Written by Sean 7/13/15
One of the three judges presiding over my oral argument hearing in the Ninth Circuit Court of Appeals told Deputy Attorney General Kenneth Sokoler, “You have just lost all credibility with me.” This one statement seems to sum up how the hearing went overall. It was a moment I have waited 12 long years for. But I wasn’t even allowed to be there to hear it.
Monday July 6, 2015 was one of the most important days of my life as three judges presided over my fate. The fight to prove my innocence has been long. Waiting that day to find out how the hearing went seemed to go on forever. Especially in the hours after I knew the hearing had ended. It wasn’t until nearly nine hours later that I was finally able to call home. I was so nervous by this time, there were only two possibilities on the other end of that phone call. Either we lost and Emelia would be in tears. Or we won and I would hear the smile in her voice. I thank God constantly that I heard her smiling.
The moment Emelia answered the phone she was happy. “Hi, how was your day?” Instantly I knew it was good news and I wanted to hear it all. “Who cares about my day right now, tell me about the hearing!” I felt so excited. And that is when Emelia said it. “We won.” I felt tears of joy, relief, happiness on my cheeks knowing it was true. My wrongful conviction is almost over.
Even though it was good news, I had no idea how good it would be. In the days that followed I got to hear about the judges words, their hand motions and facial expressions. They told me how one of the judges said that the prosecution was left with no strategic moves at the start of trial because of my alibi, so by ambush the prosecutor Joseph Alexander changed the times to two hours earlier. Yes, a Ninth Circuit Court judge said the prosecution ambushed my defense at trial. My trial lawyer, James Clark, failed to object top this ambush, doing absolutely nothing to protect me.
Even my appellate lawyer, David Nickerson, was amazed by the level of knowledge the three Ninth Circuit Court judges had of my case. They knew everything. All the details, the times of my phone calls, names of witnesses, their connections to each other. My lawyer believes that we have the favor of at least 2 of the 3 judges and that’s all we need.
The prosecution alleged at trial that three young men purchased shotgun shells at Big Horn Gun Shop. They alleged that I was one of them and that the crime was committed immediately after this purchase. However, these judges acknowledged what the factual evidence proves. The three young men were in the gun shop at 10:00 am, while prosecution witnesses put me at home until 10:30 am. I was not and could not have been at the gun store. Further, the prosecution’s argument to the jury at my trial was that the crime was committed between 10:45 am and 11:30 am (the prosecutor alleged that there was a gap in my alibi after he had “ambushed” my defense by changing the times to two hours earlier that he originally claimed. James Clark then failed to prove my alibi for the earlier times) These judges then talked about my trial lawyer, James Clark, failing to present evidence of a 10:49 phone call I made from home to Ned Winslow. And another phone call I made at 11:44 am to a kid named Mike Carrick. These phone calls completely close any “gap” in my alibi. Clark failed to present this crucial evidence that would have proven my innocence to the jury . This failure is due to Clark being both ineffective in defending me and bring ambushed with the new earlier times at the start of trial and failing to object to it. The three Ninth Circuit judges acknowledged that had Clark presented the evidence of these phone calls to the jury, there was a possibility of a different outcome at trial.
After 12 long years we finally won. We still have to wait for the judges’ official ruling and written decision, but just knowing that we won is such a huge relief. I pray everyday for it to come quickly. Knowing that my rightful freedom is coming soon feels so good. I want to be home where I belong, I have been kept from my home for far too long. My rightful freedom is just around the corner.
My lawyer David defeated Goliath.
“David said to Goliath, “You come against me with sword and spear and javelin, but I come against you in the name of the Lord Almighty…This day the Lord will hand you over to me and I will strike you down.” -1 Samuel 17:45-46