Danny Hicks, ADC #244610
ASPC-Lewis /Eagle Point Unit 5D3
P.O. Box 3500
Buckeye, AZ 85326
June 24, 2010
BY CERTIFIED MAIL & EMAIL & FAX
To:
Michael A. Villarreal
550 South Main Street
P.O. Box 925
Florence, AZ 85232
RE: Feedback on draft of Rule 32 petition you emailed to me on June 23, 2010 at 17:33
PLEASE BRING COPIES TO THE MEETING IN BUCKEYE THIS MORNING
Mr. Villarreal:
Please... PRINT 2 copies and bring them to your meeting with Danny this morning, 6/23/2010 @ 9:00am
I've read the new material you've written - 2 1/2-page affidavit. I'm glad that you've finally found some value in analyzing the victim's motives in the light of the petition. Your draft of the petition gives me a glimpse into your feelings about the case. There's evidence to dissect every element of her statement made at the sentencing hearing - the false CAD Call on 12/25/08 and statements from the neighbors regarding the violation of the order of protection, pictures of her bedroom door sans any sign of a deadbolt, evidence showing Gaertner to be responsible for spinning that tale about the tunnel rats about which Wirch apparently wrote a letter to the judge (to which we are entitled a copy, BTW). This is in addition to Wirch's statements at the release hearing and found in the margin of her written statement of 12/14/2008.
The judge did say that she expected the discrepancies regarding Wirch's statements of 2/9/09 would be ferreted out, so as I brought this up with you in our last phone conversation, I'd mention it again considering this new light:
Why not subpoena Danny's cell phone records on the night of the incident? Those records will ferret out the truth behind that nagging voicemail being wielded by Wirch under Kate's control as a means to establish her fear based on Danny's premeditation. Kate's disclosed that voicemail twice now -neither time has she come forth with the call-time that would establish the voicemail's creation happening AFTER Danny left the house. Get rid of that non-evidence before a new sentencing hearing.
Danny's cell phone # on 12/14/08: 480-326-3224, Theresa's: 480-208-2979, Danny made the call around 9:47pm.
You'll want to subpoena the IMEI number for the handset as well so that we can match it to the handset found in Danny's Jeep that evening.
ASPC-Lewis /Eagle Point Unit 5D3
P.O. Box 3500
Buckeye, AZ 85326
June 24, 2010
BY CERTIFIED MAIL & EMAIL & FAX
To:
Michael A. Villarreal
550 South Main Street
P.O. Box 925
Florence, AZ 85232
RE: Feedback on draft of Rule 32 petition you emailed to me on June 23, 2010 at 17:33
PLEASE BRING COPIES TO THE MEETING IN BUCKEYE THIS MORNING
Mr. Villarreal:
Please... PRINT 2 copies and bring them to your meeting with Danny this morning, 6/23/2010 @ 9:00am
I've read the new material you've written - 2 1/2-page affidavit. I'm glad that you've finally found some value in analyzing the victim's motives in the light of the petition. Your draft of the petition gives me a glimpse into your feelings about the case. There's evidence to dissect every element of her statement made at the sentencing hearing - the false CAD Call on 12/25/08 and statements from the neighbors regarding the violation of the order of protection, pictures of her bedroom door sans any sign of a deadbolt, evidence showing Gaertner to be responsible for spinning that tale about the tunnel rats about which Wirch apparently wrote a letter to the judge (to which we are entitled a copy, BTW). This is in addition to Wirch's statements at the release hearing and found in the margin of her written statement of 12/14/2008.
The judge did say that she expected the discrepancies regarding Wirch's statements of 2/9/09 would be ferreted out, so as I brought this up with you in our last phone conversation, I'd mention it again considering this new light:
Why not subpoena Danny's cell phone records on the night of the incident? Those records will ferret out the truth behind that nagging voicemail being wielded by Wirch under Kate's control as a means to establish her fear based on Danny's premeditation. Kate's disclosed that voicemail twice now -neither time has she come forth with the call-time that would establish the voicemail's creation happening AFTER Danny left the house. Get rid of that non-evidence before a new sentencing hearing.
Danny's cell phone # on 12/14/08: 480-326-3224, Theresa's: 480-208-2979, Danny made the call around 9:47pm.
You'll want to subpoena the IMEI number for the handset as well so that we can match it to the handset found in Danny's Jeep that evening.
Custodian of Records
T-Mobile Subpoena Compliance
4 Sylvan Way
Parsippany NJ 07054
(f) 973.292.8697
973.292.8911
I've had your legal theory for a few weeks now. I have the version where you've filled out the form. Danny mailed me the copy you gave him on April 11th. One "theory" stands out, and, as it happens to be the essence of this case, you might consider adding it to your legal theory:
ER 3.3. Candor Toward the Tribunal
3 (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
As you know, this has been our standard protocol ever since it became apparent that every document in Danny's possession would be taken from him whenever they moved him. They actually took everything - his blank paper, pencil, stamps and even his high-blood pressure medication, which is extremely dangerous to suddenly stop taking all-together.
Our solution as far as the case file documents: mail everything to us as fast as possible. And it's worked. This leads to my first thoughts...
I) The original Juanita Morley extortion letter, the original property deeding documents and all of the original extortion documents from Koniuszy (and all post-marked envelopes) are all tucked safely away up North.
I certainly don't know the rules of evidence in Arizona as well as you do. So how does this work? I understand that the court needs to see the originals, right? Please advise.
I pray that you didn't wait until now to advise that you'll need the originals in Florence by Monday. My one and only brother is getting married only hours from the time you read this. Not in Hawaii, like your son's wedding, but Beverly Hills isn't too bad.
II) If I had any idea that you were writing the affidavit as you've done with this first draft, I would have urged you to talk to Danny FIRST.
On or about July 13th - the ONLY time Gaertner spoke with Danny, between 6/10, the Change of Plea Hearing and 7/17, the Sentencing Hearing - Gaertner failed to schedule his legal meeting with PCSO and showed up late for regular visitors. Result: the guards would not let him meet with Danny face-to-face, nor let him give Danny a copy of the presentence report and probation department disposition. They limited him to a 10-15 minute video-conference (check with Danny regarding how long.)
Attempts to contact Gaertner by email, fax, and letter and through his secretary regarding the extortion happened every day since it started on 6/17/09 with Juanita Morley's visit to Globe jail. (Documentation of this effort is available if you want it.) Gaertner never once responded.
Also, keep in mind that Gaertner received 59 pages of background information on April 24, 2009 detailing what he was facing in Wirth, Morley and Lanpher. Wirth's forgery of a Quit Claim Deed that started this whole thing in motion is the most pertinent document, recorded in your county's official records. Ask Danny about it. It's at least as valuable as the extortion documents to your argument. This information can be found in the copy of the case file you received from Mary Wisdom at the end of December.
Danny was finally able to bring up the extortion with Gaertner on July 13th. Gaertner advised Danny how to remedy it.
Our solution as far as the case file documents: mail everything to us as fast as possible. And it's worked. This leads to my first thoughts...
I) The original Juanita Morley extortion letter, the original property deeding documents and all of the original extortion documents from Koniuszy (and all post-marked envelopes) are all tucked safely away up North.
I certainly don't know the rules of evidence in Arizona as well as you do. So how does this work? I understand that the court needs to see the originals, right? Please advise.
I pray that you didn't wait until now to advise that you'll need the originals in Florence by Monday. My one and only brother is getting married only hours from the time you read this. Not in Hawaii, like your son's wedding, but Beverly Hills isn't too bad.
II) If I had any idea that you were writing the affidavit as you've done with this first draft, I would have urged you to talk to Danny FIRST.
On or about July 13th - the ONLY time Gaertner spoke with Danny, between 6/10, the Change of Plea Hearing and 7/17, the Sentencing Hearing - Gaertner failed to schedule his legal meeting with PCSO and showed up late for regular visitors. Result: the guards would not let him meet with Danny face-to-face, nor let him give Danny a copy of the presentence report and probation department disposition. They limited him to a 10-15 minute video-conference (check with Danny regarding how long.)
Attempts to contact Gaertner by email, fax, and letter and through his secretary regarding the extortion happened every day since it started on 6/17/09 with Juanita Morley's visit to Globe jail. (Documentation of this effort is available if you want it.) Gaertner never once responded.
Also, keep in mind that Gaertner received 59 pages of background information on April 24, 2009 detailing what he was facing in Wirth, Morley and Lanpher. Wirth's forgery of a Quit Claim Deed that started this whole thing in motion is the most pertinent document, recorded in your county's official records. Ask Danny about it. It's at least as valuable as the extortion documents to your argument. This information can be found in the copy of the case file you received from Mary Wisdom at the end of December.
Danny was finally able to bring up the extortion with Gaertner on July 13th. Gaertner advised Danny how to remedy it.
• Ask Danny what Gaertner told him as far as how to handle the extortion. Ask him what else Gaertner told him. Ask Danny how he felt going into the sentencing hearing. What did Gaertner tell him to expect?
• Arizona statute and/or case law concerning video-conferencing when used to review important documents with a client. Are you aware of this law? Can you explain this law to Danny when you meet tomorrow morning as it relates to his case?
• Ask Danny what he knew of the probation department's recommendation read to him over the video conferencing screen. Ask him if he knew that the recommendation to the judge was to REJECT the plea agreement.
III) Now, I will be candid and say that I'm astonished about your opinion regarding Porter's call to 911.
To allow Danny to make an informed decision regarding this point, I suggest discussing the pros and cons of submitting the evidence vs. NOT submitting it. A healthy discussion with Danny doesn't seem unreasonable. Here's my .02:
I trust that you're a good attorney, Mr. Villarreal, and that therefore you know that even the best and most tenacious lawyers who dedicate 110% to their cases do sometimes miss key perspectives. The risk associated with barring the Porter call permanently is ENORMOUS.
EXAMPLE 1: Suppose the judge dismisses the petition, as you've repeatedly suggested will likely be the case. A week after the judge's dismissal, new evidence is discovered - exculpatory, proving Danny is in fact innocent of the aggravated assault charge against Wirch. Not only that, evidence demonstrates that the prosecutor knew of the exculpatory evidence from the very beginning. But, as it turns out, the evidence is only relevant when used in conjunction with Porter's conversation with the dispatcher on 12/14/08. The evidence means nothing on its own. In this case, Danny suffers once again for lack of candor to the court.
EXAMPLE 2: How do you think Vanderpool would rule on your petition if she knew that you had knowledge of undisclosed material facts as you paced her court room arguing your case based upon Gaertner's ineffectiveness in failing to disclose the extortion evidence? Fair? NOT presenting Porter's call is akin to a Gaertner move!
Kate Pierce knows about Porter's call. Failing to disclose the Porter call leaves it open to disclosure by the state, which Pierce could use to expose the hypocrisy of such a petition, severely diluting your argument based on candor, while simultaneously satisfying her Brady requirements and placing an ethics light on you (not a good light while on probation with the state bar.)
Don't think Kate would disclose the evidence?
Why not? For what reason would she not follow the rules of the court?
She vehemently states that she WILL follow the rules of the court in the hearing on 2/9/09.
Again, I ask:
How is it beneficial to Danny NOT to give the court the recording of Porter's 911 call?
What risk does Danny face in submitting the evidence to the court?How is it beneficial to Danny NOT to give the court the recording of Porter's 911 call?
And ultimately, how can you ask an honest man, such as Danny, to sign this:
I swear or affirm that this petition includes all the claims and grounds for post-conviction relief that are known to me, that I understand that no further petitions concerning this conviction may be filed on any ground of which I am aware but do not raise at this time, and that the information contained in this form and in any attachments is true to the best of my knowledge or belief.
IV) Finally, I must point out one of the gigantic white elephants before us, without which this talk about Porter's call is incomplete:
You have never heard the Porter 911 call.
How can you summarily reject such direct evidence?
Rather than listen, you choose to argue.
"Danny accepted full responsibility for his acts; therefore I have no use for listening to Porter's call."
Porter's call lasts about 10 minutes.
I would think that 33 years of legal practice would instill the wisdom to know the importance of listening for 10 minutes to such a recording... Any logic that suggests otherwise is foolish and guided by fear based in interests conflicting with Danny's and contrary to the true practice of law.Where to go from here?
Only fear could prevent you from listening... I understand.
I think the honest thing for you to do at this point is admit that you have a conflict of interest to the judge and tell her that you can no longer represent Danny. Express clearly that Danny is not at fault. The fault is solely yours. Ask the court to appoint Danny another lawyer immediately.
What do you think? Discuss this with Danny.
This is the honorable thing for you to do at this point and avoids unnecessary demonstration to the court of details of the conflict.
I have a strong feeling that you’ll be quite happy doing the right thing Now, Mr. Villarreal.
Part of doing the right thing is for you to discuss this with Danny.
Once again, please print (2) copies - one for yourself and one for Danny - so that we can have a meeting of the minds the way it should be.
A copy of this is being sent to everyone concerned.
J. E. Petrik
Attorney-in-fact for Danny Hicks
Due Process is defined as including notice and meaningful opportunity to be heard.
