PAGE TWO .. UPDATE THE MURDER TRIAL

Jury issues; the defendant really does not care about the jury issues to much because he is innocent and only cares about that. BUT he is told that this is important to look at all aspects of the case from a legal standpoint so they will be briefly discussed here. The main issue revolves around an age old practice by prosecutors that they remove al minorities from the jury. The reason being? Most people in jail are?? You guessed it, minorities. So they know the system. More importantly they know how corrupt it is. So the last thing a prosecutor wants on his jury is someone who had a friend who was mistreated by the police once. BECAUSE when a defendant makes a claim of police misconduct the DA wants a jury that will say...."oh they would never do that." Instead of a jury who will think, "yeah they did that to my friend once". So no matter where you go the DA always tries to remove all " lower income, minorities" from the jury. The problem with this is the courts say you are not allowed to do this ! All Americans have the right to serve on a jury, and using race as a reason for removal is unconstitutional! Problem is, how do you prove it? This is almost impossible to prove. So lawyers make attempts at it and that is what they are doing here as well. The only thing the defendant thinks even comes close to showing that "race" was a part of the DA's selection process, was the argument he offered in defense of it! Here is what basically happened. A jury pool was called, in it only one Latin person and one black person was called for questioning.! This was from 132 people. Lancaster county has a big black and Latin population, ask anyone who lives in Lancaster!9one Asian was seated as an alternate, (she was never called to decide on the case!). Now the people that were struck are named Mr. Santiago and Ms. Cameron. Both answered the question, "could you apply the law in your decision making and do your duty?", they said yes!, but were removed by the DA. The reason this is important is every time the DA had a juror that was "gung ho" for killing the defendant, he would "fix " that by asking the same question and then later claim that their answer is what makes them acceptable! So the argument is they answered the questions the same way all the other jurors did, so why were they struck? Then you have to prove the obvious, because of the "race". But the part that seemed most telling was the prosecutor’s reason. He first says, "hey the defendant is not black!" what does he care! (Defendant is Polynesian and German) well the defense points out his adoptive family is black and they are being called as witnesses, so the impression the jury will have is that he is black. Then the DA says "well he does not LOOK black". (I wonder what he would have accepted as "black looks"?) Anyway to further prove his point, "well he is Hawaiian, and we gave him an Asian, so that's close enough!: in his argument he says that Hawaiian cannot be included as an African American if it was to be included as any other race it was linked to the Asian race, and then he points out he let one Asian be an alternate, even though she never actually worked on the verdict! The thing that this whole argument shows is that, certainly race was on his mind in his selection since it was a large part of his argument in defense of it! ( he don't even look black! We gave him an Asian that's close to Hawaiian!) The end result was an all white jury! Incidentally Hawaiians are not of Asian decent! They are indigenous people, they migrated from the Marquesas islands! They are defined by U.S. federal law as Native Americans! But the point is none of that should have ever mattered! It did! (Since the time of his appeals the defendant has located his biological father, the adoption records were mistaken, he is Samoan, which is Polynesian as well! They are still not Asian). The numbers that are relevant to this issue are as follows; .07 % of the panel was African American, and .07% was Hispanic. 2.8%of the population in Lancaster county is African American, and 5.7% is Hispanic. (With another 5.8% representing all other minorities) the jury pool did not even come close to accurately representing the actual people in that county.

Letters from defendant to Kim Kistler; several letters written by the defendant to his former girlfriend Kim Kistler were entered into evidence and use against him. The point is simple here. One, at no time does he admit guilt in these letters, he tries to explain to Kim that there are other things that could happen and what he was willing to do. The DA argues this is a confession! Yet he never EVER confesses to anything! The real problem the defendant has is that one of the letters was EDITED by police or Kim’s lawyer. Only half the letter was shown. The defendant wants to other half to be shown because in the other half the defendant talks about KIMS GUILT and his willingness to TAKE THE RAP FOR HER!! If this was a confession it was not about defendant’s guilt! Defense has to ask the court to force them to
produce the rest of the letter or disallow them to use the half they used!

Missing witness Kathy Gehr; Kathy is Kim’s sister. During the trial the DA says that defendant wrote a list of people that he gave to Kim to track down. Kathy tells a different story, she says it was Kim that wrote the list and that she took Kim to look for these people. Then she gave statements that incriminated Kim in the manner that she reacted once she tracked down the victim. However when the time came for the trial and the defense asked the DA where this witness was WHO WAS UNDER SUBPOENA BY THE STATE TO TESTIFY! they claimed they did not know where she was! They said all we know is she moved to North Carolina and we do not know how to get in touch with her! The judge did nothing! The court file has on record the subpoena from the state, it reads as follows; issued on August 8, 1997, and gives her exact address in NC. It tells her to be available between September 2-19, 1997, (but likely between September 8-19, 1997) it further states, "the district attorney will contact you of the day". Yet Det. Savage lied to the court and said he did not know where she was. Why? Because she hurt the credibility of the states star witness, some thing the DA did not want the jury to hear, the truth!

Interestingly enough, when Kim went to trial a few months later, guess who they suddenly found? Kathy Gehr was a witness for the state against Kim in her trial. Kim’s trial vs. defendants trial; a picture emerges after Kim’s trial that shows how much the DA actually knew that Kim was lying. Yet he still offered her to the jury as a truthful witness. Here are some examples; in defendants trial he told the jury "if you believe Kim your analysis as jurors is over". At defendants trial Kim constantly minimized her participation in finding the victim, denied any knowledge there was a murder to be committed, denied she had any motive, said she was in fear of the defendant, said she only waited so long to talk to police because she wanted to be sure defendant was in jail before she talked, NOT because she was told he was having affairs, or telling on her for committing the murder. In Kim’s trial the DA would suddenly argue a completely different case. Saying Kim lied in numerous aspects, minimizing her own guilt was inconsistent with evidence and her own statements. Her testimony was inconsistent with her sisters Statement. Part of Kim’s testimony was "unbelievable", " absolutely implausible", her actions are inconsistent with being frightened, "Kim expands her own lies". They also go on to say how Kim did manage to destroy the evidence that actually implicates her in the murder!(referring to a jacket she says she got rid of ) other things to look at; At defendants trial the DA told the jury that Kim waited until she was told by police that defendant was in jail to tell them what really happened. At her trial the DA told the judge that was a lie! No cop ever told her when defendant was in jail, she did not start to implicate the defendant until the police told her he was having affairs and was blaming her for the murder. In defendants trial the DA told the jury Kim saw the murder on the 11 o'clock news the night of the murder. This was attempt to explain the "is he dead" phone call. In Kim’s trial the DA says that was a lie, Kim did not see it on TV until the following Tuesday! In defendants trial the DA told the jury Kim told defendant that he could still be charged after the murder. To make her seem like the "reasonable one". In Kim’s trial the DA told the judge Kim only knew that after the murder from Steve Breit. In defendants trial the DA introduced witnesses that said they heard "male" voices arguing in the area around time of the crime. This was to show that Kim was not there! In Kim’s trial the DA told the judge the crime was a surprise to there was no arguing! The male voices could have been Martins or his brother. Not the defendants as alleged in his trial. In defendants trial the DA constantly told the jury Kim was telling the truth and could be believed. In Kim’s trial the DA points out how it took DA Steadman 4 separate visits with Kim to correct "inconsistencies!". In defendants trial Kim gave a very detailed account of where he was dropped off and picked up. In Kim’s trial the DA points out that Kim had said to several people that defendant was coming from the wrong direction, away from crime scene. In defendants trial the DA told the jury that after Kim knew he was in jail she was telling the truth! In Kim’s trial the DA points out that as late as march 1997 Kim is still telling people she does not know if defendant did it, but by trial time she is suddenly sure. In defendants trial the DA says Kim was motivated to testify out of a sense of duty to the Martin family. In Kim’s trial the DA tells the judge Kim was motivated out of revenge for being betrayed!

In defendants trail Kim gave a story that never put her close enough to the victim to see the color of the stripes on his shirt. She also would have no idea of the location or type of stab would he suffered until after told by police. In Kim’s trial DA introduced a letter from Kim written BEFORE any discovery was filed and before Kim would have had any knowledge of those two aforementioned details, in which she describes the color of Martins shirt and the location and type of wound! The point is this, had the jury had some or all of this information presented to them, they would have disbelieved Kim and the defendant would be acquitted of the charge. The DA knew this and broke every rule in the book to make sure the jury would never hear these things.

Kim’s deal. The jury was told one thing from Kim, that in exchange fro her testimony she was facing a 40-80 year sentence. This was done to give the impression she was doing this because it was right NOT because it was to get away with anything. HOWEVER in letters that would turn up after trial( the DA had in his possession but refused to turn over to defense) and turn up in testimony from Kim herself during her appeals, she was told by her lawyer, "I am gonna walk you out of that courtroom", in other words they are not gonna convict you! Kim was always of the believe she was going to get off! Even after the trial they still came to her and said they had a 2-10 year deal for her. She had already served a year so she would be looking at less than a year in the county left. She refused the deal, showing she still thought she was getting off! THIS was not what the defendant’s jury was led to believe. They were under the impression that this woman at a MINIMUM was going to spend 40 years in jail. That weighs a lot when you put that on the credibility scale!

Kim’s disappearing charges; in the opening segments the prosecutor tells the judge, " oh we are not going to drop the intimidation of witness charges!", referring to a charge they apparently threatened Kim with but NEVER FILED ON THE RECORD! In other words, they use it to keep her in line but never put it on paper so the jury will never have to hear about it! The " is he dead" phone call; Kim had given an early statement to the police where she says that she received a phone call from defendant asking, is he dead? Two things that should be discussed here. One the phone call happens at 10:03 pm, almost 1 hour before the 11 o'clock news comes on. (The time Kim would say she actually heard about it on the news!) There is NO RECORD OF ANY PHONE CALL GETTING THRU TO KIMS AFTER 11 THAT NIGHT! ( the last call on record was at 10:03, the next call was at 12:08 and by Kim’s own testimony she was not home at that time to answer, in fact she would not talk to defendant until the next day, defendant called several times but never got thru.)

So if the phone call happened BEFORE the 11 o'clock news, how would Kim know if he was dead: secondly even if she did get a call after 11, why would HE be asking HER if he was dead? IF he just cut out this guy’s throat why would he ask her?? Should not it be the other way around??

Kim’s affidavit against Maxine Snook and Paul Janowski; during the murder trial the prosecution introduced two witnesses to ID. a shirt found at the crime scene as one the KNEW AS A FACT TO BELONG TO DEFENDANT! Maxine said she could not ID. the shirt but I.D'd a pair of "cameo" pants that the police had in their possession as a pair she had seen before. ( she says in the summer of 1995). Paul gave a positive ID of the shirt and says he too seen it in the summer of 1995. Neither one of these witnesses claimed to have any contact with the defendant past 1995! Kim herself would submit an affidavit after the trial to defendant stating the items they both ID'd were purchased in the FALL OF 1996! There by making it impossible for them to have seen these items. The defense did nothing about this on direct appeal ! Turkey Kill tapes: during the earlier interviews with police while Kim was "confessing " she told police that she and defendant stopped in a local Turkey Kill mini market BEFORE the murder and he went in to buy phone cards. The police went to the store and seized the surveillance tapes from the store for that time and date. THE DEFENDANT DID NOT APPEAR ON THOSE TAPES! Kim would never again repeat that statement and the police "forgot" to mention it in trial as well as "lost " the tapes and any interviews from the store employee's.

DNA evidence;

The defense never requested to test ANY forensic evidence in the trial! A shirt was sent in to be tested for DNA In a large blood "swipe" on it. (As if a knife was wiped off on the shirt!) The test came back UNABLE TO IDENTIFY ANY DNA! The blood vials and the shirt was sent back to the police dept. that was in charge of prosecuting the case. The cop in charge was Pete Savage. ( his brother was involved in the Lisa Lambert case). The cop in charge of the evidence locker in this police department.... ?? ... Peter Savage! Four months later the shirt shows back up to be tested; a "new stain was to be looked at. ( pinpoint blood droplets had now been :"found"! An earlier examination by the states own expert found none!) Now all of a sudden they had a DNA match to the victim! The defense wants to test these "samples:" There were also hairs found at the scene. Some on the shirt and some in the defendant’s transportation for that weekend. The prosecution claims they belong to the victim. THEY NEVER TESTED THEM FOR DNA! The defense wants to test them to prove they are NOT the victims!

Altered statements;

There are several items in the discovery' that have out of sequence page #'s and altered pages #'s as well. In some areas the pages are just missing, and in one instance there is a clear sheet of paper placed over half of a document to block out half of what is on there. WHY?? If they got the right guy, why tamper with evidence? Why hide things if everything they told the public is the truth!?? The defendant wants these missing documents turned over to him.

Good character evidence; During the trial the defendant was constantly portrayed as the bad guy. That was not enough for the DA he went so far as to portray the victim as the good guy so they jury would clearly know who they were hear to hate! In doing so he left out in his own police reports several items that painted a picture of the victim that was anything but nice. Now the defendant does not believe he should take time to attack the victim in his trial, BUT does believe that the DA is bound to offer the WHOLE truth to the jury! In other words, if he is going to tell the jury about the victim he should tell the whole truth. If he for some reason is afraid of the truth then DO NOT introduce "good" character evidence! This way the defendant cannot offer it either! BUT when you do offer it, if the defendant has information to dispute that he has the right to present it to the jury. In other words the defendant would never seek to speak ill of the dead as a defense, But once the DA introduced evidence that the victim was this "saint", the defense has no choice but to introduce the police reports that the DA filed as discovery, not to "bash" the victim, but to show the DA is lying. In regard to that the defendant offers the following; A.) An interview where a friend and co-worker of the victim describes a "date rape" that he was told about from the victim that took place between the victim and a girl he talked about. B.)A co-worker talks about a time when victim was aggressive to her when she turned down his romantic advances. C.)An interview with a best friend of the victim , an admitted drug dealer, who spoke of a violent relationship between victim and his brother. D.) Interview with a friend of victim who spoke of an area that is known to police as a "drug traffic" area where he took victim to "pay a debt". E.)A report from police that state the victim was known to buy sex from illegal massage parlor prostitutes. F.) Report from a friend of the victim that state he was trying to meet with one of the witnesses for the state before the guilty plea and that he was planning to sue the bar the fight occurred at.
Eyewitnesses; Several people placed Kim Kistler at the scene the night of the murder. There were several descriptions of various types of vehicles that were seen in the area that night. NOT ONE WITNESS ever placed defendant or the truck he was driving in that area, ( except Kim). The only thing found at the scene connecting defendant was one of his hairs on a shirt that KIM herself said that defendant wore that shirt several times! Her hair was also found on the shirt with other unidentified hairs. The police dusted the car for prints and found none!