Free Michael Clark - an innocent man serving LWOP
BAD LAWYERING
BACKGROUND
Much has been written about the reasons for wrongful convictions, including witness identification mistakes, false confessions, junk science, prosecutorial misconduct and a host of other reasons; often overlooked is bad lawyering. In our experience every single one of our clients and many cases we were aware of had trial lawyers that were ineffective, didn’t listen to their clients or the client’s family members, didn’t investigate the evidence or do the necessary research, didn’t properly prepare for trial and often were just plain incompetent. As result our clients were sentenced to some very stiff sentences including Life Without Parole (LWOP). In other cases bad lawyering got innocent men/women sentenced to death.
Although defense counsel for Michael Clark wasn't as bad as the defense of some of our other clients there still were mistakes made that contributed to Michael Clark being wrongfully convicted and receiving a sentence of LWOP.
THE TIMELINE
The timeline was a key element to the prosecution’s case. We believe defense counsel missed the opportunity to cast serious doubt on that timeline. They did too little and what they did wasn’t very effective.
- The prosecution stated the shooting occurred at 9:34 PM. That is not accurate, that was the time the 911 call was made. The actual shooting most likely occurred at least 2-5 minutes before which would greatly impact the prosecution’s timeline. Defense counsel didn’t focus on this discrepancy at trial.
- Based on what Mike's 1994 defense counsel stated to us, the 1994 timeline showed Mike had an alibi at the time Marty Grisham was shot and that he was never arrested nor charged with the crime. What changed in 2012 that supposedly placed Mike at the crime scene at the time of the shooting? The 2012 defense counsel didn't bring this discrepancy up at trial.
- Allyson Hackman and her mother stated in police reports in 1994 that Mike was on the phone to them during the actual commission of the crime. But even if Mike wasn't on the phone at the actual time of the crime he couldn’t have left his home in time to commit the crime; remember back in 1994 there were no cell phones so Mike had to be on a land line phone at home. How/why did Allyson and her mother's testimony change in 2012? Defense counsel didn’t bring up this discrepancy at trial. To complicate matters there were no phone records collected that could have verified the actual time and place Mike's phone call was made to Allyson and her mother.
- Defense counsel in 1994 stated to us in a phone conversation that he had an investigator drive the route from Jamie Uhlir’s apartment to Marty Grisham’s apartment. Defense counsel 2012 never brought this up at trail nor did they state whether or not she had their investigator drive that route to see what the results were. The prosecution’s timeline was very, very tight and moving back the actual time of the shooting from 9:34 PM to even a couple of minutes earlier would have quite an impact on the prosecution’s timeline and shown that Michael could NOT have been at the crime scene in time to commit the murder of Marty Grisham.
THE MURDER WEAPON
Although an entire web page has been devoted to this subject we'll review it again to show the mistakes made by Mike's defense counsel which proved costly.
This was another key component of the prosecution’s case in which defense counsel missed the opportunity to cast serious doubt that the actual murder weapon was NOT the gun Mike had bought at an earlier date.
- The gun used to kill Marty Grisham was never found by the police and the prosecution had to rely on expert witnesses testimony, using a GRC database to try and identify the gun used to kill Marty Grisham. Their results showed that the Bryco Jennings gun purchased by Mike fit the profile of a gun that COULD have been used to kill Marty. However, that GRC database also produced fifty nine (59) other gun manufacturers that produced guns that also fit that profile; further there were many models within each of the fifty nine gun manufacturers that also fit the profile. Using a conservative estimate of five models per each of the fifty nine gun manufacturers it showed that approximately three hundred pistols fit the profile of the gun used to kill Marty Grisham. The Bryco Jennings gun, once owned by Mike was one of three hundred guns that fit that profile. The prosecution used two expert witnesses, one in the 1994-95 time frame and the other in the 2010-12 time frame. This was a rather complex and lengthy testimony by these two prosecution expert witnesses, and their findings were all circumstantial. Defense counsel didn’t use an expert witness of their own that could have cast serious doubt that the Bryco-Jennings gun was just one of many guns fitting the profile that could have been used to kill Marty Grisham. In email communication with defense counsel they stated they consulted with a defense gun expert. Defense counsel did try to cast doubt on the prosecution’s theory that the only gun that could have killed Marty Grisham was the Bryco Jennings gun purchased by Mike. But wouldn't a defense gun expert witness been more credible and have done a more thorough job of casting serious doubt that the results produced by the prosecution were essentially meaningless? Why did defense counsel choose not use their gun expert at trial? Did Mike even know about the gun expert?
- Dion Moore stated in a police report, dated March 16, 2010 that Mike returned the full metal jacketed round bullets to him and that he noticed Mike had hallow point bullets loaded in his gun. Was defense counsel ever aware of this? If not why not? If defense counsel knew about this report why didn’t they hammer this point across at trial because it would have verified Jamie Uhlir's testimony that he saw hallow point bullets loaded in Mike's gun on October 26, 1994. Further it would have clearly shown the gun Mike owned, which police claimed was the murder weapon did NOT have the type bullets that killed Marty Grisham.
- Dion Moore stated that his friends Vanessa Reich and Summer De Viere saw Mike's gun in his car on November 1, 1994, the day of the murder. Neither Vanessa nor Summer was ever called to testify by the defense or prosecution. It is believed that these two girls would have contradicted Dion’s Moore’s statement about the gun being in Mike’s car on 11/1/94. Neither testified at trial. Lead Detective Chuck Heidel stated in Discovery that he had located and contacted both Summer and Vanessa. Neither recalls this incident or the ride to the bus station as described by Dion. It's understandable why the prosecution never called these two girls to testify, but why didn’t defense counsel investigate and call these two girls to testify at trial, particularly after what was discovered in Discovery about the girls not remembering the incident? Their testimony would have contradicted what Dion Moore testified to? Defense counsel, in an email to us stated she requested that her investigator attempted to interview all relevant witnesses. Did they not consider Vanessa and Summer relevant witnesses? If these two girls testified at trial for the defense and contradicted Dion Moore’s statement it would have destroyed his credibility and showed that Mike did NOT have that gun in his car the day of the murder as he has always claimed
- The police knew about the gun Mike had purchased through Dion Moore. When the prosecution's gun experts went to the GRC data base they already knew the gun they were looking for. Instead of this being a blind search, not knowing the murder weapon they were looking for they already knew the murder weapon they were looking for because the police told them the Bryco Jennings gun was the weapon they were sure of was used to kill Marty Grisham. Remember the gun experts and police are all part of law enforcement and the gun exports would have wanted to be supportive to their brothers in the police department. This was a predetermined search and not a blind search as it should have been. Defense counsel never pursued this line of questioning that could have cast serious doubt as to the validity of the GRC data base search.
CARMEX CONTAINER
Although an entire web page has been devoted to this subject we'll review it again to show the mistakes made by Mike's defense counsel which proved costly.
The Carmex container was the only piece of physical evidence that remotely connected Mike to the crime scene. Mike’s defense counsel was not aggressive enough in casting serious doubt that the Carmex container did NOT belong to Mike.
- Why didn't defense counsel bring up at trial that the Carmex container had been contaminated? In the Discovery a letter written by Det. Richard Denig of the Boulder Police Department to a Technician at the Colorado Bureau of Investigation (CBI) dated November 4, 1994 stated: "This is additional evidence reference a homicide which occurred in Boulder on 11/1/94. This Carmex container was found beneath a stair near the entrance to the victim's apartment. This item was not found during the initial crime scene search that night, but it was discovered the following morning in daylight. Prior to the container being found, the area had been hosed down with water. The container was wet when I found it. This item( lRD) has not been analyzed by any other lab, I am requesting that it be examined for any latent fingerprints which may be present on the exterior surfaces. I DID OPEN the container, it contains a small amount of the lip balm. Thank you for your assistance with this case, please call me at 441-3396 if there are any questions regarding this particular item." When Det. Denig opened that container he contaminated that piece of evidence which should NOT have been allowed at trial. What Det. Denig should have done is picked up the container with latex gloves on, placed it in an evidence bag, sealed the bag and sent it to CBI. What defense counsel should have done was bring this up at trial, thereby casting serious doubts of the DNA testing of the Carmex container.
- Did defense counsel know that Mike NEVER used or owned a Carmex container because he couldn’t stand the taste and smell of it? Did they know that Kristen Grisham, another potential suspect owned Carmex containers and used them frequently? Defense counsel never brought any of this up at trial.
- The testing of the Carmex container, by the prosecution's expert witness produced results that did not meet the standards expected when DNA is used to positively identify the perpetrator of a crime beyond any doubt. Defense counsel used a lawyer/DNA consultant to look at the results produced by the prosecution's expert witness. I spoke with the DNA consultant and in a roundabout way he seemed to say that the prosecution's expert witness's evidence was hard to dispute; we disagree with his findings. As a result defense counsel choose not to use an expert witness. But couldn’t a defense expert witness cast doubt on the prosecution expert's witness' results and compare them to other DNA testing nationwide that shows much more positive proof and tangible results than that produced by the prosecution expert witness. At least the defense would have had an expert witness that was more qualified to discuss this complex DNA testing than just a trial lawyer. Defense counsel told Mike that a defense DNA expert witness would be used at trial only to not use one. Didn’t Mike deserve a fair shot at having a DNA expert testify on his behalf about the only piece of physical evidence that remotely connected him to the crime scene?
- Why didn't defense counsel request a Daubert/Lannigan hearing who's purpose is for the judge to determine if he thought the highly suspect prosecution DNA evidence should have even been presented to the jury? Because of the suspect DNA evidence presented by the prosecution there was the possibility that the jury would have never see that evidence if a Daubert/Lannigan hearing was held.
ALTERNATE SUSPECTS
Although an entire web page has been devoted to this subject we'll review it again to show the mistakes made by Mike's defense counsel which proved costly.
There were other potential suspects in the shooting of Marty Grisham that were not pursued at trial by Mike’s defense team.
- Marty Grisham left an insurance policy and money from his retirement fund to his two children, Kristen and Loren with a very small portion to his ex-wife Pam. Marty was murdered on November 1, 1994 the day the insurance policy was to expire at midnight. If he hadn't been killed that day Loren and Kristen Grisham would have been left with no insurance money. Defense counsel never brought this up at trial even though in communication I had with them they said they knew about this but didn't disclose this to Mike
- Loren Gresham failed the last question of a lie detector test when he answered NO to the question did he participate in the planning of the murder of his father. This lie detector test probably could not have been brought up at trial but defense counsel never mentioned this to Mike.
- Kristen Gresham tried to use obvious countermeasures to defeat the test. This possibly could have been used at trial yet defense counsel never mentioned this to Mike and never attempted to use it at trial.
- The bullets that killed Marty Grisham were full metal jacketed round bullets. One of the prosecution's own informant witness, Dion Moore testified in a police report on March 16, 2010 that Mike had given back the full metal jacketed round bullets to him and that the bullets loaded in Mike’s gun were hallowed point bullets. In a question we asked of defense counsel about this they replied: “Again, we pursued any investigation that we thought was relevant to obtaining an acquittal for Michael. This meant that investigators were asked to interview a multitude of witnesses. For each witness, we requested a variety of questions be asked. The timing of events would certainly be part of such requests.” How did the defense investigator miss this? Because of the critical nature of this evidence not being presented at trial by defense counsel we believe it resulted in the jury returning a guilty verdict for Mike.
- Was there a relationship between Dion Moore and Kristen Grisham that could have resulted in Dion Moore killing Marty Grisham for part of the insurance money? Although speculation it appears it was never investigated by defense counsel. In a question we asked then about this possibility they replied: “Possibly, but none of the investigation assisted that, and there is a risk that blaming one of them just makes the jury believe the Michael was also involved.” It appears defense counsel missed another opportunity to look at another possible suspect that would have created reasonable doubt in the minds of the jury. Isn't it defense counsel's job to investigate and present alternate suspects as part of a rigorous defense of their client.
- Who wasn't the man Tanya Augustine (Jerome) saw in the complex, as she was walking towards the laundry room somewhere around 9:15 PM right before the murder of Marty Grisham ever really investigated as a possible suspect? In communicating with defense counsel here is their response to this question: “I think the police decided this was a neighbor. Our position was no one figured out who it was and they were not an alternate suspect. We argued this at trial.” It appears defense counsel did not use an investigator to find out who this person was. Police said it was a neighbor returning home from work after the murder, but Ms. Augustine said the neighbor did NOT match the composite of the man she saw that night and she never got to meet that man in person.
- In 1994 when the murder of Marty Grisham occurred auto tapes recorded the police stating the hood of Pam Grisham’s car in her driveway was warm, yet in the trial of 2012 the police testified the hood of the car was cold. Defense counsel never caught this discrepancy; it certainly would have added to the possibility that someone in that household (Kristen or Pam) could have driven over to Marty’s house and shot him.
THE INFORMANTS
Although an entire web page has been devoted to this subject we'll review it again to show the mistakes made by Mike's defense counsel which proved costly.
When a prosecutor chooses to use informant testimony it is a key indicator that he knows he has a very weak circumstantial case.
- Why wasn't Leon Stackhouse’s informant testimony used back in 1994 when he stated at that time Mike confessed shooting Marty Grisham? Quite possibly the reason was that on November 5, 1994 the lead detective in the case, at that time wrote in his notes that "Stackhouse is untrustworthy, needs a polygraph, and goes as far as to call him a psychopath." Why didn't defense counsel ever bring this up in the 2012 trial?
- When Leon Stackhouse stated Mike confessed to him why didn’t defense counsel go deeper into what informant testimony really means and what Stackhouse really received for his testimony?
- Did Leon Stackhouse ever give informant testimony regarding another prisoner at a earlier date prior to 1994 or a later date after 1994? Was he in fact a career informant? Did defense counsel ever investigate this possibility? Often once an informant testifies he has done it before and has made a career of it.
- Defense counsel didn't bring up a trial that in exchange for testifying against Mike, Dion Moore received the dismissal of pending cases against him.
- There was ample evidence that Dion Moore was a viable suspect; he owned the same type of gun Mike owned, he had loaded in his gun the type of bullets that killed Marty Grisham, he knew Kristen Grisham, it can be presumed he would have taken money from someone to kill Marty Grisham, and he had something to hide by agreeing to testify against his one time friend Michael Clark. Defense counsel didn’t pursue this line of questioning when it was clear Dion Moore had something to hide?
- Why didn’t defense counsel check on the relationship between Kristen Grisham and Dion Moore? They both lied that they didn’t know each other when in fact Dion was at a party Kristen threw.
CONCLUSION
- Failure by defense counsel to investigate and actively pursue witnesses and evidence, and present said witnesses and evidence at trial that would have shown the timeline used by police and prosecution was NOT accurate when placing Michael Clark at the crime scene of the murder of Marty Grisham.
- Failure by defense counsel to provide an expert witness to testify at trial that would have disputed the findings by prosecution gun experts casting serious doubt that the gun once belonging to Michael Clark was just one of many that could have been used in the shooting death of Marty Grisham.
- Failure by defense counsel to investigate and actively pursue witnesses and evidence, and present said witnesses and evidence at trial that would have shown that the bullets used to kill Marty Grisham did NOT come from the gun once owned by Michael Clark.
- Failure by defense counsel to provide a DNA expert witness to testify at trial, even though defense counsel had told Michael Clark one would be provided. Defense DNA expert would have cast serious doubts on the validity of the findings produced by prosecution expert witness on the DNA testing of the Carmax container, the ONLY physical evidence used to remotely place Michael Clark at the crime scene of the murder of Marty Grisham.
- Failure by defense counsel to discredit the informant testimony of Leon Stackhouse and Dion Moore that would have cast serious doubt on the guilt of Michael Clark.
- Failure by defense counsel to investigate and pursue evidence and witnesses, and present said witnesses and evidence that would have shown there were alternate suspects that had motive means and opportunity to commit the murder of Marty Grisham thus casting serious doubt on Michael Clark being the shooter that killed Marty Grisham.
- Failure by defense counsel to disclose key information to their client Michael Clark that would have shown that one or both of Marty Grisham’s two children could have been participants in the shooting death of Marty Grisham and raised serious doubt about Michael Clark’s guilt.
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