The following is extensive, however, it offers not only the undeniable proof that my husband, Eldon Schurz, faced wrongful conviction, but also clearly demonstrates how those on death row are cut out of their own cases and refused the chance to challenge such travesties - leaving them to die despite innocence.
On the afternoon of June 9th, 1990, Maricopa County Prosecutor, Noel Levy, was standing before a predominantly white Phoenix jury preparing to seek what was to be only one in a long list of death convictions that he would manage without a shred of actual evidence. His career looked bright thanks to the aide of Phoenix detectives and Levy’s knack for using character assassinations to convince juries that the person before them was not worthy of liberty or life. Yet, a reasoned mind considering the decision of the jury can only ponder that even in the twenty-first century racism runs deep and that throughout the history of the state of Arrizona, the integrity among those in law enforcement, prosecutor’s offices and the judiciary has too often been only surface deep.
The evidence in Eldon’s case certainly did not provide enough to substantiate the prosecution theory and convict beyond a reasonable doubt. As a matter of fact, though at a glance things seem acceptable enough, if one merely nicks the surface of the state’s perfect declaration of guilt found online, they find that Levy only created an elaborate ruse. A disreputable prosecutor stepped on stage in a Phoenix courtroom, and with confidence he opened his case with an incredible hypothesis which in Eldon’s case was the tale of murder committed for the gain of a few cents.
Levy offered to the jury that afternoon:
"In the late hours of Friday December 1, 1989, the defendant Eldon Schurz in the company of Julie Moore went to the City Center Motel. And the Center City Motel has a facing building and then vertical to the facing building to Van Buren is another wing. This group was at the end of this wing. And there's a stairwell there. It goes up to the second level.
A group was sitting on the stairwell consisting of Marcella Bonito, Ron Yazzie, Larry Figueroa and some white guy, because all of the others are Indian and that’s how they referred to themselves. And they were drinking from A 12-pack of Milwaukee’s Best beer and chatting. Jonathan Bahe hadn’t arrived.
Eldon Schurz walking ahead of Patrick Allison and Julie Moore, approached them as a group. Eldon Schurz went up to them and said, I want that beer, or words to that effect, and started to take the beer from them. And that was resisted. So he reached around and he got the basic remnants of the 12-pack of beer and left in the company of Patrick Allison and Julie Moore.
They went several blocks. And they consumed the beer. Then Eldon Schurz told Patrick Allison and Julie Moore was also there, we’re going to go back because they probably have more beer now and they may have some money, and we’re going back and take it.
So they went back to the very same group in the very same location at the base of the stairwell. In the meantime Jonathan Bahe joined them. Jonathan Bahe by the fate of facts, had a container of milk-- plastic milk container of gas with him. He told the group that he was going to fill-- his car had ran out of gas. And he was on his way to put the gas in, and he just stopped to talk with them.
Keep in mind ladies and gentleman that these folks are not necessarily in the same habitation as you may think of people living permanently in one home or something like that. Whether to categorize them as street people or transients would simply be a term of art. But these folks are part of a community and they happened to be assembled at this particular location and they were all simply talking among themselves.
When -- the second time the defendant comes up to this group, now joined by the victim, Jonathon Bahe -- Bahe had been told by Marcella Bonito what had occurred. He was upset that that had occurred. And thus, when Eldon Schurz came up to them, followed by Patrick Allison, and Julie Moore may have stayed across the street this time, went up to them, he tried to take the beer and money. Attempted. But Jonathan Bahe got up and he attempted to defend the rights of the group to peacefully assemble there and drink their beer and chat.The victim and the defendant exchanged blows initiated by Eldon Schurz, with fists. And the defendant Eldon Schurz started beating on Jonathan Bahe and backed him into a corner, because not only was the stairwell enclosed by a fence, but there was also a locked gate there. And thus there is no way for Jonathan Bahe to get past Eldon Schurz, or get away from the area, because of the locked gate.
Again he is receiving the majority of the blows, he attempted to -- that is Jonathan Bahe -- to get away, and crawled underneath this fencing, thinking he escape the blows of Eldon Schurz. And there he was. It was night and the others Marcella Bonito, Larry Figueroa they ran upstairs to the maintenance man’s apartment who would have listened, to call for help because of the fight. Ron Yazzie left because he did not want to get involved and be beaten up himself, because there was Eldon Schurz there and Patrick Allison there.
So there was no one there but Jonathan Bahe trapped within the confines of the base of the stairwell, Eldon Schurz, and behind him Patrick Allison and the jug of gasoline. Eldon Schurz grabbed the jug of gasoline and started squirting it all over Jonathan Bahe’s body, head to toe. It was a container perhaps nearly full of gasoline. In any event, an adequate amount of gasoline to have fully covered Jonathan Bahe. And Eldon Schurz even smelled it before he lit it. And gasoline has an odor.
And after that there was a pool that extended a little past the fenced-up enclosure. Eldon Schurz pulled out a cigarette lighter and he lit the little pool on the cement base. And it didn’t quiet go toward Jonathan Bahe. Patrick Allison said don’t do that, to Eldon Schurz. Jonathan Bahe said, oh, no. Eldon Schurz kicked the flame toward the pool of gasoline. Poof it engulfed Jonathan Bahe. With him completely engulfed, Eldon Schurz simply turned and left, along with Patrick Allison.
Not very long after that Pat Allison heard Eldon Schurz tell Julie Moore that, he didn’t give me any money so I burned him up. Levy continues with the discovery of the body and Bahe’s suffering before adding not very long after that the defendant, in the company of Patrick Allison and Julie Moore, committed a similar subsequent act which the state will show for the purposes of proving the initial intent, motive, plan and preparation; after that some white guy in a car stopped and wanted some drugs.
And so the three of them got into the car, with Eldon Schurz in the passenger seat. And Eldon Schurz directed him to another part of town and then when he parked -- came back, leaving Patrick and Julie Moore in the backseat, Patrick Allison was there, saw this, heard this. And the defendant, Eldon Schurz being in the passenger’s seat, leaned over to this white guy, put a lighter under his chin and said, You’d better give me your money or I’ll to use his words fuck you up. And the white guy says fine, and gave him his money. The they all left the car. And they all went to where they stayed".
Notably, Levy does not speak forcefully, and he certainly lacks eloquence, but worst of all as the following pages illustrate he did not speak factually. First, he began his case by not only changing the account offered by witnesses, but also by adding testimonial evidence that he could in no other way get before the jury. It is not supposed to be done, but then a lot of other things were not supposed to happen either. By Levy's choice, Eldon’s rights were repeatedly violated, then, after a farce of a trial, and supposedly in good conscious, the less than reputable prosecutor sought the death penalty.
By June 11th, 1990 Eldon Michael stood before Judge John H. Seidel in a Phoenix courtroom found guilty of capital murder and awaiting a decision as to whether he would serve life in prison or face the death penalty. Ironically, his mother who had cared so little that she abandoned him as a baby and again as a young child was sitting behind him awaiting the decree that would possibly lead to her oldest son’s execution.
“All right Mr. Schurz, then now is the time to tell me what you want to tell me with regard to your case. And specifically, I’m interested in with regard to the sentencing decision. But you say what you want to say,”the judge stated flatly, as Eldon stood before his aggressors that day realizing that they could see so little value within him that the death sentence would be ordered without hesitation. It was certain that there was no arguing the decision. All that could be done was to accept the path that the men around him had chosen, and do the best that he could to survive it. How ironic it seems that his only words to the court came when they were about to tell him he would be executed, because his attorney had decided it would hurt his chances at trial for him to tell his story.
As, he spoke, he was facing the same accusers that he had faced since childhood, the system in Arizona that always regarded Indians as less than human, and again his words fell to deaf ears.
"First of all, to this day, from the very start as Mr. Susee will tell you, I held my innocence in this case all the way. I--you know, I don’t agree to the plea bargain and I don’t think that I should have been convicted. But I have been.
To the family I’m sorry for what has happened. I don’t know. Whatever will be imposed I feel that I will be able to accept, whether it be as the prosecuting attorney would have you--would have me put on death row, whether it be life in prison.
It’s hard for someone who doesn’t feel they are guilty of their crime to look at these things. I don’t feel that it was proven without a shadow of a doubt that I was guilty. But I still feel that in time justice will prevail.
And I hope you take all of these factors, everything that has been said throughout the course of the trial, today, into consideration. I won’t go on like I say. I’ll deal with whatever I have to deal with. I will survive. And if you did pass what the prosecuting attorney wants you to pass, the imposition of the death sentence on me, so be it.
I would also like to thank my family for standing by my side. Whatever will be, will be. All I know is that I have made peace with myself and my God. And knowing that will give me the strength to accept whatever happens.
I have no more to say."
Eldon finished his statement and then sat quietly. Without protest, he was sentenced to die by Siedel. Noel Levy stood by, triumphant in his cause, though he was well aware that the evidence he had presented at trial was perjured. There has been no justice, and the victim in this crime was deemed inconsequential as Levy, allowed Bahe's killer to go free. He did not punish a killer or honor the memory of Jonathan Bahe. As Levy was aware, what happened that night, and the story which the evidence supports is far different than that portrayed to the jury. The beginning of the story that fits is the one that Eldon never told police but has told me since a few weeks after my first letter to him.
The following is an account taken from a letter written to me by Eldon 8-13-06. It recounts Eldon’s version of the story, and reflects a couple in the city going out to catch a buzz and visit friends on a Friday night. It does not depict the elaborate evil drama that Allison was allowed to craft and use against Eldon at trial.
“So, you were asking me to tell you again about the night that the shit happened that ended with me here on the row. Let me go over this one more time for you. I guess you really could say that it all started late Thursday night or early Friday morning. You see the night before I had a good night and made me some money. Things were good at home with Julie and Marcus.
Well, I crashed a few hours and when, I got up Julie and Patrick were hanging out talking. Now, I am not really sure what time Patrick showed up but he was there at our place and him and Julie were drinking the beer that I had in the fridge.
Well, when I got up I joined in and started the day with a beer. Well, I think the first time I sent Patrick to get a suitcase of Bud. And the three of us just kicked back drinking. I also fixed a little bit of the tar that I still had from the night before. So, the party was on and all was well.
We stayed at our apartment for most of the day and there were a couple of more trips to the store. So, anyway, it starts to get around evening time and that is when it was decided that we would go out. Me, Julie and Patrick, so everyone got ready. We were off to one of Julie’s friends house, because she was going to watch Marcus for us. Well, me and Patrick went to the store and I bought a twelve-pack and we stopped by my friend Richard's house but he wasn’t home.
So, we go back to Julie's friend’s house. I'm not sure what that woman's name is because meeting her that night was the first time that I ever seen her. And plus, I never really talked to Julie’s friends if they were women, because sometimes when Julie would get lit she had and did accuse me of messing around with one of her friends. So, I didn’t even talk to her female friends. I just did not want all of the drama.
Well, we left there after the twelve-pack and we were going down to Mike Ford's Bar, down on Central and Fillmore next to the downtown post office. We started heading down that way, when we saw Marcella and that bunch for the first time. Well, we went over to see what was up with them. And that is when she gave us the beer that everyone now says that I took. But, anyway we hung out for a little bit.
And then, we left and ended up not going to the bar, but to another of Julie’s friend's apartment on 6th Avenue and Fillmore. While there for a little bit, I gave Julie some money and her and her friend were going to go to the store. At the same time me and Patrick were going to go back over to Richard’s house. So, that is where we headed and that is where Patrick saw me playing with the needle.
Now, I am not really sure how long we ended up staying there, because this time I was pretty lit. But, we did finally go back and pick up Julie. And that is when we ended up going back past the motel where Marcella and that bunch was. So, we stopped by there. And I'm kinda thinking it was just me and Patrick.
But, anyway, we get back over there and people started talking shit. And the white guy said something and that is when I went up the stairwell and got into the fight with him. That's why Marcella called the cops. Well, everyone kind of moved and it left the guy who died at the bottom of the stair well with Patrick.
Well, I remember Marcella saying that the cops were coming, so I headed back down the stairwell to leave. And I walked right by Patrick and told him to come on, let's go. When, I hit the walkway and turned out toward 6th Avenue that’s when I seen the first flicker of flame, but I didn't really think much, of it. The only thing going through my head was to get away from there, because the cops were on their way. So, when I hit 6th Avenue, I turned around to tell Patrick to hurry up. And that is when, I seen him and Julie together.
Well, we hit Van Buren and walked the few blocks back up to Mike Ford's Bar. We stayed there till around 12:30 or so, because we hit the store before 1:00 am, because back then that was the cut off time for selling liquor and stuff. So, we hit the Circle K on 1st Avenue and Fillmore. We caught a cab from there to Julie's friend's place where me and Patrick waited in the cab while Julie got Marcus.
Once we had Marcus, we headed home, but on the way we stopped at Jack In the Box, then home. Well, once we were there I ate and me and Marcus went to bed. And the next thing I know is the cops were getting me out of bed. That was the night. So, there it is once again.”
Eldon Michael’s version of the night of the murder has always remained basically the same, as I have questioned him over years. The remark concerning his thinking it was only him and Patrick was added because by this point I had discovered that Julie and Patrick told different stories concerning where she was in order to place her away from the scene, and though Eldon was never aware of it before I began to look at the evidence other witnesses places her behind the motel when the murder took place.
For fourteen and a half years, Eldon believed that Julie had stayed behind, as him and Allison as they were walking, and the story does make sense with her in a neighborhood where many walked to the local bars and stores, knowing people in the neighborhood, and their very close to both a bar and a store. Wherever she disappeared to for those few moments, Eldon believed that there was no possibility that she could have been involved. On the night of the murder and throughout the legal proceedings, he was keeping his promise to her to protect her and Allison, as she had asked when detectives allowed her to speak to Eldon before his interrogation.
What he has related is that he knew upon arrest that most likely Allison had committed the murder, but he could not be sure and did not express his suspicions to the detectives. He actually witnessed nothing. He also knew that he had not killed anyone and did not feel that he needed to protect himself. He kept his silence, and as a result, his story was never told before I began to inquire.
Not surprisingly, it is even blatantly reflected in the record that just after they had spoken to Allison, detectives allowed the discussion between Julie and Eldon before they had spoken to him. It was at that time she elicited the promise, and after her release she continued to visit Eldon and assure him that she was there for him. Of course, Eldon took her attention as devotion, and never questioned her motives even that first night as she pleaded for his promise. However, as soon as Allison had signed the plea and Julie knew that he would not go to prison, she dropped Marcus at Eldon’s mother‘s and disappeared. There is no doubt that detectives broke the rules by allowing Julie to see Eldon, nor that Julie was certain from the start that Eldon would keep his silence at her request. It also seems certain that she was key in helping to assure that Allison walked away completely unscathed, though it meant leaving Eldon condemned.
In fact, not long after I became involved in the case, prominent Phoenix attorney, Alan Simpson, who represented Allison would tell me via email that though he has to “remain on the sidelines” in Eldon’s case after his representing Patrick that he has a fairly clear recall of the case at the City Center Motel, Patrick, his sister and Eldon. He made the statement though, as far as we know, Julie was never present at the trial or any of the attorney interviews. Eldon’s attorney retained no record of any attorney interview done with her, only a comment within his billing records that she had told him seemingly in passing that Eldon never confessed to her as was alleged at trial. Consequently, with Simpson not allowed to discuss specifics with me, one can only assume that she was speaking to her brother’s attorney, though Eldon’s counsel failed to find her for a thorough interview.
That failure was far from defense attorney, Edward Susee’s only oversight, however. Eldon’s case is known to be a travesty among even prominent Phoenix attorneys such as Larry Hammond of the Osborne Maledon Law Offices who offered to speak to former appellate counsel, Jennifer Bedier of The Arizona Capital Representation Project in Tucson about the Arizona Justice Project assisting with DNA testing. Also, John Trebon who works with the North Arizona University Justice Project, after reviewing part of the case file made the comment that it hurt his head to think that the case had stood so long in the courts. The failures of Susee clearly left Levy to fabricate the case against Eldon which is a scenario also easily recognized by Robert Schehr of The NAU Project when he took on the case within weeks of my initially contacting him and David Dow of The Texas Innocence Network which also accepted the case a short time later.
Dow went so far as speaking to Bedier concerning his acting as counsel, because he was aware that we were desperate to save a case that we believed was being deliberately lost by Bedier in the district court. I easily generated the attention and found the necessary assistance, because the case simply speaks for itself. However, it was all to be denied, as I began to discover that former appellate counsel had not done the necessary work to prevail at the appellate level, despite her having held the case for several years.
In fact, the way that she became sole counsel on a capital case is suspicious in itself. In effect, the change began by Bedier, who worked for Jim Bellanger of Phoenix, in 2000 telling Eldon that Ballenger was just dropping the case midstream because it did “not pay enough.” Of course, Bellanger emphatically denies the account. However, after further assurance that he would be “left without counsel at a critical stage of his appeals,” Eldon agreed to the change and a request was submitted to the court asking that Bedier replace Belanger. Still, Eldon knew she was inexperienced but did not know that with Bedier was only admitted to the bar in October of 2000, and certainly not admitted to practice in the federal courts. He knew she had never handled a case on her own, but not that she could not meet either the courts required years practicing as appellate counsel to represent a capital client or minimum for admission to the courts. He had no clue that she was bending rules intended to protect him, but Bedier did and the request to the court was for her to work with another attorney.
The other lawyer was qualified, and would have more adequately represented Eldon. Yet, Eldon was told nothing of his considering taking the case. He was only told that Bedier was to be replacement counsel, and as it turned out within days of the court agreeing to co-counsel, Bedier notified the judge that the other attorney was refusing the appointment, and did not mention her lack of experience. Rather, she took the case alone, realizing that she was shortchanging a client whose case compellingly denotes the innocence he has maintained, and which she told Robert Schehr of the Northern Arizona University Justice Project she was certain of in late 2005.
From that point, from what I understand through Eldon, she visited a lonely inmate a couple of times a year, smiled cutely and assured him that she believed in him and was doing her best. However, he never saw a single page that was submitted to the court until I started what turned into months of requests trying to get the paperwork withheld from Eldon. Once she figured out that I could look at the file and get the discrepancies, screwed up evidence, bad test results, etc. that she was supposed to have long before found, the war was on.
Still, with us then knowing as much as we did about the case including the prosecutor’s perjury and tricks, even the last of the petitions, as all before them, contained almost nothing beyond what had been submitted by Bellanger in 1997. Plus, the vast majority of those pages were devoted to declaring Eldon mentally impaired. As much as there was to support the other issues that could have won a new trial, Bedier wholly failed to discover or use anything even with our telling her what to use and raising holy hell to see her do it. An expert I had found was ready to provide a report free of charge calling the enzyme results into question, but she just absolutely refused to let it happen. She did not so much as point out what I had discovered about the testing on a claim of failure to impeach the criminalist’s testimony.
Sadly, had Bedier listened to her client, consulted experts and provided the court with their opinions, the judge’s rulings would have been much different. Rather, after the final chance for reconsideration went into the court without a single fact that Eldon had told her to include, she did however write him to say, “I understand from your call on September 26 that you wanted me to read the correspondence (letters and emails) Kricket recently sent me, so I did read them. When, I told you in the call that I hadn’t read them yet, I didn’t mean that I would never read them. I just meant that that I had not yet been able to determine if there were any productive case issues in her correspondence, because her correspondence focused so much on attacking me rather than explaining the case issues. I also thought, until I heard from you that you would have sent the information to me yourself, since you and I agreed that you and I would communicate directly as often as we needed, because Kricket’s communication to me was not productive to your case. Please remember the agreement since it has worked successfully for months and is in your best interests.”
When she sent that note, the last brief had already went in - it was over. Nothing was used despite us fighting her for over three years. It is clear that Bedier who bragged about billing hundreds of hours before I became involved did not so much as devote a bare minimum of hours to the case, as refusing to allow any other assistance. Early on, she even admitted that she was working without a sheppard’s citator, because she “could not afford” to pay the fees. She clearly disregarded the necessity of adequate case citations in her client‘s case, with the judge pointing out her inadequacies in that regard more than once. However, she was making frequent trips to speak against the death penalty, on what can be assumed were Az Cap Reps funds during the same period.
In fact, over eight years Bedier used almost nothing which Bellanger, did not use in 1997, and by 2005 an Amended Petition earned so much diligence that the first 77 pages are an exact duplicates of parts of that 97 brief with much struck out and added material that might cover 3 ½-4 pages. The rest of 115 pages as the 77 are set in a far larger font than normal with double spacing to extend the page count and concerns mitigation. Of course, I thought she at least added new material there. Yet, most of the mitigation material that is not in the 97 brief was taken from a brief submitted in 2003 which also contains work copied from old petitions. Despite admitting that she billed heavily, her petitions are constructed almost if not entirely from past material.
Thus, the first thing to make clear here is that the actual story of Eldon’s case has never been presented in court, though the fact is detectives and Levy could not convict the actual killer or killers and used Eldon for a scapegoat. Eldon had actually saw nothing past the point when Marcella said cops, so he could not help convict the actual killer and the others had fled as well. I certainly have no trouble believing that a twenty-six year old Indian who did have enough of a record to be certain that a white judge would throw the book at him for anything else that he was arrested for was eager to leave. Note: Nonviolent offenses were used to enhance Eldon’s sentence. He was not an angel, but neither was he a bloodthirsty fiend.
At any rate, as Levy knew the scenario that actually fits the evidence is that the victim was drunk, tried to stop Allison from leaving before the cops arrived, and was knocked down. Then, Julie grabbed the gas jug which a witness has her standing beside. Understand here, Allison testified she was not present, but Eldon just did not know she was there. She had lagged behind somewhere, with there being bars and stores, homes of those they knew and with everyone walking. Eldon does not recall for sure if she stopped to talk, went to the bathroom or what exactly, but he was fighting and never realized she had caught up. Still, according to other witnesses she came up, and at one point said that she heard the commotion, with other witnesses placing her behind the motel before the blaze was set.
Whatever the case, it is an absolute certainty if her and Allison committed the murder as seems most logical, the case would have been left unsolved. There was no way to get them to testify against each other, with Julie much older and more Allison’s mother than a sister after a really bad childhood. So, Levy chose to convict Eldon and created the evidence to drag him to court by allowing Julie and Allison to walk away unscathed.
Eldon was convicted almost solely based on fabricated forensics and the blatant perjury of Allison who was a habitual user of inhalants which are confirmed to cause more violence than all other drugs. Still, he was released on five years probation for testimony, though he had a long prior felony record for drug use and a pending felony drug charge that he had yet to be arraigned for. To back him up, Levy threw in a transient, Ronnie Yazzie, who was “reimbursed” twice to travel to Phoenix and stay in a motel, and the testimony of a dubious detective, Armando Saldate who was also involved in the Hyde and Milke cases among many others that are very questionable. Saldate was the “fire expert,” though there were several fireman present at the scene. Of course, other than Noel Levy calling what the bum received the “standard amount” no one has had a clue what he was actually paid to date.
However, when he was not sure what the money was for at trial, his memory was excellent as to the night of the murder, though he could not provide a good description of Eldon before trial and also said that he did “not know who was fighting.” Unbelievably, he was not even shown a lineup or photo array to make an I.D. of Eldon. But, with Eldon sitting at the defense table, he was allowed to testify that it was Eldon “shoving” the victim, though he had also earlier admitted that someone had told him who the victim was. Plus, added to Yazzie’s dubious testimony is that he had a felony record and had been formerly treated for mental problems, with the defense never knowing more and the jury never aware of either.
Then there was the criminalist, Ballard, whose testimony is unbelievable. First, under Levy’s lead, he testifies that gas could have evaporated from Eldon’s clothing - which notably was not properly packaged or stored. What the jury was told is that there was no gas on the clothes, because he did not take them out for the first time until two weeks after the murder to simply “smell”them for gas - no testing just sniffing. At any rate, he lied, because he had taken the clothing out only three days after the murder to do enzyme testing.
And the enzyme testing of blood samples is the main joke, with the so-called testing for a blood match involved the victim's blood sample, blood from Eldon and Allison and allegedly a small stain of blood found on Eldon’s slacks. The clothing used for analysis was seemingly just wadded up together, tossed into a paper bag and forgotten somewhere along with Eldon and Allison’s blood samples, though from what I gather the lab was in the same building at the time. Of course, it comes out just before trial that Levy forgot to turn over what can be estimated to be half of the police reports and half of the forensics reports to the defense, so there is no detailed account of the chain of evidence in what I have and one likely never existed.
In any case, the expert waited another day before doing tests and it is not established where the clothing was for that day either, with his testifying that he was not told that blood work was to be done. Yet, the detective's report shows the clothing was sent two days before the criminalist says it arrived (the day of arrest) and the request for blood analysis was made. Mishandling definitely occurred, with there actually being more questionable happenings, such as the victim's blood did not arrive until more than five weeks later, and with no explanation as to why in the paperwork I have.
The murder, involving arson actually occurred in the early morning of December second and the victim's blood is shown to have been picked up at the autopsy by an officer, but according to reports, it was not delivered to the lab until the tenth of the following month, with the testing done on that day. Of course, with Eldon represented by a dunce who had only handled one murder case, the criminalist was never asked any probing questions, but enough is shown throughout the record for it to be safely assumed that there was not pristine samples to work with.
Still, Ballard allegedly tested looking for the GLO, PGM, PGM subtype, ESD, EAP, AK, ADA and two others stuck off to the side without everything filled in - the EA and another that is scribbled in so carelessly that it is illegible. His initial report shows not available for the GLO and PGM on the stain, with the ABO merely left blank, though it is eventually shown to be type O, as is the victim and the co-defendant. Eldon in that first report is shown to be type A, but only after an O that was written in first was very heavily marked over to create an A. Note: all three individuals are Native American, with eight of ten Indians testing O.
Anyway, after the first round of testing Allison’s blood was simply dropped, with the expert testifying that he had took it out when the PGM's did not match, despite there being no PGM reading for the stain. And from the point the PGM did not show up (the first round of testing including the PGM, subtype and GLO), the expert starts making what seems a lot of questionable decisions.
By the time he is done with his final report from which he creates a chart for court, the PGM subtype is simply gone and the stain shows an ABO of O, but strangely only after initially being typed in as A and then very heavily written over to create the O. It took some doing, but what began as a spacy page of dubious results ends up with everything neatly cleaned up, and instead of the jury being told the truth which is two of seven enzymes were missing from the stain (actually four of nine if you look to those he added seemingly trying to improve his odds), they are only told that the GLO is missing, with the full set of PGM subtype numbers shown to be the PGM. However, the jury was not told that they are tested separately and according to the testimony of the expert from the O.J. case, the subtype cannot be taken as accurate if the PGM is missing.
In order to say that there was a match between the stain and victim‘s blood, the expert invented a chart that not only omitted the missing PGM and read PGM where it should have shown a subtype, but also just did not show the last two he added at all. However, from what I read, with the GLO, PGM and subtype making up the first round of testing and two unavailable, the stain was already proven too deteriorated to continue testing. Plus, even with all of the alterations the only difference in the stain and Eldon’s blood is the ever changing ABO reading (with us still not knowing Eldon’s actual ABO due to counsel‘s refusal to act) and that the stain reads 1+1- for a subtype and Eldon’s blood 1+1+.
What Ballard did was an absolute sham, with his also forgetting to take into account that the chances of a match, which good attorneys show to be a crock with enzyme testing to begin with, should have also been adjusted to include the fact that so many Native Americans are type O. Of course, the jury never realized that every person at the scene very likely could have been type O, and neither did they know that while Levy tells them there was only four people at the scene besides Eldon, Julie and Allison, there was actually many more, including Marcella’s cousin who is not shown to have been interviewed, though it seems that he was there when police arrived. At any rate, at one point the count is also given as eight without Eldon, Julie and Allison - likely all Indian and with others said to be wandering in and out. Yet, there is no further mention of any of anyone else at the scene during the investigation or at trial.
Without counsel, there has been no expert opinion concerning my conclusions of the enzyme testing, however, the testimony of the state’s expert witness who was far more qualified than Ballard, aas he presented evidence at the O.J. Simpson trial offers the following conclusion found within the trial transcripts athttp://walraven.org/simpson/ph_jul08.html
Q Mr. Matheson, how many PGM sub-type tests has 24 your laboratory performed?
25 A Well, I have specific figures on the number 26 that I have run. I determined that I've done 27 approximately a thousand items by the PGM sub-type 28 method.
0013 01 The only information I can supply you as far 02 as overall laboratory is since we started computerizing
03 our statistics, which was the first part of 1990, and
04 since then the laboratory as a whole has done a little
05 over 1800 items by that method.
06 Q Now, you indicated that you've done about 6500
07 ABO typing tests?
08 A Yes, that's correct.
09 Q But you've done less than a thousand PGM 10 sub-type tests? 11 A Slightly over a thousand, that's correct.
12 Q All right.
13 So you do a PGM sub-type in about one out of 14 six of the tests where you do an ABO type?
15 A That's approximately how the math works out, 16 yes.
17 Q How do you select which cases you're going to
18 do a PGM sub-type?
19 A Well, it depends an awful lot on how much
20 sample there is to begin with. One of the -- our
21 protocol has tended to be to do the ABO first, and then
22 go on to the electrophoresis system.
23 I mentioned earlier this group 1 system, which
24 includes PGM as one of the enzymes in it, that you
25 normally try to run first and determine what the PGM
26 type is. Not the sub-type.
27 And if you don't get a PGM type, then there's
28 no reason to expend further sample running the sub-type
01 system on it. So many times we don't run it.
02 Q Well, would you say then that there's some
03 sort of random selection of the PGM sub-types from the
04 larger group of ABO types that you do?
05 A You mean as far as the ones that appear in our
06 frequency charts or in the ones that are run?
07 Q What I'm saying is that the individual cases
08 where you have determined to run a PGM sub-type are not
09 a random sample of the ABO type tests that you've done.
10 A I'm not totally sure what you mean by
11 random. I do know that -- I mean, we follow certain
12 criteria as to whether we run a particular test, and it
13 depends on the quality of the sample.
The enzyme results were just one more fabrication added to a long list of misconduct that also left the following hidden from the jury:
- Levy was called in at the scene by Saldate. So, he was in control from the start, and he definitely had no case. Without targeting Eldon alone, the case went unsolved. However, Levy and Saldate are said to have had a sort of unholy alliance and the detective who helped Levy wrongfully convict Krone, Officer Gregory, was involved as well.
- Eldon was accused of aggravated robbery initially. The charge was dropped to attempted, because there was not any evidence of even an attempt to rob the victim. As you understand, for Levy to get the death penalty the attempted had to be at the same time as the murder for him to prove a felony in progress. Still, there were two trips into the alley where the murder occurred, so Levy got creative.
- To show motive and intent he begins by having witnesses say Eldon just walked up to and snatched a twelve-pack from the “four” people there on the first trip. The story Allison and Yazzie testified to is that Eldon took it from a female, Marcella. But Marcella says that she“asked Eldon if he wanted a beer” and then“gave” the it to him. She added Allison took the box and would not give it back.
Note: Eldon is completely unarmed (not even a small pocket knife) and this is a group of drunk Indians, with even the female he supposedly stole from having a record for aggravated assault, but according to Levy no one tried in anyway to stop him.
- And most notably - at a prior Motion For Remand hearing involving the co-defendant, Detective Chambers testified that“Eldon was arguing while Allison took the beer.”
- Allison is also said to have only been standing back watching at Eldon’s trial, but detective Chambers also insists that he was fully involved in everything at the other proceeding, though his and Saldate’s reports turned over to Eldon’s attorney also tell the contradictory fabrication.
- There was a white guy present who Eldon never denied fighting on the second trip and Marcella ( the only witness whose story never makes dramatic changes) went upstairs at the motel to call police,specifically because she said “They weren’t fighting. Eldon was beating the white guy up.” Others including Yazzie had fled the scene and she wanted the fight to stop.
- Marcella spoke to a reporter before detectives and told the reporter that Eldon was the one dead, believing that with him fighting the white guy the tables had somehow turned. Then, when she knew Eldon survived, she told Chambers the white guy was the victim.
- The white guy fled when Eldon did, but was found with the Yazzie and was in the police car with him and transported to the station. They interviewed the transient, however the white guy’s testimony that he fought Eldon would have prevented conviction. So, the exculpatory witness just disappeared from the detectives’ custody - seemingly without anyone so much as taking his name.
- It is notable that the victim used the alias of Yazzie. Plus, in a dying declaration, he said that the guy who killed was “tall and thin” and killed him over “some chickenshit deal.” Eldon was five ten and overweight at the time. Yazzie was closer to six foot and thinner and Allison was near to Eldon’s height and very thin.
- Then, to negate the testimony of the officer who took the dying declaration, Levy just had him say in the stand that he had simply understood nothing the victim said, though the report shows that he was careful to only record what he was certain of, as recording inaudible if her was not sure. Of course, if there was a tape of the interview, the defense never got it.
- Add to this that only seventeen years later, when I discovered it by accident, did Eldon know that he guy known to him and named throughout the proceedings as Patrick Delmar Allison is actually Ernie P. Allison. Plus, the victim who was listed as Jonathan Bahe was actually Backe. Backe’s name came out just before trial along with the fact that he had a felony record, though Levy never revealed what for. The seeming mistake by detectives and Levy concealed the truth about both of them, with the clerk’s office not showing anything for Patrick Delmar and my not being able to get back after discovering his actual name.
- Allison did not sign the plea and was not put on Levy’s witness list until the Friday before the trial that began on Tuesday morning. And Julie who contradicted his testimony was also protected from testimony by the plea that Allison signed the same day. So, she was suddenly dropped from the prosecution list, and the defense had never subpoenaed her expecting her to be a state’s witness. Then, with his only being interviewed for a few minutes by the defense before trial, on the stand Allison’s story changes to Eldon fought the white guy on the first trip to explain away Marcella‘s account, with Levy also impeaching her before the first question by having her say that she was scared, though he knew that it was Julie who had threatened Marcella as trying to save her brother not Eldon.
Note: Allison was a severely alcoholic and addicted, petite, cute, gay male in his early twenties who was thrown into the Phoenix jail where Levy kept him for six months to make sure he was in court and gave a “truthful” version of events.
- Eldon was supposedly convicted of attempted aggravated robbery on the second trip, but there is not a single statement that anything happened other than he immediately began to fight, with Marcella saying the white guy, but Allison and Yazzie saying he attacked the victim. There is not a single statement that Eldon ever said hand over your stuff, ever went for Bahe’s pockets or jacket - nothing.
In fact, Levy realizes in his closing that he did not support the charge after all of the lies, so he suddenly says, “That‘s it. I don’t know why I didn’t think of it before. The gas. He stole the gas.”
- Levy magically had his conviction, though what he proved was not that Eldon killed during the commission of a felony, but that Eldon was supposed to have grabbed a jug of gas in a rage and after forming the intent to kill, which Bedier also failed to point out on a claim of not enough evidence to support the charge of attempted robbery.
- Levy alleged that the victim was standing when Eldon“sprayed‘him, but his own medical examiner said that the burns indicated the victim was “lying and unconscious when doused.” Of course, Levy promptly stopped him from elaborating and the defense never asked him anything else about it.
- A picture of the victim’s shoes show that if the victim was standing and thoroughly sprayed as claimed, no gas hit his unburned shoes.
- the victim is said to have been behind a fenced enclosure trying to escape Eldon when sprayed, though he would have to have crawled along a narrow section of sidewalk and over Eldon’s feet to get there, with the story being that Eldon was standing over the victim beating him to a pulp and was enraged enough to kill when the victim got away.
- Levy alone gave a dimension of that area the victim was supposed to have stood in as “three by three feet” to assure the jury the victim could not move away, but photos show that the enclosure is the length of the bottom flight of a set of stairs at least six to eight feet and the width of a section of sidewalk at least four or five feet. Plus, the victim could have got under the stairs to further protect himself which the jury was never aware of. Thanks to Levy perjuring himself, the jury believed the guy was forced to just stand in a small spot and could not try to escape the spray of gas.
- the first officer on the scene says that there was burning on the sidewalk in front of the stairs where the victim was found, with the victims clothes and skin melted to that spot. The victim as the medical examiner noted was soaked on his frontal torso - not sprayed and the officer does not mention any sign of burning inside of the enclosure. Plus, there appears to be unburned paper behind the fencing, though the only photos provided to us are computer printouts on printing paper and not very good.
- the sole support of Allison’s story that the victim was inside the enclosure was Saldate as an alleged expert stating that there was fire inside the enclosure, though he had not arrived on the scene until long after the victim was moved. He supposedly based his presumptions on the “charring” along the sidewalk. However, he did so after the small area of sidewalk running from the stairs to a gate - eight foot or so had been thoroughly soaked with water and sprayed with an extinguisher to put the burning victim out and after at least two or three fire personnel and several officers had tramped the area and all of which was never pointed out to the jury.
- A fireman says that gas burns at “seven to nine hundred degrees.”Gas is extremely volatile, so this is involves spontaneous combustion, but according to Levy after being set ablaze, the victim got on his hands and knees to “crawl” out of the enclosure and be found in front of the stairs. He would have had to have done so though he would have immediately lost his sight, would have been panicked and breathing fire, and with the skin on his hands “drooping like gloves” as the first officer described. Plus, he would have either had to push up on a section of cyclone or drag it across his cooked back to get out what is described as and is shown to be “the small hole” at the bottom of the fencing.
The conclusion of an expert hired by FPD who now sits on the results as they have done in other cases denoting innocence is shown in the following from an email I by mere chance sent to the right expert. The reply is short, but enough to lend credibility to my clams that no one set fire to gasoline as Levy describes and that a standing victim dd not come out of the laze with unburned shoes.
From: Kricket Schurz
Sent: Thursday, November 11, 2010 12:53 AM
To: "David M. Smith"
Subject: - this is my question
I am looking at an old murder case where the prosecutor asserted that after sloshing a gallon of gas on a man in what was a fairly enclosed space, the killer “immediately” bent over and set as lighter to a puddle of gas. It was Phoenix and the wind was sure to have been blowing, but the area was in a corner at the back of a motel, so also somewhat sheltered.
I have used small amounts of gas for burning and know the area was enclosed enough that not all of the vapors could have escaped. However, the alleged killer was supposedly bent over no farther away than three feet of where the gas was dumped and had long hair, but still showed no signs of singeing or burning that were recorded by detectives.
I am not asking for an exact conclusion. I merely need to know if I am crazy to think that it would have been virtually impossible to stand so close to gasoline fumes from a gallon of gas, immediately use a lighter to ignite it and not show any signs of injury. I need an opinion other than my own.
RE: - this is my question
Thursday, November 11, 2010 9:06 PM
"David M. Smith"
I believe that I am aware of this case and have informed the Federal Public Defenders office of that reasonable possibility as well as lack of damage to his shoes.
David M. Smith IAAI-CFI, R.F.P.
Associated Fire Consultants, Inc.
Seven Bisbee Rd., Suite K
Bisbee, Arizona 85603
Even stopping there, there is more. There was simply no excuse for Susee loosing this case and that Bedier seems to have intentionally lost in district court to cover her own theft of tax-payer funds is a greater injustice. In fact, to illustrate just how pathetic her efforts were, on a claim of prosecutorial misconduct, Bedier’s strongest evidence was the mere statement that Levy referred to the “Salem Witch Trials.”
However, after Baich from FPD traveled to Texas to meet me, immediately lied, decided that I was no threat and made it clear there would be no chance to claim innocence, I completely lost it and Eldon at the end of the year shut down on me and has since just waited to die.
At this point, the AEDPA is a major obstacle, with Eldon in the courts’ eyes having had two decades to try to pursue innocence. Thus, I am hoping to find an attorney who will help me to establish that Eldon has in reality had no chance at all. Among those claims that Bedier lost was IAC on mitigation, though Eldon tested 70 on an I.Q. test the psychologist noted cultural differences and Eldon reads and writes at the same level as my father and most other men I have known who had little education though that is certainly not a level to allow him to understand legal jargon and he is slow with concepts such as figuring out case law, how to apply evidence to his appellate claims, etc. Plus, he lived a horrid past whose surface Bedier only began to touch by the inclusion of a few statements from family members who are not likely to admit the extent of their own faults.
In fact, those same family members told me the night before Eldon and I married that they expected him to sit in his cell and die if it would take any publicity to try and free him. At any rate, Eldon had never questioned his attorneys before I came along, with their being more than one reason. First, he told me and I know that he was truthful that he never saw any reason to do more than just wait to die before I found him. There was no life for him to return to if he left prison. He was even ostracized from the tribe because of his family. He sat there completely alone, actually wanting it to just end and so fearful of confronting the system and his own attorneys that I would bring tears to his eyes as trying to convince him that he had to fight for himself.
That fear was another strong motivator, with Eldon who is an Indian and not taught as I was that we even have the right to fight. All he had ever known as a child was that tribal members did as some white government appointed representative told them to do in all matters. By thirteen he was institutionalized and allowed to make no decisions at all. In his mind, Indians have no rights, no voice and certainly do not expect just treatment, as Arizona‘s recent racist measures continue to affirm. Many Native Americans are just as easily targeted under the new legislation against Mexican Americans as the Mexicans themselves, as those in control knew would be the case and no less than all those with darker skin in the desert have expected for centuries.
Eldon is from a culture as different from the mainstream as night and day, severely undereducated, severely institutionalized starting at the age of twelve and by the time I came along had spent far too many years in a seclusion cell. Without attorneys explaining the process to him, he never so much as clearly understood the appellate process, and had no clue as to investigatory or prosecutorial procedures or ethical principles to understand how much was done to violate his rights. He had never so much as been provided a copy of his case record or a single page from his appeals and was convinced that even if his attorneys were doing nothing that if he confronted them, they would do less. As for going to the courts, more than a hundred years of court decisions confirmed for him that he would not be listened to and could very likely make his situation far worse if he approached the right racist judge. Eldon was convinced that he had no recourse whatsoever. He burst into tears when I dared to insist that he had to tell he district judge what was happening.
He had never once defended himself against any injustice, until he fought with me. He had never saw himself as someone worthy of the chance, before I convinced him that he deserved more than what has been done to him. Eldon in his own mind was the nobody that his family, the state, wardens and guards had told him for a lifetime that he would always be.
Having never known any compassion or caring since the death of his grandparents, he also sat with silent tears streaming down his face throughout our first visit, because a gimped up gal cared enough to travel thirteen hundred miles by Greyhound in order to tell him that she wanted to marry and try to free him. Eldon had been utterly hopeless and helpless until I gave him the chance to stand up and say that he was innocent, but I did it only to see him destroyed by Bedier‘s trickery.
There is no describing what we went through. We fought a bloody, brutal war and no matter how many times we were knocked down, we just kept getting up and trying again. There are at least five or six hundred emails still in my box - if not more and with those besides the letters I sent as we tried to find someone to help us get rid of Bedier before it was too late in the district court. I kept trying after FPD took over, but they still dismissed Schehr at NAU and refused to even meet with Dow. In fact, with Eldon and I expecting my meeting with FPD to take place in Houston at Dow’s office, Baich instead told me that Dow was out of town when he came to Texas. However, Dow later let me know was not the case. FPD lied to us and simply would not allow us to try to prove innocence which protected Bedier as sailing Eldon down the river.
By the time, I was fully embroiled in the legal battle, I was dealing with my sons, thirteen and fifteen who had recently lost their Dad when he got messed up and ran a stop sign, we had been wiped out here by Hurricane Rita and I relocated to the desert believing that if I was there Eldon and I could turn the case around. Instead, I was suddenly living a nightmare, with my youngest using drugs and in trouble. I could not even chance the trip from Florence where I lived near the unit to Phoenix to try to locate paperwork, because if I was later than three o‘clock when my sons got out of school, the local cops were waiting on my doorstep due to the youngest getting into something again. Bedier would do nothing despite admitting that she was lacking a lot of paperwork that she should have long before procured and we were certain that she was intentionally trying to loose the case.
Eldon was watching my severe stress turn to rage, long before I left to return to Texas at the end of 2006. I was getting sick physically and mentally and he worried constantly for what was happening to me. Then, after, Baich lied to me in early 2008, with Eldon’s appellate case for all practical purposes over, I went ballistic and Eldon just quit. Not only was my anger more than he could stand, but he also knew that if I kept fighting the mess, my health would only get worse. Since, the man who had been alone for so long and who had been so transformed with me in his life that even the guards at the unit were happy for him just shut down on me and went to telling friends that he has to just get his head right and wait. He has also said that he wants me to quit trying and take care of myself.
I know that Eldon believed he was protecting me and that like everyone else I would just forget him and go on with my life, but it has not been that way. I was just left with a more hopeless cause, but I have never gave up or gave in to the idea that to protect Bedier Eldon will be allowed to die with no one ever trying to help us.
Eldon won’t fight for himself, but the mitigation has been shoved down his throat after his repeatedly telling Bedier and FPD that he did not want it used, so I am hoping to use it to prove that it is not reasonable to hold a client to the AEDPA restrictions, when his attorneys have not followed a single instruction that he has given them, he was denied benefit of probono counsel who would have pursued a claim of innocence including DNA and other evidence, and with his current state employed attorneys choosing to protect a fellow attorney and pal over his life. FPD actually went so far as to assign both Native Americans on the row at the time, Eldon and Sean Runningeagle, who also claims innocence, to the most inexperienced lawyer in the office. She was barely out of law school and co-counsel was second from the bottom of the list which tells you their opinion of an innocent client.
Eldon by that point was certainly not able to defend himself mentally or emotionally, especially after the round with Bedier which left us just as she had promised with the case deliberately lost. Still, I was capable of fighting for him and had. I was smart enough that Eldon was accepted without even the normal review of the case by two innocence projects and I had the information from the record to have won at least half of the appellate claims with minimal investigation, but was still told I had no voice in my husband’s fate by attorneys who continually declared him brain-dead. When the fight began to be too much for him to take, he had gave me the POA believing that I could just tell the attorneys what to do and he would not have to face a fight. Instead, he was told that his wife nor anyone else could have any say if the lawyer did not allow it.
Now, I want the opt-in state that supposedly assures all death row clients have adequate representation to explain how Bedier who was not even an attorney when she asked Eldon to turn the case over to her ever became sole counsel to start with and why someone appointed to an under-funded state office that will certainly not pursue innocence for capital defendants should die without the chance to prove he killed no one. Eldon has had eight attorneys and one good attorney could prove with minimal effort that he has still been effectively denied counsel in every case but Bellanger who abandoned him to Bedier knowing that she was not qualified. Among the others one continued to hold the case when terminally ill and his wife later destroyed much of the file to cover the fact that he collected from the courts without doing any work.
FPD would certainly say as Bedier that Eldon has agreed to allow them to solely pursue mitigation, but he has never been allowed a voice in anything. Bedier’s trick was subtle or even outright threats if he tried to go against her. There was one day that she upset him so bad that he was visibly shaking in visitation a couple of days afterwards as he told me what had transpired. The promise was fight her and regret it, though we knew that we were damned either way. FPD just established from day one that he might as well just take what he got, because they were in control. Yet, Eldon repeatedly told me that he would rather face execution than spend another twenty years in a cell which is not so crazy coming from someone who has been inside institutions for almost the entirety of the past thirty-five years. Looking at a chance for a life outside of hell with me, he also told Robert Schehr the same when the project became involved and pointed out to Bedier that he had never wanted the mitigation used and certainly wanted it left alone after he was warned that it could hurt a claim of innocence.
She stalled Schehr in every way possible and used it anyway, and Baich was just clearly amused, when I pointed out that Eldon was innocent and we wanted to prove it. The response he had when I talked of the evidence that could be used to help Eldon was “If I find all of this what do you expect me to do with it.” He then made it clear that their only goal was to pursue the mitigation issue without ever once considering what Bedier had pulled as a possible means of salvaging Eldon‘s case, though they had not even had the case file long enough to review it. Note: Bedier chose FPD to replace her, but only after all was lost. She had previously referred to former second counsel Harms as a dear friend one day in conversation, and Baich had long before that time defended her actions when I contacted him.
There is no question that what has been done is not just wrong, Eldon’s right to appellate review has been consistently denied him and he is near to dying as a result. Thus, I am left to ask for assistance to somehow challenge what has been done to a man who was never capable of fighting back in the mainstream. I cannot simply allow Eldon Michael to die labeled guilty for a crime that he did not commit and treated as less than human and pray to find someone who not only agrees, but who would be willing to try to set precedent in what is an unbelievable case of injustice.