Part 2 - Trial
Andy, unfortunately, was not prepared to go to trial. This, along with an apparent fundamental incompetence, would become abundantly clear as the trial progressed over the next couple weeks. Ultimately, his poor performance would lead to my conviction and a sentence of life in prison without the possibility of parole.
For jury selection, and the first two days of trial, I'd worn a less than stellar-fitting outfit that wasn't suited for the courtroom. I had made preparations for this day in advance, and asked my father to buy me a suit, but Andy lost it (or simply forgot to bring it to court), and ended up dashing into a Goodwill store at the last minute to purchase whatever he could so I wouldn't have to appear in court in my prison issue orange jumpsuit. The clown suit I ended up with wasn't much of an improvement.
September 30, 2008
The Jury consisted of the normal 12-pcrson panel and four alternates. On day one, before opening arguments, there were two separate jury issues. The first was an alternate jury member who brought in a Doctor's note asking for him to be excused due to a bad back. He was dismissed. The second issue concerned juror number six. She was a college student who had afternoon classes on two days of the week that would interfere with jury duty. She was excused and replaced with an alternate juror.
Before proceeding with opening arguments, Andy had two issues to bring to the court. Firstly, he wanted, as a matter of record, to make it known that I had been offered several plea agreements -- all of which I'd voluntarily refused. Having made this a matter of record, this then would be one less issue I could argue against him on appeal in the event we lost at trial -- a testament of his confidence in our defense strategy.
Andy's second issue was with David Hamilton's plea agreement. In that agreement, David agreed to testify "truthfully" at both co-defendant’s trials. Andy took issue with the word "truthfully" being included, in the event that a copy of the plea might be introduced to the Jury as "evidence". The State contested, insisting that the word "truthfully" remain a part of the document. The Judge, however, disagreed, and ruled that "truthfully" be removed from the plea agreement. A juror, he reasoned, may give David's testimony "some greater weight to the alleged truthfulness." Upon resolution of these arguments, the Jury was brought into the courtroom and proceedings began.
Judge Vaughn addressed the Jury, informing them that they would be allowed to take notes after the opening arguments, and that the arguments themselves were not to be considered as testimony; only an outline of the case. The State proceeded with their argument first. Favata began his argument by reading from a transcript of one of David's statements. He read an un-corroborated excerpt in which David claimed that - in the presence of Joey Glaeser -- I offered my butterfly knife to him and suggested that he "finish him." "Him" being Trevor Moncrief, the victim who had somehow survived a shotgun blast to the head at the hands of Jesus Aviles, and who would later be stabbed to death by David Hamilton.
Favata continued to read from another page of that same statement. a portion in which David alleges that I "pressured" him -- through his tears and nervous paces -- to stab Moncrief. He claims I seemed dissatisfied with his efforts to stab Moncrief to death, and continued to urge him -- to scream and yell at him -- to stab and cut Moncrief to death.
Favata, it seemed, had served his intent well. He wanted to shock the Jury, all the while painting a fantastical portrait of my role in a murder that I had never been accused of committing. The first allegation that the Jury heard was that David is crying and resistant, and me, the angry killer, is urging and pressuring him to commit an act of murder. Favata immediately followed that with an alternate version of the occurrence. A more accurate version. My version.
He read from transcripts of my first two statements. The first was the day after the murder took place. The second was 7 months later, in January 2007, when I walked into the police station and told Detective William Porter about Jesus Aviles' involvement in the crime. In the first statement he read from, I recounted how David had voluntarily stabbed the victim with absolutely no instruction or urging from me. However, after he had been stabbed several times and Hamilton continued to complain that he was still alive, I did urge him to finish what he'd started.
The second transcript is essentially the same. In that account I detailed to Porter that I had told David where to stab the man in order to finish what he'd started. The context was the same. David had already stabbed the man several times. He was gloating over it, and I wanted desperately to leave. But now, with David's fabricated statement, and Favata's craftiness, an ugly portrait of me had been painted for the Jury. In my effort to be candid and honest I had inadvertently given Favata material that he used to manipulate the truth, and used to manipulate justice.
Favata went on to tell the Jury that they'd hear from other witnesses and a police detective. He told the Jury what they could expect to hear from David Hamilton. He gave the Jury an extensive account of the incidents that took place on June 5th and 6th of 2006. While doing so he told the Jury how the information would be relayed to them. Knowing the full extent to which David had been coached and prepared for trial, it was with an unsettling air of arrogance that he went on to tell the Jury exactly what they would hear, with language like "Hamilton will tell you, from that witness stand, under oath", and “as he will tell you...” Favata, it seemed, was confident enough with this knowledge to tell the Jury that they would hear exactly what they needed to convict me - that David would testify that I "instructed" him to stab Trevor Moncrief to death.
Favata was prepared. He knew how every one of his witnesses would testify, including the medical examiner, Detective Porter, Matt Minker, and Raymond "Joey" Glaeser. He made it known in advance, to the Jury, exactly what the content of their testimony would be. It was a well-crafted method for getting his story out first - an uncontested story that deviated drastically from the facts.
The rest of his opening statement was spent summarizing the remaining particulars he felt were relevant to the case. He told the Jury how David was taken into custody, and how David took the police to the location of the bodies. He explained how David had told detectives that he had shot and killed both men. He told how I was contacted by police, and voluntarily reported to the station to give a statement. The fact that I knew Aviles to be the shooter, yet corroborated David's lie was explained. Favata lied and told the Jury that in my third statement I had admitted to telling Hamilton to "finish off'' Moncrief. I did not. I had, in fact, told my interrogators (now a full 9 months after the fact) that I was unsure of who had said that, and that it may have been Joey.
He went on to tell the Jury that after that statement (which had not been made at all) it was decided that Jesus Aviles and myself would be arrested for murder. He told the Jury that the State (represented by himself and Marie Graham) was proceeding forward under the Accomplice Liability Statute, and went on to explain that a person is guilty of an offense committed by another when, with the intent to promote or facilitate the commission of the offense they solicit, request, command or otherwise attempt to aid the other person in planning or committing the offense.
In closing, Favata told the Jury that it is their responsibility to represent the "collective common sense of the community", followed by an explanation of just what exactly common sense is. He tells them, also, that their common sense will return a verdict of guilty. In conclusion they were thanked on behalf of the State for giving up the other parts of their lives to serve as jurors and for making the justice system work.
Mr. Favata's opening argument took nearly 23 pages of transcript and took about 25 minutes to deliver. Next up was Andy Witherell. He took only 9 pages, and didn't say much. He started by telling the Jury that this incident was probably the most bizarre day that anyone could experience. I'd have to agree. He raised a valid point that Mr. Favata's opening - giving only certain pieces and sections of various transcripts - failed to illustrate the entirety of the case, and that other pieces could be just as strongly influential to the contrary.
Arrested back in March of 2007, he said, Mr. Erskine has been waiting 18 months for his story to be told to a jury of his peers. Actually, he said, this process started much earlier than that, when Mr. Erskine spoke to police back in June 2006. It continued in January of 2007 when Mr. Erskine, again voluntarily, went back to the police station to bring forth new information. Andy explained that I hadn't been arrested on either of these occasions – a good point clearly indicating that for nine months the detective s involved in investigating this case saw no culpability in my actions.
As Andy's opening continued, he explained to the Jury that they are likely to hear how Hamilton was "hyped up" on Percocet and Tanqueray after 8 hours of looking for drugs with the victims. It's important that he used the word "likely" as opposed to Favata's "will hear". It separates them. He separated himself again, later on in his opening, when he told the Jury that while the State would be asking for a verdict of "guilty", we'd be asking that they evaluate the evidence fairly - - not to be pre-judgmental.
Andy proceeded to ask the Jury to listen while the evidence came to fruition. Listen to the atmosphere that was being created, the atmosphere that Hamilton created. How he, Hamilton, is sleep-deprived, loaded, and carrying a gun. How he picked up Aviles, who soon after murdered two people. He calls this one of the worst things anyone could find themselves doing - or sitting next to someone watching them do.
I’d have to agree. To this day it affects me in ways I could never have realized at the time.
This environment that Hamilton created doesn't dissipate, Andy explains. Hamilton continues to become increasingly drunk -- "yucking it up", he called it. He's threatening Mr. Erskine and others, both explicitly and implicitly. The environment gets worse. Hamilton becomes crazed. Matt Minker and Joey Glaeser can testify to it - will testify to it. They were afraid. Everybody was afraid. No one knew what would happen next.
You're going to hear testimony from the people who were there, Andy told the Jury. He charged them with overseeing the facts and with doing their best to arrive at the right decision. He told them it would be difficult, but to please focus not on the murders, but on what part, if any, Mr. Erskine had in them. What was he doing? What could he have done? How could he have changed the outcome without jeopardizing his own life?
He asked them to ask the same question I’ve asked myself for years now. I think his intention in that may have been good, but he asked them to do the impossible. I still haven't figured out what I could have done differently to save Trevor and Ray that night.
Next, Andy told the jury that as I sat in front of them I was innocent. I plead not guilty. I charged the State with proving to a jury that I was anything other than innocent. I am not guilty. I am innocent. He charged them with treating the trial not as retaliation or retribution and demanded that they not penalize me just for the sake of doing so. Don't say, he suggested: "hey, someone has to be held accountable, may as well be him."
As Andy continued, he told the Jury that I had made a number of statements, and there were inconsistencies in those statements that could be explained. He also explained that by the time of the closing arguments they would have witnessed the demeanor of the witnesses, evaluated their credibility, and taken into consideration their motives for the testimony they'd given. He told them to also look for what they didn't hear, and consider those implications. I found that somewhat concerning. In saying so he had essentially asked them to be speculative, which could work against me depending on the craftiness of the State. Knowing, too, that he'd ask me not to testify on my own behalf made the statement doubly concerning.
At the conclusion of opening remarks, Judge James T. Vaughn Jr. took the time to give the Jury a few instructions before taking recess. He advised them that when we return from recess we would be proceeding with the first witness and would continue to hear witness testimony for the rest of the week, except Friday. Judge Vaughn's first instruction to the Jury was to warn them against discussing the case amongst themselves until after they had heard all the evidence, arguments of counsel, instructions from the court, and had retired to the jury room for deliberations. He said that if they were to discuss the case amongst themselves, they might commit themselves to a conclusion one way or the other before completing the trial phase. The second "warning" was that they were not to discuss the case with any third party until the verdict was delivered and they had been relieved of their duties. The failure to heed this warning could influence the jury members unfairly, as any third party individual had not had the opportunity to hear trial testimony and evidence. The Jury was then instructed to report any member of the Jury that attempted to discuss the case directly to the bailiff. Additionally, they were instructed not to read or listen to any accounts or discussions of the case reported by newspapers, other publications, or any source of information. Those who chose to read the paper were instructed to have it scanned first to avoid stumbling across an article related to the case. Finally, the Jury was instructed not to visit any premises that may have been mentioned in evidence.
As it turned out, the instruction to have their papers scanned proved unnecessary by the complete lac k of media cove rage. The last instruction seemed dubious; in other trials jury members have been taken, by the court, to destinations involved in a crime. It seemed here, however, that the State deliberately did not want the Jury to consider what it may have felt like to ride down a long, dark, narrow stretch of road with a crazed man wielding a shotgun sitting next to them, and then have to witness him shoot two men.
After the Jury returned from lunch, Vaughn addressed the Jury regarding note-taking, saying, essentially, that they were allowed, though not required, to do so. If they chose to do so, they were asked not to let it interfere with witness assessments, and were told not to share or discuss their notes until deliberations. If a jury member opted not to take notes, they were told not to rely on the notes of others for influence. They were also instructed that notes should not be given more importance than their memory or impress ion of testimony.
In any criminal prosecution, the burden of proof is on the State. This means that they get to call their witnesses first, and also have the final word. The State's first witness was David Hamilton. I knew David had signed a plea agreement that included an obligation that he testify against me for the State in exchange for a reduced sentence. Naturally, I was concerned about what the content of his testimony would be. In order for the State to offer him 30 years instead of two life sentences, he had to be providing them with something in return. I knew that if his testimony at trial was consistent with the statement he gave to police at the time of his plea it would be riddled with lies.
As it turns out, it was. ln all, David told 105 lie s on the stand during his sworn testimony. David' s initial testimony consisted mainly of what had happened up until the time he was arrested, but his version was far from truthful. He was asked what he used to stab Trevor Moncrief. He replied that he used the butterfly knife that I had given him. Favata then asked if he had made any threats prior to his receiving the knife. "No", he claimed.
"Did anyone present tell you to stab Trevor Moncrief?", Favata asked.
"Justin told me to stab him; kept telling me to hurry up", he replied.
"Did he tell you where to stab him?"
"Yes, in the lungs", David answered.
At this point Favata stopped questioning David about the murder and began asking questions about the plea bargain, thus giving the Jury only the most gruesome details to sit and think about for awhile.
Through questioning, Favata next establishes that David agreed to testify in exchange for his plea. David testified that he was aware that if he did not testify his plea offer would be rescinded and he would be tried on his original charges -- two counts of first degree murder. From there, Favata lead David back to the start of the day of the murders -- having him detail his version of how everything unfolded.
David explained that he and I had taken the day off and were on our way to Baltimore when we stopped at Matt Minker's house. Matt had told him earlier that morning that he was trying to buy some Pereocet pills, and David had stopped by to see if he'd gotten them. "When you were at Matt's, what did you and the defendant do?" Favata asked. "Talked, drank a little bit", David replied.
A lie. I didn't drink at Matt's at all during the time in question. I would drink a bit later that day, but not nearly enough to become intoxicated. Several times, however, during David's testimony, he would describe me as "drinking", sometimes without being asked.
David went on to testify that he was unable to get any pills for Matt. Another lie. He had already bought some pills from someone at a gas station in Felton, a couple towns away, but that deal hadn't gone the way Matt or David wanted. So Matt gave David $300 in case he was able to find more pills in Baltimore.
There are other lies David told that appear to be mistakes or memory failure, as they really didn't make any difference in how the day played out one way or the other. For instance, David testified that when we left Matt's for Baltimore we immediately ran into both Trevor Moncrief and Raymond Ward. In reality, Trevor was the only one there for much of the day.
The next lie David told was consistent with prosecution’s obvious attempts to sabotage my defense and undermine the critical fact that I was never involved in the ultimate outcome of that day. He testified that I rode around with him, Raymond and Trevor "for hours" while they looked for drugs, making it appear that I was party to finding drugs for David. This testimony was designed to instill in the Jury that he and I were in this together -- drunk, looking for drugs, and eventually being of the same mind in wanting Trevor and Raymond dead. This, of course, is very different from my perspective of being a highly frustrated passenger, and just wanting to go to Baltimore as we had planned. The truth is, shortly after David's first attempt to buy pills from Trevor proved unsuccessful, I got out of the truck and walked back to Matt's house.
Contrary to the truth, David testified that I rode around with all of them for 3 to 4 hours before he and 1 returned to Matt's house together. In reality, David spent a significant amount of time in his continued search for pills without me. However, in his testimony, he detailed how we were both "drinking all day" while driving around, and at Matt's house, when in reality he had actually been out on his own looking for pills.
In David's version, he later walked out to his truck, which by now was parked at Matt's, and sees Raymond and Trevor standing there waiting for him. He explains how they said they had found a new connection for the pills, and wanted to go buy them. In reality it was several hours after I left him that he showed up with them at Matt's, wanting me to ride along to "watch his back", as he didn't know them. David's testimony, however, claimed that I volunteered to ride with him. Not so. "Did you ask the defendant to come along, or did he volunteer?", Favata asked. "It was sorta mutual", David replied. "I told him I didn't know the guys, and I had never met them before. It was night time, so he came along."
That answer is peculiar in many ways. It's crafted, again, to make it appear as though David and I were of the same mindset. But it's an obvious lie for many reasons: if it was a mutual agreement, he wouldn't have been trying to convince me that it was necessary for me to come along, for the reason that he didn't know the men with whom he was going to buy pills. Also, if l had spent the day with David and the two victims, David would not have needed to testify that he had persuaded me to come by informing me that he didn't know Trevor and Raymond. It's further proof that I had not spent the day with them.
Next, when Favata was questioning David about the shotgun, he was careful not to ask if I had been aware that it was loaded. He asked David if l had known that he had the gun, and I did, but never about it being loaded. That was because Favata knew that for the entire week that David had had the gun, it had not been loaded, and he knew that I knew that. David had apparently loaded it while I wasn't with him. David also testified that the gun was positioned on the front seat between him and me. It wasn't. It had been on the floor between him and the driver's door all day. That lie was designed to indicate "joint possession", again trying to falsely establish a mutual mindset. The fact of the matter is our mindsets were nowhere near close to the same. I never wanted to go looking for pills. I didn't drink all day. I never had any bearing on any "deal." I never had control of the weapon. And I certainly never wanted to see anyone shot and murdered as David eventually did.
David also claimed that while he was trying to buy pills at Mifflin Meadows, an apartment complex not far from Dover, he heard several individuals discussing the idea of robbing him of his cash with Trevor and Raymond's help. I was there, and never sensed a threat like this during his attempt to make a deal. It’s true that I wasn’t paying particular attention to their conversation, but at no point did I hear, or sense, that anyone present intended to rob us. There had been an argument between David, Raymond and Trevor at this location. David was becoming irritated. He had spent most of the day with these guys, and, once again, they were unable to produce. But the robbery story seems to be just another one of David's fantastical stories that he tells himself to help justify his actions.
Skipping ahead a little, Jesus Aviles had been picked up and we were riding down a dark back road. In David's account, we all started talking about this "incident" at Mifflin Meadows, where he had once again just tried to buy Percocet. "What was the gist of this conversation?" asked Favata.
"Basically I was pretty mad that they had set us up to be robbed, or so I believe", answered David. "What was their response to that accusation?"
"They denied it at first. They were arrogant. They were playing like - I don't know. Their whole attitude was like, hard core. They didn't want to come off as being soft or scared."
"Did the tone of the conversation change in any way?"
"Yes. Eventually it got so heated that Jesus ended up pointing the shotgun at both of them. He was yelling at them about messin' with his boy, his friends. Justin was antagonizing the whole situation, repeating the things Jesus was saying. He was yelling, mad. He had an angry voice."
The only truth of that testimony is that Jesus did pull out the gun and was yelling and asking if they had "tried to rob his boy". And even that isn't entirely accurate. David testified that Jesus said they were "messin with his boy, his friends." But Jesus was asking why they had robbed David -- not "tried" to. He was also asking where the money was. Furthermore, he never implied that I was his "friend" or "boy." The fact that Jesus pulled out the gun and pointed it at Raymond and Trevor was not prompted by an argument about some incident at Mifflin Meadows. There was no argument. There were only two very fearful men sitting in the back seat looking down the business end of a shot gun because David had concocted a story for Jesus. They never became arrogant. They never came off as "hard core." This is all just a story created in the twisted ruins of a depraved mind.
David continued to craft his tale later on in his testimony, when talking about Jesus' demeanor after he had shot the victims. Jesus was very excited and "freaked out." David testified that I was "relaxed," not freaking out, not yelling. While it's true that I wasn't acting out at this time, I was anything but relaxed. I was in complete shock and extremely stressed.
The next part of David's testimony - where he explains how Jesus threatened that he knew where our families lived -- didn't do anything to alleviate my state of shock. As I recall, that threat was directed specifically towards David, as I don't believe Jesus knew anything about me or my family. But any threat of this nature -- directly or indirectly -- from a man that just murdered two people, is stressful. I took it very seriously.
I began to become impressed at just how detailed David's lies became. Lies to support lies, as told by a true professional. To me, it's obvious that his testimony required a great deal of rehearsal. For example, David testified that when he and I arrived at his sister's and Joey's house, he believed both men were dead. Why would he testify to that when he knew that Trevor was still breathing at that time? It's simple. In adversarial proceedings both sides want to win. Because I was innocent, lies had to be told. Because David had taken a plea deal that would give him 30+ years of his life back, he had to "play ball." And this little lie would allow the prosecution to portray me as far more involved than I actually was in the subsequent stabbing of Trevor Moncrief that ultimately ended his life.
Trevor was alive. Barely. A substantial portion of his head was blown away. His brain was exposed. He was dying. During the time that we were at Joey and Randi's place, David periodically checked on him to see if the inevitable had run its course. He was actually hoping Trevor would die on his own before we left. Finally, David decided it was getting too late to continue waiting for that. He demanded my knife, having already threatened me, and proceeded to cut and stab Trevor to death.
The lies continued to follow, one right after another. David claimed he left me in the truck, alone with the gun, when we arrived at his sister's. He went on to testify that I stayed outside for 45 minutes with the gun, alone. The intention here is obvious. If this were true, then clearly I had been given the opportunity to control the situation. I could have run. I could have called the police. And with the weapon, no one could stop me! But the gun wasn't in the truck. David had taken it and, unbeknownst to me, hid it behind the house. And I had no idea how long I would be left there alone. As it turns out, it was about 3 minutes, and I had no idea if l was being watched from inside. David testified that he and I had a discussion about what to do with the bodies. We didn't. I was told what was going to be done, but was never a part of any discussion or decision making. David detailed how he had discovered that Trevor was still breathing -- that while we were outside talking we heard a "noise." He said that Trevor wasn't moving, but then just a minute later he testified that after he had stabbed him be was still moving and making sounds. He went on to describe how I had "urged" him to "finish" Trevor. He said that I volunteered my knife and made some "off comment" about how much I loved it. This was a crafty lie. I had told a detective in an earlier interview that yes, I was fond of knives. Clearly the prosecutor had read this remark and found a way to incorporate it into David's testimony, but I had made no such remark at the time. I was sick. I was disgusted. I couldn't believe the situation I was in. I was scared. I was in shock.
David went on to testify that after he had cut Trevor, I told him it wasn't good enough and to do it again. Ridiculous. I wasn't even near the body, and certainly didn't want to look at it. I was sitting in Joey's truck while David stabbed Trevor to death, and was in no position, physically or mentally to "critique" David's methods. However, David alleged, under oath, that I was standing right there, telling him to stab Trevor in the lung, which he did. This was the injury that finally killed him.
He wasn't done. After detailing his version of the stabbing, David went on to testify that I got into the truck with him, where the gun still sat between us, loaded. He said I had complete access to it. David's consistency about the location of the gun throughout the day seems to me as if it had been hammered into his mind. If Favata and the State of Delaware were so convinced that I was an accomplice in all this, why did their star witness have to be trained to tell so many lies?
One lie I found to be particularly peculiar came after David had finished testifying about the burying of the bodies. David told the court that we then left from the woods and drove directly to Matt's house. We didn't. On our way to Matt's we stopped back at Joey and Randi's house for a few minutes. I don't know why, but we did, and I can't imagine why David left this out of his testimony.
After leaving Joey's place we did go straight to Matt's house, which David detailed in his testimony. He testified that he didn’t bother telling Matt why two of the rounds he had been leant were missing, but he assumed Matt had deduced what had happened. That, too, was a peculiar lie. Not only did he tell Matt what had happened, he brought him outside to show him the damage to the truck so he could see it for himself. Why did the prosecution opt to leave those details out? I can only guess that it was an attempt to make Matt appear less culpable. I had to be more "responsible" than Matt. He’d received only probation. I was on trial for murder.
The remainder of David's testimony centered on his explanation of what happened when he returned the truck to Bradford, his boss, and owner of the truck. He had spoken to one of Brad ford's neighbors, Alton Adams, about what had taken place, so after David left Bradford's, Alto n immediately called police. David was quickly arrested. He had only been home a short time at his house in Camden when the police woke him up and took him into custody without incident. He gave them a story about how he had shot the men in self-defense, and took detectives to the burial site. He also showed them where he believed Raymond and Trevor had been shot, and the neighborhood where he had picked them up. He testified that he had originally told the police that it was his knife that stabbed Trevor, and that I had not been involved in the murders.
This portion of David's testimony came to an end when Favata brought up his plea agreement. Since part of that plea agreement required that David make a new recorded statement, Detective William Porter had to take the stand to testify that he had, in fact, taken a statement from David Hamilton at the Dover Police station, that it had been recorded, that he had reviewed the statement, and that David had answered all of his questions freely and voluntarily.
At this point the jury was given a transc ript of that interview so they could follow along while the video played. A minute or two into the interview the disc failed, and court was adjourned for the day. They'd figure out what caused the glitch and resume the following morning.
Wednesday, October 1, 2008
As the trial continued, Judge Vaughn would poll the Jury each and every morning, asking the following questions:
Have any of you discussed this case with another juror?
Have any of you discussed this case with a third party outside the jury?
Has anyone attempted to discuss this case with you?
Have any of you read, seen or heard any media or news accounts of this case?
Every member of the Jury would answer no to each question, and trial would then resume for the day.
Favata called Detective Porter to the stand, and we started the day with David's Oct. I5, 2007 recorded statement. The statement was largely consistent with the testimony he had given the day before, with only a few inconsistencies that would be exposed during the rest of David's testimony. But before David resumed, Andy wanted to ask Det. Porter a few questions. First, Andy asked if David's recorded statement was of a sworn nature. Porter answered that it was not. Next, he asked if that statement was made after David took a plea to reduced charges. Porter answered that it was. Porter would be returning to the stan d later, after David's testimony was complete.
Favata had to finish his direct examination of David before we were able to cross- examine him. During David’s taped interview he admitted that he had made a threat to those around him, saying that if anyone had a problem with what had happened, there were more shells in the shotgun. But at the start of his testimony the day before he had testified that he hadn't made any threats. Favata had some damage
control to conduct. He asked David about the comment. David replied by saying that he had made the remark only to "play the part."
"Do you recall making that comment?", asked Favata "Yes."
"The part you were trying to play was that of a murderer? But at that point in time you were not a murderer, correct?"
"Did you have any intention of shooting the victims or anyone else that night?"
I felt like the damage had been done. David may have been "playing the part," and had no intention, but to someone who had just witnessed a double homicide, the threat seemed very real. Trial over. Not guilty. Anyone in my position would have done whatever they thought they needed to do to survive. How could they find me guilty?
Finally, Favata asked David when he first revealed that he had, in fact, not been the shooter, but that it was Jesus Aviles. David answered that he first told his lawyers after being incarcerated for a week or two.
Next, the moment I'd been anticipating, even before I knew it, was Andy's cross-examination of David. I was expecting Andy to expose David's lies for what they were in order to discredit his testimony. While Andy was questioning David, I wrote down *several* questions that I requested he ask David. He ignored most of those requests. His cross consisted mostly of questions that lead nowhere and gave David opportunities to continue lying.
Andy did start by questioning David about his threat, but then didn't follow through. He simply restated that David was trying to play the part of a murderer. He was able to establish that David didn't intend to have anyone killed; therefore, in proxy, establishing that neither did I. That couldn't have hurt. He was also able to establish that I was not involved with the buying, selling, or using of Percocet, but that it was David who had a substantial problem with the substance abuse. Andy also established that I had been under the impression, at the start of the day, that our only destination was Baltimore.
Andy spent a lot of time going over the same facts that had already been presented, or were easily deduced from David's direct examination. In a way, Andy was trying to play a certain role; he was putting on a show to make it appear as though he was actually prepared. Andy continued to have David detail his search for Percocet throughout the day. He was able to get David to be truthful about the extent to which he looked for the pills. While questioning David, Andy actually did some damage by implying that it was never our intent to go to Baltimore, but rather to search Kent County for Percocet. The question was as follows: “When Matt gave you money to get Percocet, you weren't going to Baltimore to get it; you were going to Kent County to get it, weren't you?"
I took most of David’s testimony as a personal insult, but certain parts were worse than others. At one point, Andy states that I must have been a good friend to ride around with David all day (which I had not done) looking for drugs. David responded that it was only because I'd "had nothing better to do." It was also insulting for him to lie, saying that I had rode around with him "all day" looking for drugs when in reality I had tried to persuade him, on two separate occasions, to forget about the pills and go to Baltimore as we had planned. I had tried to pull David out of an aggravating situation -- one that eventually led to a double homicide -- only to be falsely implicated by him later. At one point during his cross-examination, David said "Justin knew everything that was going on and never asked not to be with me." That's interesting. When I suggested that David forget about these stupid pills and get back to our plan to go to Baltimore, he didn't listen. So I got out of the truck and walked back to Matt's house. David would claim that that never happened.
At one point, Andy asked "Mr. Erskine couldn't have even begun to believe anything like this would happen, correct? Because you didn't!" David agreed. Andy also brought up, several times, that I wasn't involved in the conversations about Percocet, and also that I wasn't really involved with the two victims, either. He got David to admit, several times, that he was angry and irritated, had argued with the victims, and that he was not happy. He even got David to admit that he was "very irritated". When Andy said to David that I hadn't talked with Jesus -- that I hadn't even known him, David insisted that I did. He also embellished that I had hung out with Jesus at his house and smoked weed with him while David used Percocet. After that, Andy questioned David about the phone call.
Although I can't be certain, a short time after we left Mifflin Meadows I'm quite sure David made a phone call to Jesus, but David claims it was the other way around. In any case, a phone call between the two of them took place while David was inside a gas station. I was in the truck. David testified that he was in the truck when this call took place, but that is not the case. David also testified that the subject of their conversation involved him telling Jesus that he believed he had been set up to be robbed, but he had told me that very night that he told Jesus that he was robbed.
Andy brought up a good point here - that David never asked the men to get out of the truck. If they had indeed tried to rob him, AND he didn't expect Jesus to kill them, then why did he still have them in the truck? Why did he take them with us to Jesus' house? None of it added up. Either he was lying about the robbery, or he was lying about what he knew of Jesus' intentions to kill the passengers, Ray and Trevor. Or both. Andy followed that line of questioning in such a way as to make it evident that David was lying, but he never directly asked David why the men were still in the vehicle at that time. David explained that he did offer to drop the passengers off before going to Jesus', but they chose to ride along. Certainly, if they had attempted to rob him, a ride along would not have been an option -- unless he was driving them towards revenge.
David testified that Jesus invited him over. He said Jesus claimed to be tired of being home with his girlfriend all day and asked to be picked up. He just wanted to go for a ride. David went on to say that he and Jesus "always hang out like that" - just driving around. But moments later he revised that remark, saying "No. I said sometimes we hang out like that -- ride around, or go to a friend's". He also testified that he planned to drop off Ray and Trevor after Jesus was picked up. It's obvious that was never the plan. When we got to Jesus' place, he and David spoke privately in the driveway for at least 15 minutes. It's apparent that by now David was so annoyed that he just wanted these guys dead, and they were discussing the particulars of doing just that. David would tell me, later that evening that they had, in fact, discussed exactly that.
As he continued, David testified that Jesus was giving him directions - telling him where to go once he got in the truck. "I didn't know if we were going to someone's house, or where we were going," he said. Then, answering the following question, said "I knew where I was head ed." It would seem that if David didn't know that Jesus was going to shoot the passengers, he would, at least, know where they were going after their 15 minute conversation in the driveway. Once Andy exposed that lie, David finally admitted that he wasn't sure where they were going.
When Andy asked about the "mood" of things after Jesus got in the truck, David brought up the alleged argument. During earlier testimony David had claimed that the argument resulted from what he had told Jesus about how he had been set up to be robbed. Now David claimed the argument had never come to that; that the robbery never came up. The argument, he said, was about Ray and Trevor wasting his time. The reason David was having difficulty getting his story straight is because there never was an argument. Jesus took the gun, pointed it at the victims, and they begged not to be shot while Jesus yelled at them.
In one of David's police interviews he mentioned that he had known Jesus to have a temper that could only be controlled by smoking weed, and he would "snap" at any time. Andy pointed out that it was probably not a good idea, then, to give Jesus a gun after he had been told that these guys in the backseat had tried to rob him. A good point, it seems, unless of course David wanted Jesus to shoot them. Andy then brought up the conversation in the driveway at Jesus' place. He asked David if it was at this time that he told Jesus that the victims had tried to rob him. David answered that it was. "You pick him up for a ride down dark back roads and then give him a shotgun. At what point did you think that was a bad idea?", asked Andy. "I didn't think anything was gonna happen," replied David. "I thought he was just going to look at it."
Andy asked David if he had still been drinking at the time he gave Jesus the gun. He replied that he had been. "The bottle must have been nearly empty after so many people were drinking out of it all day," Andy suggested. He went on to point out that it had now been 13 hours since the bottle had been opened. But David replied no, it wasn't nearly empty, because we had only been taking "baby sips." So after all the effort David had spent trying to imply that I was drunk, he contradicts himself again -- that between 5 people and 13 hours the bottle was still not close to empty.
Andy then turned his focus to the shooting. "Shooting happens. The whole thing goes up in smoke. The whole complexion of the day changes. Drinking, having a good time, going to Baltimore, now turns into "oh crap"?
"Correct", David replied.
"Jesus blows two people away. Justin is looking forward with a blank stare?"
"He was quiet. I don't know what his face was like. He wasn't quiet before Jesus shot them. I know that."
David was taking every opportunity to implicate me, but I had been generally quiet the entire ride. Even Jesus had told Det. Porter that I hadn't said anything after he pulled out the gun.
"You then looked at Jesus and said 'I love you. Give me the gun.'?", asked Andy.
I found this to be particularly morbid. I was there. I heard it. David had just told Jesus that he "loved" him for committing two murders as a favor. This was the first time David had admitted to saying that, in context, during the trial. In the moment I found it to be one of the most shocking events of the day, aside from the murders themselves. To me it spoke volumes about the frame of mind David was in, and definitely made me to realize that I was going to have to tread carefully if I was going to get through this alive.
After the shooting, David testified, Jesus was dropped off. Andy asked David what was said, if anything, as Jesus exited the truck. "Jesus is exiting, looks across the front seat and says ‘I know where you live. I know where your families live. Nobody better say anything about this'. Correct?"
"That was clearly directed into the truck for both of you to hear?"
"Jesus threatened that you better not do anything to involve him or say anything about it, didn't he?"
"And he just proved to you and Justin that he could do it?"
"And that he would do it. That was a real threat, wasn't it?"
This line of questioning effectively established that there was a real threat. The prosecution argued that because David wasn't the shooter, I endured no duress from him. But he felt threatened by Jesus, so if any of my actions were to be interpreted, by David, as putting Jesus in jeopardy, I would most definitely have been in trouble with him. There's that, and let's not forget that he had explicitly threatened to kill me, too.
David went on to testify that he was probably in shock and not thinking clearly. He had the gun, he was drinking Tanqueray, and he needed to figure out what to do next. So, while we're still in the truck, he decides to call Joey. He told Joey that he had some problems, drove directly there, and started chugging alcohol -- Lord Calvert, Bacardi Limon, and Tanqueray.
David testified that he eventually told Joey that he shot two people in self-defense, and that he eventually told Matt the same thing. He testified that he had told Alton Adams that seven people had ambushed him at a stop sign, two of them got in the truck, and after a few minutes they told him they were going to kill him. He told Alton they struggled for the gun and he shot them. He claimed that he made these stories up in order to make it appear as if no one else had been involved so there would be no repercussions from Jesus. David continued to testify, admitting that Jesus had actually called him a few hours later to make sure he was "cleaning up". He said that the only person Jesus had contacted was him, which, at that time, was true. Jesus was making sure all the bases were covered. David claimed that he assured him that he was taking care of things in order to ensure his family's safety. That could be true. Or it could be that he had conspired to have two people killed, and it was his end of the bargain to take care of the clean-up.
At this point Andy began questioning David about his threat. "Yesterday you testified that you didn't make any threats to anyone while you were at Joey's. Do you recall that?"
"I really didn't see it as a threat."
"You said, to everyone around you, that you have more shotgun shells if anyone has a problem with what happened?"
"It could only imply one thing, David. You got a shotgun with more shells in it. And if anyone gets in your way…there's more shells."
I'm not sure how anyone could interpret that as anything other than a threat. I'm also not sure how the Jury managed to ignore this critical detail as they arrived at their "guilty" verdict.
After addressing the threat issue, David went on to testify that from the time we arrived at Joey's to the time when he made it to Bradford's at 7:30 AM he had been chugging hard liquor. When he made the threat, when he stabbed Trevor to death, when we buried the bodies, when he dropped me off at Matt's, he had been drinking hard the whole time. He testified that at some point he, Joey and I discussed what to do next. As I said before, that was not a conversation that I was a part of, but that was, never the less, David's testimony. It was David and Joey, alone, who decided to bury the bodies on Joey's mother’s property.
Andy took a moment to back up at this point. He asked David if Joey called the police when we arrived at his house with two dead bodies in the truck. To which David replied, "neither did Justin."
"I asked you a question. Did Joey call the police?"
"Did your sister call the police?"
"No. No one at the house did."
It's obvious here that David had an agenda. His entire testimony made that obvious. I believe it was good to have brought up the fact that none of us had chosen to call the police. Everyone was upset. We were all blanketed with this overwhelming sense of shock, surprise, and surrealness. Everyone was afraid. No one wanted the "shells" David had so explicitly threatened us with. Everyone just wanted this to be over, and we all acted within our individual capacity to make that happen.
David went on to testify that we had already decided to bury the bodies before he discovered that Trevor was still alive. He said finding him alive posed a "problem". He didn't want to actually kill anyone, or bury anyone, but he had to do something to clean everything up. He claimed that at that point I gave him my knife, and insisted that he not bury a live body. It seemed, through Andy's line of questioning, that he wanted David to admit that even if he hadn't stabbed Trevor to death he would have buried him, most likely, alive. But Andy didn’t ask the right questions. Because of that he had David on the stand claiming that I ins is ted he s tab someone, instead of admitting that either way Trevor was going to be buried. This was important because we may have gotten a beneficial jury instruction had Andy been able to get David to admit that.
Being unsuccessful, Andy changed the direction of his questioning, asking David how he had come to talk to the police. David testified that he went home to get some rest, clear his head, and think about what to do next. He didn't want to implicate Jesus in any way because he was concerned about the well-being of his family. But he was interrupted by the police coming to his house. He told Detective Porter that he had shot the victims. Later on David would change his story to the statement he gave in exchange for his plea agreement. He admitted to having read all other witness statements before submitting his own statement to the State. Andy followed that line of questioning in an attempt to paint this picture: David was facing two counts of first degree murder and a possible death penalty. He read all witness statements, negotiated a plea and changed his story in order to escape that death penalty or a life sentence. He'd be out of jail in his 40's, more or less (less as it turns out), in exchange for his testimony.
At last, Andy asked David this: "You got a life. That was for a statement, wasn't it?"
"You saved your life, didn't you? You would say anything to save your life, wouldn't you, Mr. Hamilton?"
"Wouldn't you?" replied David.
"No further questions, your honor."
David had essentially admitted that he had lied in order to save his life. At this point, David had lied nearly 100 times on the stand, under oath, at the insistence and direction of a corrupt prosecutor. His testimony was almost complete. Favata would ask a few more questions, and then Andy would finish with a couple more. Favata started with David and me at Matt's house. He asked David if l had expressed a desire to not go with him to look for pills if he would have forced me. David replied that he would not have. He testified that from the time we arrived at Matt's house that I had voluntarily gone with him to look for drugs. Favata changed his line of questioning, asking David how he came to abuse Percocet. He testified that when he was 14 he had injured his back, and, rather than treating him, the doctors kept him on pain meds. He played the victim quite well, never fully taking responsibility for anything. He said he couldn't have stopped taking Percocet with the pain he was in. He had been addicted since age 14.
Favata asked that if at any point in the day I had chosen to leave, go home, go to a friend's, would that have been a problem? David answered that it would not have, but what he didn't say was that I did leave. It’s outrageous that David offered plenty of information about me throughout the rest of his testimony, but wouldn't offer the truth when it would benefit me. Now, while Favata continued to review and brush up on certain details of testimony, David offered that while he was arguing with Trevor off and on during the day, I would sometimes make instigating comments, and interject on the arguments. This never happened. He further claimed - once again -- that just before the shooting I was "angry, irritated, cursing at the victims, arguing." This never happened. David was clearly well-rehearsed and an excellent little puppet for the State while on the stand.
When Favata brought up that David had remained friendly with Jesus, David testified that they were on the same tier together in prison after Jesus was arrested. He went on to talk about the threat he had made, saying that despite the threat, if anyone bad tried to resist -- me, Joey, or his sister -- he wouldn't have shot them. He claimed his threat was without merit. He also said that because Jesus was not present at the time of the stabbing, he wasn’t a threat to anyone. This concluded Favata’s redirect.
Andy began his recross by asking about Jesus' threat. He asked David bow he could say that Jesus wasn't a threat. He asked David how he could say that Jesus wasn’t a threat. David explained that because he wasn't there, he couldn't have been an immediate threat. Andy pointed out that he certainly must have been viewed as a threat because David continued to get rid of evidence that pointed to Jesus. Once he established that Jesus’ threat was one he was taking seriously, he moved on to David's threat, asking him if he stopped to say "just kidding" after threatening that he "had more shells in the shotgun” David replied no, he had not said he was just kidding. Favata had no further questions, and David’s testimony was complete.
The next witness called by the State to take the stand was Delaware State Police homicide Detective and Evidence Technician, William Marvel. Marie Graham conducted Det. Marvel's Direct Examination. She started by asking him about his credentials, training, etc., nothing of particular importance to the case, just standard procedure to give the Jury an idea of who they were hearing from. When the questioning turned towards issues specific to the case, Det. Marvel testified that he was working with the State Police on the day of the incident. He had been contacted about a possible homicide, and reported to Troop 3 in Camden, DE. It didn't take Det. Porter long to find out from David where the bodies were buried, and once the police knew the location it was Det. Marvel's responsibility to report there directly. When he arrived at the burial site he proceeded to photograph and video tape the crime scene. He also collected any items that appeared to have blood on them. Because it was beginning to get dark, the police decided to wait until the next morning to exhume the bodies and collect any further evidence. The area was taped off; and because the bodies had been buried in Maryland, a Maryland State Trooper was assigned watch duty for the night.
At this point in Det. Marvel's testimony, the State introduced a videotape of the crime scene, and the truck in which the shooting took place as evidence. As the recording played Det. Marvel explained what was being seen. The video began with the burial site before it had been dug back up. David was there and was pointing out to Det. Porter where the bodies were buried. He testified that at the time the video was recorded, no missing person's report had yet been filed. The video showed the access road leading through the woods, and the burial site about 40 feet from the road. This was approximately 2 tenths of a mile into the woods. Collected at the crime scene were a cigarette butt, two bloody pieces of paper, and a tube of A&D ointment with blood on it.
Next was the footage of the 2006 Toyota Tundra that Trevor and Ray had been shot in. The bed of the truck was full of mulch and landscaping equipment. The driver's side portion of the rear window was shot out, and brain matter littered the area. The police removed many items from the truck that were stained with blood. Blood samples were also taken and sent to a lab for DNA testing.
At this point Graham stopped the video and directed her attention to the photographs that had been taken. The first few photos were of the burial site. As Det. Marvel commented on the photos, he also took time to explain the process of how the bodies were carefully exhumed. They showed pictures of how all the dirt that was removed from the site was carefully sifted for evidence. He testified that the hole we dug was 53 x 74 inches and 5'8" deep. In order to exhume, he testified, they decided to dig a parallel hole and come in from the side. Pictures were shown of this process, as well. Additional pictures showed images of the truck as well as items removed from the truck. One of these was the wallet and ID of one of the victims. It, too, was admitted into evidence as a trial exhibit.
Det. Marvel went on to explain how the bodies of the victims were identified, since the wallet had not been discovered until two days after the bodies. Det. Marvel had taken fingerprints from each victim and entered them into their database. They came back as belonging to Raymond Ward and Trevor Moncrief. After identifying the victims, and autopsy was conducted for which Det. Marvel was present to take photos. He explained the injuries that were seen in the autopsy photos of Trevor Moncrief. He pointed out the knife wounds to the left upper chest as well as the neck. There was also a photo of the shotgun wound he sustained to the right temple.
Graham concluded her questioning, and Andy had only a couple follow up questions. They pertained to some photos of shoe prints, and Andy asked if the police had done any comparisons. They had not. He also asked about the cigarette butt. No blood had been detected after all, and any remaining saliva had not been tested for DNA.
This concluded Det. Marvels testimony for the trial. It had all been quite straight-forward. No objections. It was a simple matter of necessity for the Jury to see how the investigation had been conducted. One subject that had not been brought up in his testimony was whether or not the police had found the "sippy cup" that I had been using that day. It was still half full and would have drawn attention to the lies David had told about me "drinking all day" with him.
Thursday, October 2, 2008
This day of trial started quite normally. Judge Vaughn polled the jury, and all was good. Favata called his next witness, Theodore King Jr., M.D., a Medical Examiner who would be testifying about the autopsy performed on Trevor Moncrief. He was not, however, the individual who actually performed the autopsy. Apparently she, Dr. Hogan, was unavailable to testify as she longer worked with the office that had performed the autopsy. Favata, of course, began his questioning by establishing the Dr.'s credentials. He was very experienced and professional. He had performed in excess of 6,000 autopsies himself, and had written a report for every one. He was also authorized to testify to the contents of reports written by other doctors, as he did in this case.
Dr. King testified to the various causes of death. Natural causes - which are of a small category -- and unnatural, such as accidental, suicide, homicide, and undetermined. This case, as we know, was classified as a homicide. The cause of death was "shotgun wound to the head and sharp force injuries". Sharp force injuries are injuries that are inflicted with an object that have a sharp edge. There are two categories of sharp force injuries: cutting wounds, and stabbing wounds. The doctor was shown pictures of the injuries inflicted upon Trevor, and was asked to characterize them. There were three wounds to the neck. Two of them, labeled "A" and "B" were characterized as cutting wounds. Wound "C" was characterized as a stab wound. These wounds were called "lively wounds" by Dr. King, meaning that they occurred while Trevor was still alive. This was easy for him to determine by the amount of blood in the wound tract. A dead body doesn't bleed.
The next injury Dr. King was asked to characterize was a stab wound to the chest. This wound was 3 1/2 inches from the center of his torso on the left side of his body. The wound went through skin and muscle, in between the 4th and 5th rib, and into the upper lobe of the left lung. That wound was measured at 1 3/4" deep. Dr. King testified that this wound was also inflicted while Trevor was still alive. There was a significant amount of bleeding. He said a man of Trevor's size would have between 3900 and 4300 milliliters of blood, and 400 mL were found in this wound tract.
Dr. King took a moment to classify different kinds of wounds. There are non-fatal, potentially fatal, rapidly fatal, and instantly fatal wounds. The only instantly fatal wound is when the neck breaks at the base of the skull. The wound that Trevor sustained to his lung was classified as rapidly fatal in the absence of immediate medical attention. In and of itself, without the shotgun wound, the survival time after sustaining this injury would be only a minute or two. Couple that with the fact that the victim was already dying of a shotgun wound to head, and that estimation is likely shortened. In summary, Dr. King concluded that the sharp force injuries were sustained in life, and were a component of Trevor's death in addition to the shotgun wound. Also, the previously inflicted shotgun wound shortened the survival time that would ordinarily occur from the sharp force injuries themselves.
* * *
It was now Andy's turn to cross-examine Dr. King. He began by pointing out that Dr. King had not performed the autopsy. The point was valid, of course, but it was clear that Dr. King was unquestionably qualified to testify to the contents of the autopsy report. Andy then asked about the external examination, but this was just superlative information that didn't pertain to the cause of death -- clothes, scars, hair color, etc. From there he began questioning Dr. King about the shotgun wound to the head. Dr. King provided detail about where the wound was and how measurements were taken. The wound was on the right temple, 4 1/2 " from the top of the head, and 5" to the right. It was 5 1/2 inches long and 2 l/2 inches tall.
Dr King testified that there was no soot or stippling noticed around the wound. This is significant because these are both the result of gunpowder residue that leaves the barrel of any firearm when discharged, and is usually found in the area of a gunshot wound when inflicted at close range. Andy went on to question the doctor about soot and stippling for a few minutes, but the line of questioning seemed entirely unproductive to me.
I found it peculiar that no evidence of residue was found. This indeed had been a close range - nearly point blank -- shotgun wound, and everyone in the court room knew that by now. Andy's attempts to contest the range or distance of the shot by lack of soot or stippling were frivolous. So he went back to questioning Dr. King about the actual wound. He asked which parts of the brain and skull it had penetrated. It seemed he was attempting to bring focus towards the shotgun wound and away from the stab wound. King testified that the wound penetrated the skull both above and below the temple, the temporal bones below the temple, and the parietal bones above the temple. The wound also passed through the brain. Shotgun pellets were found in the brain. The wound also fractured the skull around the eye socket.
After Dr. King finished describing the wound, the regions it affected, and detailing the extent of injuries. Andy asked if be considered the wound to be rapidly fatal. He answered that the injuries Trevor sustained from the shotgun wound to his head would be considered rapidly fatal. He also pointed out that the respiratory centers of the brain bad not been perforated. This caused the wound to be not as rapidly fatal as it would have been had those respiratory centers been damaged. But yes, the wound was rapidly fatal. Andy had no further questions. Favata would redirect.
Favata's only question was whether Trevor Moncrief was still alive when he was stabbed. Despite the shotgun wound being rapidly fatal, wasn't he still alive long enough to sustain sharp force injuries? Dr. King was certain that Trevor had been alive, and that both injuries were reported as causes of death. Andy chose not to ask any further questions of Dr. King.
The State's next witness was Raymond "Joey" Glaeser. Randi Hamilton, David's sister, and Joey were living together at the time, and this is where David decided to go on the night of the murder directly after dropping off Jesus. Ms. Graham conducted the examination. She began with a few background questions -- name, employment, age, etc. Joey testified that he had met David Hamilton in the foster care system. He had friends that had taken in foster children, and one of them had taken David in. He had met Randi, David's sister, shortly after David and they began to date. He lived with Randi, but he and David had grown apart. Joey testified that he knew me only because he had done a few jobs with David and me several months before the incident. His motives for saying so were unclear to me. Perhaps he was mistaken. Perhaps he intended to outright lie, but I had known Joey for almost as long as I had known David, and we had hung out on a few occasions.
When Ms. Graham asked if he had been arrested in connection with this case for tampering with physical evidence he stated that he had, and had accepted a plea bargain for a year of probation. As a term of his agreement, he had agreed to testify at my trial, as well as David's, if needed. By Joey's account, on the night of the incident David had called to say he was coming over and showed up an hour or two later. When David and I arrived, we entered the house together, and David started telling him the story about what had happened. He testified that we were there for a couple of hours and, at times, were in separate rooms. He said that at one point David and I had been outside when he came out and saw David standing by his own truck, and me grabbing a shotgun from behind his house. It's true. David had told me to get the gun and I did. He had already asked for my knife, which I'd given him, and he had already threatened me.
Joey testified that when he got outside he noticed that part of the truck's rear window had been shot out, but he did not get a good look inside the truck. When asked what I was doing with the shotgun, Joey responded that he believed I was taking it to David. At some point while we were outside, Joey said, he heard portions of a conversation between David and me that did not seem "friendly." He said that it appeared that David and me -- but mainly David -- were trying to figure out what to do next.
Moving back to when we were all in the house, Joey said he had seen David drinking from the bar, but had not seen me drink anything. Then, skipping forward again, Graham asked what was occurring before we'd left Joey's house around 1:30 - 2:00 AM. Joey replied that we were outside and he had seen me hand a knife to David. This contradicts David's testimony, as David had claimed that we were inside discussing our plan when I "offered" him my knife and suggested he "finish off' the victim.
Graham then asked Joey how much earlier it had been when he'd seen me with the shotgun. He answered that it had been about an hour earlier. Joey's memory had apparently failed him some. It was actually after David had asked for my knife when he told me to bring him the shotgun. But in Joey's version, if he saw me bring David a gun outside, then an hour later give David a knife outside, it would indicate that David went outside periodically - at least twice -- while we were there. He had. Contrary to his testimony, David did not discover that Trevor was still breathing only as we were about to leave.
Joey further testified that after he had seen me give David my knife, he saw David standing in between the open "suicide" doors of the truck, and me standing at the bed area of the truck. He said that he didn't see or hear me say anything to David when giving him the knife. He claimed that he didn't see David stab anyone, only that he was standing in a position where he could have. This is simply not true. I know it to be true that of the four times that David cut or stabbed Trevor, Joey was standing right next to him, possibly assisting him, at least once. It was after David had told both of us that he had stabbed Trevor a couple of times, to no avail, that I saw Joey walk over to David's truck and both of them reaching into the backseat.
Joey went on to testify that when we left to go bury the bodies he went along because he felt threatened. He didn't want us going out to his mother's property with "guns and stuff'. He believed we were going out there -- with or without him - to clean up the mess. "Is that what Justin Erskine said he wanted to do?", asked Graham. "No...I guess more David " Joey replied.
Joey continued to testify, stating that he had left his house in his own vehicle. He knew that when we left, David and I were in David's truck with the two victims and a shotgun, but that David had led him to believe that there may have been more guns in the truck.
Chronologically, Graham bounced around with her next few questions, first asking Joey what his intentions were in going with David and me to bury the victims. He answered that he went along to ensure the well-being of his family, himself, his neighbors -- just himself, in general. Then she asked about the gun and knife. Joey answered that when he got back home from his mother's he had found the knife, with blood on it, on the ground where David's truck had been parked and threw it away. She then asked if anyone had gotten into his truck while we were at his residence. Joey replied that as we were leaving I had gotten into his truck to ride with him to his mother's property, but that David then asked me to ride with him. At which point I got out of Joey's truck and into David's. When Graham asked how much time passed between me giving David my knife and me getting into his truck, he responded that it had been 10-15 minutes "tops".
Graham switched pace gain, and asked about the drive to Joey's mother's property in Goldsboro, MD. How long did it take to get there? Who was in what truck? Who was leading the way? Joey testified that when we arrived at his mother's house, he got into David's truck with us and directed David, who was driving, to an access road that led into the woods. After driving into the woods for some distance, we all got out and began to dig. He said that all three of us were digging at first, but after a short time it was mostly him. At 6'2", Joey continued to dig until the hole was so deep he couldn't see out of it. At this point, David came back over and said it was deep enough. He said he didn't speak to me or David while he dug. When the digging was finished, he said, David and I carried the bodies to the hole.
This isn't entirely true. I did help David carry the first body to the hole, but doing so was so upsetting that I simply refused to help with the second. David claimed he carried one himself Joey said David and I carried both. But if my memory is correct, David dragged the second body to the hole.
Joey testified that with the bodies in the hole, we all filled it in. Once finished, it was nearing dawn, and he drove straight home by himself. He claimed he waited for David and I to get down the road a ways before he took off himself, and then didn't see us after that. He got home, took a shower, and went to work. But not before throwing away the knife. Graham asked what happened after he went to work. He said the police had contacted him near the end of his shift, and after leaving work he went to speak with them. He didn't need to tell them where the bodies were. David already had. Graham had no further questions. It was now Andy's turn to cross.
* * *
Andy began his examination by asking why Joey and David had drifted apart. Joey explained that David had begun to take different turns in his life and had become involved in using drugs. And while he and David had never really argued, David simply had become someone that he didn't care to hang out with. The night of the incident, Joey testified, he received a phone call from David. He seemed preoccupied, but said he'd be stopping by. Joey described him as "sounding weird…a little rammed up." He went on to say that when we showed up at the house, David went straight to the bar and began drinking out of a bottle of Bacardi, and told a story about how he had just killed two men in self-defense.
Andy painted the following picture: You've got a drunk guy who shows up at your house claiming to have just killed two people and he's got a friend with him. David is acting strangely; you're concerned for your welfare. The night is unfolding in a very bizarre way. He asked Joey if that was an accurate picture, and Joey replied that it was. Andy asked Joey how I appeared. He testified that I was "kind of in a daze, just waiting around on David."
At some point David is trying to get Joey to come out to his truck; trying to engage him in some way. He said that David was hinting at burying the bodies at his mother's house. David was in charge; "directing traffic." It was David who decided to bury the bodies, and where. Andy backed up for a moment to revisit the picture he'd painted just a minute or two earlier. On top of all this tension, Andy asked, do you recall David making a threat?
"Yes, I was in the house."
"Before you went outside?"
"Before the knife was handed over?"
"Yes, before the knife. After the story David had led me to believe about some gang thing", Joey testified, alluding to David's self-defense story.
"Okay", Andy continued, "he indicated to you in no uncertain terms that anybody who stood in his way, he had a gun, had more bullets?"
"Justin heard that?"
"l'm sure he did", answered Joey.
Joey said hearing that made him quite uncomfortable. The situation was "scary". He was scared. He felt that if he stood in David's way that there was going to be a problem. He thought David might do something to anyone who stood in his way. He felt coerced into making sure nothing like that happened.
After establishing that David had, in fact, made a threat, Andy went on to question Joey about the knife. Joey stated that he was on the porch when he saw me hand my knife to David. He didn't see or hear me say anything to David. There was no "urging" in any way to "finish" anyone.
This was an important piece of testimony. David had been very explicit about my alleged demands and urges to "finish off” Trevor Moncrief, but Joey was there and testified that he heard nothing of the sort. Andy even asked him another way: "Did you ever hear Justin say 'here, David, you've got to do this'?" Joey again responded that he had heard nothing like that, and added that I hadn't spoken much at all that night.
At this point there was a momentary interruption in the questioning by a juror who needed a break. We took a short recess, and Andy resumed where he had left off when we returned. He continued by referring to a taped statement that Joey had given to detectives about a month after the incident. From a transcript of that statement Andy directed Joey to a comment that I had made that night in which I had told him that I was "scared shitless." Andy showed Joey the transcript and asked him if he had said that. Joey said he didn't specifically recall making that remark, but once he read the transcript he figured he must have said it.
Andy's next question for Joey addressed his plea. Joey said that he had pleaded guilty to tampering with physical evidence for disposing of the knife. Andy asked if that plea also included burying the bodies. It did not. It pertained only to the knife. The State deemed Joey to be under duress during the time spent with David at his house and the burial. So, if he wasn't held responsible for his actions during that time, why was I? How is it that Joey's duress is somehow more real? I'm sure it was real. I was there. And if his was, so was mine. Additionally, on top of David's threatening behavior displayed at Joey's, I had also witnessed two murders that I knew him to be a part of. Andy's cross-examination was concluded, and Graham had a few more questions to ask.
* * *
Graham's questions were directed at the nature of David and Joey's relationship. Joey explained that they had drifted apart and were no longer close friends. David, he said, wasn't someone he would choose to spend a day with hanging out in Baltimore. Next Graham asked Joey what he knew about my relationship with David. Joey knew only that we were friends and worked together, but had no knowledge about how close we were. Moving along, Graham asked about the gun. Joey had heard a threat involving the gun, and later saw David with it when I gave it to him outside. He testified that I never made any comments relating to the gun. Graham then asked Joey if, when he saw me hand David my knife, had he heard me say anything. For the third time he said that he did not. She asked again and again and for the fourth time testified that he did not hear me tell David to do anything with the knife.
That concluded Joey's testimony. And I'd like to add that the reason Joey testified that he never heard me say anything to David when I gave him my knife is because nothing was said. Contrary to the prosecution's effort to imply that I was a willing party to David's intentions, I wasn't, and no words were spoken between us as I reluctantly complied with David's demand. At this point we took a recess. Detective Porter would be next when we resumed at 2:30.
Mr. Favata would conduct the witness examination of Det. Porter. I wasn't sure what to expect of him. On the day of my arrest Det. Porter had been very reassuring. I had cooperated with him in every way I knew how, and he had promised me that if my case went to trial he would definitely testify on my behalf. Now here he was, seated with the prosecution throughout the trial, and being called as their witness. Nine days after my arrest I had waived my preliminary hearing under intense manipulation by Anne Reigle, a public defender, to do so. Literally, I had been “forced” to do so, and she went so far as to use my own father against me - telling me that he was upstairs urging me to waive despite his actual insistence to the contrary. She had also, in fact, refused to bring me before the judge until I consented to waive. Finally, after over an hour of pressure, angry outbursts, lies and manipulations, I relented, and as a result I never got the opportunity to hear the State's evidence against me, including what Det. Porter had to say and the nature of his testimony. It seemed now that he was on the opposite side of what he had assured me. Had the prosecution left him no choice? As it turned out, if l had known the betrayal that was about to be inflicted on me we could have been more prepared, or reconsidered our approach.
Favata began by asking the detective if he had taken the statement from Joey Glaeser -- the one that Andy had just showed Joey on the stand regarding the "scared shitless " re mark. Porter answered that he had, and that it had been transcribed by a Delaware State Police secretary. He went on to say that he had compared the transcript to the tape and found that Joey had never said that I had told him I was "scared shitless". The term had been brought up, but in a different context, he testified. Joey's lawyer, present for the statement, asked Joey: "When you originally talked to me about this, you mentioned that Justin appeared to be scared shitless?" To which Joey replied, "yeah, he was. I didn't know what to think of him, either."
What had happened was that my first lawyer, James Liguori had had his transcripts rendered by an outside service because the State had only provided him with a copy of the tape. That outside service made several errors in the transcriptions, and had transcribed this portion of the statement incorrectly, thus causing this confusion, which was unfortunate.
After clearing up that little snafu, Favata got into the “meat and potatoes” of Porter's testimony. He had been involved in the case from the time the Maryland State Police had contacted the Delaware State Police on the morning the bloody truck had been discovered. Porter said my name had first come up when Bradford Yaeger told the MSP that David and I worked together for him. He had asked David about me earlier that morning when David returned the truck, and David confirmed that I bad been with him.
Mr. Porter left out the part where he sent a “small army” (approximately 20) of officers to my father's ho use later that evening, and then to my apartment where my father knew I was living, but he did mention that he had called me and that I had come in willingly to the troop 3 police station to be questioned. Porter claimed that he did not mention what it was he wanted to talk to me about on the phone, but that simply isn't true. He had, in fact, even gone so far as to call me from David's personal phone and then let David tell me what it was they wanted to talk about. I then quickly realized what I was up against with Porter on the stand. He was already lying - both blatantly and by omission.
Favata asked if the statement I had made that evening at troop 3 had been taped. When Porter answered that it had been, Favata played the taped interview for the Jury. During this statement I had told Det. Porter that David had been the shooter, and I never mentioned Jesus. That's what David had told me I would have to do if I was questioned by the police. Also, when Porter had allowed David to get on the phone after calling me from troop 3, his language clearly indicated that he still wanted me to do just that saying "I just told the police that I did everything. They just want to hear your side.”
After the statement was played, Favata continued his questioning; asking Porter about how he found out that David wasn't the shooter. Porter had believed David to be the killer, he testified, until I came into the police station looking to talk with him on January 15, 2007. My objective then was to finally identify Jesus as the shooter. I was interviewed again, and this statement was also taped and played for the jury. When that tape was finished playing, Favata asked Porter if that was the first time he had been notified about Jesus. Porter, perhaps forgetting that there was actual proof to the contrary, testified that it had been the first time he heard anything about Jesus's involvement.
As a matter of record, the day after the shooting, on June 7, 2006 when all the initial interviews were conducted, Randi Hamilton, told Porter during her interview that there had been another shooter by the name of Jesus. She had refused to have her interview taped, which could explain why Det. Porter had denied that she had been the first to tell him this. Additionally, in July, the following month, when Joey gave an additional statement in the presence of his lawyer, Det. Porter asked the following:
"Let me ask you this, do you know…was it just David and Justin? Did you see anyone else?"
"No," Joey replied. "As far as I know in my involvement of the whole situation it was just David and Justin and the two guys. That's it."
"As far as you know, David did the shooting?"
"As far as I know, yeah. Now later on when I went in for questioning there was a lot going on. There was a lot said about a third party."
To which Porter responded "Yeah? What about this third party?" Because Randi had said something to me about a third party. Do you know of another person?"
"Yeah this… this third person was the one that was supposed to have done the shooting."
"How do you know this?"
"Because after something like this a lot of people talk. Justin actually made that comment to Randi."
"You didn't have any first-hand knowledge of another name?"
"No. I don’t know their name. I've heard stories about the guy. I know it's Albert's brother and David talked about him a couple times."
Why was the Detective lying on the stand yet again
Favata’s questioning continued. He asked about the consistencies in my two statements. The first one, Porter pointed out, is that I admitted to giving David my knife both times. But then Porter added that in the second interview I said that I had told David that he had to stab Trevor in the lungs. He testified that my reasoning for saying this was that I just wanted to hurry up and get out of there. He said that I confirmed in both statements that Trevor was alive when David stabbed him. He said that I described David as "wigging out" because of that. Porter also stated that I admitted in both statements to helping bury the bodies. Favata asked if Porter interviewed me a third time. He said that he did, on March 15, 2007.
The truth is Porter sat in as a witness during this interview. David Favata and Marie Graham conducted this interview. Porter did not actually interview me a third time. He testified that in this interview l also said that I had told Hamilton to "finish off" Trevor because I wanted to "hurry up and get out of there." Porter testified that after the third interview it was decided that I should be arrested. When asked why I was arrested and charged with murder, Porter responded "because he lied about the first statement." Andy immediately objected, and Judge Vaughn in structed the jury to disregard that answer. I'd like to take a moment here to point out what I believe to be a gross injustice. The arresting Detective in my case stated, under oath, that I was arrested and charged with murder because I lied. Not because I killed someone, or assisted in any way in killing someone, but because I lied. I did lie. I was afraid of repercussions -- for my own life and the lives of loved ones, and I initially caved into that fear. It ate at me. In the end, I voluntarily corrected that lie and came forward with the truth. I also feel that my lawyer made a mistake here in objecting. I was arrested for lying? Really? The Jury should have been allowed to consider that I had been arrested for lying, not for committing murder.
Moving on, Porter testified that I was arrested as an accomplice to murder rather than a "principal" in the murder. The actions that led Porter to believe I was an accomplice were giving David my knife, and telling him to "stab Trevor in the lung." He stated that as to the tampering with evidence, I was charged with that for the burial of the bodies and burning of clothes. Favata had no further questions.
* * *
Andy started his cross-examination of Porter by asking if he had noticed a transcript error in one of my interviews that pertained to a phone number being transcribed as "bob-cree-one" instead of 5-3-1. Porter answered yes. Apparently, Andy just wanted to show that mistakes were made in the transcription process, perhaps to discredit their absolute authority as evidence. Moving forward, Andy asked Porter if he had conducted other interviews and investigations. Porter said he had. He testified that it would be accurate to say that witnesses and suspects often give inaccurate or incomplete statements at first. Sometimes they can be vague, or deliver their statements in a "round about" manner. But, oftentimes, the subsequent interviews are more consistent with the truth, particularly in serious cases. Porter agreed that witnesses often feel too intimidated to come to court and testify - that sometimes it's hard even to get information from a neighbor in situations where they may feel intimidated. Most often these feelings are the result of fear of retaliation, Porter said. Even in situations where people aren't as close to a case as Mr. Erskine was, stated Porter, it's still commonly difficult to get them to provide information. Many times they won't show up to testify in court, even when subpoenaed.
Andy asked Porter how many times he had spoken to me between June of '06 and March of'07, when I was arrested. Porter testified that he had spoken to me several times, some of which had not been recorded. He wouldn't say specifically how many times, instead categorizing it as "probably altogether several times, including interviews." Porter said that he did not take notes during un-taped interviews if he thought they weren't important.
"You didn't have him arrested - well, let me back up. You have arrested people in the past prior to Mr. Erskine?" asked Andy. Yes. Porter had arrested people before me. He had the authority to make an arrest of an individual based upon a warrant, and had been doing so since 1990. Porter testified that he can report probable cause to a judge, get a warrant, and take a suspect into custody.
It seemed like Andy was setting himself up to ask why then, did Porter not arrest me from the beginning. But then he either lost his train of thought, or simply decided not to ask the question. Instead it went a little differently. "Did Mr. Erskine come to talk to you voluntarily?"
"Was his information largely consistent in that he gave David Hamilton a knife?"
"David stabbed Trevor?"
Andy went on to ask if I had also told the Detective that I was pretty scared. Porter confirmed that I had told him that. Andy then quoted my initial interview in which I had expressed that fear to Porter, and then asked if there were any formal interviews between that statement and January, '07. Porter answered that there were not.
"This, January, '07, is when Justin walks into the police station?", asked Andy
"This is the first time you hear of Jesus?"
"The DSP, for 7 months now, had no idea that Jesus was involved?"
"Was there information in that interview that was inconsistent with the first one?"
Andy then ran through some of the consistencies in my statements that Favata had opted to neglect. Namely, that the knife was in my pocket I gave it to David. David injured Trevor. David was drinking Tanqueray all day. On Percocet. That I was in fear for my life.
The new information I provided during my second interview in January, '07 was, in part, that David was afraid of Jesus, and that I feared retaliation from Jesus. Jesus seemed crazy to me, and I had heard that others in his family were too. And I knew he was still not in custody and capable of atrocities.
Here Andy took another turn in his questioning, asking Porter about the time surrounding the actual stabbing.
"Justin was, at one point, in Joey's truck?”, asked Andy.
"David comes and tells him to get out of Joey's truck?"
"David is wigging out because he doesn't want them to be alive -- he wants them dead before he digs the hole?"
"Justin told David that he didn't want to be there, and told him to hurry up - stab Trevor in the lung?"
"You had all that information back in June of '06?
"You didn't arrest him?"
"You knew he had had the knife knew it was used for a murder?"
"Knew he made the comment to hurry up?"
"Then in January of 2007 Justin tells you essentially the same thing?"
"Did you arrest him?"
"So those two statements were largely consistent, but with an enhancement, correct?"
"Other than I haven't talked to Jesus yet," replied Porter.
"That wasn't really a relevant answer," Andy pointed out.
"Jesus wasn't even there [for the stabbing], was he, detective?"
"So Jesus knows nothing about what happens at Joey's house?"
"The stabbing occurred at Joey's house?"
I don't know why Andy didn't seize certain opportunities. Why didn't he ask why? Why didn't Porter arrest me? Why didn't he ask Porter how it is relevant whether he spoke with Jesus, if he wasn't even present for my "part" in this? Jesus never implicated me at all in his statement, yet I was arrested following his statement. I don't see how it was a good strategy for Andy not to ask these critical questions.
Andy went back to asking about the statements, this time the March 15, 2007 statement.
"Was it voluntary?", asked Andy.
"Was it consistent in that he gave David a knife that David used to stab Trevor?"
"Continued to express his fear?"
"Did you arrest him then?"
"So for nine months, three consistent statements, you didn't arrest Erskine?"
"That's in addition to the informal talks?"
"Were you at some point directed, detective, at some point to make an arrest of Mr. Erskine?"
"I don't know if I was directed. I wouldn't say directed. I would say we discussed it."
"Who advised you to go out and arrest Justin Erskine?"
Avoiding details, Porter answered that he "... had a conversation with members from the Department of Justice, and we decided that we needed to arrest Justin Erskine."
Well, the "members of the Department of Justice" were the two prosecutors, David Favata and Marie Graham, something Andy should have more aggressively sought to clarify. But he didn't. These two were also the ones who "directed" Det. Porter to arrest me. At least that's what he told me himself on the day he arrested me and locked me up. That was the same day he told me he was "on my side," and would testify on my behalf if this went to trial.
Andy reiterated that Porter had not arrested me despite having all the information. Porter asserted that the three statements were different. Andy argued that the content of these statements for which I was arrested, however, was consistent. He then asked Porter if he arrested Jesus after hearing the information I had provided in my January statement. Porter answered that it wasn't until after my March statement that Jesus was arrested.
At this point Andy told the court he bad no more questions. I had to remind him to ask Porter about Joey's claim of a third party, Jesus, several months before I had offered that information to Porter. Andy asked Porter about it, and Porter requested to review the transcript. Andy showed him the portion of the transcript where he had directly asked Joey about a third party.
"Is it still your testimony, after reviewing this particular statement, that you had not…you had no information of the name Jesus before?", asked Andy when Porter was done reading the transcript.
"And that you weren't advised that it was Albert's brother that was involved?"
"You're telling us that you don't recall Joey ever saying that to you?"
That concluded Andy's cross. Favata would now re-direct.
* * *
Favata began a series of questions that would lead to his main point.
"Did the defendant tell you in June of '06 and January '07 that he gave David Hamilton his knife?” asked Favata.
"Did he say he was afraid of Hamilton in January '07?"
"Is that the same interview where he admitted that he had told Randi Hamilton, two days after the murders that David didn't shoot the victims?"
Before giving Porter a chance to answer, he began to quote my statement. In it I had told Randi the day after the murder (not two) that David didn't do it. I said that I thought she had the right to know that her brother wasn’t murderer. I then told Porter that David was, instead, a coward. He then asked Porter if he found it strange that I would call David a coward yet claim to fear him.
"What would be strange to me is why he's calling him a coward and being afraid of him," replied Porter.
"That would be two inconsistent thoughts, wouldn't it?"
"Can't be afraid of a coward, can you?"
"I wouldn't think so."
The argument for not fearing a coward is baseless. People can be cowards in countless different ways. In this instance David fits the bill of coward for several reasons -- not being able to exercise restraint, letting his emotions control him, not dealing with his own problems, enlisting a third party to murder the objects of his frustration, others. America's Most Wanted's, John Walsh, calls the perpetrators on his show "cowards" every episode. And these cowards kill people.
Finally Favata asked who suggested how to kill Trevor Moncrief. "Justin Erskine" Porter replied. This concluded Det. Porter's testimony. The copies of the transcripts of the interviews that had been played that day were collected from the Jury. The Jury was excused, and court was adjourned. We would resume on Monday, Oct. 6.
Monday, Oct. 6, 2008
Before resuming on the 6th, Judge Vaughn, Andy, and both prosecutors had a lengthy discussion in chambers regarding the witness that we, the defense, would be calling that day. The State had one more witness, Randi Hamilton, and would then rest their case. We would be calling Matt Minker and Dr. Stephen Mechanick. The State had some concerns with what they thought would be the content of the doctor's testimony, which I'll explain here immediately before he is called to the stand.
The Jury was polled, and the State called Randi Hamilton. Favata had only a few questions for Randi. He recited to Randi a portion of my statement wherein I had said that Randi had told me that David would shoot me, or Joey, if he thought we might cause something to go awry. He asked Randi if she had ever made that statement and she denied it. That didn't surprise me, but I wish she would have told the truth. Favata then asked if l had called her the day after the murder to tell her that David had not shot the victims. She said that I did, which was true.
Favata had no further questions for Randi. Andy opted not to cross examine Randi. The only question I really wanted him to ask her was whether she repeated what I had told her on the phone to anyone, or if she had reported it. She had. Had he asked that, and if she had been truthful, it would have revealed to the Jury that Det. Porter had lied when he said that he didn't have any information about Jesus. Another tactical error on the part of Mr. Witherell.
The State rested its case, and the Jury was excused. At that point Andy moved for a judgement of acquittal. He claimed that the State had failed to provide sufficient evidence for conviction. Favata, on behalf of the State, argued that he had provided sufficient evidence, and described why he believed so. Judge Vaughn denied the motion, putting my fate in the hands of the Jury.
To begin our case, Andy called Matt Minker to the stand. Matt had been charged with Tampering With Physical Evidence and had received one year probation. Matt testified that David and I came to his residence on that morning between 6:00 and 6:30, waking him up. David had told him that he had shot two people and buried them in Maryland. He stated that I "looked like crap. Very pale. He looked like he was scared.” He described me as having a "thousand mile stare," and looking like a "deer caught in the headlights." He also recalled that David had returned his gun to him that morning - the one used to shoot Trevor and Raymond. Matt testified that he cleaned the gun. When asked why he didn't call the police, he said that despite his wife wanting him to do so, he felt threatened by David.
Now Matt’s a big guy. He’s over 6 feet tall with a stocky build and is an ex-marine. He hadn't even witnessed a murder, and still felt an implicit threat from David. David never actually threatened Matt, but Matt says that he felt that if he told the police about that morning, David may come back and hurt him or his wife. Matt said that he had let David borrow the gun about a week, week and a half, before the incident. He also testified that he had never seen the gun from the time he loaned it to David until the morning that David returned it. This cast doubt on David's story that he had returned it and retrieved it a second time when approached by the victims, later on, to buy drugs in the evening. Andy had no further questions at that point, and Graham would take a turn questioning him.
* * *
Graham's first question alluded to Matt's testimony about the day after the murder -- when he and I went up to Wilmington. I had told him some of what had happened the night before. She wanted to know what I had told him. Andy should have objected because it was hearsay, and nothing had been admitted into evidence concerning this conversation. But Andy did not object, and Matt answered as follows: "[Justin] said that they were at Joey's residence. David handed him a knife and told him to finish off one of the men."
"Justin Erskine told you that?" asked Graham.
"Did he tell you anything more?"
"That he stabbed him. Justin stabbed him."
Obviously, Matt is mistaken. I believe that in the situation, with all the information and emotions and confusion, Matt himself simply mixed up the information. I don't believe -- and I could be wrong -- that he intended to be malicious, but his testimony was that I stabbed a man. He then explained that he had told me he could find me a place to do my laundry - which is why we were in Wilmington -- and this is when I told him this.
Graham asked when Matt learned that I would need help doing laundry. He replied that it was way later in the afternoon of the same day that David and I had come to his house to return the gun. Matt said when he learned that I needed a place to do my laundry, he wanted to help me out. As we had seen previously, Graham's questioning techniques could be a little erratic. She jumped around a bit, and it went like this:
"When you were riding to Wilmington where was the gun?"
"In my truck. I wanted to get rid of it."
"What did Justin say to do?"
"I don't remember."
"When Justin spoke to you, what did he tell you David was doing when he gave him the knife?"
"Drinking, carrying the shotgun, I think."
She switched directions again, and asked if David and I had been at Matt's the day before.
"Yes, they had."
“Is Justin your friend or co-worker?"
"For how Iong?"
"Were you supposed to work with them that day, the 5th?"
"Did they spend most of the day with you?"
It's strange, that last answer. David had not spent most of the day with Matt. He'd spent most of the day looking for pills.
"The morning they returned the gun, who's doing all the talking?"
"He's giving you details about the shooting?"
"Did he give you details about the knife?"
"Did you destroy Justin's clothing?"
"I didn't want David to come back to my house."
"Did you discuss that with Justin?"
"No, I don't think I did."
Matt testified that despite David being a friend to both him and his wife, that he felt David would come back with a vengeance if he told on him. There was no explicit threat from David, but those were Matt's thoughts nonetheless. He didn't threaten Matt when he asked him to clean the gun or burn the clothes, but Matt still perceived one. Matt continued to answer Graham's questions. He did not know where David and I were going when we left his house the night of the murders, but he knew we were going to get Percocet. He said he could have gone, but it would have upset his wife, so he didn't. He didn't know who we were leaving with, he claimed. He also claimed that he had not been drinking "all day", and he also didn't remember David and I drinking while we were there. He does remember David drinking the next morning when we showed up at his house.
Graham's interest changed to whether Matt heard of any threats directed at me from David. Matt answered that he had not heard David threaten me, and also that I did not tell him about David's threat. We never discussed it. I don't believe I ever did mention David's threats. Why? Because Matt had perceived it enough on his own. It was obvious to everyone who encountered David during this time that things had better be handled delicately and discreetly, lest there be repercussions. Everyone involved felt threatened. It was obvious. There was no point in dwelling on it or discussing it.
Graham directed the conversation back to David's and my appearance the morning we came to Matt's to return the gun. He described me as looking scared, but that David did not look scared. He described David as "looking like he'd been up all night drinking." Then both of us as looking like "two people who'd been up all night digging a hole”. We both had blood and dirt on us, he testified.
After that detour of questioning, Graham asked Matt if he and I had seen each other after that -- in the next year. He said that we had, but only once. It had been twice, but maybe he'd chosen to forget the first time, at the State Fair. The second time, the one he mentioned, was at his house. Matt said that I had come there to tell him that Jesus Aviles was the shooter. He was surprised, he said, to see me. He also described me as looking scared. Jittery. He testified that I told him the police were going to arrest Jesus.
Graham had nothing further to ask. But I'd like to clear up some of the details about why I had gone to Matt's house. I had been hanging out with a friend of mine, Jaime Krissler that day. She said she had a friend she wanted to see in Kent Acres, which is where Matt and his wife Nicole lived. So I drove her there and it turned out that Nicole was the friend that Jaime wanted to see. I went inside with her, where I was met by Nicole and her mother. Nicole had been “wary” of me since the murder, but I wanted to set the record straight with her while I was there. Matt came home, and because Nicole told me that Matt and Jesus had been working together, I thought he should know, too. My purpose was not to simply stop by to tell Matt about Jesus. But I felt it had become necessary.
* * *
Andy had some questions for Matt on re-direct. He started by asking why Matt had feared David. Matt replied that after David said he'd shot two people; he didn't want to be shot. He said that David had not, however, made any threats. "Did David mention that morning, when he was out trying to buy Percocet, that two black guys were pissing him off?", asked Andy. Matt answered that David hadn't mentioned the men were pissing him off, but he smelled like booze, and he imagined David was pretty drunk. What David did tell him was that he'd shot the two men in the head, and that one of them hadn't died immediately, so he stabbed him a couple of times. Andy asked if l had been talking during this exchange. "No," said Matt. "He had a thousand-mile stare." "So you had learned that morning that Mr. Hamilton stabbed this individual, correct?" "Right," replied Matt.
Next to testify was Dr. Stephen Mechanick. At the start of the day the State had brought up some concerns regarding the nature or content of what Dr. Mechanick's testimony might include. The main issue was that the State did not want Dr. Mechanick to be permitted to opine that I was acting under duress. Duress is an affirmative defense in the court of law, not a medical diagnosis, Favata argued. He claimed it can only be a conclusion come to by the triers of fact -- the jury. Andy argued that it's not simply a one-sided interview -- the State had also had me evaluated and their doctor, Dr. Thompson, indicated in his report that I had an altered mental state. Graham, too, had an issue with the defense of duress being raised because under the statute of duress, it cannot be raised if the defendant voluntarily or recklessly placed themselves in a situation where it was plausible that they would be subjected to duress. But that's only her opinion in my case, and regardless, duress can be raised anyway. It is for the jury to decide if a defendant meets the criteria.
Before Dr. Mechanick takes the stand, Judge Vaughn asked, would Andy divulge some details about what Mechanick would be testifying to specifically? He wouldn't. Favata again argued against Mechanick using the non-medical term of duress, citing a particular statute. But Judge Vaughn cited an evidentiary rule that is "directly opposed" to the rule Favata mentioned. Basically, that meant that Dr. Mechanick would be allowed to voice his opinion about the defense of duress.
Mechanick was called to the stand and before being sworn in, underwent a Voir Dire by Judge Vaughn. Basically, Vaughn asked what opinions Mechanick would be giving. He responded that he planned on opining about my emotional state, psychological state, my feelings of duress. He would explain my state of shock, feelings of derealization, and symptoms consistent with acute stress disorder. These elements combined to cause me to fall into a compliant and passive role. Mechanick was asked to step out of the court room while Judge Vaughn made his ruling. He ruled that Mechanick would be allowed to offer his opinions of duress, and that was that.
The Jury was brought in, and Mechanick was called to the stand and sworn in. Andy started by asking Mechanick what exactly he was a doctor of. He answered that he was a doctor of medicine, an M.D., and had been practicing psychiatry for 22 years. He also was an Instructor of Psychiatry. He had been a chief resident of Harvard at Harvard Medical School, and then at Thomas Jefferson University, followed by a Clinical Assistant Professor through Hahnemann Medical School in Philadelphia. He was a member of the "American Academy in Psychiatry and the Law" and served as president of the Philadelphia Psychiatric Society. He also served on a number of committees with several hospitals outside of Philadelphia. Dr. Mechanick specialized in forensic psychiatry, which is the interface between law and psychiatry. He had been doing forensic work for over 20 years, and had made over 200 appearances in court for both sides -- the prosecution and defense. This in addition to the many times he was not asked to appear, when his opinion went contrary to the position of those who hired him. He would not be bought to take sides, and would not testify against his opinion.
Mechanick testified that he had performed an evaluation of me on May 7, 2008. The process of evaluating an individual, he explained, is to review all available documentation, which, in my case, was a criminal complaint, affidavit, and transcripts of police interviews. That is then followed up with an interview of the individual. For my case, Mechanick testified, he reviewed all police transcripts provided to him, and even the 911 call in which the crime was initially reported. However, after already forming an opinion, it was brought to Mechanick's attention that he had not been provided with my first and third statements because Andy had failed to provide him with these documents. However, on the very day that he appeared at trial, he had been able to review them and testified that they had not altered his professional opinion.
Speaking to the error in Joey's transcripts, regarding the "scared shitless" comment, Andy asked if the change in wording affected Mechanick's opinion. Remember, initially Mechanick read that Joey had stated that I had told him I was scared, but in reality, Joey had told his lawyer that I appeared to be scared. Mechanick testified that that had not affected his opinion.
In answering a question asked of him by Andy, Mechanick explained a few details about the interviewing process. It begins with background questions about an individual's childhood and growing up -- events that happen throughout the course of a life that lead to the situation that be is to form an opinion about. He also endeavors to explore whether there is any family or personal history of psychiatric illness, drug abuse, and criminal history. In my case, Mechanick was not only trying to learn what happened, but also what I was thinking and feeling while it happened, and after it happened. He observed behavior, mannerisms, speech -- be it slow or fast, emotional state, organization of thought, general intelligence, and whether there might be evidence of delusions, paranoia, hallucinations, or violent thoughts. Mechanick also asked questions designed to reflect how well I functioned intellectually and cognitively.
Mechanick testified that his main focus in evaluating me was to determine what had been going on in my mind during the shootings, and after them. He found that the reports indicated that the events were unexpected by me; that I had most definitely not gone out expecting something violent to occur. They indicated, to him, that I was shocked and emotionally traumatized at the time of the shooting. He supported this with the fact that I, as well as others, used terms that indicated I had symptoms consistent with a diagnosis called Acute Stress Disorder, ASD. This is similar to Post Traumatic Stress Disorder (PTSD), the difference being in how long these symptoms last. ASD is more specific to the moment itself and the immediate fallout afterwards.
The comments that Mechanick felt were consistent with ASD included what I had told Det. Porter about "feeling shocked", that I was "kind of traumatized instantly", that I had "looked back at what had occurred to make sure it was real…make sure I wasn't dreaming." That is what he called derealization. This is a common occurrence in people when they are victims of acute trauma and traumatic events. Other comments, like the one Matt made describing me as having that "thousand-mile stare", "like a deer caught in the headlights", describe a sense of shock and contribute to the ASD diagnosis. Yet another comment I had made describing a sort of emotional numbing is consistent with shock and trauma, and is used as a coping mechanism against an overwhelming event.
Mechanick was asked how an event like the one I experienced would affect one's mindset with respect to acute stress elements. Mechanick described ASD as having to meet a certain standard of trauma that involves death or risk of death, or serious harm to oneself or others. He testified that this event certainly met that standard. The second aspect of ASD is how an individual reacts. He said that not everyone develops ASD in traumatic situations, but some do, and that in a situation like this, it would be very common to develop that condition. ASD speaks to how someone experiences an incident. If someone experiences an incident like this one with intense fear, hopelessness, or horror, that's the second aspect of the diagnosis. He testified that I had that experience, along with other consistent symptoms like the emotional numbing, derealization and fear. The fear, he went on, in this case was two-pronged. There was fear as a result of what had happened, and also due to the ongoing threat that I was perceiving and experiencing from David and Jesus.
That last piece of Mechanick's answer caused Andy to ask if a threat must be actual, or could it be implied or perceived? Mechanick explained that for ASD there doesn't have to be a personal threat. One could simply witness harm to someone else. He explained that there was both an explicit and perceived threat in this case; that this threat came not only from witnessing Jesus shoot two people in the head, but also from witnessing the way David and Jesus behaved afterward, the way they spoke about it, their manner and demeanor, and subsequent statements.
Mechanick explained that when people are under stress or trauma, their horizons tend to shrink, which is to say they become absorbed in their experience, finding it difficult to see long-term. It becomes a "fight-or-flight" experience -- hard to look at from an outside perspective, and hard to process rationally. He said contrary to popular belief, people generally do not think clearly when under pressure.
Now, Mechanick had mentioned that ASD is defined, in part, as lasting 2-30 days. Andy countered that this situation had not lasted two days. Mechanick went on to explain that with ASD it's not the duration of the event that matters, it's the duration of the symptoms the event causes. Dr. Mechanick's focus was on where my mind was at the time of the incident, that he believed I had emotional symptoms past two days, but because my actions related to this case occurred in the moment, his focus was there. There was evidence, though, that there was emotional suffering well beyond two days. For added clarity, Mechanick explained that the extreme traumatic stress of a given occasion does not have to last an entire two days. It can happen in an instant. The question is what sort of repercussions does it cause and how long do they last. In my case he was not surprised that I was affected well beyond the initial two days.
Andy asked Mechanick to explain how the fear for my life and safety played a particular part in my actions. Mechanick explained some obvious questions that may arise, like, why didn't I run away? Why not fight someone? Mechanick began to quote something I had told him during our interview when Favata objected, arguing hearsay. Overruled. Mechanick continued. I had told him that after the shooting I had "pretty much surrendered." I was going to do whatever David wanted in order to put the horror of the night behind me as quickly as possible. He said that my choice of the word "surrendered" spoke loudly to my mindset. I had adopted a passive, compliant role in order to survive the person who was terrorizing me, Mechanick testified.
Now, the whole "hurry up and finish" comment could not go ignored. Surely that comment would have to be considered by Dr. Mechanick before rendering an opinion, so he was asked about it. His question to himself, he explained, when forming his opinion, was why did I say it? Was it an affirmative statement, made because I wanted to see it happen? Or was it a statement made because I desperately wanted to be out of this nightmare? Mechanick concluded it was the latter. The interviews and statements were consistent with that opinion. The only reasonable motive for a comment like that was to just get out of the situation. There was nothing to indicate that this was something I wanted to happen.
Finally, it was Mechanick's opinion, offered to a reasonable degree of medical and psychiatric certainty, that my actions were substantially influenced by the explicit threats from David Hamilton. Mechanick also opined that my actions were influenced by the duress that I had experienced as a result of David's and Jesus's actions, and by my fear of being harmed or killed by either individual.
* * *
The real test of Dr. Mechanick's testimony would come during his cross-examination by Favata, spanning 57 pages of trial transcript. The first question Favata asked was if it was consistent with his opinion that I feared Jesus by warning him that the police were coming to get him. Mechanick replied that it was potentially consistent. But it's irrelevant. That's not what happened. I had told his brother, Albert, a high school friend of mine, that the authorities were aware of Jesus before I gave my side of the story.
Favata then attempted to attack Mechanick's ethics, stating that he had been contacted by Andy to provide a basis for a duress defense. Mechanick countered that he was simply contacted to perform a psychological evaluation to determine my state of mind at the time of the incident. The issue of duress did eventually come up, and of course Andy would want to know if he had an opinion to support that. Favata shot back, saying he was "sure" that Mechanick was notified that his conclusions would be used, assuming they were consistent with the defense of duress, and that his conclusion would be the foundation of our defense. Mechanick defended his position, stating that it was not made clear if his opinions would be used until much later, and it was certainly never described to him as being a foundation to our defense.
I'm sure Favata's eagerness to "prove" some kind of unethical practice comes from his own personal habit of unethical conduct.
Continuing with his attack, Favata suggested that Mechanick was simply looking for reasons to justify why I had told David Hamilton to "finish off ' Trevor Moncrief by slitting his throat, and stabbing him in the lung, but Mechanick never had any reason for doing so. Mechanick replied that while he did look at why that may have occurred, that was not exclusively what he was considering. He had considered multiple statements in his endeavor to arrive at understanding the truth.
"Because that's what you get paid for as a defense expert?" Favata retorted.
"It's what I get paid for as an expert whether it's for you or the defense," Mechanick replied.
"Fair enough. By the way, how much are you getting paid to testify for the defense today?"
Andy objected here and was overruled.
Mechanick answered that whether it be for the defense or prosecution, he is paid $1800. 00 for half a day, and twice that for a full day of testim ony. His fee for reviewing and preparing a criminal forensic evaluation is $350.00 an hour. He estimated that he spent a total of 8-10 hours of criminal forensic work on this case.
Favata took the opportunity to discuss the transcripts. Mechanick said he was aware of some inconsistencies. Also, he added, there were two transcripts that he had not been provided with initially, but had reviewed those that morning. He also testified that he had not listened to any tapes, but had only read transcripts.
"Did you read the indictment?", asked Favata.
"Did you read the warrant and affidavit for probable cause?"
"No. They weren't provided to me."
"Did you review Joey Glaeser's first statement on June 6, 2006?"
He didn't mention it here, but Mechanick had reviewed Joey's second statement.
"Did you review the defendant's criminal history?"
"In the sense that I asked him for a list of it, yes."
"Did you review all the police reports prepared during the investigation?"
"No. I was not provided with them."
"You didn't call and ask for anything else, did you?"
"Actually, yes, I did. There was a portion of transcript missing that I called for and received a little later."
The big statement that Favata brought attention to was my very first one, in which I had identified Hamilton as the shooter. This was the one Mechanick had not read at the time he had formed his initial opinion. "How is it that reviewing that didn't affect your opinion?", Favata asked. Mechanick answered that he was already aware of the inconsistencies at the time of his report, and after reviewing the transcript that morning it provided him with no information that would give him cause to change his opinion.
Favata challenged that it is essential to Mechanick's conclusions that he be provided with credible information. Mechanick agreed, adding that he gives serious consideration to that. Favata then pointed out that in Mechanick's report he stated at the beginning of his opinion "if the information Mr. Erskine provided to me is accurate..." and asked "Isn't that because you base your conclusions, in large part, on what the defendant told you?"
Mechanick gave a solid answer here, explaining that his reason for that is two-fold. First, it's the Jury's province to determine what version of events they believe occurred, so it's out of respect for them. Also, he does not rely solely on statements made to him. He said he also read other's statements and found them to be consistent. If he had found them to be otherwise, he would not have relied much on what I had told him.
Favata asked Mechanick that if the information I had provided to him was not completely accurate, could that change his opinion. Obviously, it could. Mechanick answered that the information has to be sufficiently accurate. It's common for memory to change a little over time, and descriptions can differ from one time to another. If someone gives a complete recitation, as if reading from a book, that's often rehearsed. Sometimes we remember things more accurately closer to when the events occurred, but when there is a situation of acute stress, our memories don't always function well. Sometimes people recall facts better after having had the opportunity to settle down, when things aren't so close to the time of the events. It's a bit of a mix, he explained.
Favata wanted to know that if what Mechanick said was true - that I was stressed during my first interview, if he also noticed signs of ASD during my second interview in January of '07. No. He did not recognize signs of ASD or PTSD. Was that interview more detailed?, Favata wondered. Mechanick couldn't say; he hadn't compared them side-by side. Rather, he reviewed them for context.
Favata then fabricated a statement, saying that Dr. Mechanick told him earlier that he was aware at the time of the interview with me that we were planning a duress defense. He is very good with inventing information that suits his agendas. But Mechanick replied that he's not so sure that was true. Obviously the issue of duress came up at some point, but he didn't recall exactly when, and was unsure if it was before or after interviewing me.
Favata asked Mechanick if he had considered that I might simply be telling my version of the events in a way that would bolster my defense...to make it seem as though I had no choice but to go along when, in fact, I had plenty of choices. Of course, replied Mechanick. He had most definitely considered that l could have been trying to bolster my defense. The second part, he replied, is only Favata's opinion that I had plenty of choices. During our interview he had, of course, considered my sense of credibility. He made assessments of how I represented the facts. For example, did I tend to overstate things? Did I try to build on and elaborate that I had no choices? Was I attempting to "sell" something? Mechanick testified that he did not find that to be the case.
Favata took a moment to follow up, saying "OK, you can't read minds, so that's why psychiatry isn't a precise science, is it?" Mechanick countered, saying that it is about as precise as any other field of science or medicine. It is based on a scientific foundation of identifying symptoms. It is part art, part science. Favata asked if Mechanick considered that I went with David voluntarily to "back him up" knowing that there was a loaded gun in the truck. Well, yes of course, he rep lied. But going with a friend who has given you a job, who you've stayed with at times, etc…to back them up is very different than going out with the intent to do harm. Well, did he consider then that I voluntarily went with David to his sister's house after the shooting instead of bailing like Jesus did? Mechanick replied that he had considered this and tried to understand why. He concluded that I was "with someone who had committed a violent crime and was behaving in an erratic manner. He felt scared." Favata interrupted to point out that David had not committed a violent act yet, correct? "No, but he gave a gun to the man who did," Mechanick answered. "But wasn't David a friend, like a brother to Mr. Erskine?" "Yes", answered Mechanick. "Well then didn't you, doctor, consider that he voluntarily chose to give David his knife and tell him to finish him off?" Yes, he had considered it, and dismissed it.”
Favata continued by quoting one of my statements. He read from the part in my first statement where I explained how David asked me to come with him. I wasn't forced to go with David, and yet I went anyway. "What did you, doctor, think of that?", Favata wondered.
"That's simple. He put himself in a situation to help a friend if he needed it."
"Didn't he know that there was a gun in the truck?"
"That's unclear. But even if he did, it was stated that David had borrowed the gun for target shooting, not to harm someone with."
"Didn't the defendant say that he and David were very close, like brothers?"
"Yes, he did. But I'm not sure it was that close of a relationship. I think that is part of what made it so confusing for Mr. Erskine when everything unfolded. You don't expect to see a friend do something so out of character. It was a real contradiction from his knowledge of David."
"Didn't David say in his statement, after he plead guilty to murder, that he didn't know at the time if Jesus was going to shoot him too?"
"Yes. There are some credibility issues there, as well."
Now Favata wanted to know if it was reasonable to conclude, based on my descriptions of my relationship with David, that my act ions were motivated by a desire to help my brother deal with a desperate situation. Mechanick replied that that was not his opinion. It's a possibility he had considered, but was easily dismissed. It's very unlikely that if I was involved in the killings that I would go tell the police that I participated in them in any way, Mechanick explained. But it makes more sense that I would talk to police if l was in a survival position during the events rather than if l had been a conspirator to the events.
"Couldn't it be possible that Mr. Erskine just wanted to get it off his chest that he had done something horrible?", asked Favata. Mechanick felt that that was not the case. When considering what I had said and how I said it, it's obvious that there was no feeling of culpability or that I was confessing to anything. Even though the details about who shot the victims changed, my statements about why I was involved stayed consistent. That is, that I felt shocked, numb, and scared. The circumstances were not ones that would typically involve co-participation. Nothing pointed to any kind of confession, so that option wasn't a compelling one for why I offered the information I did, explained Mcchanick.
After Mechanick 's explanation, Favata again invented another scenario that wasn't true. He asked Mechanick if he was aware that Jesus and I spent time on the same tier in prison and concocted stories that we could tell police. The reality is that Jesus and I were never housed together. It had been David and Jesus that shared living areas in prison, while I was in another prison entirely. Favata asked if that seemed Machiavellian. Mechanick answered that it is pretty common for inmates to come up with stories, and that is something he had to consider.
I feel that that was damaging. The Jury considered something as truth that never happened, and Mechanick answered as if it had. And later, when the Jury learned that Jesus and I were never housed together, they would wonder why Mechanick answered as if we had been.
Favata asked Mechanick if the duress defense could go a long way if I felt like I could convince him that I was afraid of David. And was he aware that I had told Randi that her brother was a coward? Again, I didn't tell Randi that; I told Det. Porter that. I simply told Randi that David wasn't the shooter.
Mechanick answered that he was not aware that I had said that. Favata didn't give him time to answer the first question. Interrupting, he asked Mechanick if he believed that I was not motivated to help David, but rather that I was operating out of fear, a senseless question as we had already been through it. But Mechanick went through his opinion again. He also explained that I likely had conflicted feelings. What do you do when your friend has done something awful? How do you sort it out emotionally? Do you maintain loyalty, or break completely? That could have been why I had told Randi that her brother was not the shooter, explained Mechanick. The difficulty in this case is that there's more than one thing going on. He's trying to protect himself from Jesus by going along with David's story.
"Well, couldn't Erskine have been motivated by a desire to help David when he helped bury the bodies?", asked Favata. Mechanick said he had considered that possibility, but didn't agree with that opinion. Favata pointed out that Jesus got very panicked after he shot the victims, and David was "wigging out" upon discovering that Trevor was alive. "But wasn't Erskine the only one to remain cool, calm, and collected?"
"No", replied Mechanick. "Just because he wasn't obviously excited doesn't mean he was calm. People in shock or in a state of derealization can appear calm while feeling very differently inside."
"Well didn't Erskine take control of the situation when David was wigging out?"
''No, that wasn't my understanding."
"Well didn't he provide the knife to David?"
"Yes, but that was because he felt a sense of threat if he didn't."
"Well doesn't that seem active, as opposed to passive?"
"No. David asked for the knife and had made a threat, so giving him the knife was an act of cooperation."
Favata didn't seem interested in accepting any of Mechanick's theories, or simply didn't get it. At every opportunity he seemed to try to convolute the situation, the truth, to fit his own unenlightened theory…to create the illusion of culpability on my part. He was very malicious and unjust; his conduct inexcusable for a man who is supposed to uphold justice.
Going back to an earlier point that he had brought up with Porter, Favata asked if my statement calling Hamilton a coward is inconsistent with being afraid of him. Mechanick patiently explained that it's not all black and white -- that during the events, while in David's presence, is when I had a fear of David. But that once it was all said and done the real threat to fear was Jesus. He explained that feelings are sometimes complicated. Favata then asked if it's reasonable that a person would be afraid of someone they perceived to be a coward. Mechanick explained that it is not unreasonable -- that David could have been a coward for a number of reasons -- because he wouldn't name Jesus as the shooter, or, in Favata's words, didn't have the “brass” to shoot the victims himself. People can be cowardly and shoot you in the back. It doesn't make someone safer if they believe that person is a coward - it could actually mean you're more at risk.
Next Favata brought up that Randi had denied saying that she had told me David would shoot me if I got in his way. He asked Mechanick if that seemed inconsistent with what I had said. Mechanick replied that it was. Favata then mentioned that on the day I reported Jesus, I had called his brother to warn him that David had already told. Mechanick said that the statements weren't contradictory to his opinions, but that they're actually consistent with them. Favata opined that I was motivated to save my own skin by being the first to offer the information. Mechanick replied that while that may be true, my statements about my involvement still remained the same.
Favata, with his propensity for misrepresenting facts, portrayed that on the same day I went to the police with information about Jesus, January 15, 2007, that he, Jesus, had been at my house to tell me to give him a heads up if l was going to tell. But just moments before he had alleged that I had called his brother on that same day. And while both of these did happen, neither took place on the day I reported Jesus.
Mechanick's opinion was that while Jesus's comment was not an overt threat -- ''Let me know if you're going to fuck me," there is an implied threat there. The part that is not said is what happens if I don't give him a heads up?
After that answer, Favata invented yet another scenario, telling Mechanick that when I became aware that Jesus was going to be arrested, I called him and told him. That simply never happened. Nothing resembling that was ever said by me, or anyone else. Favata pulled it from his imagination. Mechanick's response was that he had not heard that. But even if it was true, he wouldn't find it inconsistent because people often try to placate the individual they feel threatened by.
Favata went on to try to point out several more things that he claimed to be inconsistent. I guess his strategy was just to cast as much doubt as possible -- that if you throw enough mud, some of it's bound to stick, but he was clearly outmatched by Mechanick. He felt that it was inconsistent that I had said when I gave David my knife I didn't think he'd stab me with it. Mechanick dismissed it. He brought up that he thought it inconsistent that I had possessed the gun, yet stilI felt fear, but that was contested and excused as an inconsistency by Mechanick.
Favata attempted to knock me down by misconstruing another portion of a statement I had made. In this statement I said, at one point, that I was uncertain about whether or not Joey had actually stabbed Trevor with a screwdriver. Favata tried, instead, to claim that I had asserted, as an absolute fact, that Joey had done so. He was shot down again by Mechanick.
Favata asked if, despite my inconsistent statements, Mechanick believed the things I had told him. His response was that my emotions were accurately represented, and corroborated, and that his opinion had been formed to a reasonable degree of medical certainty. He cannot be positive that each and every detail is "spot-on," - nobody could be absolutely sure of that. "Well", Favata said, "what about in your interview when Erskine told you he wasn't sure if he had told David to stab the victim in the lung? He couldn't even admit what he had already told Porter!" Mcchanick's response was that l had told him that l wasn't sure if I had even said that. But if I had, the context in which I had said it, explained Mcchanick, was that I had already expected that David was going to kill him, and did not want it to be drawn out.
The truth is I don't believe I ever told David to stab Trevor in the lung. I have no recollection of it. I remember being more vague. After David had already claimed to have stabbed Trevor several times, and came to me to explain exactly how he had done it, I recall just expressing my desire to get out of there as quickly as possible.
Continuing, Favata again brought up his opinion that I could have just left the scene. When David had gone into the house, why didn't I just leave? Mechanick explained that there were several compelling explanations for this and detailed them. They argued for a couple minutes about my thought process - rational vs. state of shock, and Mechanick explained how the thought process becomes limited under pressure or shock. Favata continued to argue that when he hears someone say "finish him off", he deduces that it shows intent to kill. Mechanick challenged that logic, explaining that when you consider the variables, my intent was never to kill anyone. The death was already inevitable. My intent, clearly, was to just get out of the situation as quickly as possible.
Favata was finally finished with his cross examination. Andy had a few more questions and then the witness phase of the trial would be over.
* * *
First, Andy wanted to know, when Mechanick reviewed the missing statements earlier that morning, if they had changed his opinion would he have taken the stand and testified as if he had held his original opinion? Mechanick answered that he would not have testified to his former opinion. If it had changed, he would have notified us and expected not to be called, as his opinion would not have been beneficial to our case. Next, Andy had to rehabilitate Favata's misrepresentation of the facts concerning my having been on a tier with Jesus. He directed Mechanick to a portion of his report where it was evident that Jesus and David had been housed together, as opposed to Jesus and me. Andy also pointed out a threat made by Jesus on the day he had come to my house to warn me not to tell the police about his involvement.
Andy asked Mechanick if he had already considered the questions asked by the State before writing his evaluation report. Mechanick answered that while he couldn't know specifically what he would be asked, he had already considered many of the issues that had been brought up: my reliability, emotional state, other statements, and other factors. The issues that arose were no surprise and were not new ideas to him.
This concluded Mechanick's testimony. Andy rested his case, and court was adjourned for the day.
Monday, October 7, 2008
There would be three closing arguments. Graham went first, then Andy, and Favata would go last. The State gets to go last because they have the "burden of proof," but I found it strange that they got to go first and last. Marie Graham began her closing argument by reading an excerpt from one of my transcribed interviews "David, he' s still breathing. You just want to get it done. I don't want to be here anymore. Stab him in the lung." This is the piece of evidence the State alleged to prove my intent that Trevor Moncrief be murdered. She told the jury that it is the State's position that I was an accomplice to murder. Graham's argument went on for 30 pages, but I’ll just focus on the highlights.
She went on to call attention to Mechanick's testimony that he wasn't sure if l was aware that the shotgun was in the truck when I went with David. But Mechanick stated that his opinion was based on the assumption that the information he had was accurate. She then went on a rant about how this was the perfect crime. Perfect because all the evidence was concealed or destroyed. But then this "perfect crime" fell apart when Alton Adams called the police, setting off a chain of events that led to David's arrest.
Graham would call attention to my interview with Porter several more times, focusing, in particul ar, on the part where I claimed to have told David to stab the victim in the lung, and characterizing this as the "intent to kill." Several times she tried to dismiss or downplay the credibility of David's threat, despite testimony to the contrary, claiming it either wasn't real, or imminent, or likely to be carried out. She even went so far as to invent the idea that I was in possession of the gun when David made the threat! She argued that because I knew David hadn't been the shooter, I wasn't actually affected by his threat. She brought up that I had identified David as a coward, as though that somehow had any relevance, at all.
Graham called it a "scheme that David and Erskine planned" to initially have consistent statements. She alleged that I claimed David had ordered me to tell the story, but with David playing the role of Jesus. This is true, but it doesn't sound like a good "scheme." David actually did order me to go with his story. But it was for the purpose of survival, not to scheme.
Graham argued that when the story changed, and Jesus was named as the shooter, my duress defense collapsed. My fear of David could only be valid if HE had been the shooter, but not with Jesus as the shooter. I couldn't be scared of David if he hadn't killed.
Dr. Mechanick's testimony was again criticized when Graham asserted that he had not compared all of my statements side-by-side. She attempted to criticize and discredit him by saying that he hadn't looked at all the papers (he had), and didn't remember the "stab him in the lung" statement (he did). Then, in an effort to sound rational and unbiased, Graham stated that I wasn't charged for the death of Raymond Ward, because I wasn't culpable in his death. But instead I was charged as an accomplice for my actions in the driveway.
This case is indeed unusual. I believe the State never really thought or believed that I was culpable for either death, and this is evident, isn't it, by the fact that I hadn't been arrested and charged much earlier? They were, however, frustrated that I had lied to them. And my juvenile record, here, when investigated, leant more weight to their decision to arrest me than any truth, fact, or attempt to understand. One look at my juvenile record, and any attempt to understand what that night was truly like for me went out the window. Favata even said it to my father himself "we got us a little trouble-maker here that finally got himself into some deep shit!" They weren't interested in who I was anymore. They weren't interested in the fact that I had grown up a little, and had made a decision to put my past hooligan antics behind me. By the time I was arrested I was on my own. I had my own place. I had a stable, serious relationship. I kept a steady job. I paid my bills. I wasn't out causing trouble anymore, and my record bore that out. l had estranged myself from my father. I had been untrustworthy, and our relationship had suffered, but we had been restored. He knew me and had recognized a difference he could put his confidence in. l had made conscious, intentional changes, but the State wasn't interested. l had been a naughty boy, and now I was going to pay. I was 18. If I had been an honor student with no previous police contact, I would never have been arrested. But I had given them their morsel of "evidence" with which to charge me. They would offer a plea deal: admit to manslaughter, take a 5- 15 year sentence, and testify against your co-defendants, but when l refused to admit or confess to a crime that I had not committed, they took their morsel and fabricated a case against me. If l had taken their plea, I would likely already be out of prison! They defiled justice. Their behavior was deplorable. Depraved. And they know it. But here she is, representing the State of Delaware, sugar-coating and "softening" the State's abuse, saying, "oh, we're not charging him both murders, though…that wouldn't be right."
Graham went on, and then told the Jury that it was her DUTY - along with her associate, Mr. Favata - to zealously, within the bounds of the law, present evidence to prove beyond a reasonable doubt that I was guilty of each charge. The State would assert that I had acted intentionally, and that it was my conscious objective to cause the death of Trevor Moncrief. Ludicrous. It's so glaringly obvious that this was never what I wanted. But she went on to "zealously" misrepresent evidence -- as they had already done several times -- by coupling the alleged "finish him" comment with the act of handing David my knife. Not how it was. We already know from testimony that any question of that comment being made came much later - after David had already made more than one attempt to hasten Trevor's inevitable death.
Continuing to zealously misrepresent actual fact or truth, Graham claimed that my calling David a coward indicated I was inconsistent. Never mind the compelling testimony Mechanick gave to the contrary. If l was inconsistent, she challenged, then how much confidence could they, the Jury, have in my credibility? If you build a case on a platform of lies and misinterpretation like the State had done, this question becomes far more compelling than it should have been. Inconsistent. He lied. Nothing else then is credible. But what about the truth? What about how terrified I was? What about that I never could have imagined this would ever happen around me? You want to lock me up for life because I broke into a couple cars when I was 16? You think because I did that, I must want to see a man get stabbed? I agonized for these men!
But Graham wasn't done. She went on to portray my actions as being motivated by the desire to "help out" my "brother", David Hamilton. He sure hadn't seemed like my brother on the stand when he was testifying against me. Then, she attempted to distinguish dual emotional states (as if she were somehow now qualified to do so after listening to the doctor) -- duress and stress. She asserted that what I had been feeling was stress -- you know - the same thing we all walk around with every day, as if it's every day we sit in a pickup truck and watch two guys get blown away. Duress would excuse criminal conduct, stress would not. But, she argues, you can't consider duress when an individual voluntarily puts themselves in a stressful situation. Again, any rational human being paying attention to the evidence would realize that the situation I put myself in was nothing more than an exasperated ride along at the request of a friend. I never voluntarily put myself in a situation where I thought anyone would be shot! I can't help but feel that the State never considered any possibility outside their own theories if they truly believe what they argued. They so easily dismissed what is so clearly the truth.
Graham went on to explain that my only motivation for going to the police with the truth about Jesus was because I had heard a rumor that David had already told his lawyer about him. She then ascertains that I couldn't possibly have been afraid of Jesus because I had called him to give him a "heads up" that David was divulging his name as the shooter.
Graham made a mistake toward the end of her argument, admitting "David Hamilton was scared and worried, too". The word "too" implies that he wasn't the only one. She essentially admitted to what she had been arguing against! But I'm not so sure it was so overt a mistake that it was recognized by the Jury.
To close, Graham claimed that I aided, counseled, agreed or attempted to aid David Hamilton in ending Trevor Moncrief’s life. That his life was intentionally ended by my actions. She asked that the Jury use their common sense and weigh the evidence. She asked that they find me guilty of all charges, and closed.
Andy began his closing argument in a dubious way, at best, by saying that he had been trying to make comparisons in my case, and what he compared it to was Gilligan's Island. The day had started out happily enough, he reasoned, but then a storm rut. "Enter Quentin Tarantino and his ideas," said Andy, "and we have a storm that changed the lives of Trevor, Raymond, Justin, David, Joey, Matt, and all of those significant others involved."
Here was my lawyer less than 1 minute into my closing argument and I was already wishing that he had discussed his ideas for closing with me. He hadn't, and this was already an approach that I most definitely wouldn't have approved of. But Andy went on to tell the story in hid Gilligan-esque translation-- where things started to go wrong, and how the clouds and storm developed. Although absurd on many different levels, it wasn't necessarily a complete disaster. He pointed out that I wasn't the one who wanted the Percocet. I wasn't the one who had the street connections, and I hadn't approached anyone or picked anyone up. He made it clear that I had simply agreed to go along for the ride. When I agreed to ride, I had never had the firearm, he noted. Never touched it. Was never involved with it.
Andy went on to make a good point by making it clear that the fact that there was a gun in the truck wasn't an issue with anyone. Trevor and Ray were aware that it was there, too, and they didn't protest or say anything like "hey this is a pretty dangerous situation." They were even drinking from the bottle of Tanqueray. Everyone was comfortable enough. The passengers perceived no danger. Neither did David or Justin.
When the atmosphere did change, it wasn't Justin calling Jesus, said Andy. When everything changed, it was David and Jesus at the helm. He also pointed out that when David decided to go pick up Jesus that Trevor and Raymond did not object or ask to get out of the truck. It was no big deal. Andy went on to argue that the State had made it seem that once Jesus had pulled the gun I could have "talked him down" or "called him out", but it wasn't that easy. Suddenly Jesus had a gun pointed at two very scared individuals. The whole complexion had changed, and Justin had nothing to do with it. It wasn't foreseeable.
Moving on to after the shooting, Andy described me as "sitting there quiet" "Imagine a shotgun going off right next to your car. Imagine the shock. Then you have David's comment to Jesus – ‘I love you'. " He said that can be taken a couple of different ways. Do we believe David, who testified that he said that only to get the gun from Jesus - to calm him down? Or is the more morbid "I'm glad you did it. I wanted you to. Thanks" a more believable explanation? In any case it's definitely not as simple as theState had implied -- that it was just an "I love you buddy, no biggie." I think that was a good point. Personally, at the time, I perceived it as David's way of saying thank you, and I still believe that today. It was morbid. It was alarming. It was scary.
Andy touched on Jesus' threat when getting out of the truck. This is the guy that just shot two people. Andy called him "cold-hearted" and reiterated: "This is the guy who says 'leave me out of this. I know where your family lives'."
Next, Andy brought up that I was not charged for anything that occurred in the truck up to that point. He argued to the Jury that what they had heard with respect to me agitating the situation in the truck before the shots were fired would have been grounds to charge me. But they didn't charge me. This implies that they're presenting false evidence, because if they actually believed the evidence they had presented I would have been held accountable for both murders. Because I had not been charged, Andy suggested, it was obvious that I had been a victim of circumstance.
From there, Andy went on to detail that David was charged with two counts of murder. It was David who set the ball rolling, and it was David who called Joey to tell him he had a "problem." He got to Joey's and told him a "bunch of crap" about how everything went down. Andy spoke about how David continued to drink at Joey's; how he was drunk. He pointed out that given David's drunken state, his ability to recall anything specific was likely compromised. He reminded the Jury that Joey had never described me as appearing intoxicated, only scared. He pointed out that Matt, too, had also described David as being very drunk. He hadn't slept in two days." Could David have remembered the events accurately?" asked Andy.
Andy went on, pointing out that David claimed that he had picked up the shotgun from behind Matt's door before leaving that night. But on the stand Matt had testified that he hadn't seen the gun since loaning it to David over a week earlier. He testified that it wasn't in his house. Was it because David was too "trashed" to recall things accurately that he made this mistake? He also pointed out that it was "interesting" that David blamed me for seeing the gun there.
To further point out David's inconsistencies, Andy brought up David's claim that it had been Joey who came up with the idea to bury the bodies. But Joey had testified that he was never a part of that plan or decision. What Joey did say, Andy continued, is that he heard David make a threat that if anyone gets in the way that there's a loaded gun for them, too! What could that mean? Andy asked.
Andy's next argument was that while it is true that I knew David hadn't shot the men, I also knew that he had given Jesus the gun to do it. I did hear him tell Jesus "I love you." I did know that he was telling others that he had shot two people. Andy accused David of deflecting blame. He didn't come forward voluntarily, either. He made a statement after signing a plea. It wasn't until he was given the opportunity to avoid the death penalty that he gave his statement.
The State objected to Andy's use of "death penalty." Judge Vaughn in turn instructed the Jury that my case was not a death penalty case. This seemed to interrupt Andy's thought process. After the objection and curative instruction, Andy should have told the Jury that David had reviewed the transcripts of my statements before he gave his own statement in exchange for his plea. But after the objection Andy continued by saying David's statement came after being given the opportunity to avoid Life Imprisonment. He reminded the Jury that David's answer to whether he'd say just about anything to save his life was "wouldn't you?!" He then went on to point out yet another of David's lies. David had said that when we got to Joey's house that I had stayed outside in the truck for 45 minutes. But Andy reminded the Jury that Joey had said we came into the house together. Is David passing the buck aga in? Andy asked. Obviously the 45 minute remark was a rehearsed exaggeration from David.
Andy wanted to defend my decision not to run or call the police, and began by reminding the Jury that Joey hadn't called the police either. He was scared, too. David led him to believe there were more weapons. He was afraid for himself and his family, Andy argued. Could Joey have kicked him out? He didn't. Could he have called the police? He didn't. Is he reasonable? There was no indication that he wasn't, but he hadn't done those things, Andy said.
I should point out here that in most cases where Andy is referring to Joey, he calls him "Randy Glaeser," which I assume may have led to confusion among some of the Jurors. Andy may have been misusing his name due to a transcriptionist's error. In one of Raymond "Joey" Glaeser's interviews, his name had been transcribed as "Randi."
Andy went on to argue that even though I hadn't been a participant up until the stabbing, David tried to make it sound as if I, all of a sudden, decided I'd like to get involved by telling him to stab Trevor. But Joey testified that it was only after hearing David's threat that he saw me give my knife to David. He also mentioned that Joey didn't hear any comments when the knife was exchanged. In fact, Andy said, the only one who claims there was a comment made when the knife was exchanged is David Hamilton, the one who's shifting all the blame be can onto someone else.
By now my lawyer had finally gotten away from the ridiculous "sit-com" analogy and was making some worthwhile points when he stuck his foot in his mouth again. He argued that David wasn't about to bury the seriously injured Trevor alive. David was having a real problem with the fact that Trevor was still breathing when there's a comment to "stab him in the lung. Hurry up. Just finish what you -- David Hamilton -- have to do." Then Andy stopped that dubious train of thought. He had essentially just drawn attention to the very statement that I was being tried for in the first place. And he misrepresented it at that!
Andy skipped ahead to Joey, pointing out that after the bodies were buried he didn't even take his eye off of David's truck until it was well off his mother's property. That's how afraid he was for his family. Joey was found guilty only of Tampering with Evidence for throwing the knife away, said Andy.
He went on to Matt. He reminded the Jury that Matt had testified that he was willing to go along with David to pick up the Percocet, but decided not to because it would have upset his wife -- not because he thought it was dangerous or because there was a gun in the truck. "Is Matt reasonable?" asked Andy. He also pointed out that when David showed up at his house the next morning that Matt said he was scared.
Did Matt call the police? No, he assisted in burning the clothes. Why? He was scared, even though he had not been explicitly threatened. So was his fear real or just perceived? Real enough, Andy reasoned, for him to become involved.
Andy moved on to Dr. Mechanick's testimony. He said the State had made a big deal over the fact that he had reviewed my initial statement "late in the game". But by then, he reasoned, the doctor already knew it was a bogus story. He knew David had not been the shooter, and he testified that reviewing the initial statement had not changed his professional opinion. If it had, he would not have testified. Andy reminded the Jury that over the years the doctor had testified for both the prosecution and defense, and that his fee was the same for both sides. Dr. Mechanick, said Andy, bad given serious consideration to all the different stories he reviewed, and had arrived at the conclusion that I may have become inadvertently involved in the murders committed by David and Jesus. Andy mentioned Mechanick's testimony about Acute Stress Disorder. The response, said Andy, is intense fear, helplessness, or harm, and experiencing a gun going off in such close proximity and having brain matter blown across the back of the truck is pretty horrific. It was the doctor's opinion, continued Andy, that any comment to "finish off'' Trevor was not an expression of a wish to see a dying man finally killed, but to get out of the situation. To stop the night. End the nightmare. And, he added, my actions were significantly influenced by the explicit threats, implied threats, and duress.
Admittedly digressing, Andy backed up to address the State's contention that this was somehow "the perfect crime." He argues this position by asking: "How do you call this a perfect crime? David Hamilton took the truck back to his boss. You have brain tissue on the back window. You have the back window blown out. How was that the perfect crime?"
Andy went on to focus on a new point regarding Jesus. His name had been leaked, he explained. And when that happened, what does Mr. Erskine do? He didn't wait to be called. He went down to the police station and asked to talk with Det. Porter. Maybe he never wanted to be the first to say anything about Jesus. Maybe he didn't want to be the "rat." But hasn't there ever been a time when you -- the Jury - didn't want to be the first to tell a secret, but once it was out it was like "whew! - now I can tell!"? There is a great pleasure and comfort in finally being able to say: "good, now I can come clean," reasoned Andy. So Erskine, in January, went to the police station and told the story about Jesus. Justin was not arrested. Porter testified he could make an arrest and had the authority to do so. June of '06 he wasn't arrested. January '07 he wasn't arrested. Three or four more informal talks occurred. Not arrested. In March of '07 Erskine speaks with him freely again. Not arrested.
Ladies and gentlemen, this is a murder first case, he continued. If anything screams volumes about doubt of whether Justin Erskine is guilty of murder, it should be the fact that for NINE MONTHS the Delaware State Police, knowing the facts, allowed a "murderer" to walk among us. If the chief investigating officer didn't make an arrest for nine months, that speaks volumes -- volumes, to what his take in this case is. It's because David Hamilton should be held accountable. It's because there's so much duress that it's excusable. It shocks the conscience, said Andy, that Porter would have let him stay in the community thinking he was a murderer.
Andy moved on to explain that David and Jesus had been together in prison, and Jesus told David that he had gone over to my house and threatened me...said he would kill my family. Andy challenged the Jury to consider the entire scenario. There's a threat when Jesus leaves the truck. There's a threat from David at Joey's. Then another later on in Erskine's own house. Andy called the threats "interesting" saying that their message is "remember... keep me in the back of your mind. I know where you are. It could be carried out months from now." He used that to say that the ability to escape a coercer is an interesting concept. In a perfect world we would like to say we'd so me how take control of the situation, but it's not really that easy. Especially when the nature of the threat is: "never mind today, it could happen any time."
Andy continued that argument. The State, he pointed out, had argued "well, he's (Jesus) off the street, he's not a threat anymore." But how true is that? Does this man have family? Does he have friends? Is it certain that the police will pick him up? For nine months they didn't. He went on to say that if Jesus is out and he thought I dimed on him that I would be hiding under rocks.
It' funny that Andy brought that up. I was very concerned that after Jesus learned that the police were on to him that he'd be looking for me. His brother had actually been making inquiries about where I lived. I actually went so far as to borrow a gun from a friend because I felt I need it to protect my fiancé and me in my own home.
Andy went to argue that the conscious object of my actions that night was only to get out of the nightmare and get home. Similar to Matt and Joey, I didn't go to the police. Andy said the fact that it's "possible" that there was some type of conscious object in my giving the knife to David isn't enough. He said that if there is any real and honest possibility that my only desire as to just get out of the situation that they have to find me not guilty. If there is a real possibility that I was acting under duress they need to find me not guilty. If there's a real possibility that I didn't form any conscious object to stab Trevor Moncrief as he lay there moments from death, then you have to find him not guilty.
Andy argued that David got murder 2nd and manslaughter. Joey got tampering with evidence. Matt got tampering with evidence. Well, the evidence does not support murder one for Justin Erskine. Justice demands that Erskine is found not guilty. And with that, Andy finished.
Favata's closing argument was mostly more of the same old Favata. He thanked the Jury for their service on behalf of everyone, and went on to offer his opinions, starting with his assertion that I had acted voluntarily. It was my own words that condemn me -- that I admitted to being guilty as an accomplice. I told David to stab Trevor. My statements are inconsistent and uncorroborated. He said I was cool, calm and collected -- not under duress.
Favata detailed the murder, saying that it was the knife wounds that ultimately killed Trevor. That I wanted that to happen. It was obvious, he said, why I didn't want to get caught with two dead bodies; I wanted to help David -- my brother. These were the same tired, blind, false accusations he'd been making throughout the trial. He alleged that I voluntarily placed myself in a position where this outcome was foreseeable. That even David was in fear. He said that I instigated the shootings. He said that I didn't leave or run because I didn't want to. It was my desire to back up David all the way through, no matter what that consisted of.
There were parts of Favata's closing that weren't just more of the same though. In the beginning he attacked Andy's Gilligan's Island metaphor. Gilligan's Island was a comedy, he said, and there was nothing funny about what happened that day to Trevor Moncrief and Raymond Ward.
I would have to agree.
As he went on there were also several times where Favata injected his own personal opinions. They stood without objection from Andy, which to me is baffling. His personal theories are not and were not part of the evidence and should not have been allowed to be presented as such. For starters, he characterized my demeanor as "cool, calm and collected." Where did that come from? He stated that I wanted to do these things. Wanted Trevor dead. Wanted to help David. AIl personal theories. All convoluted, misleading, and downright inaccurate.
Another major problem I had with Favata's closing was his allegations against Dr. Mechanick. At one point in his rant he attempted to discredit Mechanick by calling his opinion "bought and paid for." He said, "he made $5000.00 so he could sit up here and tell you how the defendant was so scared he couldn't do anything." This was so out of line that when Andy didn't object, Judge Vaughn took it upon himself to instruct the jury to disregard that comment before he gave them their instructions on the following morning. He made another comment later on that Judge Vaughn, however, did not instruct on. "Oh, by the way, I'm making $3600.00 to come in here and tell you this, and $350.00 an hour for the eight hours I put into reviewing these things. He made $5000.00!" He further attacked Mechanick' s credibility saying that he, Favata, pointed out inconsistencies, but Mechanick refused to change his opinion. Clearly, he alleged, this was because it would not have fit with the duress defense if he had. Favata couldn't get it through his thick skull that the "inconsistencies" he so diligently attempted to allege were either not inconsistencies at all, or irrelevant where the facts are concerned, and failed to realize, or admit, that he didn't have integrity enough to change his own opinions in the face of intelligent analysis and argument.
Favata again skirted the edges of professional acceptability by using the term "red herring." He said it was a "red herring" that the defense made such a big deal over the fact that Erskine wasn't arrested for nine months. Again, no objection from Andy, but by now Judge Vaughn had had enough with Favata and interrupted his argument. He told Favata that Red Herring was a "buzz word" and instructed the Jury to disregard that comment.
But being interrupted by the Judge didn't stop Favata. He made yet another inappropriate comment, and finally Andy objected. Favata offered that the delay in my arrest was the result of Det. Porter having other cases to deal with at the same time. That's an inference. It was also not in evidence, so it is not allowed. The objection was sustained.
Favata went on to remind the Jury of how I had given Jesus a "heads up" that he'd be arrested. He also told the Jury that Andy's claim that Jesus had been so threatening that he even showed up at my house was unsupported by evidence. It is true though that Jesus had come to my house, months earlier, before I moved, to get some assurances from me.
Favata attacked the seriousness of David's threat against me by suggesting to the Jury that I was actually in possession of the gun when David threatened me. Andy should have objected to that. Not only was it completely false, it was unsupported by evidence. He again criticized me for calling David a coward, and said that David's threats should never have been taken seriously -- they were just a "drunken ramblings." But then, interesting ly, he turned around and attacked our theory that David was so drunk he couldn't have remembered things accurately. He said David remembered that I gave him the knife and told him to “finish off” Trevor. But what he didn't say here is that David came up with that allegation only after reviewing my statements, and rehearsing a story worthy of the plea bargain he had been offered.
Favata argued that it is not credible that Joey, Matt, and I were afraid of David because we could have simply called the police and had him arrested. He argued that Matt never did say he was scared, which, again, Andy should have objected to because that's exactly what Matt had testified to -- that he was cared of David. Instead, he argued, it was a consciousness of guilt that we had - not fear -- proven by the fact that we had disposed of evidence.
Favata wrapped up his closing argument by saying that I couldn't have been acting under duress. I knew the risks, he said, and had put myself in the position I did anyway. He asked the Jury to use their common sense and reflect on the evidence, and if they did, they would return with a verdict of guilty by a unanimous vote.
October 8, 2008
Before Judge Vaughn gave the Jury instructions, he held a meeting with counsel in his chambers. Andy had previously requested that a specific instruction be given in relation to Accomplice Liability. In the portion of the Delaware Code that defines Accomplice Liability there is an exemption. It reads "A person is not liable for the conduct of another if the offense is so defined that the person's conduct is inevitably incident to its commission." It was our position that Trevor Moncrief was going to die by David 's hands regardless of whether or not the knife came into play. Judge Vaughn did not feel that this was an applicable argument and decided not to include it in his Jury Instructions. Andy could have argued his point better. He failed to point out that there was evidence that David had been trying to figure out how to hasten Trevor's death before he asked for the knife, and that, surely, is clear indication of his intent and makes this exemption relevant.
The other issue Vaughn wanted to address was Favata's "bought and paid for" comments, along with his "Red Herring" remark. “Red herring" is used to refer to something that misleads or distracts from the relevant or important issue. Favata had essentially accused Andy of being intentionally misleading. Vaughn asked Andy if he had an objection to the "bought and paid for" comment, because he hadn't objected when it was used. Andy's response was "I didn't, and that may be a big fault for me." Vaughn went on to say "In all the cases I've presided over I’ve never heard even the most radical attorney from the plaintiff's tort bar, from the insurance bar, or the criminal side, refer to the other side's expert as having been "bought and paid for." He also said that he had never heard the term "red herring" used in court before and that it was a "big no -no." He made it clear that he would instruct the Jury to disregard those comments.
The Jury was brought into the court room at 11 AM and was polled as they had been every morning. Immediately after the poll Judge Vaughn instructed the Jury to disregard Favata's "bought and paid for" comment as it pertained to Dr. Mechanick's testimony. He continued, telling the jury that it was their job to determine the facts only from the evidence. They were to apply the law to the facts, and in this way, decide the case. He told the Jury what l was charged with -- one count each of Murder in the First Degree, Possession of a Deadly Weapon During the Commission of a Felony, Conspiracy First Degree, Conspiracy Second Degree, and Tampering With Physical Evidence. He then read the indictment, which essentially just listed the charges again.
Vaughn explained that the Jaw presumes everyone charged with a crime as innocent, and unless they are convinced by the evidence that I was guilty beyond a reasonable doubt that they should find me as such. He explained reasonable doubt as the practical standard. Proof that a defendant is probably guilty is not sufficient. But the law does not require proof that overcomes every possible doubt. You should be firmly convinced of the defendant's guilt, he told them, to find him guilty. If there is a possibility, or reasonable doubt, that the defendant is not guilty, he instructed them, you should give him the benefit of that doubt and find him not guilty.
Next, Vaughn detailed what elements the Jury needed to meet in order to find me guilty of each charge. For murder first the Jury needed to find that I caused the death of Trevor Moncrief, and that it was my conscious object or purpose to cause his death. After the elements for murder first, Vaughn gave a Causation Instruction, telling the jury "Conduct is the cause of a result when it is antecedent, that is, but for which the result in question would not have happened." He explained that two or more persons may operate simultaneously to cause said harm. Vaughn continued to give elements for the remaining four charges. They were all quite straight forward, clear, and reasonable. Also, the Jury had to meet the elements beyond a reasonable doubt.
After explaining the elements for each charge, Vaughn explained that I was being charged as an accomplice to the charges of Murder First and Possession of a Deadly Weapon. He then instructed the Jury to Accomplice Liability as follows: A person is guilty of an offense committed by another person when, intending to promote or facilitate the commission of the offense, he aids, counsels, or agrees to aid the other person in planning or committing it. Vaughn explained that in order to find that I was an accomplice the Jury needed to find proof of all of the following three elements: first, another person committed the offenses; second, the defendant intended to promote or facilitate the commission of the offenses; and third, the defendant aided, counseled, or agreed to aid another person in planning or committing the offenses. Mere presence at the scene of a crime without proof of those elements does not support a finding of guilty, instructed Vaughn. He told them that they must be satisfied beyond a reasonable doubt that the offenses were within the scope of the agreed activity, or were incidental to that activity.
Vaughn instructed that it is not a defense that the principal offender has not been prosecuted or convicted of the offenses in question. He also told the Jury that even though I was charged as an accomplice that they could find me guilty as a principal. He told the Jury that their verdicts must be unanimous, but they did not have to be unanimous in deciding whether I was the principal or accomplice, so long as they found guilt.
Next, Judge Vaughn instructed the Jury about my Affirmative Defense of Duress. He explained that I had the burden of proof in proving this defense, and that by a preponderance of the evidence I needed to prove the following elements: First, the defendant was coerced to engage in the conduct charged by the use of, or threat to use, force against the defendant's person or the person of another, which a reasonable person in the defendant's situation would have been unable to resist. Second, the defendant did not intentionally or recklessly place himself in a situation in which it was probable that the defendant would be subject to duress.
Vaughn then defined proof by a preponderance of the evidence as proof that something is more likely than not. That when you compare the evidence for duress and the evidence opposed to it, you have to find that there is more than half to support it. "If you, the Jury, find that duress was established by a preponderance of the evidence you must find the defendant not guilty," Vaughn instructed.
Vaughn explained that even if we didn't prove duress that the Jury should find me not guilty if they feel the State didn't meet its burden of proof beyond a reasonable doubt in presenting its case.
The Jury was then instructed that voluntary intoxication was not a defense, even though it had never been presented as one. He also went on the define intoxication for them.
Vaughn instructed that the Jury may find facts in circumstantial evidence as well as direct evidence, and that they could rely on circumstantial evidence to reach their verdict.
One of the more vague and difficult instructions was the one that followed regarding my state of mind. Vaughn instructed the Jury, telling them that they had to find that I acted with a certain state of mind, and that it is difficult to know what is going on in the mind of another person. Therefore, Vaughn told them, the law permits the Jury to draw an inference to reach a conclusion about a defendant's state of mind from the facts and circumstances surrounding the acts that a defendant is alleged to have committed. The Jury may consider whether a reasonable person in the defendant's circumstances would have lacked the requisite state of mind or belief. Also, the Jury was instructed that while considering state of mind, it still had to supersede reasonable doubt in order to find guilt.
Next, the Jury was instructed that they were the sole judge of credibility of each witness, and the weight to be given to the testimony of each. They were told to take into account each witness's means of knowledge, strength of memory, and opportunity for observation; the reasonableness or unreasonableness of their testimony; the consistency of their testimony; the motives actuating them; if their testimony had been contradicted; or their bias, prejudice, or interests, if any; their manner or demeanor on the stand; and all other facts or circumstances shown by the evidence which affect the credibility of their testimony. They were told that when it came to expert testimony, they should accept it if they find the expert's qualifications to be sufficient, and the reasons given satisfactory. Their testimony should be tried by the same tests, and given the proper weight.
The Jury was instructed that I, the defendant, had chosen not to testify. They were instructed that that was my right, and that it cannot be construed as an indication of guilt. Also, because the burden of proof is on the State, the defendant is not required to present any evidence.
Vaughn instructed that the Jurors could refer to their notes during deliberations, but that notes from one Juror were not binding to another. The ultimate judgement, they were told, should be the product of the collective memory of all twelve Jurors.
The Jurors were told that some documents they were provided had been edited for content, and that they were not to speculate about what that content maybe. It is irrelevant.
Judge Vaughn instructed that it is not proper for an attorney to state an opinion as to the truth or falsity of any testimony or evidence, or the guilt or innocence of the accused, though they may argue all reasonable inferences from evidence in the record.
They were instructed to disregard any personal belief or opinion which an attorney offered during opening or closing statements, or at any other time during the trial. Also, opening and closing statements should not be considered evidence.
The Jury was charged with considering only evidence. They were told that they cannot be governed by passion, prejudice, sympathy, or any motive except an impartial consideration of evidence. It was reiterated that in no way was sympathy allowed to enter consideration of the case or affect the verdict.
They were told that each charge was to be considered separately. Their only options for each charge were either guilty or not guilty.
The alternate Jurors were excused, and deliberations began.
Oct 10, 2008
After three days of deliberations the Jury had a verdict. Andy had been involved in another case upstate and was not present, so an attorney by the name of Mr. Garey sat in for the verdict. No time was wasted. The Jury foreperson was asked if they had reached a verdict. She said they had. The verdict was guilty on all counts.
Judge Vaughn polled each Juror and asked if that was their verdict. They all answered that it was. Judge Vaughn ordered a presentence report and scheduled sentencing of December 9th, 2008. My bail was revoked, and that was it.
After the verdict it had been brought up that at some point during the trial, outside the court house, members of the victim's family may have had contact with some of the Jurors. Andy filed a motion requesting a mistrial. He also supplemented that motion citing a decision from the Supreme Court regarding Accomplice Liability instructions. The Bailiff in the case was present for said Jury contact, and said that there was no issue, and the motion was dismissed. Because of the motions, sentencing was delayed until June 22, 2009.
At sentencing I was sentenced to remain in prison for the balance of my Natural Life for the charge of Murder in the First Degree. For the weapons charge I was sentenced to 5 years. For Conspiracy One, one year probation. For Conspiracy 2, one year probation. And for Tampering with Physical Evidence, one year probation. All probation terms were to run concurrently.
I was ordered to pay $3,735.00 to the Violent Crimes Compensation Board, and $9,226.35 to the victim' s family. Also, it was a condition that I have no contact with the victim's family.
* * *
Following my conviction for Murder First Degree and four (4) other charges, a timely appeal to the Delaware Supreme Court was filed. The conviction was upheld, and my case was officially closed on July 12, 2010. On May 25, 2011 my first State Collateral Challenge, or Rule 61 Motion for Post-Conviction Relief, was filed. My conviction was upheld again whereupon I appealed to the Delaware Supreme Court again. Conviction was upheld a third time and my case was closed on May 23, 2013. A second State Collateral Challenge was submitted immediately; in fact it was filed days before the case was closed.
Pursuant to the AEDPA statute of limitations, 28 U.S.C section 2244(d)(2) there was a period of 10 months and 13 days where my time was not tolled and counted against my AEDPA statute of limitations for filing a Federal Habeas Corpus Petition.
I feel that the arguments I've raised at the State level thus fur have a reasonable chance of success at the Federal level. These include, on my direct appeal, Prosecutorial Misconduct and Inadequate Jury Instructions; on my first Post-Conviction motion, presumed ineffectiveness by trial counsel by failing to subject the State's case to meaningful adversarial testing, egregiously deficient performance, and ineffectiveness for failing to request a specific jury instruction on accomplice testimony; and on my currently pending Post-Conviction Motion, ineffectiveness based on the recent U.S. Supreme Court decision in Lafler v. Cooper 132 S.ct 1376.
In the event that this pending motion fails I am a little uncertain as to which steps to take next. My two options are a Federal Habeas Corpus Petition, which I'd have just one month and 17 days to file. Though I have written two decent briefs, I am intimidated by the Habe. I don't know that I could prepare one in time, and I'm almost certain that that is not adequate time for an attorney to prepare an effective brief. Of course, that time restraint can be bypassed with an argument of Actual Innocence.
My second option is another Rule 61 Motion on a new ground. The only issue that I am aware of that I could argue that would overcome the procedural bars is a violation of my 6th Amendment Right to confront my accuser. At trial an autopsy report was presented as evidence. This report is "testimonial" in nature as it was developed by a forensic investigator, in the presence of a detective, for the sole purpose of aiding a criminal proceeding. This report was central to the State's case and without it there could not be a conviction for murder. The issue is that the forensic investigator who conducted this autopsy was unavailable to testify. The State had a different investigator testify to the contents - one who was not present at the autopsy, or writing of the autopsy report. It was presented as a "business record" which it is not, as it is "testimonial". The U.S. Supreme Court ruled in Bullcoming v. New Mexico 131 S.ct 2705 that this was in violation of a defendant's 6th Amendment.
This issue could be accompanied by a claim of IAC against my first Rule 61 attorney. I'm confident that I could write a quality brief for this issue, but have my concerns. One, by the time it was finished my statutory time limit under AEDPA will have expired, prohibiting me from filing the Habe. Also, the Courts have notoriously mistreated arguments filed by pro se litigants.
The questionable practices and, at times, corruption of Delaware's judicial system is far-reaching. From the State Police to the Courts and Attorney General, even up to the Governor, injustices are carried out with regularity. The arrest, conviction, and life sentence for Mr. Justin Erskine from 2007-09 on charges of murder serve to give a glimpse into some of these urgent issues.
In 2006 two men, David Hamilton and Jesus Aviles were responsible for the shooting and stabbing deaths of Raymond Ward and Trevor Moncrief in an apparent drug deal gone awry. Erskine, an innocent bystander, was coaxed under threat of his life by Hamilton to provide the knife used to stab Mr.
Moncrief, and then to help bury the bodies of the victims. Aviles, too, had threatened Erskine, saying "I know where your family lives" after making it clear that his name was never to be mentioned in connection with the events. This naturally created a blanket of fear that affected many of his decisions in the days following the incident.
Hamilton was immediately arrested and confessed, while Erskine was interviewed and released. After nine months and some further investigation Aviles, too was arrested on two counts of murder, followed five days later by Erskine on one count of accomplice to murder and related charges for Hamilton's stabbing of Mr. Moncrief. Upon his arrest, Erskine was informed by Detective William Porter that the arrest was the decision of Deputy Attorney General, R. David Favata. Porter claimed to disagree with the decision and gave Erskine his word that he would testify on Erskine's behalf should the matter proceed to trial.
A preliminary hearing was scheduled nine days later. This is where a lower-court judge determines if there is enough preliminary evidence to send the case to the superior court for trial. Erskine insisted on having the hearing, reasoning that Det. Porter's testimony would be to his benefit. However, cronyism between the Public Defender, Anne Hartnett Reigle, assigned to represent Erskine, and the State prevailed. Ms. Reigle insisted that Erskine waive the hearing, contending that having it would agitate Det. Porter and the State, and that it would also prevent Erskine from receiving the police reports. She refused to bring Erskine in front of the judge. After hours of resistance Erskine relented when Ms. Reigle promised that she could get him a bail set at less than $100,000.00. Bail however was set at $580,000.00 secured - almost half a million dollars above the recommended guideline. Erskine never was able to hear if Det. Porter would live up to his promise, which may have been part of the State' s plan.
The cronyism continued when Erskine hired James E. Liguori to defend and represent him. It quickly became apparent that Liguori was unwilling to provide proper representation, requesting outlandish fees while assuring Erskine he would lose at trial, but never explaining why. He suggested that Erskine agree with the State to testify at his co-defendant’s trials, while accepting a guilty plea to manslaughter- a charge carrying up to 25 years. He was not concerned with Erskine' s interest, but rather the State’s, and his own monetary gain. He also refused to provide Erskine with any discovery evidence which the state is obligated to provide to criminal defendants. After a few months his representation was terminated. It was becoming apparent that the central players of the prosecution were not interested in justice. Up to 25 years for witnessing a murder does not represent the public's interest injustice. The indifference to justice continued when the State offered a plea bargain to Hamilton, so long as he agreed to testify against Erskine. Hamilton agreed to a prison term of 20-30 years in exchange for his "truthful" testimony.
Three months after firing Mr. Liguori the State provided Erskine with an attorney, Kristopher Koyste, who at the time had never represented a client facing a murder charge. He specialized in representing defendants accused of sex crimes. He met with Erskine just once in an attempt to convince him to accept the plea bargain. Instead Erskine hired a different attorney, Andrew J. Witherell, at his family 's expense. Witherell did not push the issue of accepting a plea deal. However, it became clear through his unpreparedness at trial that he expected Erskine to do so at the eleventh hour. After jury selection DAG Favata again offered Erskine a plea -- 15 years -- and insisted that Erskine would get life if he declined. Favata said he wouldn't lose any sleep either way.
This overzealous attitude is representative of the State's lack of concern for actual justice. Every day across the nation upwards of 98% of criminal cases are resolved by plea deals. They've become a tool for prosecutors to close cases quickly, sending innocent individuals to prison. It's made it a dangerous gamble for defendants to proceed to trial; risking their lives if they lose, receiving "lights-out" sentences.
At trial Hamilton testified against Erskine, telling a total of 105 lies on the stand under oath. Porter not only did not go to bat for Erskine, but actually perjured himself and gave testimony damaging to
Erskine. After all that the jury still took 3 days deliberating to return a guilty verdict. Two jury members wrote a letter to the presiding judge, James T. Vaughn requesting leniency, stating that "After much passionate discussion it [was their] strong belief that a prolonged sentence would serve no purpose [for Mr. Erskine]." Had the judge given them full and proper jury instructions perhaps they would have decided differently. Or, perhaps, if DAG Favata had not made inappropriate, damaging remarks amounting to misconduct, the jury would have been able to decide more objectively. But these mistakes were made, Erskine was convicted and sentenced to Natural Life without the possibility of parole. Mr. Aviles accepted a plea deal and was sentenced to 25 years. This is justice, Delaware-style: the two men responsible for a double homicide will walk free one day, while a witness under extreme duress is sentenced to die in prison.
Erskine filed a timely appeal alleging prosecutorial misconduct and faulty jury instructions. The Supreme Court decided the prosecutor's comments were inappropriate and amounted to misconduct but because the case was "not close" did not amount to prejudicial error. Apparently the Jurors letter and 3-day deliberations were not factors in determining if the case was "close." The faulty instruction argument was dismissed despite being aligned with statutory law. The law holds that in cases where there are two or more people charged with a crime under the accomplice liability theory and they have varying mental states (as did Erskine and Hamilton), or where there are aggravating factors (like the threat of one's life), the jury "must" be allowed to consider lesser charges. They were not, nor were they given the instruction to be allowed to. The court ruled against Erskine because his attorney did not ask for the instruction. The court's interpretation of "must" is presumably different from common understanding. Erskine' s Conviction and sentence were upheld.
As anyone in Erskine's position would do, he continued fighting, pursuing several courses of action. He hired attorney Peter N. Letang to represent him on another appeal in front of the court which originally convicted him. He compiled documentary proof of Det. Porter's perjured testimony at trial and presented it to Attorney General Beau Biden, Delaware State Police Captain Thomas Logan of the Office of Professional Responsibility, Governor Jack Markell, and Senator Chris Coons. Biden' s office gave no response. Logan declined to investigate. Markell's office, apparently not even reading the document, replied that he could not review a pardon request without review of the Pardon Board , and Coons declined help because the issue was not a Federal one. Erskine also filed a complaint against Mr. Witherell with the Office of Disciplinary Counsel (ODC), which oversees the behavior/practice of the State's Attorneys. They found that Witherell's performance and representation was unacceptable but provided no kind of recompense or relief for Erskine.
The appeal filed by Mr. Letang was a process that further exemplified the corrupt political friendships between defense lawyers and State's Attorneys. Erskine had several meritorious claims that he requested be argued in the appeal but Letang declined to include them. Instead he charged Erskine an additional $2,250.00 for asking, and filed arguments which were weak and unsupported. The appeal was denied 5 days before Mr. Letang' s death in November of 2012. This left Erskine to file an appeal of the decision on his own, pro se in Legalese, with no formal training or education in such matters. Though the arguments contained in Erskine's appeal were sound, the Supreme Court declined to review them at all and his appeal was denied.
At every step of the way individuals with power abused their positions for selfish motives instead of striving for the justice that Mr. Erskine, the victims and their families deserve. The DAG had Erskine arrested in a harebrained scheme to get the "facts" out. When it backfired, he quickly covered his tracks, planning with both Hamilton and Det. Porter to create a story implicating Erskine. The State-appointed defense attorneys sold Erskine short. The presiding trial judge made serious errors, purposely or not, which hindered the pursuit of justice. The Supreme Court ignored reason to prevent accountability for their constituents. The Governor, Police Captain, Attorney General, and Senator all refused help. All of the misconduct, corruption, manipulation, cowardice and mistakes came together to put an innocent man in prison for life. With zero consequences or repercussions. If this same pattern of indifference continues Mr. Erskine will continue to spend his days wasting away, oppressed, in his prison cell at the hands of those who were trusted to prevent such a thing. And others will join him. Several already have. Those responsible will evade accountability and cost our citizens their hard earned tax dollars. It is more expensive, monetarily and emotionally, for the victims of these injustices --the people - to ignore them. And nobody, except the perpetrators, wins.