TheDef enca'E vi e',,r's th:s i.:rf cr.natr-cn as rrsLraws r^rhich break thecamef . ' s hack" on the i . ss r :e o f the c iec i ; i -J . i ry o f L i .nda s im* ,Li-rby ch=ist ianscin and Loi: i G:2e,. ;ski- and. therebir creace reasona_ble dcubt' 'The cor:rt, har.,cg re-r:elved- the irar,Ecriptr, r:ctesvrgorous €'ttracks til the -red'i bili.cy of tr:ese il='ee ryomen duringcross -examinaticn anc can ncF* ccncr.uc.e ;l:at hed. r_riar_ criursei

&r:- 5 t -

JJll 18 =E, 1D: l-4Al.l tiT JL]::;.FH PF:L}S': r:FF P. ::-.'1 -f

used these r^r i tnesses, l i re outcome of Ehe tr_ia1 ,^,olr_id ha.re beend: - f f e rer : t n r r thaE a geccnd ur ia l wcu ld . hawe C i t fe renc res : lEs .Therefore, the cor.=: concr-udes tha,. twc issues raised by the

:::-.rd""a

sur-,zive Ehe Ee.-_! resr for nervlir discovere,l ev:dence,-ootrn are raiseci u:rder .he accusat ioqs of prosecutor la. I . miscond,uctanci addresseci in Ehis nni n. , ._^* r \v1,+iraLi i r ' r 'ney are Libby Chris t iansbn, ssEaeement on f t ' ' .e 2a, i994 and, Ehe al .J-egat ions oi oiscowsry' abuses and re iease o f L icne l , r l iL i iams on June g , 1994.

B. TNEFFECTIVE A-CSIST}.I.ICE O5' CC',JITSELr n L a q r e n c e L : s t a t e , { l _ o s + 1 , f n d , 4 s 4 r . . I . E . z d , l _ 2 9 1 _ , t h e

rnciana supreme court a, iopced the sr: ickrars! test to deternineir : 'ef ' - -ect i ' " re ass i stance of ccunser crainrs . Ttre Deferrd,ant ls , ,NoconLest" al legat ion is ;r lcorporated into t ; re f i rst prong of t ! ,eSt r i ck lans i aaa lys is ; i .e . , ac tuaL per fc rnance o f cou : :se l ^

sinrs has id-ent i . ' ied che for lowing acts or omissi_cns cf histr ia.L counse. l as inaffecLive r

3 c , f a i l u r e _ t o g e t p = a b : a p e ; 4 c ( ! ) f a : l u r e t o t a l k E of ' ra r io J r . ; sb( r i - ra i iu -e to La lk uo Dav id Foe lber , (2 )f ai lure Eo l j .s;en - to -r i r"

, . i / ; ; ; "b.rr tape , (J) fai l_ureEo car 'k to Da'r id Ar-bert abiui t ; ; . d lseclut ion or (4 )failure to tark co eLnerc .o""t -iTury

christiarson andjii""t.tl.l*-rr.#r.i^i"T exam. ne rori di=u*=:.i__Joue herpolice sEaEron ; i;;'Jfi.:"?ilflry sinrs soins to tbe

'1- See footnoce l- for aodi. t ional al legat ionssuJrject Eo the str icr<1ane-iest and deniei i as i fbeen permiLtec.-

- ' t 14 I - L

theof which are

amend.'eenf haC

Lb6)

rj|t 1s '5E, 18:14El,l : lT f()::-PH PRL)S,: ,:FF P. :1.,1!

L. Did Counse.t . Exe:cise Reaso:rable . fudgen;?r 'The cour-- musE 100k at al i r -he ci . rcunsiances tc determine

r"hecher the ider: t i f :ed' acts i ! -e:-e outsid= the wide ranEe of pro-f ess iona l l y comFeeene ass :sLanser , . _ r rawrenc3 , LZg4 - The de iensehas the burden tc overcohe a stro'g presumption Ehat b:*= rav4rer,Kevin r ' t i iner, e:<ercised, reasonable prcfessiorar_ jud.girnenc -

The courr has reviewed 1300 pages of t ranscr icts and thetasLimony of Kev,-n Mi iner as we1l as :ha; of Marro , JT, , DavidFrank, Dav:d' - \ lbe: i , numerous af f idawi:** anc the deposit io_ ofDen is Eurns in reachrng ics de ter rn ina i i cn-

Milner: bras Sirqs, i } : i ro pr iwace "t l*n=al

. _r{e enc*red hisappearance cn Anri l 4, r-gg4 - ?he f l rst , charles .A_qh=r, ha"f i led a staroard. r l0t ion for Discovery vrhel he appeared. for s imsin ,-Tanuary- i{e uras Eucceed,ed by Ray Balogh to whorn the sta:esent the in i : ia l d . i ; covery mater iaL . The c r isccvery consrs ted . o fpo l rce reperEs, t ipeC in te r_* iews, and taoed inE_rv iews, BeforeMj ' lner entered his ar:peara3ce., Barogh a'ci Denis Burns, acl ing aspr ivace inves t iga tor . hac . ass is ted s ims. Each r rac a f i r .e - onMarch 3 , r ,gg4, s ' ims 'anc Ear .ogh had ar reaoy sc ipu la ted tha t s imshad sexual intercourse, arar imercourse and oral sex with trhev ic t im on January Z l - , t 1994.

I t i lner go t the d iscovery f rom ea iogh on Apr i i 4 , 1994. Head-: ised' s ins Eo corne tr . , his off ice -n chicagc just as scon asl"tilner had rawiewe,c the disco'reqa macerial . l le requested, EhatBurls transcribe che t'apes a.c prov-ide lrlrn the Eransc-i rrr- i nne

[cr )

JJfr 18 '96 1A:1541'l : lT .I05:PH PRC)E,: , lFF P . 10, ' 19 '

Sims neveT went Eo chicaqc - Mi-Jreg courd, acr_ reach hir ._, by phone.EvenEual l-rr , Mi1ne: conEac:ed Burns ie have Si;ns canEacE hirn.

A l E h o u g h M i l r e r t e s E i i i e d . i e w a s , , d i f f i c u l t r o g e r S i m sact ively invorvec" i -n his r jefe::se, Ehe two dr i m€e. and did ag:-=ethat consenc ryas the d.ef ense - Mi lner Eook twenty Fag.es oi : lotes- dur ir : -g this neet ing. Mir.ner tcro sirns Ehat he dicl no; want tocal l" Mario, r f r- cr Denais Lanning :o iesEify concernr_ug. Janua r! Iand' s ims agr-ee" Their only disagrreement, acccrd:ng, Eo Mirner,w a s $ i m s , d e c i s i o n n c t E o t e s t i i _ y a L t r i a i .

Burns provided, ll i ln=r the taces of Carla peat anCr,ambert anC his ent i re f j - le oo LTu:1e I , 1994.

I',Ii lner, arr attornelr whose excarj ence incLuies ciie iir.i l_rdredcr im ina l ju ry c r ia ls , acEed w i th r€asonab le p ro fess iona l judgnrencund'er al l the circumsf ances. BetEer comrnunicat ion rvi th sims ma:\ .ha'ze resulted in th.e tr{o men elect ing a oj . f ferenE Eriar. strategyregarding witnesses ro be cal led by the defense- .Sims was cnbond and abte to f ,€wagy7 the djscorrery- ha, l he chcsen to- Mi. tneris nc t respons ib re fo r Burn ,s Eard iness i : r s rpp ly ing h in w iuh t i :eFeat ana Lambert tape transcr ipt io4s - l , t11ner had avaf l_; ,hie thedisco*ery suppl ied hir Ehe stat= and twenty pages of notes frorn.his meeting rr ich sims to Frepare for t r ia l . I r . s t r ia l strrategry,r igorous cross-sxar- inat icr anc c}:oice not eo carr. Mario sims., .Tr-or Denrt is Lanning as wiEnesses or calk to Alberc and Foelber

'are

with:n reasonabl e prof essional j . rCgmenc -

LJllC.y

(t"a)

.ftJl.l 1B '9F- 10:15Al,l :iT J{l:i-PH PRC)Er: 'lFF P. 11. ' .19-

2 - Was Ehe Defendant p re jud iced?

rn "he

second s tep o f tae St r_ ick land tes t , i t i s t ,he burc ienof ihe deient jant to af i - i rmat j_vely prorrs he was prejucl i as6 by hiscoursel 'g cond.uct by showirg che=e is a reasonable probabi l . i ty- EhaE, buL fc r Ehe ur rp rc fess iona l e r ro rs , the resu l t o f the pr -_ceedings ,+rculd. hawe been Cj_f ferent.r s{LrerenE. .Assuming argnrendo, Lhatr * r r -ner was unreascnab le , Ehe cour t must ccns id .e r the Eota l r ty o fev- iderce to ascerrain qr i :ether the defendan: h-as rnet his burCen cf"showingt that Ehe decision r-eached rvour.d, reasonably J_ikely have

been di f ferent absen: t : re er:-ors . ' i .awre!r-s-e-- p, r ,2g+ -None cf the al legat ions of errcr are mater ial or re]evant Eothe charg:es ^ The:-e is no smol:ing giun here. tsoth Foelb=r and

Aioert ts information regarCing specif ic insi .ances when trhe

. :"=*t tuTt angerea che vict im is relevar: t and cumulaEi.u-e on the

' 's6'e of i inda sir .s ' moEive- Mi lner cro.s-exa-mined her exien_s i v e l y o n m c t i " " e ( s e e ; 5 b ( a ) ; ( 3 ) i - D a v i d F r a n r < , s t e s . i m o n ywcuLd noi rrave esEabl ished an al ibr fcr the Burglary nor direct l_yimpeached carla PeeEts iesLimonlr. J" lcreo-, ,er, he wouLa have bol_s tered L ibby chr is t ianson (see: 3c) . Fa i 'u re co ge-_ the tape c f.Tudy Lamberr a:rd, crcss_e.xamine Lori Gizeurski did. not effecE airyissue or eLininate ary opFa:curi j . ty for inrpeachrnent (See.: Sd(Zi;5b(5) l - Dav jd A lber t ccu ld hawe i r rcpeached. L i .bb i r Chr is t ia5 ,son,Fcla.inn never Eo har,,e used a sirringe f=om the packee at the

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deienda*; r * house- i iowsl 's1-, the piesence cf a syringe as thez lcc im c la imed -w.as nei iher rerevant or *__*_r_; : - " : .( s e e : 5 b { 4 ) I -

- - + r Y q r r s u r m a : e r i a l i o : h = c h a r g e s

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O f L : l

r ' ' , - l - r L -L -, j : : ' , trC Of l-ee ;_ i .Ze

thar ; :cr:e ci :he a i r 'eE ia : :c i l s o i e : ro r e i gherccmbi_n3g1qn ,Cepri . ;ed the oef endant c:- hrs

a s s r g t a n c = e r - - c c u n s e i .

C, ?F.C,qET-TTCR.]^\.L IVTISCS}I}L'iCT

The tesi for -or ' :secutcr ial nr sccniu:: :s fc. .u:o at re=:snaqgy : s t a t e ' ( i s 7 6 i - ' i r c - 3 5 5 ) I . f , 2 d 8 4 f . r t i s t w o - o : r c n q e c . . 1 ldj .C l : . re Frcsec.L:tor errgag:e j - j : mis. : : rnduct snci 2: diC t .1e m;sc:1d.. :ctpl-ace t ts d=tendanc irr 3z_a_,-e :e: l_l . ,

I - i vas l i .e : : !1 :sc : ; .1 :u : : ?$ims cj . :es t i r i?t i : :s la: : 'ce cf n: ;c:niucr - Th=-;_ ai_ai lege fraud up' fn the ccu:: ' F: :s-- .- ai 4r. i : -e cra-;-ms misccn, luctriue to r 'ack o ! ^chys : :a l e , . ' . l i enc : r f cor f i ln tps r lmcny; hc l ;ever ,trhe Iack of physlcai e.r i*ence c; _iootpr incs

r- :r t : re s ' 'cw is e-\_

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tt rhe- sBpD Repc:: cj Tr,rq.n,a* l4ammcn pr-,-.,rcei :.. D:scorr-_(-1 . . :ecorj .c. at eb. Sirrs clainrs Manocl.a inciuc,=, j F€r:ured tesci_rrronr/ by giv:-ng Libbi., chrj-r-ti*n-ccn legai a*vlce on hcw to getpossession of an' 'g: Merc=des- Ti :ere i ; n3 er-- .6gr la* af per jrrr i r , .Hs ' christiansc{ admits Ehat cn 'Jr:ne 2t) ,- 19:r4 i;:, smaif c-r.aimscourt ' she tolc i rhe judge she got acv:se frnn her- rawyer, JcirrMarnccha- Ey aff idavi t and in c: len caur: or i ,Tr:r :e i9, 19-qS. :hetesc : t ied tha . in her ne . rv*usress , she mrs-spoke in sma_ l ' c_ra imscourr ' The aevice was fron a 1a'" t fer name,c Galdsm:th. .he fur-

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t rner tes r r i - ie i tha t Marncc i ia specr r - i ca l ry re fused ;o S ive heradv ise .

?he couri concluies chese is no basis for f raud or miseon_Cuct p resented i r Chese Er ro a l iegac icns _rJis Lhirc a1lsga; ien, whi.ch includes abuse cf discor/ery,' fa i lu re to revea l a p lea agreemen: and r - raud, i s mcs t ser ious .A i 4a ' s ims c r 'a ims Marnocha anc i S ta te ,s i . r i cness L ione l w i l l i amsI ied abcut a "d ,ear . " ' s ins h imse l f in - . r -o*uce, ' no €v icence beycadLhe Era::scr ipt to suppor. his alr egaeion; r :owever, rhe stat.=inrroduced Eqro e-rchrbrEs and calIed Tirnothy Mclaughl in to :efuEethe ar ' legaEion- Mclaughf in repr-=s=ntec Licr-e' I* i l l ians i r hisMoi icn tc Mcdify sencence -f i - lec on Ja'uarl , - 28 , r_994. I , lcrraughl intest i f ied that he had no d.ear" or p 'omigs o. I { i r rrams, behaifpr ior- Eo l-rre sims tr ia1. I {e had a conference with l" I ishaelBarnes , p rosecuLor

c f sc . Joseph couf l ry , on Marcb 3c , 1994, d f i61learningr frcrn hi-s c- i - :ent tha-- wi l l ianrs gawe a .sta'ement co t i resEpD o:1 March 2B ' 1-g94' rn his staternenr, wi l l iams sai-d hetaLked r+i th gims at Ehe st, .10s=ph cou:r: ' , rai* ano sims admii ted.the charges - Mqla-ughrin urged Earnes to g,:_ve hr s ccnsent tope::rnl t a modif icat ion of sentence hearing- Barnes said. he,C.th:nk abcuE i t ' on i 'ay 27t, . , Mclaughrin wroce Barnes againseeking hie consent to a hearing. gJir l iasrs test i f ied in sEaee. g=Sirns on June l , l .g94r drrd. on June 7th, Bai-nes caLlea Mcr,auEhi in.wi l l iams' senrence ?ras modif ied. J 'ne g, 1gg4- At tr iaJ-, I f i l l ian-EtesElf ied- on <i :rect examinabion thai he had been giwen no prom-

lses- I ie was quest jcned by* Marnocha abqut hig hcpes ard said he

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arrd reantec his cocceratroh to result i -n a mcd. l t icat ion or- hiss e n t e n c e -

cn i , r re 1g ' 1gg5 ' the ' i ta te adn i teed a le tLe- - d ,a ted Apr i iL9 ' i994 i rom Barnes io the judge wh ic - r reads , , r have re . r -en ted?r i th regard , to I_ , lone l_ , r l i i l rams_ I do no t ob jec t Eo a hear ing on'

a mod: f i ca t ion o f sen tence. The u l t imar ,e dec is ion , ds a rways , i syours ' Respect fu r ly , Mr :hae1 -D - Bar r rss . , , Th is re t ie r i s f i i es tamped Apr i i Zz , r_g94; however , ther .e :s no enE. ry cn the CeS norany i lc icat ion Barnes or the judge car*s.un:ca..ed fo Mctra[Ei: I in whotes t i j i eC he has no ccpy o f t . :e le t te r i r : h is f i i e - There is noe ' r :dence LhaF_ Wi l l iams was aware o f Lhe fe t :e r -The s ta te , ' ^ rh i :h se : l r . . a< ic ic iona i d iscp-7g1.y =o Mi lner , i ssi lent as to whether- Mi-r ner receir ,_ed inf ormai icn regarding

Mclaughl in 's i r farch 30, j -_a94 conference wich Barnes or Ehe leLterf i led Apr : l 22 , igg4- The c r ,ear in {e rence is EhaE he d id no t .No tes t imony re fu tes th is j ,n fe rence.

Afreement and perjuriz

IVhen a s taEe.s w i tness is tesE i fy i r :g Fursuar lc to anind'rsement' the faiiure of :he golrernment co put rh.e ind.ucementbefore Ehe lury is a cr.ear vior.at ion or- due process - Rosg :LH e l m e , 6 3 8 5 ' . 2 d 9 7 g ( z e h c i r . , 1 g 8 o ) . T h e s t a r e h a s a n a f f i r m i i _t i ve du ty to d isc rose ar r agreenencs w iEh po teu t ia l . w i tnesseswhich may hawe infLuenced the r+i tness- - ,Sj .rns L= *qtate ( I-9g3),rnd ' 455 N 'E- 2d 3S6. l9 'nen a pron- i -se is made, by a fe110w prose_cut . r , the t r ia l p r :osecutor ,s r -a i r .u re to pu t t re , ,p romr_seo be forethe jury is a.ot depencenc on personar knowredEe. rriar. cc,urrsel

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r s h e l d t o e , , s i - - o u l d . h a v e k : : , o w n , , s t a i _ r d a r C - G is E a t . e s , 4 0 s u . s . l _ 5 c f r _ e g 2 ) .

v e n r r u c l : i : ' G r q l i g v ' u n r t e d

The esister:ce of a 'r agreement i s a f ac'Lial g-uest i cn tc bedetemine. by t rs : r ia r ' cou ' i ' p rcg :og lE lL* S taEe, ( igg8J , :nd . -53a N 'E ' 2d ' 725 ' The burden is upon the ce ;encant r co es .a_br ish'

the ex is tence c f an agreenen i . He must da nc=e than c rea te a , .in fe rence i r r the face o f a , l i rec r_ cea ia l . t s - .and y= sLate (1gs5)i n d - 4 5 9 N ' E ' 2 d ' 1 0 3 2 . 1 0 3 S . i { e r e , s i r n s p o i n c s c o w i r . l i a m s ,r e r e a s s c n r f u n e g ' 1 g g 4 a n d B a r n e s , l e t i e r - o f A p r i l , L g g 4 , b o t haf whrch create an inference of ar i agrreenent _ This inference isre fu t t id by th_ d i rec t den ia l c f bo th the w i tness aqc f h ie lawyer .T h i s c a s e i s a k i n : o F e o o 1 e _ . r _ F l o r e s - ( 1 g S 9 ) f l l . , S 3 e N . E .2 d , 4 9 1 - r n F l o r e s , t h e w i t n e s s i e s t i f i e a o n c r o 6 s _ e x a m i n a c i o nthaL a:thcugrr he had rror rnacie a , ,deal , , w:th the state in exchangefor h is tes t imony, ,Le r ,hope, {d ) to ge t sone her .p f rom Lhe s ta te reAt :o rnev 'n Frc r -es had a perc ing ease; the s ta .e had to tc h ls -Iarryer ic r+oulc. consid.er his rruthful_ test imony in arr iv ing aE afur ther dec ie ion as co how to p roceed on the w i tness ,s pend ingcase ' The rev:ewi-ng court ccnciuded. that i t wourd ncr sal / thet r -a r tes t imony *as per ju r ious - The w i tness had no . ac tua i fymade a i .eal with Ehe SraEe in exchange for :esr: fy ingr against theDe-fenCanE, and hherefore, his sta:e:nent. t raL he e: iqrected , ,help,,

f rom the Siate was not a nr isrepresentat, ion.

s i rns had th ree po ten t ia l w i tnesses ic ca l l i r r suppor t o f thernference Ehat ar- ag.reeaenE existed, anci that l f : - t l iams comrnit ted.perfura" He chose ta pr-esenl n 'ne - ncl 3ar-nes, who bad been

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ordered to be av,aiLaele; not. iv i l l iarnsr i tor Mclaugh' in. He hasfai ied to meet his burisn. The coure ccncl.udes t l :ere was . .oagrreenient; there is i ic shcwi irg oi pe: ju:ry_ or prosecuEcriai ni '_cond,uc t an t i : i s i ssue.

Disqc.rerv Abr:seErad:C L* var , r lan= , 3 , ,3 U.S. g3 ( l -961) ; _Unr ;ed Sra tes_ v .E a s l e v , 4 7 3 i i - s . 5 6 7 . 8 7 L r d ( g r e s ) a n d G i g l i g v , u n i t r e d g t d E e s ,405 u ' s ' 150 (7972) , cJ .ear ly esLabr ish tha t the cons :_ i . tu t i cna l i yprotected cue process : :ght of defend,ancs requires dj_sclosure otimpeachment mater ial as r+e' i as mater ial which isexcurparorv, consisEenr, , , r rEh o'=rr ia i ; " -^" : l : . - : :

Inore drrect lvng concern witr t i : 'e just iceor - the f inc ing o f gu i r t , a cons t i tu t ionar -

e r50r ocqurs ana theccnwict ion must be zevs3-3sd oniy i f the e-r, , idence is mat=ria. inthe sense thaE i ts suppressiqp uaierrnines t le scnfrd,er:ce j -n theoutcome of the t : iar-- s.nrey, ac 4g1_ The revlewingr court mustdeterrni 'ne wheEher there is a reascnable probabi l i .y that had thedisqlcsure been rnace b.r the grovernmenc to the defense, the resurco f the Er ia l wouLd have been d i f fe ren t - Baq ley a t 4gS-In Indiana, disclcsure is required on].y when deal ing witho f t r r= -ess agreements ' McBroa ig v ' s ta te (1ggBJ, rnc i . 530 N.E, 2d ,725 - Ar, e:<press agreemef,t does noE exist i f a witness te,st i f iesfaworagly with the hope of leniancy and rh,e stare neither con_f j . rnrs nor denies that hope to the rcir ,ness- prel iminary discus_sions are nct maeters which are su_bject Eo mardatory dis:1.sure,L o n e z - 5 s r 4 r e , ( 1 9 e 8 ) , I n d _ s 2 7 N . E . 2 d 1 1 1 9 . ! l 2 g .

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Howevs:=' Eheie is :ase ialv tc the canrrar,v r .r ih ich piaces agreater buz 'den an the gcvernrnenc- rn Re, : tEeg r r . ' a re ,o , ggg F-2 .S 7 8 , 5 B Z i e r h C i r . 1 - 9 8 , q ) , t h e c c : i r t i : e l c i t h a t :The f

. d*.ur,fi'rrt:,t'": _3?==in3:i.:" JtgereernenE, howe.rer, is naEconst j.h" ;;;i*';o=L,ffi "i.i".i;;='*ffi;ff;'i:,:-:***::

rn ReutteE' the gove:nmeaE uas a!. , rare that i ts key witnesshad che parore boari 's agreemenc to Fo*rt l ror: .e , h:s corunutat j onhear ing unEi l a f te r h is Le :_E imcny a t Reu lEgr r . t r ia l _ in fac t ,to the last day of t l :e hrrar. The defense ccunsel was not awarebhe witness fuqd ap*Dfied fo.r a ccffrnutat lc._n of senEer]ce or Ehat h;shearing befo:e Ehe paroie boasi e,136 schedu.ed- The court fcundthat trr is inrormaEicn cou'c hawe been used by Lhe r iefense toatEack the cred' ibi l : t i r of Lhe u, i tness - The state argnrei c 'at thecrerdibi l i ty of a conwicted f e. l s1 is ar ready suspec. ani theaddit i .anal informaEicn regari ing his pe:rdingr hearing would nothave effected his trutrhfulne.s. The court rejecteci tha. arg-r imentand ccncluci 'ed' the cross-examinat ion

could, have been eiqrni f icaatryrnere effecr ive had tbe disclosure been rnade- Thi_= qourE agrreesarrd f inds that the pending m,ot ior: ,s sEaEus and Barnes letLerf i led Apri1 22, Lgsl should l :^awe been d, j .sclosed. The fai lure rod isc losa is e r ro r

iravr-ng concluded that i -ai lure tc d.; sel0se the le. ter f i ledApri l 22 ' 1gg4 const icuted e*or, the eourt nust turn ro thesecond prongi of Ehe Eaol=L tes-*- A Erad:r v{-olat i -on d.oes rotauLcmatical ly enciEr 'e the d'efendanE tc E c,e!v, t r ia l , ab5snl _qhowr

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ing t l :at there i s scme reasonabre probabri i ty t, ,aE the :esurts ofEhe tr ia-I wculci othe::-.,vise have been :.":::..",ffI.ffi,;

i s a p robabr l i t y "su f f i c lenE to u 'dermine conf ider rce in the

; ; j ; : : ; ; , * j

a l ' " un: ted sate= =* weinrraub , a7r F,2c tzs j

rn Reut te{ ' the r* r i toess ' |s crec ib i } r - t r / was the cenLrar_ i .ssueof the t r ia l - rn l ight o f thar , Ehe rev iewing eour t concr .udecthat there was a reascnable probabi l i ty o f a d i f ferent outcone.rrere' the i ' / i tness was not 4 ktry wieness. r inda sims was the keywj- tness ' The prasecutor n 'ever ra ferred. to wi i l iams, tesEimonv incJ.osing argurnenb ercept gq say in reb,:teal..

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a" get somethjngscrnethin,n

o"t of ic?i,* **v-i'F. ;"ii,, ;? ;!, " *';i:' iit ; t:Lx;F"T +f-i*i

whether us ing the eecond prong o f Baq ley c r Mar ionado- ; i .e . .the "g ra , /= per i l , , tesE or the f ina l p roogr o f the Ee l f - tes t , thecour. concludes Ehat Ehe defendanc has fai led to neet ' r is burcen-I Iad the r 'ecrer 'been disclcsei, the results of the tr iar. wouldhave .been b.o dif ferenE,. Che def endalt qperi lk.

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d e n i e d .

Done in

The DefendanE, s Arnended

CRDER.

Bel:ceci Mocion _r-o Correct Errors is

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'Jea_rineTSt. u-oseph Superior cc,lrt

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