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USA v Hicks – Justice on Life Support

Michael Morris – In Focus

I think the judge got the message. Thanks to my friend Tim Rose and the repentance of Morrison and Sosa a new trial motion was filed and granted. But why did every judge in the New Mexico District recuse? In the aftermath of the retrial of Jade Hicks on Assault w/ Deadly Weapon/Serious Bodily Injury in US District Court (CR 09-1976 JH US District NM) it is clear that the Office of the US Attorney under Kenneth J. Gonzales has become the epitome of a sleazeball operation so hell bent on obtaining convictions it will resort to any tactics from subornation of perjury to witness intimidation to jury tampering and more. Is this the Hope & Change you promised us Mr. Obama? Prosecutors who time and time again get caught manufacturing testimony? Prosecutors who dress their interns as street thugs to sit on the defense side to make the defendant look like a gang banger? Prosecutors who sent deputy Marshalls threatening to arrest ME after the not guilty verdict was returned? I want to hear it from the boss. Any of you who think you have a right to defend yourself might want to read what Assistant US Attorneys Jack Burkhead, Jennifer Rozzoni and Shana Pennington did in order to make an attacking gang the victim of the person the gang attacked.

Here is the documentary chain of events since my original Oct. 15th story in the September case.

  • 4 hours later USA notifies defense and Court of problem with jury instructions
  • On Nov 2 Morrison and Sosa filed the following (New Trial Motion) claiming error, self-incompetence and dishonesty.
  • On Nov 18 USA filed Unopposed Motion to extend Response time to New Trial Motion granted (Motion)
  • On Nov 30 Pennington and Rozzoni file their Response to Motion for New Trial (Response)
  • New trial granted (New Trial Order)
  • All judges in the New Mexico District recuse from retrial.

Oddly enough in the Order the judge notes that prosecutors notified the defense of a technical error in the jury instructions the same day my original story was published. I still want to know why all judges of the New Mexico District recused following the Order based on just a technicality.

Let me tell you what happened in the second trial. In the first trial the judge threw out the conviction after realizing that Pennington and Rozzoni had lied to her fabricating a prior conviction of the Defendant, Jade Hicks, concocting a story of some wild violent incident for the jury. This time they were unable to use that fabrication, so they tried some other tactics that brand these prosecutors as enemies of the people. They act in the name of the people, but I submit that the people do not condone the acts in which they engage. I know I don’t.

For those of you unfamiliar with this case let me give you the undisputed facts. This incident happened at the 2007 Oktoberfest hosted by the US Air Force at Holloman AFB on behalf of the German Air Force contingent stationed for training at Holloman. All parties admit the event that started the incident was Adrian Guerra acting in such a manner that the beer in his mug ended up on the person of Nicola Robson. The prosecution contends this was an accident while the defense characterizes it as an assault with beer. This determination, of course, relies on the credibility of Adrian Guerra and possible motives to rebut the accident argument. In the first trial all of the eyewitnesses, including Guerra, testified that immediately prior to the beer spill Guerra was talking with Pablo Ochoa.

19 Q. Pablo Ochoa was there?
20 A. I think so, yes.
21 Q. Adrian was speaking with Pablo Ochoa?
22 A. Well, we were all speaking amongst each other.
Sarah Padilla – Page 71 Day 1

15 Q. And it’s your testimony that you never had a
16 discussion that evening with Pablo Ochoa?
17 A. Yes, I did talk to him.
18 Q. You did have words with him, right?
19 A. Yes.

Adrian Guerra – Page 142 Day 1

In the latest rendition Adrian barely knows Ochoa and does not remember clearly whether Ochoa was there at all that night. Why is that important? The government seemed willing to concede that Pablo Ochoa had, along with some other AHS athletes, raped Nicola Robson in High School. Get the point? Adrian Guerra just happened to spill his beer on the victim of the rapist to whom he was just speaking? But he’s a victim, right? Accidental spill my ass. But we have to have a peaceful Adrian this time since he testified at the last trial that he beat 2 smaller guys to the ground a few minutes later. This time the trial judge ruled that only positives that Guerra did that night would go to the jury allowing Jack Burkhead to declare in his close that Adrian had in fact done the right thing by going to the police omitting entirely the two fights. “He did the right thing.” That is what you might face if you defend yourself against a gang of attackers.

The case was not going well for the prosecution as Guerra recanted his previous testimony that he had been 15 feet from the altercation finally placing himself “2 feet away” when pressed by defense attorney Lee McMillian on how he could hear and see so clearly 15 feet through a crowd at a music event. Perhaps the end of the government’s credibility in the matter came when Adrian was asked to indicate a location on a diagram of the Oktoberfest that had been marked with X’s by the prior witnesses. The 30 seconds or so it took him to unsuccessfully deduce the meaning of the earlier marks before indicating direction of travel had to be killer on the prosecution. The idiot was too stupid to even remember that part of the story and he shacks up with one of the others telling the same story. We don’t hear any more from Adrian.

The guy who provided most of the avenues for the USA to abuse its power is an obscure civilian detective at Holloman AFB, Richard Gregory Schnell. Schnell had testified in the first trial that he was off the Monday following Oktoberfest because of some honor for his flying skill or something similar explaining why he did not begin his investigation until the following Tuesday. I know it didn’t make any sense to me, but here it is:

22 A. Yes, ma’am. I was — during the time frame it
23 was either a Monday — because sometimes we are given
24 a three-day weekend for winning down days if we meet
25 our goals, for flying. I don’t recall if I was flying
Page 29 Day 1
that Monday or Tuesday, if we were off that Monday.
Page 30 Day 1
Detective Richard Schnell

Schnell specifically referenced his testimony at the earlier trial indicating that no such honor was the reason he could not make it in after Oktoberfest where he attended “socially”. Get the picture?

Detective Schnell’s Keystone Kops investigation consisted of talking to and photographing Sarah Padilla. Oddly enough Schnell did not get a statement from Adrian Guerra though Padilla and Guerra testified that they were rarely out of each other’s sight. But you can imagine how swollen Adrian’s hands were after beating 2 individuals just 2 days earlier. That is about it for Schnell for about 3 years until August of 2010 when Schnell comes up with some German personnel who seemed to have seen and broke up the incident, so the government flies one in from Germany to testify. The other is still at Holloman. Indeed they did testify to a beer stein swinging incident, but one that happened at 7 pm, not after 11 like this one. Jennifer Rozzoni nearly swallowed her tongue when MSgt. Schmidt answered the time question with “1900 hours. 7 pm.” Rozzoni badgered him on the time even insinuating that the man could not tell the difference between 7pm and 11pm skies in September. This is where an ethical prosecutor excuses the witness and moves on. Napue v. Illinois, 360 U.S. 264 (1959) Instead the jury got to hear 2 witness to an earlier event played as if they were hearing about the same incident as the trial. In fact Jack Burkhead stressed, in his closing argument that the Germans made for disinterested party eyewitnesses, thus making a case for their credibility. Clearly both Merten and Schmidt appeared to testify as credible uninvolved parties. I don’t doubt that they testified honestly about the event they witnessed nearly 4 hours before the matter at hand. What do you call that? They were never asked to identify either Padilla or Hicks from the stand. The only reason they were called was to confuse the jury.

After learning how they had been had both Schmidt and Merten remained to watch the rest of the testimony. They chose to sit on the defense side. Shortly after they sat down Jack Burkhead comes to tell them the judge ordered them to sit behind the “victim”. One of the men even apologized to the family of the defendant.

Shortly after this charade in walks a guy looking like a gang member with a big gold earring sticking out of the top of his ear who sat down on the defense side. The jury noticed this guy and it was obvious. When confronted by defense attorney Lee McMillian regarding his identity the man was identified as an intern with the Office of the US Attorney. With an earring and a thug getup staring menacingly at the jury for a couple of hours from behind the family of the defendant? You better have a CV on that guy. He was asked to move to the government side, did so, then departed from the courtroom shortly thereafter. This sort of tactic, my friends, is the kind you can expect from these prosecutors.

Knowing their case was in shambles prosecutors moved on to the really dirty tricks. When it was time for the defense witnesses to testify who do we find stationed a few feet from where they are to wait for the call of the court? Adrian Guerra, strutting and puffing out his chest in front of the witnesses. After suggesting the witnesses move I went inside to tell McMillian and the Court Security Officer what was going on. McMillian was in an interview room with witness Chelsea Clark. I left the courtroom to get back in the hall where Adrian was alone with the witnesses. As I opened the inner door Mr. Guerra was standing with his ear to the interview room door. Both prosecutors were able to see Guerra’s fat ass scurry through the outer door. Adrian Guerra was then removed. Shortly thereafter he was banned from further testimony in the case. That is what Jack Burkhead is capable of.

The onslaught of the dirty trick campaign was not yet finished. In his closing argument Burkhead claimed that Dr. Gary Siebel had stated that the injuries to Padilla were consistent with impact and not a sharp cut when his actual testimony in this and the last trial are just the opposite. Oh yeah, Padilla had an 8cm cut on her face, but no other injuries. Had a CT scan and everything. Hit with a 2 lb. 6.1 oz. beer stein.

Even that was not enough for Jack Burkhead. McMillian had so completely ruined Burkhead’s case by getting some truth out of the prosecution witnesses that Jack was left entirely without a case at closing. In his closing argument Jack Burkhead says Heather Ashe and Marquetta both gave statements to police. “Ask yourselves, why didn’t the defendant give a statement to the police?” Those of you who know the law, this is self-explanatory. For the rest CHAPMAN v. CALIFORNIA, 386 U.S. 18 (1967).

It was this kind of outrageous conduct throughout 2 trials that resulted in a verdict that no one yet can explain. Not guilty of striking Sarah Padilla with the stein, but hung on the charge of serious bodily injury. The only way that this makes any sense is some of the jurors simply decided that even if Hicks hit her with the mug Padilla deserved it. Read the jury instructions. No other way.

The government expended enormous resources on this case, including flying one man from Germany to testify about an unrelated 7pm incident, in order to obtain a conviction with no regard to justice. That is your tax dollars being used to bring false testimony against a citizen in order to obtain an unjust conviction. Do you have an interest in convicting victims who fight back when a gang of alcoholic 7 year undergraduates attack as a pack? At worst Jade Hicks is Bernie Goetz. The truth is likely more that the beastly alcoholic, Heather Ashe, the one with the wine glass, the only weapon consistent with the sharp cut to which Dr. Siebel referred, missed Ms. Hicks’ throat and sliced open Padilla’s face. You explain to me why this key witness in the first trial was not called this time with a real lawyer defending?

Why all the zeal and spare no expense strategy on a relatively minor case? After watching every minute of both trials and watching these people operate I conclude it is nothing more than the defendant’s home address is Mescalero, NM.

Jennifer. This is you from the first trial:

10 Your Honor we will be seeking a term of
11 incarceration in this case at sentencing. Moreover,
12 we would submit that there is no likelihood of any
13 motion for acquittal being granted or a new trial
14 being granted, and that there is a substantial
15 likelihood that Ms. Hicks, having been found guilty
16 now of committing this crime of violence and smashing
17 a beer stein against Sarah Padilla’s face, who the
18 testimony the jury has found she barely knew, we would
19 submit that she does pose a danger, not just to these
20 individuals who have now testified against her, but to
21 the community. And we’d ask for her immediate
22 detention at this time.
Jennifer Rozzoni – Page 90 – Day 3

I do hope you that when you exited that courtroom beaten and shamed, you felt 10 percent of what your victim felt as you uttered those words. Learn from it. Unlike Jack you have a chance be better than this.

It has been suggested that I simply hate the government. My friends at the DA’s office will no doubt find amusement at that. The fact is I cannot countenance those who will pervert the law and use the power of the sovereignty to persecute the people.

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
– Berger v. United States, 295 U.S. 78 (1935)

Part 3 – USA v Hicks – Prosecutors Tell the Truth. Persecutors Don’t.