Jennifer Astle started this whole thing with a false accusation because she wanted to keep living in Tim’s property for free and not pay him the $2975 she owed him.  Ginger Fitting was derelict of duty as an investigator, as were Sharon Reddick and Roger Moore as seekers of justice.  The jurors were tricked into voting guilty based on manipulated information not shown in the courtroom.  The judge did not vacate the jury’s decision or follow most of the TN Rules of Evidence.  We had ONE ally in Davidson County, our trial lawyer Bernie McEvoy.

As we prepared for our second appeal, citing Ineffective Counsel, we discovered how horrible of a decision we made in selecting him to represent us.  It took nearly five years to discover that he was the worst lawyer we could possibly have had.

How did we make such a bad decision?   From the beginning….

It was crystal clear from the beginning that we needed an attorney for such major charges.  Tim made up his mind immediately after his first arrest (for Clarksville, TN charges/Montgomery County) that he was not going to take any sort of plea deal because 1. he was innocent and 2. all the deals offered were decades of prison.  We all made the decision to only hire lawyers that would get on board with going to trial, and never taking a plea.  We hired Jeff Grimes in Clarksville since he agreed not to take a plea or encourage Tim to take one.  He kept his word.

When Tim was arrested for the second time, this time being for charges made in Nashville (Davidson County), we did the same thing–researched a list of qualified lawyers in Davidson and surrounding counties, and Tim called each one.  The first question was always if the lawyer was willing to take this to trial and not take a plea.  Most lawyers told Tim that they were not what he wanted.  Bernie was one of the very few (3) that said he would be willing to go to trial.

From the final list, we chose Bernie for the following reasons:

1.  He was a former Assistant District Attorney who prosecuted cases like the one against Tim.  He knew the prosecuting attorneys and how they might likely proceed with their case.

2.  He had gotten acquittals for these types of charges before.

3.  He thought before he spoke.  From the beginning, I could tell that he was always thinking a line ahead of the conversation, and he was very careful to frame his sentences a certain way.

4.  We said Tim was innocent, we wanted acquittals, and he said “I think I can help you.”

Looking back, it was a slick, slick sales job Bernie had going.  Numbers one and two were good prerequisites, but it was three and four that sold us.  I was under the impression that we were buying his thoughtful framing speech for Tim’s benefit, and that when he said he’d “help us,” he meant that he’d help us get Tim acquitted.  Bernie’s not a liar, but a wordsmith.  He says something, you understand and only see Meaning A, but he’s guiding you to that understanding while subscribing to Meaning B.  What he was actually doing in number three was showing us how good he was at speaking but not intending at all to use it to Tim’s benefit but his own.  In reason number four, he carefully said that he’d help us.  He didn’t say what he would help us do–we were talking about acquittals, but he was intending to help us change our minds to plea out.

Literally minutes after the check to Bernie had cleared, Bernie started talking to Tim about what the State was offering in terms of a plea and what he could get.  Tim said he wasn’t interested.  Bernie said ok.  We were slightly disheartened, but figured it’s his job to communicate that to us.

Even before we hired him, we laid out all the reasons that Jennifer Astle did this (rent), the mistakes the Detective had made in the investigations, and identified the main thing we needed to prove was that the girls didn’t have any detailed allegations because nothing ever happened and there was a motive for fabrication that was ignored by the police.  He seemed to understand and agree.

But when Bernie shared with us his ideas about a defense, we did not agree with most of them.  First, he wanted to paint Tim as mentally weak, and vulnerable to suggestion.  He wanted a psychiatrist to examine Tim to see why he might hang out with the Astles in the first place, or what mental defects he might have that make him admit to acts of abuse he didn’t commit.  We all nixed that one immediately.  Tim is not feeble-minded, he happened to live next door to the Astles at first and they kept in touch with him just as much as he did them, and he made no admissions to abuse anywhere!

He said that going after Jennifer was a loser of an idea.  Even after we showed him pictures of her doing drugs in front of her kids, he said that the State’s case wasn’t dependent on what Jennifer did or didn’t do, but what the kids said.  That us making Jennifer Astle the bad guy would make the State’s case stronger–”look, there’s a single mother of three girls who’s a drug addict and can’t take care of her kids–a perfect target for the lecherous Tim Guilfoy.”  He acknowledged what came to be known among ourselves as “the rent situation” but insisted that it is not the focus of a winning case.  He flatly refused to make this case about Jen primarily and told us we had to focus on the girls and their statements.  We were scared, none of us were lawyers or knew how to keep our interests at the forefront at that time, and we collectively made the decision to believe him.

We finally settled on showing that the girls’ accusations were improbable, which they were, but still not addressing the financial motive directly.  The girls all reported abuse, but no grooming, no secrets Tim made them keep, no hugging, kissing, touching of the body other than Tim’s hand on their private part or one of his fingers in their vagina.  He wanted to focus on the fact that while Tim was alone with the girls together and separately at times babysitting, they never made allegations during those visits.  They always alleged Tim touched them when other adults were home and other people were in the room.   It was an important fact, but not what we thought was the crux of the case.

We had hired a private investigator to see if she could talk to Jen, and Jen ended up letting her interview both herself and the children in May of 2009, two months after Tim’s arrest.  This interview occurred in the Clarksville house that Tim still owned that Jennifer Astle was now squatting in without any intention of paying rent.  The PI noted that there was no indication that the Astles were in the process of moving out of the house, or that they had any emotional trauma in discussing or agreeing to discuss the allegations against Tim.  During that interview, the children were giggling about the accusations, did not appear to be upset, and Jennifer appeared to be under the influence of drugs or alcohol.  We wanted to call that PI as a witness to their demeanor, and Bernie shot it down.

We wanted to bring in a representative from Bank of America to show the account for Jen to pay Tim rent and explain it to the jury.  We wanted to interview Jen’s boyfriend at the time who was allegedly present when the revelations were made from the children to Jennifer.  We wanted Tim to testify in his own defense.  Bernie completely refused to build a defense with these items, saying we either couldn’t or shouldn’t do any of them.

The family began having multiple discussions of what, if anything, to do about the walls we were hitting with our own lawyer.  We all thought our defense was incomplete without showing the financial motives, but we all also thought that we didn’t know jack about criminal defense and Bernie did.  Many times did one of us say “At the end of the day, I’m not a lawyer,” and we went along with Bernie’s suggestions.  I wish our guts would have known to be alerting us to all the danger that lay within.

When you are on the defense in a trial, you are allowed “Discovery,” which is all the evidence that the State has against you.  [If you’ve seen “My Cousin Vinny,” this is what he’s all excited about getting from the DA that he doesn’t realize he’s entitled to at the beginning of the trial.] In our case, the Discovery included all the police reports, medical exams, warrants and legal procedural documents, transcripts of the police-controlled phone calls where Tim first heard of the allegations from Jennifer, and transcripts of the forensic interviews done at the Child Advocacy Center of Nashville where the girls described the allegations.

We asked for video copies of the girls being interviewed, which are usually granted, but the DA denied our request.  They said they were not going to use them in the trial as evidence, so we were not entitled to a copy.

Though the DA said they weren’t going to use the videos, they were going to make transcripts of the uncut interviews.  Plus, the transcript of the controlled phone call would also be used.  We asked Bernie to file a motion to suppress these, and he said we wouldn’t win, so he wasn’t going to try.  We asked him then to file a motion to redact from both transcripts any reference to Clarksville/Montgomery County.  He did, and the judge ordered those redactions.  Bernie and Sharon Reddick met to go through the transcripts, and Bernie was confident that he did a good job getting all references to Clarksville removed.

So much of our preparation was anticipating the unknown.  We only had the audio files of the phone calls and transcripts of the videos to go on, and none of those corroborated each other.  We all agreed that the children had bogus stories, but since the State wasn’t going to use those videos, we’d have to show it by contradicting whatever came out of the kids’ mouths on the stand.

The piece of Discovery on which we focused most was the police report wherein Jennifer Astle pinpointed nine separate dates that she said Tim abused her daughters.  The dates spanned from June 2007 to March 2009, and Jen detailed where Tim was sleeping with which child.  Our defense was simply to prove that Tim was out of the state or working with a partner during these dates, of which we had ample proof.   We lined up several of Tim’s friends and work partners to testify, and were positive we’d nail those lies up for all.

The trial was originally set for February 2011.  In December of 2010, Bernie traveled to St. Louis to talk to some of Tim’s friends and family and prepare further our case.  He talked to about six people total, and at the end of it, said that none of them would really help our case.  One of those people was Tim’s former roommate in Nashville at the time Tim and the Astles first met.  He was willing to vouch for Tim, and he knew the Astles and their character, but Bernie told us that he refused to say anything bad about the Astles.  We found out later that the roommate was ready, able, and willing to say that he did not trust the Astles were telling the truth.  Again, Bernie stretched the truth to serve his ends.  We wondered later what the purpose of Bernie traveling to St. Louis was if he wasn’t going to accept any of our pertinent, willing witnesses–it was likely simply to say he put some 24-hour solid block of effort into our defense though he wasn’t willing to do the far more laborious work to go after the real issues or the most beneficial witnesses.

In January 2011 the State informed the court that they would need to re-arraign Tim on different charges.  The charges that had been put together so hastily in March 2009 had the wrong girls in the wrong counties, with the allegations all mixed up.  They asked for a continuance on the trial, and received it.  The trial was now scheduled for July 2011 and they brought eight new charges after review of the girls’ forensic interviews.

At the beginning of this whole saga, Tim was adamant about testifying in his own defense.  We ALL were.  OF COURSE he would.  He isn’t guilty, he has nothing to hide, yes he will testify.  Bernie was 105% against it.  We insisted.  Bernie did a mock cross-examination of Tim with an outside attorney to appease us and told us all that Tim came off cocky and mad, though he never allowed us to ask other attorney directly.  When we argued that Tim could control himself as directed he brushed off that suggestion.  He claimed his main reason was that he was convinced that the prosecution would get a special prosecutor to cross-examine Tim and get him to say something about the Clarksville charges–that Tim wasn’t savvy enough to avoid slipping up.  We didn’t agree, but Bernie was convinced.  Bernie was sure that if the jury found out that Tim had pending charges in Clarksville that they would convict him.  I never was convinced of this.  I thought, “So what, let’s open this whole can of worms.  It’s not like it was a separate family in Clarksville.”  In my mind, since he was truly actually innocent, he had absolutely nothing to hide–that him NOT testifying would make him look like he DID have something to hide, despite his fifth amendment right not to testify, and I think there would be jurors on the panel who would subscribe to that philosophy as well.  He HAD to testify.  I argued this with Bernie up until the trial, and he knew my weakness.  He shut me down with “If Tim gets convicted, he will be put away for decades and your parents will die before he is out.  If Tim testifies, it exponentially increases his chances of getting convicted and there is no way we will win.”  My logic took leave, and my fear reigned that day, and I still kick myself regularly for giving in.

Tim very reluctantly agreed too.  Not having him testify would mean that we couldn’t bring up the bank records ourselves, or character witnesses.  Bernie knew we were new to trial procedure and hit us where he knew we would fold.  We were even more scared at that point.  I was hoping against hope that Bernie was going to go in that courtroom and amaze us with all the slickness in language and strategy that he had advertised to us.

If all that wasn’t enough, Bernie started pushing Tim and the rest of us really hard at this point to take a plea. The original offer from the State was 25 years.  Bernie appealed over and over again to Tim’s principle by saying “I don’t want your parents to die while you’re in prison.”  He started to say to all of us, “You’re expecting to get an acquittal here and in Montgomery County?  That’s probably not going to happen.”  I understand that a lawyer needs to tell you of the possible consequences, but he was adamant that we were being ridiculous to think Tim would be fully acquitted.  Bernie wasn’t fighting for us, he was fighting us.  We wanted him to put up the witnesses and the proof to show that Tim was innocent and he shot the majority of our ideas down, all the while telling us that the State had a good case against Tim and we should be prepared to lose.  The first day we met Bernie he assured us that based on the evidence, Tim didn’t commit any crimes; now a week before trial he was telling us there was no way we could win in trial and Tim needed to take the plea.  Looking back, he was clearly trying to make us feel defeated as quickly as possible to force a plea and avoid spending as much of his valuable time with us as he could.

It was at this point we realized that Bernie didn’t really believe Tim was innocent, OR that he was throwing it.   For a long time I thought it was the former, but I know now it was the latter.  We paid $25,000 to Bernie when Tim was charged in Nashville, and by the time we were at trial, Bernie was pissed that the money was now long gone and now we were expecting him to work.  We were true to our word that we were not going to take a plea, which I think Bernie thought he could eventually sell Tim and the rest of us on.  Bernie was not happy about actually going to trial and presenting an aggressive defense with an acquittal as the goal.  He also clearly wanted to preserve his personal good will with the other attorneys and the judge by not rocking the boat too much–we needed this boat rocked violently.

The first trial was agony.  We said every night after court at dinner “how can this be going so badly when Tim is innocent?”  Bernie only objected one time in the entire trial.  There were many, MANY times in trial that we expected him to stand and say “objection,” and even times when the judge looked his way to see if he was going to say that, and Bernie sat there silently.  We begged him to object, but he kept saying “we don’t want to look like we have anything to hide.”  He aimed his delivery to be calm, quiet, and told us it was to counteract the dramatics of the prosecutors Sharon Reddick and Roger Moore, who by contrast screeched their questions and accusatory proclamations at high volume in a dramatically thick twang, waved their arms in grand gestures, and presented their case with overacted outrage chewing up the scenery.  Bernie told us the jury would be put off by the prosecution’s flair, and I wanted so badly to believe that, but from listening to all of them in voir dire, I saw for many in the jury box this was as close to Judge Judy as they could get and for that reason our milquetoast style frightened me.  They dug the drama.

He kept going into lines of questioning that hurt us.  I sat in the first row with Aunt Mary and Daneyda and so many times it physically hurt to sit there with my mouth closed, watching this all go down.  Bernie started a line of questioning that we had all prepared for, but in the middle of it, he abandoned chance after chance to go further and veered off into a nonsensical topic.  It was like I was watching this whole thing unravel and I was just out of the reach of saving the only ball of yarn left.  I was mad at Bernie for not going for the win, and I was scared, so scared.  After our last original defense witness was through, without bending over to ask Tim, Bernie announced “The Defense rests.”  NO NO NO NO We needed to get Jen back up there and refute her previous testimony!  The judge went forward though, and Bernie blew the chance to nail her.  The judge sent the jury into deliberations right before the end of the day and continued it to the next morning.

Earlier in the trial, Bernie allowed the State to ask leading questions, didn’t object to inappropriate opinion testimony by the medical examiner, and didn’t object when the State entered the forensic interview videos into evidence, yes those forensic interview videos that the State said they weren’t going to use so we didn’t need to have a copy.  But we could play them in court and cross-examine the girls on it, right?  Nope.  Apparently even with all the high-tech computers and monitors and audio systems and beautiful woodwork, there was no way to play a DVD in open court in Courtroom 5A in the Davidson County Courthouse in Nashville, TN, USA, in the year 2011.  So this meant that the videos of the girls’ original forensic interviews were now officially physically part of the trial, though they were not going to be played into testimonial evidence.  Videos we were told they weren’t going to use.  Videos we wouldn’t be able to cross-examine upon in our proof in the courtroom.  Videos that were supposed to be redacted to the Nashville charges but that WE weren’t allowed to view before it went to the jury without our knowledge, and we could only hope that it was redacted correctly. (Surprise! It wasn’t.)  Bernie treated us like we were idiots and said there was nothing we could do about it, and that really, it was okay.  We the Guilfoys KNEW this was wrong.  We yelled about it in the side room.  We told Bernie, what the hell do you mean we can’t watch video evidence in court, a video that was supposed to be redacted but that we couldn’t view first, and he said we’d be fighting a losing battle. (Side note: This is SO VERY UNLAWFUL according to the TN Rules of Evidence.)  Ultimately, Bernie found out during deliberations that the videos went back to the jury room without having been viewed in open court, told naive me that because of that I had time to grab lunch, and he DID NOT DEMAND to put that request on the record and ceded its granting, so we had no clue at the time what was on them.  At the very, VERY least, Bernie should have asked the judge to give the jury a limiting instruction on how to view the videos–that they were not substantive evidence themselves but should only be used to corroborate what the girls said on the stand in trial.  But he didn’t, and the jury was free to watch the video off the record, the video we had never seen, (the video which turned out to have inadmissible evidence on it,) and consider it as real testimony.  Our lawyer was not fighting for us at all. He let this happen in the first trial and told us it was normal.

That night was a living hell.  We were all crying, positive that Bernie had screwed this one up beyond recognition.  Tim called Bernie that night and chewed him out for not doing what they had agreed to, and for not asking him if he was ready to rest before doing so.  Bernie reacted with boredom, told him he wouldn’t blame Tim if he needed to cite him for Ineffective Counsel, and that the damage was done.  He just didn’t fight for us, and it was clear he wasn’t too concerned about what happened the next day.  We fully expected Tim to be convicted the next morning.

We were called into the courtroom around noon, and the jury filed in.  My heart was in my throat and I was already crying.  The judge announced we had a hung jury, and therefore a mistrial.  I thought that God had opened up the heavens and given us another chance to do it RIGHT this time.

During the three months between that and the next trial, we asked Bernie to get a copy of the forensic interview video that we knew they were going to be using.  He just refused to, said it wasn’t important and didn’t hurt Tim if the jury saw it.  It would be “just another version” of their ever-changing stories.  Tim and I argued that we still didn’t know what was on it, and Bernie said it couldn’t possibly hurt us much.  He told us we didn’t need to worry about it, that we were actually “wasting our energy worrying about it”, and he was so very wrong. Bernie lied to Tim about his sixth amendment right to confront testimony against him, and he treated us like we were so stupid for being concerned about this.

We interviewed the hung jury and the moms said they didn’t believe Jennifer and suspected that the allegations of abuse were made up for financial motives.  We thought this would persuade Bernie to go more after Jennifer, but he still refused.  He said we’d impeach the girls on the next trial and we still had all the alibi witnesses from the first trial.  We also had the girls’ and Jen’s conflicting testimonies that we would confront them with in the second trial.  Bernie used the male jurors’ responses, that Tim was probably guilty of something if not what the allegations were, as a leveraged attempt to get us to plea.  To me, that sounded more like more reason to explain further the motives for fabrication.

The week before the second trial, Tim and I met with Bernie in his office.  We had a blunt discussion about how the family was not happy with Bernie’s performance in the first trial and gave him our reasons with examples.  He shrugged, disagreed with us, and said he thought he did a great job.  Still disagreeing, but wanting to move forward, I said I wanted him to focus on two things.  One, rent, that’s the reason we’re all here and the proof that Tim is innocent, and two, that he needed to talk to Tim before he rested the defense.  He repeated what I said but didn’t agree to it. Bernie realized that he had underestimated how smart Tim and I were, how much we were going to insist that he actually work, and that we were busting his bet that he could get us to take a plea.

He told us that the State was now offering 10 years.  He advised we seriously think about it, and think about how old our parents are.  We didn’t need any time, a plea wasn’t going to happen, and them decreasing the amount of the plea to 10 meant that the prosecution wasn’t all that confident in going to trial again themselves.  We said no, and I distinctly remember Bernie rolling his eyes.

We are often asked why we didn’t fire him and get a new lawyer.  Our reasons were that we didn’t have another $25,000 to hire a new one, the judge would likely not give a new lawyer the time to catch up and prepare, and we were constantly convincing ourselves that the truth would ultimately come out with the case we had built to this point.  In hindsight we should have told the judge we lost confidence in our attorney, but we were scared and ignorant and wanted to believe that the next jury would be able to see how clearly Tim had been set up.  We were invested and mistakenly put our faith in an ultimately undeserving and unethical advocate.

I’ll give him this–he did impeach the witnesses twice, but that was far below the number he could have.  And that’s all I’ll give him.  Again, the aggressive defense we needed just wasn’t there.  Bernie had to fulfill no-longer-billable duties for us which I’m sure was what he wished to do the very least.  When the State suddenly “didn’t have dates” of alleged abuse, Bernie sat on his hands. When the different revelation stories were brought up, he didn’t take them apart to spoon-feed the jury like he needed to.  He kept on telling us “I think the jury understands this/I think they ‘got it’” but none of us agreed.  We begged him to connect more dots, and Aunt Mary and I both had to strongarm him into asking Jen why she didn’t take the kids to the ER as soon as the allegations were made.  We had the whole first trial transcript where we could have confronted Jen on her false testimony, but he “didn’t want to be aggressive.”  If we needed anything, it was aggression.  We knew what this defense needed, we couldn’t speak for ourselves in court to ensure what needed to be said and done was said and done, and Bernie was steadfastly refusing to meet those needs.

Still, the minimum defense did poke several large holes in the State’s case, and the State’s burden of proof was not technically met with the low strength of the evidence they presented.  They hid Brian Schiff the “grandfather” this time, who was integral to their narrative in being the person whom Child 1 allegedly told first about the abuse, and whose omission meant that the State knew he had committed obvious perjury in the first trial and didn’t want to risk it again.  The girls didn’t have cogent or matching narratives, they contradicted themselves, and Jen’s testimony showed her financial gain from the situation Tim’s arrest created.  This time we were able to show that the Detective was in the wrong with her confession-getting techniques and that she called him “perpetrator” from minute one of the case.  No one could say there was not reasonable doubt of Tim’s guilt.  We thought that the jury had “gotten it” because Bernie reassured us they did, and if that was true, they saw that the only actual evidence–the statements from the witnesses–did not make logical sense in any way and were contradicted by their own previous statements.  The videos were still entered in the trial as exhibits but not played into evidence (wouldn’t you know, they hadn’t fixed the AV equipment since it was “broken” in July also), and when we panicked about them AGAIN he told us this time that he would object if the jury made a request to view them.  In theory, we had won.  We let ourselves start feeling good.

The last day of arguments was an amusement park compared to the first trial.  After the jury was sent into deliberations, we talked about never having to come to Nashville again.  Dad asked Bernie what kind of alcohol he drank so he could send him something even though we all agreed it was not the defense we had paid for and expected.  Bernie gave me a thumbs-up on his way out of the courtroom.  The family laughed and watched the Cardinals in the World Series that night with a few beers and were feeling good about where we were.

At breakfast the next day, we talked briefly about what we should do in case the “unthinkable” happened and he got convicted.  It felt like a necessary thing to do, but none of us thought it would actually happen.

When we got to the courtroom for the decision, it seemed utterly surreal and it all happened in a blur.  We had been expecting to hear “not guilty” and the “not” was not there.  Time moved too fast.  Tim’s knees collapsed and the holding cell bailiff caught him before he hit the floor.  The blonde juror in the middle of the front row smirked at Tim and then glared at me.  The white juror in the back row that always wore polo shirts sat back, folded his arms, and gave a satisfied and sharp nod of his head, like “yeah, take that.”  Dad’s head sunk into his hands.  I couldn’t breathe, I was watching them drag Tim to the back and at the same time I saw Jen and her daughters and Detective Ginger Fleischer on the other side of the room jumping up and down in their seats and silently laughing.  The baliff at the gallery door, with whom we had gotten to be familiar over time and shared mutual respect, stood at my side on the aisle to hold my family there while the Astles and Ginger were escorted out, and I sensed his disappointment in the outcome (later one of our party overheard him say “Man, that was messed up” when he thought he was out of earshot).  I sat there for a long time crying, because I knew that when I got out into the hallway I had to start making calls I did not want to make.  Somehow I made it out to the bench outside and called Tony but could barely speak to him.  Unreal.

Bernie was speechless and for the first time, moved as carefully as he talked, like he was afraid of being punched (now I understand why).  He sat down next to me and Dad and said he had a few appeal lawyers he could recommend and email to me.  He said he would try to talk to Tim in the county jail next door.  And then he left to go home to his family while ours was dying.  Bernie was done with us.  He was tired of us.  He came to the motion for new trial but didn’t say anything.  He had his money, and he was fine whether Tim spent his life as a free man or in prison though he was innocent.

In the course of the appellate process, we learned a lot more about trial law than we knew before actually being in trial.  For example, objecting is not just important during the trial–if you don’t object to an error, you waive your right to appeal that issue.  In the first appeal, the court found that there were multiple errors in the trial, errors that would have called for a new trial.  However, since Bernie didn’t object to any of them, the appellate court considered those issues waived.  In addition to this, Bernie failed on multiple counts on things that ANY attorney should have known to do:

1.  Check the redactions–the judge had ordered Bernie and the State to redact references to Clarksville on all evidence.  The jury was exposed to two references in the phone call and at least four on the video, meaning that Tim was convicted for allegations in another county.  Later several members of the jury said the statement on the video was the reason they convicted.

2.  Object to Hearsay–The girls’ “Grandfather” Brian Schiff was the first person allegedly told about abuse. He did not testify in the second trial. There are seven instances of Hearsay of Schiff in the second trial that Bernie did not notice/object to.  He also did not connect the dots for the jury as to why the prosecution was hiding him. Hearsay-regarding-Brian-Schiff

3.  Object when Rules of Evidence are not followed; Follow them yourself and in distress ask for a jury instruction–Since the videos could not be watched in court because a tv/dvd cart could not be rolled in (BS) the jury was invited by the DA to view them in the jury room (where a tv/dvd cart could be rolled in?).  Bernie failed to ask for a very necessary step in asking the judge to tell the jury how they are to view the video.  They must only look for information to corroborate the witness’ testimony in court, not treat the video as separate testimony.  Bernie didn’t ask for this and the judge didn’t do it on his own.

Moore:

17 And yes, there are exhibits, things that you can take
18 back into the jury room with you. Actually, everything that
19 we have introduced can be taken back, looked through, so
20 that’s why I’m not going to put everything up and say, oh,
21 look, remember this, we saw this.
22 One thing I do want to mention is, remember the
23 forensic interviews, those tapes, that we did not play those.
24 For one thing, we’re lucky to get [the audio tapes of the phone calls] to work to play the
25 ones that we did. But those are video. And we don’t have the
1 capability out here.
2 In the back, in the jury room, should you –
3 obviously, it’s your decision whether you want to watch them
4 or not, but should you decide to, we have the capability, or
5 the Court does, to get a TV and all that to play those, those
6 forensic interviews, the girls by themselves, with the
7 interviewer in March, April, 2009, when that occurred.
8 I just mention that sort of as, well, if you wonder
9 why didn’t we watch those or hear those, that’s the reason.

TTClosing, p.3, line 17-p.4, line 9

This is the only time the videos were ever mentioned in the trial transcript about being watched by the jury, and the judge didn’t give any instruction at any time on the rules of including them as evidence.  They were admitted as exhibits during testimony, but never did the prosecution ask or suggest the jury watch them until their closing statements after all legal evidence had been entered.  Bernie didn’t object to their admission, or the fact that it was available to be played in the jury room but not the courtroom, or the fact that we hadn’t seen them ourselves.  Moore contradicts himself from one sentence to the very next; that there was no capability of watching the videos in the courtroom, but a TV/DVD player could be brought into the jury room, a mere twenty to thirty feet away.

4. Pay attention during closing arguments–Bernie had a crossword puzzle on the table in Tim’s sight while the State presented its closing arguments and missed many instances of prosecutorial misconduct while he was distracted.  Prosecutor Sharon Reddick so very illegally used an edit in the phone call Jennifer Astle made to Tim at the beginning of the investigation to imply Tim made an admission:

Unredacted:

JA: Yeah.  Well uh…they didn’t really () to [Child 1] anything about who it was, and I’m trying to figure out, y’know…

TG:  Yeah. I, I mean anybody…

JA:  Well, yeah, and well when I talked to [Child 2] and [Child 3] about it cause apparently they said it was her sisters too, they were, they were um…[Child 3] had said it was you.

TG: Had said it was me?

Phone Call#1, p. 1

Redacted:

JA: Yeah.  Well uh…they didn’t really () to [Child 1] anything about who it was, and I’m trying to figure out, y’know…

TG:  Yeah. I, I mean anybody…

JA:  Well, yeah,

TG: Had said it was me?

Phone Call #1, p.1

Sharon Reddick’s closing statement using this edit:

10 Jen said to him, pretty much right off, “The
11 girls are saying someone touched them.”
12 Does he say who? No, because he knows.

-TT Closing, p. 54, lines 10-12

In Hollywood, you never see anyone interrupt a closing statement.  Honestly, in real life you don’t either.  But there are certain instances where it is permissible, even necessary, and this is an example of it.  The State edited out the part of the phone call where Jen directly accuses Tim of touching her daughters.  The result made it seem like Tim jumped to the conclusion he was being accused without anyone actually pointing a finger to him.  It’s called “Imparting a Guilty Mind.”  A prosecutor can’t take an edit she knows to be court-ordered and repurpose its meaning after the edit, especially when there will be no opportunity to address it in a cross-examination or rebuttal.  This should have been objected to immediately.  Bernie’s response?  Figuring out a seven-letter word beginning with A for 27 down.

There are several more items which require more detail, but the bottom line is that Bernie decided sometime after our money was spent that he wasn’t really going to the mat for this one, and ushered Tim into prison.  We did what we were supposed to do–we researched lawyers, we told him what we expected and he agreed, and we didn’t leave Tim’s fate in the hands of a public defender that we knew wouldn’t have the time or resources to devote to an acquittal.  We paid an average person’s yearly salary to defend Tim and that money was completely wasted.  We made the unfortunate decision to hire him, but Bernie made many bad decisions for which Tim is now paying the price.

Bernie admitted to several of these errors in the evidentiary hearing held in Nashville on June 18, 2014.  He snuck into the courtroom through the jury entrance to avoid me and mom and dad, and didn’t look at Tim or any of us the whole time.  He snuck right back out when he was done trying and failing to defend his horrible job in this case.  Since this whole thing has started, we’ve met many lawyers.  Bernie stands out as the most harmful attorney I can imagine.  He didn’t care that Tim was innocent, he promised hard work until he got our check, and then he just wanted Tim to shut up and go to jail for a few years.

The right thing for him to do would be to give my mom and dad back their money and beg their forgiveness, but Bernie McEvoy can’t be trusted to do the right thing all the time.  Bernie was counting on Tim buckling and taking a plea, and was mad at him when he refused to.  Bernie’s response was to lay down and let the State railroad Tim into prison for seven decades.  He might be a good lawyer if you’re guilty, he’d probably get you a good plea deal.  But we needed an acquittal, which Bernie McEvoy ultimately wasn’t willing to work for us to get.

The thing that I keep remembering, after all these years, and after learning the TN Rules of Evidence better, is Bernie telling me between closing arguments and going to lunch to wait for the verdict that the jury was watching the videos that weren’t played in court. That happened in the first trial, and I do admit I got my trials confused and testified once that that happened at the second trial, I was mistaken, this conversation was definitely in July 2011. During the deliberations of the July trial, Bernie knew that the video equipment was requested by the jury and that they got it and told me so. He didn’t insist the request be put on the record or litigated. I didn’t know at the time that this was against standard court procedure, he presented it as normal procedure. Bernie knew that we didn’t know what was on that video, and he knew that his friend and opponent Sharon Reddick was solely responsible for editing it, and he trusted(?) her to do it honestly. Why did he brush off her creation of an edited version, knowing that she wasn’t going to give us a copy? What did he think she was going to do with those dvds she edited, what is his explanation for why they exist? Why did he insist that we didn’t need to see what was on it? Why didn’t he tell me that we were being called back to the courtroom because the jury requested video equipment?

Bernie McEvoy knowingly allowed non-evidence go back to the jury room that ultimately convicted his client without putting it on the record. He did it twice. The first time a fluke happened, hung jury. Bernie was lucky that Tim and I didn’t know what he had done at this point. We were so focused on correcting the presentation of evidence in the courtroom, and had so little knowledge of jury request procedure that we didn’t understand that Bernie was assisting the State.

What are the chances that a dvd can’t be played in a 2011 courtroom? It’s pretty believable that a bunch of middle-aged court officers can’t figure out an A/V system, but after you fail to figure it out in July, what prevents you from learning how to do it by October?  But just like in July, no one from the prosecution table or that worked in that courtroom every day could figure out how to play that dang dvd for the jury with that dang tv system, just couldn’t figure those newfangled machines out. Did no other trials take place in this courtroom between July and October 2011 that used the A/V system to watch dvd evidence? Tim, ever the helper, naively offered to Bernie that he could probably figure it out, and Bernie shook his head no, we didn’t want to help them here.  Tim and I didn’t know enough at the time to realize that even if they did get the courtroom AV equipment to be able to play dvds, we still had the right (and Bernie the DUTY) to subject the content of those dvds to PRETRIAL litigation, which hadn’t been done because the State told us they weren’t going to be used in trial. Yet here they were, and shucks, we just don’t know how to play them into cross-examinable evidence.

And so without any way to play it into evidence, both times all parties considered it acceptable that the dvds be available for the jury after closing arguments to decide if they want to see it or not, because that’s how evidence works, right?–“Hey jury, do you want to see the murder weapon that hasn’t been shown yet? Maybe? Maybe no? Ok, y’all decide in the jury room, we’ll go fetch it for you if you want…” Explain to me like I’m four years old how it’s possible to wheel a working dvd player and tv into one room to play a dvd, but it cannot be rolled into a room next door to play a dvd there. 

It’s the second trial that is quoted in all of our appeals, because the second time that those videos went back to the jury off the record, the jurors took those videos as heavier evidence than anything they saw on the record. The first trial is when Bernie bet the farm that Tim and I didn’t know better that he was ceding Tim’s defense, and it was a good bet until our appellate attorneys explained proper jury request procedure to us for the first time.

Were Tim and I supposed to know all of these rules of evidence and jury procedure on our own, or was that the duty of the trial lawyer to whom we paid $25K to represent us and our interests? Why, Bernie, was it “okay” that you knew the first jury saw the video, and why was it “okay” that the second one eventually did too? Why didn’t you step up to the podium as soon as the jury filed in with a verdict and ask, on the record, if the jury had made any requests during deliberation? Bernie lied to us, he misrepresented Tennessee law to us, he took our money and got mad when we DID expect trial work for it instead of plea work, and sent Tim to prison because he didn’t want to get a reputation with the other cheating court officers as “difficult.” Don’t pay Bernie McEvoy to represent you, especially if your life and liberty are at stake and you dare to be actually innocent. He will throw you under the bus and pretend to be sad for your mom before he goes home to his big house and “forgets” everything that happened in the case he just threw…

NEXT: Writ of Error Coram Nobis–Tim gets the juror affidavit confirming tampering