GROUND SEVEN: EXCULPATORY EVIDENCE

Exculpatory information not released to the Defense requires a conviction reversal or a new trial.

A. No Gunpowder Found The Defendant’s Raincoat

Georgia State Crime Lab test results that indicated that there was no gunpowder residue on Officer Chapel’s raincoat were not disclosed to the Defense.

B. Statements From Chapel Alibi Witnesses Not Released To The Defense

Investigator Jack Burnette’s notes[1] indicate a high degree of method in his work. Prior to Chapel’s arrest, the notes are simply a description of the story of this case as it unfolded. Beginning on Monday, April 26, 1993, his notes begin to contain a set of “To Do” items, daily at first, then weekly.

Burnette was very methodical about these “To Do” items. When one of these items was completed, He indicated that with an “X” to the left of that item. If the item was not completed on that set of “To Do” notes, no such “X” would appear next to that item. At first, because he was the lead investigator, Burnette would indicate who completed the task, but as the work ran down, and he was the only investigator working on the case, no such indications were added to the “X” indicating completion of the “To Do” item.

At trial, Burnette testified that none of Chapel’s alibi witnesses had been interviewed until the trial before the jury had begun. Burnette also attempted to justify this until Mr. Moore cut him off.

[Jack Burnette, Trial, Page 5117, Line 3]

By Mr. Moore

Q. Now, you testified, I believe, that you interviewed and checked out people up at the gym. Did you ever interview Van Parker?

A. Yes, sir.

Q. What about Blan Wright?

A. Yes, sir.

Q. And when did you interview them?

A. Approximately a week ago.

Q. A week ago?

A. Yes, sir.

Q. So you waited two and a half years to follow up on what you told Mike Chapel you were going to follow up on right away?

A. Yes, sir. We did, because when Mike Chapel finished his statement that morning and beginning on into the next week, we knew that his statement and his alibi, if you will, wasn't working. Originally, of course, he had talked to Captain Davis and said he was at the fire station. The firemen didn't hold up his alibi nor did Sergeant Stone. A week following that, the physical evidence was coming in. We knew about the blood in the car seat, and we had had a magistrate court hearing two weeks after the murder itself and a week after his arrest, at which time his attorney at that time told the Court that he would furnish us with the names and addresses of all the people that could support his alibi in reference to the T-shirts and his coming by the gym. Now, in addition to that, even if one chooses to believe that he went by the gym, which –

Burnette’s “To Do” notes for the week May 10-14, 1993 contain a “Top Do” item “Locate and interview Van Parker”. This indicated that he attempted to interview Van Parker. There is no “X” to the left of the item indicating that the attempt was unsuccessful. For the week of May 17-21, 1993 however, there is another “To Do” item “Locate and interview Van Parker”. To the left of this item, there is an “X” indicating that successful interview was held with Mr. Parker. There is no indication that anyone else was assigned this task. Thus Jack Burnette completed this “To Do” item.

Immediately beneath the Van Parker “To Do” item, there is another item, “Locate and interview Rob Thompson.” Mr. Thompson was another member of Chapel’s gym, and he usually worked out around 10PM at night. To the left of Mr. Thompson’s “To Do” item there is again an “X” to indicate a successful completion.

Chapel’s defense attorneys were never furnished with the results of these interviews.

C. Found Victim’s Purse Not Released To Defense For Almost A Year

The victim’s purse was recovered by the Gwinnett County Police Department on March 6, 1996 and it was not until 1/10/97, almost a year later, that the District Attorney notified the Defense of the recovery. This notification occurred only after Capt. John Latty inadvertently let slip to a defense investigator on 11/22/96 that the purse had been recovered. Given these circumstances, there existed a clear intent not to disclose on the part of the GCPD and the Office of the District Attorney.

[Korczak-Acosta Interview with Latty and Smith, 11/22/96, Page 11]

MR. LATTY: I don’t remember it. I don’t remember that being the case. We had an awful lot of things that were brought to us[2], that we were told about – things that we discovered or learned of after the arrest – even after the conviction. And, anything that we have learned relative to that case has gone to the district attorney – it’s gone to the district attorney’s office and he has in turn given it to Johnny Moore. See, the process is that even after a person is convicted, even if they’ve appealed and the appeals have been upheld – at any point, if there’s anything discovered that might be in any way relevant to that case, it goes to the D.A.’s office. The D.A.’s office relays it to the defendant’s attorney. Such as when we found her purse. Are you familiar with that? That’s finding her purse –

MR. KORCZAK: -- you found her purse?

MR. LATTY: Long after he was convicted we found her purse. And –

MR. KORCZAK: -- where did you find her purse?

MR. LATTY: We found her purse behind Ms. Thompson’s trailer and all of that was turned over to Johnny Moore through the District Attorney’s officer. But, we’re quite certain that either Mike went up there and placed it there, hoping it would be found to implicate her son or had somebody do it for him.

MR. ACOSTA: Her purse was located where?

MR. LATTY: It was located behind Ms. Chapel’s trailer – I mean, Ms. Thompson’s trailer.

MR. ACOSTA: Where is it now?

MR. LATTY: It’s probably in our evidence room. But, the information that we recovered and what was recovered was turned over to the D.A.’s office and turned over to –

MR. KORCZAK: Is it the – turn everything to the D.A.’s office –

MR. LATTY: -- but apparently everybody’s opinion, including that of Johnny Moore, is that it really does not have any bearing – because anybody could have placed it there and most probably it was placed there by Chapel because Chapel was trying to implicate the son.

D. Suppressed Phone Records Would Have Impeached Son’s Testimony

Telephone and MDT computer records were collected by the Gwinnett County Police Department at the request of the District Attorney. These records showed exculpatory evidence and evidence of police sting operations where the defendant was targeted as a perpetrator. The records proved that the defendant reacted in the proper and legal manner as trained in such situations. These records could also have been used to impeach the testimony of the victim’s son as to his activities on the night of the murder. The State insisted on and received the improper suppression.

The prosecution argued that the records from the telephone company were not certified and amounted to hearsay. The facts however controvert that position. That the telephone company furnished the records itself constitutes certification, and the records themselves constitute what is the best evidence. This type of computer-generated evidence is becoming more and more important as computers continue to pervade every aspect of life and society. Just as documents can be forged and witnesses can perjure themselves, computer records can also be tampered with. Just as it is incumbent upon legal proceedings to impeach forged documents and perjury, it should be necessary to impeach computer records. To merely say that documents are hearsay and lack certification is not sufficient to impeach computer-generated evidence.

The police at the request of the District Attorney collected these computer records from the telephone company and organized them in such a way as to provide an analysis. For the prosecution to call them into question implies that not only computer-generated evidence but rather all evidence gathered by the police and used by the prosecution in this case is questionable.

[2] What other things were brought to the police on this case? Latty here indicates that there may well have been other exculpatory evidence that came to light and like the purse were not brought to the attention of the defense.