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Tony Egbuna Ford |
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Petition on his case |
Petizione sul suo caso |
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CLAIM SIX THE PROSECUTION VIOLATED MR. FORD'S RIGHT TO DUE PROCESS UNDER BRADY V. MARYLAND, 373 U.S. 83, 87 (1963), BY FAILING TO DISCLOSE EVIDENCE THAT VICTOR BELTON, NOT TONY FORD, WAS THE PERSON WHO ACCOMPANIED VAN BELTON INTO THE MURILLO'S HOUSE AND SHOT THE MURILLO'S.
Tony Ford has consistently maintained - to his trial counsel, in his testimony at both phases of his trial, to his appellate and state habeas counsel, and to present counsel - that he did not enter the Murillo's home and did not shoot the Murillo's. He has maintained instead that Van Belton's brother, Victor, accompanied Van into the Murillo's home and shot the Murillo's. New evidence has been discovered to support Mr. Ford's contention. Some of this evidence, perhaps all of it, was known to the prosecution at trial, yet none of it was disclosed to the defense. Much of this evidence is presently in the form of hearsay. However, there is enough interlocking hearsay and non-hearsay evidence to support the Brady claim now being advanced for Mr. Ford and to warrant discovery that will be requested on behalf of Mr. Ford. Approximately ten years ago - in 1992 or 1993 - Robert Thomas, the court reporter who reported Mr. Ford's trial, was engaged by several El Paso police officers in a discussion about Mr. Ford's case. The trial apparently had just occurred,1 because the officers were expressing their surprise that Mr. Ford had been convicted. They explained to Mr. Thomas that they were surprised, "because the word on the street was that another individual, Victor Beltran [sic] (brother of the co-defendant) did the shooting." Exhibit 15 (affidavit of investigator William Juvrud concerning conversation with Robert Thomas.)2 Since Mr. Thomas recounted this conversation with present counsel for Mr. Ford, he has been asked to try to recall the identity of the officers who had this conversation with him. He has not been able to do so. Nor have additional investigative efforts by Mr. Ford's legal team been able to determine the identity of these officers. This information was never disclosed to the defense until Mr. Thomas happened to recall it in the presence of Mr. Ford's investigator in June, 2002. Despite current counsel's lack of success in identifying any of the El Paso police officers who told Robert Thomas what they did at the time of Mr. Ford's trial, current counsel have found two people who were "on the street" prior to Mr. Ford's trial who learned things from Victor and Van Belton that, if known to the El Paso Police, would have led the police to conclude that "the word on the street was that another individual, Victor Beltran [sic] (brother of the co-defendant) did the shooting." Exhibit 15. One of the people confirming the kind of information provided to Robert Thomas was Tammond J. ("TJ") Brookins. Mr. Brookins recounts that he had known Victor Belton for many years when, In December, 1992, I was at a party with several friends at a house near Desert View Middle School in El Paso. Victor Belton was also at the party. A good friend of mine had just been shot by a guy that I knew. I was very upset about this and was thinking about taking some action against this guy. I was discussing this with two friends when Victor joined the conversation. When he learned what I was talking about, he told me that if I was going to do something I had to have more than one other person helping me. He explained that with enough help, "if nothing don't happen, you'll get away with it. I did."
Exhibit 16 (declaration of Tammond J. Brookins). Mr. Brookins "did not think much about this at the time," but thought about it more after he began writing Mr. Ford in prison. As explained, I learned from Tony that Victor had been involved in the shooting that Tony got sentenced to death for. This made me remember Victor's comments about getting away with killing someone. My impression has been ever since then that Victor Belton admitted to me that night at the party that he got away with the killing that Tony Ford was sentenced to death for.
Id. The other person who heard the kind of information that led people on the street to conclude that Victor Belton was the shooter was Marvin Dodson. Marvin Dodson was a friend of Tony Ford and acquaintance of Victor and Van Belton in December, 1991. When Van Belton and Tony Ford were arrested for the murder of Armando Murillo, Mr. Dodson was locked up in the El Paso County Jail on a probation violation. Shortly thereafter he was contacted by Van Belton. As Mr. Dodson explained to undersigned counsel, Richard Burr, He [(Van Belton)] asked Dodson to finger Tony Ford for the murder. He wanted Dodson to tell the police that Ford admitted to him that he was involved. Dodson told Belton that he could not do this because it wasn't true, but Belton kept after him to do this. Dodson never did what Belton asked him to do.
Exhibit 17 (declaration of Richard Burr concerning Marvin Dodson).3 Other information that came to the El Paso police concerned the fact that there were three people involved in the crime at the Murillo's house, consistent with what Tony Ford was saying. In August, 2002, an investigator for Mr. Ford, Lisa Milstein interviewed a man named Jose Chrisman, who resides in El Paso. Mr. Chrisman was dating and living with Myra Concepcion Murillo at the time that her house was invaded and her son Armando was killed on December 18, 1991. Exhibit 18 (declaration of Lisa Milstein). Mr. Chrisman was not home when the offense occurred but was questioned immediately thereafter by the police. Id. After Ms. Murillo began to recover from the gunshot wound that she received during the crime, she told Chrisman, "there were three people involved in the crime. Two men came inside and one stayed outside as a lookout." Id. However Ms. Murillo came to know this, it is likely that the police also knew it. That Ms. Murillo knew this - or was told this by the police or someone else - was never disclosed to the defense. Finally, Van Belton was involved in other transparent attempts to deflect attention away from his brother Victor. On the night he was arrested, Van Belton admitted that he was one of two people who broke into the Murillo's house on the night of December 18, 1991. He identified the other person as Tony Ford. He said that Ford began demanding money from a guy in the house. Ford and this person began to argue and "[t]hings looked like they were getting out of hand." Exhibit 19 (statement of Van Belton, commencing at 11:10 am, December 19, 1991), at 2. Thereafter, Belton said, "the lady there looked very scared and [was] saying, 'please, please.'" Id. He then "told Tony, 'Hey, let's go.'" Id. But, "Tony took to[o] long so I just turned around and ran out of the house. From then on, I didn't see or hear anything else. I just went home." Id. Belton also noted that Ford had a .22 caliber black revolver and that he was pointing it at the "ladies and the guy in the house." Id. He thought "[Ford] was just trying to scare these people." Id. He told the police, "This is all I know about what happened on this night." Id. On the basis of this statement, an arrest warrant issued for Mr. Ford. Van Belton was tried separately and went to trial approximately two months before Mr. Ford. Several months prior to his own trial, Belton changed his story. He told his lawyers, who in turn told Mr. Ford's lawyers, that there was in fact a third person involved - a man he referred to as "Tyrone Fields." See Exhibit 20 (letter from Greg Anderson, one of Mr. Ford's lawyers, to Luis Aguilar, January 18, 1993), at 2 ¶ 2. In an interview with Van Belton on December 5, 2002, Richard Burr asked Belton about Tyrone Fields: Belton told [Burr] that Tyrone Fields came with Tony that night to the Murillo's house. He said that Fields was with Tony in the house when he (Belton) left - at the point at which Ford started getting angry with the people in the house. He does not know what happened thereafter.
Exhibit 21 (declaration of Richard Burr concerning Van Belton), at 2. On follow-up questioning concerning Tyrone Fields, Belton denied having gone to school with Tyrone Fields. In response to whether he knew which school Fields had attended, Belton "hesitated, then said,'he might have been a dropout.'" Id. There is no one named Tyrone Fields in the El Paso area now, and there was no one then. Van Belton fabricated this story to try to divert attention from his brother in case the police learned that there were three people at the Murillo's house that night. The prosecution knew about Van Belton's fabrication concerning Tyrone Fields and should have known its significance. Finally, Van Belton continued to attempt to divert attention from his brother during Mr. Burr's interview with him on December 5, 2002. Burr asked Belton where his brother, Victor, was. He said he was "out of the country." [Burr] asked him if Victor was in the military, and he said, "yes." On asking which branch of the military Victor was in, he said, "the Marines."
Id. On following up whether Victor Belton was in the Marine Corps, Mr. Burr learned that he is not at present in the Marine Corps. Exhibit 22 (declaration of Richard Burr concerning Victor Belton). He learned further that since April, 2002, Victor has been living at a civilian address in El Paso. Id. On the basis of all these facts, it is apparent that at the time Mr. Ford was tried, the El Paso Police knew that Victor Belton was likely the second person in the Murillo's house, that he was the shooter, and that Tony Ford was - as he testified at trial - outside, waiting for the Belton's to return to the vehicle in which they arrived. Moreover, the police knew or should have known that Van Belton was lying about Mr. Ford's involvement to try to protect his brother Victor. The "Tyrone Fields" version of his story should have alerted the police to this if they did not know before then. None of this information was provided to Mr. Ford or his counsel because the police had already secured identifications of Mr. Ford as the second intruder and shooter from Myra Magdalena Murillo and Lisa Murillo. Disclosure of what they knew would have created a substantial risk that no one would have been convicted for the murder of Armando Murillo and the attempted murder of his mother and sisters. The failure to disclose this information, which the police knew or should have known, violated Mr. Ford's due process rights under Brady. See United States v. Bagley, 473 U.S. 667 (1985); Chambers v. Johnson, 218 F.3d 360 (5th Cir. 2000). B. State Court Proceedings This claim was not presented to the state courts, because the facts underlying the claim have been suppressed by the prosecution and continue to be suppressed by the prosecution. Circumstances thus exist that excuse Mr. Ford from the exhaustion requirement, 28 U.S.C. § 2254(b)(1)(B)(ii), and excuse any "default" in presenting the claim to the state courts.
1Mr. Ford was convicted on July 9, 1993. [SF Vol. IX p. 407]. 2Counsel for Mr. Ford have no doubt that Robert Thomas would have signed an affidavit similar to the Juvrud affidavit had he been available recently. By the time counsel were ready to obtain an affidavit from Mr. Thomas, Mr. Thomas's father had become seriously ill and Mr. Thomas was unavailable because of the need to take care of his father. 3Marvin Dodson provided this information to Mr. Burr in June, 2002. When the defense team attempted to find Mr. Dodson to have him sign a declaration recounting this occurrence, he could not be found. As Mr. Burr notes in his declaration, he believes that Mr. Dodson is still in El Paso and can be subpoenaed for a hearing when one is held. |