DEFENDANTS REPLY TO STATES RESPONSE TO DEFENDANTS MOTION TO CORRECT ERROR Comes now the Defendant, by counsel, Patrick V. Baker and files Defendants Reply to States Response to Defendants Motion to Correct Error. Procedural Background That Defendant filed a Motion to Correct Error on December 29, 2006. The State filed State of Indiana's Response To Defendants Motion to Correct Error on January 12, 2007. Defense Counsel was served with such by U.S. mail on January 16, 2007. ARGUMENT Investigative Roles of Detective Garry Long The State contends that Garry Long was qualified because of his experience and because he had not been involved in the criminal investigation into the death of Jill Behrman. An article in the Hoosier Times by Kurt Van der Dussen on March 16, 2003 indicates that Detective Long was a part of the Morgan County Death Investigation Team the veryTeam that was assigned to investigate this case (See Exhibit A an internet generated copy). Detective Longs role on the Team was not Discovered to defense counsel by the State prior to trial. Detective Long next acted as a court appointed Security Officer throughout the Jury Trial. Finally, Detective Long was appointed by the Court to investigate alleged wrongdoing that occurred under his watch. Detective Garry Long has served in three different capacities in this case, all which created an obvious conflict of interest that would have been avoided by a Change of Venue. Consumption of Alcohol The consumption of alcohol was not known to defense counsel prior to the testimony of Juror #94. The questioning by the court to the Jurors during the initial questioning was about intoxication. This is supported by the Courts statement on page 4 of the transcript in which the court states to Counsel for the first time, allowed drinks at evening meals. It was not until some Jurors were questioned a second time did the court ask questions regarding the two drink limit. Defense Counsel believes that Court Reporter Pamela Bastin use of shorthand during the questioning of Jurors, Bailiffs, and Security Guards ensured the substantive testimony of the questioning. However, the use of audio recording should have been used to ensure the exact language spoken during the proceedings. As noted on page 6 of the transcript, counsel believed it most appropriate and constitutionally fair to Mr. Myers to be able to make an oral record. The court would not allow such. The State focuses on the two drink limit that was set in State of Indiana vs. Judy Kirby and State of Indiana vs. Tommy Pruitt, both ironically originally Morgan County cases resulting in convictions. The State however does not address the Courts written prohibition regarding alcohol. As the State is probably well aware, a thorough search of cases, both State and Federal, fails to retrieve any cases involving Jurors having food fights with Courts Bailiffs, married men running through hotel hallways with painted toenails and wearing high heeled shoes, or the fore person of the Jury being nicknamed by other Jurors after a wine,Chardonnay. Mike Bays and Failure to Provide Discovery In the State Response, the State notes that it is interesting that Mr. Bays worked at Crane Naval Weapons Center, which is where Luke Myers, the Defendant's brother is currently employed. Mr. Bays never met Luke Myers until late December, 2006. (See Exhibit B.) Any and all information regarding possible physical evidence of any sort or significance - including a bicycle helmet turned over to law enforcement by Mr. Bays - should have been Discovered to defense counsel prior to trial. CONCLUSION For all the reasons stated in the Defendants Motion to Correct Error and above, the Court should set aside the Jury finding of guilty and the judgment thereon, order a new trial for the Defendant, and grant a Change of Venue from Morgan County. Respectfully submitted, ______________________________ Patrick V. Baker, #22266-49 Attorney for John R. Myers, II BAKER PITTMAN & PAGE Patrick V. Baker and Hugh G. Baker, Jr. 333 East Ohio Street, Ste. 200 Indianapolis, IN 46204 317-686-1900 ph. 317-686-5769 fax CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing has been served upon the following by United States First-Class Mail, facsimile or by hand-delivery, this 29th day of January, 2007: Steven Sonnega Morgan County Prosecutor Courthouse 10 E. Washington Street Martinsville, IN 46151 ____________________________________ Patrick V. Baker, #22266-49 BAKER PITTMAN & PAGE Patrick V. Baker and Hugh G. Baker, Jr, 333 East Ohio Street, Ste. 200 Indianapolis, IN 46204 |