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Death By Lethal Subjection Contents Death By Lethal Subjection Obstruction Of Justice Criminal File 1 Criminal File 2 Criminal File 3 Criminal File 4 Criminal File 5 Criminal File 6
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CRIMINAL FILE 3 FACTS IN SUPPORT OF ISSUES PRESENTED: (CONTINUED) GROUND ONE FACTS (CONTINUED) (xii) Counsel misled and misrepresented to Sholes that he had no voluntary intoxication defense under the law to the charged offenses, when this was not true under the then-existing and applicable law, and when counsel actually had been threatened by the Office of the Indiana Attorney General that he should not under any circumstances pursue the intoxication defense on behalf of Sholes. Moreover, while Sholes' criminal matter pended, the Indiana General Assembly through Senate Bill 244, introduced and passed legislation to abrogate Voluntary Intoxication as a defense. House Representative William J. Ruppel, who represents constituents in the city and county of the criminal offense, was one of the sponsors of SB 244. (xiii) Counsel failed to obtain a second psychiatric evaluation report on Sholes, or to pursue a defense of psychiatric impairment or voluntary intoxication with diminished capacity, despite knowing of Sholes' past psychiatric history, extreme intoxication at the time of the offense, and despite the favorable first psychiatric evaluation report. Counsel had previously raised these defenses in a written notice to the court, but then never pursued them. (xiv) Counsel, in his notice of defense to the court, deliberately worded and mischaracterized Sholes' defense as a sort of "temporary insanity", or "substance-induced psychotic disorder", or "dissociate trance disorder." yet, counsel also indicated in the same documents that Sholes was competent to stand trial and that no competency hearing was sought. Thus, the defenses that counsel raised were not prepared-for, and were preempted and impossible even from the very onset of the defense effort, causing grave prejudice to Sholes. After presenting the above defenses, counsel did nothing whatsoever to pursue these defenses. Additionally, counsel in his notice of defense, deliberately worded and mischaracterized Sholes' defense as a sort of "temporary insanity" and in such a way as to increase the likelihood of state-appointed forensic experts or psychiatric evaluators ruling out or finding unlikely any defense of progressive mental collapse or intoxication causing diminished capacity. Counsel's notice of defense raising "temporary insanity" indicated that only two psychiatric conditions were being looked at: substance-induced psychotic behavior, and dissociate trance disorder. Counsel thus rejected the only viable defense, which was extreme intoxication leading to diminished capacity and lack of ability to intend and knowingly cause the results of his actions. Indeed, the "temporary insanity" defense filed in court effectively prevented Sholes from pursuing the intoxication with diminished capacity defense, since the time limits to raise such had thereafter expired. Clearly, there is no legal strategy for rejecting an intoxication defense, given the overwhelming scientific and material evidence supporting such, whereby Sholes could remain silent (avoid probing forensic interviews) and let the evidence speak for itself, and which placed the burden on the State to prove Sholes' intoxication invalid, in favor of pursuing a temporary insanity defense, given the Notice of Defense's deliberate wording that directed the State's forensic interviewing focus, whereby Sholes could no remain silent and let the evidence speak for itself, and which placed the burden on Sholes to prove he was temporarily insane. Furthermore, counsel, in preparation for the State forensic interviews, provided Sholes with State discovery documents, including crime scene diagrams, witness statements, historical and chronological information, and newspaper articles, in addition to counsel's planted memories (see, Ground One Facts, (iii), above) to "refresh your memory" and effectively assist the State's efforts to rule out the proposed defenses, get Sholes to "remember' and tell more than he actually knew, and coerce a plea agreement; thereby, prohibiting Sholes from going to trial employing the Voluntary Intoxication defense and a possible acquittal. Surely Sholes was prejudiced by counsel's outrageous behavior and unethical conduct, when counsel, in effect, became Sholes' adversary. Counsel failed to file in time with the court Sholes' true defense and the only factually and legally rational defense Sholes could raise: intoxication with diminished capacity, resulting in lack of intent to knowingly cause the results of the actions. In his notice of defense, counsel mistakenly and prejudicially set forth and limited Sholes' defenses to a form of "temporary insanity" or "substance-induced psychotic disorder" or "dissociate trance disorder." Thereafter, time had run out to pursue and present alternative defenses, including the defense of diminished capacity due to intoxication. Counsel's actions did not even make sense, since in the same document he filed, he expressly indicated Sholes was competent and that no competency hearing was needed. (xv) Counsel failed to investigate and pursue a defense of voluntary intoxication even though Sholes was medically comatose after the incidents charged, due to extreme alcohol and drug intoxication. The August 6, 1996 paramedic reports and Wabash hospital emergency room reports show Sholes had lapsed into an drug/alcohol coma minutes after the criminal offense. Further, these reports scientifically verify Sholes' physiological condition, which included: .232 blood alcohol level (serum); positive drug screen for Darvon (actually, Klonopin), a sedative, and Pseudoephedrine (Sudafed); gross respiratory depression, 4-10 breathes per minute; fixed and constricted pupils; elevated carbon dioxide blood gas levels; lowered oxygen blood gas levels; very high (sinus-tacky) heartbeat rhythm, while unconscious; elevated blood-pressure; and unresponsive unconsciousness that lasted several hours, all classic symptoms of drug/alcohol overdose. Counsel capitulated this defense after the Indiana Attorney General office threatened him if he pursued it. In part, counsel failed to investigate and look into the malpractice-level actions of Sholes' private psychiatrist, Dr. Bonnano, in improperly diagnosing Sholes' psychiatric condition, and prescribing Sholes high-addictive amphetamines during the thirteen months leading up to the offense, all of which would have supported a defense of voluntary or involuntary "intoxication with diminished capacity" and a progressive mental collapse. Counsel further failed to investigate the chemical makeup of items found at the scene such as Klonopin (1mg. tablets), a strong sedative, and syringe residue found at the scene (which would have shown Sholes had been injecting amphetamines prior to the offense), and failed to investigate the facts surrounding why Sholes would have been, at the time of the offense, on the roads towing a boat that was both inoperable and non-seaworthy, if he had been in any sort of coherent mental state. (xvi) Counsel erred in abandoning demonstrated and clearly called for defenses such as progressive mental collapse or intoxication with diminished capacity, and instead proceeding with unproductive and misguided efforts to use mitigation investigators and experts in an effort only to coerce a plea agreement. Counsel made no effort to prepare rational defenses for trial, but proceeded only towards preparing mitigation (which he then failed utterly to use, even in regard to the plea and sentencing) and negotiating a plea, completely abandoning Sholes' defenses and totally disregarding that Sholes hired him to prepare and present these defenses in trial. (xvii) Counsel, along with his mitigation investigator and expert, engaged in a deliberate attempt to keep Sholes distracted and placated during the course of the proceedings, by having mitigation investigator Stacia Salazar-Rutherford coddle and counsel him, even while counsel failed utterly to get Sholes needed psychiatric evaluation, treatment, and drug prescriptions for severe depression and suicidal ideation. Counsel made no effort to assist Sholes in preparing for trial or getting him in any sort of mental shape for trial, but attempting only to "baby-sit" him with the mitigation investigator. Ironically, counsel then used zero mitigation evidence despite the repeated counseling/information gathering his mitigation investigator did for Sholes over the months. (xviii) Counsel deliberately ran Sholes in circles and down side paths, to misrepresent to him that certain defenses were not viable or available to him, to dissuade and talk him out of any efforts to provide realistic defenses available to him, and to discourage, dishearten, exhaust, and coerce Sholes to such an extent that he finally would accept any plea agreement, however ridiculous, that counsel could negotiate. (See generally, February 12, 1997 letter to Paula Sites from counsel). Counsel engaged in an effort to use-up Sholes' time and fee monies, until there was nothing left for Sholes to do but accept any plea offer. Counsel simply never intended to proceed to trial or to seriously investigate and present Sholes' best defenses of intoxication with diminished capacity or progressive mental collapse. (xix) Counsel had an ongoing conflict of interest and ethical dilemma, and acted in ways harmful and prejudicial to Sholes, due to the fact that counsel was also involved in a civil suit filed by the victims or victims' families, seeking money damages from Sholes or from his insurance carriers. Even while representing Sholes in the criminal matter, counsel was already developing a strategy wherein Sholes would plead to the criminal offenses, which plea bargain (as opposed to trial) conviction would then be used to facilitate a resolution of the civil suit actions arising out of the criminal offenses committed by Sholes. Counsel sought to kill two birds with one stone. First, counsel sought to dispose of Sholes' criminal matter through plea agreement; thereby, assuring a conviction and denying Sholes the opportunity to use and possibly prevail with voluntary intoxication defense at trial, while appeasing the Indiana Attorney General, who told him not to pursue a voluntary intoxication defense. Second, counsel sought to use the evidence and facts of the criminal matter that support an intoxication defense in the related civil matter. Additionally, counsel intended to argue Sholes suffered a progressive mental collapse from Dr. Bonnano's malpractice in prescribing Sholes highly addictive medication for thirteen months prior to the criminal offense, which culminated in Sholes' gross intoxication, diminished capacity, and coma, on the day in question, and the inability to appreciate the wrongfulness of his actions. Further, counsel intended to argue that plea bargains are highly motivated in death penalty cases; thus, collateral estoppel on the issue of intent should not apply, making the criminal offenses an accident as opposed to an intentional act. Counsel's strategy was to let it be shown there that Sholes did commit the killings and injury, yet that these would arguably not be "intentional acts" within the terms of Sholes' insurance policy, thereby making that company liable for damages. Sholes' counsel stood to gain himself or for other persons in regard to these civil matters by Sholes being convicted, and therefore never had any intention of actually trying to avoid Sholes' conviction or pursue to trial using voluntary intoxication defense, with proof he had diminished capacity at the time of the offenses. Counsel could not have represented interests involved in the civil matters while also representing Sholes in the criminal proceeding in a fair, unbiased, non-prejudicial manner. Counsel used his knowledge gained from representing Sholes criminally, along with the scientific evidence he failed to investigate and pursue in Sholes' criminal matter (see, Ground One Facts, (xv), above), in his work involving the civil matter actions against Sholes. Counsel in fact was introducing documents in the related civil matter, which make it plain that he was attempting to establish Sholes' guilt (even though he was supposed to be representing him), yet argue the killings were not "intentional" and were "accidental' within the meanings of Sholes' home and auto insurance coverage, since plea agreements are highly motivated in death penalty cases. He was thus working at cross-purposes to Sholes' disadvantage; actually interested in obtaining a conviction of Sholes, but in such a way he could phrase arguments in the civil matter to make the insurer still pay. (See Answer of David and Christine Sholes, April 4, 1997, at Second Answer of David and Christine Sholes to Amended Complaint, October 30, 1997). Worse yet, counsel was admitting Sholes' responsibility for the deaths and phrasing his intent and state of mind, without Sholes' consent or knowledge. (xx) Counsel acted in a way prejudicial to Sholes when he simply had Sholes plead guilty in order to appease public sentiment against Sholes, and to avoid counsel from appearing to be actually trying to defend Sholes in a highly publicized trial. Counsel was more interested in preserving his own good standing and reputation in the community and in doing what the public was demanding to be done in the case, that in fairly and competently representing the true best interests of his client. (xxi) Counsel used pressure and coercion and misrepresentation upon Sholes to get him to plea guilty, so as to avoid any possibility of the public hearing about controversial and scandalous prior events involving Deputy Prosecutor Randy Johnson, and former Sheriff and Mayor of Marion, Ron Mowery. When Sholes divulged these events and their implications to his counsel, counsel thereafter made no effort to pursue trial defense and bring the matter to trial, as counsel feared what would happen if these scandalous matters came to light at a trial, or if the prior offense of Sholes was examined as part of the sentence aggravation or mitigation. Both Special Judge Thomas R. Hunt and defense counsel Lewis knew these men personally and worked with them for many years as their careers developed. Defense counsel had practiced law in Judge Hunt's court for the past twenty-five years. (xxii) Counsel deliberately hid and withheld from defense expert witness, Dr. Maickel, who was ostensibly hired to conduct an informal toxicological evaluation of the interaction of the drugs and alcohol Sholes had ingested in conjunction with Sholes' mental state, the August 6, 1996 paramedic reports and Wabash Hospital emergency room reports show Sholes had lapsed into an drug/alcohol coma minutes after the criminal offense. Counsel excluded these reports that scientifically verify Sholes' physiological condition, which included: .232 blood alcohol level (serum); positive drug screen for Darvon (actually, Klonopin), a sedative, and Pseudoephedrine (Sudafed); gross respiratory depression, 4-10 breathes per minute; fixed and constricted pupils; elevated carbon dioxide blood gas levels; lowered oxygen blood gas levels; very high (sinus-tacky) heartbeat rhythm, while unconscious; elevated blood-pressure; and unresponsive unconsciousness that lasted several hours, all classic symptoms of drug/alcohol overdose. This eliminated any possibility that Dr. Maickel could rationally assess or support a voluntary intoxication, with diminished capacity, defense or make any relevant findings as to the pharmacological effects of alcohol and the described drugs. (PC Hearing Transcript, pp. 211(A) through 211(B), letter to Dr. Roger Maickel). (xxiii) Counsel failed and refused; despite Sholes' repeated requests and provision of funds needed to do so, to have Sholes examined by a defense psychiatrist, in order to establish a defense that Sholes could not have knowingly or intentionally committed the offenses. (xxiv) Counsel deliberately engaged in a strategy designed to speedily resolve Sholes' criminal matter in such a way that counsel then would be assisted and benefit himself in a civil suit action by the victims or victim's families. He engaged in actions highly prejudicial to the interests of his client, Sholes, but which would strengthen his strategy and position in the related civil matter. Counsel failed and refused to investigate and pursue all aspects of a defense of intoxication (involuntary or voluntary) resulting in diminished capacity, and to investigate and pursue that Sholes' psychiatrist (Dr. Bonnano) had engaged in gross negligence and malpractice in misdiagnosing Sholes' psychiatric problems and prescribing him highly-addictive amphetamines despite knowing Sholes' history of chronic alcohol and drug abuse. These would be highly relevant and meritorious defenses for Sholes in the criminal matter, and if zealously presented at a trial on the criminal matter, they might have acquitted Sholes. (see Ground One Facts (xix), above). Counsel also knew a convicted murderer has no claim to insurance arising out of the deaths he caused. Counsel did not want any mitigation evidence as to Sholes' actual mental and physical condition at the time of the criminal offense to be put into the record, as he feared such might influence the court or the jury to not actually convict Sholes or not actually accept the plea agreement he had negotiated to get Sholes convicted in a way that would effectively keep out of evidence all the same mitigation evidence he then intended to turn around and use to his benefit in the civil matter. Counsel also had a strategy to keep the criminal matter from going to trial because he could then argue and show plea agreements in death penalty cases are likely highly-motivated, therefore the plea agreement and conviction should not be admissible in the anticipated declaratory judgment action in the civil suits. Had counsel took Sholes' criminal matter to trial; this argument would have been lost. Also, Lewis knew that in the declaratory judgment action he could, with the very same defenses he denied Sholes, prepare a very good offense to show Sholes' behavior on the date of the killings and injury, was the result of Dr. Bonnano's malpractice and a progressive degeneration of Sholes' mental condition resulting in Sholes' mental collapse and grossly intoxicated unpredictable behavior and an inability to appreciate the wrongfulness of his actions. He could therefore argue or demonstrate that Sholes' actions were not an "intentional act" as defined in the exclusion section of Sholes' insurance policy with United Farm Mutual Insurance Company, making said home and auto insurance company liable for damages. For additional details of these facts and issues see Affidavit of David T. Sholes. (xxv) Counsel failed to do anything about the fact that his secretary had a personal friendship with one of the victim's family members, including not accepting or removing himself from the case. (xxvi) Counsel rejected the efforts and attempts by Donald Osborne, Jr., Sholes' former therapist at Grant-Blackford Mental Health Center, and Sholes' former addictions counseling professor at Indiana Wesleyan University, to assist the defense. These individuals could have provided to the defense evidence collaborating medical malpractice by Dr. Bonnano, Sholes' psychiatrist who prescribed to Sholes Ritalin, Dexedrine, and Prozac, despite his substance abuse history, and the affect and relationship that said malpractice had upon Sholes' mental state leading up to and including the events occurring on August 6, 1996. This was part and parcel of counsel's efforts set forth above in Ground One Facts, (xix) and (xxiv), to fail to develop a defense on this basis in the criminal proceeding, while planning to do so later in the related civil matter in which he was involved, too. (See Affidavit of David T. Sholes). (xxvii) Counsel deliberately used emotional and psychological coercion upon Sholes' wife, and played upon her fears and ignorance of what was going on regarding the case, to get her to influence and manipulate Sholes into taking the guilty plea agreement. Counsel misrepresented to Sholes' wife and used to get her cooperation to get Sholes to accept the plea, the psychological ploy that the guilty plea was supposedly the only way to spare Sholes the death penalty, that three people were dead and that the surviving victim would testify against Sholes at trial, etc. Counsel used Sholes' wife to persuade Sholes to express remorse outwardly and personally to the court. (xxviii) Counsel failed to seek any sort of media "gag order", thus allowing officers of the court to inflame and incite public outrage against Sholes regarding his case. As a result, the prosecutor used the media and newspapers on a local and state level, to plead to the public and talk about the case, thereby prejudicing Sholes' chance of getting a fair, unbiased trial. |