Petition for Writ of Certiorari — William Baham, Petitioner v. Tim Hooper, Warden

Supreme Court briefSep 8, 2022

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In The

SUPREME COURT OF THE UNITED STATES

Supreme Court, U.S.

FILED

SEP - 8 2022

OFFICE OF THE CLERK

In re William Bah am,

Appellant

Versus

Tim Hooper, Warden, et. ux,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO

THE U.S. FIFTH CIRCUIT COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

Respectfully Submitted By:

/>W Us.

William Baham. #601802

CBC,___________

Louisiana State Penitentiary

Angola, Louisiana 70712

IV. QUESTIONS PRESENTED

Whether the 14th Amendment, imposes upon the States of Louisiana the obligation

to refrain from systemic, purposeful deprivations of substantive federal

constitutional rights, as a settled matter federal law?

What impact, if any, does known use of perjured testimony have on the fair

administration of justice in this case and the compliance with substantive 14th

Amendment Protections?

Whether, when the state court forum condones ineffective assistance of counsel,

at that point, are criminal defendants obligated to fend for themselves or do they

have substantive constitutional standing to demand that the State Court forum

conform to the mandates of the 6th Amendment or else no conviction can be had?

IV.

Whether the State of Louisiana can cherry-pick when it conforms with substantive

Federal Constitutional Protections? Or Whether it can choose to disregard them at

will knowing no superior federal court will intervene to preserve the Supremacy

of the Federal Constitution?

Whether the Federal Constitution, prohibitsthe State of Louisiana from enforcing

its manufactured Judicial Orders for maintaining the “forced” physical custody of

William Baham under the auspices of an imposed sentence wherein all were

secured in violation of substantive protections which no state can legally abridge,

dim inish, nor disregard?

VI.

Whether deprivations of the PJght of Confrontation results in a violation of

substantive Due Process and substantive Equal protection as provided for in the

14th Amendment?

VIII.

Pursuant the substantive nature of 6m and 14a Amendments, does a person have a

right to defend themselves against criminal accusations by way of placing before

the trial jury DNA and GSR expert witnesses on his own behalf?

V. PARTIES TO THE PROCEEDINGS

[ ] All Parties appeal' in the caption of the case on the cover page

[X] Ail Parties do not appeal' in the caption of the case on the cover page. A list all parties to the

proceeding in the court whose judgment is the subject of this petition is as follows:

Appellant:

William Baham. #601802

CBC, Upper Right #_____

Louisiana State Penitentiary

Angola, Louisiana 70712

RESPONDENTS:

Tim Hooper, Warden, LSP

Louisiana State Penitentiary

Angola, LA 70712

Jason Williams, District Attorney

619 South White Street

New Orleans, Louisiana 70119

There are no parties to this action within the scope of Supreme Court Rule 29.1.

VI.

Table of Contents

Motion For Leave To Proceed In Forma Pauperis.....................

Petition For Writ Of Certiorari.....

IV. Questions Presented.....

V. Parties To The Proceedings.

VI. Table Of Contents..

VII. Index Of Appendices..........

...4

vnr

IX. Opinions Below.

X. Jurisdiction.

XI. Constitutional And Statutory Provisions Involved......

...I

XII. Statement Of The Case.

XIII. Reasons For Granting The Petition,

Statement Of Facts.

Relevant History Of Case,

Questions Of Law.

The Issues,

(1) Felonious prosecution due to die use of a bill of Information to charge him with

second degree murder...... ..................................... ................................................ ............... ...... 4

(2) Prosecutorial misconduct and fraud upon the court based upon the prosecution

improperly introducing hearsay testimony, perjured testimony, withholding Brady evidence and

vouching for witness credibility.................................................................................................... . 4

(3) the trial court abused its discretion by failing to sequester the jury, depriving Baham of

a fair trial by interfering without providing the defense an opportunity to confront his accuser

under the confrontation clause, forcing a witness by threat to testify, and improperly mling on

inadmissible perjury testimony...........................*..................................................................

(4) The right to confrontation was violated...............................,..... .......... ...............

(5) Insufficient evidence supported the identification of Baham as the perpetrator...,

(6) Gunshot residue and DMA testing would exonerate him......................................

;...4

(7) Ineffective Assistance of trial Counsel forfailing to file a motion to quash, failing to

investigate, and pleading Baham guilty before the jury...........................................................

(8) Ineffective assistance of appellate counsel hi failing to raise insufficiency of the

evidence and other issues on appeal...

.......5

In The Absence Of Available State Court Remedy...... .......

Claim 1,

Standard Of Review.

♦Trial court abused its discretion..

Standard of Review.

♦Ineffective assistance of counsel...

Standard Of Review.*....

....23

Direct Appeal Issues

Direct Appeal Issue No. 1,

Direct Appeal Issue No:2

Conclusion

Certificate/Verification Of Service*.***.

.....38

Affidavit Of Service,

ii.

VII. INDEX OF APPENDICES

Appendix A Court:

Docket Number:

Date Decided:

Judge:

Disposition;

Ruling Denying COA

United States Fifth Circuit Court ofAppeal

21-30286

June 16, 2022

Jennifer Walker Elrod

Denied COA

Appendix B Court:

Docket Number:

Date Decided:

Judge:

Disposition;

Brief Requesting COA

United States Fifth Circuit Court ofAppeal

21-30286

June 16, 2022 - On July 8, 2022, judgment issued as mandate.

Jennifer Walker Elrod

Denied (Direct Review)

Appendix C Court:

Docket Number:

Date Decided:

Judges:

Disposition:

Order Denying Habeas relief and dismissing with prejudice

United States District Court, Eastern District of Louisiana

19-2157

May 6, 2021

Hon. Miiiazzo

Denied

Appendix D Court:

Docket Number:

Date Decided:

Judge:

Disposition;

Traverse to Magistrate's Report and Recommendation

United States District Court, Eastern District of Louisiana

19-2157

May 6, 2021

Appendix E Court:

Docket Number:

Date Decided:

Judge:

Disposition:

Magistrate Report and Recommendation

United States District Court, Eastern District of Louisiana

19-2157

May 6, 2021

Appendix F Court;

Docket Number:

Date Decided:

Judge:

Disposition:

Federal Habeas Petition

United States District Court, Eastern District of Louisiana

19-2157

May 6, 2021

Recommended denial and dismissal oi'habeas petition.

Recommended denial aid dismissal of habeas petition.

Had just been lodged and was under intake review at that time.

iii

VIII.

FEDERAL CONSTITUTION

Due Process............... .................... ............ .................. ..............

.........1

Fifth Amendment..........................................................................

Fourteenth Amendment..... ...........................................................

14th Amendment,........................................................................

....3

5th Amendment................................................................. ..........

6th Amendment............................................................................

14th Amendment Due Process Right............................................

Const Amend. 14,.................. .................. ............ ....... ............

Sixth Amendment.........................................................................

Supremacy Clause of the United States Constitution....................

.,,,..,,,,3

U.S, Const., Amend 6 and 14....... ........ ............. .........................

.......18

United States Constitutional Amendments Six and Fourteen........

........ 23

14th Amendment..,.............

..3, 7, 10, 14,17, 21, 23, 28, 30, 32, 35, 37

1st Amendment.,,,,,,,,,,,.,,....

********** ——........ ..... .............1L 13, 16d„ 35

5th Amendment...,..... ........

..................

....35

6th Amendment............... .

.......................10, 13, 17, 23, 26, 32, 35

Confrontation Clause..........

................................................13, 17

Due Process........ .......... .

...........7,17p„ 18, 21, 23 26p„ 27p., 35

Equal Protection..................

........................... 21, 23p,, 27p., 30, 35

Fifth Amendment.............. .

First Amendment.................

•3, 7,15p.

Fourteenth Amendment's Equal Protection Clause......... .

.........37

Supremacy Clause of the United States Constitution..... .....

.......... 9

The Establishment Clause.... .................. ....................... .

..,,,,.,..,13

U.S. Constitution’s Art. 1, Section - 9 (CL.3) and 10...........

..34

United States Constitution and Article 1, § 2, and 3.............

l IAA4J***

FEDERAL CASES

Arizona v. Fulminate, 499 U.S. 279, 111 S.Ct. 1246...............................................

Berger v. United States, 295 U.S, 78, 88, 55 S.Ct, 629, 633, 79 L.Ed. 1314 (1935).

Brady v. Maryland..................................................................................................

Brady v, Maryland, 373 U.S. 83, 83 S.Ct. 1194, lGL.Ed.2d. 215 (1963)................

Crawford v, Washington, 466 U.S, 668,104 S.Ct. 2052, 80 L.Ed,2d 674 (1973)....

Crisp v. Duckworth, 743 F.2d 580, 584 (7th Cir. 1984)..........................................

Duncan v. Louisiana, 391 U.S, 145,88 S.Ct, 1444,(La. 1968)............................... .

Giglio v. U.S., 405 U.S, 150 to 154, 92 S.Ct. 763 to 766, 31 L.Ed.2d 104 (1972)...

Hale v. United States, 435 R2d 737 (1970)..............................................................

Harper v, Kely, 916 F.2d 54, 57 (1990)....................................................................

Herrera v. Coilins, 506 U.S. 390 to 399, 113 S.Ct. 853,122 L.Ed.2d 203................

iv.

..31

18, 23

..13

.20

Ill re Oliver, 333 U.S* 257,60 S.Ct* 499, 92 L.Ed.2d 682 (1348).......................

In re Parte, 357 So*2d 302 (La. 1978)...............................'...............................

............14

Iq re Winship..................................................... .................... ......................... .

..... 14, 23

Irvin v. Dowd, 366 U.S. 717, 722, 81 S.CT. 1639,1642, 6 L.Ed.2d 751 (1961).

Kem Search Inc. v. Sheffield, 434 So.2d 1067 (La. 1983).................................

..6, 14

Kimmelman v. Morrison, 477 U.S. 365,106 S.Q. 2574, 2583-87 (1986...........

16, 25

Malloy v. Hogan, 378 U.S. 1, 84 S.Q. 1489, 12 L.Ed.2d 653 (1964).................

Marshall v. United States, 360 U.S. 310, 312, 79 S.CT. 1171, 3 L,Ed.2d 1250 (1959)..... ...... 21

McWilliams v. United States, 394 F.2d 41, 44 (8th Cir. 1968).......................................... ...... 21

Medina v. California, 505 U.S. 437, 446 to 468,112 S.Ct. 2572,120 L.Ed.2d 353..........

Miller v. Pate, 386 U.S. 1-7, 87 S.Ct. 785-788, 17 L.Ed.2d 690 (1967)............................

Monachelli v. Warden, 884 F.2d 749, 745-755 (1939).......................................................

Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)........................

Napue v. Illinois, 360 U.S. 262 to 269, 79 S.Ct. 1173 to 1177, 3 L.Ed.2d. 1217 (1959)....

Ohio v. Roberts, 448 U.S. 56,100 S.Ct. 2531, 65 L.Ed.2d 597.

.....7,15, 17

PampUn v. Mason, 364 R2d 1, 6 (5th Cir. 1966)..,...................

Patrlarea v. United States, 402 F.2d 314 (1st Cir. 1968), cert. Denied, 393 U.S. 1022, 21 L.Ed.2d

567, 89 S.Ct. 633 (1969).......................................................................................................

Pointer v\ Texas, 380 U.S. 400, 85 S.Ct. 1065,13 L.Ed.2d 923 (1965.................................

Pyle v. Kansas, 317 U.S. 213-216, 63 S.Ct. 177-179, 87 L.Ed.2d 214 (1942).....................

Rommel v. Estelle, 590 R2d 1214..................................................................... ..................

,22

Schhip v. Delo, 513 U.S. 238, 115 S.Ct. 851........................................................................

Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.CT. 1507,1522,16 L.Ed.2d 600 (1966)............ 20

Stone v. Powell, 428 U.S. 465 (1976)........................................................... .......

Strickland v. Washington, 466 U.S. 668,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),

Strickland, at 689,104 S.Ct. at 2065.....................................................................

.......25

Sullivan v. Louisiana. 508 U.S. 275, 278 (1933)............................ .....................

....21

U.S. v. Bagiey. 473 U.S. 667 to 682,105 S.Ct. 3375 to 3383, 87 L.Ed.2d 481 (1985)........ ........13

United States v. Bursten, 453 F.2d 605, 610-611 (5th Cir. 1971)...... ............... ..

.,,,31

United States v. Murrah, 888 F.2d 24 (5 Cir. 1989)...............................................

United States v. Phillips, 664 F.2d 971 (5th Cir. 1981)....................... ..................

United States v. Young, 470 U.S. 1, 18, 105 S.Ct. 1038, 84 L.Ed.2d 1, 14 (1985)

Washington v. Watkins, 655 E2d 1346,1355-56, (5th Cir. 1981).........................

Washington v, Watkins, 665 F.2d 1346 (5th Cir. 1981)......................... ............... .

Whitaker v. Assoc. Credit Services, Inc., 946 F.2d 1222 (6th Cir. 1991)..............

Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed.2d 791 (1935)............

FEDERAL STATUTES

28 § 1254(1)...................

28 U.S.C. § 1257(a).......

28 U.S.C. § 2101(e)........

S.Ct. Rule 10(a)..............

S.Ct. Rule 10(b)..............

S.Ct. Rule 10(c)..............

..,.1

STATE CONSTITUTION

La. Const., Art. 1 § 2 and 13.... .

STATE STATUTES

R.S. 14:121.............................

La. C.Cr.P. Art. 17.............. .

La. C.Cr.P. Art. 716 to 729.6....

La. C.Cr.P. Ait. 719.................

La, C.Cr.P. Art. 791.................

La. C.E, 801 to 808(B)...........

La. R.S, 14:68........... ...........

R.S. 15:499 - 501(B)(1).........

R.S.14:121..............................

.,.,14

............19

.... ,,,.,19

STATE CASES

State v. Brumfield, 96-2667 (La. 10/20/98), 737 So.2d 660, 663..,.

State v. Craighead, 114 La. 85, 38 So. 28 (1905)............................

State v. Davis, 399 So.2d. 1168 (La. 1981).....................................

State v. Jones, 408 so.2d, 1285 (La. 1982)..... ................................

State v, Knight, 611 3o,2d 381 (La. 1993)......................................

State v. Luquette, 275 So.2d 396 (1973)........................................

State v. Mims. 329 5o.2d 686 (La. 1976)........................................

State v. Mitchell, 275 So,2d 98 (La. 1973).... ............ ....................

State v. Newton, 328 So.2d 110 (La. 1976).....................................

State v, Parker, 372 So.2d 1037 (La.1979)......................................

State v. Talbot, 490 So.2d 861 (La. 1980).......................................

State v. Thomas, 705 La. 550, 17 So. 814 (La. 1944).....................

vi.

20.

....16

...... 19

IX. OPINIONS BELOW

Direct Review

State of Louisiana v. William Bah am.

179 So.3cI 613 (La Supreme Court,)ct. 30, 2015)

On Rehearing?

State of Louisiana v. William Bah am,

178 So.3d 138 (La Supreme Court, Sept. 18, 2015)

State of Louisiana

151 So.3d 698, (4th Circuit, Oct. 1, 2014 )

Mlltatn Baham,.

X. .JURISDICTION

The Louisiana Supreme Court as well as the State-level Fourth Circuit Court of Appeal,

erroneously, denied Appellant’s Request for Federal Habeas Relief.

The jurisdiction of this Honorable court is hereby invoked pursuant 28 § 1254(1) and/or 28

U.S.C. § 1257(a) and/or 28 U.S. C § 2101(e).

XI. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendm ent to the United States Constitution provides, in pertinent part:

No person .... shall be deprived of life, liberty, or property, without due

process of law...

The Sixth Amendment to the United States Constitution provides, in pertinent part:

In all criminal prosecutions, the accused shall enjoy a speedy and public

trial, by an impartial jury of the State and district wherein the crime shall

have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him; to have

compulsory process for obtaining Witnesses in his favor, and to have the

Assistance of Counsel for his defence.

The Fourteenth AmendmetU to the United States Constitution, provides, in pertinent part:

. . . nor shall any State deprive any person of life, liberty, or property,

without due process of law...

XII. STATEMENT OF THE Cl ASF.

The instant petitioner has been charged and prosecuted for the offense of 2^ Degree

Murder, contrary to the laws of Louisiana At the close of the prosecution the trial jury returned a

verdict of guilty, the trial court accepted the verdict and set a date for sentencing. Petitioner was hailed

into court once more and the sentence of life imprisonment without the benefit of probation, parole and

suspension of sentence were denied to him.

The petitioner exhausted state court direct appeal procedures and the conviction and sentence

were upheld. Petitioner subsequently invoked the State-level post-conviction process, none of which

netted petitioner the relief sought. After exhausting his claims throughout the state court forum,

petitioner invoked the Federal Habeas process for state prisoners. Despite the attempt to activate the

substantive protections of the Federal Constitution by presenting the deprivations of constitutional

lights to Article- III judges, still, relief was withheld. It is for this reason, the instant petitioner presents

his claims to this Honorable Court of the United States in an attempt to vindicate his rights and have

this Honorable make it known through its opinion that the Constitution of the United States remains the

Law of the Land, and no state is allowed to subordinate it through its laws or practices.

XIII. REASONS FOR GRANTING THE PETITION

The Appellant contends that the lower courts have grossly departed from proper constitutional

proceedings as described in S,Ct. Rule 10(a), 10(b) and 10(e), by ruling that: Appellant s had not

established himself entitled to the relief sought as prescribed by the Constitution of the United States

on the merits of his issues raised. It is likely that a majority of the court will vote to reverse the

judgment below, as the applicant has exhausted all state remedies and thoroughly presented Federal

Questions of Law which affect the rights of those accused of crimes throughout the State of Louisiana

Appellant remains in custody in violation of the Constitution or laws and/or treatise of the

United States. This Appellant has no other remedy available before any other court wherein he can

obtain the relief besides this one.

Lastly, since the questions raised go beyond petitioner as an

individual and involve national substantive federal constitutional protections, it would be both in

furtherance of this Honorable Court's Supervisory and Appellee Jurisdiction to make decisions upon

which other courts can rely when confronted with the same question of Federal Law.

Further, the decisions of the State Courts squarely raise several Federal Constitutional

Questions, call into question the efficacy of this courts decisions within the geographical

boundaries of the State of Louisiana, at raise concerns of a state ability to thwart fundamental

constitutional protections. These questions, to the satisfaction of the Louisiana form of

government and its traditions and practices, have net previously been decided by this Honorable

Court in a direct manner. This Honorable Court is called upon to decide whether a State which signed

on to be a part of the greater Union known as the United States, can opt in and out of compliance with

federal Constitutional mandates at will, when and how it sees fit to either recognize, disregard, or

partially conform fco interpretations of the United States Constitution and how that applies within the

borders of each individual state which is party to the union, or set the stage for only partial occasional

compliance, if and when desired.

STATEMENT OF FACTS

William Baham was indicted by an Orleans Parish Grand Jury for the offense of 2M Degree

Murder of Errol Meeks. Petitioner tendered a not guilty plea Gn May 24, 2011. There were trial

proceedings, the jury returning a guilty verdict and an appeal pursued to no avail.

Hie State's case summary is that the instant petitioner and a man named Donald had a physical

altercation in the restroom at Friar Tucks which was broken up by a bouncer Daniel! Lawrence. Several

people stated that it was petitioner who left, return and shot the victim. Petitioner was tried July 16-18,

2012. Post-trial motions were filed and denied Direct appeal was pursued and remedies exhaust in

each available court until arriving at this one at this time.

Petitioner maintains his exhausted claims, especially those regarding the suppression of Brady

Material, prosecutorial misconduct Ineffective assistance of counsel (Trial and Appellate), Gunshot

Residue and DNA's ability to exonerate him, insufficiency Of Evidence, Violation of Right to

Confrontation, and Felonious Prosecution due to bill of Information to charge him until 2nd Degree

Murder.

The facts and circumstances raises additional Federal Constitutional Questions which all are

incorporated within the realm of this pleading.

1. Does the Supremacy Clause of the United States Constitution continue to reign supreme over state

law and the state's attempt's to interpret and apply federal law?

2. Are State Court Judges bound by a U.S. Supreme Court precedent on facts and circumstances

present in a case which involves the same settled principle of law which was heard in a prior case

before this Honorable Court?

3. Is there a Federal remedy on direct review when the State Courts arrive at a decision which is

“contrary to” clearly established Federal Law as determined by the United States Supreme Court?

4, Whether Louisiana Courts have established a pattern of adherence or defiance towards prior

decisions of tills Honorable Court?

RELEVANT HISTORY OF C ASE

The claims presented in this petition for Writ of Certiorari to the United States 5m Circuit Court

of Appeal, have all been exhausted through the direct review process for the State of Louisiana, the

Collateral Review Process as embodied within Louisiana Law- and the Federal Judiciary which was

accessed through theAEDPA.

The federal district court, denied relief and COA. Petitioner subsequently sought and was

denied COA by the U.S. 5th Circuit Court of Appeal and hereby presents to this Honorable Court his

timely Writ of Certiorari.

QUESTIONS OF LAW

Can the local practices of the State of Louisiana, which defy Federal Constitutional protections,

be permitted to usurp prior decisions of this Honorable United States Supreme Court?

THE ISSUES

Appellant alleges the unavailability of a state court remedy and gross deviation from federal

constitutional protections in the following areas of constitutional law:

(1) Felonious prosecution due to the use of a bill of Information to charge

him with second degree murder;

(2) Prosecutorial misconduct and fraud upon the court based upon the

prosecution Improperly introducing hearsay testimony, perjured testimony,

withholding Brady evidence and vouching for witness credibility;

(3) the trial court abused its discretion by failing to sequester the jury,

depriving Baham of a fair trial by interfering without providing the

defense an opportunity to confront his accuser under the confrontation

clause, forcing a witness by threat to testify, and improperly ruling on

inadmissible perjury testimony;

(4) The right to confrontation was violated;

(5) Insufficient evidence supported the identification of Baham as the

perpetrator.;

(6) Gunshot residue and DNA testing would exonerate him;

(?) Ineffective Assistance of trial Counsel for failing to file a motion to

quash, failing to investigate, and pleading Baham guilty before the jury;

aid

(S) Ineffective assistance of appellate counsel in failing to raise

insufficiency of the evidence and other issues on appeal

IN THE ABSENCE OF AVAILABLE STATE COURT REMEDY

Your appellant herein has presented his claims to the several court of the State, no effort

resulting in a remedy which comports with the requirements and/or minimal standards of constitutional

protections due to one accused of a crime. Because no remedy is available at the state court level,

appellant's only remedy lies with this Honorable Court on Writ of Certiorari to this Honorable Court.

NOW INTO COURT comes, Willi mi Baham, who respectfully moves this Honorable Court to

grant Certiorari and consider and the Federal Question(s) presented:

CLAIM 1

In his presentation of his issues to this Honorable Court, Mr. Baham, contended that the

prosecution committed fraud upon the court by introducing:

1.) improper hearsay testimony,

2.) perjured false testimony, withholding Brady exculpatory evidence, and

3.) vouching for its witnesses credibility.

STANDARD OF REMEW

Under Brady and its progeny, exculpatory, and impeachment evidence is material and its

suppression violates due process if there is any reasonable likelihood it could have affected the

judgment of the juiy. Wearty v. Cain. 136 S.Ct. 1002, 1006 (2016). The Magistrate's failure to afford

petitioner the fill! benefits of these holdings are the premise for this challenge to the Magistrate's report.

The evidence suppressed by the prosecution in this case is material under that standard.

As this the United States Supreme Court's decisions applying and elaborating on Brady make

clear, materiality depends in part on the strength of die government's ease. Where the governments

case gainst the defendant is already weak, even evidence of “relatively minor importance” may he

enough to change the outcome of the trial - and therefore be material. United States v. Agurs, 427 U.S.

97, 113 (1976).

Although this is an old principle of law, the Magistrate simply by-passed application of this

standard to petitioner's case. As a result of this, petitioner is requesting that the Honorable District

Judge review this matter anew. Although petitioner's first pleading may not have been the most

eloquent, it cannot be said that in the expertise of the reviewing court, that no set of facts can be

discerned which may entitle petitioner to the relief sought.

Amazingly, this case and the turn of the facts do not perfectly match what occurred in the

Wearrv case, but, they do not run completely afoul of the V/earry situation, as there are many

similarities which should inspire a second look at the instant case.

Notably, in the State of Louisiana, which is bound to the protections set forth in the Constitution

of the United States pursuant the Supremacy Clause, the coded Art. 2004, from the State's Civil Code

provides that:

“any judgment obtained by fraud or ill practices may be annulled.”

As the petitioner sufficiently set forth, said Article is not limited to cases of actual fraud or

intentional wrongdoing, but is sufficiently broad to encompass all situations wherein a judgment is

rendered through some improper practice or procedure. Kem Search Inc v. Sheffield. 434 So.2d 1067

(La 1983).

In the record of this case, the record bears that, Prosecutor Napoli' committed misconduct by

knowingly having witnesses testify falsely and further were allowed to give damaging hearsay

testimony. In addition thereto, Detective Robert Ponson misrepresented in his testimony that nothing

significant existed, except he spoke with Friar Tuck's bartender Kaitlin Walsh, who collected the shell

casings from the scene in a towel, to keep them from being kicked around by people outside. (Tr.

Trans., pg. 20, 24-25). This officer did not get any identification information from anyone.

Next, witness Detective Kevin Williams, (Tr. Trans., pg. 31), only alleges he spoke to the Friar

Tucks bouncer Mr. Darnell Lawrence. Who alleges Mr. Lawrence stated to him “WilP shot Meeks.

This amounted to testimony which would tend to carry the weight of proving guilt, and as such was

inherently subject to the 6th Am endm

*s Confront at i on Clause.

In a series of statements Mr. Lawrence, gave statements which tended to provide motive and the

precursor to the ultimately tragic outcome. According to Mr. Lawrence, Errol told him someone was

fighting in the men's room. He proceeded to explain that one of “Will's” friends tried to keep him out

by blocking the door. Will is alleged to have sat at the bar and finished a drink. He testified that after

Will left, he heard gunshots. At tills point, Mr. Lawrence was the only one on the bar's porch and never

saw anyone fleeing, he simply spoke ofjust seeing Errol laying on the ground. (Tr. Trans, pg. 143-146).

Detectives reviewed the video in this case and concluded that, the video showed nothing

significant. And this aligns with Del. Hurst statement; He had no clear depictions from the video, he

relied on other information.

Names came later, video did not specifically show who was who (Tr. Trans, pg. 38, 55-56).

Det. Hurst alleges that Robert Lotz gave him Will's real name (Trans, pg. 59). The issue here is one of

the necessity ofbeing able to confront and cross-examine this person pursuant the

Amen&nent and

tlie holdings in Davis v, Alaska

In providing his verbal narrative, D. Lawrence stated that Robert Lotz called Austin on

cellphone (Tr. Trans, pg. 155 to 156), who never mentions any names to Austin or Austin to police Jan

17, 2011, or during trial. Petitioner argues here that, Mr. Robert Lotz did not testify and much of the

information leading to any names came from this person. Ohio v. Roberts. 448 U.S. 56, 63 (1980),

confrontation and hearsay violations involving Mr. Baham's 6*1 Ammchnmt privileges. In fact, Mr. R.

Lotz's nephew Derrick Lotz stated: He was told Wills name by him, he didn't know his name (Tr. Trans.

p. 167).

In review of the arguments already presented where this matter was presented in full, there are:

1.)

critical inconsistencies;

2-)

there are instances where the testimony cannot be reconciled with

the evidence, and

3.)

where the testimony goes completely afoul of the evidence, Mr.

Marks was allowed to falsely declare before the jury, while under

oath that he did not know Pop or Ruff.

A review of the record, the reports from the pre-trial record and the facts of the case show this

testimony was known to be false the moment it came out of the witness's mouth and the prosecution.

using this witness to make their case did nothing to correct the testimony. The Government's case

against Baham was not strong to begin with, even without the suppressed evidence to undermine it.

There was no physical evidence beyond shell casings. The governments case instead depended on

three purported eyewitnesses and would be co-defendants who allegedly claimed that Baham was the

person who fired the shot(s) which took the life of the deceased.

If the state's case was so strong, why would the State withhold evidence that multiple witnesses

described someone else as being the shooter, and that person wore a red sweater? Those witnesses

declared that they saw someone else other than your instant petitioner running away after the shooting.

The sharing of this evidence with a jury takes on a new7 meaning in Louisiana because, had

petitioner been tried under the 6* Ameruhient premise, he only would have had to convince a single

juror to vote a different way. Despite petitioner maintaining his innocence, he only had to prove to that

single juror that he was not guilty of the grade of offense charged. Thai could have been achieved had

the State not suppressed and redacted critical evidence necessary for the attorney representing

petitioner as an accused preparing for trial, to prepare a defense making use of the suppressed Brady

material.

Tlie United States Supreme Court has long held that 'The special role played by the American

Prosecutor in the search for truth in criminal trials. “Stricklerv. Greene, 527 U.S. 263, 281 (1999); see

id. (prosecutors do not merely represent “an ordinary party to a controversy” (quotation omitted)) The

government's interest... in a criminal prosecution is not that it shall win a case, but that justice shall be

done.” Berger v. United States. 295 U.S. 78, 88 (1935). it is thus “as much [the government's] duty to

refrain from improper methods calculated to product a wrongful conviction as it is to use every

legitimate means to bring about ajust one.” Id.

In Brady, the court held that the government's suppression of evidence favorable to a criminal

defendant violates due process where, the evidence is material to guilt or punishment, id. at 87; see

Smith v. Cain. 132 S.Ct. 627, 630 (2012) (Under Brady, the State violates a defendant's right to due

process if it withholds evidence that is favorable to the defense and material to the defendant's guilt or

punishment.”). The “overriding concern” of the Brady Rule is “the justice of the finding of guilt.”

Agurs. 427 U.S. at 112. Brady protects defendant's fair trial rights by “presenting] the criminal trial.

as distinct from the prosecutor's private deliberations, as the chosen forum for ascertaining the truth

about criminal accusations.” Kvies v. Whitley. 514 U.S. 419, 440 (1995) And court's must consider the

cumulative effect of all the suppressed evidence favorable to the defense. IOvies. supra, Wearry. supra.

What needs to be brought to the forefront of the instant record and the Honorable Court's

considerations is the fact that the materiality inquiry is not the same as a sufficiency of the evidence

test. See (Kyles, supra At 434-35 & 435 n.S; Striefeier. 527 U.S. at 290). Nor is the question one

“whether the defendant would more likely than not have received a different verdict with the evidence.”

Kvies, 514 U.S. at 434. The question instead is “whether the likelihood of a different result is great

enough to 'undermine confidence in the outcome of the trial.** Smith, 132 S.Ct. at. 630 (alteration in

original) (quoting Kyles. 514 U.S. at 434). A defendant accordingly “can prevail” on a Bradv claim

even if... the undisclosed information may not have affected the jury's verdict. “ Wearry. 136 S.Ct. at

1006 n. 6. All that is necessary is a “reasonable likelihood” that it would have.

Mr. Marks had his statement read and given to the jury because it places him on the scene in the

“blue vehicle” with Mr. Robert Lotz, another person who never testified. The statements he makes,

says; “he don't know Pop or Ruff, and met them that night (Jan. 17, 2011, (Tr. Trans, pg. 221), is

contrary to the state's entire case.

The suppressed evidence of the alternative shooter dressed in the red sweater coupled with the

suppressed evidence and accessibility to other crime scene witnesses, Baham was deprived of his most

critical opportunity to put forth before the trial jury a much stronger defense, Baham would have, been

able to challenge the very core of the state's case and pointed to a convincing alternative perpetrator

who could have committed this crime as the witnesses (who did not have self-interests with avoiding

charges) have so alluded. These statements place another at the crime scene, fleeing before police

arrived. And several of the witnesses provided similar accounts of this alternative perpetrator and his

actions which incite the belief of probable guilt. It has not been unheard of for the government

agreeing at post-conviction evidentiary hearing that “when an eyewitness says someone else did it, that

is core Brady material”) Lambert v. Beard. 537 F. App'x 78, 86 (3El Cir. 2013), Brady and Kyles*

514 U.S. at 445-49.

Applying these principles in the instant case, Detective Hurst identified someone other than Mr.

Baham as the shooter from the video. If this is true, the Magistrate has taken the position that petitioner

should be found or deemed guilty without a full and fair trial. Detective D. Pratt, took the statement

(Brady material) from a person that saw the shooter and gave a description of him which corroborated

Mr. Derrick Lotz as the guy with red sweater and certain head shape (Tr. Trans, pg. 171). Donald Oliver

is the person “Will” got into a fight with, not Meeks.

Throughout this case we find that, petitioner had no reason to want to harm Meeks the victim in

this case. So, rt this junction in the case, the proper question before the Magistrate is not whether

10.

petitioner's claims should he dismissed as meritless. Hie actual question before the court or which

should be considered from the existing or from an expanded record is, “Whether William Baharn is

even the actual shooter in this case?” Because if not, all the factual and constitutional deprivations are

of the greatest importance before, they all worked together to deprive the wrong person of their liberty

for a crime committed by another.

To show the prosecution's use of perjury, contrary to their testimony, the video in the club

would show:

i.) The bouncer gave false testimony because no one broke up the fight;

2.) Errol Meeks never came to the men's room;

3.) This witness never saw a gun, the shooting, nor knew any of these people before that night

(Jan. 17, 2011); and that was conceded to and

4.) Mr. Oliver doesn't know Mitchell Marks.

Therefore, prosecution knew7 these witnesses were going to testify falsely. He knew Mr. Marks

was going to peijure himself which is why he would not give him immunity or assert his $'k

Amendment privileged. Mr. Pelfry was not at Friar Tucks Bar, he is a witness directly impounding the

hearsay nature of the state's case. No one actually saw who shot Mr. Meeks. Lawrence heard this,

Oliver heard this; and Derrick Lotz heard this from the only witness who never shows up to testifyRobert Lotz. Detective Hurst never followed Det. Desmond Pratt's witness information. The Friar

Tucks Bar videos disclose a guy with a hat shooting victim Errol Meeks, and Larry Brown handing that

person something. The prosecution/Detectives simply chose to go with the simpler case.

Since the Supreme Court decided Mooney v. Holohan. 294 U.S. 103, 55 S.Ct 340, 79 L.£d.2d

791 (1935), it has been firmly established that the prosecution’s knowing use of perjured testimony, or

of fabricated evidence, as well as its failure to take remedial measures to mitigate the damaging effect

of such testimony and evidence, violates the Fourteenth Amendment's Due Process Clause. See:

11.

Miller v. Pate, 386 U.S. 1-7,87 S.Ct 785*788, 17 L.Ed.2d 690 (1967); Pvle v. Kansas. 317 U.S. 213216, 63 S.Ct. 177-179, 87 L.Ed.2d 214 (1942).

In a previous filing Mr. Baham submitted newly obtained evidence (a Newspaper dipping)

from a relative, which contains I

committing

This is additional

Information which the prosecution in this case has withheld all along despite its ethically mandated

duty under Brady to disclose such information even after trial.

Amazingly, the Magistrate mentions nothing of this. The prosecution, hut prosecuting Mitchell

Marks for the commission of perjury in the trial of this case, that means that the prosecution believed in

this so much until it through all its resources behind prosecuting Mr. Marks after trial but NEVER

disclosed tills to petitioner as a matter of ethical obligation and the ongoing obligation to reveal Brady

material even after the fact of a trial.

Tills clearly establishes why prosecution would not give Mr. Marks immunity, and that he knew

this witness was giving false testimony at the trial itself Again, this is un-refuted evidence that the

prosecution knowingly used false testimony in order to secure die conviction under challenge. The

Magistrate should re-review this matter with an eye slighted towards justice, not. simply afFmning a

conviction and/or sentence. Before trial, the prosecution had already recorded a phone conversation of

Marks and his girlfriend; Marks had just come from being forced to give an audio statement and was

already in jail. (Tr. Trans, pg. 102 to 109)

Further, prosecutor Napoli was clearly aware that there was a report overflowing with the

names and identities of the witnesses never brought to court who actually did see who the shooter was

whom shot Mr. Meeks. These undisclosed witnesses and give a detailed description of that shooter.

(Tr. Trans, pg. 79 to 80). This information had been taken down by Det. Pratt. In order to stifle the

accused efforts to prove that he was not the shooter in the instant case, the State-Actors deliberately

12.

Scratched out these names because they were in direct conflict with what his witnesses were going to

allege.

Counsel Fuller identified the report and what it contains (Tr. Trans, pg. 81 to 83), state objected

and trial judge stated counsel was not entitled to witnesses names or statements (Tr. mms. pg. 83).

These statements contain favorable material to Mr. Baham's defense of innocence. Still the state failed

to turn them over, even after discovery had been filed. Tills would constitute violations of Brady v.

Maryland. 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d. 215 (1963); see also Giglio v. U.S..405 U.S. 150

to 154, 92 S.Ct. 763 to 766, 31 L.Ed.2d 104 (1972), which requires disclosure of evidence regarding

the credibility of the witness that may be determinative of guilt or innocence. Citing; Nap lie v.

Illinois. 360 U.S. 262 to 269, 79 S.Ct. 1173 to 1177, 3 L.Ed.2d. 1217 (1959) which holds;

“Non-disclosure of evidence affecting credibility constitutes a denial of Due

Process.”

Under Brady, evidence is material, if there is a reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome. U.S. v. Bagiev, 473

U.S. 667 to 682,105 S.Ct. 3375 to 3383, 87 L.Ed.2d481 (1985), which holds:

"Taken together, these undisclosed items would not only radically have

affected the defense at petitioner's trial.”

Det. Pratt's witness information conveys, but would in their totality, have affected the entire truth

gathering enterprise before the court. Under Schlnp v. Dclo. 513 U.S. 298, 115 S.Ct. 851, at 862, as

under Bagley, supra. The court holds a clear and convincing evidence test which challenges the

confidence In the outcome.

TKIs non-disclosure and the videos of Friar Tucks Bar, clearly exonerate Mr. Baham. As a result

of the prosecution's suppression of exculpatory evidence of the actual perpetrator, the wrong person

stands convicted of a crime which the prosecution has footage of another committing. The state's

13.

admittance of false perjured testimonies, and the commission of fraud upon the court are the pillars

which hold up this erroneous conviction. The record bears that the trial judge never read Mr. Marks

statement before admitting it into, evidence and nor before allowing the jury to have it for deliberations

(Th Trans, pg. 102 to 109). Still the State had the court force witnesses Derrick Lotz and Mitchell

Marks to testify falsely. La. R.S. 14:68, and R.S.14:121f See: State v. Newton. 328 So.2d 110 (La

1976); In re Parker. 357 So.2d 302 (La 1978).

Further, Det. Hurst fabricated his testimony, Darnell Lawrence fabricated his testimony, Damon

Harris, Mr. Baham's Uncle, verified Det. Hurst committed perjury because a warrant was issued and

there are some clothing taken from Mr. Baham’s Grandmother's home. These items were admitted into

evidence after Mr. Baham's trial, which is also contained in Det. Hurst report. The lingering questions

are: Who identified Mitchell Marks? Mr. Napoli!, who did Mr. Napoli show picked Mi*. Bah am from

the only evidence of the crime (the video)? He did!. Therefore, Mr. Napoli transgressed against trial

court orders to, not deal with any issues that affects Mr. Marks fi’Amendnent right by involving him.

Mr. Napoli, read an unadmitted statement to establish guilt against his fraudulent contentions that, this

witness was only admitted for identification purposes. (Tr. Trans, pg. 271 to 279).

Because Mr. Bah am could not receive a fair tidal due to prosecutions misconduct this case must

be reversed, for a new trial. In conclusion of prosecution misconduct, Mr. Napoli vouched for its

witnesses credibility attacking defense counsel, attacking defense failure to put on Grandmother, who

he knows was not allowed by the court (Tr. Trans, pg. 296), violating Mr. Baham's Due Process right to

a fair and impartial trial, and his

Amendment right to confrontation through illegal practices. In re

Win ship, supra; Kern Search v. Sheffield, supra; Herrera v. Collins. 506 U.S. 390 to 399, 113 S.Ct.

853,122 L.Ed.2d 203, and MMna.y,. CaUCorrua, 505 U.S. 437, 446 to 468, 112 S.Ct. 2572, 120

L.Ed.2d 353.

14.

*€onfrontation

Mi*. Baham contends that his right to confront his accuser was violated.

Prosecutor Napoli introduced statements through the perjured testimony of Det. Robert Hurst.

of the person; "Robert Lotz”, who allegedly gave critical information that supposedly implicates Mr.

Baham. Only Det. Hurst alleges what: Robert Lotz stated However, other witnesses like, Derrick

Lotz, his nephew. Who was threatened by police, prosecution, and his family, mention R. Lotz too. No

names other than that were given (Trans, pg. 155 to 169). The state's suggestion through Det. Hurst, is

this is where he got Mr. Baham’s address or identification but this detective clearly stated; “he did not

execute a warrant, because no one could give him that information” (Trans, pg. 72 to 74). What was

vital about Mr. Robert Lotz is that, state's witness Mitchell Marks had a previous inadmissible

statement read to the jury against his 5*1 Amendment privilege that; “alleges he was in die car (blue)

with Robert Lotz (Ruff), and Mr. Bali am was in the truck, (white) with Derrick Lotz (Pop) (Trans, pg.

170,218).

The R.S. 15:499 -- 501(B)(1) requires that prosecution give prior notice that its witness will not

appeal- to testify, and give petitioner a prior opportunity to cross examine that witness.

Ohio v.

Roberts. 448 U.S. 56, 100 S^Ct 2531, 65 L.Ed.2d 597; Crawford v. Washington. 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1973). State continually introduced ‘testimonial communications” of

witnesses knowing they would not be testifying. Mr. Robert Lotz was for the purpose of imparting guilt

of Mr. Baham in this crime, through Mr. Marks; Det. Hurst, and Gregory Pelfrey.

(A). First, Mi*. Gregory Pelfrey alleges he overheard Mr. Baham confessing

to crime (TV. Trans, pg. 238 to 240).

How did he know “Will's” name, and that his charge was still open? In continuing; Prosecutor

Napoli never set a foundation to admit Mr. Gregory. In this episode, the government's counsel is

equally faulted for not having corrected counsel's deficiency and for violating defendant's basic right to

confrontation. Petitioner was denied his right to confront the witnesses against him as well as the need

15.

for an objection during this proceeding when the State introduced hearsay evidence as the truth of the

matter asserted, thereby violating defendant's light to confront the evidence against him. These failures

together deprived Petitioner of a fair trial and denied him of the opportunity to present a defense.

Therefore, “cause should be found for defendant's default in light of counsel's deficient performance.”

See: Murray v. Carrier. 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Hence, this court

should be reluctant to Petitioner's mistakes made by his attorney. Whitaker v. Assoc. Credit Services

Ina, 946 F.2d 1222 (6th Cir. 1991); State _v;_Kmght, 611 So/2d 381 (La. 1993) (Justice Watson J: “The

Failures, if any, may warrant attorney sanctions but any such failures cannot imputed to the accused.”).

Petitioners claim “is transparently of the variety falling without Stone v. Powell, 428 U.S. 465 (1976)

since it attempts to measure the breach of a right arising under the confrontation rather than presenting

a claim primarily relying on the exclusionary or another Judge-made rule.” Cf. Stone. 428 U.S. 495,

96 S.Ct. 3052; K|mmdmmy,Mon:ison, 477 U.S. 365, 106 S.Ct. 2574, 2583-87 (1986).

As held in Kimmclman. supra, it is the State that was required to give the defendant counsel.

Therefore, the State is at fault for not providing Petitioner with an advocate for his cause. Of course,

this means fault must fall on the State or with no one at all. This is especially true when we consider

that, in a large majority of the cases defendant are unaware of counsel's failure until they secure the aid

of another lawyer. Generally, they do not know that trial counsel's performance was deficient until they

have talked with other to proceed in post-conviction proceedings. It is in their research for PCR that

they first learn of Counsel's deficient and prejudicial performance and harm caused by counsel's

unprofessional performance. See: Kmimelman supra.

Pelfrey's hearsay testimony, La. C.E. SOI to 808(B), what Mr. Pelfrey staled; He did to obtain

this information, fits the compulsion requirements, but lacks authentication, that he tried to report this

information to any prison authorities. Prosecutor Napoli over-shadowed this burden of production, to

introduce this witness by giving him information to make him reliable or believable. Disregarding the

16.

fact that, Mr. Pe!frey6 was given a deal (Tr. Trans, pg. 245-246), that he got probation (3) three years

suspended and(2) two years active probation for simple burglary.

As to Det. Robert Hurst, He could not say, who led him to Robert Lotz or Mitchell Marks. He

did not show or establish; what gave him probable cause. However, he did state: He got “WilifsMreai

name from Robert Lotz. Defense objected to identification (Tr. Trans, pg. 59-60). The difficulty is that

Mr. Lotz was not present, and no identification line-up were ever conducted with Robert Lotz. Hence,

at the suppression hearing, where Det. R. Hurst testified, its unclear who these witnesses were and state

took advantage to appeal this as being Mr. Robert Lotz, who was not going to testify. The only time

identification came up during trial of photo line-ups, was concerning Det. R. Hurst, it was not in

questioning Darrell Lawrence, Kaitlin Walsh, Donald Oliver, Gregory Pelfrey, Larry Brown, but

Detrick Lotz and Mitchell Marks. Stale's inadmissible reference to guilt based on Robert Lotz for

identification was prejudicial. If Mr. Baham was directly identified by Robert Lotz as implied, which

affects his guilt, to be charged with this offense.

Mr. Baham have a

Amendment right to face-to-face confrontation and examination of that

witnessed Ohio v. Roberts, supra The impact of Mr. R. Lotz identification, naming a “suspect” or Mr.

Baham, is only verified by Det. Robert Hurst, who committed perjury and established he had no

physical evidence to link Mr. Baham. (Tr. Trans, pg. 83). This gave the appearance of guilt 'weight.

This was the only purpose for which Det. Robert Hurst sought to arrest Mr. Baham. Still, Mr. Baham

was not given a prior opportunity to cross examine Robert Lotz, where state knew it would not allow

him to testify. Further, without this presence at trial, Mr. Baham could not defend against any hearsay

statements made regarding him (R. Lotz) which impacted his guilt

It was never verified by any other state witness that, Mr. Baham wus observed shooting “Mi-.

Errol Meeks” victim. To identify Mr. William Baham in this offense, clearly impacted the jury's

verdict of guilt beyond areasonable doubt See: Harper v. Kdy> 916 F.2d 54, 5? (1990); Monachelii v.

17.

Warden. 884 F.2d '/49, 745-755 (1989). For example; D. Oliva* never witnessed it (Tr. Trans, pg.

136); D. Lawrence never witnessed it (Tr. Trans, pg. 217); Derrick Lotz never witnessed it (Tr. Trans.

PS-

); Mitchell Marks never witnessed it, and Gregory Pelfrey never witnessed it (Tr. TVans. pg.

181 to 191). Further, in violation of Mr. Sahara's light to confront and cross examine his accuser, La.

Const., Art. 1 § 2 and 13; U.S. Const., Amend 6 and 14. See: Duncan v. Louisiana. 391 U.S. 45, 88

S.Ct. 1444 (La. 1968); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); In re

Oliver. 333 U.S. 257, 60 S.Ct. 499, 92 L.Ed.2d 682 (1948); and Pointer v. Texas. 380 U.S. 400, 85

S.Ct. 1065, 13 L.Ed.ld 923 (1965).

Not overwhelming evidence existed of Mr. Sahara's guilt,

therefore the numerous introductions of hearsay testimony, prejudiced Mr. Baham's trial, where

prosecution introduced; Darrell Lawrence; who called the name ‘Will through Det. Maggie Darling,

but could not say where he got it or that he saw "Will” shoot anyone (Tr. Trans, pg. 143 to 145).

Identification is what prosecution sought to establish. The videos were obviously insufficient to

meet this end. The prosecution introduced more “Hearsay” testimonies (Dr. Marianna Sanomirski, Dep.

Coroner, Jefferson Parish) to testify to another doctor's report (Dr. Cynthia Gardner); See: LSA-R.S.

15:S01(3)(1), not that it was relevant, but that it was only the states intent to support its witnesses

credibility to the jury. Mr. Baham had no way of confronting die person (Dr. Gardner), who did the

report, as to what she meant by some of the things she wrote (Tr. Trans, pg. 118-119). Further,

prosecution introduced Mr. Gregory Pelfrey, who could not be disputed, where state illegally sought

prisoners help to prosecute its case, with phone taps and making witnesses, only for the purpose of

identification to establish the guilt of Mr. Baham. State introduced Det. Robert Hurst, the lead

investigator, who received information identifying aperson other than Mr. Baham, interviewed by Det.

G. Pratt (Tr. Trans, pg. 79-81). That evidence was withheld and the state never showed the clothing

collected. At the end of Mr. Baham's trial, a special hearing was had to accept clothing from the NGPD

Central Evidence and Property Records (Tr. Trans, pg. 299-306).

18.

Mi*. Bah am argues that, because it could not be established that he shot and killed Errol Meeks

and state introduction of “hearsay” testimonies on the issue of identification, it violated Mr. Baham's

right to confront his accuser “Robert Lotz”, which is not harmless as it does affect Mr. Baham's

Amendment Dae Process Right pursuant to the U.S. Constitution, to a fair trial. This case must be

reversed.

*Trial court abused its discretion.

It is for further consideration of this Honorable Court, beyond what the Magistrate has

responded to, that Mr. Bah am maintains his contention that his right to a fair trial was violated when

the trial court abused its discretion violating Mr. Baham's Due Process when it did not sequester jurors,

allowed the State to direct jury's verdict by fraud, imposed no remedy for the State withholding of

Brady evidence, nor required accountability from the State for having interfered with Mr. Baham's

right to present a defense. These acts, either individually or collectively have deprived an innocent

man of his freedom and cause him to suffer the rigors of illegal detainment in State custody.

Standard of Review

In the instant case, the trial judge abused its discretion violating Mr. Baham's Constitutional

right to a fail1 trial, when he allowed Mr. Baham's jury to separate and return to their own homes, after

hearing numerous state witnesses testimonies (Tr. Trans, pg. 90), without being sequestered as

mandated by La. CCr.P. Art. 791.

First, a. Judge has inherently power to assure dignity in the Judicial Proceeding being

maintained with integrity, expeditiousness, orderly and in manner that seeks Justice. La CCr.P. Art

Is?', State v. Mims. 329 So.2d 686 (La. 1976). The trial Judge has a wide range of discretion, that will

not be disturbed absent clear abuse. StatejvJMttdieH., 275 So.2d 98 (La. 1973). Even though the

court has this discretion, it does not come without limitations due to Constitutional restrictions.

Article 791 reads pertinently:

19.

(A)

A jury is sequestered by being kept together in charge of an officer of

the court, so as to be secluded from outside communications. See: State v.

Luqaeiie, 275 So.2d 396 (1973); State v. Craighead, 114 La. 85, 38 So. 28

(1905); and State v. Thomas. 705 La. 550, 17 So. 814 (La. 1944).

me jury sequestration procedures and non-instructions employed by the trial court failed to

properly insulate the jurors from extraneous influences, or the possibility thereof, and at no time did the

trial court adhere to the mandatory instructions required in all criminal cases. See, Hale v. United

States. 435 F.'id 737 (1970). Hie the locality of Orleans, a city steadily on the rise in population and

serious felony crimes, where conversation of non-juror third parties and jury members more than

likely resulted in the jury verdict being based upon, and affected by, influences extraneous of the legal

evidence introduced at trial.

La.C.Cr.P. art. 791 C provides that “In non-capital cases, the jury shall be sequestered after the

court’s charge and may be sequestered at any time upon order of the court.” Hie purpose of this

instruction is to insulate the jurors from outside influence, or the possibility thereof, and to insure that

their verdict will based upon the evidence developed at trial.

State v. Parker. 372 So.2d 1037

(La. 1979). Due process requires that the accused receive a trial by an impartial jury free from outside

influences. Sheppard v. Maxwell. 384 U.S. 333, 362, 86 S.CT. 1507, 1522, 16 L.Ed.2d 600 (1966).

Stated differently, “the right to a jury trial guarantees to the criminally accused a fair trial by a panel of

impartial, 'indifferent jurors’. The failure to accord an accused a fair trial violates even the minimal

standards of due process.” Irvin v, Dowd. 366 U.S. 717, 722, 81 S.CT. 1639, 1642, 6 L.Ed.2d 751

(1961).

Petitioner argues that he was deprived of due process because the jury was swayed by

influences outside the courtroom, it is the duty of the Court to independently review the trial records

and hold an evidentiary heating with members of the jury present, so that their testimony will be heard

that their verdict was not based upon the influence of third parties to convict an alleged violent offender

as a having committed second degree murder, that it is believed to have occurred subsequent to a fight.

20.

When juror misconduct concerns influences from outside sources, the complete failure to hold a

hearing constitutes an abuse of discretion and is reversible eiror because a presumption of prejudice

arises when the trial court learn of such influences. United States v. Phillips. 664 F.2d 971 (5th Cir.

1981); Marshall v. United States. 360 U.S. 310, 312, 79 S.CT. 1171, 3 L.£d.2d 1250 (1959). Hie

traditional rule in such cases has been that there must exist a nexus between the community prejudice

and jury prejudice; there must be a showing that "prejudice found its way into the. jury panel”

Pamplin v. Mason. 364 F.2d 1, 6 (5th Cir. 1966).

Several Supreme Court decisions have fashioned

the principle that in certain extreme circumstances where there has been “inherently prejudicial

publicity,” McWilliams v. United States. 394 F.2d 41, 44 (Sth Cir. 1968), the actual existence of

prejudice in the jury box need not be shown.

The courts further holds, “it was not necessary to complain of injuiy, evidence of the fact in the

record was sufficient to justify the court's taking action with reference to it, reversing any case with

such posture placed upon the conviction or trial proceedings. See” Craighead, supra.

Mr. Baharn further argues trial court abuse of discretion, in that it allowed state to fraudulently

direct Mr. Baham's jury verdict. Sullivan v. Louisiana. 508 U.S. 275, 278 (1993). At the state's

attempt to Introduce Derrick Lotz and Mitchell Marks as witnesses, objections were lodged (Tr. Trans,

pg. 102 to 109).

State fraudulently alleged it was introducing them only for the purpose of

identification (Tr. Trans, pg. 102 to 106). Defense offered that state give these witnesses immunity or

that the court instruct the state, on its questioning of these witnesses as to their involvement, not

conflicting witli their Fifth Amendment right of silence (Tr. Trans, pg. 110). State rejected to issue

immunity and denied its purpose was anything other than identification (Tr. Trans, pg. 111).

The trial judge ruled that, counsels objections are denied and noted, and that the state cannot

question these witnesses concerning anything that deals with their involvement (Tr. Trails, pg. 110 to

114), stating also, as he allows the state to read a statement of Mitchell Maries”, 4T have never read the

21.

statement”. (ii\ Trail a. pg. 102 to 109). if the judge had not read what the statement contains., he

erroneously denied counsel’s motions to limit and instruct state's questioning, because the statement

specifically deals with Mr. Mitchell Marks involvement (Tr. Tran3. pg. 109 to 114). The trial judge

further abused his discretion by allowing the prosecution to introduce the statement, reading through it

without asking questions, and allowing the jury to have this statement, which clearly directed their

verdict. Sullivan, supra. Petitioner argues that, Judge admits he never read Mr. Maries' statement (Tr.

Irons, pg. 102). If he never read the statement, how could he know what impact it would have? State

knew, because it was his intent to deceive the court on the nature of introducing Mr. Marks, who could

not be shown in the videos of being at Friar Tucks Bar, nor did anyone else mention Mr. 'Marks, as

being with them or Mr. Baham. Only Del. Maggie Darling under the direction of Det. Robert Hurst

could say, where this witness fits in the investigation, - they did not. Defense objected, advising the

statement deals exclusively with Mark's involvement. (Tr. Trans, pg. 102 to 110).

The Court erroneously denied counsel's proffered reasons and state argued it did not and was

only for the identification (Tr. Trans, pg. 109 to 112). The jury never heard how Mr. Bah an became a

suspect or how he was involved until the publishing of this statement to read. Directing the verdict of

guilt. See: Sullivan, supra. Further, trial judge error allowing state to withhold evidence in violation of

the Discovery Rule, La. C.Cr.P. Art. 716 to 729.6 (a list of names blacked out), one in particular

dealing with a direct witness to the shooting, who gave a vivid description of the shooter (Tr. Trans, pg.

83).

Against discovery requirements, the trial judge stated that counsel was not entitled to this

information (Tr. Trans, pg. 83). The obligations placed upon prosecution in pore-trial discovery' of

evidence. On a “Brady Request”, citing Brady v. Maryland, supra were established in Washington v.

Watkins, 655 F.2d 1346,1355-56, (5th Cir. 1981); and RummeLw EsteUg, 590 F.2d 1214, 1217.

Mr. Baham according to State v. Talbot 490 So.2d 861 (La 1980), is entitled to the names and

substance, if its exculpator6y or inculpatory, even those falling within res gestate of the offense State v.

22.

Jones, 408 so.2d 1285 (La. 1982). The state must disclose exculpatory evidence, even though it has

no intent to use it at trial. La. C. Cr.P. Art. 719.

In the instant case, the trial judge interfered in Mr. Baham's defense; where the only issue

before it in prosecution case-in-chief was identification.

To not allow production of a witness

statement, who did witness the crime, that is within possession of prosecution.

Defense objected

requesting mistrial. This case must be reversed, remanded. See: State v. Davis. 399 So.2d. 1168 (La

1981).

In this situation, trial judge did not act neutral to safeguard that Mr. Baham received in

accordance with the Due Process Clause, a fair administration of justice, depriving him of a fair trial.

US.C,A.s Const Amend 14, In re Winship, supra; Duncan v. Louisiana. 391 U.S. 145,88 S.Ct

1444,(La 1968): Arizona v. Fulminate. 499 U.S. 279, 111 S.Ct. 1246. Trial Judge further deprived

Mr. Baham of his constitutionally guaranteed right to the effective assistance of counsel. United States

Constitutional Amendments Six and Fourteen. This case must be reversed.

"Ineffective assistance of counsel.

Mr. Baham has no alternative other than to maintain that he remains the victim of ineffective

assistance of counsel, a violation of the Sixth and Fourteenth Amendments to the United States

Constitution. Despite the Magistrate's summation, a close review of the re-worked arguments in the

previously contested issues reveal better for the Court to assess the claims presented. Now, although

some of the armaments remain the same, the court needs to re-yead them, because though most of

the arguments remain intact, there are both significant and impacting considerations brought to

the forefront in a wav that had not been before.

STANDARD OF REVIEW

Upon learning of the Brady violations and the ways in which the State had undermined trial

counsel's development of the defense. The State’s knowing aid deliberate use of perjury and even

23.

manufactured testimony, defense counsel engaged in no relevant motion practice to prevent his client's

conviction.

Instead, defense counsel sought to allow his innocent client's conviction and well-washes of said

client being able to somehow get the conviction overturned at some point in the future. This is the only

perceivable excuse for counsel's actions. Let the record reflect that these were not the wishes of the

innocent accused, as he wished to suffer no illegal, unjust nor unwarranted conviction.

The seemingly greatest error suffered by the instant petitioner is having relied upon the socalled experience and expertise of his defense counsel to secure his substantive federal constitutional

rights through. Here, counsel for the defense not only had an ethical obligation, but, in order to

circumvent the commission of fraud upon his client, he was obligated to execute the full-measure of his

expertise to prevent the conviction of his client. Defense counsel failed.

Hat! defense counsel's requested a stay in the trial proceedings, in order to taken such important

matters as: Suppression of Evidence, Injecting Known Perjured testimony into the trial Mechanism,

and allowing perjured testimony to go uncorrectsd, up to the Circuit Court of Appeal on Writs of

review, these actions could have easily altered the outcome of the case. So, for counsel to forgo these

options and allow his innocent client to be convicted in inexcusable. There is no way to reconcile these

deficiencies with trail strategy. And for these reasons, the Magistrate erroneously determined that the

instant petitioner is not eligible for Federal Habeas Relief. Consequently, petitioner is compelled to

request that the presiding District Judge either reject, modify, or order further proceedings in this matter

as justice does so require.

To make a successful claim of ineffective assistance of counsel, a defendant must show that his

counsel’s performance was deficient and that the deficient performance prejudiced his defense.

Strickland v. Washington. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is a

“reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would

24.

have been different” Id at 694, 104 S.Ct. at 2068. Hie- “benchmark for judging any claim of

ineffectiveness must be whether counsels conduct so undermined the proper functioning of the

adversary process that the trial cannot be relied on as having produced a just result.” Id at 686, 104

S.Ct. at 2064. Under Strickland supra, counsel has a “duty to make reasonable investigations or to

make a reasonable decision that make particular investigations unnecessary ... a particular decision

not to investigate must be directly assessed for reasonableness in all the circumstances, applying a

heavy measure of deference to counsel's judgments.” Id at 691, 104 S.Ct. at 2066. However, counsel’s

acts or omissions must not be “outside the wide range of professionally competent assistance.”

When it is apparent that alleged acts of attorney incompetence were in fact conscious strategic

or tactical decisions, review of these actions must be “highly deferential.” Kim m dm an v. Morrison.

474 U.S. 815,106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). But counsel should not he allowed to shield his

failure to investigate simply by raising a claim of “trial strategy and tactics.” Crisp v. Duckworth. 743

F.2d 580, 584 (7th Cir. 1984). Certain defense strategies or decisions may be “so ill-chosen” as to

render counsel’s overall representation constitutionally defective. Washington v. Watkins. 665 F.2d

1346 (5th Cir. 1981).

In considering a claim of ineffective assistance of counsel, the reviewing court must examine

counsel’s conduct in light of “all the circumstances” of the case and from the point of view of

“counsel’s perspective at the time” so as to “eliminate the distorting effects of hindsight.” Strickland.

at 689,104 S.Ct. at 2065.

DIRECT APPEAL ISSUE NO. 1

Prosecutorial Misconduct/Personai Attacks on Defense Counsel

Whiling questioning Mitchell Marks, the prosecutor made numerous personal attacks on

defense counsel. Specifically, the prosecutor repeatedly asked Mr. Marks whether Mr. Fuller had told

25.

him not to come to testily. Defense counsel repeatedly objected to the prosecutors comments and

questions. Although the trial court sustained some of the defense's objections and gave a cautionary

instruction to the jury, the admonition was inadequate, and left the jurors with the impression that it

was entirely possible that defense counsel has sent a message to Mr. Marks through Mr. Baham telling

him not to trial. The prejudicial effect of the prosecutor's remarks and question was not outweighed the

other evidence in the case. The State’s case was weak, considering that both Mitchell Marks and

Derrick Lotz recanted their statements to police and Gregory Peifory's story was uncorroborated It

must be concluded that the prosecutor's improper remarks and questions substantially affected Mr.

Baham's right to a fair trial as guaranteed by the Due Process Clause of the Fifth and Fourteenth

Amendments of the United States Constitution, andArticle 1, § 16 of the Louisiana Constitution.

At trial, Mr. Marks recanted the statements which he had made to Detective Darling.1 He

claimed he could not recall stating that Mr. Baham told him he was going to get his gun and “smash”

the “dude” he fought with in the bathroom.2 He claimed he could not recall telling Detective Darling

that he went back to the bar with Derrick Lotz (“Pop”) and Robert Lotz (“Rough” or “Ruffy”), that

they bear'd shots, and that Mr-. Baham afterward ran out and got in the truck with them. Mr. Marks

testified that he did not have a truck, and that Mr. Baham did not get in the truck with him that night; he

stated he made up the story about the truck. He stated he also made up the story about Mr. Baham

having a gun. Mr. Marks testified that he told Detective Darling whatever she wanted to hear so he

could avoid a murder charge.3

After Mr. Maries recanted his statement to Detective Darling, the prosecutor asked Mr. Marks

whether he told this girlfriend on the phone from prison that he was “going to play dumb in

The audiotape of Mr. Marks' statement to Detective Darling (exh. S-40) was played for the jury during

Detective Darling’s testimony and, again, during Mr Marks' testimony Trial trans, pp, 127,185 (VoL

2).

Td. at 188,

*Id, at 189-194,

26.

court.”When Mr. Marks denied it, the State was allowed to play the jail tape for the jury. At that point.

the prosecutor (Mr. Napoli) began asking Mr. Marks whether defense counsel (Mr. Fuller) had told or

encouraged him not to come to court to testify. 4 The following colloquy occurred;

MR. NAPOLI:

... Isn't it a fact that on these jail tapes that you talk

about how this defense attorney has been

encouraging you not to come to court?

MR. FULLER:

Objection! That's a lie! That's a bad lie! 1 have

never seen this man before, in my life!

THE COURT:

Whoa, whoa, whoa,! This is cross-examination of a

hostile witness. He can ask him whatever he wants.

MR. MARKS:

I don't know that man.

MR. NAPOLI:

You never said that on the jail tapes?

MR. MARKS:

I don't know what I said, but I don't know him.

MR. NAPOLI:

Judge at this time I would request permission to

play the jail calls as impeachment.5

A while later, the following occurred:

MR. NAPOLI:

Judge, we would like to play the part now about

the attorney.

MR. FULLER:

Yeah I would like to hearths! part actually.

THE COURT:

Well that makes all of us. We all want to hear.

(Tape played at this time.)

MR. FULLER:

Objection!

MR. NAPOLI:

Excuse me!

THE COURT:

Stop it! Stop it!

MR. FULLER:

They specifically said that I said that I said and that

is clearly no the case.

Td. ai.195-197.

^Trail Trans, pp. 195-96 (Vol. 2).

27.

THE COURT:

That's sustained.

MR. NAPOLI:

Let rne ask you this. Isn't it true that William

Baham told you that his attorney didn't want you to

come to court.

MR. MARKS:

No.

MR. NAPOLI:

Play it.

THE COURT:

William Baham told you that his attorney - * that's

sustained.

MR. NAPOLI:

Judge- -

THE COURT:

There is no foundation for the conversion between

Baham and Fuller.

It would be attorney client privilege. It's sustained.

MR. NAPOLI:

While you were on the docks - - has there every

[sic] been a time when you are on the docks with

William Baham.

MR. MARKS:

One time.

MR. NAPOLI:

When he came up to you that one time didn't he

encourage you not to come to court?

MR. MARKS:

No.

MR. NAPOLI:

He didn't?

MR. MARKS:

No.

MR. NAPOLI:

Judge, at this time we would request to play that

call now7 considering th$ that is directly- -

THE COURT:

You can play anything that has something to do

with Baham and this man, but I certainly didn't

didn't hear anything that placed counsel Fuller in

any way shape or form. Counsel Fuller would not

be bound by anything that his client allegedly told

somebody else when he wasn't present or knew

about.

MR. NAPOLI:

But if he instruct him you do it though, Judge.

28.

THE COUP.T

We don't have that and strike that. Ignore that. Be

careful. You are getting ready to start treading

water.

(Tape played at this time.)

MR. NAPOLI:

So when you were on the docks with William he

told you that the instructions of his attorney was

for you not to come to court?

MR. Marks:

No. I asked him - -1 asked him what was it

because I thought his lawyer sent me a

subpoena.

MR. NAPOLI:

I have no further questions, Judge.

THE COURT:

I want you to put it out of your head that there was any

wrongdoing whatsoever by Mr. Fuller. This witness could

or could not be telling the truth. He may or may not have

spoken with the accused on this matter. His voice, is not on

the tape and for Mr. Fuller to be responsible for something

this man allegedly had a conversation with this man that we

have not heard. I ask you to take it with a grain of salt

relative to Mr. Fuller.5

Afterward, defense counsel tried to show the context in which Mr. Marks asked Mr. Bah am

whether his attorney wanted him to come to court. The context was that Mr. Marks was handed a

subpoena and mistakenly thought it was from defense counsel. On cross-examination, Mr. Marks

explained that, one day when he was in court for a probation violation hearing, a woman walked up to

him and gave him a subpoena7 At trial, the female Ms. Bertheiot, admitted that she gave Mr. Marks the

subpoena and admitted that she deliberately tried to confuse him. In her closing/rebuttal, Ms. Bertheiot

stated as follows:

You did hear how it works in New Orleans though. You heard it form [sic] Mitchell

Marks jail tapes. And you heard when he got up here he said it too and he pointed at me.

6Id. at 202-205 (Vol. 2)(emphasis added).

7Id. at 220.

29.

I came into court and I gave Mm a subpoena. Yeah, I gave him a subpoena. Come

to court and tells us what you know. But you hear when he goes down stall's and he

says I talked to Will. I asked was it your attorney or was it Hie State because I

actually didn’t talk to him. I just tried to hand him a subpoena so he doesn’t know

if I am with Mr. Fuller or if I’m with the State. So he asks Will. Wilt, your attorney

wants to subpoena me? He told me to tell you don't fuck with that. Don't go. That's

how it done in New Orleans.8

Thus, the procedure knew full well that Mr. Marks, in his conversation with Mr. Baham about

coming to court, raised the subject because he confused about whether defense counsel wanted him to

testify for the defense. Mr. Baham would have been responding to Mr. Mark's inquiry when he told him

that his attorney did not subpoena him and did not want to testify. At trial, the prosecutor deliberately

gave false impression that defense counsel had communicated to Mr. Marks, through Mr. Baham, that

he should not testify for the State. In her rebuttal aigument, the prosecutor seems to reveal in having

confused Mr. Marks telling him he should avoid testifying.9

Regardless of the prosecutor's motivation, the result of the prosecutor's improper comments and

questions was to undermine defense counsel and the defense's ease. The prosecutor's actions damaged

counsel's credibility before the jury, caused the jury to defense counsel's arguments. The prosecutor

dealt a “low blow'”

Louisiana's jurisprudence on prosecutorial misconduct requires tire prosecutor to refrain from

making personal attacks on defense strategy and counsel. State v. Brumfield, 96-2667 (La 10/20/98),

737 So.2d 660, 663. The attack on defense counsel in the present case is particularly egregious because

the prosecutor repeatedly suggested that defense counsel had told the State's witness not to come to

court to testify This type of prosecutorial misconduct amounts to reversible error.

The United States Court of Appeal for the Fifth Circuit has concluded that it constitute

reversible error for the prosecutor to attack defense counsel by arguing to the jury that defense counsel

was hiding witnesses. In United States v. Murrain 888 F.2d 24 (5 Cir. 1989), the. federal appellate

court dated as follows:

The prosecutor continued with an attack on the defendant and his counsel, charging

them with conduct which border onto obstruction of justice and constituted unethical

conduct for atrial attorney. An ethical trial attorney does not hide witnesses possessed of

relevant and material evidence. The prosecutor's suggestion that Murrah and his counsel

did so must be taken as damping to counsel's argument on the facts and the law. That is

3Closing Arg. Trans., p. 86 (Supp. R.Xemphasis added).

9Mr. Marks couid not avoid coming to court to testify because, as it happened, he was in jail at the time

of the trial. See Trial Trans, p. 199 (Vol. 2).

30.

a low blow in any trial, but it is particularly egregious in a criminal case bottomed on

circumstantial evidence.

Rules of fair play apply to all counsel and are to be observed by the prosecution and

defense alike. No counsel is to throw verbal rocks at opposing counsel. The court will

not accept such conduct from any lawyer. If anything, the obligation of fair play by the

lawyer representing the government is accentuated. “Prosecutors do not have a hunting

license exempt from the ethical constraints on advocacy.” United States v. Bursten.

453 F.2d 605, 610-611 (5th Cir. 1971), quoting Patriarca v. United State;. 402 F.2d 314

(1st Cm 1968), cert. Denied, 393 U.S. 1022, 21 L.Ed.2d 567, 89 S.Ct. 633 (1969). In

recognition of the respected position held by prosecutors, the Supreme Court has

warned that a prosecutor's improper suggestions “carries with it the imprimatur of the

Government may induce the jury to trust the Government judgment rather than its own

view of the evidence.” United States v. Young' 470 U.S. 1, 18, 105 S.Ct. 1038, 84

L.Ed.2d 1,14 (1985).

We recognize the onerous burden home by the prosecution in any criminal case, and we

seek not to dampen prosecutorial enthusiasm. But as the Supreme Court observed a half

century' ago, the government's representative “may prosecute with earnestness and vigor

- - indeed, he should do so. But while he may strike hard blows, he is not at liberty to

strike foul ones." Berger v. United States. 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.EcL

1314 (1935). The prosecutorial comments contained in this record have no place in the

proper administration ofjustice. 888 F.2d at 27

The Court, in Marrdh, determined that the prosecutor's remark had substantially affected the

defendant's right to a trial. In reaching this conclusion, the Court stated that the pertinent factors to

consider included (1) the magnitude of the prejudicial effect, (2) the efficacy of any cautionary

instruction, and (3) the strength of the evidence of guilt. The Court, found that the damaging effect of

these remarks was not neutralized by the trial court's generic instructions, since the government's case

was based largely on circumstantial evidence. Id At 28.

The magnitude of the prejudicial effect in the present case is at least as great as in, Mnrrah.

because, just as in Mnrrah. the prosecutor is suggesting that defense counsel wants to prevent

witnesses from coming to trial. Here, the prosecutor repeatedly asked the witness (Mi*. Marks) if

defense counsel told him not to come to court, and then tried to play a tape recording of the witness's

phone conversation which supposedly proved it. The tape recording did not prove Mr. Fuller's

involvement and served only to create further prejudice.

Moreover, the judge curative instruction was inadequate and left the jury with the impression

that it was entirely possible that defense counsel had sent a message to Mr. Marks, through Mr. Baham,

telling him not to come to trial. The trial court instructed the jury as follows:

I want you to put it out of your head that there was any wrongdoing whatsoever by Mr.

31.

Fuller. Tills witness could or could not be telling the truth. He may or may not have

spoken with the accused on this matter. His voice is not on the tape and for Mr. Fuller to

be responsible for something this man allegedly had a conversation with this man that

we have not heard. I ask you to take it with a grain of salt relative to Mr. Fuller.10

In other words, the judge advised the jury that, even though defense counsel might have told

Mr. Marks not to testify, they should forget about it. By adding that the jurors should take the matter

with a “grain of salt,” the judge is inadvertently telling the jury to consider it, albeit, with some

skepticism. Hie jury was left to believe that Mr. Fuller is an unethical lawyer who, behind the scenes,

subverted the testimony of the witnesses. Under these circumstances, the jury could reasonably have

believed that Mr. Marks recanted his statement to Detective Darling only because defense counsel did

not want him to testify about what he knew. As in Murt-ah, the prosecutor's suggestion that defense

counsel tried to prevent witnesses from testifying “must be taken as damaging counsel's credibility

before the jury, prompting the jury to summarily reject defense counsel's arguments on the facts and the

law/' See Mnrrah, supra.

In the present case, the prejudicial effect of the prosecutor's comments and questions was not

outweighed by other evidence introduced by the State. The State's case was weak, considering that both

Mitchell Marks and Derrick Lotz recanted their statement to police. Darnell Lawrence, the bouncer, did

not see the shooting and his story which Mr. Marks gave to police insofar as when the shots were fired;

Mi/ Lawrence implied that the shots were fired soon after the fistfight, whereas Mr. Marks claimed that

the shooting occurred later, after Mr. Baham went to his grandmother's house to get a gun. And while

Gregory Pelfrey claimed he overheard Mr. Baham admit that he committed the murder, there was no

one to corroborate his claim. Certainly, there was no physical evidence to link Mr. Baham to the crime.

The shooter could not be identified from various videotapes. Moreover, the State's theory of the case

made little sense; the prosecutor argued that, even though William Baham was angry with Donald

Oliver, a/k/a “Diesel,” over a fistfight they had that evening, Mr. Baham shot Errol Meeks, who had

done nothing to him, supposedly because Mr. Meeks was at the bar with friends of Diesel.11

For the foregoing reasons, it must be concluded that the prosecutor's remarks and questions

substantially affected William Baham's right to a fair trial as guaranteed by the Due Process Clause of

the Fifth and Fourteenth Amendments of the United States Constitution and Article 1 § 16 of the

Louisiana Constitution.

10id, at 204-205 (Vol. 2)(emphasis added).

31See Closing Arg. Trans., p. 31 (Sup. R,),

32.

ISSUE NO:2

Petitioner respectfully requests that in light of the arguments previously presented, this

Honorable Court revisit the Magistrate's assessment of this claim. Petitioner is not attempting to be

redundant in his arguments by leaving diem mostly intact, rather it is the contention of the petitioner

that the Magistrate did not view these claims and their interrelationship with one another to inject

unacceptable and unconstitutional realities into the trial mechanism of this particular case.

The law of the State and the United State's prohibits the trial jury in a criminal case, from talcing

into the jury room testimonial evidence to read. On the State level, the statute governing such an event

speaks in mandatory language. But, the Magistrate seeks to must the mandatory language of the

governing statute. If the laws which govern criminal trials can be disregarded at will, why do our law

makers consume tax-payer dollar in the- creation of these laws. If a law will not be given the full

measure of its intent, then such law should have no legal existence if it will only be occasionally

recognized through wit and whim.

It is petitioner's remaining contention that he was denied a fair trial when the trial court allowed

the jury to have, in the jury room during deliberations, the transcript of Mitchell Marks' statement to

police in which he claimed, among other things, that he saw Mr. Baliam with a gun seconds after the

shooting. Over objections by the defense, the trial court permitted the jury to take the transcript into the

jury room in violation of La. C.Cr.P. Art 793. This allowed the jury to give undue weight to the

statement, despite the fact that Mr. Marks had recanted and disavowed the statement, despite the fact

that Mr. Marks had recanted and disavowed the statement during the trial.

Mr. marks statement to Detective Darling (exh. S-40) was played for the jmy during Detective

Darling's testimony and, again, during Mr. Mark’s testimony.12 When Mr. Marks testified, he claimed

that the statement was untrue. He admitted that he was with Mr. Baham at the bar on the night of the

incident and that Mr. Baham told him on the way home that he had been in a fight in the bathroom

12Trial trans., pp. 127,185 (Vol. 2).

33.

However, Mr. Marks denied that Mr. Baham told him he was going to get a gun. He denied seeing Mr.

Bah am with a gun seconds after shots were fired.13 Mr. Marks claimed how told Detective Darling

whatever she wanted to hear so he could avoid a murder charge.14 Over objection by the defense, the

trial court allowed the prosecution to publish pages 4 through 7 of the transcript of the statement, and

the prosecutor was allowed to read those pages to the jury.15

During deliberations, the jmy sent a note to the tidal court asking to hear the taped statement of

Mitchell Marks. Die trial court decided to send the jury the transcript of Mr. Maiks' statement Defense

counsel objected on the ground that written documents cannot be taken in the jury room. Die trial court

overruled the objection. See transcript of trial court's response to the jury questions and rulings.16

Louisiana Code of Criminal Procedure, Article 793(A) provides an explicit legislative

mandate as to what evidence is allowed into the jmy room during deliberations:

Except as provided in Paragraph B of this Article, a juror must rely

upon his memory in reaching a verdict. He shall not be permitted to

refer to notes or to have access to any written evidence. Testimony shall

not be repeated to die jmy. Upon the request of a juror and in the

discretion of the court, the jury may take with it or have sent to it any

object or document received in evidence when a physical examination

thereof is required to enable the jury to arrive at a verdict.

In State v. Perkifts, 423 So.2d 1103 (La 1982), the Louisiana Supreme Court reversed the

defendant's conviction for the first degree murder, concluding that there had been a violation of La.

C.Cr.P. Art. 793. The Court reasoned as follows:

This Court has recognized that jurors may inspect physical evidence in

order to arrive at a verdict, but they cannot inspect written evidence to

assess its verbal contents. State v. Passman, 345 So.2d 874, 885 (La.

1977); State v. McCidly, 310 So.2d 833 (La. 1975); State v. Freetime,

303 So.2d487, 489 (La. 1974); State v. ArnaudvilSe, 149 La 151,127

So. 395 (1930); State v. Harrison, 149 La. 83, 88 So. 696 (1921).

The general rule expressed by La. C.Cr.P. Art. 793 is that the jury is not to inspect written

rTd. at 180, 181, 182.

I4Id. at 192.

]Td. a 209-214.

I6Trial trans. pp. 3-4 (Sup. R.}.

34.

evidence except for sole purpose of a physical examination of the document itself to determine an issue

which does not require (lie examination of the verbal contents of the document. For example, a jury can

examine a written statement to ascertain or compare the signature, or to see or feel it with regard to its

actual existence. State v. Freeman, supra, at 489. The legislature has made an express choice in this

instance, and the Louisiana Supreme Court, “written evidence during deliberations, except for the sole

purpose of physical examination.” As stated by this court in State v. Freeman, supra, at 488-89:

The policy choice thus represented is to require jurors to rely on their

own meraoty as to verbal testimony, without notes and without reference

to written evidence, such as to depositions or transcribed testimony. The

general reason for the prohibition is a fear that the jurors might give

undue ’weight to the limited portion of the verbal testimony thus brought

into tiie room with them..

In State v. Freeman, supra, this court found reversible error when the

trial court permitted the jury to read the defendant's confession after

retiring-to deliberate. The written statement in this case, although not a

confession, is an inculpatory statement made by the defendant, and the

same danger is that undue weight may be given to this particular piece

of evidence. The legislature designed article 793 to prevent, this precise

clanger. This legislative directive has not been amended, nor has

Freetime been overruled: this court is bound to find that the sending of

this written statement to the jury deliberation room is reversible error.

The trial court should have granted the defendant's motion for a mistrial

based upon this ground

423 So.2d 1109-10. See also State v. Freetime, 303 So.2d487,489 (La. 1974).

In tiie present case, there can be no doubt that the trial court committed reversible error in

allowing the jury to have the transcript of Mr. Maries’ statement in the jury room during deliberations.

This permitted the jury to give undue weight to the statement, which Mr. Marks had recanted in court.

Hie jury was thus allowed to give more weight to the statement than to Mr. Maries' testimony.

Hie trial court's error in allowing the jury to have the transcript during deliberations was not

harmless under the circumstances. T)ie Court of Appeal, Fourth Circuit has previously concluded that a

violation of La. C. Cr.P. Art. 793 should be reviewed under harmless error analysis. State v. Sellers,

001-1903 (La App. 4 Cir. 5/17/02), 818 So.2d 231, 239, writ denied, 03-1322, 862 So.2d 974 (La

1/9/04); State v. Johnson, 97-1519 (La App. 4 Cir. 1/27/99), 726 So.2d 1126, 1134-35, writ denied,

35.

99-0646, 747 So.2d 56 (La. 8/25/99). However, the cases where the error has been found to be

harmless can be easily distinguished from the present case. In Seilers, where the defendant was charged

with distribution of cocaine, the trial court allowed the jury during deliberations, to view and hear a.

videotaped recording made from a camera mounted inside an informant's car. In determining whether

the error was harmless, the Court of Appeal, Fourth Circuit stated as followed:

The principal evil or danger that La. C.Cr.P. art. 793 seeks to avoid is that

die testimony or written evidence in question will be given undue weight.

However, that danger is not present under the circumstances of this case.

Implicit in a consideration of undue influence is the concern that the

testimony or written evidence will be accorded greater weight than other

evidence present in the course of the trial. In die instant case, the

testimony of Barrios and the tape were the only evidence introduced to

demonstrate defendant's guilt

818 So.2d 231, 239. In the present case, the evidence in question, Mr. mark's statement, was not the

only evidence introduced by the State and, as previously mentioned, Mr. marks recanted the statement

at trial. In Stale v. Johnson, where the defendant was charged with the aggravated rape of minors, the

Court found that the trial court erred in allowing the jury to examine the medical records of the

defendant and the victims during deliberations. The Court found error to be harmless based on the fact

that the defense did not object and the fact.that the evidence, while admitted, had not been viewed in

die courtroom, so it was not “re-examined, had not been viewed in the jury room. 726 So.2d at 113335. In the present case, the defense made an objection and moreover, the evidence had been viewed and

read by the jury in the courtroom. In addition, as discussed above, the State's case was weak and the

prosecution's theory of the case made little sense.

CONCLUSION

The William Baham has done his best to make it clear to this Honorable Court that the below

court violated petitioner's substantive rights. Hie issues are clear and the records support all the

contentions placed before this Higher Court of Honor. Let the Constitution of the United States speak

loudly for all of it’s citizens.

36.

'<1

Respectfully submitted,

IsiAs W.

___ ^

La State Prison

Main Prison CBC, _

Angola, La. 70712*

37.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.