TRIAL COUNSEL'S ELIGIBILITY DEFENSE

With the Court's order appointing additional counsel, and with a date having been set for the re-sentencing, this much has become apparent to Mr. Ehlers new attorneys:  Virtually nothing was done to contest Defendant's eligibility following his conviction. When invited by the Court to present evidence or testimony to challenge Defendant's eligibility, defense counsel declined.  Instead, he chose to offer only argument to the Court.(Tr. 9-30-96, p.9) The State had relied entirely on a jailhouse snitch, one James Whipple, to establish the crucial fact of Ehlers' commission of the act of murder.  Whipple testified that while sharing a prison cell with him, Ehlers admitted, inter alia, that it was he who actually shot Robert Peters, Sr.  The defense made no attempt to counter this testimony with evidence to the contrary.

It is now clear that powerful evidence to discredit Whipple's testimony was ignored by Defendant's prior counsel. One of Mr. Billers' present attorneys, Paul Whitcombe, has for some time been in possession of two tapes containing jailhouse conversations between Ehlers and Whipple.  Nothing on those recordings verifies Whipple's testimony. Whitcombe had been previously advised by Paul Gaziano, defendant's trial counsel, that such corroboration existed on a third tape Gaziano had heard.  When Whitcombe pressed Gaziano to produce that tape, prior counsel asserted it had been "lost." Defense counsel then learned that the State possesses no such tape, and that no such tape in fact ever existed. It is painfuly obvious that, for no discernible reason, trial counsel simply neglected to present facts which would have substantially undernimed Whipple's allegations. It could then have been convincingly argued that, if Ehlers had actually made such statements, why does he make no reference to shooting Robert Peters, Sr, even obliquely, in the surreptitious recordings Whipple made for law enforcement officials?  *1

Further study of the guilt-phase materials has exposed another glaring failure of prior counsel to cast doubt on Whipple's claims. Mr. Whitcombe has recently discovered lengthy transcripts of conversations between Mr. Ehlers and another prisoner-informant (last name Sutton) who was wearing a hidden microphone. On those transcripts, also in Gaziano's file, the only mention of the Peters murder is Ehlers' emphatic and repeated denial of any role in the murder of Mr. Peters. It is hard to imagine why such evidence was not offered in the eligibility phase.

Finally as to Whipple, his testimony is directly contradicted by evidence presented by the State at co-defendant Michael Hoover's sentencing. As pointed out in Mr. Ehlers' Brief in Support of Motion for Reconsideration of Sentence or New Sentencing Hearing, Hoover's lover Lori Jones testified there that she helped Hoover deal with nightmares about when he, Hoover, shot Robert Peters. (EX 44 to Brief in Support of Motion for Reconsideration of Sentence or New Sentencing Hearing). Previous counsel did not bring the Jones evidence to the attention of the Court.

When speaking to trial counsel's failure to develop mitigating facts, the Court found "There is no way this deficiency in this case can be rationalized or excused..." (Memorandum op~on, p.4). In the same sense, it is difficult to comprehend any justification for trial counsel's decision to forgo a defense to the State's eligibility case.

*1 The Court granted a defense pre-trial motion to suppress these recording. Why this motion was brought in the first instance is not readily understandable, inasmuch as the content of those tapes seems to do more for Mr. Ehlers than for the prosecution.