Ineffective Assistance of Counsel
Court Brief Excerpts

[Paper Version Click Here]

E. GERALD LORD, ESQUIRE, WAS INEFFECTIVE FOR FAILING TO PRESENT THE TESTIMONY OF MELISSA JOHNSON SO AS TO DISCREDIT THE EXISTENCE OF THE WIG ALLEGEDLY OWNED BY DEFENDANT'S DAUGHTER AND WORN BY DEFENDANT ON THE DAY OF THE MURDER.

Sandra Sue Eller was a key witness for the prosecution in the homicide trial in that she placed the defendant at the scene, allegedly wearing a wig. Police had notably seized an old photo of Defendant's daughter, Kathleen, wearing a child's Halloween “witch” wig (Discovery, 10/29/97, at 139-140). According to the prosecution, it was this wig Defendant wore at the time of the murder.

Defendant's wife, Joanne Dowling, however, had told police that she had given the wig to Melissa Johnson about four years before for Johnson's child to use. (Discovery, 10/29/97, at 142). And although a prosecution witness, Joanne Dowling testified that the wig had never been returned and that there was no other wig in the house. (Transcript, 10/28/98, at 188-189). The jury never heard from Melissa Johnson who had told police that she never returned the wig to the Dowlings and threw it out. (Discovery, 11/06/97, at 175).

In it's closing, the Commonwealth deals with the fact that the wig was never found: “No wig. You didn't find the wig, [says the Defendant], so you must acquit me. Now my wife had a wig, my daughter wore it, but you didn't find it, so acquit me.” (Transcript, 11/05/98, at 322). Undeniably, the wig is an important piece of evidence. But the wig is not just missing; had Melissa Johnson testified, the jury would have known that the wig was no longer in existence on the day of the murder. Arguably this information undermines Eller's testimony and renders it unreliable. If her recollection was erroneous on this critical “detail,” what else had she gotten wrong? It becomes reasonable to doubt her identification of the Defendant. Or, if she is right about seeing what appeared to be a wig and Defendant appears not to have had access to a wig, who did? There appears to be evidence of at least one other “long-haired” person at around the time of the murder. For example, Rebecca Jane Wildassin saw a woman near the scene at around 1 P.M. (Discovery, 10-24-97, 104).⁴

 The jury, however, would never entertain this line of questions leading to reasonable doubt because trial counsel failed to introduce the testimony of Melissa Johnson on which it stands. It is hard to imagine any strategy that is reasonable to intentionally omit Johnson's testimony. Undermining the identification of Defendant at the murder scene is critically important. As is pointing the jury's attention to various other viable possibilities. There is a reasonable probability that the verdict might have been different had Counsel called Ms. Johnson.

⁴Which is reminiscent of the description of Jennifer Poteet, accomplice to Howard Poteet, about whom much is written in the York Record and York Dispatch in March of 1998.

F. GERALD LORD, ESQUIRE, WAS INEFFECTIVE FOR FAILING TO EXPLOIT THE INFORMATION REGARDING JOANNE DOWLING’S MARITAL INFIDELITY AND SUBSEQUENT WILLINGNESS TO TESTIFY AGAINST DEFENDANT, WHICH TESTIMONY ALLOWED HER TO CONTINUE TO PURSUE HER ROMANCE WITHOUT LOSING CUSTODY OF HER CHILDREN IN THE EVENT OF DEFENDANT’S ACQUITTAL.

Homicide trial counsel, Lord, was ineffective for failing to impeach the self-serving testimony of Defendant's wife after she had an adulterous affair. Mr. Lord had access to numerous letters from Mrs. Dowling to Defendant that espoused her undying love and support and steadfast conviction regarding his innocence. Later in those same letters she admitted to at least two affairs in 1998, one of which was with a William “Bruce” Donovan with whom she had fallen in love. Donovan moved into the family home in July of 1998.  Defendant argued with his wife over the adultery and the presence of another man in the home. Defendant told Lord that his wife feared he would sue for divorce and obtain custody of the children in the event he was acquitted. Lord later told Defendant that he himself had seen Donovan in the house.

On August 4, 1998, Mrs. Dowling called the police to the house saying Defendant's daughter, Kathleen, had remembered that Defendant had said to her over a year before that “[s]he has to die” (Discovery, 08/04/98, at 233-235). On that same date Kathleen removed various letters from Defendant’s filing cabinet, including the “Dear Miss Myers” letter and gave them to police. On August 8, 1998, Defendant spoke to his wife and was informed that both she and Kathleen were now going to testify against him. Lord assisted Defendant in revoking the power of attorney earlier given to his wife (Letter, August 9, 1998). At trial, Mrs. Dowling sat directly behind Dowling and taunted him throughout.

The preponderance of the evidence, given these facts, shows it to be an arguable and meritorious claim that Mrs. Dowling was a biased and self-serving witness. Is the second prong of the ineffectiveness test also met, namely, that there is a reasonable probability that the outcome of the trial would have been different but for trial counsel’s omission? It is difficult to measure the damage that might have been done to the prosecution's case had this information been presented to the jury. As it was, the jurors must have been “impressed” that Mr. Dowling’s own wife and daughter were willing to testify against him. How differently they might have reacted if they suspected a faithless Mrs. Dowling sought primarily to further her romantic interests and to avoid losing custody of her children. And that, to this end she was willing to sacrifice otherwise privileged marital communications, the natural affection of a daughter for her father, the dignity of a young girl encouraged in her sudden “recollections” and even the life of a man she had once loved so deeply. Was it natural that a heartbroken wife should taunt her husband so? Suddenly the case would have been seen more in shades of gray rather than black and white and the evidence examined with a more sympathy for Mr. Dowling and a bit more skepticism. Certain other evidence the Defendant might well have been given less weight, for example, that Sandra Sue Eller, whose testimony and statements to police varied in some detail, was mistaken about her identification of Defendant at the crime scene. The deliberation of the juror is all too human a process. It is not impossible, but a reasonable probability, therefore, that the outcome of the proceedings would have been different had defense counsel exposed Mrs. Dowling. In the end, given the array of other evidence against the Defendant, Mr. Lord had no reasonable basis for forgoing this defense tactic.

G. GERALD LORD, ESQUIRE, WAS INEFFECTIVE FOR FAILING TO TAKE ADVANTAGE OF THE RICH AND LARGELY UNTAPPED SOURCE OF REASONABLE DOUBT PRESENTED BY WITNESS STEVE MYERS AND THE EVIDENCE THAT WOULD INDICATE MR. MYERS TO BE A VIABLE SUSPECT IN THE HOMICIDE.

Apart from the natural sympathy jurors would have for the husband of the victim finding his wife laying dead behind the counter, they cannot have missed that Mr. Myers had a gun of the very type that was the murder weapon. At trial no-one would hear that Mr. Myers actually did not turn-over his gun to the police “on the following day” (Transcript, 10/26/98, at 123), but that he actually gave his gun, first, to his brother, Lonnie Myers, on October 21st, and not to the police (Discovery, 10/21/97, at 37; 10/24/97 at 97; 11/05/97 at 172), that the police never asked him about gun ownership until the following day, that they never searched Steve Myers’ person or clothing for gunshot residue or asked to look inside his vehicle (Discovery, 10-20-97, at 4) and that his revolver was not retrieved for testing until November 6, 1997. (Discovery, 10/24/97, at 97; Discovery, 11/06/97, at 172; Transcript, 10/29/98, at 16-17, 26-28).

At trial, Corporal James Rottmund, the State Police firearms expert witness, testified that he examined a non-mutilated bullet from the crime scene and also fired several selected bullets from Steve Myers' revolver. The expert's opinion was inconclusive as to whether the bullet from the crime scene was fired from Myer's gun. (Transcript, 10/29/98, at 25-26). In other words, the bullet might have come from Myer's gun. This is so critical a piece of information that it could have overthrown the entire thrust of the trial. At the very least, it is a solid foundation for reasonable doubt. Lord is clearly ineffective for not having failed to request approval of an independent firearms expert.

Myers testified that he arrived at the murder scene at around 3:08 P.M. Why was it that Regina Hensel reported seeing Mr. Myers outside the scene at around 2:07 P.M. and she was never called by trial counsel? (Discovery, 10-25-97, at 113).

The jury heard that Myers walked in the front door of the shop and went to the backroom before returning to find his wife's body behind the front counter (Transcript, 10-26-98, at 119). What would they make of the fact that he first told police that he had walked in the front door towards the front counter and observed his wife on the floor? (Discovery, 10-21-97, at 35).

Would the jury find it significant that while Myers testified he did not go outside the shop until so directed by Officer Yatsko (Transcript, 10/26/98, at 121), but witness Robert Curlen had told police he saw Myers outside using a cordless phone before the police arrived (Discovery, 10120/97 at 11)?

The jury also never heard that Myers worked at the United Defense, less than 10 minutes from the murder scene, and was accounted for at work at 11:30 A.M., but not at 12:57 P.M., the time of the murder (Discovery, 11-4-97, at 156).

At trial, Lord failed to elicit testimony from Jackie Rutledge that she had told police that a contractor from Kinsley Construction had been in the gallery flirting with the victim, and that Steve Myers was jealous person by nature. (Discovery, 10-20-97, at 5-6).

Trial counsel, Lord, further failed to elicit any testimony about the pair of NASCAR sunglasses found next to the victim and visible in the crime scene photo given to the jury. More specifically the jury never heard that Jackie Rutledge was asked by the police on October 22, 1997, if she knew who owned the "Rusty Wallace" sunglasses. The next day, Steve Myers called police to say the sunglasses at the murder scene were his and “he must have laid them down, forgot them, that he had a couple pair of these NASCAR type sunglasses.” (Discovery, 10/22/97, at 53-54; Discovery, 10/23/97, at 80).  ---30 The jury never heard that the police failed to test the sunglasses for blood, tissue, fingerprints, gunshot residue or any other possible evidence. (Discovery, 10/20/97, at 8; Comm. Exhibit #25)

Considering all these facts together it is clear that this evidence presents a rich vein of reasonable doubt which could have and should have been exploited at trial: Steve Myers is a viable murder suspect. Lord worked to dismantle the prosecution’s case, but never did he present this theory to help the juror consider an alternative possibility. There is a reasonable probability that the jury would have latched-on to these discrepancies, coincidences, poor police work and helpful firearms evidence. Can Lord have had a reasonable strategic basis for forgoing this opportunity? It may have been the thumbnail rule that counsel is ill-advised to pick apart a member of a victim’s family. Given the short amount of time that Myers testified, that would seem to have been Mr. Lord's strategy. In this case, however, that strategy was not reasonable. From a defense prospective, there was meritorious evidence that laid a foundation for reasonable doubt and the jury needed to know about it.

H. GERALD LORD, ESQUIRE, WAS INEFFECTIVE FOR FAILING TO TAKE ADVANTAGE OF THE RICH AND LARGELY UNTAPPED SOURCE OF REASONABLE DOUBT PRESENTED BY THE SUSPECT, RANDALL TURNER, UTILIZING THE TESTIMONY OF WITNESSES KELLY MYERS, JACKIE RUTLEDGE, MARIE ELLIS, JAY RHYNE, AND ROBERT HARMON.

There is a portion of what the victim allegedly told the U.P.S. driver, Gary Altland, that is particularly revealing with regard to this issue. After she had been robbed and nearly raped, the victim told Mr. Altland that she had been tricked and that someone had played a joke on her. She did not want anyone called, including her husband; she would handle it herself. Who was this that the victim suspected?

The jury never heard that Marie Ellis had told police that the victim suspected Randall Turner of being behind the robbery, (Discovery, 10/22/97, at 48). This was likewise the opinion of Mr. Myers immediately after the robbery, (Discovery, 10/21/97, at 36-37), who was not asked to testify regarding his initial suspicions. Police reports show that Mr. Turner was a suspect in both the robbery and the murder (Kuebler Notes, 12-96; Discovery, 10/20/97, at 5-6; Discovery, 10/21/97, at 36-37; Discovery, 10-22-97, at 48- 51; Discovery, 01/14/98, at 207). When defense investigator, Robert Harmon, tried to interview Randall Turner, the suspect was uncooperative and he refused (Robert Harmon Notes).

What else Mr. Myers told the police was that Randall Turner was nasty to his wife and had had an argument with her before the robbery in August of 1996. Turner had later apologized, said Myers, but it was his suspicion that Turner was behind the robbery. It was rumored, said Myers, that Turner “had people would do things for him.” (Discovery, 10/21/97, at 36-37).⁵ Myers also told police that Turner became angry again with his wife when she moved the gallery business from Turner’s building to the Kinsley building in Spring Grove. (Discovery, 10/21/97, at 36-37). Myers was not asked to testify to any of this at either trial.

Jackie Rutledge had spoken to the police, saying that the victim had told her that she did not trust Turner and that he had said that she would ruin him if she moved the gallery to Spring Grove (Discovery, 1/14/98, at 207). In addition, on January 14, 1998, three months after the murder and Defendant's arrest, Rutledge called police to report she believed Kelly Myers had something going on with Randall Turner, which may have been the cause of the argument between the victim and Turner. (Discovery, 1/14/98, at 207).⁶ Finally, it bears mentioning that the jury did not hear from Jackie Rutledge at the homicide trial that she had told police before the victim's death, that Mrs. Myers was depressed, having problems with her daughter, Kelly, and was having money problems in connection with the business. (Discovery, 10/20/97, at 5).

Based on this information, it is arguable that attorney Lord should have presented this information to the jury so as to introduce reasonable doubt. There was enough here for counsel to present an alternate theory, particularly in that Turner had once been a police suspect. It was not enough to attempt to dismantle the prosecution's case. In any regard, there was no reasonable basis for counsel not to try, for it is reasonably probable that the verdict would have been different had he done so.

⁵Karen Kuebler, Esquire, pre-trial counsel in the capital case and trial counsel in the robbery, told Defendant that the police and District Attorney Stanley Rebert believed Turner had hired Defendant to commit the robbery (Karen Kuebler Notes, December, 1996).

⁶No testimony was elicited that Kelly Myers worked for Turner (Discovery, 1/14/98, at 208), ten minutes from the Greyfox gallery (Discovery, 10/20/97, at 5; Discovery, 10/22/97, at 49). Turner, for his part, claimed he was at work in Spring Grove at the time of the murder on October 20, 1997 (Discovery, 10/22/97, at 50-51; Discovery, 11/12/97, at 178)