Every issue with my case stems from a complete lack of respect for the law by the prosecuting attorneys, judges and police investigators involved; along with my original defense counsel’s inability to provide and adequate defense; both because of their own lack of legal knowledge and severe misconduct committed by the prosecution. Justice is no longer blind in this country, truth is no longer sought out. The judicial process has become a game of legal politics with one aim: to ensure career stability and advancement of the most ambitious.
This course of action may be seen as admirable by many when the system sentences those who are in fact guilty. But what happens when they are not? What happens when they arrest those who are innocent? Even worse, when those charged with overseeing the laws of this nation realize they have arrested someone innocent and use the power of their noble position to cover it up; what happens then? Who is left to set the wrongs right? Who is left to fight for the wrongly convicted?
My name is Sean O’Brien and I have been wrongly convicted. At the age of 16 I was arrested on charges of first degree-felony murder in El Dorado County California. Besides the confessions of two others and a handful of their friends, the police had nothing to base their suspicion on. To this day they have even less. There is not one piece of factual evidence to substantiate any of their claims. There is not one shred of physical evidence tying me to this crime. Yet I have been convicted of a crime I did not commit or have any knowledge of after a trial where I was inadequately defended by a lawyer who has provided a 19 page declaration outlining his inability to defend me and have now been in prison for over fourteen years because of it. I was sentenced to Life Without The Possibility of Parole at the age of 16.
Not only is there not a since piece of factual evidence to substantiate any claim against me, the police investigators and prosecuting attorneys have systematically manipulated the legal system to ignore every claim we have raised. They have been allowed to do this by judge after judge who has done the same. Below I will give a summary outline of what I believe to be some of the most pressing issues of my case along with documentation to support it. How the police investigators and prosecuting attorneys have acted with complete impunity in their misconduct. And the judicial rulings that allow them to by a judicial system that erroneously props them up.
J.D. Petty went to the police with a story of how he lent me a shotgun. His initial stories to the police were quickly disproven and he would change his story. Finally, with the police investigators needing his story, they quit challenging what he was telling them and accepted the following: On the morning of February 26, 2003 at 7:55 Am J.D. Petty dropped off a shogun at the bottom of my driveway, corroborated by his cell phone records. Then later that afternoon he picked up that same gun. Further claiming the gun had been cleaned and he had been given a box of shotgun shells with one shell missing. Petty and two others, Michael Carrick and Cliff Sargeant later destroyed this gun. Throwing the broken parts and some shells down a hill.
At trial it was factually proven that he could not have gotten the gun in the afternoon as he had claimed. Again, disproving another part of one of his many stories. Proving the remaining portion of Petty’s story is a lie is key because it is the only “corroborated” testimony that may hold any weight. The “corroboration” being his cell phone bill and his claim that he had spoken to me on the phone at 7:55 AM before I met him at the bottom of my driveway.
Without J.D. Petty providing the gun as he claims I could not have been involved with, let alone commit the crime I have been accused of. Had the police investigators challenged Petty’s final story, they would have easily disproved it as they did his original stories. If they had simply reviewed his school records they would have found that at 7:55 AM on the morning of February 26, 2003 J.D. Petty was present in school 15 minutes away from the bottom of my driveway. Petty cannot be two places at once.
Further, the police investigators could have easily connected that one of my alleged co-defendants Tyler Dickson went to school with Petty and left school February 26, 2003 only 13 minutes after school began at 8:08 AM. Hours before the crime was committed. With a proper police investigation I am sure the police would have found witnesses that put Petty and Dickson together in the school parking lot that morning. Possibly even seeing them pass the gun. And that Dickson left school hours before the crime was committed because he did not want to be at school with a gun in his truck.
Further as was proven at trial, they would have easily found that Petty was at work at the time he claimed to pick the gun up. Again proving one of Petty’s many lies. And why would Petty lie? What is in it for him? What is the penalty for knowingly supplying a firearm to individuals planning to commit a crime where someone ends up killed by that firearm? Petty claims to have lent me the shotgun to go skeet shooting, with nothing to corroborate this. But with this story and his testimony against me, he has never been prosecuted. How could he tell the police he actually gave it to Dickson at school to go commit a crime? Would Petty face charges for knowingly supplying a murder weapon?
Lastly, further defense investigation that the police investigators could have easily uncovered proves that Petty did not talk to me during that 7:55 Am phone call as he claims he did. The phone call was never answered, never “connected”. On Petty’s cell phone bill time usage is calculated in two ways: one is “air time” and this is the minutes the cell phone carrier charges you. The moment you press send you are automatically charged 1 minute of “air time”. Petty’s bill also calculates actual duration of the call. On his bill this is calculated in 0.4 minute increments; 0.4, 0.8, 1.2, 1.6, and 2 minutes. When comparing Petty’s cell phone bill to that of Carrick’s , none of the 0.4 minute calls are reflected on Carrick’s bill as incoming calls. Only 0.8 minutes or longer reflect as incoming calls. On the morning of February 26, 2003 at 7:55 AM, that call to my house was 0.4 minutes. Proving it was unanswered, contrary to Petty’s claims.
When the new evidence of Petty being in school at 7:55 Am or the morning of February 26, 2003 was presented in a motion for a new trial, the prosecuting attorney had no dispute of this evidence. What could they say, the school records unmistakeably placed Petty in class at the exact time he claimed to be at the bottom of my driveway. With the prosecuting attorney saying nothing, the Superior Court Judge took it upon himself to cover for the prosecutor by declaring “not all clocks tell the same time” All in order to ignore time stamped records subpoenaed by the very same court. Both Petty’s cell phone records and computerized school records were subpoenaed by the Superior Court. Declaring that “not all clocks tell the same time” on subpoenaed time stamped business record, the judge then declared the conflict to be harmless.
Later the 3rd District Court of Appeals failed to rule on this matter, even though they recognized the conflict. On one page finding that Petty dropped the gun off as he claimed. Then on a following page in a footnote found that there was a conflict with this, that Petty was also alone in school proven by his school attendance records. Never ruling as to where Petty was despite the undisputed school records placing him in school.
Michael Carrick originally told police investigators that he has received a phone call from me around 11:00 to 11:15 AM before he got out of school at 11:45 AM on the morning of February 26, 2003. There is an incoming call on his cell phone bill at 11:14 AM that same morning.
The prosecuting attorney threatened to prosecute Carrick, who ended up taking the 5th and not testifying at my trial. Causing the jury to never head corroborating testimony to the 11:14 AM phone call.
As part of my motion for a new trial, defense counsel produced a signed declaration from Carrick stating the 11:14 AM phone call was from me. This phone call is so critically important because it is right in the middle of the 45 minute “gap” the prosecutor claims is in my alibi. Proving this call destroys the prosecutor’s case.
In rebuttle toi this signed declaration by Carrick, the prosecutor produced their own declaration signed by Carrick. The declaration states that defense counsel “tricked” Carrick into signing the original declaration. They further state that while yes, I did call Carrick that morning, it was at the later incoming time reflected on Carrick’s cell phone bill.
At face value this sounds devastating to my case. They admit I made a call to Carrick, but to the later irrelevant time of 11:48 AM. How can I prove which one I made?
Thankfully, other phone records prove this for me. Upon further review of J.D. Petty’s cell phone records he is calling Carrick’s cell phone at 11:48 AM for the exact amount of time reflected on Carrick’s bill as an incoming call. Proving the later 11:48 AM incoming call was from Petty and therefor couldn’t have been from me. If that wasn’t enough, my home land line shoes me making a long distance phone call to my sister’s cell phone at 11:48 AM. Reflected as an incoming call on her cellphone bill at exactly 11:48 AM.
Proving that the prosecutor suborned perjury from Michael Carrick in order to produce the false declaration. The prosecutor knew all of this to be factually false, having access to all of the subpoenaed phone records we had. The prosecutor knew his case was falling apart and went as far as suborning perjury in a last ditch effort to oppose the truth.
The prosecutor need not worry though. The same Superior Court Judge who found “not all clocks tell the same time” to dismiss the indisputable fact that Petty’s school records factually proved he was in school took it upon himself to determine I “may have had a cell phone to make the 11:14 AM call”. The prosecutor at no time has ever presented any evidence of me having a cell phone. Not even the two individuals claiming I was a part of their crime claimed this. Not a single witness claimed this. Not a single cellphone record of the countless that were subpoenaed showed any calls to a cellphone I ‘may have had”. In fact, my cellphone had been disconnected months earlier by my mother, which simple investigation would have proven. Not once did the prosecutor ever even try to imply I had a cellphone because there was no evidence of this. Only the Superior Court Judge who said at the time of sentencing that he “knew I was guilty from the first moment he saw me”took it upon himself to dismiss crucial evidence proving my innocence and vast prosecutor misconduct by saying I “may have had a cellphone to make the 11:14 call” to Carrick. A phone call he did find that I made. He just dismissed it with the possibility that I “may have had a cell phone”
Dr. Curtis Rollins was the pathologist assigned to my case. All the way through trial there was no known issue regarding Rollins. After trial new defense counsel was hired and a simple Google search revealed that Dr. Rollins had been arrested in Arizona on drug charges.
When this information was presented post-trial to the prosecutor and Superior Court, all parties denied knowing of Rollins’ criminal history. The court ordered the prosecutor to turn over any information they had on Rollins and the names of any cases Rollins had participated in as a pathologist. There were only two others, one of which involved the judge in my case who had previously acted as defense counsel in a case involving Dr. Rollins.
The judge was been asked to step down. from the current case so that he may be questioned as to his knowledge of Rollins. He refused. A motion of recusal was filed that eventually went to the 3rd District Court of Appeal and led to the recusal of the trial judge.
During this time, the prosecutor produced a signed sworn affidavit denying any knowledge of Rollins criminal history or drug use which was becoming a Brady issue. Similarly, Rollins signed a declaration saying the prosecutor did know of his “Brady package” and that the prosecutor told him it wouldn’t be an issue.
If all of this were not enough, Sacramento County’s D.A’s office had fax records of information they had faxed to the County D.A in El Dorado County informing El Dorado County of Dr. Rollins’ criminal and drug history. This was over a year before I was even arrested, proving they did know of Rollins’ criminal and drug history and withheld it from my defense.
To get around this violation of the law, the Superior Court constructed a straw man. They determined that Rollins struck a deal that reduced his charges from felonies to misdemeanors. Making the criminal charges inadmissible in my case and therefore the withholding of his criminal actions and drug history a harmless error.
Even if Rollins’ criminal charges were inadmissible, his conduct was admissible. As a pathologist in Arizona Dr. Rollins would order and steal narcotics through the pathologist’s office, taking them home to get high. He nearly lost his license to practice medicine, but a plea deal, rehabilitation, 5 years of professional probation and a move back to California allowed him to keep his medical license. Later in North Carolina, he did lose his license to practice medicine when through drug testing as part of his professional probation he was again proven to be using drugs.
Dr. Rollins’ drug issues are not the only issues surrounding my case. He also failed to follow basic procedure in determining the time of death. He only went by the ambient temperatures he recorded at the crime scene when he arrived.
Initial witness testimony and police reports show that the victim’s body had been exposed to much cooler temperatures that Rollins ever considered. The first witness on scene and resident of the home said he found the front door wide open, exposing the body for an unknown amount of time to the cool outside winter air. Also he stated that they never used the thermostat in the house. The first officer on scene found the front door closed as the first witness told him he closed it. And he also found the house to be cold. So cold that the officer himself turned the heater on which lef to the much warmer temperatures and the only temperatures Dr. Rollins considered.
Dr. Rollins also failed to perform basic procedures in determining the time of death such as taking core liver temperature. Dr. Rollins’ failure to do so has never been questioned.
The Time Change
For 13 months leading up to the trial the prosecutor maintained that the time of death was between 11:30 AM and 1:30 PM. This led my defense counsel to prepare my alibi defense for only those two hours; completely ignoring any evidence to my alibi outside those two hours.
We turned over our defense discovery initially 30 days before trial which turned out be to be 6 weeks when my trial was pushed back. The prosecutor was faced with my innocence for the first time.
The second day of trial the prosecutor handed my defense counsel a 4 page report. saying he was now going to say the crime happened two hours earlier, from 9:30 Am to 11:30 Am.My defense counsel failed to object to this time change or even ask for a continuance.
During trial the prosecution’s own witnesses narrowed my alibi down to 45 minute, from 10:45 Am to 11:30 AM which is why the 11:14 AM phone call to Michael Carrick is so key.
How and when did this time change happen? Ten days after my defense turned over our defense discovery, the prosecutor, the lead police investigator, my second accuser/ co-defendant William Wellman, who by this time had taken a plea deal for 15 years to life to avoid the death penalty, and his public defender all had the only unrecorded interview of the whole case. The prosecutor and Wellman presented at trial that after more than a year of thinking about it, Wellman could better remember the timing of events now than he could when he first spoke to the police investigators days after the crime. So Wellman conveniently testified that the crime took place two hours earlier than my relevant alibi given to the prosecutor .
So if this time change occurred 10 days after we gave the prosecutor our defense discovery, why did it take the prosecutor 32 days to present this change to defense counsel? Why did they want to wait until the second day of trial to present such a crucial change of evidence? And did the time change actually occur the way the prosecutor and Wellman presented it at trial? Was it because after a year of thinking about it Wellman had a better recollection of the times?Or was something more nefarious at work?
According to a recorded 2008 prison interview with Wellman, he did not change the times for the reasons he stated at trial. In 2008 he said he had no reason to change the times until that unrecorded interview. That during that interview the prosecutor told him everything was perfect with his testimony except that “the times didn’t add up, there was a problem with the times.”
Wellman said he told the DA he wanted to talk to his attorney about it in private before saying any more and that three days to a week later he had a private meeting with his layer where his lawyer showed him the coroner’s report (based on Dr.Rollins’ bad procedure) and that he then changed the times to earlier.
If this took place as Wellman now says it did, we still have no idea as to how the prosecutor leaned of the time change. That is unless the public defender informed the prosecutor and/or police investigators himself.
Further, in Wellman’s recorded prison interview he repeatedly stated he changed the times, altered his testimony and worked with the prosecutor to do so “all because of what I knows”. Implying that if he did not, he would lose his life saving deal that stipulated he “testify truthfully”. At one point he even goes as far as saying “They didn’t know they coerced me” before back tracking and saying “No one coerced me, it’s all because of what I know.”
What Wellman fails to realize is the definition of coercion. If he had no reason to change the times until the D.A. told him there was a problem with the times, and that his testimony was “not deemed truthful by the courts” meaning that I get convicted, that he would lose his deal; that is coercion. If Wellman only changed his times to save his deal, that is coercion.
Further, it means he committed perjury at trial and the prosecutor suborned it. That on some level conspiracy to suborn and commit that perjury was committed by at the very least the prosecutor, Wellman, his public defender and the police investigator who typed up the 4 page report.
It means that the prosecutor manufactured the time change using someone willing to do anything to save his life. All so the prosecutor could wrongfully convict an innocent 16 year old boy.
During the motion for a new trial, this same prosecutor who suborned the perjury of Wellman above ignored that Petty was undisputedly in school, that the 11:14 AM phone call to Carrick was made by me, despite the prosecutor’s misconduct to suborn more perjury to try to make that fact go away. And his own perjury is lying about his knowledge regarding Dr. Rollins’ drug usage. He stated to the court several times that “Mr. O’Brien is entitled to a fair trial, not a perfect trial.”
What, I ask, is fair about a trial in which the prosecutor commits perjury, suborns perjury multiple times, and ignores factual evidence proving my innocence? And what is to be said of a judicial system that not only allows such actions but protects them?
written by Sean O’Brien
2015 UPDATE : On August 27, 2015 the Ninth Circuit Court of Appeals ruled in my favor based on my Ineffective Assistance of Counsel claim. They have granted me an evidentiary hearing.
Their ruling says: “O’Brien’s state habeas petition alleged facts that, if accepted as true, showed that trial counsel failed to introduce available evidence that would have significantly strengthened O’Brien’s defense. Indeed, if believed the additional evidence would have rendered it virtually impossible for O’Brien to have committed the murder with which he was charged.”
“Crediting O’Brien’s allegations, trial counsel failed to present critical alibi evidence that might have raised a reasonable doubt regarding whether O’Brien could have possibly participated in the crime. “Competent counsel would not have failed” to put such evidence before the jury.”
“We reverse the district court’s denial of O’Brien’s ineffective assistance of counsel claim… and remand with instructions to hold an Evidentiary Hearing with respect to that aspect of his claim”