| PROBABLE CAUSE AFFIDAVIT BACKGROUND FBI Special Agent Gary Dunn of the Bloomington FBI office produced this 72-page Probable Cause Affidavit during late 2002. Special Agent Dunn submitted this sworn document, in unredacted form, to Monroe County Prosecutor Carl Salzmann in late 2002 or early 2003 as the foundation for a grand jury indictment or immediate arrest of the individuals named in it. Despite intense public interest in the victim, Salzmann took no action on this affidavit. The victim's parents met with Prosecutor Salzmann on Tuesday, March 4, 2003 and asked him to take action to prosecute the people described in this affidavit. Again, Salzmann took no action. The victim's remains were subsequently discovered in a remote, wooded area on Sunday, March 9, 2003, near Paragon, Indiana in Morgan County. This heavily redacted affidavit document was provided as is to John Myers' attorney, Patrick Baker, in the summer of 2006. It is unclear who performed the censorship of the document. However, given the comments written in the margins, it was most likely Morgan County Circuit Court Judge Christopher Burnham or Morgan County Prosecutor Steve Sonnega. ULTIMATELY, JUDGE BURNHAM RULED THE ENTIRE DOCUMENT INADMISSIBLE. IT WAS NEVER PRESENTED TO THE TRIAL JURY. At least five people claimed to have seen the victim riding her bicycle two to four miles south of her home on the morning of Wednesday, May 31, 2000 in the Harrell Road - Moffatt Lane – Handy Road area. One of these witnesses, IU student Maral Papakhian, knew the victim well, having attended school with her for many years. Ms Papakhian saw the victim riding southbound at about 9:45 a.m. in the 4700 block of Harrell Road the morning she disappeared. The route south of her home was the victim’s favorite training route. The victim’s family, friends, fellow bicyclist enthusiasts, and law enforcement focused their initial search efforts in this area for several days after she disappeared. NONE OF THE PEOPLE WHO SAW THE VICTIM RIDING SOUTH OF BLOOMINGTON THAT MORNING, INCLUDING MARAL PAPAKHIAN, WERE CALLED TO TESTIFY BY DEFENSE ATTORNEY BAKER. During later stages of the case, investigators began to question whether Ms Papakhian had seen the victim on Tuesday, May 30, 2000 or on Wednesday, May 31, 2000. This question arose despite a report by Bloomington Police Officer, Kim Prybys, who saw the victim exit Hyde Park from Olcott Boulevard and bicycle eastbound on Moores Pike between 10:00 and 10:15 a.m. on the morning of Tuesday, May 30, 2000. The officer was on her way to a chiropractor’s office at College Mall. Investigators verified the date and time of Officer Prybys’ chiropractic appointment. The officer stated that the victim was wearing a red jersey with white trim on each side. This specific item of bicyclist’s apparel was newly purchased by the victim and there is some doubt that she would have worn it two days in a row. The victim was reported by her parents to be wearing just such a jersey on Wednesday, the day of her disappearance. The location of Officer Prybys’ sighting is 2.7 miles from the location of Ms Papakhian’s sighting. Given the timing and location of the two sightings, it is highly probable that they occurred on Tuesday and Wednesday and not on the same day. THIS INFORMATION AND ANALYSIS WERE NEVER PRESENTED TO THE TRIAL JURY. This Probable Cause Affidavit describes the results of two years' investigation by the FBI, Bloomington Police Department, and other investigators. It provides extensive witness testimony concerning the actions of the people involved as well as a possible explanation for the placement of the bike in a cornfield located north and west of Bloomington later that morning. This field is owned by Joe and Joyce Peden, long-time friends of the Behrman family. Two men surveying future hunting sites in the Morgan-Monroe Forest near Paragon, IN on Sunday, March 9, 2003 discovered the remains of the victim. Because the remains were found in Morgan County, the death was presumed to have occurred there and a new team of investigators was assigned; the Morgan County prosecutor took over the case. Because of the location of the remains, investigators began to focus on building a case that claimed the victim was riding her bicycle on North Maple Grove Road the morning she disappeared. This area is located on the far NORTH side of Bloomington. MORGAN COUNTY CIRCUIT COURT JUDGE CHRISTOPHER BURNHAM RULED THIS ENTIRE AFFIDAVIT DOCUMENT INADMISSIBLE. NO TESTIMONY WAS GIVEN AT TRIAL BY ANY OF THE PEOPLE WHO WERE THE FOCUS OF THIS ASPECT OF THE INVESTIGATION. Morgan County Prosecutor, Steve Sonnega, as part of the pre-trial discovery process provided defense attorney Patrick Baker a total of 20 cardboard file boxes of material. Some of this material was provided as late as mid- August 2006 for a trial originally scheduled to start in mid-September 2006. The trial was postponed for a short period to accommodate a festival held in Martinsville during late September. Smithville Telephone Company records for the defendant’s residence were among the last items of information provided to the defense. Those records placed the defendant at his home on West Maple Grove Road making long distance phone calls throughout the entire morning of Wednesday, May 31, 2000. This residence is about nine-tenths of a mile north and east of the location where the bike was first seen lying abandoned around 11:15 am. that morning. According to information given in sworn depositions by law enforcement personnel, the residence telephone of the defendant was wiretapped from May 9, 2005 until his arrest in April 2006. In addition, a GPS tracking device was placed on the defendant’s van during this same time frame. Apparently no useful information was gained by investigators from the wiretap or the GPS tracking device, as no wiretap testimony or tracking data was introduced at trial or provided to defense counsel. Investigators have never acknowledged the wiretap or tracking device publicly. Indiana Code requires all Indiana court-approved wiretaps to be placed by The Indiana State Police and that the target of the wiretap be notified of its existence within 60 days after termination of the tap. THE TRIAL JURY WAS NEVER TOLD THAT ABSOLUTELY NO EVIDENCE AGAINST THE DEFENDANT WAS DEVELOPED FROM THESE TWO LONG-TERM SURVEILLANCE METHODS. Defense attorney Patrick Baker has stated that he did not have sufficient time to review the entire contents of the 20 boxes of discovery material provided by the prosecutor. He could have requested Judge Burnham to delay the trial to give him more time to review all material. He did not ask for a delay at the request of the defendant, who had been incarcerated in the Morgan County Jail since the spring of 2006 awaiting trial. The defendant asserted his innocence and felt there was no case to be made against him. The jury felt otherwise, citing hearsay testimony by the defendant's aunt, grandmother, and girlfriend as critical to their 50-minute guilty verdict. Attorney Baker only called two defense witnesses. Now retired, Gary Dunn gave a brief and lukewarm overview of his efforts during 2000 - 2003. His testimony was notable for its lack of assertiveness in comparison to the Probable Cause Affidavit. Dunn also stated that there were at least eight strong suspects in this case other than John Myers. Dunn did not list the suspects by name. Those eight suspects are identified and discussed in a Power Point presentation, prepared by investigators, but never shown to the trial jury. One of the eight unnamed suspects is the son-in-law of a neighbor of Dunn’s. This suspect worked with the victim at the IU Student Recreation Services Center and owned at least one 12-gauge shotgun. Indiana State Police Sergeant, Jason Fajt, was called at trial by defense attorney Baker to display emergency contraception materials and related information (provided by the IU Health Center to the victim). BPD Evidence Technician Tammy Harty had collected this material on Tuesday, June 6, 2000 from the victim’s bedroom. BECAUSE HE HAD NOT PERSONALLY COLLECTED THE ITEMS, SERGEANT FAJT WAS NOT PERMITTED TO COMMENT ON THEM OR STATE WHERE THEY WERE FOUND. TAMMY HARTY WAS NOT CALLED TO TESTIFY BY DEFENSE ATTORNEY BAKER. Some interesting facts: Defense attorney Patrick Baker was assisted by his father, Hugh Baker, and by his uncle, Indiana National Guard General Mike Kiefer. Prosecutor Steve Sonnega has the rank of Major in the ING while Judge Burnham is a Lt. Colonel. Deputy Prosecutor Bob Cline is also a member of the Indiana National Guard. Kiefer, Burnham, and Sonnega are members of the Army Judge Advocate General Corps. General Kieffer stayed in the background during the trial, but Prosecutor Sonnega did formally recognize his presence in the courtroom on one occasion. The three defense attorneys took the case pro bono, providing their services free of charge. This public-spirited service by the three Marion County based attorneys saved Morgan County taxpayers the cost of providing legal representation for defendant Myers who did not have any financial resources. NO ONE HAS PUBLICLY EXPRESSED ANY CONCERNS AT THIS POINT ABOUT A POTENTIAL CONFLICT-OF-INTEREST IN THIS ARRANGEMENT DUE TO THE INDIANA NATIONAL GUARD MEMBERSHIP OF THE JUDGE, BOTH PROSECUTORS, AND A DEFENSE ATTORNEY. THE INFORMATION CONTAINED IN GARY DUNN’S AFFIDAVIT, THE SMITHVILLE TELEPHONE COMPANY LONG DISTANCE CALL RECORDS, THE LACK OF ANY DNA EVIDENCE IN THE DEFENDANT’S PERSONAL VEHICLES, THE LACK OF ANY DNA EVIDENCE IN THE DEFENDANT’S RESIDENCE, THE LACK OF ANY PHYSICAL EVIDENCE, THE LACK OF ANY EVIDENCE OBTAINED BY TRACKING THE DEFENDANT’S VEHICLE MOVEMENTS, AND THE LACK OF INFORMATION OBTAINED BY WIRETAP OF THE DEFENDANT’S RESIDENCE TELEPHONE COMPLETELY EXONERATE HIM OF ANY KNOWLEDGE OF OR INVOLVEMENT IN THIS CASE. THE JURY WAS PERMITTED TO VIEW ONLY THE DEFENDANT’S OUTGOING TELEPHONE CALL RECORDS FOR THE MORNING OF MAY 31, 2000. ALL OTHER EXCULPATORY MATERIAL WAS RULED INADMISSIBLE OR KEPT FROM THE PUBLIC AND TRIAL RECORD. WHEN INTERVIEWED BY TELEVISION REPORTERS AFTER THE SENTENCING, FIVE OF THE JURORS STATED THAT HEARSAY TESTIMONY BY THE DEFENDANT’S AUNT, DEBBIE BELL, AND GRANDMOTHER, BETTY SWAFFARD, ALONG WITH TESTIMONY BY THE DEFENDANT’S FORMER GIRLFRIEND, CARLY GOODMAN WAS KEY TO THEIR VERDICT. THE DEFENDANT HAD BROKEN UP WITH MS GOODMAN IN EARLY APRIL 2000. THIS PROBABLE CAUSE AFFIDAVIT IS A STUNNING TESTAMENT TO THE YEARS OF SOLID POLICE WORK THAT WENT INTO THIS CASE. IT IS, IN ITSELF, DIRECT EVIDENCE OF THE INJUSTICE THAT CAN OCCUR WHEN THE SOLID, ESTABLISHED FACTS OF A MURDER CASE ARE WITHHELD FROM THE DEFENSE, THE JURY, AND THE PUBLIC. |