To be Argued By:

LISA A. PEEBLES, ESQ.

FEDERAL PUBLIC DEFENDER
Estimated Time: 15 Minutes

NEW YORK STATE SUPREME COURT

APPELLATE DIVISIONFOURTH DEPARTMENT

PEOPLE OF THE STATE OF NEW YORK,

Respondent,
v

GARY THIBODEAU,

Defendant-Appellant.

REPLY BRIEF ON APPEAL FOR DEFENDANT-APPELLANT

GARY TH1EODEAU
Oswego County Indictment Number 94-161
Docket Number KA 16-005 10

LISA A. PEEBLES
Federal Public Defender
Office of the Federal Public Defender
4 Clinton Square, 3rd
Floor
Syracuse, New York 13202
315.701.0080

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 TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

ARGUMENT 1

THE RECORD BELOW ESTABLISHES THAT THE PROSECUTION

ACTIVELY SUPPRESSED EXCULPATORY EVIDENCE PERTATh.aNG
TO ALLENS CONFIDENTIAL INFORMANT STATUS AND
THE SHERIFF DEPARTMENTS EXPOSURE OF HER INFORMANT FILE
TO THE PUBLIC

A. The actions of the prosecution immediately preceding and following Faheys demand for
production of Allens CI file prove the prosecution did not provide Fahey with the
December 9, 1994 internal memoranda 3

1. Faheys knowledge of the contents of Sergeant Lorties Report do not support

disclosure of the entirety of the CI evidence 7

2. Creation of a document does not equal production of a document 7

3. The Sheriffs Department continues to officially deny the existence of the CI file
at the same time Deputies Van Patten and Montgomery are confirming the
existence of the file in written memoranda 8

4. Dodd takes no action to correct the Sheriffs Departments false statements 9

5. Documents created by Dodd after he learned the truth about Allens CI status do
not mention the December 9, 1994 internal memoranda 9

6. Peoples Exhibit QQQ proves nothing about what evidence Fahey received from
Dodd on December 14, 1994 11

7. The green mark on the documents contained in Peoples Exhibit QQQ only proves
the documents were copied 11

8. The omission of two date stamps from the December 9, 1994 internal memoranda
required by Dodd are not collateral matters to Thibodeaus Brady violation
claim 12

B. The record does not prove Fahey received Allens CI File through a May 17 or June
5, 1995 disclosure 12

C. Dodd has not been proven to be more credible than Fahey 1$

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II. THE INTRODUCTION OF NEWLY DISCOVERED EVIDENCE WOULD RESULT IN A MORE
FAVORABLE OUTCOME AT TRIAL 22

[ A. The County Court erred by failing to assess the new evidence in light of the trial evidence 23

B. The County Court erred by failing to non-mechanically evaluate the new evidence in its

U entirety and by teaching unsupported factual determinations that failed to account for
the complete evidence 25

fl 1. Jennifer Wescotts secretly recorded admission is reliable, admissible, and fully

exonerates Thibodeau 26

n III.
2. The County Courts rejection of William Pierces testimony is not supported
by the record

THE COUNTY COURT VIOLATED TH[BODEAUS DUE PROCESS RIGHTS

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C BY LIMITING HIS PRESENTATION Of THIRD-PARTY CULPABILITY EVIDENCE

INVOLVING MICHAEL BOHRER 33

r CONCLUSION 35

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 TABLE OF CITATIONS

STATE CASES

People v. Archie, 78 A.D.3d 1560 (4th Dept 2010) .7

People v. Beani, 57 N.Y.2d 241 (1982) 34

People i. Bellamy, 84 A.D.3d 1260 (2d Dept 2011) 30

People v. Biyant, 117 A.D.3d 1586 (4th Dept 2014) 25

People i. Ely, 6$ N.Y.2d 520 (1986) 31

People v. Golden, 211 A.D.2d 729 (2d Dept 1995) 32

People v. Moflneux, 168 N.Y. 264 (1901) 34

People v. Pinder, 269 A.D.2d 547 (2d Dept 2000) 32

People v. Shilitano, 218 N.Y. 161 (1916) 29

People v. Urlich, 265 A.D.2d 884 (4th Dept 1999) 21

FEDERAL CASES

Brady v. Maryland, 373 U.S. 83(1963) passim

United States v. Abottmoussatte,n, 726 F.2d 906 (2d Cir. 1984) 34

STATUTES

N.Y. C.P.L. 440.10 passim

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Gary Thibodeau submits this reply to the prosecutions arguments in opposition to his appeal.

Thibodeau will not address every argument presented in the prosecutions brief. As to arguments not

addressed herein, Thibodeati relies on the arguments presented in his opening brief.
[ ARGUMENT

fl I. THE RECORD BELOW ESTABLISHES THAT THE PROSECUTION ACTIVELY

SUPPRESSED EXCULPATORY EVIDENCE PERTAINING TO ALLENS
CONFIDENTIAL INFORMANT STATUS AND THE SHERIFF DEPARTMENTS
[J EXPOSURE OF HER INFORMANT FILE TO THE PUBLIC.

On appeal, Thibodeau challenges the County Courts denial of his motion to vacate his conviction

fl based upon the prosecutions active suppression of Brady material. Thibodeaus claim is fully supported

[ by the record.

Thibodeaus Brady violation claim involves the prosecutions active suppression of exculpatory

evidence that established people, other than Gary and Richard Thibodeau, had a motive to harm Allen

because she was a kiown snitch in the community tvhere she lived. The suppressed evidence includes
C Allens CI file (A. 2739-2744; Peoples Exhibit B) and the December 9, 1994 internal memoranda of

11 Oswego County Sheriff Deputies Van Patten, Montgomery, and Anderson, which confirm Allen was a

confidential informant (CI). (A. 2342-2344; Defense Exhibits 8, 9, 10). The December 9, 1994 internal

memorandum of Deputy Van Patten reveals he created a CI file for Allen and lost that file in a public place.

[ (A. 2343; Defense Exhibit 9). The December 9, 1994 internal memorandum of Deputy Montgomery

reveals he recovered the lost CI file from the D&W Convenience Store. (A. 2342; Defense Exhibit 8). No

[ further action was taken by any member of the Oswego County Sheriffs Department to mitigate the

potential harm they caused to Allen through their negligence. Allen became employed at the D&W months

after the owner of the D&W found Allens CI file and turned the file in to the Sheriffs Department. Allen

was thereafter abducted from the D&W while working the morning of April 3, 1994.

In its responsive brief, the prosecution argues Gary Thibodeaus trial attorney, Joseph Fahey,

received the December 9, 1994 memoranda, but not Allens CI file, on December 14, 1994. (Resp. Br. at

14-16). The pretrial record (A. 23 16-2320), the trial transcripts, and documents created by former Chief

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Assistant District Attorney, Donald Dodd (A. 2359, 2361, 3115), prove Fahey never received the December

C 9, 1994 internal memoranda. Fahey specifically asked for Allens CI file during a December 8, 1994 pretrial

F hearing (A. 23 16-2320) and met with Dodd six days later to obtain discovery from the prosecution. All

documents created by Dodd to document this event exclude mention of Allens CI file and the December

[ 9, 1994 memoranda. (A. 2359-2360, 2361-2366, 3115-3 143). Avoiding these documents altogether, the

prosecution tries to prove disclosure of the December 9, 1994 internal memoranda to Fahey on December
C 14, 1994, through Dodds personal copy of Deputy Van Pattens internal memorandum found in Peoples

Exhibit QQQ. (Resp. Br. at 16). On that document Dodd wrote notes indicating the memorandum was his

copy, contained Brady material, and was turned over to both defense attorneys. (A. 2908). There are no

C dates as to when the notes were made or tvhen that document was turned over to the defense. Id. There are

no similar notations on the memoranda of Deputies Montgomery and Anderson. (A. 2909, 2910).
[ On May 16, 1995, Investigator Kleist wrote a report indicating he and Investigator Yerdon found

[ Allens CI file, referenced in the December 9, 1994 memoranda, and specifically requested by fahey on

December 8, 1994, in a box in the Sheriffs Departments garage on that date. (A. 2345). The file was

logged into evidence on May 23, 1995, one day after the start of Gary Thibodeaus trial, and placed on shelf

B-20 in the Sheriff Departments evidence room. (A. 2345-2347). Allens CI file never left that shelf. Id.

The prosecution attempted to prove disclosure of Allens CI file, along with Investigator Kleists

C report, through a generic May 17, 1995 cover letter, authored by Dodd and mailed to both Fahey and Walsh

on that date. Dodds cover letter does not mention Allens CI file or discuss the disclosures. Thibodeau

argued that the May 17, 1995 disclosure was impossible for two reasons. First, Walshs trial file contained

[ a copy of the Kleist report with a May 16, 1995 received date stamp from the Oswego County District

Attorneys Office and a May 23, 1995 received date stamp from the Oswego County Sheriffs
C Department. Walsh could not receive a document that contained a May 23, 1995 received date stamp

through a May 17, 1995 mailing. Second, Walshs trial file did not contain a copy of Allens CI file,

miscellaneous papers, or the 1993 personal plannerall of the evidence collected by Investigators Yerdon

and Kleist on May 16, 1995 which was placed into a plastic bag, sealed, and logged into evidence

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(Peoples Exhibit B). The prosecution claims the location of the May 17, 1995 cover letter in the trial

C courts file constitutes abundant evidence proving disclosure of Allens CI file. However, the existence

[ of the cover letter in the trial courts file proves nothing about what, if anything, was mailed with the letter.

Finally, the prosecution offered a second, mote specific, cover letter, authored by Dodd on June 5,

1995 and addressed to Fahey and Walsh, to prove disclosure of the Kleist report found in Walshs trial file.

This letter identified specific evidence being sent with the letter, but did not mention Allens CI file.

According to the prosecution, Dodd sent the Kleist report, and not Allens CI file, to both attorneys on this

date. The purpose of this offering was to explain how Walsh possessed a copy of the Kleist report with a

May 16 and a May 23, 1995 received date stamp. If Walsh could not receive the Kleist report with these

two date stamps through a May 17, 1995 mailing, the prosecution argues, then he must have received that

version of the Kleist report with the June 5, 1995 cover letter. The prosecutions argument must fail because

Walsh only possessed a Kleist report with both date stamps and because the June 5, 1995, though identifying

specific evidence enclosed, does not mention anything having to do with Allens CI file.

A. The actions of the prosecution immediately preceding and following Faheys demand
f -
for production of Allens CI file prove the prosecution did not provide fahey with the
December 9, 1994 internal memoranda.

The following events provide the backdrop to Faheys meeting with Dodd at the Oswego County

District Attorneys Office on December 14, 1994; the date Fahey received a copy of the Sheriffs

C investigative file. (H.T., 1640-1647).

Sergeant Lortie, the supervisor to Deputy Van Patten, oversaw the creation of Allens CI file by

Deputy Van Patten on December 11, 1991. (H.T., 1927-29). This event was so memorable to Sergeant

[ Lortie, that on the morning of Allens disappearance, April 3, 1994, he told his supervisor, Undersheriff

Reuel A. Todd, that the investigation into Allens disappearance should begin by looking at Allens CI file.

(A. 2287). Sergeant Lortie told Undersheriff Todd that the file contained information about drug dealers

[ in the community Allen had provided information about to the Sheriffs Department. Id. Sergeant Lortie

believed, and rightfully so, that these people possibly had a motive to harm Allen. Id. Sergeant Lorties

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inquiry revealed that Allens CI file was not in a secure location. Id. The report contains no other

information about Allens CI file. Id.

[ One day prior to the December 8, 1994 pretrial motion hearing where fahey specifically demanded

production of Allens CI file, The Post-Standard issued an article, entitled, Heidi Allens Role Again

[ Questioned, Investigators Deny The Missing Teen -A get Was Police Informant, But a Defense Lawyer Cites

a Report By An Oswego Cottntv SlzertfJs Sergeant. (A. 2276). In this newspaper article, the Oswego
C County Sheriffs Department denied Allen was a CI, stating Allen spoke to deputies about an unrelated

F drug case two years before she disappeared, and the information she gave was never used. Id. Fahey told

the Post-Standard that he believed this information was enough to have the case dismissed against the

Thibodeau brothers and said Sergeant Lorties report piqued his interest because there might be other

C suspects with a motive to harm ALlen. Id. In response to Faheys piqued interest, Lieutenant Goodsell

and Undersheriff Todd stated there is no formal file, because Allen was not really an informant and

Sergeant Lortie was mistaken because he was thinking of a file he hadnt seen, so he wouldnt have known

if there were one or 100 cases involving Allen. (A. 2277). Notably, Sergeant Lortie was unavailable for
fl comment and Undersheriff Todd spoke in his place. Id. The active concealment was set in motion.

El The record proves the falsity of these statements because Sergeant Lortie had created Allens CI

file with Deputy Van Patten and he relayed this information directly to Undersheriff Todd and Lieutenant

C Goodsell on the morning of Allens disappearance. (H.T., 1927-1930; A. 2287).

[ The next morning, on December 8, 1994, the parties appeared for a pretrial conference to discuss

motions made by Fahey and Walsh, seeking orders from the Oswego County Court compelling Dodd to

comply with their discovery demands. (A. 2289). Because Dodds sworn affidavit in response to the

1 defense motions indicated he was prepared to turn over the entire contents of the Sheriffs investigative

file, the Oswego County Court (Brandt, J.) was prepared to rule that defense motions were moot. (A. 2327).

Judge Brandt refused to issue a blanket order compelling Dodd to produce Brady material absent a specific

showing for a need for such an order because Judge Brandt had personally discussed what is and what is

C not Brady material at length with Dodd in the past and there was no question in Judge Brandts mind

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that Dodd was aware of his duty. (A. 2317). This prompted fahey to make the following specific Brady

request for production of Allens CI file:

Mr. Fahey: On this issue, I would note that there was a report disclosed to Mr. Walsh
which indicates that the victim in this case was at some previous time working as a
confidential informant for the sheriffs department several years previously.

The Court: Ijust read the article in the paper the day before yesterday.

Mr. Fahey: Thats when I discovered it.

The Court: I see there is possibly some factual dispute as to whether or not Sergeant Lorty
(sic) is correct in his assertions, or that which is directed to him. I dont know whether a
report exists or not but Mr. Dodd has indicated that he is going to give you the file on this
case, and if there is reports in the file involving Ms. Allens prior relationship with the
police agencies that would be relevant to this proceeding, it is my belief that he is probably
going to give that to you.

Mr. Fahey: The report that Mr. Walsh shared with me indicated that there was a file in
existence that was brought to the scene of the D&W, but Mr. Walsh has not been given
that particular tIle. Thats what I would ask to be disclosed. I am arguing on behalf
. . .

of Mr. Thibodeau, frankly. Thats who I represent. But knowing there is certainly that
kind of documentation in existence, we are under the subject of Brady material, it seems
incumbent upon me, representing Mr. Thibodeau, to make that request.

The Court: I dont know if it exists or not. I honestly dont know. I dont know if Mr.
Dodd knows whether it exists or not.

Mr. Dodd: Judge, I have some information. I most certainly, again, will speak with Mr.
Fahey. It appears often times the first time I hear something is when I read it in the paper
and in that regard, Judge, that will create an issue I wish to address when we are through
with this particular motion, your Honor.

The Court: Well, I read the paper. It would seem to me that the information was coming
from various members of the Oswego County Sheriffs Department, and I would have to
conclude, make the assumption, that they are a whole lot closer to being under your control
than Mr. Fahey. If the information came from the department and you heard it from the
newspaper, I am not going to blame Mr. Fahey and Mr. Walsh for that. I dont know what
the situation with that is. It is quite perplexing.

Mr. Dodd: I will talk to Mr. Fahey, your honor.

(A. 23 17-2320) (emphasis added).

This record proves two important points in support of Thibodeaus Brady violation claim. First, Walsh

received documents from the prosecution that Fahey did not. Second, Dodd was specifically directed by

Judge Brandt to find out if the Sheriff Departments perplexing on-the-record denials were true or false.

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 Immediately thereafter, a heated exchange occurred between Walsh and Dodd regarding discovery

matters specifically relevant to the December 14, 1994 meeting where Dodd claims he provided Fahey with

the December 9, 1994 internal memoranda. (A. 2320-2322). Walsh sought a yes or no answer from

Dodd as to whether Dodds promise to turn over the entire Oswego County Sheriff Departments

investigative file meant disclosure of everything in Dodds possession. (A. 2322-2323). Dodd would

not answer the question, causing Judge Brandt to intervene and admonish Dodd:

And I become troubled by the fact that you are saying, well, yes, except for Rosario
material that we will give when we are ordered to give it. Well, if you are going to give
the complete file, you give the complete file. You dont come in and say, I am going to
give the complete file, but Im not. I mean if you are going to give the complete file, the
issues are moot that are raised in the motions. if you are not going to give the complete
file, dont come in and represent that thats what you are doing because, Ill then decide
those applications that are being made for specific discovery.

(A. 2327).

Dodd continued to dance around the direct questions posed to him, stating:

My concern is, Judge, there are certain matters the sheriffs department is still following
up on as I speak and what I dont want to do is to stand in the way of the sheriffs
department from furthering leads that come to them at this time. Thats what I am trying
to do, Judge.

(A. 2330).

Judge Brandts frustration grew and he confronted Dodd, stating:

So to come in and say to me I will give him the entire sheriffs file. I will give him the
entire report we got, but I am only going to give him discoverable material. I mean by
telling him you were going to give the entire file, I have already conceded and I think the
lawyers for the defense have conceded, that there may be items that are not statutorily
available to them under the discovery portion of the CPL, and if that is the way they want
to proceed, I dont think they really have a big objection to that, all right, but dont come
in and say I am going to give them the entire sheriffs report, everything we got, and then
say, as long as it fits with the statute of the discovery section. It cant be both. It might
possibly in some instances be both, but I dont know that, because I dont have access to
this material, but to come in and make a representation that I am going to give you anything
you want. You can come up here and pick it up. If you want the entire file copies, Ill give
it to you and then throw the kicker in, but I am not going to give you Rosario material and
say thats in compliance with your agreement.

(A. 233 1-2332).

The defense motions were no longer moot and Judge Brandt set dates for discovery compliance. (A. 2335).

6
 1. faheys knowledge of the contents of Sergeant Lorties Report do not support
disclosure of the entirety of the CI evidence.

In an incredible response to Thibodeaus opening brief, the prosecution argues that Thibodeaus

Brady violation claim ends here because, quoting People v. Archie, 78 A.D.3d 1560, 1562 (4th Dept 2010)

leave denied 16 N.Y.3d 856 (2011), evidence is not deemed Brady material where the record establishes

that the defendant knew about the evidence. (Resp. Br. at 14). According to the prosecution, Sergeant

Lorties report establishes the existence of a confidential informant status and, [ejqually important, it

establishes the existence of a confidential informant file that would include names of dealers that ALLEN

(sic) would have been involved with. (Resp. Br. at 20). The prosecution seems to have a faulty memory

regarding the Sheriff Departments on-the-record denial of the existence of Allens CI file and their on-the-

record declaration that Sergeant Lortie was wrong. (A. 2276-77, 2340). Besides, this argument cannot

survive the existence of the exculpatory material contained in Allens actual CI file along with the content

of the December 9, 1994 internal memoranda of Deputies Van Patten and Montgomery, which is wholly

absent from Sergeant Lorties report. (A. 2287, 2342, 2343).

2. Creation of a document does not equal production of a document.

The prosecution attempts to portray Dodd as a truth-seeking advocate following the December 8,

1994 motion hearing by erroneously stating he met with Deputies Van Patten, Montgomery, and Anderson

after the hearing and specifically had those deputies create those reports. (Resp. Br. at 15). This provides

the weak foundation for their illogical proposition that creation of a document equates to production of a

document. Id. The irrationality of this proposition could end here, but Dodds evidentiary hearing testimony

proves they have misstated the facts. Dodd testified as follows:

On the exact same day, December eighth, 1994, . .I met with those investigators and
,

specifically requested of them that they search the entirety of the Sheriffs Department file
and record to determine and ascertain whether or not there was any documents indicating
that Ms. Allen had at any time provided information as a confidential informant and/or was
working as a confidential informant.

(H.T., 1662).

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 According to this testimony, Dodd asked investigators to look for the file, not write reports. Instead,

Sheriffs investigators with direct knowledge of Allens CI status (Sergeant Lortie and Lieutenant

Goodsell), and who had ptiblicly denied her CI status (Lieutenant Goodsell), directed the deputies to write

the internal memoranda. Deputy I\Iontgomery, the person who retrieved Allens lost CI file from the D&W,

and thereafter alerted Deputy Van Patten to his negligence, begins his memorandum with [tJhis report is

filed pursuant to a request by Lt. Goodsell. (A. 2342). The report is dated December 8, 1994 and was

created at 1500 hours. Id. Deputy Montgomerys evidentiary hearing testimony repeated the same

directive. (H.T., 1996, 1999, 2000). When Deputy Montgomery completed his report, he placed it in the

reports bin to be filed through the appropriate channels. (H.T., 2000). Deputy Anderson testified that he

wrote his memorandum at the direction of Sergeant Lortie and Investigator Whipple. (A. 1978-1979).

When he completed his report, he gave it to Investigator Whipple. (A. 1979). Deputy Van Patten wrote

his report at the request of a supervisor and gave it to either Sergeant Lortie or Lieutenant Goodseti when

he was completed. (A. 1938). Each report contains a received December 9, 1994, Oswego County

Sheriffs Department date stamp. (A. 2342-2344). Clearly, Dodd was not a part of this process.

It is unclear whether the existence of Allens CI file was even discussed at that meeting.

Investigator Yerdon recalled having a meeting regarding Brady material on December 8, 1994 at 1:00 P.M.,

two hours before Deputy Montgomery wrote his report, where Lieutenant Goodsell was present. (H.T.,

2285-2287). The notes used to refresh Investigator Yerdons recollection during his testimony do not

appear to mention Allens CI file. Id. We now know, through Investigator Kleists report, that Allens CI

file was found five months later, on May 16, 1995, less than a week before the start of Gary Thibodeaus

trial. (A. 2346). The record does not support the proposition that Dodd caused the Sheriffs Department

to actively search for Allens CI file.

3. The Sheriffs Department continues to officially deny the existence of the CI

file at the same time Deputies Van Patten and Montgomery are confirming
the existence of the file in written memoranda.

The next day, on December 9, 1994, the Post-Standard published an article about the December 8,

1994 motion hearing. (A. 2339-2341). The article reported on the possibility of Allens CI status, stating,

iz $

[ Fahey and Richard Thibodeaus lawyer, Bill Walsh, said the fact that Dodds office gave them a report

C refethng to Allen as a confidential informant, but no other information, leads them to question whether the

r prosecution is withholding evidence. (A. 2340). The Sheriffs Department, although it now had in its

possession the December 9, 1994 internal memoranda of Deputies Van Patten and Montgomery, continued

f to deny Allen was a CI, saying she had merely discussed an unrelated dnig case with an investigator two

years before she disappeared. Id. The investigator is not named. The article contains several claims that
E the defense is concerned that Dodd is withholding evidence. (A. 2339-234 1).

[ 4. Dodd takes no action to correct the Sheriffs Departments false statements.

Against this backdrop comes the December 14, 1994 meeting at the Oswego County District

Attorneys Office, where Fahey received a copy of the Sheriffs investigative file. (H.T., 1638, 1640). Five

days before this meeting, Dodd testified he received the internal memoranda of Deputies Van Patten,
[ Montgomery, and Anderson. (H.T., 1670). If true, Dodd now has direct knowledge that: (1) the Sheriffs
[1
L Department made official false statements about Allens CI status; (2) the statements were false because

Allen was in fact a CI; (3) the statements were false because there was a formal file; (4) the statements were

false because Sergeant Lortie was not mistaken in his report; (5) the Sheriffs Department lost Allens CI

[ card in the parking lot of the D&W; (6) the Sheriffs Department took no steps to correct their error; and

(7) Allen was employed at, and abducted from, the D&W. Dodd agreed this evidence constituted Brady

C material. (H.T., 1670). Dodd was in a position to fulfill the directive of Judge Brandt and come back to

Fahey with an answer to the Sheriff Departments perplexing denials about Allens CI status.

5. Documents created by Dodd after he learned the truth about Allens CI status
do not mention the December 9, 1994 internal memoranda.

The prosecution argues Dodd is believable because his hearing testimony was direct and explicit

and Dodd had specific recollection as to what documents he gave Fahey on December 14, 1994. (Resp.

Br. at 13, 15). Dodd did in fact testify that he was particularly careful about discovery matters to insure

that [the prosecution) had a systematic, organized, verifiable way to demonstrate in the event this day came

to be able to point back in time to twenty years ago... with a measure of reliability to this judge the

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procedure that was in place for the purposes of demonstrating that the documents in fact were photocopied,

C reproduced in their entirety and turned over to attorneys Fahey and Walsh (H.T., 1786) (emphasis added).

Dodds documents specifically and explicitly exclude mention of the December 9, 1994 memoranda.
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Originally, when Dodd was first confronted with the non-disclosure of this evidence, he claimed

fl disclostire of the December 9, 1994 internal memoranda to Fahey on December 14, 1994 and March 14,

1995. (A. 585-587). Dodd held out Investigator Whipple, the custodian of all investigation records, and
C the person in charge of the Sheriffs investigative file, as a witness to these two disclosures. (A. 586). The

C March 14, 1994 disclosure proved false at the evidentiary hearing. (H.T., 1671-73, 1731; A. 2821).

Like the County Court, the prosecution avoids Dodds specific and detailed documents he created

before and after he learned about the Sheriff Departments false statements. For example, Dodd testified it

was a statement of fact that the December 9, 1994 internal memoranda were included in the Sheriffs

investigative file when Fahey received a copy of it on December 14, 1994. (H.T., 1809-10). However,

L1 Dodds twenty-two pages of notes, which document every piece of paper in the five boxes of documents

that comprised the Sheriffs investigative file, never mention the December 9, 1994 internal memoranda,

even though he made thirty-eight specific Brady references in his notes. (A. 3116-3143). Dodd created the

notes before the meeting for the purpose of being systematic and organized in an effort to verify the

contents of the boxes and what was being reproduced for the defense attorneys. (H.T., 2039, 2046, 2051).

Dodds December 14, 1994 file memo documenting his meeting with Fahey on that date fails to mention

[ the December 9, 1994 internal memoranda. (A. 2359-2360). Dodds December 21, 1994 letter to Fahey

documenting everything Fahey received from Dodd on December 14, 1994 fails to mention the December

9, 1994 memoranda. (A. 2361-2366). The letter lists more than two hundred possible items of Brady

material within the five boxes and explicitly omits the December 9, 1994 memoranda. (A. 2363-65).
C The prosecution holds Dodd out as a detailed, specific, and explicit recorder of discovery matters

[ but ignores the glaring omissions in his recordings. Dodd cannot be so meticulous and also be so careless

as to forget to mention the very evidence Fahey was asking for six days prior to their meeting. In the words

of Judge Brandt, [ut cant be both. (A. 2322).

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Moreover, we cannot ignore Investigator Whipples testimony, which specifically negates Dodds

claim that the December 9, 1994 internal memoranda were included in the Sheriffs investigative file when

[ it was turned over to Fahey on December 14, 1994. (H.T., 1565-69). Walsh, a very organized person

himself, noted that Investigator Whipple was extremely organized and Walsh believed he was an excellent

[ investigator. Walsh was jealous of Investigator Whipples file because it was color coded giving him

[ a leg up on Walsh as to organization of the file. (H.T., 160$).

6. Peoples Exhibit QQQ proves nothing about what evidence Fahey received
from Dodd on December 14, 1994.

The only evidence the prosecution offers in support of this disclosure, described as abundant

evidence in the record, is one document located in Peoples Exhibit QQQ. (Resp. Br. at 14, 16). Peoples

Exhibit QQQ contains Dodds copies of the December 9, 1994 internal memoranda of Deputies Van Patten,

Montgomery, and Anderson, identified by Dodd as his work product. (H.T., 1668-69; A. 2908-10). Out of

the three documents, Dodd wrote only on Deputy Van Pattens memorandum, MY COPY, HA

BRADY, and CC TOT BOTH AATFN. (A. 2908). There is no date as to when Dodd made his notes

on the document and no date as to when Dodd supposedly turned this document over. In response, the

prosecution argues a date would be helpful, but it is not fatal to their claim of disclosure. (Resp. Br. at 16).

fl 7. The green mark on the documents contained in Peoples Exhibit QQQ only
proves the documents were copied.

The prosecution claims the green marks on the documents contained in Peoples Exhibit QQQ
prove disclosure. (Resp. Br. at 15). Investigator Whipple testified the green check mark was only proof of
[ copying and did nothing to indicate what happened to the document after it received a green mark. (H.T.,

U 1537). The County Court adtted testimony about the green mark only to show a document was copied.

(H.T. 1552-54). Dodds copy of Deputy Van Pattens memorandum contained in Peoples Exhibit QQQ
proves only that he had it in his hand at some point in time and made notes on it at some point in time. We

F: do know the internal memoranda were turned over to Walsh, but there is no evidence showing when that

disclosure occurred. Walsh could not recall, and testified as follows:

Li
F: ii
 That was an ongoing process. I believe the lead sheets just kept snowballing all through
the beginning stages of the proceedings. Not the legal proceedings, but during discovery I
kept receiving documents as we went along. The case was still in flux even as we tvent
forward with it.

(H.T., 1615).

In truth, there is no clear indication as to when Dodd received the December 9, 1994 internal

memoranda. Although he testified it was on December 9, 1994, this testimony was based on his mistaken

belief that the December 9, 1994 date stamp on the documents came from his office, rather than the Sheriffs

Department. (H.T., 1725). The internal memoranda do not contain a received date stamp from the

District Attorneys Office.

8. The omission of two date stamps from the December 9, 1994 internal
memoranda required by Dodd are not collateral matters to Thibodeaus
Brady violation claim.

The prosecution argues that Thibodeau raises collateral matters with regard to only one date

stamp being present on the December 9, 1994 internal memoranda. (Resp. Br. at 16). However, these

collateral matters stem from Dodds one-hundred percent certain testimony that he required all

documents in the Allen investigation to receive a date stamp from the Oswego County Sheriffs Department

and a date stamp from the Oswego County District Attorneys Office before they became a part of the

Sheriffs investigative file. (H.T., 1663, 1678-79, 1715-17, 2025). The December 9, 1994 internal

memoranda do not contain the required date stamps, negating their placement in the file. (A. 2342-2344).

Rejecting the testimony of their own witness, the prosecution argues the date stamp testimony is irrelevant

because Fahey had other paperwork that had no date stamps. (Resp. Br. at 14-16). Then this Cotirt must

do what the County Court would not, and reject the entirety of Dodds testimony because it proved to be

one-hundred percent uncertain. In the words of Judge Brandt, [Ut cant be both. (A. 2322).

B. The record does not prove Fahey received Allens CI File through a May 17 or
June 5, 1995 disclosure.

Thibodeaus Brady violation claim also includes the suppression of Allens actual CI file,

referenced in the reports of Deputy Van Patten, Deputy Montgomery, and Investigator Kleist. (A. 2342,

2343, 2346). Investigator Kleist found the file in a box in the Sheriff Departments garage on May 16,

12
C
F
1995. (A. 2346). During the evidentiary hearing, the original CI evidence Investigators Yerdon and Kleist

F found in a box in the Sheriffs Departments garage on May 16, 1995 was admitted into evidence as

F Peoples Exhibit B. (H.T., 78, 1506, 1855, 2242; A. 2738-62). On May 16, 1995, Investigator Kleist

collected the evidence, placed it into a plastic bag, and sealed the bag. (H.T., 1 855, 2247). The evidence

in the bag (Peoples Exhibit B) included a photograph of Allen (A. 2739); a 3 x 5 index card containing

Allens full name, address, social security number, date of birth, code name of Julia Roberts, height,

weight, eye color, hair color, deputy she was working with, thumb prints, and date the card was created (A.

[ 2740); a business card from the Sheriffs Department (A. 2741); Deputy Van Pattens notes recording

names Allen had provided to him (A. 2743-44); a 1993 personal planner (A. 2745-55); investigative notes

from the day of Allens abduction (A. 2756-59); a copy of a VHS label (A. 2760); and a copy of Investigator

[ Kleists May 16, 1995 report with a May 23, 1995 received date stamp from the Sheriffs Department

(A. 2761).

Thibodeaus Brady violation claim would not have occurred but for Bianco finding the December

9, 1994 internal memoranda, in addition to three other documents referencing Allens CI file, in Richard

Thibodeaus trial file, previously maintained by Walsh. (H.T., 30-33). These three documents include an

evidence ledger sheet (A. 2345); Investigator Kleists May 16, 1995 report (A. 2346): and an evidence tag

(A. 2347). The evidence ledger sheet informs that on May 23, 1995, the plastic bag holding the evidence

contained within Peoples Exhibit B, described above, was logged into evidence by Investigator Whipple

and stored on shelf B-20 of the evidence room. (A. 2345). The evidence ledger contains a May 23, 1995

received date stamp from the Oswego County Sheriffs Department. (A. 2345). Investigator Kleists

report states that on May 16, 1995 at 2:05 p.m., he and Investigator Yerdon found paperwork that referred

to [Allen] as a confidential informant and secured the evidence in a locker. (A. 2346). Investigator Kleists

report contains a May 16, 1995 received date stamp from the Oswego County District Attorneys Office

and a May 23, 1995 received date stamp from the Oswego County Sheriffs Department. (A. 2346). The

evidence tag noted that miscellaneous papers, a photograph, and a 1993 personal planner were found on

May 16, 1995 at 10:30 a.m. by Investigator Kleist. (A. 227). None of those items were in Walshs trial file.

Ii
-

C
Li
(H.T., 47). The evidence tag contains a section called CHAIN OF POSSESSION, which is blank. id.

C Finally, the evidence tag contains a May 23, 1995 received date stamp from the Oswego County Sheriffs

Department. Id. These three documents were filed as attachments in support of Thibodeaus 440 motion
[ and admitted as Defense Exhibit 11 during the evidentiary hearing. (A. 225-227, 2345-2347).

In response to this portion of Thibodeaus Brady violation claim, the prosecution attached

documents different from the documents found in Walshs trial file in their opposition papers. Dodds
p sworn affidavit claimed disclosure of these items on December 14, 1994, March 14, 1995, and May 17,

[ 1995. (A. 587-588). He had to let go of the December 14, 1994 and March 14, 1995 dates of disclosure

when he realized documents created in May of 1995 could not be disclosed prior to that date. (H.T., 1809).

The first document Dodd offered in support of disclosure of Allens CI file was a May 17, 1995

letter from Dodd, addressed to Fahey and Walsh, stating he was enclosing copies of additional
[ discoverable property obtained since his last disclosure of April 25, 1995. (A. 603). The enclosed material

[ is not identified in the letter. Id. The second document was a copy of Investigator Kleists May 16, 1995

report with a May 16, 1995 received date stamp from the District Attorneys Office. (A. 604). This

Kleist Report did not contain the additional May 23, 1995 received date stamp from the Sheriffs

U Department that was present on Walshs copy. (A. 604). The third document was a copy of Allens CI file

without any received date stamps. (A. 605). Allens CI file was followed by Deputy Van Pattens notes,

C investigative notes from the date of Allens abduction, and a copy of a VHS label, all without received

date stamps. (A. 606-613). Although Dodd swore Fahey received the evidence tag found in Walshs trial
fl file through the May 17, 1995 mailing, the evidence tag was not included in the materials he said he

disclosed on that date. (A. 588-5 89, 603-6 13). Also excluded was the evidence ledger sheet and the 1993

personal planner. (A. 603-6 13). This was the first time any member of the defense team saw Allens CI
C file. (H.T., 29-42, 139, 175-76).

[ Thibodeau has always maintained that the May 17, 1995 cover letter does not prove disclosure of

Allens CI evidence for two reasons. First, the cover letter does not identify the additional discoverable

property being sent to Fahey and Walsh. (A. 2348). The prosecution argues that the County Courts

U 14
 discovery of this same letter in the trial courts file is the best evidence buttressing the Hearing Courts

decision that Dodd is telling the truth about his May 17, 1995 claim of disclosure. (Resp. Br. at 16). Not

so. Judge Kings decision only notes that the trial court received the May 17, 1995 letter on May 23, 1995.

(A. 21-22). Next, Judge King theorized that because the trial court received that letter, it would not make

sense that Fahey and Walsh received that same letter and received the letter without the attached

documentation Dodd professed was attached to it. Id. Judge King never identified whether items were

attached to the letter, and if so, what those items were. The prosecution adopts this flawed reasoning as

convincing proof that Fahey received the contents of Defense Exhibits 11 and I 1A. (Resp. Br. at 17).

This cannot be because the documents themselves prove otherwise. The contents of Defense Exhibit 11

includes three documents with May 23, 1995 received date stamps from the Sheriffs Department

(evidence ledger sheet, Kleist report, and evidence tag). (A. 2345-2347). Moreover, the trial court received

the May 17 letter on May 23, 1995, the same date the Sheriffs Department was logging them into evidence.

Although the documents with the May 23, 1995 received date stamp prove the impossibility of

Dodds May 17, 1995, claim of disclosure, there is still a second reason as to why this claim fails. That

reason can be found in the absolute silence in the record from Fahey after Dodd purportedly gave him

Allens CI file five months after he asked for it. Fahey testified if the file had been disclosed in this manner

he would have raised holy hell and sought sanctions against Dodd. (H.T., 962). We know this to be true

because just weeks before trial, Fahey accused Dodd of abusing the grand jury process and suborning

perjury from Oswego County Sheriff Investigator Wheeler during a Hun ttey hearing. (A. 2850-2860).

During the Hiuztlev hearing, Fahey was trying to establish that the jailhouse informants implicating Gary

Thibodeau in Allens abduction were the result of the Sheriff Departments strategy to have Thibodeau

extradited to ajail in Massachusetts. (A. 2856-57). Investigator Wheeler testified that he had no knowledge

Gary Thibodeau was a suspect in Allens abduction when he procured the arrest warrants from

Massachusetts resulting in Thibodeaus extradition. (A. 2857-58). Sheriffs Department investigative

reports proved otherwise. id. Fahey argued, [i]n giving evasive, false and perjurious testimony on these

subjects, Wheeler foreclosed defense counsel from further inquiry into these matters and developing further

[ 15
C
C
facts on which this Court could make an informed ruling with respect to the Accuseds suppression claims.

C (A. 2858). Fahey asked the County Court to hold Investigator Wheeler in contempt because the court

[ should not let this misconduct go unpunished. Ic!. Because there was proof Dodd knew Investigator

Wheeler testified falsely, Fahey sought the appointment of a special prosecutor. (A. 2859). Fahey argued

[ to the court, [eJqually egregious is the fact that while this evasive and false testimony was being given, the

prosecutor, Donald Dodd, took no action to correct it, despite the obvious falsity of it. (A. 285$).
C In an effort to negate Thibodeau s May-23- 1995-date-stamp-impossibility-argument, the

[ prosecution proposed a second date of disclosure of Investigator Kleists report. Dodds original affidavit

never mentioned this second disclosure, alleged to have occurred on June 5, 1995. (H.T., 1681-1695; A.

C 584-594). The prosecution attempted to prove the June 5, 1995 disclosure through a second cover letter

[ authored by Dodd. (A. 2914). In this June 5, 1995 letter, addressed to both Fahey and Walsh, Dodd

identified one piece of evidence being disclosed to the defense, consisting of a certificate of conviction for

[ prosecution witness, Donald Neville, Jr. (A. 2914). Additionally, Dodd provided one paragraph of

information justifying the late disclosure, explaining he had only learned about the evidence on June 3,
C 1995. Id. The letter informs that Dodds last disclosure to Fahey and Walsh occurred on May 30, 1995,

[ and because the case continues to be investigated by the Oswego County Sheriffs Department in

anticipation of the upcoming trial of People vs. Richard Thibodeau Dodd will continue to disclose

E additional potentially discoverable property. Id. At the evidentiary hearing, the prosecution attached 108

[ pages of additional evidence to Dodds June 5, 1995 letter. (A. 2914-3022). NeviHes certificate of

conviction was located on the last page of the 10$ pages. (A. 3022). Mixed in with the other 107 pages

U were the three documents found in Walshs trial file (Defense Exhibit 11), which included the evidence

ledger sheet and evidence tag with May 23, 1995 received date stamps and Investigator Kleists report
C with the May 16 and May 23, 1995 date stamps. (A. 225-227; 3019-3021).

[ Dodd originally testified that he mailed the June 5, 1995 letter to Fahey and Walsh with 108 pages

of additional evidence, but changed this testimony when he was confronted with the fact that the People

had rested their case against Gary Thibodeau on June 4, 1995. (H.T., 1866-67). Now, instead of mailing

[ 16
U
C
this material, Dodd testified he hand delivered it to fahey on June 5, 1995, the day the defense began their

case. a.

C Also included within the 108 pages of documents attached to the June 5, 1995 letter, are five pages

of typewritten notes documenting all of the evidence catalogued by Investigators Kleist and Yerdon on May

[ 16, 1995, beginning at 10:30 am. (A. 2972-77). These notes prove Investigator Kleists statement in his

report to be true, that he and Investigator Yerdon were cataloguing evidence when they happened upon
C Allens CI file on that date. (A. 2346). Investigator Kleist testified in accord with his report, stating it was

r his responsibility to go through evidence collected in the Allen investigation to make sure it had been

catalogued correctly, (H.T., 224 1-42). The prosecution has tried to claim Investigators Kleist and Yerdon

were specifically looking for Allens CI file when they found it. Not so. Over 200 items of evidence are

listed on those five pages and the majority include a date the evidence was collected, the time the evidence

was collected, and the person associated with the collection of that evidence. (A. 2972-77). On the first

[ page, there is a reference to box 3, with question marks next to 2 photographs, Heidi Allen paperwork,

and personal 1993 planner. (A. 2972-7 3). All of this evidence became included in Peoples Exhibit B.

(A. 2738-2762).

The prosecutions after-the-fact attempt to explain away Walshs possession of the Kleist report

with a May 23, 1995 date stamp runs contrary to the trial record. On June 6, 1995, one day after Dodd

C allegedly dropped 10$ pages of additional evidence on the defense, Fahey is on the record heatedly

objecting to Dodds late disclosure of other evidence, generated through Investigator Kleist. (T.T., 3093-

94). Fahey argued that Dodd was required to provide him with this evidence under CPL 240.20(1)(c).

Id. The objected-to evidence had to do with driveway measurements between Thibodeaus residence and

a neighbors residence. Id. To suggest Fahey would object to this evidence and not object to the late

disclosure of specifically requested Brady evidence is absurd.

[ Most importantly, the evidence tag to Peoples Exhibit B, and the evidence ledger sheet, never

show Allens CI file leaving shelf B-20 of the evidence room after May 23, 1995. (A. 2345, 2347). Dodd

C testified he never brought Allens CI file to Gary Thibodeaus trial. (H.T., 2110).

C
C
C
C. Dodd has not been proven to be more credible than Fahey.

The prosecution attempts to discredit Fahey by claiming he had a faulty memory about evidence

he received from Dodd when he testified during the evidentiary hearing. The record speaks otherwise.
[ Fahey was very clear that he never received or viewed any of the CI evidence prior to 2014. Defense

[ Exhibits 8, 9, and 10 are the December 9, 1994 internal memoranda of Deputies Montgomery, Van Patten,

and Anderson, respectively. (A. 2342-2344). Deputy Andersons memorandum denies Allen was a CI

and therefore contains no information that the file was lost by Deptity Van Patten and recovered by Deputy

[ Montgomery. (A. 2344). The memoranda of Deputies Van Patten and Anderson both refer to Sergeant

Lortie. (A. 2343, 2344). During his direct testimony, Fahey stated the following about Defense Exhibits

8, 9, and 10:

Q: All right, those reports refer to Heidi Allen as an informant and her information being
dropped in a parking lot, correct?

A: Two of them do, one of them does not.

Q: Had you any knowledge regarding the information of Heidi Allens informant status
being compromised in a parking lot of the D&W?

A: No.

Q: But after the December eighth hearing and the reports to the Post-Standard on the

r following day, what was your understanding with regard to Heidi Allens status as an
informant?

A: That she was not an informant, shed never been used as an informant, and couldnt
C provide any useful information as an informant.

(H.T. 141-143).
[ With respect to Allens CI file, Fahey knew he had never seen it before because he would have

[ remembered certainly the code name and the photograph and the thumb prints. (H.T., 139). Allens code

name was Julia Roberts. The photograph of Allen displays her wearing a shirt with an identifiable

symbol; a large peace sign. (A. 2350). AlIens hair is long and wavy in the photograph, similar to Julia

[ Roberts hair in Pretty Woman, released in 1990; Steeping with the Enemy, released in 1991; and Something

18
[
r[ to Talk About, released on August 4, 1995, one day before Thibodeau was sentenced. Julia Roberts was a

box office star before and after Thibodeaus trial, lending credibility to Faheys testimony that he would

have certainly recalled Allens code name.

[ faheys years of experience as a litigator and a County Court Judge far surpass Dodds experience.

[j Between 1975 and 1996, Fahey was a partner in the Law Firm of Wiles and Fahey with a focus on criminal

defense. (HI., 119-120). Fahey taught trial practice at Syracuse University College of Law between 1994
E and 2008. (H.T., 119). Fahey was an Onondaga County Court Judge from January 1, 1997 through

[ December 31, 2015. Id. Dodd was in private practice for one year before becoming Chief Assistant District

Attorney in 1985. (H.T., 163 1-32). He served as the district attorney for Oswego County between 2004

E and 2011 and is currently in private practice and a town judge in Oswego, New York. (H.T., 1631-32).

During the evidentiary hearing, Walsh described Fahey as an eminently skilled lawyer. (H.T.,
[ 1601). The prosecution tried to portray Fahey as a disorganized attorney, but Walsh, also a retired

[ Onondaga County Court Judge, who has known Fahey both as a tdal attorney and as a judge, countered

that accusation stating:

L Joseph Fahey wasnt as particular as I was in that respect, but what Joseph would Joseph
--

knew not only what was on every single piece of paper, he knew where it was and how to

[ locate it..

(H.T., 1604).
. I found that incredible, but he was good at it.
.

C Although Thibodeaus Brady violation claim stems from Faheys demand for Allens CI file after

he read Sergeant Lorties report, which he verified during the evidentiary hearing, the prosecution argues
[ he did not remember using Sergeant Lorties report during Gary Thibodeaus trial and is therefore not

U credible. (H.T., 128-130; Resp. Br. at 19). The prosecution has twisted the facts to force this argument.

[ Fahey was cross-examined with Defense Exhibit 5, which is a ten-page document known as the Chiefs

Report. (A. 2278-2287). Included in Defense Exhibit 5 are reports from Deputy Curtis, Sergeant Burdick,

[ and Sergeant Lortie. Id. Because Fahey could not recall cross-examining Deputy Curtis about Allens

height and weight with Deputy Curtiss report, located on pages 7 and 8 of Defense Exhibit 5, during

Thibodeaus trial, the prosecution asks this Court to reject his entire evidentiary hearing testimony. (Resp.

C 19
 Br. at 19). The prosecution cites to Faheys mistake in his July 28, 2014 affidavit that he did not recall

Roger Breckenridge. (Resp. Br. at 19). Fahey corrected this mistake two days later in his July 30, 2014

affidavit. (A. 268). In their most desperate attempt to discredit Fahey, the prosecution points to Faheys

July 28, 2014 affidavit which states he did not know Dan Barneys name. (Resp. Br. at 19; A. 230). The

prosecution points to an exhibit attached to a motion fahey filed with the County Court on May 2, 1995.

(Resp. Br. at 19; A. 2879). The motion the prosecution is referring to is the motion cited above, where

Fahey argued Dodd had suborned perjury from Investigator Wheeler during a Hunttey hearing. (A. 284 1-

2860). The exhibit, where Dan Barneys name is mentioned, contained investigative notes from the

Sheriffs Department proving Wheeler had perjured himself during his testimony at the Httntley hearing.

(A. 2879). At the bottom of that exhibit is a short reference to Dan Barney, stating he was interviewed by

the Sheriffs Department and was not considered a suspect in Allens abduction. Id.

In contrast, Dodd made numerous misstatements in his October 6, 2014 affidavit. (A. 584-585).

He claimed Randi Bianco participated in Gary Thibodeaus trial at all stages of the proceedings, including

pretrial discovery. (A. 585-586). This was proven false. (H.T., 23-24, 120-121; T.T., 1-3500). Dodd

claimed he provided Fahey with Investigator Kleists report and Allens CI file on December 14, 1994 and

March 14, 1995, even though it had not been found until May 16, 1995. (A. 585-589, 2346). Dodd tried

to maintain these disclosures during his evidentiary hearing testimony until he was confronted with the

dates on the documents by defense counsel. (H.T., 1673, 1809). Dodd claimed during the evidentiary

hearing that this evidence was disclosed to Fahey again on June 5, 1995, but such a claim was not set forth

in his affidavit. (A. 584-594).

During his evidentiary hearing testimony, Dodd claimed disclosure of the December 9, 1994

internal memoranda could be proved through notes he made documenting all of the material contained

within the five boxes of documents comprising the Sheriff Departments investigative file (Peoples Exhibit

ZZZ), and through his December 21, 1994 letter to Fahey documenting all of the evidence from the Sheriff

Departments investigative file turned over to Fahey on December 14, 1994 (Defense Exhibit 13). With

respect to his notes, Dodd insisted the December 9, 1994 internal memoranda were specifically referenced

[ 20
 on page 4 under the singular notation police reports. (H.T., 2039-2040, 2053-2054, 2058, 2069; A. 3119).

That page reflects that Dodd made those notes on December 5, 1994, four days before the December 9,

1994 internal memoranda were created. Id. With respect to his December 21, 1994 letter, Dodd insisted

that the December 9, 1994 internal memoranda were specifically mentioned in the portion of his five-page

letter stating, In the motion presently filed in County Court, you demanded all, Brady material. You

presently are in possession of, Oswego County Sheriffs Department criminal investigation report relative

to the facts and circumstances involving the kidnapping of Heidi Allen. To the extent that there is any

potential evidence or information property that may in fact or may tend to be exculpatory, it is included.

(I-IT., 1723-1736; A. 2363). Even the prosecution finds this testimony incredible since they abandoned

Dodds claims of disclosure through these documents on appeal. (Resp. Br., pp. 12-21).

Relying on People v. Urlich, 265 A.D.2d 884 (4th Dept 1999), the prosecution argues Thibodeaus

Brady violation claim must fail. Urlich is not at all similar to this case. In Urtich, the defendant moved to

vacate his conviction based on the prosecutions alleged failure to provide him with one page of notes which

had been prepared by a firearms examiner who testified for the prosecution at trial. Id. Defense counsel

testified at the 440 evidentiary hearing that he had no recollection of receiving the single page of notes,

which was based solely on his inability to find the notes in his trial file. Id. The prosecution specifically

remembered giving defense counsel the firearms examiners one page of notes and this testimony fit

squarely within defense counsels cross-examination of the firearms examiner at trial. Id. Defense counsel

questioned him about the diameter of the defendants shotgun muzzle, a measurement found in no other

document save the notes at issue. Id. Additionally, defense counsel questioned every witness, except the

firearms examiner, whether they had any notes or memoranda conceming their testimony. Id. at 884-885.

Here, Fahey affirmatively testified during the evidentiary hearing that he knew he did not receive

the December 9, 1994 internal memoranda, Allens CI file, and Thvestigator Kleist s report. The trial record

fully supports this because there is never a reference to any of this evidence by the defense, or the

prosecution, after Fahey specifically demanded production of Allens CI file on December 8, 1994.

[ 21
C
Finally, with respect to the prosecutions credibility arguments against Fahey, Thibodeau would

C ask this Court to consider the prosecutions pattern of suppression, beginning on the morning of Allens

C abduction with suppression of the CI evidence, continuing after Thibodeaus conviction with suppression

of Allens diaries, and persisted through the pendency of Thibodeaus 440 motion. As thoroughly discussed

[ in Thibodeaus opening brief, the prosecution provided late disclosure of voluminous material on the eve

of Thibodeaus evidentiary hearing. (Pet. Br. at 23-24). The material was voluminous because the
C prosecution had been collecting it beginning in June of 2013, long before Thibodeau filed his 440 motion,

and continuing through January of 2015. (A. 1354). This late disclosure included material supporting both

his Brady violation claim and his newly discovered evidence claim. (A. 1338-1342, 1354-1356). This

C behavior proves the prosecution has been suppressing evidence related to Thibodeaus actual evidence since

[ they named him a suspect in Allens abduction.

II. THE INTRODUCTION OF NEWLY DISCOVERED EVIDENCE WOULD RESULT IN A

r MORE FAVORABLE OUTCOME AT TRIAL.

Throughout the proceedings below, Gary Thibodeau offered evidence establishing for the first time

[ that three other individuals (James Steen, Roger Breckenridge, and Michael Bohrer) were exclusively

responsible for Heidi Allens abduction. As previously noted, the new evidence was rooted in two newly

discovered eyewitnesses to Allens abduction. In testimony provided at the 440 hearing, William Pierce

[ identified James Steen exit a van different from the one belonging to Richard Thibodeau on the morning of

Allens abduction, assault a woman, and then carry her back toward a passenger door that had been opened

1 by another occupant. In a secretly recorded telephone conversation, Jennifer Wescott disclosed seeing the

men bring Allen to her residence, where she was made to wait in the van, after which she was never seen
C or heard from again. To this primary evidence, Thibodeau introduced substantial corroborative evidence

[ establishing, among other things, that the three men lived in the area and were connected through drug use

and a local junkyard; that three men had made admissions concerning their involvement in, and exhibiting

their consciousness of guilt with respect to, Allens abduction and the disposal of her body; that one of the

[ men (Michael Bohrer) had previously committed and attempted to cominit abductions and violent acts

[ 22
C
[ against women, had inserted himself into the investigation and provided false leads, had maintained an

investigation file and personal notes on the case, which he kept in the front passenger seat to one of his

vehicles, had been connected to physical evidence belonging to Allen, and exhibited behaviors and
[ characteristics matching those outlined by a FBI profiler shortly after Allens abduction. Although this new

[ evidence exonerates Thibodeati and establishes the alternative suspects were responsible for Allens

abduction, the County Court denied his 440 motion.

E On appeal, Thibodeau argued that in denying his 440 motion the County Court abused its discretion

by basing its decision on mistakes of law and clearly erroneous factual findings. More particularly,

Thibodeau argued that the County Court committed a mistake of law both by failing to assess the new

C evidence within the context of the trial evidence and by failing to apply a non-mechanical review of the

new evidence in its entirety. Thibodeau also argued that the County Court abused its discretion by making

factual findings that were not supported by the record and that failed to account for conflicting and

[ exonerating evidence.

[ The prosecution acknowledges the County Courts denial was based solely on a conclusion that the

new evidence would not likely change the outcome at a new trial. The prosecution also does not disagree

[ that the trial evidence left open the possibility that Allen was abducted by alternative suspects and that, in

pointing to alternative suspects, the new evidence if believed by a jury would exonerate Thibodeau. Yet,

the prosecution, following the County Courts lead, resists granting a new trial solely because it believes

the new evidence is not sufficiently reliable to warrant a new trial. This Court should reject the

prosecutions arguments for the following reasons.

[ A. The County Court erred by failing to assess the new evidence in light of the trial
evidence.

The prosecution concedes that the heating court did not explicitly recount and discuss all of the

[ trial evidence in its Decision. (Resp. Br. at 34). Without explanation, the prosecution argues that implicit

in the courts conclusion is an assessment of the evidence put forth in the CPL 440.10 hearing in light of

23
[
IZ
the evidence adduced at trial. Id. According to the prosecution, [tb claim otherwise is to ignore the clear

intent and meaning of the courts decision. Id.

[ Despite the prosecutions assurances to the contrary, there is nothing implicit in the County Courts

decision that would indicate it understood the nature of the trial evidence. In fact, the County Courts

[ treatment of several components of the new evidence confirmed both its limited understanding of the trial

evidence and how the new evidence could be used to undermine the evidence presented at trial. For
Ij example, the County Court found that [nJone of the witnesses can credibly place Steen, Breckenridge or

[ Bohrer at the D&W the morning Ms. Allen disappeared. (A. 42). Putting aside the inaccuracy of that

determination for a moment, the County Court failed to appreciate that the same can be said of the trial

C evidence. None of the States witnesses could (credibly or otherwise) place Gary Thibodeau at the D&W

on the morning of Allens abduction. Another example of the County Courts evident failure to appreciate
[ the nature of the trial evidence can be found in its treatment of William Pierces eyewitness account of

Allens abduction by Steen. In cfiticizing certain details of Pierces account, the County Court utterly failed

to appreciate that Thibodeaus conviction was based to a considerable degree on the eyewitness testimony

of Christopher Bivens, whose account morphed from an initial report of seeing two men merely argue with

a female near a van he could not identify (even after being repeatedly shown Thibodeaus van) to his

testimony at trial (after nearly continuous contact with police, suggestive identification procedures, intense

media coverage, and the announcement of a $20,000 reward) that one man was holding the woman near a

[ van he identified as belonging to Richard Thibodeau, a claim based not on the uniquely conspicuous dark

stripe running along the van, but on the appearance of the rear bumper and a rust spot over the back wheel,

[ characteristics he never mentioned in earlier conversations with police. (T.T., 1344-45). One final example

[ of the County Courts failure to account for the trial evidence is found in its treatment of the incriminating

statements made by Steen, Breckenridge, and Bohrer. In pointing to supposed inconsistencies and

[ competing evidence offered by the prosecution to reject their essential admissions, the County Court failed

to account for the fact that the inculpatory statements Thibodeau allegedly made to the jailhouse informants

contain a supposed claim that the Thibodeaus drove Heidi Allen to the woods up by his house, they talked

[ 24
 to her, Gary got out at his house, his brother drove this girl back to the store, dropped her off and then

remembered he forgot to get cigarettes. When he went back to get cigarettes, there was nobody at the

store. (T.T., 1543-44). This account is not only inconsistent, it is flat out impossible.

As noted in Thibodeaus opening brief, the County Courts failure to assess the new evidence

within the context of the trial evidence undermined its factual determinations in several critical respects.

First, without an appreciation of the limitations of the trial evidence, the County Court had no basis to assess

the probative value of the new evidence. Second, failing to analyze the new evidence within the proper

context led the County Court to demand more than a mere showing that the introduction of the new evidence

would likely establish a reasonable doubt concerning Thibodeaus alleged involvement. Finally, the County

Court failed to appreciate that many of the critical factual conclusions leading to Thibodeaus conviction

were based on inconsistent (and impossible) evidentiary accounts. Accordingly, in reaching its verdict the

trial jury was required to resolve or ignore some of these inconsistencies, which, had Thibodeau been able

to present the newly discovered evidence at trial, the jury would not have likely been able to do. See People

v. Bryant, 117 A.D.3d 1586 (4th Dept 2014) (granting new trial, in part, on effect new evidence would

have on jurys ability to resolve testimonial gaps). Therefore, this Court should find that the County Court

abused its discretion by utterly failing to assess the new evidence in light of the trial evidence.

B. The County Court erred by failing to non-mechanically evaluate the new evidence in
its entirety and by reaching unsupported factual determinations that failed to account
for the complete evidence.

The County Court also abused its discretion by applying a mechanical evaluation of the evidence.

For example, in summarizing the new evidence, the County Court claimed that Thibodeaus motion was

premised on three discrete theories that altered over time, beginning with an initial assertion that Steen,

Breckenridge and Bohrer kidnapped Ms. Allen; then turning to Steen kidnapping Ms. Allen, with another

unidentified person in Steens van; and finally placing Bohrer as the suspect most responsible for Ms.

Allens abduction. (A. 31). Contrary to the County Courts suggestion, Thibodeaus theory was unified

and never wavered Steen, Breckenridge, and Bohrer were exclusively responsible for Allens abduction.

All of the evidence introduced and proffered was fully supportive of that theory. By severing the evidence

L 25
 .1

F and mechanically assessing it within those artificially segregated theories, the County Court failed to

T appreciate how each piece of new evidence supported Thibodeaus unified theory.

Beyond these broader analytical flaws, the County Court abused its discretion by applying a

mechanical assessment of the two new eyewitness accounts that failed to consider competing and

C exonerative evidence.

1. Jennifer Wescotts secretly recorded admission is reliable, admissible, and

[ fully exonerates Thibodeau.

In concluding that Wescotts recorded admission is unreliable, the County Court erred by (1)

assuming that the conversation was offered in an attempt merely to corroborate Steens confession to Tonya

[ Priest, (2) finding that the reliability of Wescotts admission could be evaluated and ultimately rejected

based on certain details in Steens confession, and (3) concluding that alleged inconsistencies found toward

the conclusion of the recorded conversation somehow rendered the earlier admission unreliable.

The prosecution repeats these same errors in seeking to affirm the County Courts decision. For
C example, the prosecution heavily relies on an incorrect claim that the recorded conversation was offered in

an attempt to establish that Wescott resided on Rice Road. See Resp. Br. at 35 (Through the testimony of

[ witnesses and introduction of other evidence (i.e. recorded phone call between Tonya Priest and Jennifer

Wescott), Defendant sought to establish that James Steen, Michael Bohrer, and Roger Breckinridge had

ii killed Heidi Allen at a residence located on Rice Road.); id. at 36 (Defendant sought to establish their

association with the Rice Road address primarily through a recorded phone call between Priest and

C Wescott.); Id. at 40 (The entirety of the phone call rests upon a premise that the events took place at

Wescotts residence on Rice Road.). As Thibodeau made clear in his opening brief, the location of

Wescotts residence was never mentioned during the recorded conversation. Nor was Rice Road. Instead,

[ Wescott admitted that the men brought Allen to her (unidentified) residence on the morning of the abduction

and made her wait in the van, after which she was never seen or heard from again. Accordingly, the

exonerative value of the admission is entirely independent from whether Wescott lived on Rice Road at the

time of the abduction. Whether Wescott lived on Rice Road only matters in assessing the value of Steens

26
C
admission to Tonya Priest. Contrary to the prosecutions assertion, then, testimony offered by Thibodeau

C to establish Wescotts residence on Rice Road is not completely irrelevant, it is simply not necessary in

assessing the reliability of Wescotts recorded admission. (Resp. Br. at 40-41).

[ In any event, Thibodeau offered sufficient proof for a jury to conclude that Wescott did reside on

[ Rice Road at the time of Allens abduction and that Allens body was wholly or paially disposed of in a

[ nearby cabin. That the prosecution offered competing evidence from which a jury may find that Wescott

did not live on Rice Road and that Allen may not have been disposed of at a nearby cabin is neither a reason

to sweep aside Steens admission to Priest nor a reason to discount Wescotts recorded admission. Though

never considered by either the County Court or the prosecution, a jury could resolve the evidence in several

different ways. first, a new jury may determine that sufficient evidence was proffered to conclude Wescott

did indeed reside at Rice Road at the time of the abduction. Second, the jury could also conclude that,

although Wescott may not have lived on Rice Road, the canine cadaver evidence supports a finding that the

U three men brought her to a cabin near Rice Road after taking her to Wescotts residence someplace else in

Oswego County. Finally, it is also possible that the jury may not credit the portion of Steens confession
C detailing his role indisposing of Allens body, but, either on the basis of the core admission in his confession

[ or combined with Wescotts recorded admission and other evidence, conclude that he brought Allen to

Wescotts residence someplace in Oswego County and that she was never heard from or seen again. Any

one of these alternative findings would have resulted in a more favorable outcome.

Turning to the prosecutions reliance on claimed inconsistencies within Wescotts recorded

admission, recall that Priest initiated a secretly recorded telephone conversation with Wescott, with whom

[ she had only recently reconnected after several years. In the recording, Wescott admitted Allen was brought

to her residence on the morning of the abduction. Without prompting, Wescott clarified that they didnt

even bring [Allen] in the house, they made her sit in the van, and confessed that she dropped that shit .

[ . probably about ten years ago. (A. 2373-74). Asked why she was involved, Wescott clarified that it was

due to her youth and the cocaine. (A. 2374). Wescott denied knowing whether Steen took Allen to the

garage and beat her until she died and further claimed not to know who actually killed Allen. (A. 2374,

[ 27
 -

C
[ 2376). She reported moving to Florida with Breckenridge shortly after Allens abduction. (A. 2375). After

C admitting that it bothers her to talk about it and saying that she could not previously mention it to anyone

[1 because she was afraid of Breckenridge, Wescott added that she was also scared of several other people,

some of whom were unfamiliar to Priest. (A. 2376-77). Finally, Wescott clarified that she never considered

C disclosing her knowledge to the police because she was afraid of certain individuals, she would not receive

a reward, and because the police would laugh in [her] face and say get the hell out of here somebody
C

has already been convicted and blah, blah, blah died in prison. (A. 2377).

[ The prosecution claims that certain statements contained near the end of the recorded conversation

support the County Courts conclusion that the recording is so mutually inconsistent as to be wholly

unreliable. (Resp. Br. at 37 (quoting A. 1591)). Upon closer examination, not one of the statements cited

[ by the prosecution has any bearing on the reliability of Wescotts admission. Take Wescotts claim that

she and Breckenndge were subpoenaed to testify at Thibodeaus trial, as explained in Thibodeaus opening

[ brief, this assertion even assuming its falsity for the sake of argument is too trivial to undermine her

core admission and, in any case, actually supports her account, because it shows she was well-acquainted

with Breckenridge, that she was aware he was subpoenaed, that she considered the subpoena of him as

[ amounting to a subpoena on both of them (at least for purposes of discussing it with Priest), and that she

found the subpoena sufficiently troubling to discuss its implications.

C The prosecution also points to a portion in the recording during which Wescott, in response to

[ Priests question as to whether Wescott knew of the Thibodeaus, said, Yeah, the people that lived over on

Kenyon Road that got convicted for her [1 death. (A. 2379). The prosecution asserts that this statement

renders Wescotts admission unreliable because, in light of Thibodeaus claim of having no knowledge of

Wescott, it shows she lied about knowing him. The prosecution fails to appreciate that Wescott did not

claim to have known the Thibodeaus. She only claims to know of them, which is likely true of anyone

living in the area. Even within that context, two factual inaccuracies demonstrate Wescotts limited

knowledge. First, she incorrectly believed that Thibodeau died in prison. (A. 2377). Second, she

[1 28
C
C incorrectly stated that both Thibodeaus lived on Kenyon Road. Only Gary Thibodeau lived on Kenyon

Road. Richard Thibodeau lived on Egglestone Road. (T.T., 2015).

[ further attempting to demonstrate the asserted unreliability of the recording, the prosecution cites

to two additional responses of Wescott. First, in response to Priests attempt to confirm that Steen,

[ Breckenridge, and Bohrer brotight Allen to her residence, Wescott said, Yeah . . . No, I think Roger

[ [Breckenridge] was home with me. (A. 2380). Second, in response to Priests question asking which one

killed Allen, Wescott said, No idea. As far as I know Thibodeau. Neither one of these responses

undermines Wescotts admission. Both of these statements are found toward the end of the conversation,

well after the core admission were made and at a time when Wescott was attempting to get off the phone.

Accordingly, a jury could comfortably find that both statements were made after Wescott grew suspicious

of Priest. Even if the jury were to credit the statements, neither one fulLy contradicts Wescotts core

admission. A jury could find that Breckenridge remained with Wescott as Steen and Bohrer abducted Allen

U and, pursuant to a prearranged plan, brought her over to Wescotts residence. Moreover, Wescotts

, assertion that as far as she knew Thibodeau killed Allen is consistent with her claims throughout the

recorded conversation that she did not know who killed Allen. More importantly, and contrary to the

11 prosecutions assertion, she is certainly not claiming to know whether the Thibodeaus killed Allen.

Although recantation evidence is universally regarded to be the most unreliable form of evidence,

see People v. Shititano, 218 N.Y. 161, 170 (1916), the County Court credited Wescotts recantation

because, according to the court and the prosecution, Wescott was merely going along with the conversation

Priest wanted to have about the kidnapping to give Priest attention. (A. 46). If this were true, then one

[1 would reasonably expect Wescott to have agreed with Priest that Steen took Allen to the garage and beat

her to death. (A. 2374). Far from doing so, however, Wescott, both in response to this qtiestion and later
Ej in the conversation, made clear that she did not know who killed Allen or how it was done. (A. 2376,
1

[ 2379). Moreover, in crediting Wescotts recantation, both the County Court and the prosecution

inexplicably ignore evidence indicating that Wescott was being deceptive when discialming knowledge

about Allens abduction in response to polygraph questions, and subsequently admitted that Breckenridge

[ 29
--

[
C
told her Allen was burned in a wood stove and taken care of in a van. (A. 1356, 1381). Though not

addressed by the prosecution, further evidence undermining Wescotts recantation is found from the

[ following facts: (1) shortly after the secretly recorded conversation, she sent a text communication to

Richard Murtaugh, the junkyard owner, even though he was never mentioned during the conversation (A.

2401, 2507 at 8:30-8:40, 43:38-44:24); (2) Wescott sent messages stating that she would not be the next

[ one dead in a box in the woods for running her mouth off and imploring a friend not to tell anyone she

ever lived on Rice Road and fled to Florida after Allen was abducted (A. 215, 217); (3) Wescotts later
In . .

admission that she gave a false statement to the police (by recanttng her recorded admission) (H.T. 1356-
L
57; A. 1149-1163), and that she would have to plead the Fifth in order to stay out of prison (A 1 155-57);

J (4) Steen received a text with the message Heidi? Ciao shortly after committing a double murder in 2010

[ (A. 1356); (5) Steen admitted driving a load to Canada containing Allens remains (H.T., 284-85); and (6)

Breckenridge directed Wescott to keep her mouth shut about Allen and invoked his Fifth Amendment

[ privilege against self-incrimination when asked what she was not supposed to talk about. (H.T. 397-99).

- Because there is no reason to credit Wescotts recantation, [a] reasonable jury could find ... that

[WescottsJ original unsolicited implication of [Steen, Breckenridge, and BohrerJ was truthful, regardless

[ of [her] later recantation of those statements. People v. Bellamy, $4 A.D.3d 1260, 1262 (2d Dept 2011).

Though the County Court placed considerable weight on its conclusion that the three men did not

know each other prior to Allens abduction, the prosecution does not press that claim in its responsive brief.

This is for good reason. All three men worked for or were friends with Richard Murtaugh (H.T., 217, 321,

459), sold or used illicit drugs (H.T., 222, 224,225, 250, 321, 590, 640,762, 1054, 1078, 1290, 1291, 1293,

1331, 1387, 1388, 1468; A. 1540), and were connected to Tom Martin. (H.T., 1455-57). Perhaps

recognizing this fact, the prosecution merely complains, instead, that the defense distorted the evidence

from the hearing and cites to a motion referencing the testimony of Earl Russell. The prosecution claims

[1 that the defense, in an effort to connect the three new suspects, offered Russells testimony to establish Tom

Martin as a common link to the three suspects, who were witnessed at social gatherings prior to 1993. This

claim is perplexing in light of Bohrer s own testimony that he acknowledged meeting both Breckenridge

0 30


[
F] and Steen through Tom Martin. (H.T., 462). Moreover, Russell confirmed witnessing Breckenndge serve

alcohol to Wescott at parties prior to 1994. (H.T., 1457).

[ In a last-ditch effort to avoid the consequences of Wescotts admission, the prosecution asserts that

the recorded call would not be admissible at a new trial. Not so. In People v. Ely, 68 N.Y.2d 520 (1986),

fl the Court of Appeals held that a tape recording is admissible so long as the speakers are identified and it is

a complete and accurate reproduction of the conversation. Both requirements have been amply
fl demonstrated here. The prosecution attempts to avoid this conclusion by claiming that Wescotts admission

is premised on statements made to her by the abductors. Again, this is incorrect. The recording makes

plain that Wescott is merely recounting her personal observations on the morning of Allens abduction, i.e.,

J that she observed Allen in the van. A recording capturing her description of those observations is

[ admissible. Relying on the same asserted inconsistencies addressed above, the prosecution also seeks to

preclude the admission of the recording based on a claim that the statements are incredible as a matter of

0 law, which this Court should reject for the above reasons.

2. The County Courts rejection of William Pierces testimony is not supported

[ by the record.

As previously noted, William Pierce testified that on the morning of Allens abduction, he saw a

burly man with shaggy hair and a beard exit a van, assault a woman, catch her before she fell, and then

carry her to a passenger door that was opened by another occupant. At the 440 hearing, Pierce testified that

the man be saw assault Allen was James Steen. He further confirmed that the van used to abduct Allen did

[ not belong to Richard Thibodeau. Although recognizing that credibility determinations are uniquely the

n province of the jury, the prosecution argues that the County Court correctly denied Thibodeaus 440 motion

based on its own credibility determinations. This Court should reject the prosecutions arguments.

As just noted, credibility determinations are left to the jury. Indeed, in cases cited by the

prosecution, courts have affirmed convictions based on eyewitness accounts even where there were

discrepancies between the complainants prior statements to the police and trial testimony and even though

r
[1 31
U the eyewitness was unable to identify the defendant from a photographic array. See People v. Golden, 211
19
A.D.2d 729 (2d Dept 1995); People i. Finder, 269 A.D.2d 547 (2d Dept 2000).

To the extent that the County Courts credibility determinations are relied upon, those
U determinations are unsupported by the record. The reasons undermining the County Courts determinations

were largely discussed in Thibodeaus opening brief. A few additional reasons must be mentioned here.

As an initial matter, the prosecution claims that its credibility determinations were supported by

Pierces demeanor. However, the County Court never mentioned Pierces demeanor. In any event, the

[ courts credibility determinations should be viewed with skepticism. Prior to knowledge of Bohrers past

conduct, the County Court described him as merely a gentleman with a concern. (H.T., 486).

- Moreover, the prosecution, much as the County Court did, fails to place Pierces initial

identification of Thibodeau into context he initially came to believe the man he witnessed at the D&W

was Thibodeau only after drawing a beard on the newspaper picture, but came to realize Steen was the man

he saw abduct Allen when he later saw an unaltered picture of Steen in the newspaper. Nor do the County

Court or prosecution fully appreciate that Pierce was unable to identify Steen from a photo array because it

contained a clean-shaven picture of him taken six years prior to the abduction. (H.T., 2219, 2222-23).

[1 The prosecutions reliance on certain details concerning the identification are similarly unavailing.

[ Although the prosecution seeks to make much of the fact that Steen was not Hispanic, Pierce only said that

the man he witnessed abduct Allen could be other than a full Caucasian. (H.T., 987). The prosecution

also attempts to rely on the fact that Pierce testified that the woman was wearing a coat and had hair that

- wasnt real light. (H.T., 985-87). Although Allen was wearing a gray sweatshirt while working inside

[ the store, there was no testimony as to whether she wore a coat when she went outside. In fact, Bivens

[ could not recall what she was wearing. (T.T., 1295). While Pierce described the woman as having hair

that wasnt real light, that description could certainly apply to Allen, who was described as having hair

[] that was dirty blonde or light brown (T.T., 1134, 1231), and that might appear darker after spending a few

moments in the damp air. Moreover, assuming there is any difference between hair described as not real

L light on the one hand and light brown on the other is a far too narrow reed upon which to reject Pierces

32
[
C testimony. The prosecution also seeks to make much of the fact that although Pierce described the roads

as containing heavy slush, other witnesses described light or pouring rain, snow, or some combination,

[ which produced slush on the roads. (T.T., 1810, 1962). As the prosecution acknowledges, the weather

conditions in Oswego County are given to sudden changes. The fact remains, however, that each of the

witnesses testified that it was a cold day containing periods of precipitation. Moreover, Brett Law, who

accompanied Allen to the store on the morning of her abduction, testified that it was snowing when he left

the D&W at approximately 6:35 am. and when he returned at approximately 8:10 that same morning.

(T.T., 1143, 1165). This, together with the testimony identified in Thibodeaus opening brief, presents

more than sufficient evidence to support Pierces description of the weather and road conditions. Finally,

the prosecutions claim that defense counsel somehow exhibited a lack of faith in [Pierces] identification

should be rejected out of hand. In fact, defense counsel made plain that Pierce identified two people, one

of whom was Steen and the other of whom was likely Bohrer. (A. 1443).

All of this obscures a far more basic aspect of Pierces testimony the van used to abduct Allen

did not belong to Richard Thibodeau. Neither the County Court nor the prosecution address this

fundamental point. If for no other reason, the fact that Pierce unequivocally testified that the van was not

Richard Thibodeaus requires a new trial.

III. THE COUNTY COURT VIOLATED THIBODEAUS DUE PROCESS RIGHTS BY

LIMITING HIS PRESENTATION OF THIRD-PARTY CULPABILITY EVIDENCE
U INVOLVING MICHAEL BOHRER.

On appeal, Thibodeau argued that the County Court violated his right to present a defense by

preventing him from introdticing evidence establishing that Allen was abducted by Steen, Breckenridge,

[1 and Bohrer. As relevant here, Thibodeau proffered substantial evidence implicating Bohrer. This included

his prior two prior convictions for attempting to abduct women in 1980 and 1981, evidence that he abused

his wife and daughters between 1975 and 1983, and his suspected involvement in the attempted murder and

sexual assault of a woman in l985. Although former District Attorney Dodd admitted that this information
L
would be important in conducting the initial investigation (T.T., 1830), the prosecution now contends that

U
33
U
U
U circumstances surrounding each of Bohrers prior acts of violence are too dissimilar to establish a iiiodtts

operandi under People v. Motineux, 16$ N.Y. 264(1901). The prosecutions arguments should be rejected.

As noted in Thibodeaus opening brief, Molineux does not bar the introduction of this evidence.

Molineux restricts the admission of prior bad act evidence against a criminal defendant. It should not apply

to prior bad act evidence offered by a defendant in support of a third-party culpability defense. See, e.g.,

United States v. Abottmoussatem, 726 F.2d 906, 911 (2d Cir. 1984). Furthermore, evidence concerning

Bohrers prior similar acts is not some free-standing claim. It is offered in combination with new direct

[1 witness observations of Bohrers role in Allens abduction along with considerable evidence establishing

Bohrers culpability, including his own testimony; his admissions to Tyler Hayes and Danielle Babcock;

his obsession with Allen and the case, as evidenced by his maintenance of an investigation fiLe; his false

leads to law enforcement; an FBI profile report; Melissa Adamss recovery of a bracelet described in

Bohrers notes after Adams discussed the bracelet in Bohrers presence; and evidence establishing that he

was driving a black pickup truck in April 1994 and left after Easter and returned around April 20, 1994.

Moreover, evidence of Bohrers prior similar violent acts undermines his sole explanation that he did not

harm Allen because he has daughters Allens age and is not prone to violence. (A. 2508 at 4:3 1, 27:50-

27:55, 2$: 12, 28:5-29:01). Viewed within the totality of evidence establishing Bohrers connection to the

abduction, this Court should find that the County Court erred by precluding evidence concerning his prior

similar violent acts.

Even within the framework of Molineux, the evidence concerning Bohrers prior similar violent

acts is admissible. In arguing otherwise, the prosecution contends that Thibodeau has not established

[] unique aspects about any of the prior incidents that would permit introduction of the prior acts. (Resp. Br.

at 52). The prosecution fails to appreciate, however, that [ijt is not necessary that the pattern be ritualistic

O for it to be considered unique; it is sufficient that it be a pattern which is distinctive. This is not to say each

element of the pattern iziust be in and of itself unusual; rather the pattern, when viewed as a whole, imtst be

unique.). People v. Beam, 57 N.Y.2d 241 (1982) (emphasis added). That certain components of Bohrers

prior acts may not be unique, therefore, is irrelevant. Moreover, the prosecutions claim that [s]ince the

[1 34
El parties dont know exactly how Heidis abduction was carried out, the prior Milwaukee incidents have

limited value in showing a modus operandi and that the only similarity between our case and the

fl Milwaukee incidents is that all involved the same general type of crime the abduction of an adult female,

misses the point. (Resp. Br. at 59). What matters is that, taken together, Bohrers prior acts portray a man

fl who has the unique motive, know-how, wherewithal, and experience to brazenly and forcefully dnap a

certain type of female in a public place, without disguise, and thus with an intent to kill the victim. This is
D plainly demonstrated by the following considerations: (1) the low frequency of abductions in Oswego

fl County, as evidenced by the fact that the disappearance of Heidi Allen was one of the biggest cases in

Oswego County history (H.T., 1087); (2) Allens age, gender, and appearance made her the type of victim

who appealed to Bohrer; (3) her abduction, like Bohrers prior ones, was obviously accomplished with a

[I car; (4) like Bohrers prior abductions, Allens abduction was connected to her place of employment;1 (5)

Like Bohrers prior victims, Allen was abducted in public and in full view of any passerby; (6) as with

Bohrers prior abductions, Allens abductor had no interest in obtaining property; and (7) similar to

Bohrers prior abductions, Allens abductor had no intent of releasing her alive. Therefore, this Court

should find that the County Court violated Thibodeaus right to due process by precluding the introduction

of his prior violent acts.

CONCLUSION

In view of the foregoing, along with all arguments presented in Gary Thibodeaus opening brief,

Gary Thibodeau respectfully requests that this Court reverse the Order below denying his 440 motion, grant
I
his 440 motion, and remand for further proceedings in Oswego County Court.

[] Dated: February 1, 2017

J Lisa A. Peebles, Esq.

Federal Public Defender
4 Clinton Square, 3rd Floor

fl Syracuse, New York 13202

(315) 701-0080
Lisa.peehles @ fd.ori

[
35
Inexplicably, the prosecution has still not disclosed these text messages.
The prosecution claims that any suspicion of [BohrersJ involvement [in this offense] is simply
speculation. However, the victim of that offense affirmed that she recalled being awakened by Bohrer,
who was standing alone in the bedroom doorway holding a box or briefcase. (A. 1664-65). She recalled
Bohrer asking where her girlfriend was because he wanted to fuck her too. (A. 1664). She became
terrified and tried to run away from Bolirer. (A. 1665). The last thing she remembered before waking up
in the hospital with severe injures is hiding under a cabinet. Id.
In light of Bohrers background, the prosecutions claim that he may have driven his brother, John
Bohrer, to look for the the broad (A. 1883-85) in the D&W because she made good sandwiches
strains credulity. See Resp. Br. at 57.
The prosecution asserts that the present offense is dissimilar to the Milwaukee incidents in another
significant way because it appears that neither of the victims from Milwaukee knew Bohrer prior to the
incidents. Resp. Br. at 54. This is not necessarily true. In any case, though, each of the Milwaukee
victims were abducted while driving from their respective places of employment, which would indicate
that each was familiar to, and stalked by, Bohrer. Moreover, Bohrer knew the victim of the Beacon, New
York offense through her employment.

36