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STATE OF NEW YORK

APPELLATE DIVISION

SUPREME COURT
FOURTH DEPARTMENT

THE PEOPLE OF THE STATE OF NEW YORK


Respondent,
ATTORNEYS AFFIRMATION IN
SUPPORT OF A CERTIFICATE
GRANTING LEAVE TO APPEAL
PURSUANT TO NY CPL 460.15
Oswego County
Indictment No. 94-161

GARY J. THIBODEAU,
Defendant-Petitioner.

LISA A. PEEBLES, attorney for the defendant herein, being admitted to practice before
the Courts of this State, with offices located at 4 Clinton Square, 3rd Floor, Syracuse, New York,
13202, affirms the following under the penalties of perjury:
1.

I represent the defendant, Gary J. Thibodeau, in the above-captioned matter, and I

make this affirmation in support of the relief sought in the annexed Notice of Motion.
2.

The sources of my information and grounds for my belief are an examination of the

various papers filed in connection with this proceeding, my review of the discovery and filings in
Mr. Thibodeaus case, the evidentiary hearing testimony, and my independent investigation of
this matter.
3.

Pursuant to New York Criminal Procedure Law 450.15, Gary Thibodeau

respectfully requests permission to appeal an order of the Oswego County Court (King, D.),
dated March 2, 2016, denying his motion to vacate his judgment of conviction pursuant to CPL

440.10 and all prior orders denying the admissibility of certain evidence. No previous application
for leave to appeal has been made.
4.

For the Courts consideration and in support of the relief requested in this motion,

attached as exhibits are: Thibodeaus CPL 440.10 motion with exhibits, dated July 30, 2014;
Supplemental Affirmation #1, dated August 26, 2014; Peoples Answering Affirmation with
Exhibits, dated October 10, 2014; Affirmation in Reply, dated October 23, 2014; Supplemental
Affirmation #2, dated January 11, 2015; Trial Transcript (referred herein as TT) ; Transcript of
Evidentiary Hearing held January 12, 16, February 3, 5, 6 and 7, March 24 27, and April 7,
2015 (referred herein as H.T); Exhibits received into evidence at the hearing; Motion to
Reconsider Admissibility of Certain Documents (Bohrers writings), dated February 3, 2015;
County Courts Decision denying Motion to Reconsider Admissibility of Certain Documents,
dated April 6, 2015; Letter Motion/Offer of Proof regarding Michael Bohrers prior attempted
kidnapping offenses, dated March 19, 2015, and attached exhibits; Supplemental Motion for
Reconsideration of Admissibility of Certain Evidence, dated June 5, 2015, and attached exhibits;
Response in Opposition, dated July 17, 2015; June 30, 2015 Letter Request to call retired FBI
Behavioral Analyst Clinton Van Zandt; Supplemental Letter Brief (Van Zandt) and exhibits,
dated July 17, 2015; Melissa Adamss Proffer Letter with attached exhibits, dated September 2,
2015; Letter Request to call Rhonda Burr and proffered affidavit, dated September 30, 2015;
Letter Request for disclosure of PINS petition, dated October 7, 2015; Martha Sturtz Proffer
Letter, dated September 30, 2015; County Courts decision denying defense motion to call
certain witnesses, dated November 2, 2015; Thibodeaus Final Memorandum of Law, dated
November 16, 2015; The Peoples Final Memorandum of Law, dated November 16, 2015; and
the County Courts decision denying Thibodeaus 440.10 motion, dated March 2, 2016.

PROCEDURAL HISTORY
5.

On August 7, 1995, a judgment of conviction was entered against Gary Thibodeau,

convicting him after a jury trial of Kidnapping, 1st Degree, in violation of New York Penal Law
135.25. Thibodeau was sentenced to 25 years to life imprisonment. He is currently housed at
Clinton Correctional Facility.
6.

In a published decision, this Court rejected Thibodeaus consolidated appeals

challenging both his conviction and sentence on direct appeal and the denial of his postconviction motion to vacate the judgment pursuant to N.Y. C.P.L. 330.30,
440.10(1)(b),(c),(f),(g) and (h). People v. Thibodeau, 267 A.D. 2d 952 (4th Dept. 1999). The
New York Court of Appeals denied leave to appeal. People v. Thibodeau, 95 N.Y. 2d 805
(2000) (table).
7.

Thereafter, Thibodeau sought federal habeas corpus relief pursuant to 28 U.S.C.

2254 in the United States District Court for the Northern District of New York, which was
denied on January 3, 2005. The district courts decision was affirmed on appeal. Thibodeau v.
Portuondo, 486 F.3d 61 (2d Cir. 2007).
8.

By notice of motion dated July 30, 2014, Thibodeau moved to vacate his judgment of

conviction pursuant to 440.10(1)(b), (g), and (h) on the grounds of newly discovered evidence
and the Peoples failure to comply with their state and federal constitutional requirements under
Brady v. Maryland, 373 U.S. 83 (1963). (Thibodeaus 440.10 motion with Exhibits, dated July
30, 2014).
9.

The People filed a written response opposing Thibodeaus motion in all respects.

(Peoples Answering Affirmation with Exhibits, dated October 10, 2014).

10.

The County Court ordered an evidentiary hearing that was held on January 12-16,

February 3, 5-6, March 24-27, and recessed at the close of testimony on April 7, 2015.
11.

During the pendency of the evidentiary hearing, Thibodeau filed several substantive

motions seeking to introduce testimony and exhibits in support of his motion, all of which were
denied by the County Court.
12.

At the close of hearing testimony on April 7, 2015, the County Court ordered a recess

of the evidentiary hearing for forensic testing of an item of evidence and promised to issue a
decision on April 10, 2015, regarding Thibodeaus April 6, 2015, letter request to call an
additional witness, John Bohrer.
13.

During the recess of the evidentiary hearing, Thibodeau learned of additional

evidence supporting both claims in his motion and filed requests with the County Court seeking
to offer this evidence at the evidentiary hearing.
14.

On November 2, 2015, the County Court issued a Decision and Order denying

Thibodeaus April 6, 2015, letter request and all requests made during the April 7, 2015, recess
of the evidentiary hearing, thereby closing the evidentiary hearing.
15.

The parties submitted final memoranda of law on November 16, 2015. (Thibodeaus

final Memorandum of Law, dated November 16, 2015; Peoples Final Memorandum of Law,
dated November 16, 2015). The County Courts decision denying the CPL 440.10 motion to
vacate Thibodeaus judgment of conviction is dated March 2, 2016. (Decision and Order, dated
March 2, 2016). Deponent has not received the Peoples Notice of Entry.

SUMMARY OF ISSUES ON APPEAL


I.

THE DENIAL OF THIBODEAUS BRADY VIOLATION CLAIM REQUIRES


APPELLATE REVIEW BECAUSE THE COUNTY COURTS DECISION DOES
NOT COMPLY WITH THE MANDATE SET FORTH IN BRADY v. MARYLAND,
373 U.S. 83 (1963), AND THIBODEAU WAS DENIED DUE PROCESS OF LAW
WHEN THE COUNTY COURT PRECLUDED HIM FROM PRESENTING
EVIDENCE IN SUPPORT OF THIS CLAIM.
A.

The County Courts First Reason for Denying Thibodeaus Brady


Violation Claim that Allen Was Not a Confidential Informant Finds
No Support in the Record and Contradicts the County Courts November
2, 2015,Determination that Allens Confidential Informant Status Was
Undisputed.

B.

The County Courts Second Reason for Denying Thibodeaus Brady


Violation Claim that Allens Confidential Informant Evidence Was
Provided to Thibodeaus Trial Attorney Is Contrary to the Documentary
Evidence Admitted during the Post-Conviction Hearing.
(1) The Non-Disclosure of the December 9, 1994, internal memoranda
during the December 14, 1994, Discovery Meeting between Fahey and
Dodd.
(2) The Non-Disclosure of Investigator Kleists Report and Allens
Confidential Informant File on May 17, 1995.
(3) The Non-Disclosure of the Kleist Report and Allens Confidential
Informant File on June 5, 1995.

II.

C.

The County Courts Third Reason for Denying Thibodeaus Brady


Violation Claim that the Confidential Informant Evidence Was too
Remote and too Speculative to Be Admissible at Trial Is Erroneous
Because the County Court Would not Allow Thibodeau to Present
Evidence Showing the Continuity Of Allens Confidential Informant
Status.

D.

The County Courts Final Reason for Denying Thibodeaus Brady


Violation Claim that Fahey Disregarded the Confidential Informant
Evidence for Strategic Reasons Is Entirely Nonsensical and Contradicted
by the Record.

APPELLATE REVIEW IS REQUIRED BECAUSE THE COUNTY COURTS


DECISION DENYING THIBODEAUS MOTION FOR A NEW TRIAL WAS BASED
ON A FLAWED LEGAL ANALYSIS AND UNREASONABLE FACTUAL
CONCLUSIONS.
5

III.

IV.

A.

The County Court Erred by Failing to Assess the New Evidence Against the
Backdrop of the Trial Evidence.

B.

The County Court Erred by Failing to Non-Mechanically Consider the New


Evidence in Its Totality.

APPELLATE REVIEW IS REQUIRED BECAUSE THE COUNTY COURT


VIOLATED THIBODEAUS STATE AND FEDERAL DUE PROCESS RIGHTS BY
LIMITING HIS PRESENTATION OF THIRD-PARTY CULPABILITY EVIDENCE.
A.

The County Court Erred by Analyzing the Admissibility of Bohrers


Related Prior Conduct Under Molineux.

B.

The County Court Erred by Excluding Relevant Evidence Tending to


Corroborate Third-Party Culpability.

C.

The County Courts Mechanical Application of the Hearsay Rules to


Reject Third- Party Admissions of Steen, Bohrer, Breckenridge, and
Wescott Denied Thibodeau His State and Federal Constitutional Right To
Present a Defense.

APPELLATE REVIEW IS REQUIRED BECAUSE THE COUNTY COURT FAILED


TO ADDRESS THIBODEAUS CLAIM OF ACTUAL INNOCENCE WHICH WAS
PROVEN BY THE NEWLY DISCOVERED EVIDENCE.
FACTUAL BACKGROUND
16.

On April 3, 1994, Heidi Allen was working the morning shift as a clerk at the

D&W convenience store (D&W) when she was abducted and never heard from again. Within
minutes of her disappearance, deputies from the Oswego County Sheriffs Office responded to
the store and immediately began interviewing customers and potential witnesses. No physical
evidence was ever discovered and Allens whereabouts remain a mystery.
17.

Almost immediately, investigators began focusing on Richard Thibodeau, because

he contacted the command center to tell them he had been at the D&W that morning to purchase
cigarettes. Within 12 days of Allens disappearance, Richard Thibodeaus brother, Gary
Thibodeau (Thibodeau or defendant), also became a suspect. In August of 1994, an Oswego
County grand jury returned a two-count indictment charging both Richard and Gary Thibodeau
6

with Kidnapping in the First and Second Degrees, in violation of N.Y. Penal Law 135.25,
135.20. Following a jury trial, Gary Thibodeau was convicted of kidnapping in the first degree
and sentenced to 25 years to life imprisonment. Richard Thibodeau was tried second and
acquitted. The brothers have always maintained their innocence.
Gary Thibodeaus Jury Trial
18.

A jury trial was conducted from May 22 to June 19, 1995.

19.

Gary Thibodeau was represented at trial by Joseph Fahey, who is now a retired

County Court Judge in Onondaga County, New York. Richard Thibodeau was represented at a
separate trial by William Walsh, also a retired County Court Judge in Onondaga County, New
York.
20.

The States case was predicated mostly (if not entirely) on circumstantial

evidence. At the heart of the prosecution was the fact that Richard Thibodeau drove his white
van with dark blue doors to the D&W store the morning of Allens abduction and purchased two
packs of cigarettes at approximately 7:42 a.m. This was the last purchase recorded by Allen on
the cash register.
21.

John Swenszkowki recalled seeing Richard get out of his van and walk toward the

entrance of the store as Swenszkowski was returning from the store to his car after purchasing a
pack of cigarettes and two Sunday newspapers at 7:41 a.m. (TT 1., 1234-35, 1239, 1246-47). As
Swenszkowski walked past Richards van he did not notice anybody inside the vehicle. (TT.,
1237). After settling into his vehicle and pulling forward to drive from the parking lot,
Swenszkowski noticed Richards van had moved forward about three or four feet, before resting

TT refers to Gary Thibodeaus trial transcript.

next to the double doors in front of the store with its passenger side closest to the stores
entrance. (TT., 1239, 1245). Swenszkowski then drove home.
22.

Several minutes later, customer David Stinson entered the store to purchase a

morning newspaper and noticed the clerk was absent. (TT., 1239, 1245). Stinson waited by the
counter perusing the paper, as more customers walked in the store. Two people bought
newspapers, left money on the counter, and left the store. (TT., 1403-04). After waiting in the
store for a few minutes, Stinson and two other individuals who had entered the store began
looking through the store for Allen. (TT., 1405). As the other individuals continued searching
inside the store, Stinson exited the store to check whether Allen was in her car parked in the lot.
Before Stinson got to Allens car, he noticed a Sheriffs car at a nearby intersection and flagged
him into the store.
23.

Deputy Richard Curtis testified that Stinson flagged him down at approximately

7:45 a.m. (TT., 1416-1422). Upon arriving at the store, Curtis radioed dispatch to inform them
of the suspicious absence of Allen, interviewed customers, cordoned off the store, and conducted
a search of the area. (TT., 1417-22).
24.

Christopher Bivens testified that he observed two unidentified white males and

one white female in front of the store as he was traveling east along Route 104 from Oswego.
(TT., 1287-1291). Prior to trial, Bivens provided several accounts of his observations on the day
of Allens disappearance.
a. On April 8, 1994, Bivens first contacted the police by phone and reported driving past
the store sometime between 8:00 and 8:30 a.m. and observing two men and a woman
arguing on the porch area of the store. (TT. 3120). He was unable to describe the
people with any specificity. (TT., 3120). Bivens was also unable to identify any
vehicles at the store, but stated that there was one vehicle near the gas pump. (TT.,
3121, 1317).
b. On April 14, 1994, a $20,000 reward was announced in the case.
8

c. On April 17, 1994, Deputy Cromie contacted Bivens to conduct a follow-up


conversation. (TT., 3145). Cromie testified that Bivens claimed during the phone
call, I know that was Heidi. (TT., 3146). At trial, however, Bivens was not as
confident. Instead, Bivens testified that he informed Deputy Cromie that it might
have been Allen at the store. (TT., 1324).
d. On April 18, 2014, Bivens provided a statement to police at his home. He stated that
he was driving approximately 45 miles per hour as he passed the D&W. (TT., 1338).
He was uncertain whether the van was a Dodge or a Chevy. (TT., 1332-1333).
Bivens also described the two men involved as strong, husky, and between thirty and
forty years old. (TT., 1328). He claimed that one man had the female in a bear hug.
(TT., 1352).
e. On April 20, 2014, Investigators Hall and Yerdon drove Bivens past Richard
Thibodeaus van. Bivens told the officers that the van was the right style, but the
wrong color. (TT., 1342).
f. On April 21, 1994, Investigator Hall showed Bivens photographs of Richard
Thibodeaus van. After engaging in a conversation about the back of the van, Bivens
told the officer that he was 80 percent sure the van he saw on the morning of Allens
disappearance belonged to Richard Thibodeau. (TT., 1344). Investigator Hall then
told Bivens to sleep on it overnight. (TT., 1344).
g. On April 22, 1994, officers met with Bivens at approximately 7:00 a.m. and showed
him additional photographs of the van. For the first time, Bivens claimed with
certainty that the van belonged to Richard Thibodeau because of the condition of the
rear bumper and the presence of rust spots over the rear wheel. (TT., 1344-1345).
h. At trial, Bivens testified that he left his residence in Oswego at approximately 7:30
a.m., instead of between 8:00 and 8:30 a.m. (TT., 1287-1288). Because he was
running low on fuel, he slowed down to 30 miles per hour, instead of 45, as he neared
the D&W to see whether it was open. (TT., 1290). He claimed to have seen one of
the males holding the female in a bear hug. (TT., 1293). At trial, Bivens testified that
he saw a Chevy C-10 light blue van with dark blue doors and a six inch stripe down
its side in the center. (TT., 1299). He further testified that the back part of the
bumper was hanging down and had a trailer. He identified the van as belonging to
Richard Thibodeau based on the condition of the bumper and rust spots over the rear
wheel. (TT., 1303-1304). He testified that he did not pull into the gas station because
he did not have enough time to get gas and did not want to get involved in a dispute.
(TT., 1311).
25.

Nancy Fabian told the jury she observed a van at approximately 7:45 a.m. driving

close behind her as she was traveling east of the convenience store along Route 104. (TT., 1731).
She testified that the van was driving erratically and that the driver, who she described as having
9

dark hair, appeared to be struggling with something inside the van. (TT., 1728-29). Of note,
Richard Thibodeaus hair was very gray.
26.

Donald Neville, Sr., one of Gary Thibodeaus neighbors on Kenyon Road,

testified about making two observations as he drove by the defendants house at approximately
7:30 a.m. First, he noticed that there were no cars parked in front of his home. (TT., 1778-81,
1785-86). Second, he noticed the presence of tracks in the snow on Thibodeaus driveway, which
struck Neville as unusual because there was usually not any action around Garys home that
early in the morning. (TT., 1787). When Donald Neville, Sr., passed Thibodeaus house again
that morning, between 8:00 a.m. and 8:30 a.m., he noticed Richards van parked in the driveway.
(TT., 1797-98).
27.

Donald Neville, Jr., testified that he heard a lot of yelling and screaming

coming from Thibodeaus house as he stood outside his fathers house at approximately 10:30
that morning. (TT., 1962). He thought there was a violent argument between a man and a
woman. (TT., 1962-63). Neville testified that he did not see a van at Thibodeaus residence.
(TT., 1968).
28.

Michael Neville also testified that he heard a male and female shouting from

within Garys residence at around the same time as Donald Neville, Jr. (TT., 1984). The
brothers both testified that the screaming continued for about 30 minutes. (TT., 1965, 1984).
29.

Two other neighbors, Edward Bartlett and Trisha Ann Bartlett, heard no voices

and never observed a van at Garys residence Easter morning.


30.

Other neighbors, William Cowen and Susan Cowen, testified that they saw a dark

colored van on the side of the road just south of Garys driveway at 8:55 a.m., but neither could

10

identify the van as belonging to Richard Thibodeau. (TT., 1867-1881). Susan Cowen testified
she had never seen the van before. (TT., 1894).
31.

Two more neighbors, Christine Wilson-Frasier and Steven Dennis Frasier,

testified that they saw Richard Thibodeaus van in his own driveway sometime between 8:00
a.m. and 8:45 a.m. (TT., 2733-2739, 2988).
32.

At trial, Brittany Ann Link claimed to have seen Richard Thibodeaus van at the

defendants residence on Easter morning. She later recanted her testimony. At trial, however,
she testified that she lived across the street from Thibodeau. When she woke up on Easter
morning, she looked out the window to check the weather and saw Richard Thibodeaus van in
the defendants driveway. (TT., 1838-40). The time was 7:48 a.m. (TT., 1842). Link testified
that she had seen this van at the defendants house about 25 to 30 times in the past. (TT., 1843).
She had not told anyone about the van until 13 months after Allen had disappeared. (TT., 1853,
1857). After the trial, Link provided new information casting doubt on her trial testimony. She
said that she had felt pressure to testify that she had seen Richard Thibodeaus van because she
believed that is was what law enforcement authorities wanted her to say.
33.

The People also presented testimony through two jailhouse informants, Robert

Baldasaro and James McDonald, who were housed in a Worcester, Massachusetts jail with Gary
Thibodeau. In summary, both men testified that Thibodeau told them he occasionally used drugs
with Allen, that she was upset because she felt Gary was going to try to screw her about
something and get [Allen] in some kind of trouble, that Allen had been bludgeoned to death
with Thibodeaus shovel, and that investigators would never find her body. (TT., 1544, 1637,
1666, 1669). However, neither informant testified that Thibodeau outright confessed to
abducting and killing Allen.

11

34.

Richard Thibodeaus van was tested forensically and no physical evidence of

Allen was present in his van. To date, Richards van remains in the custody of the Oswego
County Sheriffs Department.
35.

Following the trial, the jury rendered a verdict of guilty on the count of

Kidnapping in the First Degree. On August 7, 1995, Gary Thibodeau was sentenced to 25 years
to life.
Newly Discovered Evidence
36. In February, 2013, Tonya Priest was flown to New York by law enforcement for an
in-person interview after they spoke to her by telephone. During the interview, Ms. Priest
disclosed that back in 2006 an individual named James Steen, a/k/a Thumper, told her and
Thumpers then girlfriend, Victoria West, that he along with two other individuals, Roger
Breckenridge and Michael Bohrer, abducted Heidi Allen from the D&W convenience store, beat
her to death, and later disposed of her body in the woods near Rice Road in Mexico, New York.
Priest disclosed the information because she could no longer live with the knowledge that an
innocent person was in prison. On February 28, 2013, and March 1, 2013, Tonya Priest provided
detailed sworn affidavits to the Oswego County Sheriffs Office regarding the information she
learned through Steen (Defense Exhibit 35) and agreed to contact the girlfriend of Roger
Breckenridge, Jennifer Wescott, who she believed was a witness to the kidnapping of Heidi
Allen and later assisted in disposing of the van used in the abduction. That same day, after
providing an affidavit and while still in New York for the investigation, Tonya Priest reached out
to Jennifer Wescott on Facebook and Jennifer Wescott accepted her friend request. Their initial
communication centered on their respective children and was followed up by Tonya claiming her
ex-husband was about to appear for a parole hearing and her concern that he would disclose that

12

she knew what happened with Heidi Allen. Tonya Priest was baiting Jennifer Wescott into
acknowledging what she knew about the disappearance of Heidi Allen.
37. On March 2, 2013, Tonya Priest called Jennifer Wescott. The phone call was
monitored and recorded by Oswego County Sheriffs Deputy Rojek, but that fact was not made
known to Wescott. During the phone conversation, Wescott confirmed that she witnessed three
new suspects bring Allen to her home in a van and that she later helped destroy the van:
Tonya Priest: But he [James Steen] just told me that him, Michael Bohrer
and Roger had taken Mikes van to the store and that they brought her to
your house and he said that you did flip out when they got there and I stuck
up for you and I dont blame you for flipping out . . . its not your fault you
know so I knew a long time ago-I just didnt want you to think I thought
less of you.
Jennifer Wescott: Right . . .no, um in my own head dropped that shit . . .
I dont know probably about ten years ago. . . but it took me a while to get
it gone.
Tonya Priest: How the hell, why did they even involve you, or even do
this?
Jennifer Wescott: I dont know.
Tonya Priest: I mean you were young.
Jennifer Wescott: yeah that and the cocaine.
Tonya Priest: It was for cocaine. Yeah, sounds like the area. I dont know
kiddo. I love you and Im sorry this happened to you.
Jennifer Wescott: Yeah.
Tonya Priest: Roger put you through a lot and there is no reason for it
Jennifer. You are a good girl.
Jennifer Wescott: Well, maybe that is why he is sitting in Elmira where
he needs to be right now.
***

13

Tonya Priest: Did you even know that . . . this was Heidi that they brought
there and that this is what they were going to do?
Jennifer Wescott: Nah, uh uh
Tonya Priest: Had no clue, they just showed up with her? . . What a bad
position for you probably scared the shit out of you?
Jennifer Wescott: Well its not even - they didnt even bring her in the
house, they made her sit in the van.
***
Tonya Priest: Thats what he had told me and I mean as long as thats all
you know and everything then the only thing they said you did was junk the
van with Roger then I really wouldnt worry about anything. I mean you
really had no part of it-its kind of sad that it even happened. Is that why
you guys went to Florida?
Jennifer Wescott: Uh huh . . . . Yup, We went to Florida before Jacob,
right after . . . .
***
Tonya Priest: What did they do just leave her in the van when they got to
your house?
Jennifer Wescott: Yeah.
***
Jennifer Wescott: It bothers me to talk about it. I wont lie to you but . .
. .
Tonya Priest: Oh I know Hon, but thats why it bothers me its been
bothering me since Thumper told me and I was like no way Jennifer doesnt
know she would have talked to me and Vicki about because we were all
very close.
Jennifer Wescott: I couldnt say anything about that-never to anybody-no
nothing.
Tonya Priest: Why was it you didnt say anything because they scared
you Hon?
Jennifer Wescott: Uh Yeah.
14

(Defense Exhibit 35, Priest/Wescott March 2, 2013, monitored & recorded call).
38. This recording confirmed new evidence that three men, not including Gary or
Richard Thibodeau, abducted Allen. Wescott also confirmed her earlier disclosure to Priest that
her only involvement was that of helping junk the van. (Id. at 6:50). Wescott told Priest she
erased these events from her mind a decade earlier and she did not want to have to think about it
again. (Id. at 2:09-2-:19, 13:22-13:40). Based upon the statements of Tonya Priest and the
admissions made by Wescott during her phone conversation with Tonya Priest, investigators
conducted an in-person videotaped interview of Wescott on March 7, 2013, at the Sheriffs
Office. During her conversation with Investigator Pietroski, Wescott denied any knowledge
surrounding the disappearance of Heidi Allen. Id. Wescott even provided an alibi for Roger
Breckenridge. (Id. at :50, 3:26-3:38). According to Wescott, she had no personal knowledge
pertaining to Allens abduction, but learned details from Priest over the telephone. Wescott told
Investigator Pietroski that she exclaimed, Tonya, what the hell are you talking about? Im
like youre fucking crazy when Priest told her about Steens admissions. (Id. at 6:48-6:55,
28:20-28:26). Wescott went further stating she told Priest in that phone call that Bohrer,
Breckenridge, and Steen could not have abducted Allen because I lived with my mother and Im
sure I would know if they came there with a woman they were getting ready to kill. (Id. at
29:00-29:13). Wescott denied ever telling Priest that Allen was brought to her house and made to
sit in the van. (Id. at 31:19-31:25, 40:40-40:47, 41:50-41:53).
39. Investigator Pietroski eventually confronted Wescott with some of the statements
she made during the recorded conversation. After he told her their conversation had been
recorded, Wescott stated, Well then I tell you what, she chopped something because I never
said anything about a white van. (Id. at 40:50-42:00). Investigator Pietroski then told her,
15

well she says you get pissed off because they brought her there and youre like yeah and shes
like yeah and youre like well she stayed out in the van. She never came in your house and she
says you got pissed off and she says I dont blame you. Wescott responded, I dont know, I
dont know, I have nothing else to say, I have nothing else to say. (Id. at 42:35-42:45).
However, Investigator Pietroski proceeded to assure Wescott that even if she bore some
responsibility, she would not be in any trouble, but she needed to explain why she said this to
Tonya Priest. (Id. at 58:17). Wescott simply stated, probably just to shut the crazy bitch up, to
tell you the truth, I mean, she was rambling on and on. (Id.). Investigator Pietroski found
Wescotts denials acceptable and allowed her to execute a statement denying any knowledge
regarding the kidnapping of Heidi Allen despite her admissions on the monitored recording with
Tonya Priest. Even Wescott did not believe this would be enough to release her from criminal
liability, yet it was and she signed a statement denying the content of her phone conversation
with Priest. (Id.). Investigator Pietroski told Wescott that he was not looking to arrest her for
anything, but simply looking to corroborate what people were saying or to squash the
investigation. (Id. at 1:22:52-1:24:10). Pietroski testified at the post-conviction hearing and
admitted that he did not believe the statement he wrote for Wescott was the truth. (H.T. 2, 794).
40. On March 21, 2013, Michael Bohrer, one of three new suspects identified by Priest
and Wescott, was interviewed by Investigator Pietroski, and although he denied involvement in
Heidi Allens abduction, he revealed that he was originally interviewed in 1994 early on in the
investigation at the Sheriffs Office by Deputy Wheeler. (Defense Exhibit 35, Pietroski/Bohrer
March 21, 2013, audio interview). During this particular interview, when asked about his
knowledge surrounding the abduction of Heidi Allen, he stated it is different from what

H.T. refers to Gary Thibodeaus current CPL 440.10 post-conviction hearing held on January 12, 16, February 3,
5, 6 and 7, March 24 27, and April 7, 2015.

16

everybody else believes. (Id.). He admitted to living at Spinners, a hotel right down the road
from the D & W, at the time she disappeared and he admitted to being obsessed with the Heidi
Allen case and hoarding a box of memorabilia about the case. Bohrer also stated that he was
scrapping metal and made multiple trips to the junkyard owned by Richard Murtaugh.
Significantly, Bohrer also stated that he had been waiting for this call by law enforcement
because he knew he was going to pop up in the picture someday. Bohrer proclaimed that he
was not capable of kidnapping Allen because he is not a violent man and he had two daughters
around Allens age at the time she disappeared.
41. Both Steen and Beckenridge were interviewed by Oswego County Sheriffs
Investigators while they were serving state prison sentences for murder and grand larceny
respectively and both denied involvement in Allens disappearance.
42. Through considerable investigation by the defense, additional corroborative
evidence was uncovered in support of the admissions made by Wescott during the monitored
call, including: eye witness testimony by William Pierce identifying Steen as Allens abductor;
discovery of a collapsed cabin off of Rice Road where three cadaver dogs indicated for the
presence of human remains; evidence of Michael Bohrers violent past against women, including
two prior kidnapping attempts; multiple witnesses who heard the three new suspects throughout
the past 20 years admit involvement in Allens disappearance; and the post-conviction testimony
by the three new suspects themselves.
43. The newly discovered evidence provides both the identity of the actual abductors
and murderers of Allen and a motive for the crime. In addition to the newly discovered
evidence, in June 2014, defense counsel discovered several reports that clearly indicate that
Heidi Allen was a confidential informant. The information concerning Allens status as a

17

confidential informant was never turned over to Gary Thibodeaus trial counsel, and counsel did
not learn of this information until the summer of 2014. The significance of Allens status as a
confidential informant is heightened by the fact that Wescott brought up cocaine when Priest
asked why the three new suspects did this; Michael Bohrer volunteered that he knew of Allens
status as an informant; and all three suspects were known to sell marijuana.
ARGUMENT
I.

THE DENIAL OF THIBODEAUS BRADY VIOLATION CLAIM REQUIRES


APPELLATE REVIEW BECAUSE THE COUNTY COURTS DECISION DOES
NOT COMPLY WITH THE MANDATE SET FORTH IN BRADY v. MARYLAND, 373
U.S. 83 (1963), AND THIBODEAU WAS DENIED DUE PROCESS OF LAW WHEN
THE COUNTY COURT PRECLUDED HIM FROM PRESENTING EVIDENCE IN
SUPPORT OF THIS CLAIM.
44. Thibodeaus constitutional claim pursuant to New York CPL 440.10 (1)(b) and (h)
centered on the prosecutions failure to fulfill their continuing Brady v. Maryland, 373 U.S. 83
(1963), obligations. Specifically, the prosecution actively suppressed Allens status as a
confidential informant for the Oswego County Sheriffs Department and the Departments loss
of Allens confidential informant file in the parking lot of the D&W convenience store. On April
7, 2015, after the testimony concluded, the County Court declared an official recess of the
hearing to allow further investigation into evidentiary matters. During the April 7, 2015, recess
Thibodeau learned of additional evidence supporting his Brady violation claim, but the County
Court refused to permit Thibodeau the opportunity to present this evidence.
45. Thibodeaus Brady violation claim included the prosecutions failure to provide
Thibodeau with the following documents pertaining to Allens confidential informant status and
the exposure of her CI file: (1) December 9, 1994, internal memoranda of Oswego County
Sheriffs Department Deputies Van Patten, and Montgomery documenting the creation, loss, and
recovery of Allens CI file (Defense Exhibits 8,9); (2) Oswego County Sheriffs Department
18

Investigator Kleists May 16, 1995, report indicating he found Allens CI file in bulk storage on
that date; and (3) Allens CI file (Defense Exhibits 11, 11A).
46. Through a Decision and Order, dated March 2, 2016, the Oswego County Court
denied Thibodeaus Brady violation claim on the following grounds: (1) there was no Brady
material to turn over because Allen was not a confidential informant because she was never
formally signed up and her information was not useful to the Oswego County Sheriffs
Department; (2) Thibodeaus trial attorney, Joseph Fahey, received all evidence pertaining to
Allens CI status on December 14, 1994, May 17, 1995, and June 5, 1995; (3) Allens CI status
was too speculative and remote in time from her abduction to be admissible at trial; and (4)
Fahey had the CI evidence but chose not to use it at trial for strategic reasons. (Decision and
Order, March 2, 2016, at 3-19).
47. The County Courts Decision and Order denying Thibodeaus Brady violation claim
contains both questions of fact and law necessitating appellate review.
Applicable Law
48. In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court held the
prosecution has the duty to furnish favorable information to the accused and that failure to do so
violates due process where the evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution. Id. at 87.
49. Brady material includes impeachment evidence as well as exculpatory evidence.
United States v. Bagley, 473 U.S. 667, 676 (1985). Such evidence is material if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. Id. at 682.

19

50. Under New York law, where a defendant makes a specific request for a document,
the materiality element is established provided there exists a reasonable possibility that it
would have changed the result of the proceedings. People v. Garrett, 23 N.Y.3d 878, 891
(2014) (quoting People v. Fuentes, 12 N.Y.3d 259, 265 (2009)). Failure to disclose specifically
requested Brady material is more serious in its potential to undermine the fairness of the trial,
and ought to be given more weight.by a reviewing court. People v. Vilardi, 76 N.Y.2d 67, 77
(1990)). Where the defense itself has provided specific notice of its interest in particular
material, heightened rather than lessened prosecutorial care is appropriate. Id. The reasonable
possibility standard is equivalent to the seldom if ever excusable rule. Id.
51. On December 8, 1994, Attorney Fahey specifically requested the Oswego County
District Attorney to disclose Allens CI file, stating:
The report that Mr. Walsh shared with me indicated that there was a file in existence
that was brought to the scene of the D&W, but Mr. Walsh has not been given that
particular file. Thats what I would ask to be disclosed.
(December 8, 1994, Pretrial Motion Hearing Transcript., p. 31).
In light of this specific request, the reasonable possibility standard applies to the facts of this
case.
A.

The County Courts First Reason for Denying Thibodeaus Brady


Violation Claim--that Allen Was Not a CI--Finds No Support in the
Record and Contradicts the County Courts November 2, 2015,
Determination that Allens CI Status Was Undisputed.

52. The first ground used to deny Thibodeaus Brady violation claim rests on the County
Courts implausible finding that Allen was not really a CI. Therefore, the County Court
concludes, the prosecution was not required to disclose it to the defense. To the contrary, the
evidence presented at the post-conviction hearing established the following:

20

(a) Heidi Allen, a 16-year-old high school student, became a confidential informant
(CI) for the Oswego County Sheriffs Department on December 11, 1991. (H.T.,
1927, 1928).
(b) One Sergeant, and three Deputies, from the Oswego County Sheriffs
Department had interaction with Allen during this process. Sergeant Lortie and
Deputy Van Patten were the officers who signed Allen up as a CI on December 11,
1991. (Defense Exhibits 5, 9). Deputy Anderson met with Allen one time, at the
request of Deputy Van Patten, to obtain information about drug activity in the
community. (Defense Exhibit 10). Deputy Montgomery is the officer who
retrieved Allens lost CI file from the D&W convenience store after it was lost by
Deputy Van Patten. (Defense Exhibit 8).
(c) Deputy Van Patten met with Allen on December 11, 1991, to gain information
about drug activity in Oswego County. (H.T., 1927-28).
(d) On that date, Deputy Van Patten created Allens CI file which included a 3x5
confidential informant index card containing Allens true name, code name (Julia
Roberts), her address, telephone number, date of birth, social security number,
height, weight, eye color, hair color, left and right thumbprint, the date it was
created, and the Oswego County Sheriff Deputy she was working with. (Defense
Exhibit 11A). The file included a photograph of Allen and Deputy Van Pattens
field notes with the names and numbers of potential drug targets he obtained from
Allen. Id.
(e) Just over a month after creating Allens CI file, Deputy Van Patten dropped the
file in the parking lot of the D&W convenience store. (H.T., 1976, 1977).
(f) Allens CI file was found in the parking lot of the D&W by D&W owner Kristine
Duell at an unknown date and time and eventually reported to the Oswego County
Sheriffs Department on January 23, 1992. (H.T., 1877-78). The complaint card
documenting Duells call was discovered for the first time by Deputy Moskal on
January 23, 2015, during the pendency of the post-conviction hearing. (Defense
Exhibit 144). Kristine Duells name is not on the complaint card as the person who
found Allens CI file. Id.
(g) Deputy Montgomerys memorandum documenting the recovery of Allens CI
file from the D&W does not mention Kristine Duells name and does not mention
a call being placed to the Sheriffs Department to retrieve the lost file. (Defense
Exhibit 8).
(h) Deputy Montgomery placed Allens CI file in Deputy Van Pattens mailbox at
the Sheriffs Department where it remained until April 3, 1994, the date of Allens
abduction. Id.

21

(i) Michael Bohrer testified during the post-conviction hearing that he knew
Allens CI card was lost in the parking lot of the D&W store and he knew Kristine
Duell found the CI card. (H.T., 581).
(j) The Sheriffs Department failed to conduct any investigation concerning the
compromised file. (H.T., 1939, 1950, 1954, 2002). Neither Allen nor her family
were informed that her identity as a CI had been exposed to the public. Id. at 1950.
(k) On April 3, 1994, Oswego County Sheriff Department Sergeant Roy Lortie
responded to the scene of Allens abduction and immediately recalled Allen was a
CI and sought production of her CI file. (Defense Exhibit 5). Sgt. Lortie wanted
to investigate names of dealers Allen had been involved with. Id. Allens CI file
was not properly secured in the Departments drug file. Id.
(l) On December 9, 1994, nearly two years after Deputy Van Patten lost Allens
CI file in the D&W parking lot, and eight months after Sgt. Lortie learned the file
was not properly secured at the Department, three internal memoranda were
created, at the request of Lt. Goodsell, by Deputies Van Patten, Montgomery, and
Anderson to explain the creation, loss, and recovery of Allens CI file. (Defense
Exhibits 8, 9, 10).
(m) On June 23, 1995, Oswego County Sheriff Department Investigator Whipple
created a lead sheet that revealed Heidi Allen is a snitch was found written on the
bathroom wall at the Junius Pond rest area on the New York State Thruway.
(Defense Exhibit 140). Gary Thibodeaus jury trial had ended on June 19, 1995.
(n) Former Chief Assistant Oswego County District Attorney Donald Dodd
testified that he received the December 9 internal memoranda of Deputies Van
Patten, Montgomery, and Anderson at his office on December 9, 1994, and he
agreed they constituted Brady material. (H.T., 1662-1663, 1670, 1712, 2069).
53. It was this clear-cut proof that caused the County Court to declare Allen an
undisputed CI in a prior written order. (Decision and Order, dated November 2, 2015, at 19,
20). As will be discussed more fully below, this determination was employed by the court to
restrict Thibodeau from fully developing his Brady violation claim. Id.
54. Contradicting its prior decision, the County Court now characterizes Thibodeaus
references to Allens CI status as misleading and inaccurate. (Decision and Order, dated
March 2, 2016, at 4). The County Court came to this determination by reviewing one piece of
evidence, Deputy Andersons December 9, 1994, internal memorandum. (Defense Exhibit 8).
22

55. Reliance solely upon this memorandum is erroneous because it fails to account for the
post-conviction hearing testimony of Deputy Anderson. Although Deputy Andersons
memorandum states Allen had no useful information and she was not formally signed up as a
confidential informant, he testified he had no knowledge Deputy Van Patten had already signed
Allen up as a CI and created a CI card for her. (H.T., at 1982-83). Deputy Anderson also did not
know Allen had provided names of people engaged in drug activity in the community to Deputy
Van Patten. Id. at 1983.
56. The County Courts dismissal of Allens CI status based solely on the fact that Deputy
Anderson had one brief meeting with Allen and did not find her information useful cannot
overcome the evidence cited above, proving Allen was in fact a CI for the Oswego County
Sheriffs Department.
57. This ground for denying Thibodeaus motion to vacate his judgment of conviction must
be reviewed by the appellate court because it does not comport with the County Courts prior
ruling that Allens status as a CI was undisputed; Donald Dodds testimony that the CI evidence
constituted Brady material; and Allens actual CI card documenting the Sheriff Department
formally signing her up as a CI on December 11, 1991.
B.

The County Courts Second Reason for Denying Thibodeaus Brady


Violation Claim that Allens CI Evidence Was Provided to
Thibodeaus Trial Attorney Is Contrary to the Documentary
Evidence Admitted During the Post-Conviction Hearing.

58. Despite initially finding no Brady material existed to be turned over to the defense
because Allen was not truly a CI, the County Court in its second reason for denying Thibodeaus
claim decides Fahey received all material pertaining to Allens CI status. (Decision and Order,
dated March 2, 2016, at 4, 5-15, 19). According to the County Court, Fahey received the
December 9, 1994, internal memoranda of Deputies Van Patten, Montgomery, and Anderson, on
23

December 14, 1994, and the Kleist report 3 along with Allens CI file through a May 17, 1995,
mailing and through hand delivery on June 5, 1995. Id. at 11, 13, 19. Dodds testimony, along
with writings he created to document these events, prove otherwise. What is more, the conduct
of the esteemed counsel for Gary Thibodeau is inconsistent with the Peoples claim of disclosure
and wholly undermines the County Courts findings.
59. Prior to Thibodeaus December 8, 1994, pretrial hearing, Fahey gained preliminary
information that Allen may have been a CI for the Sheriffs Department through a reference
made by Sgt. Lortie in his April 27, 1994, police report. (Defense Exhibit 5). Fahey had no
knowledge of the loss of Allens CI file in the parking lot of the D&W because it is not
contained in Sgt. Lorties report. Id. At the pretrial hearing, Fahey demanded production of
Allens CI file and Dodd denied knowledge of Allens CI status. (December 8, 1994, Pretrial
Hearing Transcript, at 30-31).
60. The Oswego County Sheriffs Department officially denied Allens status as a CI in a
Post-Standard article, dated December 7, 1994, stating there is no formal file, because Allen
was not really an informant. (Defense Exhibit 4). They described Sgt. Lortie as confused and
having a faulty memory. Id. Unbeknownst to Fahey, Sgt. Lortie was not confused because he
was present with Deputy Van Patten when Allen was signed up as a CI. (1927-29).

(1) The Non-Disclosure of the December 9, 1994, internal memoranda during


the December 14, 1994, Discovery Meeting between Fahey and Dodd.

Oswego County Sheriffs Department Investigator Kleist created a report on May 16, 1995, a week before the start
of Gary Thibodeaus trial, documenting his discovery of Allens CI file in the bulk storage area of the garage of the
Sheriffs Department. (Defense Exhibits 11, 11A; H.T., 2255-2256, 2243-2249, 2257-2258).

24

61. Deputies Van Patten and Montgomery each created an internal memorandum on
December 9, 1994, detailing the creation, loss, and recovery of Allens CI file. (Defense
Exhibits 8, 9). These memoranda confirm Allens CI status and refute the Sheriff Departments
denial of Allens CI status. Fahey did not receive these documents during his December 14,
1994, meeting with Dodd as claimed by the County Court.
62. At this meeting, Dodd offered, and Fahey accepted, a copy of the entire contents of the
Sheriff Departments Investigative file. (H.T., 1640-47). The file consisted of five cardboard
file boxes, in excess of 1500 leads. Id. This is Dodds only claim of Fahey receiving the
December 9, 1994, internal memoranda. Id. at 1659, 1670, 1731.
63. Prior to the December 14, 1994, meeting, in order to maintain an accurate account of
the contents of the boxes, Dodd created handwritten notes labeling the contents of each item
contained within the five boxes. (Peoples Exhibit ZZZ). Dodd testified that the notation of
police reports on page four of his notes meant the December 9, 1994, internal memoranda
were included in the material provided to Fahey on December 14, 1994. However, this cannot
be true because page four of Dodds notes is dated 12/5/94, which predates the creation of
those memoranda. (Peoples Exhibit ZZZ).
64. Additionally, Dodd testified he marked Brady on all documents he considered Brady
material and also made this notation on his notes. (H.T., 1670, 2042-43, 2069; Peoples ZZZ).
Dodds notes contain 38 specific Brady references. (Peoples ZZZ). Page 4 of Dodds notes,
police reports, does not have a Brady notation. Id. As noted above, Dodd considered the
memoranda to be Brady material.
65. Oswego County Sheriff Department Investigator Whipple, the custodian of the Sheriffs
investigative file, had no recollection of the memoranda being made a part of the master file.

25

(H.T., 1565-69). Investigator Whipple was in charge of creating lead numbers for all documents
made a part of the Sheriffs Investigative file and the December 9, 1994, internal memoranda
were never assigned lead numbers. Id. Investigator Whipple testified no lead was too big or too
small to be included in a case of this magnitude. Id. at 1517.
66. Dodds document procedure also confirms non-disclosure of the memoranda. Dodd
created a two-step document procedure for materials shared between the Oswego County District
Attorneys Office and the Oswego County Sheriffs Department. Id. at 1715-17. First, when a
document was received by the Oswego County District Attorneys Office, it was date stamped
received by the District Attorneys Office and made the original document for the file. Id. at
1663, 1678-79, 1715-17, 2025.

Second, the document was then hand delivered to Investigator

Whipple at the Sheriffs Department to receive a date stamp from that office. Id. at 1663, 167879, 1715-17, 2025. Dodd insisted with 100% certainty that all documents in the Heidi Allen
investigation were handled in this manner. Id. at 1717. The December 9, 1994, internal
memoranda contain only one received, December 9, 1994 date stamp from the Sheriffs
Department. (Defense Exhibits 8, 9, 10). These documents do not show that they were received
by the District Attorneys Office. Id. Thus, they were never made a part of the file.
67. Dodd created a letter on December 21, 1994, documenting his meeting with Fahey on
December 14, 1994, and listing all material turned over to Fahey on that date. (Defense Exhibit
13). Dodds letter specifically references the December 8, 1994, pretrial motion hearing but
omits Faheys request for Allens CI file. Id. Dodd points out possible Brady material contained
within the five boxes Fahey received on December 14, 1994, directing the reader to 200 items of
potential Brady material. Id. This portion of the letter makes no reference to Allens CI file or
the December 9, 1994, internal memoranda.

26

68. The County Court decided Fahey received the December 9, 1994, internal memoranda
simply because they were created, stating [i]t does not make sense that Lt. Goodsell would
instruct these officers to make written statements if the statements ultimately were not to be
turned over. (Decision and Order, dated March 2, 2016, at 12). This reasoning is flawed for the
following reasons. First, the creation of a document does not prove disclosure. Second, Donald
Dodd, not Lt. Goodsell, is the attorney for the People and the party responsible for complying
with the rules of discovery. Third, there was no testimony from Lt. Goodsell explaining why he
requested the memoranda. Presumably, he wanted an explanation regarding the exposure of
Allens CI file and Van Pattens inability to locate it on the date of Allens disappearance.
69. The County Court also improperly relied upon Peoples Exhibit QQQ to reach its
erroneous finding of disclosure. (Decision and Order, dated March 2, 2016, at 9). Peoples
Exhibit QQQ is a photocopy of Deputy Van Pattens report, with a received, December 9, 1994,
Oswego County Sheriffs Department, date stamp, that Dodd testified was his work product.
Dodd testified he wrote MY COPY HA BRADY CC TOT BOTH D ATTN on the top of
the document. Dodd testified HA BRADY, meant Heidi Allen, Brady material; CC TOT
BOTH D ATTN, meant carbon copy, turned over to, both defense attorneys. (H.T., 1668-69).
70. The County Court erroneously accepted this testimony as proof Fahey received these
documents on December 14, 1994, for the following eight reasons. First, the document does not
have a date as to when it was turned over to the defense. Second, we know this document was
turned over to attorney Walsh, because defense counsel found copies in Richard Thibodeaus
trial file which prompted Gary Thibodeaus current Brady violation claim. However, we do not
know from looking at that work product when it was turned over to Walsh. Third, there is
no date on the work product indicating when Dodd made those notes on the document. Fourth,

27

this was not Dodds procedure with every document, and he did not do this with the other two
December 9, 1994, internal memoranda that he also considered Brady material. (H.T., 1667-68).
Fifth, Dodd testified his work product notes provided proof they were contained within the
Sheriffs investigative file on December 14, 1994, but Investigator Whipple, the custodian of that
file, stated they in fact were not included. Sixth, Investigator Whipples testimony of noninclusion is corroborated by the fact that Deputy Van Pattens memorandum did not contain two
date stamps, one from the District Attorneys Office, and the other from the Sheriffs
Department, which Dodd required before it was made a part of the Sheriffs investigative file.
Seventh, it contradicts Dodds testimony that every document he received was required to have a
date stamp from the District Attorneys Office. Eighth, as previously discussed, Dodd could not
point to Deputy Van Pattens memorandum in either his notes, or his December 21, 1994, letter.
(2) The Non-Disclosure of Investigator Kleists Report and Allens CI File.
71. Oswego County Sheriffs Department Investigator Kleist created a report on May 16,
1995, a week before the start of Gary Thibodeaus trial, documenting his discovery of Allens CI
file in the bulk storage area of the garage of the Sheriffs Department. (Defense Exhibits 11,
11A; H.T., 2255-2256, 2243-2249, 2257-2258). Allens CI file had been stored in this location
for one year after it had been requested by Sgt. Lortie on the date of Allens disappearance. (H.
T., 2249). It was never made a part of the Sheriffs Investigative file and was never seen by
Investigator Whipple before May 16, 1995. (Defense Exhibit 11; H.T., 1522-1523, 2258-2259).
72. After Investigator Kleist found Allens CI file, he brought it to the Oswego County
District Attorneys Office where it was stamped: Received, Oswego County District Attorneys
Office, May 16, 1995. (Defense Exhibit 11, 2244). After it was turned over to the District
Attorneys Office, it was returned to the Sheriffs Department on May 23, 1995, where it

28

received a date stamp, and was thereafter stored on shelf B-20 of the evidence room. (Defense
Exhibits 11, 11A). Gary Thibodeaus trial commenced May 22, 1995. (TT., at 39). Richard
Thibodeaus trial commenced in September of 1995. Richard Thibodeau was separately
represented by attorney William Walsh.
73. Investigator Kleists report is one of the documents that inspired Thibodeaus Brady
violation claim. (H.T., 41-42, 1626). This report was found in Richard Thibodeaus trial file by
attorney Randi Bianco in 2014 and was never before seen by her or attorney Fahey. Id. at 41-42,
1626. The Kleist report found in Richard Thibodeaus trial file contained two date stamps, May
16, 1995, and May 23, 1995, noted above.
74. Dodds first claim of disclosure of the Kleist report and Allens CI file centers on his
May 17, 1995, cover letter addressed to attorneys Fahey and Walsh, and sent with unnamed
attachments a week before Gary Thibodeaus trial commenced. (H.T., 1674, 1866). Dodds
letter states, Pursuant to the Peoples on going duty to disclose, CPL 240.60, I am providing
with this letter copies of additional discoverable property obtained since my last disclosure to
you by letter dated April 25, 1995. (Peoples Exhibit JJJ). Dodd testified the unnamed
attachments were the Kleist report and Allens CI file. (H.T., 1674). The unnamed attachments
could not possibly be the Kleist report or Allens CI file for two reasons. First, Walshs copy of
the Kleist report found in Richard Thibodeaus trial file by Bianco contained a May 16, 1995,
date stamp and a May 23, 1995, date stamp. Walsh could not receive a document with a May
23, 1995, date stamp through a May 17, 1995, mailing. Second, Allens CI file was not in
Richard Thibodeaus trial file. Id. at 41-42.
75. The County Court credited Dodds testimony that he provided both defense attorneys
with the Kleist report and the CI file even though it could not be supported by the documents

29

themselves. (Decision and Order, dated March 2, 2016, at 11). Specifically, the County Court
ignored the date stamps contained on the copy of the Kleist report found in Richard Thibodeaus
trial file. As discussed above, this copy contains two date stamps, one being received May 16,
1995 by the District Attorneys Office, and the other being received May 23, 1995 by the
Sheriffs Department. (Defense Exhibits 11, 11A). Because Thibodeau strenuously argued
Walsh could not receive the Kleist report with a May 23, 1995, date stamp, through a May 17,
1995, mailing, the prosecution tried to mask this reality by providing a different version of the
Kleist report at the post-conviction hearing which contained only the May 16, 1995, date stamp.
(Peoples Exhibit JJJ). The County Courts decision never addresses the discrepancy in the
different versions of the Kleist report and it never addresses the impossibility presented by the
prosecution.
76. Upon deciding Fahey received these documents, the County Court makes the following
perplexing statement, [t]his Court has no reason to question that this information was not
provided to both counsel and the trial court in light of the fact that Dodds testimony underscores
the May 23, 1995 date stamp attached to the May 17, 1995 letter and which was also located in
the trial courts original file (See Exhibit 11A). (Decision and Order, March 2, 2016, at 11).
There was no testimony from Dodd underscoring how Walsh received a Kleist report with a
May 23, 1995, date stamp through a May 17, 1995, mailing.
77. In an attempt to bolster Dodds testimony, the County Court turns to the trial courts
original file where it found a copy of Dodds May 17, 1995, letter. (Decision and Order, dated
March 2, 2016, at 11). The County Court reviewed the trial courts original file outside of the
presence of the parties and off the record. Thus, there is no record evidence of what, precisely,
the County Court reviewed.

30

78. In any event, the viewing of the May 17, 1995, letter does not prove Thibodeau
received the Kleist report and Allens CI file along with the May 17, 1995, cover letter. This
portion of the County Courts decision only speaks of the cover letter, which was date stamped
received by Jefferson County Court on May 23, 1995. Id. at 11-12. There is no mention of
the unnamed attachments referenced in the May 17, 1995, letter. In a puzzling response to
Thibodeaus claim of non-disclosure of these items, the court states, [i]t is contrary to logic to
argue that the trial court received this letter on May 23, 1995 but that neither trial counsel
received it without the attached documentation. Id. at 13. We do not know from this statement,
whether the County Court found attachments to the May 17, 1995, letter, and if so, what those
attachments were. Additionally, the Jefferson County May 23, 1995, date stamp supports, rather
than negates, Thibodeaus argument because neither the court, Fahey, nor Walsh, could receive a
copy of the Kleist report with a May 23, 1995, date stamp through a May 17, 1995 mailing.
(3) The Non-Disclosure of the Kleist Report and Allens CI File on June 5,
1995.
79. In a second attempt to suggest Fahey received these documents, the County Court
erroneously credited Dodds testimony that he hand delivered the Kleist report and Allens CI
file to Fahey in the midst of trial with a June 5, 1995, cover letter written on a yellow piece of
paper. (H.T., 1681,1684-85,1731,1748-49, Peoples Exhibit SS). Dodds explanation for
writing his letter on unofficial letterhead was to save the District Attorneys Office an expense.
Id. The County Court found Dodd truthful on this point because [t]he fact that the letter
(Exhibit SS) is not printed on letterhead shows that Dodd was truthful because his working copy
was, in fact, on a plain piece of paper. (Decision and Order, dated March 2, 2016, at 13-14).
80. The June 5, 1995, unofficial letter, like the May 17, 1995, letter, does not name the
attachments, but Dodd testified they were the Kleist report and Allens CI file. (Peoples Exhibit
31

SS). This testimony is not credible for four reasons. First, Dodd testified he never duplicated
discovery. (H.T., 1681, 1731, 1748-49). Therefore, if the court finds Dodds testimony credible
on the May 17, 1995, claim of disclosure it cannot coexist with Dodds testimony about never
duplicating discovery. Second, the June 5, 1995, letter was hand delivered to Fahey at trial one
day prior to the State resting their case. Id. at 1689, 1866-67. There is no reaction from Fahey
on the record responding to receipt of Allens CI file in the midst of trial after he demanded
production of this material six months prior. It is highly unlikely that an experienced litigator
such as Fahey would have no reaction to such a delayed disclosure. Third, Dodd testified he
never brought Allens CI file with him during Gary Thibodeaus trial. Id. at 2110. Fourth, this
claim of disclosure brought forth a third version of the Kleist report, containing only the May 23,
1995, date stamp. Id. at 2101; Peoples Exhibit B; Peoples Exhibit SS. Even more curious, is
the May 23, 1995, date stamp is in a different location than the May 23, 1995, date stamp found
on Richard Thibodeaus copy of the Kleist report. Id.; Peoples Exhibit B; Peoples Exhibit SS;
Defense Exhibit 11. The County Courts decision ignores these fatal flaws in the prosecutions
proof of disclosure.
81. The trial record itself cannot support Dodds claims of disclosures of the Brady material
pertaining to Allens CI status. Fahey specifically requested production of Allens CI file
referenced in Sgt. Lorties report on December 8, 1994. Fahey had no information through Sgt.
Lorties report that Allens file was lost in the parking lot of the D&W. It is undisputed that
Allens CI file was hidden away until Investigator Kleist found it on May 16, 1995.
82. Dodds claims of disclosure do not comport with Faheys on-the-record-trial behavior.
At the time of Gary Thibodeaus trial, Fahey had nearly twenty years of criminal defense
experience. Both Fahey and Walsh brought Dodd to task for his failure to disclose material

32

before and during the trial. After receiving a copy of the Sheriffs investigative file on
December 14, 1994, Walsh filed a pretrial motion seeking production of over 90 lead sheets that
Dodd failed to disclose on that date. (H.T., 1787-1799; Defense Exhibit 142). During trial,
Fahey heatedly objected to other untimely evidence offered by the State on June 6, 1995,
through Investigator Kleist. (TT., at 3093-94). This is one day after Dodd purportedly dropped
the Kleist report and Allens CI file on Faheys table during trial.

To suggest Fahey would

object to this and not to evidence constituting Brady material he specifically requested six
months prior, which undermines the case against his client, is utterly implausible. Fahey himself
testified that he would have raised holy hell about it. There would have been sanctions and he
would have moved for a mistrial. (TT., at 962). If Fahey received the December 9, 1994,
internal memoranda as Dodd claims on December 14, 1994, then he most certainly would have
demanded production of the actual CI file he specifically requested production of on December
8, 1994.
83. Faheys testimony is credible because the prosecutions argument regarding
Thibodeaus Brady violation claim defies common sense. The State suggests the following
timeline: (1) Fahey asked for Allens CI file on December 8, 1994, and its existence was denied
by the People and the Sheriffs Department; (2) Fahey received the December 9, 1994, internal
memoranda on December 14, 1994, confirming Allens CI file not only existed, but was lost and
exposed to the public by the Sheriffs Department; (3) Fahey and Walsh did nothing: neither one
demanded the CI file; neither one demanded disclosure of all police reports concerning who
Allen informed on and who knew Allen was a CI; and neither conducted their own investigation
into these facts; and (4) Fahey (and Walsh) received the Kleist report and Allens CI file through
a May 17, 1995, mailing days before Gary Thibodeaus trial commenced and again did nothing;

33

and (5) Fahey received the Kleist report and Allens CI file a second time via hand delivery with
a scrap cover letter during trial and a day before the State rested their case and again did nothing.
To imply two seasoned attorneys, each with over twenty years of criminal defense experience,
would receive memoranda on December 14, 1994, confirming the existence of their prior
discovery request, and then never again ask for the actual CI file, is preposterous. And to even
further imply that Fahey would just silently accept late disclosure of withheld Brady immediately
before and during trial is even more outrageous.
84. Dodd touted himself as a meticulous record keeper during his post-conviction hearing
testimony. He stated he was particularly careful about discovery matters to insure that [the
prosecution] had a systematic, organized, verifiable way to demonstrate in the event this day
came to be able to point back in time to twenty years agowith a measure of reliability to this
judge the procedure that was in place for the purposes of demonstrating that the documents in
fact were photocopied, reproduced in their entirety and turned over to attorneys Fahey and
Walsh. (H.T., 1786) (emphasis added).
85. During his post-conviction hearing testimony, Dodd could not point back in time to
demonstrate the December 9, 1994, internal memoranda of Deputies Van Patten, Montgomery
and Anderson, the Kleist report, and Allens CI file were turned over to Thibodeau. Dodds
notes referencing the entire contents of the Sheriffs investigative file do not mention the
December 9, 1994, internal memoranda. Dodds December 21, 1994, letter documenting
discovery turned over to Fahey does not refer to these memoranda nor does it contain two date
stamps as required by Dodds document procedure. Neither the May 17, 1995, letter nor the
June 5, 1995, handwritten letter make reference to the Kleist report or Allens CI file. The State

34

presented two different Kleist reports during the post-conviction hearing containing date stamps
different than the Kleist report contained in Richard Thibodeaus trial file without explanation.
86. Additional evidence of suppression is found in two aspects of Faheys trial conduct.
First, Oswego County Sheriff Investigators Yerdon and Kleist, the investigators that had found
Allens CI file just days before, were prosecution witnesses at Gary Thibodeaus trial. Allens
CI index card contained her right and left thumbprint. (Defense Exhibit 11A). During direct
examination conducted by Dodd, Investigator Kleist was specifically asked how he had obtained
Allens fingerprints for comparison with fingerprints left at the crime scene. During the postconviction hearing testimony of Donald Dodd, an offer of proof was made by the defense on the
issue of Allens thumbprints and trial testimony elicited by Dodd of Investigators Kleist and
Yerdon. The court agreed to review the trial record on these claims. (TT., at 20732074). Instead of referring to Allens CI card that contained her thumbprints, Investigator Kleist
testified at trial that he had to obtain her fingerprints from her notebooks that were found in her
vehicle at the D&W. (TT., at 2076). Investigator Kleist had even itemized these details about
Allens thumbprints in his report days before his testimony. (Defense Exhibit 11). Likewise,
Investigator Yerdon avoided any reference to the existence of Allens thumbprints on her CI card
during cross examination by Fahey. (TT., 2063). Fahey asked, Do you have fingerprints of
Heidi Allens? and Investigator Yerdon answered, I didnt take them. I believe theres a
thumb print. (TT., at 2063). Fahey continued fingerprint questioning, asking if Investigator
Yerdon had a full set of Allens fingerprints and Yerdon answered, Not to my knowledge. I
have never saw one. (TT., at 2063). Investigator Yerdon was even asked if he had checked
Sheriff Department records to see if there were any Heidi Allen fingerprints on file, and he said
he did not and he did not know if that had ever been done. (TT., at 2063). Second, prior to

35

sentencing, Fahey received a tip that Allen maintained a diary, the fact of which the State never
disclosed. In an effort to review the diary, Fahey never argued that it may contain information
concerning her work as a CI. Surely, had Fahey been aware that Allen was a CI, he would have
offered that fact as a basis to review the diary. The County Courts decision failed even to
mention these facts.
87. The County Courts findings that the documents were turned over because: (1) Dodd
said they were; (2) Faheys memory was vague; and (3) the documents may have been misplaced
when Bianco received the trial file from Fahey, cannot stand up to Dodds testimony describing
how discovery was conducted and his own documents, which never reference Allens CI status
or the loss of her CI file by the Sheriffs department. (Decision and Order, dated March 2, 2016,
at 7, 11, 12, 14).
C.

The County Courts Third Reason for Denying Thibodeaus Brady


Violation Claim that the CI Evidence Was too Remote and too
Speculative to Be
Admissible at Trial Is Erroneous Because the
County Court Would not Allow Thibodeau to Present Evidence
Showing the Continuity Of Allens CI Status.

88. The County Courts third basis for denying Thibodeaus Brady violation claim rests on
a conclusion that the exculpatory evidence would not be admissible at trial because it is too
remote and too speculative. (Decision and Order, dated March 2, 2016, at 15). This faulty
conclusion is grounded on an equally faulty premise. The County Court suggests, Fahey
testified that he was aware Ms. Allen was not an informant, so any theory that someone other
than defendant kidnapped her because she was a rat, would have been too speculative to argue
without any corroborating evidence. (Decision and Order, dated March 2, 2016, at 17). The
County Courts analysis lacks a citation to Faheys post-conviction hearing testimony to support
this proposition. It seems the County Court is trying to suggest Fahey gave testimony that he did

36

not pursue a line of defense during Gary Thibodeaus trial that Allen was a known CI, giving
others a motive to harm her, because he did not have any corroborating evidence to support this
theory. If this is in fact the County Courts reasoning, then, coincidentally, this is the very
essence of Thibodeaus Brady violation argument. Fahey received limited information through
Sgt. Lorties report that Allen may have been a CI for the Oswego County Sheriffs Department.
He could not pursue a defense showing others had a motive to harm Allen because she was a
known CI in the community because he had nothing more to go on than Sgt. Lorties report.
Both the Oswego County Sheriffs Department and the Oswego County District Attorneys
Office denied this evidence existed when Fahey requested it. What Fahey did repeatedly state
during his post-conviction hearing testimony is that he was told Allen was not an informant. For
example, Fahey responded to the following questions from the State on cross-examination:
Q: Did you ever send any kind of follow up request not having - - since you
never got the [CI] file, any kind of written request?
A: We were told she wasnt used as an informant, so no, I didnt.
***********
Q: Okay, but you were requesting the file such as it was back on December
eighth. My question is did you ever follow up to find out if there was a file either by
writing or after you discovered the the
A: Not once it was represented to us that she wasnt an informant.
(H.T., 968).
89. The withheld evidence cures this. Fahey would have learned through the CI card the
identity of people Allen provided information about. He could have conducted an investigation
into these people and others in the community who may have known about Allen being a CI.

37

90. The County Court found the loss of Allens CI file would not be admissible at trial
because it occurred two years prior to her abduction. (Decision and Order, dated March 2, 2016,
at 18). Relying on Kristine Duells testimony that she only told her mother about finding Allens
CI card, the court found no others in the community knew Allen was a CI. (Decision and Order,
dated March 2, 2016, at 18). This defies Michael Bohrers testimony where he indicated he
knew Allens CI card was dropped in the parking lot of the D&W and that it had been found by
Kristine Duell. (H.T., 594-595). This information was never publicized. Kristine Duell never
testified about finding Allens CI card during Gary Thibodeaus trial; her name was not included
in Deputy Montgomerys memorandum regarding the retrieval of Allens CI card; and her name
was not included on the complaint card documenting the call to the Sheriffs Department to
retrieve Allens CI card from the D&W. It was only through Bohrers post-conviction testimony
that the punch card with Duells name was discovered.
91. The County Courts decision also disregards the June 23, 1995, lead sheet stating,
Heidi Allen is a snitch was found written on the wall of a bathroom at the Junius Pond rest
area on the New York State Thruway. (H.T., 1545, 1548; Defense Exhibit 140).
92. Further still, the County Courts remoteness argument appears to be premised on a
conclusion that the fact of Allens status as a CI informant carried a statute of limitations against
those who may wish to silence her. Obviously, this is not true. As a result of the exposure of her
CI file, an unknown number of individuals learned that Allen was an informant. Any one of
those individuals could have spread that fact to an additional unknown number of individuals.
That the information may not have been useful to the pool of individuals who knew of Allens CI
status in 1992 does not mean that the information would cease to be relevant. Once established,

38

the fact of Allens CI status would prove useful to any drug dealer suspecting his operations were
threatened by an informant.
93. Even if there were any validity to the County Courts general remote and
speculative reasoning, it cannot support denial of Thibodeaus Brady violation claim because
the court placed restrictions upon Thibodeaus ability to present evidence to the contrary. The
County Court cannot deny Thibodeau the opportunity to develop the record to present a defense
and then deny him relief on the ground that the record was insufficient. (Decision and Order,
dated November 2, 2015, at 19-20).
94. Thibodeau made concerted efforts to present evidence demonstrating the extent and
nature of Allens CI status. (Letter Requests, dated September 30, 2015). The County Courts
November 2, 2015, determination that Allens confidential informant status was not in dispute
was used to deny Thibodeau a subpoena duces tecum to access an Oswego County Family Court
Person in Need of Supervision (PINS) Petition that Allen was the subject of prior to her
abduction. Id. Thibodeau also sought to offer testimony from Martha Sturtz about the PINS
Petition. Id. The PINS Petition and Sturtzs proposed testimony were directly related to how
Allen became a confidential informant for the Oswego County Sheriffs Department. Id.
95. Thibodeau learned of the PINS Petition through a recorded interview of Martha Sturtz,
Allens aunt, conducted by the Sheriffs Department during the April 7, 2015, recess of the
evidentiary hearing. (Letter Request, dated September 30, 2015 with attached audio recording).
Martha Sturtz revealed Allen had police contact when she was 15-years-old because she was at a
party where alcohol was being served and she left a child under her care unattended in her car.
Id. Marthas husband, Russell Sturtz, was a judge in the Town of New Haven and contacted the
Oswego County Sheriffs Department on behalf of his niece to avoid criminal charges being filed

39

against Allen. Id. Judge Sturtz negotiated a deal between Allen and the Sheriffs Department
that a PINS Petition was filed against Allen, instead of criminal charges, as long as Allen
provided the Oswego County Sheriffs Department with information. Martha Sturtz stated the
deal was connected to drug stuff Allen became involved in and she got into all this trouble.
(Sturtz audio 8:00-10:00). The family made efforts to keep this information secret. Id.
96. The County Court, without viewing the PINS Petition, although the prosecution did not
object to the Court viewing the PINS Petition, concluded there was not the slightest inkling that
the [alleged PINS petition] contain[s] any exculpatory material. (Decision and Order, dated
November 2, 2015, at 19) (quoting People v. Gissendanner, 48 NY2d 543, 551 [1979]). The
County Court further declared Thibodeaus request a fishing expedition. Id. at 20. However,
this evidence was relevant to the entirety of Thibodeaus Brady violation claim.
97. The PINS Petition and Sturtzs proposed testimony called into doubt the veracity of
Deputy Van Patten who testified during the evidentiary hearing that Allen became a confidential
informant because her uncle and Town of New Haven Judge, Russell Sturtz, suggested she may
have information about drug related activity in Oswego County. Deputy Van Patten testified he
met with Allen because Russell Sturtz was a personal friend of Van Pattens. Deputy Van
Pattens sworn testimony omits Allens predicament of facing criminal charges that formed the
basis of their relationship.
98. This excluded evidence also called into doubt the veracity of Deputy Andersons postconviction hearing testimony. Like Deputy Van Patten, Deputy Anderson omitted Allens true
reason for agreeing to provide information to the Sheriffs Department, stating Allen wanted to
talk to him about kid stuff because she was concerned her friends were getting involved in
drugs. (H.T., 976). Contrary to Martha Sturtzs proposed testimony, Deputy Anderson indicated

40

Allen did not use drugs and she did not want her friends to use drugs. Id. This testimony
provided an entirely different picture than what actually happened. Allen did not become a CI to
rescue her friends, but instead became a CI because she was in legal trouble and this was her
opportunity to work her way out of criminal charges.
99. During the testimony of Brian Mensch, a resident of Oswego County since 1981,
Thibodeau made an offer of proof that was ultimately diluted by the court. Menschs proposed
testimony revealed he was a friend of Deputy Van Patten and had a conversation with him at
Champs Corners Tavern about a confidential informant. (H.T., 1284,1286-88). This testimony
was permitted, but Thibodeau sought to have Mensch testify to the entire conversation which
included Deputy Van Patten telling Mensch he had a female CI he was working with in New
Haven who disappeared right before they were about to make a drug arrest. Id. at 1294. Given
Heidi Allen was the only woman from New Haven who disappeared during this time period,
Mensch was able to discern who Deputy Van Patten was referring to. The County Court would
not allow this testimony stating it was offered for the truth of the matter asserted that Allen was a
CI. Id. Defense counsel argued the testimony was offered to show the effect on the listener.
Specifically, Mensch believed Van Patten had a female CI in New Haven who vanished before a
major drug bust. Thibodeaus offer of proof was reduced to Deputy Van Patten telling Mensch,
I have a female CI in New Haven. Id. at 2413.
100. On September 30, 2015, the defense filed a letter request seeking to call Rhonda Burr
to testify at Thibodeaus post-conviction hearing. Burrs testimony would show Allen was
actively working as a confidential informant a mere three weeks prior to her abduction. Rhonda
Burr, Allens co-worker at the D&W, stated Allen would often talk about working with the

41

Sheriffs Department and Allen feared for her safety. (Defense September 30, 2015, Letter
Request with Burr Affidavit).
101. The County Court denied Thibodeaus request to call Rhonda Burr declaring her
testimony is irrelevant and immaterial because [i]t has already been established at the hearing
that Ms. Allen was a confidential informant. (Decision and Order, dated November 2, 2015, at
20).
102. The County Court cannot now declare Allens CI evidence as speculative and too
remote in time to be admissible at trial when the court prevented Thibodeau from presenting
evidence that Allen was a known CI in the community and was actively working for the Sheriffs
Department at the time of her abduction.
103. Without ever saying why, the County Court claims that Thibodeaus Brady claim is
more analogous to People v. Gamble, 72 AD3d 544 (1st Dept. 2010), than People v. Wright, 86
N.Y.2d 591 (1995). Not so. As here, the defendant in Wright sought a new trial after learning
that the victim had been working as a confidential informant for the police officers involved in
investigating his alleged victimization. By contrast, the defendant in Gamble apparently sought
to rely on unsubstantiated claims that the victim merely offered to become a confidential
informant. Unlike in this case, the defendant in Gamble did not contend that the evidence
pointed to the culpability of any particular third party, and there was no evidence suggesting
that someone other than defendant was the killer. In further contradistinction, Thibodeau has
consistently argued that evidence concerning Allens status as a confidential informant provided
the motive for three individuals (Steen, Breckenridge, and Bohrer), in whose van a witness
(Jennifer Wescott) saw Allen on the day of her disappearance. In fact, one of the witnesses,

42

Michael Bohrer, knew both that she was an informant and that her CI file was exposed at the
D&W parking prior to either fact being made public.
104. What is more, the County Court wholly failed to account for an entirely separate
ground for admitting the CI evidence. As Thibodeau has consistently argued, the suppressed
evidence concerning Allens CI status and file, along with the States suppression of evidence
provided by Darlene Upcraft, who reported seeing a white van, not Richard Thibodeaus van, at
the D&W on the morning of Allens abduction, also undercut the thoroughness and good faith of
the police investigation. (H.T., 189). When . . . the probative force of evidence depends on the
circumstances in which it was obtained and those circumstances raise a possibility of fraud,
indications of conscientious police work will enhance probative force and slovenly work will
diminish it. Kylesv. Whitley, 514 U.S. 419, 446 n.15 (1995). The Supreme Court has therefore
held that informations tendency to undercut the thoroughness and good faith of a police
investigation is a factor to be considered in determining whether withheld information is
exculpatory. Id. at 445-49; see also Smith v. Secretary of New Mexico Dept. of Corrections, 50
F.3d 801, 830 (10th Cir. 1995) (while the knowledge the police were investigating [alternative
suspect] would arguably carry significant weight with the jury in and of itself, that fact would
also have been useful in 'discrediting the caliber of the investigation or the decision to charge the
defendant,' factors we may consider in assessing whether a Brady violation occurred); Stano v.
Dugger, 901 F.2d 898, 903 & n.28 (11th Cir. 1990); Bowen v. Maynard, 799 F.2d 593, 613 (10th
Cir.1986) (A common trial tactic of defense lawyers is to discredit the caliber of the
investigation or the decision to charge the defendant, and we may consider such use in assessing
a possible Brady violation.); Lindsey v. King, 769 F.2d 1034, 1042 (5th Cir. 1985) (awarding
new trial because withheld Brady evidence "carried within it the potential . . . [for] the

43

discrediting, in some degree, of the police methods employed in assembling the case against"
defendant); United States v. Glover, 1998 WL 575125 at *4 (D. Kan. Sept. 1, 1998)
("communication of facts which tend to discredit the investigation, within the meaning of Kyles
is included within the scope of Brady material); Orena v. United States, 956 F. Supp. 1071,
1100 (E.D.N.Y. 1997) (Weinstein, D.J.) (As the O.J. Simpson case and many others
demonstrate, destroying the bona fides of the police is a tactic that has never lost its place in the
criminal defense reasonable doubt armamentarium.). This is especially true when the very law
enforcement officers responsible for exposing Allens CI file to the public were also in charge of
investigating her disappearance.
105. If this evidence had been disclosed, Fahey would have been able to argue to the jury
that the Sheriffs Department closed down Sgt. Lorties desired line of investigation into people
Allen had provided information about because they were at fault. Not only did they compromise
her safety by exposing this information to the public, they did nothing to remedy their error.
They directed the investigation away from themselves and toward the Thibodeaus in an effort to
conceal their own wrong doing.
D.

The County Courts Final Reason for Denying Thibodeaus Brady


Violation Claim that Fahey Disregarded the CI Evidence for Strategic
Reasons Is Entirely Nonsensical and Contradicted by the Record.

106. The County Courts final basis for denying Thibodeaus Brady violation claim
professes Fahey chose not to use the CI evidence for strategic reasons because, in the courts
opinion, the CI evidence bolstered the testimony of Robert Baldasaro and James McDonald.
(Decision and Order, dated March 2, 2016, at 17). On the contrary, the CI evidence was material
to Thibodeaus innocence.

44

107. As a preliminary matter, were it actually true that the CI evidence bolstered the
testimony of the jailhouse informants, the prosecution likely would have sought its introduction.
108. The CI evidence was material and favorable to the defense because it undermined the
States theory of the case against Gary Thibodeau. The lack of forensic and eyewitness evidence
to support the charge against Gary Thibodeau caused the State to base their case upon the
testimony of two jailhouse informants who were detained at the Worcester House of Corrections
in Massachusetts with Gary Thibodeau while Thibodeau was being held on a misdemeanor drug
charge. They claimed Thibodeau had confided in them and suggested Allens abduction was a
result of drug activity between Allen and Thibodeau that went badly, thereby creating a motive
for the prosecution to present to the jury.
109. The trial testimony of Robert Baldasaro claimed Gary Thibodeau confided in him
about Allens disappearance and told him that he and his brother, Richard Thibodeau, went to the
convenience store to talk to her because she was upset and they wanted to try and straighten
things out, that she thoughtGary was going to screw her about something and she was really
upset so they went down - - wanted to have a conversation with her. (TT., at 1544, 160-31).
Baldasaros trial testimony indicated the first thing he told law enforcement was that Thibodeau
believed Allen was mad at him because she thought he was trying to screw her. (TT., at 1636).
According to Baldasaro, Thibodeau met Allen through a friend, something to do - - involved
with drugs. (TT., at 1636-37). Baldasaro went on to say that Allen thought Gary Thibodeau
was trying to screw her and get her in some kind of trouble and he went to talk to her to calm
her down. (TT., at 1637). The suppressed CI evidence directly contradicts this testimony. If
Allen were working for the Sheriffs Department to help create drug arrests, she would not be
concerned about getting into trouble.

45

110. Baldasaro claimed Richard and Gary Thibodeau picked Allen up from the store in
Richards van, drove her to the woods by his house and talked to her. (TT., at 1544-45).
Richard Thibodeau then dropped Gary off at his house and drove Allen back to the store,
dropped her off, and later returned because he had forgot to purchase cigarettes. Id. Upon
Richard Thibodeaus return, no one was at the store. Id. Baldasaro alleged Gary Thibodeau told
him five to several times that the girl was dead, her head had been bashed in with a shovel
and mutilated, and they would not find her. (TT., at 1549-50). Baldasaro never testified that
Gary Thibodeau knew Allen was a CI.
111. James McDonald testified that Gary and his brother went to the store to buy cigarettes
in his brothers van. (TT., at 1662-63). McDonald claimed Gary Thibodeau said Allens head
was bashed in with a fold up Army type shovel and her body would never be found. (TT., at
1665-70. 1690). According to McDonald, upon leaving prison, Gary told McDonald and
Baldasaro not to say anything to anybody about what he told them. (TT., at 1670). When
McDonald was interviewed by investigators he told them Garys involvement with Allen had to
do with drugs. (TT., at 1685, 1688). McDonald claimed Gary told him Allen was into cocaine
and would use cocaine with Thibodeau. (TT., at 1688-89). James McDonald never testified that
Gary Thibodeau knew Allen was a CI.
112. The outcome of Thibodeaus trial turned on whether the jury believed Baldasaros and
McDonalds testimony that Gary Thibodeau caused harm to Allen because of drug activity they
were involved in together. Allens status as a CI provided motives for other people to want to
harm her. She gave names of people involved in drug activity to Deputy Van Patten, and he
carelessly lost this highly sensitive information in the parking lot of the D&W less than a month
after he created it. Approximately two months after he lost this file, Allen began employment at

46

the D&W the very place she was abducted from two years later. Therefore, this Court should
grant Thibodeaus application for leave to appeal the County Courts denial of his Brady claim.
II.

APPELLATE REVIEW IS REQUIRED BECAUSE THE COUNTY COURTS


DECISION DENYING THIBODEAUS MOTION FOR A NEW TRIAL WAS
BASED ON A FLAWED LEGAL ANALYSIS AND UNREASONABLE FACTUAL
CONCLUSIONS.
113. It is well-settled that in order to obtain a new trial on the ground of newly

discovered evidence, a defendant must prove by a preponderance of the evidence that there is
newly discovered evidence: (1) which will probably change the result if a new trial is granted;
(2) which was discovered since the trial; (3) which could not have been discovered prior to trial;
(4) which is material; (5) which is not cumulative; and [ ] (6) which does not merely impeach or
contradict the record evidence. People v. Bryant, 117 A.D. 3d 1586, 1587 (4th Dept. 2014)
(citations omitted). The County Courts denial of Thibodeaus motion was based solely on a
conclusion that he failed to satisfy prong (1) that the new evidence would not change the result
of a new trial.
114. In considering whether new evidence would likely change the outcome at a new
trial, a court must conduct a non-mechanical evaluation of the new evidence in its totality. See
People v. Tankleff, 49 A.D.3d 160 (2d Dept. 2007). Just as importantly, [t]he court must make
its final decision based upon the likely cumulative effect of the new evidence had it been
presented at trial. People v. Bellamy, 84 A.D.3d 1260, 1261 (2d Dept. 2011) (citing Tankleff,
49 A.D. 3d at 178-181). In order to do so, a reviewing court must assess the new evidence
within the backdrop of the trial evidence. See Tankleff, 49 A.D.3d at 182. The County Court
failed to do any of these things.
115. In addition, the County Courts factual conclusions are contradicted by the record
and should therefore be reversed. It is well-settled that the Appellate Division is not bound by a
47

trial courts factual determinations and it may reach its own factual conclusions by re-evaluating
the testimony and the other evidence. See CPL 470.15(1); People v. Bleakley, 69 N.Y.2d 490,
495 (1987) (Even if all the elements and necessary findings are supported by some credible
evidence, the court must examine the evidence further. If based on all the credible evidence a
different finding would not have been unreasonable, then the appellate court must, like the trier
of fact, below, weigh the relative probative force of conflicting inferences that may be drawn
from the testimony.) (internal quotations omitted); People v. Neely, 219 645 N.Y.S. 2d 494, 496
(2d Dept. 1996) (Because the Appellate Division has authority to make its own findings of fact
in such nonjury matters, we have made factual determinations that have reversed or modified the
findings of hearing courts.). Moreover, this Court may reverse the County Court as a matter of
discretion in the interest of justice. See CPL 470.15(3)(c); People v. Bryce, 287 A.D.2d 799
(3d Dept. 2001); People v. Kidd, 76 A.D.2d 665, 668 (1st Dept. 1980).
A.

The County Court Erred by Failing to Assess the New Evidence Against the
Backdrop of the Trial Evidence.

116. As noted above, a court reviewing a motion for a new trial must assess the likely
cumulative effect of new evidence had it been presented at trial. Quite obviously, the likely
cumulative effect of new evidence at the trial can only be determined with an understanding of
the trial evidence. The County Court utterly failed in this regard.
117. In essence, the States case hinged on the following evidence: (1) Richard
Thibodeaus acknowledgement that he drove his van to the D&W on the morning of Heidi
Allens abduction and made what would later be established was the last purchase prior to
Allens abduction; (2) an eyewitness account from Christopher Bivens, who claimed only after
considerable alternation, prompting, and an announced reward that he witnessed two
unidentified (though reportedly tall and burly) men struggling with Heidi Allen near Richard
48

Thibodeaus van in front of the D&W store near the time of her abduction; (3) two accounts
from jailhouse informants, Robert Baldesaro and James MacDonald, who testified that
Thibodeau, though never confessing to kidnapping or murdering Allen, made incriminating
statements concerning his supposed interactions with Allen on the day of her disappearance; and
(4) testimony from several witnesses concerning the location and movement of Richard
Thibodeaus van on the morning of Allens abduction.
118. Notice that the State failed to produce eyewitness or forensic evidence placing Gary
Thibodeau at the D&W on the morning of Allens abduction. Just as importantly, the State
failed to forensically link Allen to the person or property of Gary or Richard Thibodeau,
including Richard Thibodeaus van and the Thibodeaus residences. The only evidence
providing a purported direct link between Gary Thibodeau and Heidi Allens abduction came
from out-of-court statements offered for the truth of the matter asserted by two jailhouse
informants, neither of whom could provide a plausible motive for Thibodeaus asserted
involvement. Moreover, the testimony provided by the jailhouse informants conflicted with the
States case. For example Baldasaro claimed Richard and Gary Thibodeau picked Allen up from
the store in his Richards van, drove her to the woods by his house, and talked to her. (TT., pp.
1544-45). According to Baldasaro, Richard Thibodeau then dropped Gary off at his house and
drove Allen back to the store, dropped her off and later returned because he had forgot to
purchase cigarettes. Id. Upon Richard Thibodeaus return, no one was at the store. Id. Among
other problems with this testimony, the States evidence showed Allen never left the store prior
to her last recorded transaction. What is more, neither informants assertions were corroborated,
even though law enforcement officers had unfettered access to the Thibodeaus property.

49

119. It is against this factual backdrop that the new evidence must be assessed. Despite
this well-established mandate, the County Court failed to draft a single word about the evidence
presented at trial, let alone assess the new evidence in the context of the trial evidence and the
broader nature of the case. This fundamental error necessitates appellate review.
120. By failing to assess the new evidence against the backdrop of the trial evidence, the
County Court was left to determine whether it believed the new evidence established the
alternative suspects guilt beyond a reasonable doubt. Nowhere is this error more evident than in
the County Courts rejection of Wescotts recorded admissions:
Further, even if the Court were to credit Wescotts statement about Ms. Allen being
in the van at the house, it does not prove that Ms. Allen was dead at the time and
that the three men thereafter killed her at a cabin and either buried her under floor
boards or drove her in a van to Canada after she was killed. At best, even if her
statement is the truth, defendant has presented no credible evidence other than this
statement as to what happened with Ms. Allen and how the three specifically were
involved.
(Decision and Order, dated March 2, 2016, p. 36).
CPL 440 places no obligation on a defendant to prove beyond a reasonable doubt that another
person committed the crime or how the crime was actually committed. For one thing, if a
defendant were able to do so, a new trial of the defendant would hardly be necessary. The State
would simply move right to trying the alternative suspects. That a defendant need not establish
another persons guilt is made obvious in light of the relief provided by Section 440. A
defendants successful 440 motion results only in a new trial, not an order terminating the
prosecution against him. The motion is granted when a defendant presents new evidence that,
had it been presented at trial, would raise a reasonable doubt in the context of the remaining trial
evidence. Determining whether the new evidence would create a reasonable doubt can only be
done by assessing the new evidence in light of the evidence presented at trial. Because the

50

County Court wholly failed in this regard, this Court should grant Thibodeaus application for
leave to appeal.
B.

The County Court Erred by Failing to Non-Mechanically Consider the New


Evidence in Its Totality.

121. Though largely dismissed by the County Court, the newly discovered evidence
establishes for the first time the identity and motives of three alternative suspects, who, acting in
concert, were responsible for Allens abduction. More particularly, the evidence establishes that
Heidi Allen was forced into a van and abducted from the D&W by James Steen, Roger
Breckenridge, and Michael Bohrer, who transported her to Jennifer Wescotts residence, where
she was killed and her body disposed of.
122. The new evidence falls within the following three broad categories:
(i)

Admissions made by the three new suspects:

James Steen admitted to Tonya Priest that he, Roger Breckenridge, and Michael Bohrer
abducted Heidi Allen from the D&W in a van, drove her to Jennifer Wescotts house,
killed her, and then disposed of her body;
Jennifer Wescott admitted in a secretly recorded phone conversation that she helped
dispose of the van used to abduct Heidi Allen;
Jennifer Wescott admitted she sent text messages to the owner of the junkyard, Richard
Murtaugh, prior to her police interview (Defense Exhibit 85). These messages
disappeared after the police took custody of Wescotts cell phone and screen shots of
these communications. (Defense Exhibit 85, H.T., 11-14);
James Steen admitted (and later testified) that he disposed of Heidi Allens remains.
(H.T., 284-86, 290);
Steen acknowledged his complicity in Allens abduction to various individuals, including
Ronald Clarke, Megan Shaw, Joseph Mannino, and Amanda Braley. (H.T., 1051,
759,761,640-42, 673).
Roger Breckenridge admitted he participated in Allens abduction to various individuals,
including Jessica Howard, Chris Combes, Brittany Johnson, Amanda Braely, and Jennifer
Wescott. (H.T., 1149-50, 1154, 1157, Defense Exhibit 131, 1131-32, 1465-66, 670-71).
Michael Bohrer admitted his involvement in Allens abduction to various individuals,
including Tyler Hayes and Danielle Babcock. (H.T., 200-209, 584, 631-36; Defense
Exhibit 21).
(ii)

Eyewitness accounts of Allens abduction:

51

William Pierce testified that he witnessed James Steen argue with Heidi Allen outside the
D&W on the morning of her abduction, exit his van, and then knock her over the head.
Pierce was clear that the van he saw was not Richard Thibodeaus van. (H.T., 975, 977,
1042, Defense Exhibit 132);
Jennifer Wescott admitted in a secretly recorded phone conversation that Steen,
Breckenridge, and Bohrer brought Heidi Allen to her house in a van on the morning of
her abduction (Defense Exhibit 35)
(iii)

Corroborative evidence:

The alternative suspects (Steen, Breckenridge, Bohrer, and Wescott) were all firmly
acquainted, sold and used drugs, and worked for or with Richard Murtaugh, who owned a
junkyard. (Defense Exhibit 35, H.T., 217-22, 230, 321, 324-25, 342, 459, 466-68, 56972, 1312, 1314, 1322, 224-25, 249, 1454-58, 1290-01);
All three main suspects had access to scrapped vehicles through the junkyard (H.T., 1114, 217-18, 222, 230, 321-25, 342, 284-85, 286-290,1342,1350; Defense Exhibit 85);
Three forensic cadaver canines alerted to the presence of human remains in a cabin
located off of Rice Road (H.T., 528, 532-39, 552, 2185-86, 2192; Defense Exhibit 68);
Testimonial evidence established Wescott resided on Rice Road near the cabin described
in Steens admissions. (H.T., 1192-93, 1203-04);
Text message communications between Wescott and Joe Storto in which she admits
providing a false statement to police during her March 7, 2013, recorded interview and
stating she would have to plead the fifth in order to stay out of prison in relation to the
Allen investigation. (Defense Exhibit 39);
Facebook communications between Wescott and Carl Robinson asking him to deny
knowledge that she lived on Rice Road and fled to Florida following Allens abduction.
(Defense Exhibit 37, H.T., 1365-68);
Facebook communications between Wescott and Carl Robinson in which she states she
will not cooperate with the police because she would not be the next one dead in a box
in the woods for running her mouth off. (Defense Exhibit 37);
A coded text message exchange between Jonathan Barkley and James Steen after Steen
murdered his wife, asking Heidi? Ciao. (279, Defense Exhibit 45);
Breckenridges attempt to invoke his Fifth Amendment privilege and thereafter admitting
that he sent a warning to Wescott to keep her fucking mouth shut, after he learned of
her police interview about Allens disappearance. (H.T., 397, 1314).

123. Had the County Court assessed this new evidence against the backdrop of trial
evidence, it would have observed that the new evidence mirrors the trial evidence, with one
obvious difference each respective set of evidence points to different suspects. The following
table helps illustrate this difference.

52

Type of Evidence

Trial Evidence

New Evidence

Eyewitness to Allens abduction

Christopher Bivens

William Pierce

Eyewitness to Allens location


following abduction
Incriminating admissions
concerning Allens abduction

None

Jennifer Wescott

Gary Thibodeau
(through jailhouse
informants)
None

James Steen
(through Tonya Priest)

Incriminating admissions
concerning the disposal of
Allens body

Eyewitnesses to the van


following Allens abduction
Corroborative forensic evidence

Nancy Fabian;
Donald Neville, Jr.,
Donald Neville, Sr.
None

James Steen (through Tonya


Priest, Ronald Clarke, Joseph
Mannino, Amanda Braley,
Megan Shaw)
Roger Breckenridge (through
Jennifer Wescott, Amanda
Braley, Chris Combes, Jessica
Howard, and Brittany Johnson)
Michael Bohrer (through Tyler
Hayes and Danielle Babcock)
Wescott (recorded conversation
with Priest)
Jennifer Wescott

Cadaver Canines

Beyond demonstrating how the new evidence points to alternative suspects within the several
categories of evidence presented at trial, this table also lays bare several evidentiary holes in the
States trial evidence.
124. Given that the new evidence provides an alternative account for how Allen was
abducted that, unlike the trial evidence, more than fully satisfies each category of evidence, one
is left to wonder how the County Court concluded that the new evidence would not change the
outcome at a new trial. The most immediate answer comes from the County Courts previouslynoted failure to assess the new evidence within the context of the evidence presented at
Thibodeaus trial.
53

125. A second answer lies with the County Courts failure to non-mechanically assess
the evidence in its entirety.

Boiled to its core, the reasons underlying the County Courts denial

of Thibodeaus motion for a new trial can be found in the following passage:
With respect to the facts before the Court in the instant case the evidence presented
is too remote and disconnected to show that someone other than defendant
kidnapped Heidi Allen. None of the witnesses can credibly place Steen,
Breckenridge or Bohrer at the D&W the morning Ms. Allen disappeared. None of
the witnesses testified to the fact that Steen, Breckenridge or Bohrer had a van
similar to the one seen that morning at the store. None of the witnesses can tie
Steen, Breckenridge or Bohrer as being together the morning before or during the
morning Ms. Allen was kidnapped. None of the witnesses can prove that Steen,
Breckenridge or Bohrer were more than social acquaintances, and even Steen and
Bohrer both admit that they did not meet one another.
(Decision and Order, dated March 2, 2016, at 33).
Each of these conclusions is premised on a mechanical treatment of the evidence that fails both
to consider the new evidence in its totality and to appreciate the cumulative effect of the new
evidence if offered at trial.
126. As a preliminary matter, the County Court incorrectly asserts that the new evidence
is remote and disconnected. As the case cited by the County Court establishes, these labels are
reserved for evidence concerning acts outside of the crime itself. Greenfield v. People, 85 NY
75, 89 (1881). Evidence directly establishing alternative suspects for the crime in question can
never be labelled remote or disconnected.
127. Turning next to the County Courts factual considerations, its conclusion that none
of the witnesses can prove Steen, Breckenridge or Bohrer were more than social acquaintances
and that Steen and Bohrer had even met is spectacularly misguided. 4 For one thing, the County
Court never pauses to consider what level of acquaintanceship individuals must attain before

This factual assessment constitutes the primary basis for the County Courts rejection of Wescotts secretly
recorded admission that the three men brought Heidi Allen to her residence on the morning of her abduction.

54

they can agree to abduct a young woman, or why a social acquaintanceship fails to rise to the
requisite level. More fundamentally, the County Courts factual analysis is flawed for two
additional reasons. First, it hardly bears mentioning that the easiest way for the three individuals
to deflect suspicion is to downplay their mutual familiarity. This obvious point was lost on the
County Court. Second, Thibodeau presented credible evidence from two disinterested parties,
neither of whom were even mentioned by the County Court, though each established that the
three individuals were in fact well-acquainted prior to Allens abduction. Consider Steens
cousin, Earl Russell, who testified that he was employed by Tom Martin from 1988 through
1993. (H.T., 1454-58). According to Russell, all three suspects were connected to Tom Martin,
and he had witnessed their presence together prior to 1993 at Martins social gatherings. (H.T.,
1457-58). Further evidence concerning the connection between the three alternative suspects
was proffered through an affidavit from John Bohrer, who acknowledged that while living with
his brother, Michael Bohrer, they became acquainted with James Steen. 5 (Defense April 7, 2015
Letter Request).
128. The County Courts conclusion that none of the witnesses can tie the three
alternative suspects together on the morning of Heidi Allens abduction 6 overlooks several
critical pieces of evidence, including the secretly recorded admissions of Jennifer Wescott, who
admitted that the three individuals brought Heidi Allen to her residence on the morning of her
abduction. In addition to relying on a misguided conclusion that the three alternative suspects
were not sufficiently acquainted, the County Court attempts to discount Wescotts admissions by

For reasons that are not entirely clear, the County Court impermissibly precluded Thibodeau from introducing this
evidence at the hearing. See Section III, infra.
6
Of course, the same can be said of the evidence introduced against Gary Thibodeau. No evidence, save the
inherently suspect and inconsistent testimony from two jailhouse informants, tied Gary Thibodeau to the D&W on
the morning of Allens abduction.

55

leaning on testimony from Darcy Purdy to establish that Wescott did not live on Rice Road, the
location Steen identified in his admission to Tonya Priest. (Decision and Order, dated March 2,
2016, at 37-39). Again, the County Courts treatment of where Wescott resided on the morning
of Allens abduction is over-mechanical. To start with, Thibodeaus new evidence does not
stand or fall with a determination that Wescott resided on Rice Road. The paramount fact from
Wescotts secretly recorded admission which, by the way, does not even mention Rice Road
is that she confirmed Steen, Breckenridge, and Bohrer brought Allen to her residence on the day
she was abducted. This point was lost on the County Court. What is more, evidence provided
through Deborah Vecchio, acting landlord of the Rice Road property at the time of Allens
abduction, confirmed Wescott was living there in 1993 or 1994. (H.T., 1197, 1201).
129. The County Court further faults Thibodeaus new evidence for failing to establish
that any of the three alternative suspects owned a van at the time of Allens abduction. There is
no reason to believe the abduction could have only been committed with a van owned by one of
the suspects. Indeed, the evidence established that all three suspects were connected (either
through employment or friendship) with Richard Murtaugh, who owned a junkyard. In this
connection, Steen admitted that he regularly scrapped vehicles for Murtaugh, including a van he
suspected contained the remains of Heidi Allen. (H.T., 284-85).
130. The County Courts decision was also guided by a surprisingly mechanical
assessment of the evidence concerning the disposal of Allens body. James Steen admitted
disposing of Allens body in a cabin located near Rice Road. Thibodeau presented evidence
establishing that forensic cadaver canines indicated to the presence of human remains at the site
of a collapsed cabin, which was constructed prior to Allens abduction near Rice Road.
Nevertheless, the County Court concluded that Steens admission that Ms. Allen was buried

56

somewhere out on Rice Road under the floor of a cabin was proven false. (Decision and Order,
dated March 2, 2016, at 53). This conclusion was based on (a) the apparent fact that details
concerning cabin in question did not fully match the description of the cabin identified in Steens
admission, and (b) the testimony of two state forensic examiners, who claimed to have been to
sites where no human remains were found, even though human remains were detected by
cadaver canines.
131. The problems with the County Courts treatment of the cabin evidence are difficult
to enumerate fully. Start with the location of the cabin. If true, Steens admission means that he
had disposed of Allens body only after abducting her, beating her, killing her, and then dragging
her body through a dense field. Following these events, it would seem reasonable to expect that
Steens recollection of certain details concerning the cabins precise location might be less than
perfect, especially because he made the admission twelve years after the abduction. Moreover,
Priest disclosed Steens admission seven years later, and nineteen years after Allens abduction.
But even these concerns obscure a more fundamental point: Steen admitted abducting Allen
without Thibodeau. In addition, he admitted disposing of her body in a cabin located in a field
where, twenty years later, cadaver dogs alerted to the presence of human remains. Turning to the
canine dog indications, the fact that two forensic examiners have previously been to sites where
cadaver dogs have alerted for the presence of human remains and none have been located does
not mean the alerts in this case were inaccurate. All it means is that no physical evidence was
located at those sites (and the cabin in question) to corroborate the alerts.
132. Finally, the County Court took great pains to undermine the testimony of William
Pierce, who identified Steen as the man outside the D&W convenience store on the morning of
Allens abduction. As explained by Pierce, Steen exited a white van with a lot of rust on the

57

side of it, walked behind a girl and hit her behind the right ear on the base of her neck with his
fist. (H.T., 977-78; 1034). Pierce made clear that the van located in front of the D&W did not
belong to Richard Thibodeau. (H.T., 975).
133. According to the County Court, Pierces testimony could not be credited for the
following reasons: (1) scientific evidence, not part of the instant record, has rendered eyewitness
identification unreliable; (2) he did not help the woman he saw knocked unconscious; (3) he
reported seeing slush and snow being on the roads that morning; (4) he could not identify dated
pictures of either Thibodeau or Steen in a photo array; and (5) his identification came twenty
years too late. (Decision and Order, March 2, 2016, pp. 22, 40-51).
134. Though apparently unknown to the County Court, the evidence presented against
Thibodeau was based to a considerable degree on the eyewitness testimony of Christopher
Bivens, who, at trial, claimed to have seen Heidi Allen outside the D&W on the morning of her
abduction. According to Bivens, one man was holding Allen from behind, while another man
stood nearby. All three were located near a cargo van that Bivens claimed, at trial, belonged to
Richard Thibodeau, even though in one of his original statements to police, Bivens said
Thibodeaus van was the right style, but the wrong color. Although he described the abductors
as tall and burly (neither of which would ever be applied to Thibodeau), Bivens could not
identify the two men. In any case, Bivens described the event as a domestic dispute with which
he did not care to become involved.
135. Consequently, the County Courts reliance on research to undermine the validity of
Pierces eyewitness identification also serves to undermine Bivenss supposed identification.
Indeed, reliance on Pierces failure to aid the apparent victim of abuse to undermine his account
applies equally to Biven, who also failed to assist the victim of an apparent abduction.

58

Without Bivens, the States primary trial evidence against Thibodeau is reduced to the out-ofcourt statements of two jailhouse informants, neither of whom, as noted above, could provide
either a coherent and consistent account of Thibodeaus alleged involvement or a plausible
motive.
136. Beyond these more general observations, the County Countys factual
considerations do not survive scrutiny. First, though not mentioned by the County Court,
Pierces account of slush on the road is matched with testimony from the prosecutions own trial
witnesses. Don Neville described the road conditions as really slushy, snowy and slushy,
and wet slushy snow. (TT., pp. 1786, 1810, 1962). Likewise, William Cowen agreed the
weather conditions were snowy with about an inch, half an inch of snow or so on the ground.
(TT., pp. 1869). Brittany Link also agreed the conditions were snowy. (TT., p. 1846). Finally,
Chris Bivens drove by the D&W convenience store on the morning of Allens abduction and it
was raining, a little snow in the air. It was like a bluish hazy day. (TT., p. 1289). The Court
discredited Pierces description of slush on the road because two photographs of the D&W
introduced by the prosecution did not depict slush on the road. (Exhibits UU and ZZ). However,
the Courts reliance on these two exhibits fails for two reasons: (1) the photographs were taken
well after Allen was abducted; and (2) the prosecutions own witnesses at trial describe snow and
slush on the road earlier that morning.
137. Second, though overlooked by the County Court, Pierces failure to identify Steen
in a photo array comes with an obvious explanation. In 2014, Pierce recognized an image of
Steen in newspaper articles. He was able to say with certainty that he witnessed Steen assault
Allen on the morning of her abduction. Pierce was presented with a photo array prior to the
hearing. Although Allen was abducted in 1994, the photo array included an image of Steen

59

taken from 1988. Though Steen wore a full beard in 1994, the image in the photo array depicted
him with a clean-shaven baby face. (2219, 2222-23). Obviously, Pierce did not recognize this
image as Steen. (978, 2219).
138. Finally, while it is true that Pierce did not immediately notify law enforcement after
observing Steen assault Allen on the morning of her abduction, the County Court failed to even
take into account of Pierces explanation. In 1994, Pierce thought the assailant might be Gary
Thibodeau after he drew a beard on a photo of Thibodeau that was in the newspaper. Upon
seeing James Steens photograph in the newspaper in 2014, he instantly knew Steen was the man
he observed that morning. The fact that 20 years had lapsed between Pierces observation and
the time he notified law enforcement is of little moment. It was not until 2014 that Pierce had
any need to come forward. Until then, he operated under the assumed (though incorrect)
conclusion that law enforcement officers had apprehended Allens assailant.
139. In final analysis, the County Courts treatment of Thibodeaus new evidence is no
different from the disparaged manner in which the hearing court mechanically assessed the
evidence in People v. Tankleff, 49 A.D.3d 160 (2d Dept. 2007). Specifically, the county court in
Tankleff was faulted for (1) discrediting unrelated and unconnected witnesses who each
implicated alternative suspects; (2) failing to evaluate the cumulative effect of the new evidence
and instead erroneously applying a narrow approach and methodology in evaluating the
evidence; (3) applying a blanket disqualification of all of the defendants proffered evidence
by viewing all of the new witnesses as questionable, untrustworthy, or unreliable; and (4)
dismissing the testimony of several witnesses as inadmissible hearsay.
140. Just as in Tankleff, Thibodeau called numerous witnesses to testify at the postconviction hearing, each of whom corroborated Wescotts recorded admissions to Priest that

60

Steen, Breckenridge, and Bohrer abducted Allen from the D&W on April 3, 1994. Like the
lower court in Tankleff, the County Court here took a dismissive view of Thibodeaus witnesses,
none of whom were connected, yet all of whom reported admissions made by the three suspects
implicated by Jennifer Wescott in her recorded phone call. Interestingly, the County Court
acknowledged in its decision that there was a plethora of information provided by a multitude
of sources, but concluded that none of their testimony can be corroborated or deemed
credible. (Decision and Order, dated March 2, 2016, p. 25). Therefore, this Court should grant
Thibodeaus application for leave to appeal and correct the County Courts flawed analysis.
III.

APPELLATE REVIEW IS REQUIRED BECAUSE THE COUNTY COURT


VIOLATED THIBODEAUS STATE AND FEDERAL DUE PROCESS RIGHTS
BY LIMITING HIS PRESENTATION OF THIRD-PARTY CULPABILITY
EVIDENCE.
141. The Constitution guarantees criminal defendants a meaningful opportunity to

present a complete defense. This right is abridged by evidence rules that infringe upon a weighty
interest of the accused and are arbitrary or disproportionate to the purpose they are designed to
serve. Holmes v. South Carolina, 547 U.S. 319, 324 (2006). This right is derived from the more
general right of an accused to present evidence in his defense found in the Confrontation and
Compulsory Clauses of the Sixth Amendment, see Washington v. Texas, 388 U.S. 14, 19 (1967)
(construing Compulsory Process Clause to entitle state defendants to present witnesses in their
favor); Pointer v. Texas, 380 U.S. 400, 404(1965), and the Due Process Clauses of the Fifth and
Fourteenth Amendments, see Crane v. Kentucky, 476 U.S. 683 (1986) (Whether rooted directly
in the Due Process Clause of the Fourteenth Amendment, . . . or in the Compulsory Process
Clause or Confrontation clauses of the Sixth Amendment, . . . Constitution guarantees criminal
defendants a meaningful opportunity to present a complete defense.). Encompassed within

61

the right to present a defense is the right to present evidence that someone else (a third party)
committed the offense. See People v. Willock, 125 A.D.3d 901 (2d Dept. 2015).
142. Evidence offered by a defendant pursuant to his right to present a defense is
subjected to the general balancing analysis that governs the admissibility of all evidence.
People v. Primo, 96 N.Y. 2d 351, 356 (20011). Accordingly, relevant evidence of third-party
culpability may only be excluded if its probative value is outweighed by the prospect of trial
delay, undue prejudice to the opposing party, confusing the issues or misleading the jury. Id. at
355. Even if otherwise relevant, [t]he admission of third-party culpability may not rest on mere
suspicion or surmise. Id. at 357; People v. Schulz, 4 N.Y. 3d 521 (2005).
143. At various points during the proceedings below, Thibodeau offered evidence
supporting and corroborating the primary new evidence linking Steen, Breckenridge, and Bohrer
to Allens abduction. More particularly, Thibodeau offered evidence implicating Michael
Bohrer, including his criminal history, his admissions to third parties, his collection of articles
surrounding Allens abductions, his own writings, his behavior throughout the investigation, and
a profile prepared by a forensic expert shortly after Allens disappearance. Thibodeau proffered
additional evidence through Bohrers brother, John Bohrer, establishing that Bohrer was wellacquainted with the other suspects, that he sold narcotics in the area surrounding Allens
abduction, and that he appeared fixated on Allen. Thibodeau sought to proffer yet additional
evidence linking Bohrer to Allens abduction though an affidavit from Melissa Adams, who
received a bracelet belonging to Allen from an anonymous source after discussing Allens
abduction in Bohrers presence. Finally, Thibodeau sought to introduce admissions made by
Steen, Breckenridge, and Bohrer to separate witnesses.

62

144. The County Court rejected the new evidence in its entirety, declaring it too
speculative, immaterial, unreliable, based upon hearsay, or moreover, irrelevant and concluded,
[w]hile the Court applauds defendants attorneys for leaving no stone unturned in its
investigation, zealous representation cannot require this Court to take off its figurative judicial
hat and replace it with a law enforcement badge that allows this Court to review the proposed
evidence under a different standard of review. (Decision and Order, November 2, 2015, at 11).
The County Courts rejection and refusal to consider this evidence violated Thibodeaus right to
present a defense.
A.

The County Court Erred by Analyzing the Admissibility of Bohrers Related


Prior Conduct Under Molineux.

145. Throughout the proceedings below, Thibodeau sought to introduce the following
evidence concerning Bohrers prior related conduct involving women:

A 1981 felony conviction in Wisconsin for false imprisonment in which Michael


Bohrer and his brother, John Bohrer, followed a woman into a parking lot. After
the brothers exited their vehicle, Michael Bohrer placed his arm around the
victims neck and dragged her back to his car. With Johns assistance, Michael
attempted to wrestle her into his car before the victim managed to break free and
run to safety.
A 1980 conviction in Wisconsin for disorderly conduct in which Michael Bohrer
followed a woman driving home from work and attempted to force her off the
road. When the victim came to a stop, Bohrer exited his vehicle and tried to enter
the victims car.
A 1985 suspected commission of attempted murder and sexual assault in Beacon,
New York in which the victim recalled being awakened by Bohrer, being told by
Bohrer that he wanted to fuck her roommate too, and running through her
apartment trying to get away from Bohrer before she was found naked in her
apartment lying in a pool of blood. Bohrer is the person who found the victim.
His sexual, physical, and emotional abuse of his wife and daughters between 1975
and 1983.

146. Thibodeau sought to introduce this evidence to prove that Bohrer had the motive,
the know-how, the wherewithal, and experience to brazenly and forcefully kidnap a young
female, who fit a certain type, in a public place, in broad daylight, and without disguise. This
63

evidence was offered to prove Thibodeaus non-involvement, and thus his innocence. The other
crimes Bohrer committed also contradict his own statements to Sheriffs investigators and his
hearing testimony, during which he stated he was neither capable of violence nor did he commit
acts of violence against women. The circumstances surrounding Bohrers prior violent acts
against women also demonstrate his willingness to inject himself directly into the investigation,
feign concern for the victim, and express a desire to capture the perpetrator, just as he did in this
case.
147. Thibodeau argued all of this evidence was relevant because it was similar in nature
to the Allen abduction, and denying him the right to introduce evidence concerning the unique
circumstances of Bohrers prior conduct violated his federal and state constitutional rights to
present a defense of third-party culpability. See Chambers v. Mississippi, 410 U.S. 284 (1972);
Green v. Georgia, 442 U.S. 95, 97 (1979); Crane v. Kentucky, 476 U.S. 683 (1986); Holmes v.
South Carolina, 547 U.S. 319 (2006); People v. Robinson, 89 N.Y. 2d 648 (1997); People v.
Oxley, 64 A.D.3d 1078 (3d Dept. 2009).
148. The County Court held Bohrers related prior conduct was not admissible under
People v. Molineux, 168 N.Y. 264 (1901). The County Court found the underlying facts and
substantive nature as to how Michael and John Bohrer attempted to take a woman into their
vehicle was inadmissible because the manner in which Heidi Allen was abducted and
presumably killed is still not known. (Decision and Order, dated November 2, 2015, at 6).
Despite evidence to the contrary, the County Court held there were no unique facts pertaining to
the 1981 conviction which link Michael Bohrer to Ms. Allens disappearance and hypothesized
[i]f defendant were allowed to admit a conviction based on these broad facts, i.e. that Michael
and John Bohrer followed a woman in a parking lot around 1:00 A.M. and attempted to put her

64

in their car, then defendant would be casting a wide net involving anyone who lived in or around
the vicinity of Oswego County in 1994 and who had a prior ten to fifteen year old out-of-state
false imprisonment conviction involving a woman. (Decision and Order, dated November 2,
2015, at 7-8).
149. Contrary to the County Courts decision, the Molineux factors do not apply here.
The general evidentiary rule is that [a] person cannot be convicted of one offense upon proof
that he committed another, however persuasive in a moral point of view such evidence may be.
Molineux, 168 N.Y. at 292. Importantly, the exclusion of propensity evidence is designed to
protect the defendant from wrongful conviction. Although propensity evidence is relevant, the
risk that a jury will convict for crimes other than those charged or that, uncertain of guilt it will
convict anyway because a bad person deserves punishment creates a prejudicial effect that
outweighs ordinary relevance. Old Chief v. United States, 159 U.S. 172, 181 (1997).
150. In the case of third-party guilt evidence, the third-party is not on trial and the risk of
wrongful conviction is non-existent. In other words, the protections laid out in Molineux are for
the benefit of a defendant, not an uncharged third party. Indeed, it would be passing strange if
rules designed to protect a defendant were also applied to handicap his attempt to mount a
defense. See United States v. Aboumoussallem, 726 F.2d 906, 911 (2d Cir. 1984) (We believe
the standard of admissibility when a criminal defendant offers similar act evidence as a shield
need not be as restrictive as when a prosecutor uses such evidence as a sword.).
151. As the New York Court of Appeals made clear in People v. Primo, 96 N.Y.2d 351,
356 (2001), evidence of third-party culpability does not constitute a special or exotic category
of proof. Instead, third-party admissibility evidence is subjected to the same evidence generally
governing the admissibility of any evidence. Id. To be admissible, the evidence must be

65

relevant and its probative value must outweigh some countervailing risk. Id. Evidence of thirdparty culpability in the form of prior crimes and bad acts evidence is subjected to this same
standard and not limited to the categories outlined in Molineux.
152. By limiting its analysis to the Molineux factors, the County Court failed to assess
the admissibility of the evidence of Michael Bohrers related prior conduct in the full context of
the evidence establishing his participation in Heidi Allens abduction. The proffered evidence is
not some free-standing claim of propensity. Instead, it was offered in combination with Bohrers
testimony; William Pierces testimony identifying James Steen and another unidentified person
in Heidi Allens abduction; Pierces identification of a different van than the one owned by
Richard Thibodeau; the monitored phone call between Wescott and Priest, in which Wescott
acknowledged Bohrers presence at her residence, where Allen was brought on the morning of
her abduction; the March 21, 2013, interview between Bohrer and two Sheriffs investigators, in
which Bohrer failed to mention his brother, John Bohrer, and disclaimed the capacity to abduct
someone or to commit violence; Tyler Hayess and Danielle Babcocks testimony; and Lead
Sheet #977, which indicates that Bohrer was driving a black pickup truck in April 1994 and left
around Easter and returned around April 20, 1994. This Court should review Thibodeaus case
to clarify that the Molineux factors cannot be used to unduly restrain a defendants right to
present a defense in the form of third-party culpability evidence.
B.

The County Court Erred by Excluding Relevant Evidence Tending to


Corroborate Third-Party Culpability.

153. Throughout the proceedings below, Thibodeau sought to introduce evidence


tending to corroborate Bohrers involvement in Allens abduction. This evidence included notes
created and maintained by Bohrer concerning his knowledge of Allens abduction, a forensic
profile report created by a FBI Special Agent at law enforcements request, physical evidence
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establishing Bohrers connection to Allens abduction, and proffered testimony from Bohrers
brother, John Bohrer. The County Court refused to consider any of this evidence, either for
purposes of a new trial or as evidence establishing Thibodeaus actual innocence. Contrary to
the County Courts conclusions, this evidence is relevant because it tends to corroborate Bohrers
participation in Allens abduction.
154. During the evidentiary hearing and 2013 law enforcement interview, Michael
Bohrer admitted he had been consumed with the Heidi Allen case for over twenty years.
(Pietroski-Bohrer audio recorded interview March 21, 2013 as part of Defense Exhibit 35 at
4:28-4:46; 28:56-29:13). His obsession caused him to conduct his own investigation into her
disappearance, which included interviewing people, collecting documents, and creating his own
notes about his findings. (H.T., at 509). Bohrer provided the Oswego County Sheriffs
Department with a box of documents reflecting his obsession with Allens disappearance that he
held onto for 20 years. Id. at 470. Documents found in the box covered a variety of subjects,
including a discussion of Allen as a confidential informant, a summary of Allens work schedule
(and the fact that Allen was not scheduled to work on the day of her abduction), a description of
the manner in which Allen was killed and how her remains were burned, and a conclusion that
Allens information about drug activity was a likely motive for her death. (H.T., at 486, 489;
Defense Motion to Reconsider Admissibility of Certain Documents, dated February 3, 2015).
155. Thibodeau also sought to introduce evidence from FBI Supervisory Special Agent
Clinton Van Zandt regarding the third-party culpability of Michael Bohrer. (Letter Motions,
dated June 30, 2015 and July 17, 2015; Decision and Order, dated November 2, 2015, at 17).
Five days following Allens abduction, Van Zandt created a profile report to assist the Oswego
County Sheriffs Department with their investigation surrounding the abduction of Heidi Allen.

67

Id. The profile report described kidnapping offenders as people who inject themselves into an
investigation by providing false and misleading information to law enforcement to misdirect the
investigation away from themselves; volunteer to participate in the search of the missing victim;
follow the investigation closely to provide police with logical reasons for their behavior if they
become a suspect; collect newspaper articles detailing the crime; and create their own writings
and drawings. Id. If the kidnapping involved a sexual motive, the report indicated that the
kidnapper would keep a souvenir such as jewelry taken from the victim. Id.
156. As was painfully obvious, Michael Bohrer engaged in the exact conduct outlined in
Van Zandts report. Bohrer had provided several false leads to investigators; created numerous
writings detailing his own investigation into Allens abduction where he referred to himself as
Investigator A; provided false accounts of where he was living and the vehicle he was driving
at the time of Allens abduction; maintained a box of documents pertaining to the Allen
abduction for more than 20 years; opened a business across the street from the Heidi Allen
command center weeks after Allen was abducted; and authored The Heidi Triangle (Part I)
(Defense Exhibit 56), which contains details of his contact with Allen prior to her abduction.
157. The County Court also precluded Thibodeau from introducing the testimony of
Melissa Adams, Heidi Allens cousin, about an ID bracelet she gave Allen for her graduation.
(Defense September 2 &18, 2015, Letter Requests; Lisa A. Peebless September 2, 2015,
Affidavit; Melissa Adams September 16, 2015, Affidavit). Adams was speaking to her sister
soon after Allens abduction about this bracelet and wondered if Allen was wearing it when she
was abducted. Id. Adams recalled Michael Bohrer being present when she spoke with her sister
about the bracelet. Id. Bohrer admitted being present during this conversation. (H.T., 616, 626).
Even more, Bohrers notes referenced Allen hiding a bracelet in the vehicle she was abducted in.

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(Defense Exhibit 53). This bracelet mysteriously appeared in Adams mailbox in a plain white
envelope years after Allens disappearance. (Defense September 2, 2015, Letter Request and
Peebless September 2, 2015, Affidavit). Although the prosecution consented to admitting
Adamss proposed testimony, the County Court miscomprehended its significance, stating that,
Melissa Adams (Searles), who claims she received a bracelet in the mail which was similar to
the one her cousin Ms. Allen wore, although Ms. Adams does not know who sent her this
bracelet, or in fact, if it is the same bracelet that Ms. Allen was known to wear. (Decision and
Order, dated November 2, 2015, at 10).
158. The proffered evidence by Adams, however, affirmatively stated that the bracelet she
discovered in her mailbox was in fact the bracelet she had given Allen and there was never any
suggestion that it was merely similar. Nevertheless, the Court stated, [t]he Court sees no
evidentiary purpose for this testimony as it has not been established that this bracelet was, in fact,
the bracelet belonging to Ms. Allen. Id. at 18. This is directly contrary to the proposed
testimony, and the County Courts finding of fact was made without ever assessing Adamss
credibility.
159. Finally, the County Court, for unknown reasons, denied Thibodeaus request to
introduce testimony from Michael Bohrers brother, John Bohrer. Proffered evidence from four
affidavits established that John Bohrer lived with his brother in the New Haven area between
1990 and 1994. (Defense April 7, 2015, Letter Request). This included living at the corner of
County Route 6 and 104(B), Spinners Motel, at certain times between 1991 and April 1994. Id.
John also lived with Michael Bohrer in a house he rented when they moved to New Haven. The
location of this house was within a mile from the D&W convenience store where Allen worked
and was abducted from. John confirmed that both he and his brother knew Steen, describing him

69

as heavy set with longer dark hair. In 1992 or 1993, Michael drove him to the convenience
store to see if the broad was working there. (John Bohrer October 19, 2015 Affidavit).
Michael stayed in the car and John went into the store looking for the girl. Id. The girl was not
working so he returned to the car and informed Michael of her absence. Id.
160. Taken together, this evidence establishes that Michael Bohrer was living in close
proximity to the D&W; he went to the D&W on a daily basis where Allen made him sandwiches;
he was obsessed with Allens disappearance as displayed in his notes; he lied to investigators
regarding the reason for his obsession when he talked about his daughters; he called false leads
to the Sheriffs Department about the case; he left the area for two weeks following Allens
disappearance; he injected himself into the investigation; he feigned concern for Allens wellbeing; he opened up a business across from the Heidi Allen Command Center; he became
emotional during his post-conviction testimony when he described the difficulty he had driving
by the missing Heidi billboard; he hid the existence of his co-defendant John Bohrer in a prior
attempted kidnapping and the fact they lived together in New Haven; he was tied into the
junkyard with Breckenridge and Steen and told investigators Allen could have wound up at the
junkyard; he told investigators he knew his name would one day pop up in this investigation; he
lied about his capacity to commit violent acts against women; on November 29, 2000 he became
emotional when he admitted to Tyler Hayes he has been burdened with Allens disappearance
and disposal of her body and the Thibodeaus were not involved; he threatened Danielle Babcock
that he would do to her what he did to Heidi; and he knew about Allens informant card being
dropped in the parking lot of the D & W before this information was made public. Failing to
admit this evidence deprived Thibodeau of his right to present a defense.

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C.

The County Courts Mechanical Application of the Hearsay Rules to Reject


Third- Party Admissions of Steen, Bohrer, Breckenridge, and Wescott
Denied Thibodeau His State and Federal Constitutional Right To Present a
Defense.

161. The County Court erroneously held that the following third-party admissions of Steen,
Bohrer, and Breckenridge were inadmissible hearsay and not permitted under the statements
against penal interest exception to the hearsay rule:

Tyler Hayes testified that he called the Oswego County Sheriffs Department on
November 29, 2000, to inform that Michael Bohrer told him he knew who killed Allen
and knew where her remains were located. (Defense Exhibit 21, H.T., at 200-209)
Danielle Babcock testified that, while working for Michael Bohrer, he threatened to do to
her what he did to Heidi Allen. (H.T., at 631-36).
Amanda Braley, Jessica Howard, Chris Combes, Jennifer Wescott, and Brittany Johnson
revealed they all heard similar admissions by Breckenridge, who consistently stated that
Allen was long gone as a result of being chopped up, burned in a woodstove, and sent
to Canada. (H.T., 670-71,674, 1131-32, 1149-50, 1154, 1157, 1465-66).
Ronald Clarke, Joseph Mannino, Amanda Braley, Tonya Priest, and Megan Shaw
revealed Steen had been heard stating Allen was long gone to Canada; the Thibodeaus
were not responsible for Allens disappearance; he destroyed the van used in Allens
kidnapping; he would never go to prison for what he did to Allen; he disposed of Allens
body with others by putting her remains under the floorboards of a cabin in the woods;
and he believed Allen was a rat. (H.T., 640-42, 673, 759, 761, 1051).

(Decision and Order, dated March 2, 2016, at 51-63).


162. The Supreme Court has acknowledged that state and federal rule makers have
broad latitude under the Constitution to establish rules excluding evidence from criminal trials.
United States v. Scheffer, 523 U.S. 303, 308 (1998). However, that latitude has limits. Whether
rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory
Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal
defendants a meaningful opportunity to present a complete defense. Crane v. Kentucky, 476
U.S. 683, 689 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). Indeed, the
Supreme Court has on several occasions found certain rules of evidence infringe upon a
weighty interest of the accused or are arbitrary or disproportionate to the purposes they are
71

designed to serve. Scheffer, 523 U.S. at 308 (quoting Rock v. Arkansas, 483 U.S. 44, 58, 56
(1987)).
163. Of particular relevance to the instant case is the Supreme Courts decision in
Chambers v. Mississippi, 410 U.S. 284, 302-303 (1973). In Chambers, a defendant on trial for
murder called an individual who had previously confessed to the crime and had made three
additional self-incriminating statements to three other persons. The state trial court precluded
the defendant from cross-examining the suspect as an adverse witness and prohibited him from
introducing his three separate self-incriminating statements as inadmissible hearsay. The
Chambers Court concluded the defendant had been denied a trial in accord with the traditional
and fundamental standards of due process. Id. at 302. As for the hearsay statements, the Court
held that the testimony of the three witnesses was offered under circumstances that provided
considerable assurance of their reliability:
First, each of [the other suspects] confessions was made spontaneously to a close
acquaintance shortly after the murder had occurred. Second, each one was
corroborated by some other [independent] evidence in the case . . . . The sheer
number of independent confessions provided additional corroboration for each.
Third, whatever may be the parameters of the penal-interest rationale, each
confession here was in a very real sense self-incriminatory and unquestionably
against interest. [The other suspect] stood to benefit nothing by disclosing his role
in the shooting to any of his three friends, and he must have been aware of the
possibility that disclosure would lead to criminal prosecution. . . . Finally, if there
was any question about the truthfulness of the extrajudicial statements, [the other
suspect] was present in the courtroom and was under oath. He could have been
cross-examined by the State, and his demeanor and responses weighed by the jury.
Id. at 300-01 (citations and footnotes omitted).
Because the hearsay statements were vital to the accuseds defense, the Chambers Court
concluded that the Due Process Clause required their admission, noting that where
constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule
may not be applied mechanistically to defeat the ends of justice. Id. at 302 (emphasis added).
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164. More recently, the Supreme Court has approvingly cited Chambers when
addressing a state evidentiary rule that barred evidence of third-party culpability. In Holmes v.
South Carolina, 547 U.S. 319, 325-26 (2006), the Court unanimously concluded that the trial
court erred in preventing a defendant from introducing hearsay testimony that another person had
admitted to committing the crime.
165. Courts in New York have jealously guarded the right to present a defense. To that
end, New York Courts have held that where, as here, the declarations exculpate the defendant,
they are subject to a more lenient standard, and will be found sufficient if [the supportive
evidence] establish[es] a reasonable possibility that the statement might be true. People v.
Deacon, 96 A.D.3d 965 (2d Dept. 2012) (quoting People v. Settles, 46 N.Y.2d 154, 169170
(1978)). In the context of statements against penal interest, this leniency appears to have been
most frequently applied to the fourth prong of the exception, which requires sufficient proof
independent of the utterance to assure the statements reliability. For example, in People v.
McFarland, 108 A.D.3d 1121 (4 Dept. 2013), the defendant sought to introduce evidence in the
form of an affidavit from an individual to whom a third-party confessed to killing the victim. Id.
at 1122. Relying on the leniency provided to the admissibility of hearsay statements offered in
the service of a defendants right to present a defense, the Fourth Department remanded the
denial of his 440 motion for a hearing on whether sufficiently competent evidence assured the
statements trustworthiness and reliability. Id. at 1123. See also People v. Deacon, 96 A.D.3d at
968 (finding third-party admissions exculpating defendant admissible under more lenient hearsay
standard); People v. Abdul, 76 A.D.3d 563, 565 (2d Dept. 2010) (same).
166. Even more importantly, in circumstances surprisingly similar to those present here,
courts in both New York and other jurisdictions have also held that the unavailability

73

requirement of the statements against penal interest exception must give way to a defendants
due process right to present a defense. For example, in People v. Oxley, 4 A.D.3d 1078 (3d
Dept. 2009), the Third Department held that the trial court erred in precluding the defendant
from introducing hearsay evidence that a third-party had admitted committing the alleged crime.
The defendant in Oxley was charged and convicted of murder in the second degree. Id. at 1079.
Evidence at trial tended to show that the victim was beaten in the head, causing death by blunt
force trauma. Id. Within hours of the victims death, the police found a baseball bat in the
defendants basement. Id. The bat had both the victims hair and blood and the defendants
DNA. Id. at 1079-80. To make matters worse for the defendant, a neighbor testified that he saw
the defendant walking toward the victim on the night of the victims death. Id. at 1080. Still
other witnesses told the jury that the defendant had been struggling with a drug addiction and
believed the victim had cheated him out on a recent drug transaction. Id. Further still, the
prosecution introduced testimony from another witness that the defendant made a jailhouse
admission to the crime. Id.
167. Despite the evidence suggesting the defendants guilt, he proffered the following
evidence indicating that another individual was solely responsible for the murder:
One witness would testify that she saw a man called Chase at the scene of the crime
and threatening the victim only a few hours before the murder. Less than 48 hours
prior to the murder, Chase had threatened that he would kill the victim. Six months
after the murder, she heard Chase admit that he committed the murder, stating that
he made good on his previous threat to beat the victim's brains in with a bat. An
inmate incarcerated with Chase was prepared to testify that Chase told him that he,
and not defendant, committed the murder. Another inmate who overheard that
conversation was also willing to testify. A woman who was apparently living with
Chase would testify that a few nights prior to the murder she went to the victim's
house to get away from Chase. When Chase appeared at the victim's house, the
victim refused to let Chase in and threatened Chase with a baseball bat, prompting
Chase's response that the victim would be sorry he got involved and that he was
going to get hurt. This occurrence was corroborated by an independent witness, a
local cab driver, who testified that he picked up a man fitting Chase's description at
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the home where Chase was apparently living, drove him to the victim's house and
waited outside, where the cab driver heard yelling between his fare and an occupant
of the house. The fare yelled that the victim needed to pay the money he owed or
he was going to get beat.
Id. at 1082.
When Chase testified outside of the presence of the jury, he, predictably, denied committing the
murder or making the inculpatory statements attributed to him. Id. The trial court refused to
permit the defendant to introduce the evidence of third-party guilt because Chase attended a
meeting with his parole officer in Brooklyn at 3:00 p.m. on the day prior to the murder, Chases
statements were allegedly inadmissible hearsay and Chases DNA was not on the bat. Id.
168. On appeal, the Third Department held that the trial court erred in excluding the
proffered evidence, which was not merely speculative, but specific and adequately connected
Chase to the victim and scene so that it tend[ed] clearly to point out someone besides
[defendant] as the guilty party. Id. at 1083 (citing People v. Schulz, 4 N.Y.3d 521, 529 (2005),
in turn quoting Greenfield v. People, 85 N.Y. 75, 89 (1881); see People v. Primo, 96 N.Y.2d
351, 356357 (2001)). As explained by the Third Department, [b]y evaluating and relying upon
the strength of the Peoples potential rebuttal evidence and Chases denial, the court usurped the
jurys role of assessing credibility and the relative strength of conflicting evidence, depriving
defendant of his right to present a complete defense. Id. (citing Holmes, 547 U.S. at 330-331).
169. Of particular relevance here, the Third Department also independently evaluated the
admissibility of the third-partys inculpating statements. After acknowledging that the
statements failed to meet the requirements for declarations against penal interest because Chase,
the third-party, was available and denied making incriminating statements, the Third Department
turned to whether the hearsay rule, as applied, is arbitrary or disproportionate to the purposes
[it is] designed to serve such that its application infringed upon a weighty interest of the

75

accused. Id. (quoting Scheffer, 523 U.S. at 308, in turn quoting Rock v. Arkansas, 483 U.S. 44,
56 (1987)). Before addressing that particular question, the Oxley Court observed a perverse
consequence of the unavailability requirement:
As applied here, New Yorks common-law exception to the hearsay rule for
declarations against penal interest would permit the admission of Chases
statements only if he asserted his Fifth Amendment right and refused to testify
making him unavailablebut those statements are deemed inadmissible under this
particular exception if he testifies that he never made the statements. Yet the ability
to challenge those statements through cross-examination when the witness testifies
provides a better opportunity to test or assure their credibility.
Id. at 1083-84.
170. With that observation in mind, the Court found that when supported by the relevant
non-hearsay evidence, the hearsay third-party admissions bore persuasive assurances of
trustworthiness and were critical to Oxleys defense. Id. at 1093 (citing Chambers, 410 U.S. at
302). Given the importance of Chases statements to the defense, the other evidence supporting
those statements, and Chases availability to testify and test the credibility of those statements,
exclusion of those statements infringed on defendants weighty interest in presenting exculpatory
evidence, thus depriving him of a fair trial. Id. (citing Chambers, 410 U.S. at 302-303; People
v. Darrisaw, 206 A.D.2d 661, 665 (3 Dept. 1994); Hawkins v. Costello, 460 F.3d 236, 245 (2d
Cir. 2006)). Finding that the hearsay rules must bend to a defendants right to present a defense
was made easier by the Third Departments decision in Darrisaw, in which the Court held that
when a statement is exculpatory as to [a] defendant, a less exacting standard applies in
determining whether statements against penal interest are admissible, and where the statement
forms a critical part of the defense, due process concerns may tip the scales in favor of
admission. Id. (quoting Darrisaw, 206 A.D.2d at 664).
171. As held by the Third Department in Oxley, application of the unavailability
requirement in this case would infringe on Thibodeaus weighty constitutional right to present a
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defense. At his original trial, Thibodeau raised considerable doubt as to the prosecutions
evidence against him. Through effective cross-examination, he established that no evidence
(testimonial or physical) directly placed him at the D&W on the morning of Heidi Allens
disappearance and no evidence directly placed him with Allen at any point thereafter. Crossexamination also called into question the accuracy and reliability of Christopher Bivens, who
claimed to have seen Allen in a bear hug as she was being abducted near a van in front of the
D&W. Additional doubt was raised concerning the statements attributed to Thibodeau by the
jailhouse informants. Despite the considerable doubt raised through skilled questioning of the
prosecutions witnesses, defense counsel was at a loss to establish an alternative theory to
explain Allens abduction. This was partly owing to the suppression of material evidence,
including the fact of Allens role as an informant together with the fact that her status was
disclosed to some members of the public. Equally important, however, was the unavailability of
newly discovered evidence exonerating Thibodeau and establishing an alternative explanation
for Allens disappearance. Part of this newly discovered evidence comes from individuals with
first-hand knowledge concerning Allens disappearance, including William Pierce and Jennifer
Wescott. Still other new evidence comes in the form of circumstantial evidence, including
testimony from Darlene Upcraft and Katheryn Bamford. Tying this evidence together are the
admissions of Steen, Breckenridge, and Bohrer. The County Courts failure to permit Thibodeau
to introduce this newly discovered evidence placed an undue burden on his right to present a
meaningful defense that necessitates this Courts review.

77

IV.

APPELLATE REVIEW IS REQUIRED BECAUSE THE COUNTY


COURT FAILED TO ADDRESS THIBODEAUS CLAIM OF ACTUAL
INNOCENCE WHICH WAS PROVEN BY THE NEWLY DISCOVERED
EVIDENCE.

172. Thibodeau raised a claim of actual innocence in his original motion. This claim is
brought under C.P.L 440.10(1)(h), which provides, as a ground for vacating a judgment, that
[t]he judgment was obtained in violation of a right of the defendant under the constitution of
this state or of the United States and Judiciary Law Section 2-b[3], which permits the Court to
devise new processes where fairness so requires, and thus provides an alternative mechanism for
the Court to remedy the injustice of a wrongful conviction (Defense 440.10 Motion and
Affirmation in Reply 1, 42, 144; Decision and Order, dated March 2, 2016 at p. 22).
173. The County Courts 64-page decision does not, even once, address Thibodeaus
freestanding actual innocence claim. Instead, the County Court repeatedly refers to and purports
to apply the standards that govern a motion for a new trial based on newly discovered evidence.
(Decision and Order, dated March 2, 2016, at p. 22) (Defendant argues that his conviction
should be vacated based on the fact that newly discovered evidence, which could not have been
discovered during trial, would have resulted in a favorable verdict for defendant (CPL
440.10[1][g]); id. at 22 (Pursuant to CPL 440.10 (1)(g), a court may vacate a judgment of
conviction on the ground that [n]ew evidence has been discovered since the entry of judgment,
based upon a verdict of guilty after trial, which could not have been produced by the defendant at
the trial even with due diligence on his part and which is of such character as to create a
probability that had such evidence been received at trial, the verdict would have been more
favorable to the defendant). As a result of this myopic focus on the new trial standard, the
County Court devoted all of its attention to considering the potential admissibility at trial of the
newly discovered evidence.
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174. As discussed above, Thibodeau asserts that the County Court repeatedly erred in the
course of applying those standards. More fundamentally, however, those standards are utterly
inapplicable to Thibodeaus freestanding actual innocence claim. The failure to address this
claim is important because courts may consider more evidence when evaluating a claim of actual
innocence than they can consider when evaluating a motion for a new trial. People v. Hamilton,
115 A.D.3d 12, 27 (2d Dept. 2014).
175. A showing of actual innocence warrants relief because the imprisonment of an
actually innocent person violates the fundamental guarantee of fairness embodied in due process,
and also constitutes cruel and unusual punishment. See People v. Hamilton, 115 A.D.3d 12
(2014); People v. Cole, 765 N.Y.S.2d 477 (Sup. Ct. 2003) (holding that the imprisonment of an
actually innocent person violates the New York Constitution); cf. Herrera v. Collins, 506 U.S.
390 (1993). A defendant must establish by clear and convincing evidence (considering the trial
and hearing evidence) that no reasonable juror could convict the defendant of the crimes for
which the [defendant] was found guilty. Cole, 765 N.Y.S.2d at 486. In making this
determination, a court must consider all reliable evidence, whether in admissible form or not.
Id. Under New York law, a claim of actual innocence can be raised, either as a gateway to
review another claim, which is otherwise procedurally barred, or as a freestanding claim
justifying relief on its own. Id. at 21.
176. Here, Thibodeau asserts a freestanding claim. The Hamilton Court held that
incarcerating an innocent person runs afoul of the Due Process Clause of the New York State
Constitution and the prohibition against cruel and unusual punishment. Id. at 26 (citing N.Y.
Const., art I, 6 and 5). In Hamilton, the Court adopted a common sense approach when
considering a freestanding claim of actual innocence and held, where the defendant asserts a

79

claim of actual innocence, new evidence may be considered, whether or not it satisfies the
Salemi factor and other legal barriers, such as prior adverse court determinations, which might
otherwise bar further recourse to the courts. Id. at 25 (internal citation omitted). Accordingly,
all reliable evidence, including evidence not admissible at trial based upon a procedural barsuch as the failure to name certain alibi witnesses in the alibi notice-should be admitted. Id. at
26 (citing People v Cole, 1 Misc 3d at 543; Schlup v. Delano, 513 U.S. 298, 328 (1995)).
177. Thibodeau has always maintained his innocence and even submitted to a polygraph
examination on March 28, 1996. The results were unequivocal that Thibodeau was telling the
truth that he had no involvement in or knowledge of the disappearance of Heidi Allen. The
polygraph results were submitted to the County Court and are located in the original appellate
record. (Defense 440.10 Motion dated July 30, 2014 at p. 9.)
178. Accordingly, this Court should grant leave to appeal as the County Court violated
Thibodeaus Federal and State Due Process rights under the Fourteenth and Fifth Amendments
of the United States Constitution by failing to address his actual innocence claim.

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