Several publishers I queried for Frog Gravy asked about the details of my legal case. How do you get convicted of a DUI without drugs or alcohol in the blood? How do you get convicted of possession, when 3 officers search you, your car and belongings for 1.25 hours by the side of the road and found no contraband? For the past year, I have investigated my own public defender’s case file, and have made some shocking discoveries. This is the first of at least ten things I found. I will post the others separately. I always assumed prosecutors were dirty. I never dreamed that one who is a public defender, and ‘Advocate’ for the indigent and underserved, could be so disgusting, as to go to any lengths possible, to ensure maximum harm to a client, resorting even, to criminal activity.
Due to the post’s length, you may wish to read it in parts. Rest assured, 10 or 12 equally horrendous examples will follow.
Background: Basic Case Summary
1. My true name is Rachel Ahmann Leatherman.
2. On or about June 26, 2006, I was arrested and charged in McCracken County with possession of cocaine (crack), tampering with evidence and DUI.
3. Private counsel represented me for a Preliminary Hearing and a Suppression Hearing. I obtained transcripts of these hearings, and ordered additional official transcripts that included a Grand Jury hearing transcript, and a 911 call transcript.
4. The trial court appointed attorney Chris McNeill [McNeill], Director of the Department of Public Advocacy to represent me after finding me indigent. McNeill represented me through the trial and beyond, which included a period of time from conviction through final sentencing, until Julia Pearson in Frankfort’s DPA office assumed appellate representation duties.
5. My trial began on January 22, 2008 and ended on January 23, 2008. I was convicted by a jury of all three charges. In March, 2008, I was sentenced to eight years in prison.
6. I appealed the convictions. All were affirmed in a published opinion by the Court of Appeals.
7. The Supreme Court of Kentucky denied review on 2/15/2012. The United States Supreme Court denied cert on or about 10/15/2012.
8. Sometime after the United States Supreme Court denied cert, I requested by FOIA some materials related to my case, including McNeill’s case file. I reviewed the materials in the late fall of 2012 and for the next several months, and I continue to review the materials today.
9. My Bar complaint is against Chris McNeill [McNeill].
10. McNeill heads the DPA office in Paducah. He has several Western Kentucky counties under his purview as a public advocate as well. He also has a main role in Drug Court. McNeill has been given awards recently, from the KBA, namely, where the KBA, in 2012, awarded McNeill with a “Professionalism and Excellence Award.” He was also given a trial award in 2012.
11. The Commonwealth appointed James Harris [Harris] to prosecute my case sometime after my hearing on suppression in November, 2006. My understanding is that Harris works part time for the Commonwealth and maintains an outside office and legal practice in Paducah.
12. I believe that McNeill acted unethically and violated the Professional Code of Conduct that states:
KENTUCKY BAR ASSOCIATION
RULES OF THE SUPREME COURT OF KENTUCKY
PRACTICE OF LAW
SCR 3.130(8.4) Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce
another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or
fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(e) knowingly assist a judge or judicial officer in conduct that is a violation of applicable Rules of
Judicial Conduct or other law.
HISTORY; Amended by Order 2009-05, eff. 7-15-09; adopted by Order 89-1, eff. 1-1-90
McNeill filed an ex-parte post-trial, secret agreed “supplementary order” without my knowledge or consent, and without motion, hearing or response from me, denying my pre-trial suppression motion.
The agreed order set aside suppression hearing testimony and substituted it with trial testimony and additional false statements of material fact. The order was devastating.
In reality, Harris wrote the order and faxed it to McNeill on September 27, 2007, four months before the trial, and four months before trial testimony had yet occurred.
McNeill concealed that he had the order prior to trial and still denies that he knew anything about it until he received a copy of it. In addition, McNeill refused to take corrective action, ignoring multiple written requests.
The agreed order, that accurately ‘predicted’ trial testimony four months prior to trial, is quoted verbatim in the published Court of Appeals opinion affirming my convictions. In addition, there are significant changes, from the faxed proposed order to the actual order, and from the first to the second, to the third (post trial) orders that must be carefully compared to the actual 911 call, the 911 dispatch recordings and all pre-trial under-oath testimony, because these changes indicate and reflect a deliberate effort to 1) suborn perjury pursuant to specific suppression issues at trial and 2) remove, delete, alter or otherwise hide from the record, both testimonial as well as recorded evidence in a criminal trial, essentially disappearing any and all evidence and testimony that supported my defense in any way.
The events surrounding the post-trial order are:
1. The trial took place on January 22, and 23, 2008. On January 23, 2008, after the jury convicted me on all charges and recommended an 8-year sentence, the trial court judge, Hon. Craig Clymer, ordered me into custody in the McCracken County Jail, where I began to serve my sentence, and also began to make plans to appeal all convictions. McNeill continued to represent me in the interim.
2. I told McNeill (through my husband), who had not represented me at the pretrial suppression hearing, that I wanted to appeal the convictions. The judge had issued an order denying suppression prior to trial, on January 18, 2008, that set aside a previous order, that was issued January 11, 2007.
3. I wished to appeal Judge Clymer’s denial of my motion to suppress evidence because his findings of fact were not supported by the testimony of the arresting officer, who was the only witness who testified at the suppression hearing, and the conclusions of law were also unsupported by the officer’s testimony.
4. On several occasions, my husband and I explained why we believed the trial court committed reversible error when it denied my motion to suppress. My husband provided written copies of all communications to McNeill. (McNeill spoke only to my husband, Fred Leatherman. He rarely spoke to me, let alone inform me of anything, directly.)The copies of my husband’s letters are in the case file. We told McNeill the following (see #5, for what we told McNeill, regarding my plans to appeal):
5. The arresting officer’s testimony raised three legal issues for the court to decide.
a. Pursuant to United States v. Hensley, 469 U.S. 221 (1985), did the arresting officer have a reasonable suspicion to justify an investigatory stop of my vehicle based on the caller’s 911 call in which the caller said,
i. “There’s this lady talking to my neighbor in my neighbor’s yard and writing stuff down in a book and she had mentioned something about heroin and all that stuff.” When the dispatcher asked what I was writing in a notebook, the caller said he did not know.
ii. The dispatcher then told the officer that a woman in a neighborhood was “asking about 218A.” 218 A is a KRS statute.
iii. In Hensley the SCOTUS held that the trial court’s decision regarding reasonable suspicion must be based on what the caller said (not what the dispatcher said) and the caller’s statement in my case was insufficient to support a reasonable suspicion that I had committed a crime, was committing a crime, or was about to commit a crime.
iv. Judge Clymer had ignored Hensley, which is directly on point and binding authority on all state and federal courts in the nation.
b. In the alternative, did the arresting officer have a reasonable suspicion to justify an investigatory stop of my vehicle based on my driving? The officer testified that my driving was appropriate, saying that it did not draw his attention as to weaving, and that “speed wasn’t a factor,” during his testimony at the pretrial hearing.
c. Finally, did the arresting officer stop me or did I voluntarily initiate a citizen-police contact in which case the protection of the Fourth Amendment did not apply? Judge Clymer made findings and conclusions that the encounter was voluntary because the officer did not stop me. He claimed, in the January 18, 2008 order denying suppression, “The officer did not conduct a stop of the vehicle.” I disagreed, based on the officer’s testimony at suppression, the dispatch CAD sheet, and the dispatch audio communications, the verbal codes used in the dispatch audio communications, the dispatch time stamps, the in-dash cam videotape, and the officer’s uniform citation, and narrative, as well as his grand jury testimony.
i. In the suppression hearing and in previous hearings, the arresting officer repeatedly testified that he “stopped” me, or pulled me over, or “fell in behind” me and stopped me, or that he stopped me based upon a call, or that he “located the vehicle and stopped it.” The in-dash video shows me slowing to a stop in the emergency lane with my right turn signal on. The dash cam clearly shows that the officer’s flashing lights are on. In addition to his testimony that the officer stopped me based upon a call in all hearings prior to trial, both his written uniform citation as well as his written narrative report state that he stopped my vehicle (“I fell in behind the vehicle and stopped it.”) Also, on the dispatch tape, the officer states to dispatch, using call codes ‘stop and pickup’ and he tells dispatch, “We’re going inbound. I got her in front of me now. Pickup (at Cairo Road) and stop. I’m sorry, yeah, pickup.” He told dispatch he was stopping me and picking me up, before he ever spoke to me. The officer obviously stopped me. The court’s findings of fact regarding the stop were false, and the conclusions of law were also false.
ii. In addition to what he said to dispatch about the “stop and pickup” and when he said it, the officer never testified that I pulled over and stopped before he activated his emergency lights, and then he pulled in behind me and stopped, in any hearing or document, prior to trial, including the suppression hearing.
iii. The in-dash video camera videotape was given to the court to consider, at the suppression hearing. I had supplemented the record with both the 911 call tape and 911 call official transcript and the dispatch (including CAD call sheet) transcript (and tape), prior to January 18, 2008, when the court issued its second order denying suppression.
iv. Also, the blood test toxicology results for alcohol and drug content of my blood, were given to the court to consider at suppression. There was no alcohol (0.00), and there were “no drugs detected,” in my blood. Four roadside PBT tests were administered and recorded on the tape, and those indicated no alcohol.
v. Also at suppression, the officer admitted that other than a roadside HGN, he had no reason to suspect impaired driving. The officer admitted that a 1.25 hour search of me, my car, and my belongings, my pockets, my breasts, my crotch and my shoes was “thorough,” and that no contraband was found. The officer conceded that he would not arrest for a DUI based on HGN alone. The officer also conceded that “glassy eyes” could be due to any number of things. Nonetheless, he arrested me.
vi. Also, the tape shows the officer improperly administering the HGN, with me facing the strobing (flashing) lights, holding the pen too close and swiping it too quickly, all departures from NHTSA procedure.
d. Although nothing is a certainty on appeal, I believed the trial court’s order denying my motion to suppress evidence would not withstand appellate review and I so informed McNeill.
6. Sometime after my trial in 2008, while I was in jail awaiting sentencing, and after I had explained (through my husband) to McNeill both my intent to appeal as well as the legal and factual reasoning behind the suppression issue, I received in the mail a bewildering and unexpected new “supplementary” order from the court denying suppression. The order was dated January 28th, which was five days after the jury found me guilty.
7. The new, post-trial order was on a different basis and grounds than the pre-trial suppression order. The new order set aside everything that had been offered at suppression, and substituted it with trial testimony and other false statements that matched no testimony at any time. The trial testimony was a completely new and different (opposite) story, with new, added and different facts, and the trial testimony favored the Commonwealth completely.
8. The post-trial order eliminated Finding of Fact 1, which was a verbatim recitation of what the caller told the 911 operator, and replaced it with the arresting officer’s testimony at the trial that materially contradicted his testimony at the suppression hearing. With the exception of my driving that the officer witnessed, what the caller said in the call, was the only relevant information to consider in determining whether the he had a reasonable suspicion to pull me over, in the first place.
9. But in the new order, what the caller said was eliminated. In the new order, my driving had changed, from appropriate to “unusual, disturbing and suspicious.” The words “unusual,” disturbing,” “unusually” and “suspicious” are repeated over and over in the new ‘supplementary’ post-trial order. The words are repeated so often that they attract attention.
10. Although I had official court reporter transcripts with me during the trial of the arresting officer’s testimony at the suppression hearing, grand jury, and preliminary hearings available for McNeill to use in cross examining the arresting officer regarding his numerous prior inconsistent statements under oath, McNeill refused to use them to confront the new trial story.
11. Also, my husband provided McNeill with a list of 127 questions, regarding the officer’s changing stories in the previous hearings. McNeill refused to attack the arresting officer’s yet-again changed testimony at the trial. McNeill allowed the officer to testify to a new story at trial. The new story was new in ways that it coincidentally changed on certain specific issues that might arise on appeal.
12. The new story at trial changed on certain specific issues that my husband had addressed with McNeill, verbally, and in writing. My husband believed he was communicating with McNeill in confidence. Had my husband known that McNeill was betraying confidence, he would never have spoken to McNeill, nor would he have emailed McNeill. McNeill did not have consent and permission to share these communications. Nonetheless, I believe he betrayed my confidence, through my husband, continuously and intentionally.
13. Since the supplementary post-trial order relied on trial testimony, with added never-before-heard facts and since the post-trial order was to my extreme detriment, for appealing the suppression order issued prior to trial, I asked McNeill why this happened. He told me the trial court had acted alone (sua sponte), and that he had no idea why it had done such a thing.
14. However, the order states in the introduction that the court issued the order per defense specific request to consider additional information. This statement is false.
15. Despite many requests from me and my husband that McNeill file a motion to strike the supplementary order, however, he never did. He thus also allowed the court to believe I had insisted on the detrimental order.
16. Imagine my surprise when I discovered a copy of the supplementary order, containing materially different trial testimony, in McNeill’s case file, after I served a lengthy sentence. The order, with new and different trial testimony, was faxed to McNeill from Harris, and dated September 27, 2007, four months before my trial. At that time, the order, with testimony from a trial that was yet-to-occur, was unsigned. In addition, a memorandum accompanied the order.
17. McNeill not only knew about the order before Judge Clymer signed it, he knew about it four months before the witnesses testified at the trial. The order, which at one point McNeill labeled “work copy” in his own handwriting, was faxed to him from Harris on September 27, 2007, at 3:38 PM.
18. Incidentally, the order remained on Harris’s formatted letterhead in the record; the court signed the order after the trial without re-formatting it or re-typing it onto the court’s usual formatted letterhead. Since the order was misrepresented as an agreed order in a nonconsensual ex pare setting with the court after the conclusion of my criminal trial, the court did no re-format to the court’s usual letterhead, likely because the order did not originate with the court, nor was it typed on the court’s computer terminal.
19. One of the trial witnesses was the arresting officer who repeatedly contradicted his previous testimony under oath and his written reports, as well as the direct evidence in the recorded dispatch tapes. As I said previously, McNeill refused to cross examine the officer about those prior inconsistent statements and now I believe I know why he refused. McNeill knew well in advance that the story would be changed yet again, at trial.
20. Two of the trial witnesses were police officers who assisted the arresting officer at the scene of the investigatory stop and arrest. Neither of them had prepared written reports regarding the incident or testified about it until the trial, 18 months later and four months after the supplementary order accurately ‘predicted’ their testimony.
21. The first statement in the supplementary order, authored by Harris, is false. It reads, “The defendant has requested the Court to consider additional information and evidence supplementing the record in this case, based upon which the Court makes the following supplemental Findings of Fact and Conclusions of Law in denying defendant’s motion to suppress:” I made no such request. Not only was I in jail without a telephone card, I would never purposefully request something harmful, let alone devastating. (my italics)
22. Further, the order’s quoted trial testimony language contains many of the testimonial words of Harris, who introduced them for the first time at trial, in the form of his narratives and leading questions that had not been met with any objection from McNeill. Before that, the words of Harris, “unusual, disturbing and suspicious,” for example, had never been uttered by any witness in any hearing or witness document, in any court setting, prior to trial.
23. Harris testified at trial without being under oath and without being subject to cross examination, because McNeill allowed it, by refusing to object and preserve the record.
24. There was no hearing, no hearing proposal, no motion, no request for a motion, no request for a response from me, and the jail staff had not escorted me to Court. There was nothing pending with the court; the trial record was complete. I only received a letter after the trial, in the mail. I did not know about, nor did I agree to, anything whatsoever in the agreed order.
25. Since McNeill had adopted the position throughout the entire case pendency not to talk to me, but to use my husband as a middle person, I called my husband, who would in turn inform McNeill. It was in this manner that I requested that McNeill both preserve the record by objecting to the bizarre ‘supplementary’ order, and to move the court to strike the agreed order based on a ‘defense request’ from the record.
26. McNeill refused to take any action whatsoever to object to the post-trial order, despite both me and my husband, in the form of me on the phone to my husband, and in writing from my husband to McNeill, requesting that he do something.
For example, on 3/4/2008 and in McNeill’s case file, stamped pages 182, 183 and 184, my husband wrote to McNeill:
“Finally, please don’t forget to point out that the defense didn’t request the supplementary order.”
There are numerous other such pointed written requests, over the period between January and March, 2008, that constitute begging McNeill to perform one reasonable, basic and requested lawyer duty in my best interest in this matter. He refused.
29. McNeill answered the repeated requests with inaction and unanswered letters.
30. The post-trial supplementary order reflects an interaction between me (through counsel) and the court that never occurred.
31. The order is silent reflecting default agreement, as to any Commonwealth response to my nonexistent request that the court reconsider suppression again. Ironically, the only passive action in the fictitious order is the Commonwealth’s lack of response, in a nonconsensual agreed order, authored by none other than Harris.
32. I believe it is unethical for a public defender to present a fraudulent and detrimental agreed order with the prosecutor, denying pretrial suppression, to the trial court after trial in a secret ex parte setting for court signing, and then lie to the client, and refuse to take corrective action, when someone’s liberty and future is at stake.
33. There is now a 26-page published opinion affirming my conviction that bases the affirmation regarding suppression on the language and guidance of the fraudulent “supplementary” order. It is as if a 2006 pre-trial suppression hearing never took place. It was as if the other pre-trial hearings never even occurred. It was as if the 911 call and the 911 dispatch exchange never happened. It was as if a new and different case was presented at trial.
34. On pages 10, 11, 12 in the published opinion, the post-trial ‘agreed order’ is recited, verbatim.
RENDERED: JANUARY 21, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
RACHEL LEATHERMAN APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
v. HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 06-CR-00408
COMMONWEALTH OF KENTUCKY APPELLEE
35. The post-trial supplementary order was not an isolated incident. It was part of a pattern of deliberate acts, betrayal of trust and confidence, and outright lying. For example, McNeill assured me over and over “not to worry,” because the notice of appeal had been “filed” because he had “tendered” the notice of appeal on April 2, 2008. He failed to mention the fee, and had my husband not looked up the statute and paid the fee at the last minute (on April 30, 2008 with borrowed money), my appeal would have been dismissed outright.
to be continued