Typical of the Prosecution’s misconduct before and during the trial is District Attorney Porter’s closing argument. It was a masterpiece of prosecutorial misconduct. Rather than a careful review of the testimony and other evidence, it was a combination of ad homonym attacks on the defendant, his defense team and his witnesses, plus misstatements of what evidence he did cite, capped with what appeared to be only the ramblings of his vivid imagination.

The State perpetrated gross prosecutorial misconduct by:

1. Arguing The Accused And Witnesses For Defense Had Lied [1]

[Porter, Trial, Page 6637, Line 4]

It has never been my habit to comment upon the case put up by a defendant in my argument to the jury. It has never been my habit to comment upon the evidence the defendant puts up in his own Defense. But in this case, after listening to the evidence and listening to the argument of counsel and the pack of misdirection, innuendo, and outright falsehoods that have been presented to this jury, I feel that I must.

[Porter, Trial, Page 6664, Line 23]

Now, you ask yourself why. I've asked myself why. The Gwinnett County police have asked themselves why. And the only answer that you can come up with is that Michael Chapel, in his arrogance, and in his belief that he was better than Emogene Thompson, and in his desire for seven thousand dollars in profit, was prepared to take a woman he considered trailer trash and execute her on the side of the road without thought, without remorse, without feeling, and now he's prepared to come in and lie about it.

[Porter, Trial, Page 6647, Line 20]

And this defendant, who on his own statement said the truth is going to come out, was prepared to leave you to believe that, was prepared to leave you with a lie in an effort to evade the responsibility for his actions.

[Porter, Trial, Page 6648, Line 15]

In the statement of the 23rd, he said he left [Fire 14] at nine-thirty. In court, he said ten o'clock.

Here Porter is telling the jury a series of half-truths. Porter well knew what Chapel had consistently related his leaving Fire 14 to a call he received at 9:57 PM during his interrogation. It was only at the conclusion of the interrogation, when Chapel was exhausted and rambling that the time of 9:30 PM was discussed.

[Chapel, Interrogation, Page 14, Line 23]

Inv. Burnette: What time did y’all stay at the fire department, Mike?

Off. Chapel: Until –

[Burnette hears a noise]

Off. Chapel: I don’t hear it. I don’t have my hearing aids. We stayed till, I guess, a quarter to ten, and I had a call. I had to go to Pebble – Pebble – some kind of 86 over on Pebble – Pebblebrook. It may have been on Arden Drive.

And then Porter does it again

[Porter, Trial, Page 6650, Line 24]

So what are we left with? We're left with the believable credible evidence presented by the state. We're left with the people who know that Mike Chapel left the precinct on April the 15th of 1993 between nine-twenty and nine-thirty. How do we know that? Donald Stone tells us that, Pierce tells us that, and the defendant himself tells us that.

These are more half-truths. Stone’s testimony was impeached by his statement to Captain Davis days after the incident that Chapel left Fire 14 at 10 or 10:15 PM. Pierce, who Porter had referred to as Peters, gave testimony that had been corrupted and manipulated by the District Attorney to a point the only thing that was certain is that he, Pierce, had watched a movie that night. And Chapel’s statement about a 9:30 PM time of departure was inconsistent with the rest of his statements about that event, and his interrogators failed to clarify the issue.

[Porter, Trial, Page 6648, Line 17]

The defense complains wouldn't memories have been fresher back then. And to that I answer, not if you have access to all the police reports, they're not fresher, and this defendant has had access to all the police reports. He has read every scrap of paper, and he came in here ready to tell you his story.

2. Calling Upon The Jury To Get Even[2]

[Porter, Trial, Page 6649, Line 22]

And then we come to court. You sit in judgment of the defendant, and he spends most of his time over there laughing. His attorneys are working hard. They're serious. The police officers are serious. The witnesses are serious. You're taking notes. The people who work with me are serious. This is serious business. And he's on a lark. He's playing because that -- he's confident that he can pull the wool over your eyes, he can fool you, he can show you some misdirection, some smoke and some mirrors, and you'll buy off on it. That's the theory of the defense. And, ladies and gentlemen, that's offensive to me, and that should be offensive to you, because the evidence, the clear credible evidence points in the opposite direction.

3. Arguing Defense Counsel Had Lied [3]

The District Attorney repeatedly accused defense counsel, in the presence of the jury, of intentionally misleading the jurors and witnesses and of lying in court, and attacking the role and integrity of defense counsel

[Porter, Trial, Page 6637, Line 12]

This defendant has engaged in a pattern of misdirection and misinterpretation from the outset of this case that has been conducted through his attorneys and through his own testimony on a variety of fronts.

4. Appealing To The Emotions Of The Jury [4]

The District Attorney repeatedly appealed to the jury on matters other than the guilt of the accused creating sympathy for prosecution witnesses.

(a) Stating The Honor Of The Police Department Has Been Impugned

[Porter, Trial, Page 6637, Line 16]

Let's look at the first Defense he wants you to put up or he wants you to believe. He has dragged every police officer in Gwinnett County by innuendo into this courtroom. He has dragged every upstanding, fine officer that all of us know in an effort to divert your attention from the overwhelming evidence of his guilt.

Porter here is way off base again. The two officers that Porter claimed Chapel was impugning were the Sugar Hill City Marshall Chris Robertson and GCPD Officer Brian Reddy. Chris Robertson was not even called by either the Prosecution or the Defense. Brian Reddy was called by the Prosecution, and it was Porter himself who brought up Reddy’s log sheet that showed that he was out patrolling his area between 9:30 and 10 PM, which was of course a lie.

[Brian Reddy, Page 4973, Line 9]

By Prosecutor Porter

Q. Now, let me show you -- let me show you what I've had marked as State's Exhibit Number 137. Can you take a look at that, please.

A. Yes.

Q. And can you tell us what it is?

A. It's my daily log sheet for that day.

Q. Is that a copy of it?

A. Yes, it is.

Q. Is that a true and correct copy of it?

A. It looks like one, yes.

Q. All right. Officer Reddy, I'd like you to look particularly between the hours of 8:30 and approximately ten o'clock, and can you tell the jury where that log sheet says you were?

A. Well, at 9:45 to 9:50, there was an area check of Shadburn Ferry. From 20:30 to 20:50, I was at fire 14. From 21:30 to 21:32, the Circle K on North Avenue, which is the -- on Highway 20 in Sugar Hill. And 22:00 to -- 22:00 to 22:20, the fire station.

Q. Where were you really --

A. I was at the fire --

Q. -- from 8:30 on?

A. I was at the fire station.

It was also Porter who brought up the fact that, at the time of the murder, Reddy did own a weapon that was of the same type as the murder weapon and had not brought that to the attention of the District Attorney or his superiors until a week before the trial. Thus if anyone was impugning the honor of the Reddy and the GCPD it was District Attorney himself.

[Brian Reddy, Trial, Page 4976, Line 24]

Q. Now, let me show you what's been marked as State's Exhibit Number 131. Can you identify that, please?

A. It's a .38 caliber RG handgun.

Q. How do you recognize that?

A. It looks like the one I gave to the prosecution last week.

Q. Is it the one you gave?

A. If I had a copy of the serial numbers, I'd be able to tell you. It just looks like another gun to me, but I'm sure it's mine.

Q. All right. Did you in fact turn over a gun to Investigator Hinson from my office?

A. Yes, I did.

Q. When did you tell my office about the existence of that gun?

A. It was either a Friday or a Monday at an interview with you.

Q. Did you -- had you been previously asked about your ownership of guns?

A. Yes.

Q. Tell us how -- how did you come into possession of that gun?

A. This gun was given to me about seven or eight years ago by my wife's uncle as a -- just as a gift. I didn't purchase it. It was given to me.

Q. And what have you done with it in the intervening time?

A. I took it and put it up in a -- I have a little gun box that I keep locked and that's where it stayed.

Q. How many times would you say that you've fired it in the seven years you've owned it?

A. I don't know that I have.

Q. And at the time that you were interviewed by the Gwinnett County police about your gun ownership, what type of gun did you believe that was?

A. I thought it was a Smith & Wesson.

Q. And did you tell the investigators that you owned a Smith & Wesson .38?

A. No. They asked me if I had a Charter Arms and I said, no, I didn't, that I had a Taurus.

Q. And do you in fact have a Taurus?

A. Yes, I do.

Q. And do you have any other firearms?

A. I have a 9 millimeter Beretta and a shotgun. I think it's a Smith & Wesson 3000.

Q. When did you realize or when did you look to see the make of that weapon?

A. I was called by the prosecution, and they advised me that a subpoena had been issued to area gun stores to see if I'd purchased any weapons, so I went upstairs to check on my guns to make sure that it was a Smith & Wesson and the other one was a Taurus, and I saw that it was an RG. I notified the prosecution that I had a RG the following day.

Q. Did you turn the weapon over that day?

A. Yes.

Q. During the time that you owned it, has that gun ever been altered?

A. No.

Q. Has any part been removed from it?

A. No. It's been in the -- I've never touched it. I mean, I've -- I haven't given it to anybody or taken it down out of the locker since I got it.

Q. Has there been any repair done to it?

A. Not while I've had it.

Q. Has, for instance, the barrel been removed?

A. No.

Both Robertson and Reddy were terrified that they were suspects at the time of the murder. Robertson was the town marshal of Sugar Hill, and Gwinnco Muffler was in Reddy’s patrol area. Robertson could have been the officer that Dr. Brusie saw in the patrol car in the driveway that night. Brusie saw the officer in what he thought was a white T-shirt, and Robertson’s uniform shirt was white, and he could have been the officer in raingear that Omodt and Kautter saw later in the driveway. He is about the right size.

[Chapel, Interrogation, Page 126, Line 17]

OFF. CHAPEL: Well, you're going to make the marshall of Sugar Hill happy.

LT. LATTY: I ain't scared of the marshall of Sugar Hill. He was - that's who we thought to begin with. When we first started getting information on a patrol car, a sheriff's car, a law enforcement vehicle, that's the first thing that come to mind.

Reddy could well have been the officer that passed Kautter and Omodt on PIB that night. Reddy is almost the size and build as Chapel and kept his brown hair cut short There was nothing that Reddy said about that night that could be believed. He was still lying when questioned by the District Attorney:

[Brian Reddy, Trial, Page 4972, Line 24]

Q. About what time did you go to the fire station?

A. It was about 8:30.

Q. Prior to that, had you seen Officer Chapel --

A. Yes.

Q. -- on that day?

A. I was with him at the parking lot of the church on Main Street.

Q. And do you recall seeing Officer Chapel again that night?

A. Not after I left the parking lot, no.

. All we know is that Reddy left Fire 14 about 10 PM, and, if in fact the blue light activity at the muffler shop happened at 10 PM or later as the evidence discussed in other grounds[5] demonstrates, Reddy could very well have been that officer that passed Kautter and Omodt on Peachtree Industrial Boulevard on patrol. According to Sgt. Stone, Reddy went back on patrol in his area. This would mean that he went south on Buford Highway from the fire station. If Reddy then decided to cut his patrol short because of the time to end-of-shift, the first opportunity to make a short circuit would have been Old Suwanee Road to North Price[6] and then onto Pinecrest Drive just below the muffler shop[7]. This circuit is about 2 ½ miles and 4 to 6 minutes drive from Fire 14.

If in fact Robertson and Reddy were the officers on PIB that night, the fact that they kept their mouths shut after they saw what was happening Michael Chapel is certainly understandable. On the other hand, even if in fact they were the officers involved that night, there is absolutely no evidence to show that neither the officer in the patrol car behind the victim’s car nor the officer in the patrol car that passed Omodt and Kautter that night on PIB were doing anything but quite innocently performing their routine duties[8].

There are two explanations that would have placed Emogene Thompson’s car in the driveway that night at about that time. The first is that in fact the car needed a muffler, and she may have intended to leave it there for that purpose and been driven away in another. The second is that the puncture to her tire occurred before she left home, and she got as far as the muffler shop before she was forced to pull into the where the murder then occurred.

(b) Presenting Chapel’s Raincoat To The Jury

The Prosecution presented as evidence officer chapel’s raincoat, which had little or no probative value[9] but great emotional value. The prosecution paraded the raincoat in front of the jury and hung it prominently on an easel a few feet from the jury box where it remained throughout the trial..

(c) Presenting Before And After Death Pictures Of the Victim

The District Attorney presented to the jury at the end of his closing argument before and after pictures of an attractive 53-year-old grandmother and the murdered victim.

[Porter, Trial, Page 6664, Line 23]

And, ladies and gentlemen, on the night of April the 15th in the time it took Mr. Hutchins to say 'shoot her again,' Michael Chapel reduced this, to this. [Indicating] This is what demands the verdict that speaks the truth. This is what demands the verdict that has the word justice written on it. This is what demands the verdict of guilty. Thank you.

5. Ridiculing Of The Defense And Defense Witnesses [10]

The District Attorney repeatedly ridiculed the defense and offering personal opinions about the credibility of defense witnesses.

[Porter, Trial, Page 6640, Line 3]

So the next step is, let's put up an alibi. Let's put up the firefighters. They'll remember. Well, the firefighters didn't remember. Sloan doesn't remember anything. He wasn't paying attention. He can't even tell you if Chapel was in the fire station. Westbrooks and Wilson, who key their memory to no specific event, who say they don't have any reason to remember the 15th over any other night, acknowledge that Chapel could have left the fire station as early as nine-forty. And the key firefighter is David Pierce. The key firefighter remembers an event that is locked in time that can be proven by external circumstances, and that's David Pierce. He remembers the movie. He remembers what the movie was about. He remembers the time or had to have his memory refreshed with a document that you'll have out. The time the movie ended, and he keys the time that Chapel left to the movie. And what was that movie about? Crooked cops. And all of a sudden the alibi disappears.

6. Vouching For The Credibility Of Government Witnesses [11]

Dr. Choi is a Defense DNA expert witness.

[Porter, Trial, Page 6644, Line 6]

And then finally we come to the DNA and the attack on the DNA, and I'll only make a couple of comments on that. Dr. Choi is an expert. There's no question he's an expert. But remember what he said. He said there are only two possible explanations for the phenomenon that we described and attributed to partial digestion.

One is that the blood is of four separate people or perhaps more. That's one explanation, that there's four people's blood in that tiny little spot in the car seat, or the other explanation is that it is a partial digestion. One or the other, that's what he says, and based on that he would run the experiment again. And given his circumstances, he probably would.

He would run it again because he has the luxury of running it again. He has the option to run it again. He has the possibility to run it again. In his field he doesn't have to accept a result like that. He doesn't have to figure out why the result comes in because he has the luxury to run another one.

But it's the difference between the plastic surgeon in the well-equipped hospital and the guy in the MASH unit to compare Dr. Choi to George Herrin or Keith Goff. The guy in the MASH unit has to make the decision there, he has to save lives, and he has to make techniques work that might not be approved in another circumstance.

7. Commenting On The Demeanor Of The Accused [12]

[Porter, Trial, Page 6648, Line 3]

And, finally, after all the Defenses were down, the defendant was left with his own testimony. He was left with the story that he told you. And I call it a story because I want you to contrast the testimony here and the war stories and jokes about the movie with the statement of the 23rd.

In the statement of the 23rd, we didn't hear anything about any red Jeep on Pass Court. In the statement of the 23rd, he said he called her. Today in court, or the other day in court, he said he went by her house and that's where all this information about the bands and the serial numbers came from.

In the statement of the 23rd, he said he left at nine-thirty. In court, he said ten o'clock.

The Defense complains wouldn't memories have been fresher back then. And to that I answer, not if you have access to all the police reports, they're not fresher, and this defendant has had access to all the police reports. He has read every scrap of paper, and he came in here ready to tell you his story.

And watch his demeanor. Watch his demeanor here. Watch his demeanor on the 23rd. He was calm. He was jovial. A man on trial for his life sitting here on the witness stand having -- telling you a few war stories. Relaxed. Until he was faced with the questions he couldn't answer, the questions that I put to him on cross, the questions of his plausible explanation for the evidence that the State has produced. And that's when he got jumpy. That's when he got nervous. When he was confronted with the truth was when he got nervous.

I urge you to think back as part of your deliberations to the statement of the 23rd. What was his demeanor then? A police officer accused of perhaps the worst crime a police officer can commit, the ultimate betrayal of his trust as a police officer. And most of the time he look amused as Latty and Burnette suffered through an interview offering him every opportunity to vindicate himself, their pain so evident that the emotion was just tangible within the courtroom. And he's sitting there going, oh, this is the old good cop, bad cop. You can see it in his eyes. He's critiquing their interview technique. Is that the reaction of a man wrongly accused? Is that the reaction of a man horribly caught by the circumstances?

And then we come to court. You sit in judgment of the defendant, and he spends most of his time over there laughing. His attorneys are working hard. They're serious. The police officers are serious. The witnesses are serious. You're taking notes. The people who work with me are serious. This is serious business. And he's on a lark. He's playing because that -- he's confident that he can pull the wool over your eyes, he can fool you, he can show you some misdirection, some smoke and some mirrors, and you'll buy off on it. That's the theory of the Defense. And, ladies and gentlemen, that's offensive to me, and that should be offensive to you, because the evidence, the clear credible evidence points in the opposite direction.

And then finally he brings the final insult. He brings the final insult to you and every citizen in Gwinnett County, that the only explanation was he was framed, that he was framed.

B. Other Instances Of Prosecutorial Misconduct

1. The Prosecution’s Failure To Correct The Record [13]

The Prosecution’s failure to correct the record led the jurors to believe that there were additional witnesses that testified on very critical points that they may have forgotten.

(a) Firefighter Peters

In his questioning of Officer Chapel, the District Attorney alleged that a Firefighter Peters gave damaging testimony regarding the time that Chapel left the Fire 14:

[Porter, Trial, Page 6280, Line 23]

Q. Firefighter Peters is mistaken?

A. He's mistaken.

[There was no Firefighter Peters.]

(b) Bobbie and Sara Guthrie

At Three points during the trial the District Attorney alleged that there were more additional ear-witnesses to the shots, namely a Bobby and Sara Guthrie. The alleged ear witnesses were Billy and Sara Hutchins.

During his questioning of Dr. Frist:

[Porter, Trial, Page 3316, Line 4]

MR. PORTER: Your Honor, I can only state in my place that I'm going to tie it up. It's the gun -- it's Sara Guthrie and Bobby Guthrie, the witnesses who heard the gunshots at the appropriate time and there was a space between them, and that was what Dr. Frist was –

And again in an argument to the court on the morning of 9/5/95:

[Porter, Trial, Page 6570, Line 4]

How does the testimony of Karl Kautter tie to the testimony of Paul Omodt, who ties to the testimony of the Guthries who heard the shots that ties to the testimony of the people who drove by?

And again in an argument to the court on 9/8/95:

[Porter, Trial, Page 6782 Line 9]

MR. PORTER: Your Honor, we would rely on Davis v. State, which says that the execution style killing of a wounded armed robbery victim is sufficient to show depravity of mind under Code Section (b)(7), and we would cite the Court to the timing of the shots as laid out by the Guthries as well as the medical findings of Dr. Frist in regard to the survival between the shots. We would ask the Court to allow the jury to consider the (b)(7) aggravating circumstances.

2. Misleading The Court And The Jury [14]

While the District Attorney spent the entire trial in this endeavor, the following is quintessential and an example of how subtle and cunning this prosecutor could be.

In her examination of Lt. Powell of the GCPD, Defense attorney Elizabeth Rogan became confused as to what his study of the MDT records indicated as far as the defendant’s sale of a health supplement called Testron. She incorrectly interpreted an entry that in the shorthand of MDT said “18-4” as 184 bottles of Testron sold when the entry 18-4 clearly meant 18 bottles received and 4 bottles sold.

This issue of the Testron was extremely important to the jury because Porter continued to use the issue over and over again to demonstrate the Defendant’s basic dishonesty. It was an issue that the District Attorney managed to manufacture out of whole cloth.

Ms. Rogan asked Powell a question and Lt Powell answered it:

[Powell, Trial, Page 5852, Line 23]

By Ms. Rogan

Q. Did you make an entry on the MDT transmission -- or did you record an MDT transmission from the unit that you've identified as Mr. Chapel's to units that you identified as officers -- Sergeant Stone and Officer Reddy regarding the fact that Testron had arrived and he'd already sold 184? And I direct your attention to Page 7 on your report as well.

A. I see the two entries in reference to 'the Testron has arrived' at 17:34 and another entry that says, 'most outstanding.' But I don't see where the -- that he'd already sold 184.

A few minutes later District Attorney Porter verified Lt. Powell’s testimony with him regarding 184 bottles of Testron sold in his direct examination. The District Attorney asked the question and Lt. Powell answered it:

[Powell, Trial, Page 5866, Line 21]

By Prosecutor Porter

Q. Now, you stated that on the MDT that you reviewed with Ms. Rogan that there was no traffic that said that he had sold 184 bottles of Testron. You testified to that?

A. Yes.

Q. But she was mistaken when she asked you that?

A. Yes. In those -- in those conversations that were -- are the -- what was in the record, there was no mention of the -- in those specific conversations of that amount.

At no point during Powell’s examination nor at any time during the trial on this point were any prices or dollar amounts for this Testron product mentioned. This should have ended the issue, but even the following day everyone including the Judge, the Jury, the two defense counsels and even the Defendant forgot this testimony. The District Attorney beat the issue to death, and the Defense was still reacting to him when they closed.

The very next day during his cross-examination of Chapel, the District Attorney deliberately misstates Lt. Powell’s testimony and then incorrectly berates Chapel for not correcting the record.

[Chapel, Trial, Page 6275, Line 20]

Q. All right. Let's talk a little bit about -- and speaking of opportunities, you heard Lieutenant Powell talk about the Testron yesterday, didn't you?

A. Yes.

Q. And you heard him say that your MDT traffic indicates that you sold 184 bottles of Testron; isn't that correct?

A. That's correct, yes.

Clearly, Chapel did not remember what Powell said.

And later in his cross, the District Attorney attacks Chapel:

[Chapel, Trial, Page 6278, Line 3]

Q. And yet you were prepared to sit by and let this jury think that you had sold 184 bottles at $30 a pop?

A. No. I never said 184 bottles.

Q. You didn't correct it in your direct.

A. Excuse me?

Q. You didn't correct it in your direct. You corrected every other witness.

A. A hundred and eighty-four bottles?

Q. Yeah. The testimony from Lieutenant Powell was according to his reading of the MDT you had sold 184, and you corrected points of testimony of every other witness, and you didn't say anything about that, when, in fact, you only got three cases of eighteen. You got a total of forty-four bottles of Testron, didn't you?

A. From Dixie Health Labs, that's correct.

Q. And you were willing to leave this jury with the false impression that you had sold 184 at $30 a pop in an effort to explain where your money came from, weren't you?

A. No. That's not correct.

Finally in Porter’s closing argument:

[Porter Trial, Page 6646, Line 15]

Then we got Lieutenant Powell up, and the defendant attempted, through a lengthy direct examination, to go into the MDT traffic, the telephone traffic, and the financial records. And it wasn't until my cross-examination that you realized that the data that Lieutenant Powell based his conclusions on was false from the very beginning. It was flawed. And I saw some of you throw your pens down, and I thought this is typical of the defendant's strategy in this case.

A little later Porter goes on:

[Porter Trial, Page 6647, Line 7]

And that brought us to the Testron. Now, Testron is not a big deal. It's a food supplement. It's not illegal to sell. The State has never contended it's illegal to sell. Some of you may take Testron, for all I know.

But the issue of the Testron brought an important point about this defendant's attitude towards you to the front. He was prepared to allow you to sit and believe that he had sold 184 bottles of Testron at thirty dollars a bottle. Now, I'm no math whiz, but I can round off to two hundred and that comes pretty close to six thousand dollars, which would pretty closely approximate the money that the State has accounted for in the week after the murder. And this defendant, who on his own statement said the truth is going to come out, was prepared to leave you to believe that, was prepared to leave you with a lie in an effort to evade the responsibility for his actions. And that's the issue of Testron. That's what Testron is all about. And it wasn't until I put it in front of him in cross-examination that he was prepared to acknowledge the truth.

In her closing, defense counsel Rogan was still reacting to the District Attorney’s manufactured issue. She obviously did not remember Lt. Powell’s answers to her questions and the District Attorney’s questions about 184 bottles of Testron.

[Rogan, Trial, Page 6598, Line 6]

Now, Mr. Porter made a big deal about the Testron order during Mike's cross-examination on Saturday, implying that Mike was trying to mislead you about the fact that Lieutenant Powell had said, 'Testron has arrived, 184 gone.' Mike never said anything about there being a 184 bottles of Testron. Where would he have gotten the money to order 184 bottles of Testron at twenty or thirty dollars a pop in the first place?

I elicited that from Lieutenant Powell, and I did it for a purpose, ladies and gentlemen, and it was not to mislead you. It was to lay the groundwork for an argument.

Lieutenant Powell was charged by the police department to investigate various of the data in this case, financial records, phone records, and then MDT transmissions. It was an effort which the state now wants to distance itself from, but it was an effort to try to put all of this information, some of the same information you're going to have to slog through, put it together and try to come up with some patterns, come up with some evidence.

What did Lieutenant Powell's reading of this MDT transmission say? To him it said, 'Testron has arrived on April 15th, 184 gone.'

Could Mike Chapel, or anyone for that matter, be defended if defense counsel cannot remember testimony, even the gist of testimony from one day to the next? Prosecutor Porter misled everyone in this trial from the beginning, but the Testron ploy had to be the crowning moment.

3. Knowingly Referring To Inadmissible And Unsupported Evidence [15]

Again, while the District Attorney’s arguments were rife with this kind of misconduct, two instances were quintessential of this kind of activity. The first example is from his opening argument and the second from his closing.

The evidence clearly showed that the police patrol car that passed the Omodt/Kautter vehicle relatively quickly and afforded Kautter only a brief glimpse of the officer in that car. But in his opening argument, The District Attorney completely distorted that evidence.

[Porter, Trial, Page 3166, Line 5]

And as they [Omodt/Kautter] went on past, proceeding down towards the intersection of Georgia 20, as the road four-lanes, which is about here, a car came up behind the two men, moving rapidly, and pulled up beside them as soon as the car -- as soon as the road four-laned. The passenger in the car, who you will hear testify, looked over and realized it was a Gwinnett County police car, and he presumed that it was the same car that he had just passed. He looked at that car, the car remained beside them all the way down Peachtree Industrial Boulevard, a distance that you'll see from here [indicating] to the Gwinnco is seven-tenths of a mile. And from this intersection here [indicating] to where the police car eventually turned off is eight-tenths of a mile from the muffler shop. And the car -- the police car remained beside the witnesses' car the entire time.

In his closing argument, Porter clearly wove the following from his fertile imagination.

[Porter, Trial, Page 6663, Line 10]

Now, you say, well, why didn't he kill her at the trailer? Because he can't control her there. Why didn't he take her somewhere else? Why didn't he kill her at the Waffle House? Well, there's too many people there. Why didn't he kill her on her street? There's too many witnesses. What did the witnesses see? They saw a traffic stop. And what did Michael Chapel want them to see? A traffic stop.

So when she got there by nine forty-five he pulled the car around, turned the blue lights on, and walked up.

Now, think about what Chapel has to do when he's there. He has to find out that she's there. He has to make sure the money is there. He has to get her to get the money out and show it to him. He has to shoot her. He has to deflate the tire. He has to get the money, and he has to leave. Those are the tasks that he has at that time.

And how much time does he have to do it? He arrives by nine-thirty. The shots happen at about nine-forty. By nine forty-five Karl Kautter and Paul Omodt and Allen Robertson are driving by, and they're not seeing a traffic stop. They're seeing the cleanup on a murder scene, because Michael Chapel has already killed Emogene Thompson by nine forty-five.

4. Ignoring Crime Scene And Autopsy Reports

That the Prosecution ignored the crime scene and autopsy reports proves that he was not interested in the truth[16]. They were interested only in convicting Chapel of this murder. Any credible forensic technician examining these documents would have seen the impossibility of the prosecution’s case. Careful observation of Dr. Frist on the stand, which was videotaped, and the content of his testimony shows that his, Frist’s, only interest was in satisfying the requirements of the District Attorney, even to the extent of returning to the stand later to qualify his original testimony which was not quite what the District Attorney wanted of him.

5. The Prosecution Hides A Critical Photograph From the Jury

The Prosecution was aware that evidence existed that would make nonsense of the case against Michael Chapel, and they took steps to see to it that the jury never saw that evidence. The prosecution contention was that Chapel intercepted the victim, directed her into the driveway of Gwinnco Muffler, walked up to the partially open driver’s window and shot her. A careful examination of the crime scene technician’s report, the autopsy drawing proves that the shot’s were fired from the back seat of the victim’s car[17]. A key part of that evidence was a photograph of the front windshield of the victim’s car showing a cone of high velocity blood spatter on the inside of that windshield[18]. The Prosecution knew that if the jury saw that photograph and deduced its meaning, their contentions would be rendered nonsense[19].

[1] United States v. Moore, 11 F.3d 476, 480-81 (4^th Cir. 1993); United States v. Smith, 982 F.2d 681, 684 (1^st Cir. 1993); United States v. Anchondo-Sandoval, 910 F.2d 1234, 1237-238 (5^th Cir. 1990)

[2] United States v. Doe, 860 F.2d 488, 492-94 (1^st Cir. 1988)

[3] United States v. McLain, 823 F.2d 1457, 1462 (11^th Cir. 1987)

[4] United States v. McBride, 862 F.2d 1316 (8^th Cir. 1988)

[10] United States v. Collins, 78 F.3d 1021, 1039-40 (6^th Cir. 1996); United States v. Barr, 892 F.Supp. 51, 57 (D.Conn 1995); United States V. Bautista, 23 F.3d 725, 733-34 (2d Cir. 1994)

[11] United States v. Cotnam, 88 F.3d 487, 500 (7^th Cir. 1996); United States v. Manning, 25 F.3d 570, 572-74 (1^st Cir. 1994); United States v. Carroll, 26 F.3d 1380, 1389-390 (6^th Cir. 1994)

[12] United States v. Leal, 75 F.3d 219, 225 (6^th Cir. 1996)

[13] United States v. Molina-Guevara, 96 F.3d 698, 703, 704-5 (3^rd Cir. 1996)

[14] United States v. Forlorma, 94 F.3d 91, 94-5 (2d Cir. 1996); United States v. Vozella, 124 F.3d 389, 391, 392 (2d Cir. 1997); United States v. Alzate, 47 F.3d 1103, 1107-11 (11^th Cir. 1995); United States v. Udechukwu, 11 F.3d 1101, 1104-1106 (1^st Cir. 1993); United States v. Kojayan, 8 F.3d 1315, 1316-325 (9^th Cir. 1993)

[15] United States v. Millan, 812 F.Supp. 1086, 1088-1089 (S.D.N.Y 1993)

7. Commenting On The Demeanor Of The Accused[12]

4. Ignoring Crime Scene And Autopsy Reports

5. The Prosecution Hides A Critical Photograph From the Jury

7. Commenting On The Demeanor Of The Accused [12]