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Attorney's & Judiciary Ineffective Assistance Of Counsel
'Imprisonment
of Plaintiff was and is
denied the sixth Amendment right to effective assistance of counsel
and the
fourteenth Amendment right to due process as guaranteed by the United States
Constitution, in
that the representation she received during the trial was
nothing short of 'ineffective assistance of counsel'.
On
the surface, this set of claims may appear to be simply a case of
ineffective assistance of counsel.
Until 1991,
Diane might have believed that too. But the truth of the matter goes
far deeper than
that.
Defense council James Jagger worked closely with Prosecutor Hugi onthis case and
TOGETHER
All through the trial in 1984, Diane watched Judge Foote defer to Prosecutor Hugi's judgment in open court. It wasn't until 1991 that she learned her own Attorney was conferring with the Prosecutor behind the scenes. As a Juvenile Judge, Gregory Foote had ordered Diane’s children to be separated from her. He also ruled in the trial that the State would take custody of her then unborn child (this was stated ‘before’ Diane had been convicted).
Rather
than keep the Court second-guessing the reason Defense Counsel deferred to
the opinions of the Lane County Prosecutor, who was supposed to be his
adversary. It should be revealed that Defense Attorney James Jagger was a Prosecutor
for Lane County for three years prior to entering into
private practice in Lane County (App 33, p. 25). Unfortunately Diane
didn't learn this until October, 1990...too late to affect her ability to
judge Mr. Jagger's merit in 1983. Strickland v. Washington, 4q6 U.S. ,986 (1984), says Diane did not get a fair trial when:
'Counsel's
conduct so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result'.
In Strickland, Id. At 686: "The court has recognized that the right to counsel is the right to the effective assistance of counsel' McMann v. Richardson, 397 U.S. 759, 771, n. 90 S. Ct 1441, 1449, n. 14, 25 L. Ed. 2d 763 (1970). 'Government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense ', (emphasis added).
Prosecutor Hugi declared in his affidavit "I personally observed Mr. Jagger inspect all the evidence in this case...In my opinion the evidence didn't support Diane's claims" (App 9, p.4, line 20). Mr. Hugi admitted he discussed the fingerprint report with Defense Counsel and 'together' they concluded the evidence was worthless to Diane's Defense, (App 99, p. 372). Perhaps 'colluded' is more fitting than 'concluded' considering it took fifteen years and a subpoena to reveal that there were eight adult palm/fingerprints in the report, unaccounted for. Proving that someone else was at the crime scene other than the Downs mother and children.
Mr.
Hugi wrote an Affidavit and coerced a judge
to sign it. Neither Diane's
Attorneys, nor the Attorney General's office could have wielded that much
power or influence, but
Mr. Hugi did. Judge Foote
readily admits he has no independent recollection of the
Downs case and that...."Mr. Hugi told me what to think",
(App 98).
When
Diane filed new evidence in 1992, the Prosecutor's office offered Judge
Foote's ‘raw’ (unsigned) copy of his 1991 affidavit (App 6, p. 8).
The subtle message was a powerful reminder to the Court that if he
granted the motion for new evidence after signing that affidavit, he'd look
a fool. That coercion worked too. The new evidence was denied.
'The Court has determined that holding the Prosecution to a higher standard is necessary, lest the 'special significance to the Prosecutor's obligation to serve the cause of justice' be lost,' (Agurs, Id. At III).
But that standard is lost on Mr. Hugi who will coerce anyone to lie for him. He is without conscience. If the witness won't lie, then Mr. Hugi will do it for them. He didn't call Dr. Polly Jamison even when she requested to testify. He was afraid that his blatant lie would be revealed to the jury. He knew she would deny making the statement that Diane was a 'deviant sociopath'. A denial that would have set Diane free, as one of the jurors disclosed later. Following Christie's confiding to a school friend that she was coerced by the State to lie in court naming her mom as the attacker, Diane appealed. The Court of Appeals affirmed the decision without opinion, (State v. Downs, 1987) and the review was denied. In 1999 US District Judge Ancer Haggerty dismissed several of the nine claims Diane raised for procedural reasons. Including an argument that she was improperly denied the services of Attorney Melvin Belli at the original trial. There are many more such appeals by Diane. Their failures are testimony to the kind of Institutional injustice Diane and many other prisoners are subjected to within the U.S. judicial system. How can true justice be served when the very servants of that judicial process have no respect for their own Institutions let alone its citizens. It not only undermines a judicial system, but those who do serve it with integrity.
Napue v. Illinois, 360 US. 270; 79 S Ct. 1177; 3L. Ed. 2d 1117 (1959) says... 'a conviction obtained by the use of purjured testimony must fall'.
Diane's Constitutional Rights have been grossly violated. A petition for a writ of Habeas corpus was dismissed without a Hearing. The court also dismissed the case before all pleadings were made and new evidence was time-barred in error. The court itself failed to order exculpable evidence released to Defense counsel. Following her early escape attempt Diane was excessively punished for what was a class 'c' punishment. And her maximum parole date in 2002 still sees her in prison. She has suffered Human Rights abuses on many occasions.
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