Justice:Denied- Issue23,Winter 2004

Table of Contents
N{essa!:e l;lotn he Lditor ( Pr e T r a rc s t r i r r T r r l i a .T c r a s F r a r r r e - uo l ' . i l JI r u r < . r c c r cto p l c ) r ' c hs t r a l c d i r ( ' o r r r r t rS l r c r r l - P.ro s c c r r t r arn d . l r r d g c - p br f' . r I i r n o t h rR r c e ' sS t o l r T l r c f ) c r r r c ri v - i t c h c lS t o r r : [ ) g l c r r d r r riu! : l l r r r \ r s c r r r a a t l a c kl c : r r l l si r r l r n r a r r ' s n t r l r [ - - r ' c or c\l r o n r n l l r it l l r e S r c l d i q u et r d u l l a hl a s a nS t r u l A l T l r r "\'' t r r k t rP rr tj c c t T l r u n t p l ( ) r c r I r a g c t J r t T l r c . l c l ' t l c rS c o l tR o s sS t o r r A F a t t t t l rT r a g c c l l 'l Stor-r he l\lurio Sirrrs T l r c V r n c i P i t r r S o d d r S t o r r : N a k c dT r t r t hF o r r t l sf ) r r b t o u s . l t t s t t c c l r 'l lhc (iarnet olenStorr c T l r cT h i r r B l u r ' I r c - [ t c r r c u o l ' l l t c r t t r , r r ' 'l Stor'1 Stor-r : lrook uttrrtitsecttdsIIt l)Its()ll scntellcc he I)etelC -lenkins l r . l c l l l c r S c o t tH r r r . n o l l "M t r r r 1 u( ' o t t r i c t i o nl s F r p o s c c A : A S h a r r \ l ' h c r rT l r c f t c a l K i l l c r ( ' o n l e s s c s s ('itr irrestirt'./ti.r/rt I )t' It t t I t i'. Artrcle Subrtrissrott iclel
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Message From The Editor

Dezrrfblks: Wc arc admittcdly latc with this issue-l, Clara, had devoted as most of my time to raising moncy so that we would not be cla-ssified a pnvate foundation,fbr that would be a vcry bad ouicome lor us. l'hc gtxrd neu's is tlrat we did succcedin passingthc tcst fbr public suppon. However. I havc lqamed that we must passthis test cach and erery ycar. so plcasedo not stop supportingus, for wc will necdyour ongolng supporl so thal we may continuc to publish year alier year. Wc do havc someonc who is trying to get sonrcgrurts fbr us. but thosc are al*'ays illy. Our best bet is to contirruegetting your support. You will note that wc now have "nrcrnberships." and thescare for your niagazine.We also now have s'hat is callcd Sponsos. and wc will discussthis individually with those who u,rite to us. l-his has been a year ol'ups and downs. One of n.ryfbrorttc people, Ka,"" she has been Ryder. is no longer able to continuc her work with us becausc q u i t ei l l . 'l.hcrc is still much *ork to be done to linish the year linancially.

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'fhc World Beginning with this nerl issue,rve will nou' be published try N e r v s p a p eir C o o s B a y . t t w i l l s e c md i f l ' e r e ntto y o u . b u t u ' e w i l l b e a b l e n uith to be nroreon time *'ith our issucsonce *'e havc a pattcm establishcd w t h c n r .a n d I t h i n k y o u w i l l b e p l c a s e d i t h t h e r e s u l t . Il's a ncu vear,nes'things10try and ncw vistas.Happy \ew Year.cvcryone! -l'homas Boggs l : d i t o r i n C ' h i e f a n dP u b l i s h e r Justicel)enrcd -- 1-heMagazinefbr the Wrongly Convictcd h t t p : , ij u s t i c e d e n i e d . o r g ('lara A.

.Justt(e.! )enicd stalf persons editing or u'riting articles in this issue: ( lara Lioggs, Editor in ('hiel'and Publisher Pam Eller. Editor and Volunteer C'oordinator Barbara Jean \{cAllin. [iditor lerri Smith. f-diror \{ar,r Graham. Editor \lelissa Sanders-Ri\c'ra-lnlbmtation Requests Hans Sherer. Associate Publisher

JusrcE

THE MAGAZTNE ThE WRoNGLY coNVlcrED oF DENTED:

2 I S S U E 3 . W I N T E RO O 4 2

The Mario Sims Story

By Sunny Sims
Editedby Barbara JeanMcAtlin, JD Staff
i r a s t o n o [ \ l r r i o ' s u i t c o f l { y e a n s c e k i n gu l c fhrs L custodr dunng a drroree and angered bv hcr husband'salleged afTain u'ith two olher Bomen. She used her husband's willing political enemics to assist her in gaining sole custuly and revenge by lalscly clainring her husband mped heq resulting in Mario receiving a 27-yer sentence. \lario L. Sims Sr-, *'as charged with llurglaru. a Cla-ssB t'clony: Ra;r. a class A l'elony; Criminal l)eviate conducta class A l-elony: Rape a clss A felonl,; and cnminal I)c\,iate conduct- a class A felony in a trial by 1uryand the Court having cntcred judgment on thc Jury's verdictMario L. Sinrs- Sr.. an Afiicm-Amcrican bom and raised in Chicago came to livc in South Bend to get awav liom thc' fast life he had in Chicago and to live in a quiet communitv ci(lse to his elderlv mother. Soon atier he bought a hour and became involved in the community Mario Sims bc'canrc *idcly kno*'n and surn had a very high prolilc. Hc cstablishcd his own busincss working out ol'his honrc. Sims & Associatcs.Hc bccame the lntcrirn Dircctor lbr the St. Jriscph ('ounty Urban Lcaguc. he w'as thc foundcr o1thc Nonhwest Sidc Ncighkrrhmd Association, wrotc a lbil-lrecklyl flbiwccklyli column in thc Communicator, a ltrcal ne*spaper. Eas on thc Holy ('ross fioard whcre his son attended schml. wa-s mcmbcr ol' thc Parish linancc eornrnittce. Chainnan of the Father Malloy St- Joseph ('ountr committec. a Drug tasktbrce neighborhrnd mcmber ofthe Board ot Directors ofthc St. JosephCount' NAACP- coach al thc Y.M-C.A. rvherc hc was also a member of'the Board of f)irectos whcrc hc chaircd the Progmm committee. had a daily A.M. mdio progratn on 'l-renton, New W IWO that was heard in l3 states fiom Jeney to Boulder. C olomdo that rcgularly leatured Mario's commcntar) on what he Jrrccired as Bamcs'lailurc to proseculc drug cases and Keman's inability to rnanage South []end's govcmmcnt. a nrcmbcr ol r arious comnrunitl organizations and lrequcntly appeared &s spokespersonlbr thosc organizattons. \1r- Sirns had served his community by. speaking orrt on issuesofcommunity concern including crime- lly doing so hc las told bl mcmbers of thc community that hc sas s l c n p i n go n u m c r n i g h t y b i g t o e s . H e \ \ a ) n o t i l u a r c ( ) l ' what lhose big tms would one day do to him.

Vario immediatel) contacted his dir orce attome-v. David Albert. On January 22. 199'1 after taking \lario's call dirorce Attomey-'Da\id Albert called the police and had been told bv the South Bend Police that Linda had alleged that on Fndal'. January I I . 1994 \{ario had broken a glass panel on the front door of the marital residence at I 050 N. Johnrn Streetto gain entry then waited lor Linda to arive home lrom u'ork and then \vhile a hand gun was nearbv and under threat ofbeing injected with a syringc tilled with heroine tbrced her to urite a reconciliation note and commifted the sex acts. Mario *ent to the South Bend Police l)epartnrent uith Attomcy Daiid Albert and then fiancec L.C. to gire a stalement. (L.C. later bccamc a state's witness). Prior to going to thc Policc Dcpt. Mrio. uho had Junior as part of his fbur days o1'visitation and joint custod;".lctr Junior at 1025 N. Johnson in thc care of' neighbor Candace -Iornpkins until \4ario's expectedretum that da].'. While at the policc station with Marn and Attomcy David Albcrt Ms. C'hristiansontold thc- South tsend Policc that she was an insulin dependent tlpe I diabetic and that she kept a package containinr l0 syringes in Mario's house at l0f5 N. Johnson lbr use in an enrcrsency and that she had used one fiom the package. On Januan l-1. l9r)4. a da1'alier Vario's anest and r day alier thc Policc searched Mano's housc at l()15 N. Johnsn- L.C. wcnt to clcan Vario's h0use. l hc privalc linc rang ard L.C . drinking she u as thc only one who kneu thc number mswered it and cntercd into convcrution with l-ori (iizcuski. Mario's ncighbor *'ho lived 2 bltrks down liom Mario's housc. I ori lived across f-rom Maritt's mothcr. Mrs. ('laudcttc \\'inston- Lori thcn cantc o\er to speak with t-.(. and lhr-y both realizcd thel had been having a conscnsual sex relationship u'ith Mario without knowing ofeach othcr and both bccamc angry. [-ori told L.C. thal Vario must're used her (l-ori's) gun, thcn L.C. said Mario nrusl're uscd hcr syringe. L.C. thcn callcd the South Bend Police and told them she had fbund the handgun [-ori clairned to havc "loaned" Mario tbr his use on Januaru I I . I q9.1.L.('. also called Linda to describethe handgun and thc s-vnngc. On January 2-1.I 99.1alrcr thc South Ilcnd Police spoke to Lori and l-.(. Mario was charged with 1s'o count-sol'rapc as class A l'elonies and tEo counts ol' criminal der iatc conduct as class A lc'lonics in addition to thc burglary chargc as a clss B l-elon1'with all chargesstentming lrom Ihc alleged assaulton January 2 I . I 99'l against Linda.

investigator Denis Bums tape it and in the tape L.C. said that she wanted some forrn of payment not to testiry' against Mario. She also said that the elecled Prosecutor had promised to help her get lvlario's \lercedes in 'l-hey also sho$ed her Lori exchange lbr her testimony. and Linda's statements. It was not hard to prove Linda was not credihle since shc had made prior demonstrably lalse allegations of Vario having raped her on January 4, I 994. During the course o1' the divorce proceedingsbetween Mario and Linda she had called the South llend Policc several times alleging that Mario had not rctumed their nine yar old son. Mario Lee Sims ("Junior") to her in a timely manner aftcr visitations with his father or that Mario had mng her doorbell at 10-s0 N, Johnson too many times when retuming Junior. or that on Dcccmbcr 15- 1993 nhen Linda had invited l!4ario over to have consensual sex then alleged Mario had not lell thc house at 1050 N. .lohnvrn quickly enough after havin-qhad consensualsex with Linda thcreby making her latc lbr work. Linda kncw that il'Mario were in prison custod) would no longer be an issue. Mario had no history of f'elony arests. \4ario and Linda had agreed after Linda llled lbr dirorcc thal Mario would live down the street lrom Linda at l()15 N. Johnson so that Mario could havc tcmporan Joint custody and visilation u'ith Junior tbur days then Linda w0uld havc lbur days. Mario Sims has lumed that bccausc hc chosc'to tak"scriously his first amendmcnt right of frecdom ofs;rech to lawlully expressopposition to those electcd ofticials who arc supposed to bc scryants of the peoplc. but har e in l-act beconrc mastes of the pcoplc. lris crime is bcing \{ario Sims. Ihis is not downplaying or ignoring the senous nature ol'charges. But his ex- wil'e Linda has sid that shc did nol bring thesecharges,Shc only uanted a divorce. But the reality s,as that the p0wcn that bc wantcd Mario renxrverl tiom s(reicty to scnc thcir purposes. Ihe Cilun takcs n()te ol Mr. Sims' statements both to thc probation Ollicer and in olnn courl that lhis is, "a Jxtlitical case." In Marids taped statenlenthc said he had consensualscr with Linda that night aflcr har ing tixcd a window on a dq)r that l.-indahad brokcn. Linda had scnt a note with 3 dtxrr key cnclosed lbr l0-50 N- Johnson Street that sas gilen by hcr to Junior to giYe lo llario lhat ntoming ol' January 21. 1994 so Marnr could lix the door. Mano denied breaking into thc housc. dcnied having a slringe. denied having a handgun and denied forcing Linda to har c sex. Mari<l also lold policc that hc had becn at the Heritage Cablc l'clevision Studio taping his telerision shou liom 2:00 p.m. until a littl!- afler.1:00 p.rn. the day oflhe alleged crime on January 21, 199.1. Ilalough resignedon March 2u. 1994 bccause\'lario could not pay him. On April 4, 1994 Attomcy Kerin Vilner entcred his appeannce. Mario met with Kevin Milncr one time befirrc trial and Milner took notes at that meetrng Milner did not visit the alleged crime scene. I hroughout the pre-trial and lrail proceedings every time Mario would entcr the Courtrtxrm Judge Jourdan's demeanor would become visibly hoslile, glaring at \4ario. A l2-memberjuw was impaneled on June l. 1994 On 'fhe theotl June 2, 1994 the State began its case in chiel. of the State'scase was lhat sometime befbre 3:30 p.m. on January 2 I . 1994 lhal Mario amed with a handgun gil en to him by Lori Gizewski and with a syringe he tmk out of a package belonging to L,C. broke into 1050 N- Johnson . ISSUE23 . WINTER 2OO4

I wo days laler Lori called the policc and clainred to hare found Mario's watch on hcr back porch. During the time Mario was held on thc charges in the St. Joseph( ount-v1ail a*'aiting trial he wirs mored wilhout rcquesting a move Josph Kemm was mayor of South Bend at the time of fvlilio iiom the fir e man cell he rvas mor ed in to a large open unit Sims'conviction md Michael Bames ws the Prosecutor. that held o!cr 3() inmates. l\{mo and the trvo men repeatedly clashed in the media. f'rior to Marids anest on Janury 22. 1994 he had been an Son thereaher. three inmates in the unit. Paul Whitrncr, outspokcn opponent of thc St. Jorph elatcd Prosccutor. l)ennis Jones and Lronel Williams claimed Vario had Michael P. Ilames. and the South Bcnd Mayor, Joscph Kmm. conl'essed to them and Whitmer's Iire-page statcment $as to the state'sresF)nse to discorery Votion filed I hen onc day Mario Sims' world camc Io a halt when he athched before trial Whitmer rccmted on tlarch l-i. 1994. Shortl-vretrieved a telephone mcssage lrom his ansrvering machine to Mario. Mario gare Whitmels recantationto his Private at l0l5 \. Johnson Strcet. South Bend Indiana. Mario had lnlestigator. Denis Bums to give to }lario's Lawyer Ke\ in moved into one of his rental propenies liom his mrital Vilner and Bums did so. residcnce of 1050 N, Johnson Strect alier Linda (his then 'Ihe uife) had filed for a dilorce in October of 1991. to trial Mario's then Larvver Raymond Balough a boy bom June 7th. 1984 Prior marriage produced onc child. relephone call fiom State's witness (\'lario's Linda called "Junior." receired a named lvlarioLee Sims that Mario and lbmer tiancde) L.C. and Balough had Sims' private JusrcE oF THE MAGAZINE THE WRoNGLY coNVlcrED DENTED:

P A G E1 4

through a glass panel on the iiont door and then wailed until Linda arrived a little after 5:00 p.m. and over a period of six hours sexually assaulted Linda. On June 2. 1994 the State'sCase in Chiefbegan when the State called as its first wihess Dr. Brent Crofoot, who had conducted the medical examination of Linda. Dr. Crof-oot testified that Linda's blood pressureand pulse were nomal after the alleged rape: there were no signs ofany evidence of tmuma anyu'here on Linda's body. There were no injuries to Linda's vagina or rectum and there u,as no rndication of forced sex ofany kind. one ofthe Jurors. Mr. Kelly, sent a note to Judge Jourdansaying he could not continue as ajurorbecause the English lanr:uagewas not precise enough to allo* him to undemtand what they (the Judge and Lawyers) meant specilicallv. He said rhe State gave evidence that didn't expiicitly refer kt the defendant nor nanowed a f'cus on and o1'deviateserual behavior charyes,only burglary. The Court senl a responscto Mr. Kelly's note and said that he had to sene as -juror On Junc 3. 1994 Mario was convicted on all counts. On June 8th. 1994 sir days aller L.C. testified against Mario. she uas awarded his lVlercedes. On June 9. 199,1Judge \'leans and St. Joseph (lount\ prosecutor \lichael P. Bames. had previously agreed to the sentencc ntodillcation of felonv Lioncl Williams and granted \\'jlliams an earll rclease liorn prison six days afier Williams testilied against Mario. On June 2,1rh. 1994 Mario sent a lcttcr to Judge Jourdan saving that his political opponents had railroaded him. He lircd Milner and asked to representhimselfpro se. On Julv I . | 994 Mario was sentenccdto 27 years in prison. Judue Jourdanappointed a pubic dcl'enderliom the lndiana Statc I'ublic Dclcnders Olllce to pcrl'ect Marids direcr appeal. \{ario told the Statc Public I)efender. l)arrd []rcund. that he had witncsseswho would pror.idehinr w ith allidarits saying hc rvas inntxent and that his trial judgc uas biased and pre'judiccdagrinst him. I:reund intonned llario thal becausethe trial judgc paid his |ces he u,ould not raisc this issue. Mario thcn lllcd his Davis Motion in the C'ourtol Appcals. adr ising this court of'frcund's contliet of inrcrcslan(l artachedthe allidavits hc had told l:reund about. On April l5. 1995 this court granted Mario's Dar is Motion lbr thc purposcs o1' liling a tselaled Motion to Conccl [:nors. On \la-r-8. 1995 Mario llled his verified motion iirr chanue ol'1udge. \{ario's change of.judgc rvas denied on \'lar 1li. 1995. \lario liled his Belated Motion to Concct Lnors *ith thc afllda\its of l-orn "-l-flrooks" Brademus, l)cnis Ilums. Attomcv Charles Asher and f'andace l o m p k i n s o n \ I a v ? 5 . l 9 i ) 5 i r t h c S t . J o s e p hS u p c r i o r ( ourt. On Junc ll. 1995 Mario lilcd additional allldavits liom Attome\ I)ar id Albert and Charlcs Hoskins. On June I 6. I 995 Mario took depositions t-inda. L.('. and of Lori and subpoenaet Lioncl Willians. L)ennis Joncs and Ke r in i\lilner. \4ilncr and Williams nercr appearcdat the deposition. At the conclusion of the Belated Motion to Concct Enors Hearing Judge Jourdan, glaring angrily at l\{ario and then directine her commcnts to Mario u'hile his elderlr \lother u 'Lssifting in the courtroom. said that lltario's mother had angered Judge Jourdan for making comments during roir dire in an unrelatedcase rvhere Mario's elderly mother \\as in the.jury pool md had said that JudgeJourdan had noi beenfarr to her son and JudgeJourdanuas outraged. On June 10. 1995 Mario's Belated Motion to Corect JuslcF 'Iuicc.

Errors was denied. Mario sought to obiain the record of trial from the Clerk and fiom John ltamocha. but was unsuccessful. Having exhausted everl avenue to oblain the record to prepare rhe brief to appeal issues llom trial and liom the Belated Motion to Conect Errors proceeding Mario filed a pro se peririon in rhe Court of Appeals seekrng permission to mise the issues liom trial and liom the Belated Motion to Corect Enors proceedings in a petition for post-conviction relief. On December I 2. I 995 the lndiana Coun ofAppeals. citing: Logan r. CruseiDavis v. State granted Mario permission to raise the issues from trial and liom the Belated i\lotion to Conect Enon in his petition lbr post conr iction reliefand dismissedhis appeal. On Januaru,s. 1996 Judge Jourdan qranted Mario's motion for change ot'judgc and named a panel ofthreejudgcs. On January 17. 1996 Mario strikes Judge Albrighr. On Januarv 19. I996 Judge Jourdan vacated her recusal and reassumed lurisdiction. On Januan l9. 1996 Mario objected to Judge Jourdan reassuming jurisdiction by liling his \{otion 1br Contelnpt litr Rcfusal ro complv with Order of the Coun of Appeals and filed a complaint with t h e I n d i a n a C o m m i s s i o n o n J u d i c i a l Q u a l i f i c a t i o n s .O n Februaru 20. 1996 on hc'r own motion Judce Jourdan recuscs herself. After a u,hilc of'liling motions back and lbrrh Sr. Joscph County ccts tircd and decided to play hot potaro *ith Mario's crirninal casc. On April ?5. 1996 St. -loseph Countv scnds ir to flkhan Counrv. a nciehboring citr'. lt is then given an l:lkhart f'oultrr' Case t 201)01-9(105-(F004--s. August 2. 1996 rhc F-lkhartCoun denicd Mario's On Post Conr iction petition for reasons prer iouslv known 10 hirn during both oi the appcals and trere not included in eithcr appeals and are thus *air c.dor prer iousll rulcd on in thc llelated \lotior to Conect F-monior * erc raised in t h e i n i t i a l a p p e a lo f t h c c o n r i c t i o n . O n S c p t e m b e r , 1 9 9 6 3 Vano Iiled his praecipe. I'hc Clerk of thc Ctxrn ol'Appcals rclirsed to nccepl mattcrs tiled undcr the blkhan Count\ C i t s cn u m h c r a r r di n t h e c o n t u s i o no r c r I h i c h c a s ea t o u s c \ { a r i o ' s a p p c a l* a s d i s m i s s e d . I n i 9 9 7 . a C h i c a g o n e $ . s p a p e rc o r e r i n c ! l a r i o ' s c a s e detemrncd that \4ario's trial -ludge's daughtcr had been sexually assaultedbv a black man belbre \4ario's rrial and that shc lrad instructedhcr daughter nol to datc black nterr. l n I 9 9 9 - M l r i o ' s * i l e o l t r r o y e i r r s .S a n J u a r a S i n r s a n d their Pastor Rer Sanruel ( hasc. mct Ilth ne\\,lv elccted .loth St. Joscph Prosecutor (hris and rvere told that outgoing St. Joscph Prosecutor \lichael I'. Ilames and his L'hief [)eputy' Prosecutor John \'larnocha had destroyed drums ol leeal liles er idence ol the fabrrcation o1 \4ario's criminal casc. A mcmber ol'the communitl nametl Georue also mct $ith C'hris Ioth- Pastor Chase and San Juana Sirns and all u erc' told o1'Uames animosity to \lario and d l t h c d e s t r u c t i o no l e r c u l p a t o n e r i d e n c e . ( ) n \ 1 a 1 ? 2 . l00l \{ario lilcd his \,1otion to takc Depositions at Public Erpcnse sccking to takc thc dcpositions o1 2.1 people including St. JosephC ountl l)roscculorChris I oth. tbnner \lichael P. Ilarncs clected St. Joseph Counl\ ProsecLrtor and lbmler Depuq Prosecutor John \larnocha regarding the newlv drscorered issue oI thc bad faith destruction o1 the materiallv exculpaton evidence ot the labrication of the case againsthim and Judce Jourdan reearding thc'issue ofhcr bias and preludicc against \lario. On May 1.1. 1001. lvlario liled a Request tbr issuanceof Subpoenas and an alildarit seekrngto subpoena peoplcat -13 a p o s t - c o n r i c t i o nr e i r e l e r i d e n t i a n h e a r i n c . i n c l u d i n g l\'tichael Bames.Johnltlarnocha. P. andJudse.leanne Jourdan.

On June 19,2001 Mario filed his Motion to Compel South Bend Police Sg. George Hal.rvood to answer the request for admissions concerning the fabncation of the trial testimony of felony witness Lionel Williams. Petitioner's Ex pane Motion for Order Authorizing Experts at Public Expense seeking to retain the seruices of Law Professor Alan M. Dershowitz, of Law PrcfessorsKeith A. Findley or John A. Pray fiom the Universit_v of Wisconsin Madison Innocent Prcject. On September 10, 2001 the post-con\iction court set a hering on pending motions for September 25. 200 t . On September 20. 2001 the court entered an order vacaring the September 25th hearing and that hearing rvas continued until December 17.2001 because Mario Sims had llled a Verilied Petition lbr Appointmcnr ol Special Prosecutor where in Mario Sims alleged that the elected 'l-oth. St. Joseph County Prosecutor, Chris became a u,itness 1br Mario Sims on the issue of the bad faith destruction ofthe materiallv exculpatorv evidence and the Statc filed a response to that requcsr indicating it had no objection to the appointmcnt of a speciai prosecuror.I'he Coun gmnted Mario's pctition tbr a Special Prosecutor and on October 4. 2001 appointed Jennifc-rEvans. On Dccembcr 27, 2001 the ( oun hcard oml arsumcnt on rhe pending motions and on January 2-5.l00l the (-oun cntered an order denving all discor err motions and again denving thc issuanceolsubpoenas. ()n Januar] 18. l(X)l thc post conviction Coun issued its I'rocedurai Order sclting lbnh its deteminations that pursuant to Rule l. Scction 9(b) of the Post-Conviction Relief Rules thrmatter bc submittcd by aflidavit and rlrantinc l\,lario pemission to have this matter heard as a writ of habeas corpus and a posi-convictiolr petition and thcv set d hcaring lbr April 17. 1001 furthcr orderins thar no testimonv he allowed. but that thc panics submit alfjdar its and argue thc law al the hcrring. ()n April l?. 2002 oral argumcnts on thc writ and postconliction pctition wcrc hcard. During thc hcaring thc State stipulatcd that the issuc of the bad fbith dcstruction of thc materially exculpatory eridencc was nervlr discovered. Yct Mario did not inr ite enor of not supporting thc issue ol bad laith destruction ol erculpatory er'idcnce rvith the allidarit ol Chris l-orh. Ordinarily counscl is not sub-iectto bcing ealled rs a *,itness. I'hcre arc exceptions lroqcrer. such as *hcn ('ounsel is belieled t0 havc material inlbrmation that cannot be discloscd otherw,ise. Toth. Bames and Marnocha *'ere the onlv sourcesthat could hare pror.ided the inlbnnation on the bad faith destruction of the crculpatory evidence and'[oth had alrcadt agreed to recusc himself thercby becuning a rvitnesslbr Vario. On July' I | , 2002 Mario's writ and post-conr iction pctition u,as denied. On Jul1, ?-s. 2002 Mario ljlcd his Notice o1' Appeal on August 19. 2002. On August ?3. l00l \'lario nolilled the Court thar lurther derelooments in the tbm of a tactual dctcrmination madc bv the hlkhart Circuit Coun showed that the State had knowingly used lalse testimonr at trial to gain Mario's conviction. Nou. atier all that what else is lcft to do.) Mario has exhaustedall Courl avenuesand continues to fighl tbr his fieedom. Recently in Scptember 2002 a brief was llled hoping to overtum his conviction.

Continued on los'er left of next page

THE N4AGMINE ThE wRoNGLy coNVrcrED DENTED: oF

P A G E1 5

- lssuE - WTNTER 2004 23

fffi
July 28,2003

Centurion Ministries
221 \fitLerspoon St.cet . Princcton, Neo'Jcrsc., 0.S5d2 . *.wx,,cclturionrlinistrics.ora-

DearMr. Sims: Thankyou for writing. \\/e notethat your case appears be a rapecase to withoutDNA evidence. that is true, If Centurion Ministrieswill not be ableto lo^ok your case.There at mustbe genetic material thatcanbe scientifically tested proveyourinn-ocencd orderfor C.M. to consider to in taking onyourcase'In cas^e: ofrapewe try to provethrough DNA testing theconvicted that p..roi innocent therapefor *hi.h he hasbeenconvicted, of solhismaterial absolutely is ::l^t:f" cruclal.
We realize that any arnountof time an innocentpersonspendsin prison is too long. We deeplyregretthat we cannotdo more for peopleliki you caughtup in a wrongful conviction. I am sorry we cannot help you in your quest for relief from the hardship of your incarceration. Sincerely,

S.eLing Justice for the Innocent in Prison

THE UNIVERSITY
J

WISCONSIN
M A D I S O N

Faculty Director Walter Dickey J. Director Meredith Ross J. Wisconsin lnnocence Project A. Keith Findley, Co-Director JohnA. Pray,Co-Director Wendy Paul S

December 19,2002 MarioSims,#943738 Center Westville Correctional P. O . x 4 7 3 Bo Westville, 46391 IN Dear Mr. Sims: will Innocence Project be unable helpyouproveyour to We aresorrythattheWisconsin
With a smail for to innocence. also apologize the longdelayin responding your application. We from inmates from across U.S.; graduallywe're making the staff,we're buried in applications our way through the backlog. for The reasons. prirnaryone is that we takecasesonly We must deny your application several is years servein prison;your expected release 2007, to for inmateswho have at least7 more andthereforewe which falls short.Also, we must give priorityto helpingWisconsininmates, rvhich cases. Usuallythosemust haveDNA evidence, takeonly a small numberof out-of-state thatyou had sex with your wife, only rvhetherit doesnot exist in your case.There'sno dispute DNA won't help with that.You do, however,statethat your wife is willing to was consensual. recanther testimony. your release date,let us knotv, andwe might reopell informationabout If we're misinterpreting politicalmotivesbehindyour conviction.Also, you might your file, especiallygiven the apparent projectin your own state. They primarily rvorkwith DNA cases, want to contactthe innocence sheet. others,as we understand. the contactinformationon the enclosed See but alsoconsider Sincerely, Project Stafl WisconsinInnocence Frank Remington Center J.
t l n i v e r s i t v o f W i s c o n - . i nL a r v S c h o o l 9 7 5 B a s c o r r N 4 a l l l ' l a c i i s o r r\,\ / l 5 3 7 0 5 - 1 3 9 9 608/262-1002 FAX 608/263-3380

Inc Citizensfor Common Sense" P.O.Box226 Grainger, Indiana 46530

4pr1126,2007
Dear Indiana Parole Board. This letter is one of supportfor a pardon for Mario Sims Sr. I am a studentin Paralegal Studiesat I.U.P.U.I. in IndianapolisIndiana.As such,I havepersonallyreadall of the transcripts from Mr. Sims court case,post conviction testimony.and have seenthe documentary evidence myself. I am appalledat the unwillingnessof the IndianaJudicial Systemto actually evidenccof lvlario Sims absoluteinnocents. acknowlcdgcthe undisputed I have spokenpersonallyto Mario Sims in length.I find Mr. Sims to be one of the most gentlemen intelligent. kind, caring,and mild mannered that I haveeverhad the pleasure of knowing. If any man alive ever deserved Pardon,it would be Mario Sims Sr. a Anytime I haveever spoken Mr. Sims,his spiritualitycomesthroughin the most to profoundand insightful mannerI have ever heard.I firmly believcthat if more Americanshad the intelligence, balanced with the kindness and good heartthat Mario Simshas,this country would be so much betteroff. I could literally go on and on aboutMario Simsand how he hasbeena greatinspiration to so many, as well as the tragedyof the bogusevidenceagainstMr. Sims, like the'Jailhouse snitch"n'ho lied on the standaboutgettinga "deal'' fbr his testimonv. the prosecutor or u'ho to allou'edthis inconecttestimonv be Dresented the iun. andthen laterlied in affidai'itahout to attorne\. riell as all of the testimon]giren at trial as these f-acts \lario's detense to disclosing
tl'ot -.. ^l-ro' tn ho f--lco

If an1'one desiresto contact me to hear more of my testimony on Mario Sims, or to hear it in person,pleasefbel free. . .. Please give-Mario Sims the long an'aited pardon in the interest ofjustice and fair play. '
.' M,':

t'

/
,t?:/

'
./r.'*-.

Michael Sabo-

(317) 35rAs67
Ave 747S.Drexel Indianapolis, 46203 IN

Judge Jourdan's Opinion

Mario L. Sims,Sr.
23778Grove Street South Bend, IN 46628 simsm2@comcast.net fax (574) 217-8005 Phone (5741271-7049 THE MAKING OF A CRIMINAL CONVICTION The conviction that somecomfortablybasetheir "concems" upon was contrivedby Mike judge Bames.John Marnocha,and Tim Corbettusing the racial prejudiceof my former trial Jourdan(l was not awareof her prejudiceuntil after shedeniedmy first post JudgeJeanne but had conviction efforts and was told by anotherJail inmate that he had datedher daughter a black man for she beentold by her daughterher Mom did not like black men because blamed is Jourdan no longeron Judge her sexuallyassaulting so they had to meetat the mall. Of course prosecutingsex crimes)After discoveringthis I the bench.She later becameu D.puty Prosecutor filed a motion for her to recusein 1996and it was granted' Not a sex offender er on ( 1) First I am not a sexoffenderby law: Upon my release Decemb 22- 2006,lnitially P & Associates C ' Ms. counselor. Nowak, of Nowak to I was required meetwith a sexabuse Ms. Novak reportedto my ProbationOftlcer. Ms. Melinda Remble,that I was After one session, programming.and that not a sex oflbnder and should not be requiredto attendany sex offender Sheriffs Oakleyof the St. Joseph In shebelievedthat I was innocent. fact Det. Charles u'astinghis time having to monitor his DepartmentSex OffenderUnit expressed fiustration in SpecialJudgeStevenKing of LaPorteSuperiorCourt 2 Ultimately me as a sex of1'ender. with no oppositionfiom the St. Joseph I determined did not have to rcgisteras a sex ofl-ender. O1lice.I successfully oithe St. JosephCounty Prosecutor's County Sheriffs Department probationwithout any incident.Feel free to contactMarc'liade, Ducomb Center'Det' completed Departmentand St. oakiey and Melinda Remble.It is odd that the St. JosephCounty Sheriff s register and posedno JosephCounty ProbationdeterminedI was not a sex offenderrequiredto "concems" about of threatto the saf-ety women in the community.but now somepeopleexpress St' JosephCounty Sex of me speakingout because a casemore than 18 yearsago. Checkthe Offenderregistryyou will NOT find me listed' Wrongful conviction to (2) Now here are the ugly t'actsof Barnes.Mamocha and Tim Corbett'sefforts ( No.: 71D05-9401-CF-0060 as gain my convictionin Statev. Mario Sins. Cause v,rongfuliy at my trial): read6elow teep in mind my trial counselput no one evenme on the stand into my home and raped to a. On January22,1gg4, the date I was supposed have broken on Edison and Hickory taping my then wit'e, I *urin fact at the HeritageCable*levision Studio Exhibit #3 )and did not leave my weekly cable show with co-hostDaJe Frank (Seeattached from my wife's tenantat 1107 there until after 4:00 pM. John Marnochasolicitedtestimony noticedher Carla Peat.that shearrived at her home at 3:30 PM that day and North Johnson, front of our marital pipes had frozenso she immediately sat in her u'indow watching the

residence1050North Johnsonwaiting for Linda ( my then wife) the allegedvictim to arrive, Carla Peattestified shenever saw me enterthe home. I had beenwith Dave from 2:00 PM until after 4:00PM that day. Mamocha solicitedthis testimonyto shou'I w-as the home prior to the in time my wife arrived.You may find her testimonyon transcriptpages940-951But Dave Frank's affrdavit . which I enteredinto the post conviction recordwithout objectionfrom Marnocha during the time I represented myself" showsthat is not true: b. The day I went to the SouthBend Police Stationto give my statement, January23. and was arrested, left my leatherband watch on the floor of my home at 1025North Johnson. was I I in jail and not released until April l. 1994.My next door neighborCandyceR. Tomkinsthat was babysittingmy son until my supposed retum that day discovered leatherband watch on the my floor at my home and picked it up and placedit on my desk.Threedays later that watch mysteriouslyappeared the home of Lori Gizewski. the state's at witnessthat testifiedthat I had droppedit on her back stepat her home after raping my wife and retuming the handgunI had borrowedfrom her to commit the rape. That neighbor'saffldavit. which I enteredinto the post convictionrecord (my criminal appealwas stayedby the Court Of Appealswhen I presented to my innocenceand was remanded file a belatedmotion to correcterrors) them evidenceof to without objection from Mamochaduring the time I represented myself, showsthat is was not true. My watch had beenplantedat the Gizewski'shomeAFTER mv arrest.(Seeattached Exhibit #4): c. After my arreston January 23^ 1994.1was placedin cell D-3. February 2.1994. I was moved from cell D3 a cell holding5 inmates. 4North a cell holdingover 30 inmates to including Dennis"D.J. Brown, Lionel Williams"and PaulWhitmer.Seeattached Joseph St. CountyJail who moved me remarkedit was unusualfor an Shift/detailLog History Officer Wettergren inmateto be moved unlesstherehad beena fight or problem.Therehad beennoneat 3D. The reasonI was moved to 4North was soon apparent. Tim Corbitt. who was with SpecialCrimes and assigned my caseremovedPaulWhitmer from to Sgt.G.D. Haywoodsex crimesinvestigator 4North on February14.1994supposedly go to the StatePoliceoutpostin Bremenfor a lie to detectortest. However Whitmer later statedthat Corbettwantedhim to provide the Statewith in to lestimony againstme. Initially Whitmer agreedto stateI had confessed him, then recanted a [,ater.Lionel in letterto me and beforeALL of the inmates 4North.So did Dennis"D.J." Jones. to Williams agreeto testify that I had confbssed him. At trial eventhough John Marnochaknew on that Mike Barneshad agreed April 19. 1994. weeksbeforemy trial on .lunel. 1994.to solicitedtestimonyhe knew to be false from Williams he modify Williams sentence deliberated to and committing fraud upon the court allowed the jury believeWilliams had no inducement testifu falsely,Marnochastandingsilent failing to correctWilliams falsetestimonyon June3. to on 1994.as my trial counselstruggled crossexamination show Lionel Williams had been to that I attached prove an oft-ered inducement(which at the time he did not havethe documents as defense items attached Group Exhibit #5). the it). Barnesand Marnochawithheld from the me. I only was Williams sentence modifiedon June9. 1994.daysafterhe testifiedfalselyagainst Williams criminal casefile while representing Lionel discovered them when I subpoenaed in myself pro se during my postconvictionproceeding 1995.(SeeGroup Exhibit #5).At trial to Tim Corbettand Sgt. Heywood had enlistedthe threeto testify falsely cover up the fact that againstme, Mamocha solicitedtestimonyfrom Lionel Williams that he, Williams, Paul Whitmer office attentionafter they had written a and Dennis"D.J." Joneshad come to the prosecutors Offrce.A attachedletter from Chris Toth'soffice showsno such letter letter to the Prosecutor's obtained by me in a civil rights to existed.Corbettin swom discoveryanswers interrogatories knowing Paul Whitmer, howeverthe St. suit sayshe was not involved in my case.and denies otherwise.Whitmer statedit was during this time JosephCounty Jail Detail Log demonstrates

that Corbettsolicitedhis help to convict me with the false confessionstory. During my Postconviction hearingmy then wife. Linda my allegedvictim was d. called by me as a witnessand admittedthat I could not have broken in thru the three locked doorsat our home to rapeher on January2l^ 1994.and admittedthat shehad testified falsely at trial when shetestifiedI had rapedher at gun point and left the houseat 6:30 PM that night. now all statingon post conviction that I was with her and our son at the marital residence that dinner and we watcheda movie and I sleptthereover night (Seeattached evening,shemade Exhibit #6): Affidavits from my e. During my Postconviction hearingI enteredinto evidence a witnessLibby Christianson. insulin divorce lawyer, David W. Albert, which statedthat state's of dependent diabetic,had told him shehad usedand disposed the needle,that at trial. after being to offered my car by John Mamocha as an inducement testiff falsely.shetestified t had usedthe pagesR.627-28,681-84)( I was allegedat trial to haveuseda syringe (Seetranscript syringe. filled with heroin to menace my wife and force her to have sex). Marnochasolicitedtestimony from Libby that shehad left a pack of syringescontainingten in my houseand after my arrest the police found the pack with one missing.Denis Burns my private investigatorgave me an Affidavit regardingthis. I enteredboth Affidavits into the post conviction recordwithout myself'. the small claims hearingon At objection from Marnochaduring the time I represented (not her car. Libby had NO ownershiprights to my car the complaint filed by Libby to get my car but as payoff for her testimonyshe was awardedmy car).shestatedon the recordthat John Marnocha had given her the legaladviceto get my car!!!?( I will neverforgetthe look on then Cpl. Mark Kovac's face when shesaid that. It was shearshockand disgustthat a prosecutor Group Exhibit 7)(Libby laterduring PostConvictionsaidshehad would do sucha thing).(See of namebut could not producethe nameor address the mistakenlyblurted out John Marnocha's law,yershehad intendedto say gave her the legal: to all did JudgeJourdan her racistthing downplaying of this evidence rule f. Of course motion to remandof this ruling of JudgeJourdanand againthe againstme. I later filed a second Court of Appealsremandedfbr me to f'rlea post conviction petition. lt was neverheard,my case was venuedto Elkhart County where JudgeDonald Jonesdeniedmy post conviction petition his without the statefiling an answer.I could not appealbecause order was sentto me more than was a Court of daysafterhe had deniedmy post convictionpetition.By 1999Barnes thirty puttingall of this stuff on the record!!!? me AppealsJudgeso that Court sanctioned fbr truthf-ully lettersand articlesshowing many peopleand organizations g. I have numerousattached what was done to me. are awareand have protested Affidavits. letters.articles,and transcriptspagesare The over 80 pagesof Court records. May God Blessyou! to uponrequest me by anyone. available In Christ.I remain.

DeaconMario L. Sims"Sr.

Mario L. Sims,Sr.
23778Grove Street South Bend,IN 46628 simsm2@comcast.net fax (574) 217-8005 Phone(574)271-7449 THE MAKING OF A CRIMINAL CONVICTION The conviction that somecomfortably basetheir "concems" upon was contrivedby Mike judge Bames.John Mamocha.and Tim Corbettusing the racial prejudiceof my former trial Jourdan(l was not awareof her prejudiceuntil after shedeniedmy first post JudgeJeanne conviction ef1brtsand was told by anotherJail inmatethat he had datedher daughterbut had she beentotd by her daughterher Mom did not like black men because blameda black man for Jourdanis no longer on Of course.ludge her sexuallyassaulting so they had to meet at the mall. prosecuting sexcrimes)After discoveringthis I the bench.She later becamea Deputy Prosecutor filed a motion for her to recusein 1996and it was granted' Not a sex offender 22,2006,lnitially on law: Upon my release Decembet ( I ) First I am not a sex oflenderb1,' P & Associates C . Ms. Nowak. of Nowak counselor. to I was required meetwith a sex abuse Ms. Novak reportedto my ProbationOfficer. Ms. Melinda Remble.that I was Afier one session, not a sex oftbnderand shouldnot be requiredto attendany sex offenderprogramming.and that shebelievedthat I was innocent.In tact Det. CharlesOakley of the St. JosephSheriffs his DepartmentSex OffenderUnit expressed fiustration in wasting his time having to monitor SpecialJudgeStevenKing of LaPorte SuperiorCourt 2 meas a sex offender.Ultimately determinedI did not have to registeras a sex oflbnder.with no oppositionfrom the St. Joseph Office. I successfully oithe St. JosephCounty Prosecutor's County Sheriffs Department probationwithout any incident.Feel free to contactMarc Tiade' Ducomb Center.Det' completed and St. CountySheriffs Department oakiey and MelindaRemble.It is odd rhatthe St. Joseph posedno JosephCounty ProbationdeterminedI was not a sex offenderrequiredto register and "concems" about threatto the safetyof women in the community.but now somepeopleexpress of me speakingout because a casemore than 18 yearsago. Checkthe St. JosephCounty Sex Offenderregistryyou will NOT find me listed. Wrongful conviction (2) Now hereare the ugly facts of Barnes.Marnochaand Tim Corbett'sefforts to ( No.: 71D05-9401-CF-0060 as wrongfutiygain my convictionin Statev. Mario Slzs. Cause read6elow keep in mind my trial counselput no one evenme on the standat my trial): raped to a. On January22.lgg4. the date I was supposed have broken into my home and on Edison and Hickory taping my then wife, I was in fact at the HeritageCableTelevisionStudio not leave my u,eeklycable show with co-hostDave Frank (SeeattachedExhibit #3 )and did tenantat 1107 thereuntil after 4:00 pM. John Marnochasolicitedtestimonyfrom my wife's and noticedher North Johnson,Carla peat,that shearrived at her home at 3:30 PM that day our marital the pipeshad frozensosheimmediatelysat in her windor,l'watching front of

residence1050North Johnsonwaiting for Linda ( my then wife) the allegedvictim to arrive, Carla Peattestified shenever saw me enterthe home. I had beenwith Dave from 2:00 PM until after 4:00PM that day.Marnochasolicitedthis testimonyto show I was in the home prior to the time my wife arrived.You may find her testimonyon transcriptpages940-951But Dave Frank's affrdavit . which I enteredinto the post conviction recordwithout objectionfrom Marnocha during the time I represented myself. shou'sthat is not true: b. The day I went to the SouthBend Police Stationto give my statement, January23, and was arrested. left my leatherband watch on the floor of my home at 1025North Johnson.I was I R. in jail and not released untilApril 1.1994.My next door neighborCandyce Tomkinsthat was my retum that day discovered leatherband watch on the babysittingmy son until my supposed floor at my home and picked it up and placedit on my desk.Threedays later that watch witnessthat testifiedthat I had at mysteriouslyappeared the home of Lori Gizewski,the state's droppedit on her back stepat her home after raping my wife and returningthe handgunI had borrowedfrom her to commit the rape. That neighbor'saffidavit, which I enteredinto the post to conviction record (my criminal appealwas stayedby the Court Of Appealswhen I presented to innocenceand was remanded file a belatedmotion to correcterrors) them evidenceof my m1'self,showsthat is was not without objectionfrom Marnochaduring the time I represented true. My watch had beenplantedat the Gizewski'shomeAFTER nry arrest.(Seeattached Exhibit#4); 2,1994. I was 23.1994.I was placedin cell D-3. February c. After my arreston January inmates including to movedfrom cell D3 a cell holding5 inmates. 4North a cell holdingover 30 CountyJail St. Dennis"D.J. Brown, Lionel Williams.and PaulWhitmer.Seeattached Joseph remarkedit was unusualfbr an who moved me Shiff/detailLog History Oflcer Wettergren inmateto be moved unlessthere had beena fight or problem.Therehad beennoneat 3D. The Tim Corbitt. who was with SpecialCrimes and reasonI was moved to 4North was soon apparent. to assigned my caseremovedPaul Whitmer from Sgt.G.D. Haywoodsexcrimesinvestigator to 1994supposedly go to the StatePolice outpostin Bremenfor a lie 4North on February 14. detectortest. However Whitmer later statedthat Corbettwantedhim to provide the Statewith to testimonyagainstme. Initially Whitmer agreedto stateI had conl'essed him, then recantedin a Later,Lionel in letterto me and befbreALL of the inmates 4North.So did Dennis"D.J." Jones. to Williams agreeto testify that I had confessed him. At trial eventhough John Marnochaknew' on that Mike Bameshad agreed April 19, 1994. weeksbeforemy trial on June l, 7994.to testimonyhe knew to be falsefrom Williams solicited he modily Williams sentence deliberated jury believe Williams had no inducement to and committing fiaud upon the court allor,ledthe testifu falsely.Marnochastandingsilent failing to correctWilliams false testimonyon June3. to on as 1994" my trial counselstruggled crossexamination show Lionel Williams had been to that I attached prove oflered an inducement(which at the time he did not have the documents as the withheld from the defense items attached Group Exhibit #5). it). Barnesand Mamocha was modified on June 9. 1994.daysafter he testifiedfalsely againstme. I only Williams sentence Lionel Williams criminal casefile while representing them when I subpoenaed discovered in myself pro se duringmy postconvictionproceeding 1995.(SeeGroup Exhibit #5). At trial to cover up the fact that Tim Corbettand Sgt. Heywood had enlistedthe threeto testify falsely againstme. Marnochasolicitedtestimonyfrom Lionel Williams that he, Williams, Paul Whitmer ooD.J." office attentionafter they had written a Joneshad come to the prosecutors and Dennis letter from Chris Toth'sofftce showsno such letter Offrce.A attached letter to the Prosecutor's obtained by me in a civil rights existed.Corbett in sworn discoveryanswersto interrogatories and deniesknowing Paui Whitmer,howeverthe St. suit sayshe was not involved in my case. otherwise.Whitmer statedit was during this time JosephCounty Jail Detail Log demonstrates

that corbett solicitedhis help to convict me with the false confessionstory. d. During my Postconviction hearingmy then wife. Linda my allegedvictim was called by me as a witnessand admittedthat I could not have broken in thru the three locked doorsat our home to rapeher on January2l ^ 1994.and admittedthat shehad testified falsely at trial when shetestified I had rapedher at gun point and left the houseat 6:30 PM that night, nou' statingon post convictionthat I w.as with her and our son at the marital residence that all evening,shemadedinner and we watcheda movie and I sleptthere over night (Seeattached Exhibit #6); e. During mv Postconviction hearingI enteredinto evidence Affrdavits from my divorce lawyer, David W. Albert. which statedthat state's witnessLibby Christianson. insulin a dependent diabetic,had told him shehad usedand disposed the needle.that at trial, after being of offeredmy car by John Mamocha as an inducementto testif,vfalsely.shetestified I had usedthe pagesR.627-28.681-84)( I was allegedat trial to haveuseda syringe syringe.(Seetranscript filled with heroin to menace my wife and fbrce her to have sex). Marnochasolicitedtestimony fiom Libby that shehad left a pack of syringescontainingten in my houseand after my arrest the police found the pack with one missing.Denis Burns my private investigatorgave me an Affrdavit regardingthis. I enteredboth Affidavits into the post conviction recordwithout obiectionfrom Marnochaduring the time I represented myself. At the small claims hearingon the complaint filed by Libby to get my car (not her car. Libby had N0 ownershiprights to my car but as payoff for her testimonyshewas awardedmy car),shestatedon the recordthat John Marnocha had given her the legaladviceto get my car!!!? ( I will neverforgetthe look on then Cpl. Mark Kovac'sface when shesaid that. It was shearshockand disgustthat a prosecutor would do sucha thing).(See Group Exhibit 7)(Libby laterduring PostConvictionsaidshehad mistakenlyblurted out John Mamocha'snamebut could not producethe nameor address the of lawyer shehad intendedto say gave her the legal: f. Of courseJudgeJourdan her racistthing downplaying of this evidence rule did all to againstme. I later filed a secondmotion to remandof this ruling of JudgeJourdanand againthe Court of Appealsremandedfbr me to flle a post conviction petition. It was neverheard.my case was venuedto Elkhart County whereJudgeDonald Jonesdeniedmy post conviction petition his without the statefiling an answer.I could not appealbecause order was sentto me more than postconvictionpetition.By 1999Barnes was a Court of thirty daysafterhe had deniedmy me AppealsJudgeso that Court sanctioned for truthfully putting all of this stuff on the record! ! !? g. I have numerousattached lettersand articlesshowingmany peopleand organizations what was done to me. are awareand have protested pagesare pagesof Court records. Affidavits, letters,articles,and transcripts The over 80 to available uponrequest me by anyone.May God Blessy'ou! In Christ-I remain.

DeaconMario L. Sims.Sr

Citizens Common for Sense, Inc P.O.Box 26 2 Grainger, Indiana46530 4pr1126,2007 DearIndiana ParoleBoard, Thisletteris oneof support a pardon for Mario SimsSr. I am a student paralegal for in Studies I.U.P.tl.l. Indianapolis at in Indiana. such, have As I personally all of thetralscripts read
from Mr. Sims court case,post conviction testimony, and have seen the documentary evidence

myself. am appalled theunwillingness the Indiana I at of JudicialSystem actually to

acknowledge undisputed the evidenceof Mmio sims absoluteinnocents. I have spokenpersonallyto Mario Sims in length.I find Mr. Sims to be one of the most intelligent, kind, caring,and mild mameredgentlcmen that I haveeverhaclthe pleasure of knowing. If any man alive ever deserved Pardon,it would be Mario Sims Sr. a Anytime I haveever spoken Mr. Sims,his spiritualitycomesthroughin the most to profoundand insightful mannerI have ever heard.I firmly believethat if morc Americanshad the intelligence, balancedwith the kindnessand good heartthat MzLrio Sims has,this country would be so much betteroff. I could literally go on and on aboutMario Simsand how he hasbeena greatinspiration to so many,as well as the tragedyof the bogusevidenceagainstMr. Sims, like the'Jailhouse snitch"who lied on the standaboutgettinga "deal" for his testimony, the prosecutor or who

allowed inconect this testimony bepresentedtheiurv.andthen to to laterliedin affidavit alrout

disclosing thesefactsto Mario's defense attomey.as well as all of the testimony'given trial at
tl'-t -.'.'^I o+ap-^. 'otn l.ro t-a I cp

If anyonedesires contactme to hearmore of my testimony Mario Sims,or to hearit to on please in person, feel free.... give Mario Simsthe long awaited Please pardonin the interest of.justiceand fair play.

(31i351-0567 )
747S.DrexelAve Indianapolis, 46203 IN

J:-iit 18

',9E

10:11Af'l llT .I(lll-PH

PFt-tSt3t;gp

P.?.,).')

STATE OF fN]I-qN.A, iN STATE OF fr\TfAltA :}IE

ST.

ST.

JOSEIH

CC[J}{TY

JOSEPTi SUF.SR.TOR COLIF.T

vs.
MA,RIO SIMS

eq.usE Nc. TlDosnitr-csooo6o

. - ' , i ' l . r l . -'''.,:l

OPTNTOI.I The chief 1995, Ec ;he fi-ling court's The tc Eerrniratec st. e Joseph nro Jucige of the the ind;ana 0f cou.rt Moticn of pro thi-s for ta saii se ccurt cause il:e oi Acuears on Aprir. the ?5,

appeal

and remanced of the ani

cau.se

superior

purpose

appelralt for thaE

-=e Eer-atea

co:recE

Er:-ors

plenarv-

coneideracion eppear=ci on t4ay

petit:urn. and f:ied his the Eerated Siate r,roEion its ch_e 31,

Defend.ant ETrors

Cor:irect

25., 1995

r_o which each rn for

f:led dismiss orr llay

response otherrs

on LTure g' moticn and/or

a-c-es-

The parr-ies Ehereto. cctrrt

moved to addition,

res'onse movecl the

l-9-Q5, thei
lfe=-i s rr+urr-r!^F

Defencant
r;-

an

Eviclentiary, he aEtachea

(oraf ) e_xhib_

u,* N=wLy Discove:ed Hearing was had the

E-.',,idence :o -.-e, 1995.

whrch

.1t5, were l{ctj'on

en June

The mo..ioxt-s Eo di_smiss Eo correcE a:rd Errors Eaken and u:rd.er

ceiried for

a:rc

Ainended

gelated were

l,tction

EvidenEiarrr

r{earing

consoridated

ad-tisemenE.. A. the to co*ect 3. lssues Errors raiseci TSSIIES BEFCFS TI{E CCIJRT by the Defe.ndani ,s ;oy rrim are A-nenced Eelatea, as r-o]rorvs Morion.

as enumerated of Surprise the

Cn Grourds 3a "

Whet.her

Defendant

,s

CcnstituEional

(6a)

JJil 18

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

P.:1.,1!

right ucder I, cl of r r i c ' i a n a c c n s L : -. tA r:tiic n e _ _Sect*on 13 tile u eo *tt".tive cross exarninatior: was vroiated bv e:

wi:Eess Lionel Wif.lia:s" o., wherher he was rhe -rype of perscjr_ r-ikei.r ro be mciiii!:"or-fended .by t,he faci rhat, anoiher. p"i=".r*;;;raj.J_egecly ccrnmj-tted a crine (n"""ia B - a s _ 9 0 2 ).
,?b No ewidertlar.T_ -v:*_.e hearir:g on Cef endanc ,s Mccicn for Cfrange 6t from _ Councy fcr FU:_pOse of Eelated l{oEion co corTect Error.

.hed=-,.ia.; ;;;;- _;i= ::;:;i;;.T=i ; = ;

iT:;;;Tg

3c. h-hether the defend.ant was d.enied the opFor-cunta"..:.? by rriri--"ounse1, f_.:.r? ii, t]:a: he wouid not r-o*i- . , r ibeen, s able ccin to have broken into =O hcrne atr t_g5o : h u a f f e g "defendanr,= H. ,,rcirnscn- - .because tiJ"l ccunsel C-iC nor geE the tape oi-cu.=l" puoJi"-tesEinronl. (sic ) until 15 :b 20 m- cur.es b.efsre trial began cn rJune L, 1_og44 . (Fraue,/Fresecuaor,i.al (Seading suppl.ieci lliscor:Cuct b1r Cour-t) )

used by rhe Depury Frosecutor :1:^trT,u:lqiy causrng fraud to be committea -up6n Jr=" courr Ciract {in examinaricn of Lionel W-*IL:_ams) (supplied by Courr). {1)

Whethez. pr:osecutor tel.rtV kncrvir:gly _f|1p-erjurec L=stimony to convict, Lhe d.efend_ cienying the def enlqanE due 1.tr, trrocess of law g'rrarantee_d, by as ihe Fif th anc Fourteenth Aatend,Tents of t.he United St.ates Consticr:tion and -Artrcle I, ]*i, of the CccsiiEution -section of the State of fn.irana b".=l_,=e hrs conviction

4a. used

:::::=:-_ = y l m o t i o nof rhe aer=rrG",r cr-scove fileC S/3L/gS)

rishcs

}i}:erher. Ehe SLate

viof at ed -Ii -

Ehe due

!:r"*iiJ

(2) Whether the iefendanc,s case must be d:smrssed, by reason the a_bove {notion fj-1ec s/3L/eS) "i 4b Whei]:.e= f aj_IeC to Fh? Deputy prosacutor disclose an inciucemeni f o:. stsate,s witnesa Libby Ch=istiar:.son to cestify by offering the wjtness. advice t" oULin the defendant ,s a u t c m o b i l ]egal e.

ttar)

'9E ._Tijt'l 18

10: lzFll 5T J{lr-;aPHFR(IS,: IIFF

n,'r':

and the ]eft hlr h o u s e a t 1 0 5 0 - r ],-..o . o 834-Bd5l iR, 7gg, -Johnson nor Eiw an! a key " = a : r - : j ] o . p . r a . , an<i chat CifenOa_n: brcke-i;;". e D e f e n o _ house,. 1_

4c . Whethsr t_..]e alLeged -=c!i*.rr.d,fr:;;.*oo..[i; ( r . m vi_ctim, Lind,: perj ureci hersetf ;; co u ri (e xtri n si: ,- , .=r ii:y.- ng falsely _aefendant was rapi that she bv tr" aefenaanc

, 4d.. 9pon

oef elda:rt Whether Lhe ccurt

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

tr.h. Frcsecurion b1, =ol.ci-*l comnitced

Trial_counsel failed son of defendant Eo

to taJ.k to Cake his scate_

iig rh;-d;r;J";i =-i"Jc';;ifl.:-i:.H:, =i::i,u

1. 5. F:auc, Defen,Janc diti belore t::ial D-*cep:icn nc: se-_ discovery ar.,i. su:prise Cir:istiarqon schemed tc firranc:a1 gai:r ancl for -"+1"t justice. tor

f:_aud

(Whethe::) Linby 5a. oerfraud the court fir the purpose of ==r".rg. 5bgail"ur"e 1' 2. 3. oi triaf

counsel

taLk with aEtorney, li-"ten tc

Defeldant,s baLkruptcy poelber,. )avid che tape of Jud.1, Lembert,,

Calk with ' dissolution

Da,rid Albert abouc proceeqings;

4-

talk rvi;h Dawid Albert about conver_ - -.* sation wi-t!. fibby Christiarr=orrr-fail_rre to crcss_examile Lor: Gzzewsk! abcub di:ecl ***nrrl"tion arsi{ers at Record EgBf . Or:al- Evii.entiar,r liearing, on New-ly of Discoverecl the ctrarcies

5.

The Evidence on the

Motio: filed

for

on l"tay 31, of by

1 9 9 5 r='q-rieSts d lsrn:ssal misconductr

groul,Cs used

prosecrrtorj-af Lhe prose.uticr

aJxd p erj r:reC furcl:e::

testic:oni.r for

knowingl-v

ar-r,j arleqes

grourr.,is

(L+)

-Tifl 18

'96

10:13Frt'l rfT ft:l:l=PH PRtl,1:'lFF

P.5.,l'f

his

orig.i:ral-

a.r_leEa.ions abuse of

of

f::aud

an. by

prcsecutorial Lhe s.agg ,,

{'4a) to

f nclude

rftl_gcono.ucC

discc.rerr ljonel
i;ritially o! his

discl-cse a plea
The to . :*=n'"ro Error, the a Court

faiiure

agreelrrenc with
nat=s as that_ a parE

to

h-:l-l:ams.
the f,efenoanr Mocion ccunsel pci;reedly Eo correct as noEed in hear,C hearing the b1r th.e anC lssues {C(1);

:-nciude issue cf page of

tselaEed of

ineffectiwe

assistance to bot:r

tr\^renty-seve:t Court

ciocrrmenE atriached howe.r-er, cral

a MoE.ion prior he to

Ini.iana du-ring to

A.ooeals; of his

presentation

er-idence. of

anrerded

al_Ieg.e ineffective (.2), tj) . (4) ,

assl_stance and (5) , ccrrect

ccu_rseL aE jc; Sinrs :he: ro moved incr.ude o,: denied.

5ir (t) ,

4ctL) , the the

a*'e':rq' his of his

Courr-_ tc barance ra:sed

eelateci

trtouiorr to of of

Erro:-s

asgerticns the court

inef 5ective which

ass:stance the co'rt

counse_r /

befcre

\:peals

The ccurt no.es cl:=se rnciude co-rnsel ,s fairure Tom Bradernas asr a charact.er, tro carr wirres*l-rir"re_ to f:1; Renedy prosecu-!-oria1 a Mof ion tc -u"u", failure io call ca.'al_ce Tomlcins; fail:,re lo ca.rr .r"ri.J*ia:cer,, i-il,r=" rc calr. Dnn i q E,r-_ . faiiure ro .i1ljo_lG;;-'?t

; treLL cr;-en:-t: faiLure to ==*L st;;1;i iio=*"*ro=, failure sEpD, regarci.ps weikne;;*;-.^ p;ti;. i].lJuri

;::jt:H"" - ii"'5'TiH":;T{S";::"::i:*t*":Aibert,- raiiure ro "i.il'iavi_c ;j" i.,: i: : : decision nor_ -;o calt kn";;;;;;; l-se4 *: ;; l;f :*:* Ii Max:_o s-ms, rr. Dennis Lannins; gairure ano/or
(zs) ;tii ro call gaiion.

2100 ro ;'bcut 4:0-0 p:;.--; Jaa fairure PauL whltmer re: r.eri-.r hl-'ga.re u a r y 2 ! - , - t g g * ro nenis rur*s before triar_; eo move for change of v-ni.*-; fairure Jo-'o'or* Lo di_smiss; to rrie.v-to restiict ur.-t." judiciti fai_u:.e co "i**.fr; t rairuie ;. " ;;r;glfl

f"ii;; r; ;:'"rjjj;.:3"s"*:..*"*:ii. in:"nlt"yF*; ::

33iili'-.aft,1'.g Eo cross_exarqine
Lalk ro fa'lure farlure exhaust

- -:.o ser Pr.cr .,.u.D'. ,l"r-itrrru

gI:, .i.r"lr-ii_v*..i*g

rape""T=.rff;li:

mid_rr:al,. Tom Mamrnon,

&a)

'9E, JUll 18

,lFF 10:13Ar,l 5T J{:}5:PHPRr]SC

P.6.,1'l

In grcunds Ineffectirie and D.

reaching into four

r:s

cp.nion,

E h e couri A. Ilewlv C-

has

grcuFed

all

cf

E-te e.

heaoings: of

Discowe:ed, prosecutorjaf

Eviience,.

Assiscance

Counsel; Fraud-

Misconduct;

Surprise,

Decept:on,

A. ?he test fcr

N:riILE Df*qCOVERm_ eVfneNCe a Mc.Eicr: to ccrracE Erro: based. orf Ind.

grantinc evi,Cence ls

newl-y d.iscoverei App., 625 II.E. L_ The rJune 20' after Eilat the he

fcunC

ai_ Beli-

w= Statg,

(1993),

zd, s73, 9rrhen tlas the Ewrdence Discor,-er ed? rs s[atemen. or

defense Lgg4 Erial' and/or

qiscovered releas= Burns,

i,;-bb-g chrisciarrson af Li:ner wrlli.ams

a::c the Denis Srns in

on Jrrne _q, r-gg4 agrees in Motion o. the Eo

-Qims' pri'"-ate of of The the. the oEher

'nvescigaror, i_nformat:or Belaced ,*,as part of David. file

were

aware

aJfi.dsl'fss cor:eet pre-t:ial was vrith I"LiIner.

offereC Errors before

support trial. efforEs

Amended

information that

Eurls, who

inrzestrgative Sirns on,fanuary trial p. rs the aEtorneyr 16fj Ewidense

except

Fra;1k

27, 1994. cn the first

Burns day

garre his of che

E.o Revin (Burns,

Crial-

Deposition, 2'

rvate=ial

and Rerewant

or

Me,rely

InpeachinE? christiansonr release on u-une s g, are statemenE 1994 both ano of Ehe June 2c, 1gg4 f iied on and iq the ilij.lians Cause igsue ,

dcci;ments ar:.

7r-D049107CF00635 prosec-Jcorr-ar

No cf

materi.ar 'I'he otj:er

ref.evant

mi scoacrrct -

affiiavit.-q

prese!,t

i.nLpeach_

&q\

.-i:l'l

;. 7 1':

.':lE inatei':a: f ,*, rrircia ery ;:,re . 4,

"'/haen

acidress qc

t;-bb1r chr:-sE.iarlsonrs t.s:ifrg regardino *ith cn her acts

mocltre

io

testiJanu_ the

-cims'

moii-;e are lef:

ccmini.ted

1994,

irdr''cf

incclsistent her hcuse i_

Eestimcay 4,

a.s :o

Ehe defendant w:ih Ehe

jar:.uarlr

L-f,94; anc Davr,a peat,.

rel aticns a:f ida-;-: t '-r'

on he= F:ank,s Maric

oet=niari

Jarua:-r,

i3?4. carra sims

rhajr na-r'= :-m5:eache,] the at the reit was

c:st j-ncnlr of Llnda anc

''s Eestimony his croar Sins anci faEhe=

hearing:mpeachec on ,.ranuari. 4

regard,i_r:.g Lhe bs.r.:a= a the

ti-me f rcnt Li:lCa

cffe;:ed

his

uincow -Lest:rts

br:,r<*l

.rr.ler hi-s

mo--he= threw 1993.

scapler. Car:irce il!o_=t cf ciarges tc bave* ScuEl:

thls c:.:---=: nei;her cf Z\,

c---:r-r_jl3a j_,-i Cc:.:ber, a- 5c a:=s=:r:-

Tornp'r; n= fhis

Jan j.ce is sta:e

i nc:achir,S..c Eo the ar1egec Str,3t,

infor:natioa by ori the

materiai

l:.or rele.,rant crj-rnes

-brougirt cccurrad. Eeni3'

rndia;ra iy-9,: a:

rega:dj_ng .i50 ii-

Janu=:r,

joh_nscn

Tom tsrad.emas is rs

a chara::=:

d:-Lne;sA;a'r-eble ? info=naticn should there of a1rea,J1i be a kncwn tc and ou:scme

The E-"-idence cr=di:i.e, De: :ritil:a;:-,-=

A:i the

of

the anc

af f idav: tran tc be

rs

c;iliaia

defen-ce

a.:;aiia;ie

ne?

Errar. The the sim*,

Ther-e is Def enca'E camef.'s Li-rby ble

no reason

douli

Ere creCibi..:iE:,, as

Ehe affiants r^rhich of break Li.nda

vi e',,r's th:s hack" on the and cor:rt, til the

i.:rf cr.natr-cn i.ssr:e Loi:i of the

rrsLraws

cieci;i-J.iry

ch=istianscin dcubt' 'The 'ttracks

G:2e,.;ski- and. therebir re-r:elvedof the

creace

reasona_ r:ctes

har.,cg

irar,Ecriptr, il='ee hed.

vrgorous

-red'i bili.cy can

tr:ese ;l:at

ryomen during r_riar_ criursei

cross -examinaticn

anc

ncF* ccncr.uc.e

&r:
-5t-

JJll

18

=E,

1D: l-4Al.l tiT JL]::;.FH PF:L}S': r:FF

P. ::-.'1 -f

used

these

r^ritnesses, nrr thaE the

lire

outcome urial

of

Ehe

tr_ia1

d:-ff erer:t

a geccnd cor.=: Ehe

,^,olr_id ha.re been res:lEs. raised by the

wculd. hawe Citferenc tha,. twc issues discovere,l

Therefore,

concr-udes for

sur-,zive :::-.rd""a ootrn are anci raiseci in ft''.e

Ee.-_! resr .he

nervlir of

ev:dence,miscond,uct tiansbn, oiscowsry s

u:rder Ehis 2a, of

accusatioqs

prosecutorla.I. are Libby Chris oi

addresseci on

nni n.,._^* v1,+iraLiir ' i994 and,

r\ r'ney Ehe

sEaeement ' abuses

al.J-egations g,

and reiease B.

1994. TNEFFECTIVE A-CSIST}.I.ICE O5' CC',JITSEL L: court state, {l_os+1, fnd, the 4s4 r..I.E. test Ttre first of or zd, to l_291_, the deternine ,,No t!,e

Licnel

,rliLiiams

on June

rn rnciana

Laqrence supreme

a,iopced of

sr:ickrars! crainrs . into t;re

ir:'ef'--ecti'"re conLest" Stricklansi sinrs tria.L

ass i stance is

ccunser

Deferrd,ant ls prong ^ cf of

allegation aaalysis; has

;rlcorporated actuaL che

i.e.,

perfcrnance acts

cou::sel omissi_cns

id-enti.'ied as

forlowing r

counse.l

his

inaffecLive

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

3c, failure_to get p=ab :ape; 4c(!) fa:lure to talk f'rario Jr.; Eo sb(ri-to -rir" raiiu-e to Lalk uo David Foelber f ailure Eo lj.s;en , (2) ,.i/;;;"b.rr tape , (J) fail_ure Eo car'k to Da'rid Ar-bert abiui t;; -iTury dlseclution (4 ) failure or . to tark co eLnerc

.o""t

See footnoce l- for aodi.tional allegations suJrject Eo the stricr<1ane-iest and denieii as if been permiLtec.-

'1
-'t 1 4I-L

the

of which amend.'eenf

are haC

Lb6)

rj|t

1s

'5E,

,:FF 18:14El,l :lT f()::-PH PRL)S,:

P. :1.,1!

L. r'The r"hecher

Did

Counse.t. Exe:cise at ali

Reaso:rable

.fudgen;? tc ranEe determine of pro-

cour--

musE 100k acts

r-he ci.rcunsiances the wide L Z g 4Ehat

the

ider:tif:ed'

i!-e:-e outsid=

f essionally has Kevin the

comFeeene ass:sLanser,. tc overcohe a stro'g

_ r r a w r e n c 3, presumption prcfessiorar_ pages as of

The deiense b:*= rav4rer,

burden

r'tiiner, The courr of

e:<ercised, has

reasonable 1300 as we1l

jud.girnenctranscricts and JT, , the

reviewed Miiner ,

tasLimony Frank, Denis

Kev,-n -\lbe:i

:ha;

of anc

Marro , the

David of

Dav:d' Eurns Milner: in

numerous ics i}:iro 4,

af f idawi:**

depositio_

reachrng Sirqs, Anril

deterrninaiicnpriwace ?he "tl*n=al f lrst, vrhel Balogh . _r{e enc*red his

bras cn

appearance filed in sent polrce Mj'lner privace March had victim 3,

r-gg4 for

charles

.A_qh=r, ha" for sims sta:e of

a staroard. ,-Tanuarythe ini:ial i{e

rl0tion

Discovery by Ray

he appeared. to

uras Eucceed,ed d.i;covery tipeC

whorn the

materiaL. and

The crisccvery taoed a'ci

consrsted.

reperEs, entered

inter_*iews,

inE_rviews, Burns,

Before acling on sims trhe as

his

ar:peara3ce.,

Barogh

Denis

investigator. r,gg4,

hac. assisted

sims.

Each rrac a fir.escipulated and oral sex that with

s'ims'anc

Ear.ogh had arar

arreaoy

sexual

intercourse,

imercourse

on January Itilner got Eo

Zl-,t 1994. the discovery from office eaiogh -n on Aprii just lle the 4, 1994. as scon He as

ad-:ised' l"tilner Burls

sins had

corne tr., his the

chicagc .

rawiewe,c che

disco'reqa a.c

macerial prov-ide lrlrn

requested, Eransc-i

Ehat

transcribe

t'apes

rrr-i nne

[cr )

'96 JJfr 18

,lFF 1A:1541'l :lT .I05:PH PRC)E,:

P . 1 0 , '1 9 '

Sims

neveT

went

Eo chicaqc

Mi-Jreg Burns ie

courd, acr_ reach ie have

EvenEuall-rr,

hir._, by phone. hirn. ger Sims ag:-=e :lotes to I

Mi1ne: Milrer

conEac:ed

Si;ns canEacE ro

AlEhough actively that -

tesEiiied. rjefe::se,

was,,difficult Ehe two dri me.

invorvec"

i-n his

and did

consenc this

ryas the neeting. rfrcr

d.ef ense Mir.ner

Milner tcro :o

Eook twenty Ehat he

Fag.es oi dicl no;

durir:-g call"

sirns

want

Mario,

Denais Their nct

Lanning only

iesEify

and' sims was $ims, Burns r,ambert

concernr_ug. Janua r! acccrd:ng, Eo Mirner,

agr-ee" decision provided,

disagrreement, aL triai. taces of 1994. ence

Eo testii_y the

lliln=r fj-le

Carla

peat

anC

LJllC.y

anC his arr

entire attornelr

oo LTu:1eI, whose excarj

I',Iilner, criminal und'er all jury the

incLuies professional

ciie

iir.il_rdred judgnrenc sims ma:\.

crials, circumsf in

acEed with ances.

rasonable

BetEer

comrnunication a oj.fferenE the defensehe chcsen

rvith Eriar.

ha'ze resulted regarding bond is nct and

th.e tr{o ro be

men electing called by

strategy cn

witnesses abte to

.Sims was tohin

f,wagy7 the for tape hir sims Burn,s

djscorreryEardiness and for

ha,l

Mi.tner wiuh ti:e the frorn.

responsibre Lambert supplied rrich

i:r srpplying l,t11ner had

Feat

ana

transcriptio4s Ehe to stat=

avafl_;,hie of notes

disco*ery his meeting

twenty trial. not to

pages

Frepare anc

Ir. s trial eo carr. Alberc Mario

strrategry, sims., .Tr'are

rigorous or Denrtis

cross-sxar-inaticr Lanning

c}:oice or calk

as wiEnesses

and Foelber

with:n

reasonabl

e prof essional

j.rCgmenc -

(t"a)

.ftJl.l 1B

'9F-

10:15Al,l :iT J{l:i-PH

PRC)Er:'lFF

P. 11.'.19-

2rn of ihe

Was Ehe Defendant

prejudiced? test, it is t,he burcien as6 by his

second step of tae Str_ickland "he deientjant to af i-irmat j_vely prorrs cond.uct fcr by showirg che=e is

he was prejucli reasonable the result

coursel'g EhaE, buL

probabil.ity of the pr-_ Lhat of cf

Ehe urrprcfessional hawe beenr

errors,

ceedings r*rr-ner ev-iderce "showingt been

,+rculd.

s{LrerenE. Cj_f ferent. must

.Assuming ccnsid.er

argnrendo, the Eotalrty

was unreascnable, to that ascerrain

Ehe court the

qri:ether

defendan:

h-as rnet his

burCen

Ehe decision absen: the t:re

r-eached er:-ors of .' errcr

rvour.d, reasonably i.awre!r-s-e-- p, are material r,2g+ or tsoth insi.ances and

J_ikely

dif ferent None cf

have

allegations is no

the

re]evant Foelb=r when on

charg:es ^

Eo and trhe the

The:-e

smol:ing

giun here. specific

Aioertts

information angerea che

regarCing victim moEive5b(a); an alibr is

. :"=*ttuTt ''s6'e of sively on

relevar:t Milner (3)i fcr

cumulaEi.u-e her

iinda

sir.s'

cro.s-exa-mined David the Franr<,s

exien_

mcti""e

(see;

wcuLd noi impeached stered .Tudy issue 5b(5)l cla.inn

tes.imony directl_y have bol_ cf airy

rrave esEablished carla PeeEts

Burglary he

nor

iesLimonlr. (see: 3c). Lori

J"lcreo-,,er, Fai'ure Gizeurski for

wouLa

Libby Lamberr or -

christianson

co ge-_ the did. not

tape

a:rd, crcss_e.xamine ary

effecE

eLininate Davjd Eo

opFa:curij.ty cculd used hawe a

inrpeachrnent

(See.:

Sd(Zi;

Albert har,,e

irrcpeached. Li.bbir f=om the

Christia5,son,F packee at the

never

sirringe

10

@q\

- , l L

a l

deienda*; zlccim
(see:

r*

house-

iiowsl's1-, the

piesence
u orr

claimed
5b {4 ) I -

-w.as neiiher

cf

a syringe : o" : . : h = i-

as the
charges

r e +eY q rn t - -r r va rs

* _ _ e _i r _ ; ma: *r al

: i:.s i_oura
i -!i __r lrtur';:al-I&--!y Of

f i::cs
L:l

thar

;:cr:e ci

:he

air'eEia::cils the

oi

e:ror

ccmbi_n3g1qn assrgtanc=
C,

ei gher c:hrs

,Cepri.;ed

r'',-l-r L -,j::',

L-

trC

Of l-ee ;_i.Ze

oef endant

e r - -c c u n s e i .
IVTISCS}I}L'iCT

?F.C,qET-TTCR.]^\.L

The y: state'

tesi

for

-or':secutcrial 355 )I.f ,

nr sccniu:: 2d 84f . rt

:s is

(is76i -' ircFrcsec.L:tor d=tendanc

fc..u:o

at

re=:snaqg 1l

dj.C l:.re pl-ace tts

errgag:e j-j: mis.::rnduct irr I 3z_a_,-e :e:l_l.,

two -o:rcnqec.. diC

snci 2:

t.1e m;sc:1d..:ct

ivas li.e: : !1:sc:;.1:u:: ? tiri?t ccu::' i::sla::'ce F::s--.rf cf ai n:;c:niucr 4r. Th=-;_ ai_

$ims ailege iue trhe to Iack tt :::r""-" _(-1 . fraud r'ack of

cj.:es the

up'fn o!

i:-e cra-;-ms misccn,luctr tpsrlmcny; r-:r t:re s''cw :.. hcl;ever, is e-\_

^chys::al

e,.'.lienc: c;

corfiln

physlcai rheat

e.ri*ence cj clainrs

_iootprincs

sBpD Repc:: eb. Libbi., Sirrs

Tr,rq.n,a* l4ammcn pr-,-.,rcei Manocl.a legai i;

.:ecorj.c. giv:-ng of

D:scorrtesci_ to get

rrronr/ by possession Hs ' court'

inciuc,=,j Fr:ured a*vlce n3 on hcw af smaif rawyer,

chrj-r-ti*n-ccn Merc=desEhat she in cn got c:len

an' 'g:

Ti:ere 'Jr:ne

er--.6grla* i;:, her-

christiansc{ she tolci Ey tha. The

perjrrrir,. c-r.aims Jcirr

admits rhe judge

2t),- 19:r4 frnn

acv:se caur:

Marncchatesc:tied courr'

affidavit in her was

and

ori ,Tr:r:e i9, in

19-qS. :he

ne.rv*usress, fron

she

mrs-spoke

aevice

sma_l' c_raims .he fur-

a 1a'"tfer

name,c Galdsm:th.

1i

':E JUfl 18

10:1bt:it,1 5T Jr]S-pH pROSrl rlFF

r . I J/-.1:J

trner advise.

tesrri-iei

that

Marncciia

specrr-icalry

refused

;o

Sive

her

?he Cuct

couri

concluies ir

chese

is

no

basis _

presented rJis Lhirc to sims

for

fraud

or

miseon_

Chese Erro aliegacicns whi.ch agreemen:

a1lsga;ien, a plea

'

includes and

failure Ai Iied Lhe 4a'

abuse r-raud, is

reveal cr'aims

cf mcst Lionel

discor/ery, serious. williams beycad stat.= :efuEe ir his

Marnocha sins suppor. and

anci State,s himself his

i.ricness no

abcut

a "d,ear."' to

in-.r-o*uce,'

Era::script

vicence rhe to

alr egaeion; Tirnothy

inrroduced the

r:owever, Mclaughlin I*illians r_994.

Eqro e-rchrbrEs

calIed

ar'legaEiontc Mcdify that Eo l-rre

Mclaughfin sencence he sims cf had no

repr-=s=ntec -fi-lec on Ja'uarl,p'omigs a

Moiicn testified priorBarnes, learningr sEpD taLked the

Licr-e' 28 , o.

I,lcrraughlin behaif l"Iishael dfi61 co sai-d tire he

d.ear" or I{e had

I{irrrams, with 3c,

tria1. sc.

conference on Marcb gawe

prosecuLor frcrn hi-s 2B ' at

Joseph tha-rn

couflry,

1994,

c-i-:ent 1-g94' Ehe st,

willianrs his

o:1 March r+ith gims

a .sta'ement williams ano sims

staternenr, ,rai* to

.10s=ph cou:r:' urged Earnes

charges a

admiited. to he,C. again

Mqla-ughrin of on to i'ay

pe::rnlt th:nk seeking Sirns williams' tesElfiedlses-

modification it' consent l,

g,:_ve hr s Barnes wroce testified caLlea At been

ccnsent said.

sentence 27t,.,

hearing-

abcuE hie

Mclaughrin gJirliasrs 7th, g, he

Barnes in

a hearing. drrd. on June J'ne

on June

l.g94r

sEaee. g=

Bai-nes 1gg4had

senrence on <i:rect

Mcr,auEhiin. Ifillian-E no promsaid he

?ras modified. examinabion

triaJ-, giwen ard

thai

Iie was questjcned

by* Marnocha

abqut

hig

hcpes

1 a

(t r)

JUil 18

'9E,

10:16At.l 5T J(ltt=pH pR()=r: rlFF

P.1.1,.19

arrd

reantec

his

cocceratroh

to

result

i-n

sentence cn L9' ?rith ' i994 i,rre irom to 1g' 1gg5' io the the 'itate judge I adniteed whic-r do not

mcd.lticat

ion

or- his

a reads

letLe-,,r

Barnes

d,ated Aprii have re.r-ented on is

regard,

I_,lonel_,rliilrams_ of sentence. Mr:hae1

a mod:fication yours ' stamped any

object decision, This

Eo a hearing ds retier arways, is

The ultimar,e

Respectfurly, Aprii Zz,

-D Barrrss. ,, ther.e:s

r_g94; however, or ccpy the of judge t.:e

fiie

ilcication he

no enE.ry cn the fo f iie

Barnes has no

CeS nor who is no

car*s.un:ca..ed ir: his

testijieC e'r:dence The silent as

Mctra[Ei:Iin There

letter

LhaF_ Williams state,'^rhi:h to whether30,

was aware of

Lhe fet:erdiscp-7g1.y =o Milner, is

se:lr.. a<icicionai Mi-r ner receir,_ed

inf ormaiicn Barnes is or

Mclaughlin's filed Apr:l

regarding Ehe leLter did not.

irfarch 22,

j-_a94 conference The cr,ear

wich

igg4this

in{erence

No testimony

EhaE he

refutes

j,nference. and perjuriz is tesEifyir:g co due put Fursuarlc rh.e to an

Afreement IVhen ind'rsement' before Helme, tive which rnd' cut.r, the jury Ehe a staEe.s the lury faiiure is a witness of cr.ear :he

golrernment or-

ind.ucement Rosg :L

vior.ation 1g8o).

process has

638 5'.2d duty may to hawe 2d

97g (zeh cir., arr

The stare wiEh

an affirmii_ witnesses (I-9g3), prose_ before

discrose

agreenencs the r+itness-

poteutial. *qtate

infLuenced 3S6.

-,Sj.rnsL= made, by put tre

455 N'Ethe is trial

l9'nen a pron-i-se is r-air.ure personar to

a fe110w ,,promr_seo rriar.

pr:osecutor,s depencenc on

a.ot

knowredEe.

cc,urrsel

1_3

(11)

'9E, :lT J_Jt'l18 10:17r3t.1 Jo:lipH pRLts,: r:FF

P.15219

rs

held

to

e,,si--ould.

have

k : : , o w n , , v ea ir_ ud a:ri C st n rr cl :'

sEat.es, The detemine. 53a N'E' ' the

40s u. s. esister:ce by 2d' trs 725' cf the

Gr q l i g i

l _ 5 c f r _ e g 2 ). of :riar' a'r agreement cou'i ' is i s a f ac'Lial lL* StaEe,

v'

unrted

g-uest i cn (igg8J,

tc

be

prcg:oglE upon the

:nd.-

The burden an face agreeneni. of

existence irr N'E'

ce;encantr da nc=e

co es.a_brish create a,.

inference ind459 cn

He must ceaial .

than

a ,lirecr_ 103S.

ts-.and y= poincs of April This

sLate co ,

2d' 1032.

(1gs5)

i{ere,

rereass af whrch

sirns letier-

rfune g' an direct is

wir.liams, Lgg4, both is

1gg4 and Barnes, inference denial :o the of cf

create by th_ case rn

refuttid

ari agrreenent _ both the witness

inference lawyer.

This 2d, thaL 491-

aqcf hie fll.,

akin

F e o o 1 e _. r _ F l o r e s witness iestifiea

(1gS9) on

Flores,

S3e N.E.

rnacie a ,,deal ,, w:th the state in exchange his testimony, r,hope, ,Le {d) to get sone her.p from Lhe statere At:ornev'n Frcr-es had a percing ease; the sta.e had totc hlsIarryer ic r+oulc. consid.er his rruthful_ testimony in arriving aE a further decieion as co how to proceed on the witness,s pending case ' The rev:ewi-ng court ccnciuded. that it wourd ncr sal/ the tr-ar testimony *as perjurious The witness had no. actuaify made a i.eal with Ehe SraEe in exchange for :esr:fyingr against the De-fenCanE, and hherefore, his sta:e:nent. traL he e:iqrected ,,help,, from the Siate was not a nrisrepresentat,ion. for sirns had rnference perfura" Ehat He three potential witnesses existed, n'ne ic call irr support of

a:thcugrr

cro6s_examinacion

he had rror

ar- ag.reeaenE chose ta

the

anci that ncl

lf:-tliams who

comrnitted. bad been

pr-esenl

3ar-nes,

1 . 1

(ra)

JiJll 1B

'5E,

1B:1BAf.l :iT l():l-PH FRt)Sr;,-gg

P. 16.19 ,

ordered faiied

to to

be meet there ti:is

av,aiLaele; his is issue. burisn. iic

not. ivilliarnsr The oi coure

itor

Mclaugh'in. tl:ere

He has was ..o

agrreenient; cond,uct an

ccncl.udes or

shcwiirg

pe:ju:ry_

prosecuEcriai

ni'_

Disqc.rerv Erad:C Easlev, 405 u' s ' L* var,rlan= , 3,,3 U.S. (gres)

Abr:se g3 (l-961) ; _Unr;ed v, Srates_ v.

473 ii-s. 150 cue

567. 87 L rd cJ.early ::ght as r+e'i of

and Giglig that the

(7972) , process

unitred gtdEes,

esLabrish

protected impeachment

cons:_i.tuticnaliy dj_sclosure ot

defend,ancs material

requires which is

material

as

e x c u r p a ro rv,
or- the ccnwiction the sense of fincing

co n si sE e n r,,,r r Eh
of be its t:iar-there guirt, a

Inor e dr r ec tl v
ti:'e justice ana the in

o' =r r iai;"- ^":l:.ng concern

er50r e-r,,idence tle

:: witr

constitutionaroniy if the

must thaE the

ocqurs is

zevs3-3sd

mat=ria.

suppressiqp s.nrey, is

uaierrnines ac 4g1_ The

outcome deterrni'ne disqlcsure of the

scnfrd,er:ce court that

j-n the must

revlewingr

wheEher been

a reascnable grovernmenc to

probabili.y

the defense, the resurc wouLd have been differentBaqley at 4gSIn Indiana, disclcsure is required on].y when dealing with oftrr=-ess agreements' McBroaig v' state (1ggBJ, rnci. 530 N.E, 2d, 725 Ar, e:<press agreemef,t does noE exist if a witness te,stifies faworagly with the hope of leniancy and rh,e stare neither con_ fj.rnrs nor denies that hope to the rcir,nesspreliminary discus_ sions are nct maeters which are su_bject Eo mardatory dis:1.sure, Lonez- 5 sr4re, (19e8), Ind_ s27 N.E. 2d 1119 . !l2g. Erial

rnace b.r the

had the

l.)

[r4 )

'96 J-ll'l 18

,^6-p 18:lBAi.t l-iT .trl::;rpH FF:r-rs,]

P. 1?.'19

Howevs:=' greater

Eheie the

is

:ase

ialv

tc rn

the

canrrar,v

buz'den an

r.rihich piaces ggg F-2.

gcvernrnenc-

S78, 5BZ ierh The f

Re,:tEeg

Cir . 1-98,q) the , cc:irt

rr. 'are,o,

i:elci that:

d*.ur,fi'rrt:,t'":
constj
rn had che ReutteE' parore unEil last

.h" ;;;i*';o=L,ffi "i.i".i;;='*ffi;ff;'i:,:-:***::

the boari's after day of his tl:e gove:nmeaE uas to a!.,rare that its key agreemenc Le:_Eimcny at hrrar. hearing to the Fo*rtlror:.e , h:s ReulEgrr. trial

howe.rer,is naE _3?==in3:i.:" JtgereernenE,

witness

corunutat j on _ in fact, aware h;s

bhe witness hearing that atEack

The defense

ccunsel

fuqd ap*Dfied Ehe paroie

was not or

fo.r a ccffrnutatlc._n of boasi

senEer]ce The by Lhe

befo:e

Ehat

e,136 schedu.edbeen used

trris the

inrormaEicn cred'ibil:tir of a

court

fcund to the the not

cou'c of

hawe

riefense c'at ani would

Lhe u,itness f e.l s1 his is

crerdibility additi.anal have and rnere arrd filed disclosa effected ccncluci'ed' effecrive f inds Apri1 is

The state ar ready pe:rdingr

argnrei suspec.

conwicted

informaEicn his the had the Lgsl

regariing

hearing tha.

trutrhfulne.s. cross-examination tbe disclosure

The court could, been

rejecteci have been

arg-riment

eiqrnificaatry agrrees letLer ro

rnadesEaEus

Thi_= qourE and Barnes The

that 22, error

pending should

m,otior:,s l:^awe been

d,j.sclosed.

failure

iravr-ng April second 22 '

concluded 1gg4 of

that

i-ailure e*or, tes-*-

tc the A tc

d.; sel0se eourt Erad:r

the nust

le.ter turn ro

consticuted Ehe Eaol=L the

filed the

prongi

auLcmatically

v{-olati-on

enciEr'e

d.oes rot _qhowr

d'efendanE

E c,e!v, trial,

ab5snl

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ing

tl:at

there

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Ehe tria-I

probabriity

wculci othe::-.,vise have been

t,,aE the :esurts

is

probabrlity

"sufficlenE

:.":::..",ffI.ffi,;
confiderrce in the

of

to

u'dermine

al' " ;;j;:: rn of that rrere' the ;;,*j Reutte{' trialthe rn

un:ted

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was the

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thar,

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there

Ehe reviewing of

was a reascnable was not

eourt

probability

the i'/itness

a different

wj-tness' cJ.osing

4 ktry wieness. n'ever raferred.

The prasecutor argurnenb ercept oR:r:-::

gq say in

sims was the key to wiiliams, tesEimonv in reb,:teal..

rinda

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whether the cour. IIad have perilk. "gra,/= using peril,, the tesE Ehat 'been eecond prong or the final of Baqley cr the to of Marionado-; Eelf'ris triar. in test, concludes the r'ecrer proogr of has the failed Ehe defendanc disclcsei, neet the pracec

Ljonef Fiit*iams a b c r r r ii t ? .thini{ r,ionei*'i: That's your " iu r J J : f :c o o ;?"t i . 3 o - - y o . t decid.e^.. you a" get somethjng You chinl< f^",q_ "o**thi.,.t? o"t of ic? scrnethin,n

i.e.. the

burcenwould rrgrave

results

.been

b.o dif ferenE,.

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CRDER. The DefendanE, s Arnended Bel:ceci

denied. Done in chambers Eirrs 3Oth

l

Mocion

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Correct

Errors

is

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St.

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