alister having no evidence against dale helmi fowler his deputy a trooper and two prosecutors who were not sued with withheld material brady evidence fabricated evidence and outside the immunity offered by trial testimony agreed to present false fabricated and perjured testimony as a result an innocent man spent nearly fifteen pfeiffer and martin finding that the brady evidence was material that it was not cumulative it was corroborative and under missouri law it was admissible contrary to that the is the conspiracy that was involved that de railed justice from the very beginning i find it interesting that in the preceding case it was argued the kind of conspiracy there needed to be proved beyond a reasonable doubt the conspiracy in our case the zone would be proved by a preponderance and at the summary judgment stage we are entitled to all the reasonable inferences the reasonable inferences are substantial there was no physical evidence no trace evidence no eye witness evidence against dale helmi there was literally not figuratively no evidence against dale helming and substantial amount of evidence pointed to his father for having killed dale's mother in the middle of ted enormous divorce and in order to secure the conviction of dale helmi the  to prosecutors outside the tent of immunity the trial presumes and they're not sued of course because they have absolute prosecutorial immunity because they were engaging in a prosecutorial function conspired with the sheriff's deputy and a trooper and created a piece of fiction that was presented inside the immunity tent throughout the trial ask him if he would take a statement from dale which did in that statement process the trooper as he may lawfully do lied and said that his mother had recently died and dale in the course of that said he was sorry i'm sorry and then the trooper ask if he participated in the murder of his mother norma and dale said i did not in the trooper wrote those two facts down in in his report and two years later at trial having had no other participation in the norma helmick murder case westfall is called as the thirtieth and last witness in the state's case the jury in the courtroom felt deadly silent and he came back and he said to be westfall i paraphrasing i didn't memorize the transcript as to that last conversation you were talking about with the defendant dale helmi did he ever deny killing his mother answer no sir he did not and it was in the troopers report that he in fact had deny that was one aspect of this handicapped by not having the brady evidence significant brady evidence not on this point about not on this point not on this one of us felt been impeached he could have been he could have been impeached but he put perjure testimony on he he in his deposition in this case westfall said he read his report just minutes before he went into the courtroom so as similarly staged was this this country kitchen incident in which two months before the death of norma ted the her husband had actually thrown hot coffee on her at the country kitchen in jefferson city and the police have been called they wrote a report and they had bad this came out in the in the case and so fowler then testified his testimony itself is immune we acknowledge but it was so scripted it had to have been concocted  reasonable inference that we believe we're entitled to outside the immunity didn't he ask him if he was aware of a similar incident of which there was none he said yes and did this happen just a couple of days before kitchen and started testifying that what she knew she learned from somebody else and one sure when it was a hearsay objection was the same when the sheriff testified there should have been an objection for lack of foundation i suppose  that the sheriff just heard about this from somebody shortly before the trial and it was all based on hearsay it completely was the problem how is that in one nine hundred three violation if he testified to hearsay and nobody objected to it it should have been objected to have so so so so what's going on here i think the reasonable inference is we we have an innocent man on trial for which there is no evidence they had the prosecutor have occurred under this newly elected sheriff it was his first case we had both prosecutors were running for political office at the time one was running for congress and he taught he had press availabilities during recess as or after trial in the courthouse that this was a that this was justice gone awry and the sheriff also withheld the fact that five to fifteen times in the months preceding her death and norma had come to him out of fear of ted not dale and had asked about a gun and how to protect herself and he had not disclosed those and instead this manufactured evidence that this the what the he had filed that the sheriff had actually served ted the father with the divorce papers and she come to him about some current concerns about property she had always everything that he said the trial was that she had come to him about property issues but what he failed to disclose what that five to fifteen times i had come to him out of fear of ted and couple in with getting a gun so it's the non disclosure of her fear tiara i think the word was this is typically done a divorce case to preserve the distribution of property so that if in fact there was a forthcoming hearing on the on the temporary restraining order the week after norma was murdered which adds to the a motive for the father of the killer wasn't there also evidence though that she asked about a gun permit she had that yes she had asked about a gun permit but what was what was withheld was that it was because of her fear of ted not the fear of dale as the sheriff admitted later in the twenty one fifteen p c r and what makes this really important together with the country kitchen matter is because they fabricated the country kitchen incident involving dale in order to show that he must have had some motive to kill his mother she was he was angry enough two days before murder murder to throw hot coffee at him and so the withholding of this brady material it was not cumulative of any other evidence that she was afraid of ted makes that important let me ask you one question that this baby of yes you're referring to from the sheriff would have been admissible now on page two fifty they say at the time the undisclosed evidence would have been properly determined to be inadmissible are they saying that because of the new evidence about the purse that created a better inference that ted may have been involved that the undisclosed evidence yes and immiscible in the evidence of the fear of ted was not cumulative because there had been no other evidence of fear of ted so he said either with or without the subsequent person evidence it would have been admissible the of the seven claims have now been abandoned so we're down to the three claims of alleged brady violations alleged fabrication of evidence and alleged conspiracy with regard to brady the issue is was there even a brady violation because it's not a violation if evidence is available to the defense from other sources or already possessed by the defendant and evidence disclosed even during the trial which is in play in this case because of norm's notes it came up for the argument that the sheriff knew that she norma complained five to fifteen times about abuse by ted let's hear that well first of all i think that that's a misstatement of what the testimony had contacted himself or his office on a number of occasions he wasn't asked any follow up questions about well how many later with the benefit of that trial transcript behaviors counsel drill down and said well how many occasions and he said well i don't know he said will will give us an estimate he finally said five to fifteen but that's off the top of my head and it's a guess so now we've we've all what about the subject of the contacts the subject of the contacts it as he said in the trial related to the divorce proceedings and he wasn't asked any further questions about it what begs the question is that why wasn't he because the defense had at his disposal norma's notes which talked about seeing about registering a handgun they had enormous notes which talked about her being afraid of ted and that she was afraid ted could abuse her that he had abused her in the past and might again these are documents in defense counsel's possession at the time of trial so it's a red herring to suggest that because defense counsel elected not to ask more specific questions of the sheriff that the sheriff's testimony was in any way improper or inappropriate he testified he answered the questions that were asked of him on that point i thought the argument was that this state didn't disclose that she had complained to the sheriff about abuse and that if that had been disclosed then it would have prompted the questions that you're saying or not asked but i'm saying that first of all when you read the testimony of chair feller at the later proceedings and in this deposition i don't think that the testimony really supports that he says that she supports that that it was a lot of abuse he said she gave him about a handgun she lived out in the country she was alone he did not say that it was about ten he said yes i knew they were going through a divorce and are having troubles but the main things that she was contacting me about rick as he was getting he was he was getting rid of property and i was telling her norma talk to your lawyer your divorce lawyer about that but my other point is is that the defense counsel had in its possession norma's own notes that said he has abused me in the past and i fear he will do it again and in the same note says check on handgun permit i can give you the exact appendix for the notes yes go ahead the appendix to seventy seven and in addition the existence of those notes was actually first brought up by defense counsel in question is deputy backus at two ninety two two ninety three  indicating he was already aware of the notes because he said did you pick up some notes off the coffee table and that's when the issue came up and back you said yes and i have them back at the office he reappeared the next day with the notes interestingly the defense counsel then objected to the introduction of the notes even though the notes had evidence of handgun and abuse furthermore on the issue the handgun permit prosecutor show meyer testified in this case in his deposition that he was aware that norma had sought a handgun permit from sheriff fowler so even assuming for the sake of argument that there was a material brady violation the information was in the hands of the prosecutor so it would be the prosecutor's duty at that point to turn it over the same is true with the prosecutor the notes not the notes that the information that norma had seen the sh it was what every time an action is filed or was it something different that was requested by no one because of some particular extraordinary concern about so i understand the question that it actually contained both there was a temporary restraining order preventing him from the supposing a property but it also restrained him from abusing her threatening to abuser and i think the distinction in now we would talk about an order of protection but in this case it was a temporary restraining order but there was testimony including from the sheriff at trial that yes you would expect and i know that  served it yes you would expect there would be a provision in there referencing no threats no physical violence so my question is is that is that something that's just done in every case i don't know the answer to that i know that as as as mr benson pointed out there was at least at one point a hearing date set on the temporary restraining order so that would indicate to me that it was more than just your  knowledge as they've both admitted that she had been abused or she claimed to have been abused in the past and that she it according to dale him extends the money of his deposition had told him that she was afraid he was going to kill or so they had all of this information bottom line was they had no intention of pursuing it this defense counsel for whatever reason chose to stand on his theory of corpus the lek tide that the state would not be able to prove a murder it and the witness just says yes as though the witness knew about it from some other you know some legitimacy source do i like it no i don't like it but if i'm asked of her first of all the the problem with the point is is that the the country kitchen it's that clearly came to be by virtue of a witness coming forward to the prosecutor this carolyn mckinley just before day two of the trial right after what i or and said hate and there's another waitress that says she saw dale do the same think so at that point so rather than try to find out who saw it well kno they tell the sheriff and have you know they they did they they'd been attempted to find the other witness but the significance is is that on the record they endorsed they they asked and received late indorsement of both the waitress who said she heard overheard this and the waitress that they were going to try to find so they endorse these two in court in front of defense counsel defense counsel made no objection so any and later when the waitress tried and did testify as to what she overheard the other waitress say that yeah i just saw her son throw coffee in her face then jordan finally objected on the basis of hearsay as it be stricken the point is he knew he knew the source of the information he knew it was indorsed by the prosecutor immediately before the trial he knew that it was based on hearsay he made no objection when and fowler wasn't asked as much as it exactly what was was referenced in the in the direct he was asked were you aware of and altercation at the country kitchen involving dale yes he didn't say anything about coffee when was it he said recently but i mean it wasn't as specific as what the waiters in it up testifying to and again the the actual proper lots of things in this trial were improper your  allowed it because we know that because he already had an evidence that this was straight from the share that the sheriff considered ted a suspect that let me just that she had contacted him on a number of occasions who were here i am i am not certain how the prosecutors elected to handle some of the matters that they handled a denial by deal that's not exactly out he was he was asked a difficult compound question that said did he ever and particularly in this last conversation deny and so then what was follow answered no but it are contrary to specific evidence in the record because sheriff hour for example testified and if there's been no dispute to this fact that he did not know he was going to be ask those questions about the country kitchen there's no contrary evidence to rebut that so it's not a reasonable ever say because a prosecutor meets with a witness in advance a trial that means something improper happened but primarily want to talk about the sins of others i am talking about defense counsel it's part of the reason this was overturned was ineffective assistance of counsel by an impaired attorney hired by the other suspect ted to represent the accused who continue to pursue this theory of corpus lect i who refused to use a mountain of evidence that was at his disposal that pointed toward ted elected not to attack any of the state's theories in any credible way and chose not to present alibi evidence that was readily available if there's a  if there's evidence of a conspiracy it would only be as between the process excuse me as between the defense counsel and dale how mix father who hired him august yes lots of things in this trial were improper that's what counsel conceded there were lots of things and and this is just collett and pointed out we are entitled to the reasonable inferences at this point and in summary summary judgment and it's important especially with respect to our conspiracy claim that that be viewed as one event not piecemeal and slicing it up but false testimony and meeting between prosecutors witnesses alone isn't sufficient to make friends and you know that if they acknowledge that they met before trial that's common to prepare witnesses for trial in this case it's important because what happened at trial was so orchestrated and i don't need to repeat that because we spell that out in our briefs but it was so orchestrated it only resulting in fabricated evidence or perjured testimony it only could fifteen about the five to fifteen visits and her fear of ted i believe is in the appendix at three fifty eight and three eighty five the t r o that was served was boilerplate they testified this is typical boilerplate that was served in conjunction with the dissolution  petition the sheriff was told in advance about the coffee kitchen a witness carol mckinney being there whether or not he was told he was going to be about it doesn't matter he was questioned about it and he gave false testimony based on what he said what later said was unsubstantiated and had not been investigated and while he had the power of the sheriff he could have found tried to find those missing witnesses but he didn't i'm sorry that my time has expired expired thank you thank you for the argument thank you to bot