For those of you that have been following Tim’s case, the reasons to believe in Tim’s innocence are clear and numerous. For those of you who are visiting this site for the first time, you can read the rest of this website to learn about how our justice system can so easily fall short of the justice and fairness that is name implies. Whether you are an old friend or a new visitor, one nagging question persists: how did the jury convict Tim if he was innocent? We can talk all day about all of the evidence of innocence that Tim’s lawyer failed to present at his trial or the complete lack of investigation on the part of the police and prosecutors. But, this still doesn’t answer why his specific jurors voted “guilty.”
On this page we discuss this exact question, with answers from the jurors’ own mouths. We also discuss how we will eventually win Tim a new trial. As you will read, these two subjects are inherently interwoven. Throughout this discussion you will also learn how the prosecutors skirt, and oftentimes cross the boundaries of law and ethics. We will prove to you, through official transcripts and documents, that the prosecutors manufactured false “evidence” against Tim, how they secretly presented this false evidence to the jury during deliberation with the judge’s help, how the prosecutors and judge committed obstruction of justice in order to fool the appellate court into affirming Tim’s conviction, and how Tim’s constitutional rights were all but abandoned in the name of winning. Finally, you will learn how Tim’s brilliant new lawyers are fighting for Tim’s freedom using legal tools and strategies that, to their knowledge, have never been used like this before. Fair warning: you will find it hard to believe that some of these things actually occurred, which is why we have gone to great lengths to link as many publicly-available court documents and rulings within this page to prove to you that we are not making this up.
Update 9/12/21: Click to see the post trial juror interviews HERE. This is how we discovered that secret evidence was viewed by the jury while deliberating which ultimately caused them to convict Tim.
Update 5/16/18: Since we have posted this page, we have received a couple questions to which we felt the larger audience might benefit hearing the answers.
- Where are the videos? “This page is about two videos, but you didn’t post the videos for us to see?” We don’t have the videos. That’s actually the entire point of this page. We asked for the videos before the trial, they wouldn’t give them to us. They also would not give us the videos during or after the trial either. The videos were not played into evidence during the trial. There is no indication on the official court record that they were ever shown to the jury. We’ve never even seen them. Yet they were the jurors’ reported basis of Tim’s conviction.
- Why didn’t the judge force the prosecutors to give you the videos? We don’t know. The law says he should. The Constitution says he should. Common sense says he should. He just didn’t.
- What was on these videos? Since we only have reports of seven jurors and one of our appellate attorneys to go on, we have gathered that it was a series of obviously edited clips from two of the children’s verbal interviews with the child advocacy worker, and at the end of each video a “summary statement” from the child advocacy worker that listed the accusations that the jury ultimately transferred to the verdict sheet, which did not match the accusations from the in-court testimonies. One juror reported to me verbally that each video ended with a clear endorsement from the child advocacy worker to convict.
- UPDATE August 2020: Our attorneys Kathleen Zellner and Nick Curran petitioned through federal court to have the State of Tennessee provide us the dvds that were shown to the jury off the record. Tennessee did not fight the order. Ms. Zellner is the current custodian of the videos, which were instrumental in writing our Writ of Habeus Corpus where the contents of the dvds are described in detail (it does align with the descriptions on this page). The Zellner law firm will retain custody of the videos on our behalf. There are no plans to publish the videos online.
Way back in 2009, right after Tim was arrested and charged, we received the “discovery” packet from the D.A.’s office. The State is legally required to provide the defendant with any evidence that the prosecutors will or might use against him. Even more than that, the State is also required to hand over any evidence that is exculpatory, or in other words, anything that might help the defendant in any way. It wasn’t that long ago that the Supreme Court implemented this policy (Brady v. Maryland). Before this, prosecutors would regularly surprise a defendant mid-trial with evidence or witnesses that he had no opportunity to prepare for or investigate himself. As you can imagine, a lot of questionable evidence and testimony were used to convict innocent people because judges would rarely pause the trial for the defendant to prepare his defense to the new evidence. Even after this policy was implemented, the Supreme Court had to go further and make another ruling that the State was obligated to provide evidence beneficial to him even if the defendant didn’t specifically ask for it. This ruling had to occur because prosecutors just started to bury or destroy evidence that hurt their case, and the defense didn’t even know that it existed, much less that they should have asked for it. Today, most D.A. offices in this country like to brag that they have an “open file” policy in criminal cases, which makes it sound like they share anything and everything to prove that they have nothing to hide. Davidson County, where Tim was tried, also has this policy. The problem, however, is that prosecutors create numerous “exceptions” to this policy, which totally negates any purpose of the principle that this policy suggests. It’s like saying, “you can order anything on the menu that your heart desires…except all the things that I say you can’t have.”
The discovery packet in Tim’s case was very thin, containing notes from the investigation. As you probably already know from the rest of this site, there was almost no investigation. We were able to derive from the notes that one of the few steps taken by the police were interviews conducted with each of the three children a week after Jennifer called the police. These interviews were conducted by a psychologist named Anne Fisher Post at the Child Advocacy Center in Clarksville, Tennessee. The packet did not contain a transcript of these interviews, only bullet-point summations of a few vague and undetailed accusations. We were able to draw from the notes that these interviews were video recorded. However, these recordings were not made part of the discovery packet. So much for “open file.”
One of the few actions that Tim’s worthless trial attorney (Bernie McEvoy) took was to motion the court to compel the prosecution to give us a copy of these interviews. Motion to Compel Video Production The argument was very straightforward and cited many current legal precedents that showed the State was required to do so. In turn, the State argued that we did not have the right to force them to share the recordings. Denial for Discovery Video Production They argued that it was dangerous for us to have it because of their fear that we would make the recordings of the young girls making accusations of sexual abuse public, like we would publish them on YouTube or something. The State argued:
To release those out into the world is akin to proliferating child pornography and would re-victimize that child every time a person who derives sexual gratification from children has the opportunity to view it–which neither the State nor the Courts would have any way of controlling and which most assuredly would occur if the State is required to make copies and hand them out to child sex abuse defendants and their attorneys.” p. 4 Denial of Motion to compel Video Production
Even though the State tried to classify this video as child pornography, the video reportedly only consisted of verbal conversations between the fully-clothed children and a social worker. Then, they argued that, unlike all other cases that required disclosure to the defense, these videos were not going to be part of the State’s “case-in-chief,” or in other words, they were not going to use them at trial. The State continued to say:
In asserting that they are subject to discovery, the defendant strangely relies on State v. Mark A. Shiefelbein…[the video recordings in question in Sheifelbein] were clearly evidence to be used in the State’s case-in-chief and therefore obviously fall within the type of evidence contemplated in Tennessee Rules of Criminal Procedure (16)(a)(1)(F)(ii). The forensic interviews, which are the subject matter of the instant motion are not…the item in question is nothing more than a statement of a prospective witness.” p. 2-3 Denial of Motion to compel Video Production
We did not receive the videos. Our attorney did not take any further action to argue this point, which frustrated us beyond explanation.
In case you are not aware, the only evidence against Tim was the host of verbal accusations. Without these only recordings of the children’s claims we could not do a thorough preparation of all the witnesses’ statements and prepare a defense. How do you prove a negative of fabricated accusations? The only thing you can really do is familiarize yourself with them and attempt to disprove them. The mother made the more detailed accusations in the police report that the children would presumably make on the stand, so we didn’t know if they were going to match up or not. There wasn’t even a preliminary hearing since the prosecutors went straight to the grand jury to get an indictment, and Tennessee is one of the few states that keep the grand jury proceedings secret and sealed forever, even from the defendant. On top of this, because we did not have the videos (or any verified transcripts of them) we were unable to impeach the girls’ testimonies with them when they changed their stories. Knowing what we know now about the law, Tim absolutely had the right to these recordings prior to trial, whether or not the State was going to use them. This was the first instance of many where the prosecutors and judge simply ignored the law in order to do whatever they wanted.
In contrast to our mounting fears that the State was gaming the evidence, Bernie our trial lawyer didn’t seem to be worried. Every time that we begged him to do something else to get the videos he would explain to us that he “didn’t want to push the issue” because it was his belief that the fewer times the jury heard the accusations, the better. We were still worried that the State was going to use them (or parts of them) during trial, and we would be unprepared to deal with them. He told us that that was impossible. He explained that there was a specific statute that had to be followed before the State could use the videos, and the prosecutors had not taken any of the required steps that the statute requires.
Among many other things, they would have to have a pre-trial hearing wherein they would have to go through a litany of witnesses and establish many facts to authenticate the videos, qualify the interviewer as an expert, and have the alleged victims testify and be subject to cross-examination. Most importantly though, the statute requires that the videos are not edited and that the State gives the defense an exact copy, which they were clearly trying to avoid. This did not satisfy us. We still wanted copies because we were sure that they were keeping them from us for a reason (as you will read later, there was). We continued to ask Bernie to get them, or at least a complete, verified transcript of them, all the way up to the day of the first trial. He did not.
The first day of the first trial both alleged victims testified (by the time of the trial, the oldest child admitted that Tim did not touch her, so only the two younger sisters testified). As you can read more on many other sections of this website, their accusations were vague, undetailed and did not show the slightest hint that these girls had any knowledge of any sexual act beyond their age and inexperience. Even the few details they gave fell apart during a relatively soft cross-examination. Most importantly to the current topic, they also both testified that they didn’t actually remember “what happened” until the day before trial when the prosecutor sat them down and had them view the recordings of the interviews that they gave two years earlier at the Child Advocacy Center.
This is from the younger child’s testimony in the first trial, age 11 at the time:
19 Q. So your conversation that you had with Ms. Anne was
20 recorded on video. Right?
21 A. Yes.
22 Q. And you said you watched it?
23 A. Yes.
24 Q. When you watched your video, did it help you remember
25 all the things you told her when you talked to her?
Page 21
1 A. Yes.
2 Q. Did you actually write your initials on that video
3 disk after you got through watching it?
4 A. Yes.
5 Q. [JA], how did you feel when you found out your mom
6 had called the police on Tim?
7 A. I kind of felt bad.
8 Q. Why did you feel bad?
9 A. Just because somebody does something doesn’t mean they
10 have to get in trouble.
11 Q. You felt bad that Tim was getting in trouble?
12 A. Yeah.”
P. 21-22, July Trial Testimony, Direct Examination JA
The older child testified in the first trial, age 12 at the time:
13 Q. Now, not too long after your mom called the police,
14 did you have to go and talk to a lady named Anne —
15 A. Yes.
16 Q. — about what all had happened?
17 A. Uh-huh (yes).
18 Q. What all kinds of questions did she ask you?
19 A. She asked me like what — when he came, what he did
20 and how it happened.
21 Q. That was about two years ago, wasn’t it?
22 A. Yes.
23 Q. Does that sound right to you?
24 A. Yes.
25 Q. Did you remember more things two years ago than you
Page 23
1 might remember here today?
2 A. Yeah.
3 Q. Two years ago when you were talking to Ms. Anne, did
4 you tell her everything that you could remember?
5 A. Yes.
6 Q. Did you tell her the truth?
7 A. Yes.
8 Q. Do you know if your conversation with Ms. Anne was
9video or audiotaped, videotaped?
10 A. Yes.
11 Q. Did I ask you to watch that videotape yesterday?
12 A. Yes.
13 Q. Did you do that?
14 A. Yes.
15 Q. Did watching that videotape help you remember some of
16 the things that happened way back a bunch of years ago?
17 A. Yes.
18 Q. After you watched it, did you write your initials on
19 it?
20 A. Yes. ”
P. 22-23, July Trial Testimony, TA Direct Examination
We immediately renewed our request to Bernie to get the videos. He again refused. He told us that the videos still weren’t “used” at trial since they weren’t shown, and that he couldn’t get them. At no point during the first trial was any portion of these videos played. After the first trial ended in a hung jury, we again started to berate Bernie with requests to get the videos. He refused, over and over again. It was at this point, along with other dubious claims by Bernie, that we started to question if he really had Tim’s best interests in mind. What defense attorney wouldn’t do everything and anything to get his hands on recorded interviews of witnesses in a case where their words and credibility were the only evidence that the State could rely upon, and therefore was the only evidence that could be attacked? Even with our limited legal knowledge, we knew that this was wrong. The girls even admitted on the stand that they couldn’t recall any of the allegations without these recordings.
Some of you may wonder why we didn’t get another attorney for our second trial. In hindsight, we should have. But, we had already paid Bernie $25,000, and still had enough but a waning faith that he wanted to win, that we resigned to stick with him. After all, we had proven beyond any doubt at the first trial that Tim wasn’t in the State of Tennessee on the nine dates Jennifer testified he attacked her daughters. There was no way for us to know at this point that Bernie was not going to bring up Tim’s alibis at his second trial. On top of that, we knew of nothing that a new lawyer could have done that our current lawyer didn’t already do (file a motion).
The second trial started in the same way as the first. The girls again testified that they didn’t remember “what happened” until they again watched the videos prior to their court testimony (for the second time). The younger child testified in the second trial:
10 Q. And you’ve also watched the video of what you
11 said to Ms. Fisher several years ago. Do you rem
ember
12 that?
13 A. Yes.
14 Q. And before you watched that video, were you
15 having difficulty remembering what happened?
16 A. The last time I watched it, I couldn’t remember.
17 But this time, I already remembered. I just watched it
18 again.
19 Q. Okay. So you watched the video twice?
20 A. Yes.
21 Q. Okay.”
P. 78, October Trial Transcript, JA Cross-Examination
And the older child testified in the second trial:
16 Q. So that same day your mom came and picked you up
17 from school, you eventually went and talked to someone
18 named Ms. Anne, Anne Fisher?
19 A. Yes.
20 Q. Do you remember that?
21 A. Yes.
22 Q. Did she ask you a whole lot of questions about
23 Tim and stuff that had happened with him?
24 A. Yes.
25 Q. Did she tell you, when she was talking to you
Page 116
1 about it, that it was important that you tell the truth
2 about what happened?
3 A. Yes.
4 Q. Did you tell her the truth?
5 A. Yes.
6 Q. Now, that was about over two years ago, two and
7 a half years ago.
8 Was it fresher in your mind, what he had done,
9 back then, two and half years ago, than it is here
10today?
11 A. Yeah.
12 Q. Have you tried to not think about it too much in
13 the last two and a half years?
14 A. Yeah.
15 Q. But you had to think about it a couple of times.
16 Right?
17 A. Yeah.
18 Q. Did I ask you to watch the videotape of your
19 conversation with Ms. Anne?
20 A. Yes.
21 Q. Were you able to do that?
22 A. Yes.
23 Q. I am going to show you something and ask if you
24 recognize it.
25 (Item handed to the witness.) Page 117
1 Q. (By Ms. Reddick:) What is that?
2 A. It’s my video recording.
3 Q. How do you know that’s what it is?
4 A. Because I watched it.
5 Q. You watched it.
6 And then what did you do?
7 A. And then I signed it.
8 Q. So you know that’s the one you watched.
9 A. (Respite)
10
11 MS. REDDICK: Judge, I would ask to mark that as
12 an exhibit to her testimony, mark it for identification
13 purposes.
14THE COURT: All right. For ID purposes.
15
16 (Exhibit No. 6 was marked for identification
17 only.)”
P. 116-118, October Trial Testimony, TA Cross-Examination
The State made the DVDs exhibits “for identification purposes only.” Of course, we renewed our request for the videos to Bernie, and again he said he couldn’t do anything since they still weren’t full evidence. Their in-court testimony fell apart again, and even changed from the first trial three months earlier, which forced them to drop one of the charges altogether.
There are many other sections of this site that cover the second trial and how it was ridiculously unfair to Tim, but the most important detail was that Jennifer now didn’t remember any dates that these assaults occurred unlike the first trial when she produced physical notes that listed dates that Tim was allegedly at her house abusing her children. Bernie didn’t impeach this testimony, no alibi witnesses were called as in the first trial, and the jury was only told that these crimes occurred sometime in a three year period.
Later on in the trial, the State called Anne Fisher Post to the stand, the person that conducted the interviews with the girls. She testified that abused children often don’t remember details of events in their lives. She did not cite any scientific studies, but rather her own experience. The State used this testimony to claim that the girls’ lack of detail was proof they were telling the truth. The appellate court later found that this testimony was erroneous, but declined to grant Tim a new trial. After she made this pseudo-psychological generalization, the prosecutor asked her about the interviews. She was asked if she viewed DVDs prior to trial, and if they correctly reflected the interviews. She said “yes, subject to some redactions.” To be clear, Tim had never agreed to any redactions, and still had not even viewed these DVD videos. The prosecutor moved to have the DVDs entered as full exhibits, to which the court agreed. But they never played them in open court, then during Fisher-Post’s testimony, or at any other time during trial.
The forensic interviewer’s testimony from the second trial:
4 Q. I want to show you what’s previously been marked
5 for identification as Exhibit No. 3.
6 Actually, I’ll take it first because I want to
7 ask you some more questions.
8 Ms. Post, did you interview two children in the
9 Advocacy Center in the spring of 2009 named [JA] and
10 [TA]?
11 A. I did.
12 Q. Did I ask you to review their interviews in
13 preparation for your testimony today?
14 A. Yes.
15 Q. I want to hand you this item that’s previously
16 been marked for identification as No. 3, and ask if that
17 appears to be the disk of the interview that I asked you
18 to review?
19 (Item provided to the witness.)
20 A. It appears to be.
21 Q. Subject to some redactions, does that accurately
22 reflect the content of your interview with [JA]
23 [JA]?
24 A. It does.
25 Page 365
1 MS. REDDICK: If that can be marked an exhibit
2 to her testimony.
3 THE COURT: That was No. 3 that was previously
4 marked for identification only.
5 MS. REDDICK: Thank you, Judge. Yes.
6
7(Exhibit No. 3 was entered.)”
P. 365-366, October Trial Transcript, Direct Examination Anne Fisher Post
So finally we were able to get the videos, right? They entered them into their case-in-chief as they said they wouldn’t, so we were entitled to the discovery, right? Wrong. Bernie told us that they would still not give them to us. His explanation was that since the State did not play the contents in open court, they were still not evidence, and the jury was not allowed to watch them during deliberation. As ridiculous as it sounds, it got worse.
Below is the very first thing the prosecutor said during his closing argument in the second trial:
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 these to work to play the
25 ones that we did. But those are video. And we don’t have the
Page 3
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.”
P.3-4, Closing Argument October Trial Transcript, Prosecutor Roger Moore
For the final time, we ordered Bernie to get the videos. He again refused, explaining that the jury couldn’t watch them since they weren’t played during the trial, and if the jury requested the viewing equipment that would be indicated as official record and he would object. As furious as we were, we had no choice but to let the jury go back to the court offices to deliberate, and once they closed that door we had no idea what was going on behind it. The public trial was over. The jury deliberated for a few hours. There were no jury questions or requests that we were made aware of by the Watkins court. As you already know, Tim was then found guilty of all seven counts.
As devastated as we were, we were also very confused. Even if the jury chose to believe the girls’ nonsensical in-court testimony, the girls had only made a total of three to four accusations (depending on how one took the prosecutor’s leading questioning), and the jury had convicted him of seven. We immediately hired a new attorney for Tim’s appeal, and he hired a local private investigator to track down the jurors to find out exactly why they voted guilty. Below are some of their answers they provided:
2011 Juror Interviews (Nov 2011, approximately 1 month following conviction)
Juror #3:
Q: What conflicts in the testimony may have led ( you or the group )to the decision reached.
A: Video of the girls was 3 years before the trial and there was some inconsistencies between there recorded statement and trial and that was because of time , but there was no real sense of lying or deception. She also said she could not tell if there was any coaching but was aware of that existed and it was in her mind.
Q: Did you watched the video of the girls statements during your deliberations? Y N Did it make a difference in the opinion of the group?
A: Yes they watched all the videos -and said they watched videos that had not been shown during the trial something about the videos taken of the social worker interviews.
Q: Did anything said by the attorneys in the closing arguments persuade(you or the group )to find him guilty
A: Very well delivered they(jury)were struggling after hearing both sides
Juror #4:
Q: Did you watched the video of the girls statements during your deliberations? Y N Did it make a difference in the opinion of the group?
A: Yes they watched the video and that it was a big deciding point for them
Q: Was there anything specific that persuaded ( you or the group) in your decision.
A: The girls video statements
Juror #8 (Foreperson):
Q: What conflicts in the testimony may have lead ( you or the group )to the decision reached.
A: Did not understand the question , then said that when the prosecution made a point or a witness made a statement that she felt that the defendant was a guilty bastard. Then when the defense made a point she could see it as it was her brother and there was doubt that he had committed the offense.
Q: Did you watched the video of the girls statements during your deliberations? Y N Did it make a difference in the opinion of the group?
A: Yes they watched the video and it was the main reason they found him guilty.
Q: Was there anything specific that persuaded ( you or the group) in your decision.
A: Yes the video of the girls was the one thing that made the decision and was a defining moment , the girls were very creditable.
Juror #10:
Q: Did you watched the video of the girls statements during your deliberations? Did it make a difference in the opinion of the group?
A: Yes, They as a group had seen the videos that had helped to form their opinion
Juror #7:
Q: Did you watched the video of the girls statements during your deliberations? Did it make a difference in the opinion of the group?
A: Yes, Yes it did and she had not and the others had not made up their minds until they deliberated and they went back over the old videos
Q: Was there anything specific that persuaded ( you or the group) in your decision.
A: That the girls testimony was very compelling because [Child 1] during her interview was asked by the interviewer if there was anything that she would like to of her, and she responded with If anything like this had every happened to her. Mentioned [Child 2] also but not anything specific except referencing the interviews” [Note: these references were only in the videos]
Not only did the jurors watch the videos, they also used them as the basis for their verdict. In fact, none of the jurors cited any of the in-court testimony or evidence as the reason for their vote. These answers also make clear that many of the jurors were not for conviction until they watched these videos. It was just as we suspected; the actual evidence adduced at trial was not sufficient for conviction.
To further illustrate this point, we look to the alternate juror and his interview with the private investigator.
Juror #11 (ALTERNATE, DID NOT SIT IN DELIBERATIONS OR SEE VIDEO–note: he answered all of these questions before he heard the outcome of the case)
Q: What was your general impressions or thoughts about the case?
A: He thought he was innocent , due to the inconsistent statements by the mother and the children.
Q: Did you watched the video of the girls statements during the trial?
A: No he knew that the videos went back to the deliberation room with the other jurors but he did not get to see the videos.
Q: Was there anything specific that persuaded ( you or the group) in your decision.
A: He said that the statements made by the mother and the children related to the dates and different things were inconsistent and he did not believe that he was guilty from the evidence that was presented
Q: Was there anything that you would have wanted to know that would have helped you make your decision?
A: He said that the proof did not he felt make it where he needed to hear from the defendant”
He sat with the rest of the jury and heard all of the evidence in the same manner because he was not chosen as the alternate until after the public portion of trial was completed. Note that he answered the PI’s questions not knowing what the outcome of the trial was; he was dismissed before the deliberations began and left the courthouse. He didn’t find the State’s witnesses credible at all and felt that they didn’t come even close to proving anything beyond a reasonable doubt. This is even true despite the fact that in the second trial Bernie did not present Tim’s airtight alibi evidence. Most notable from this report is his final comment:
He stated again that he thought that he was not guilty. He asked what the verdict was and when I told him Guilty he was astonished, he was only told this after all the questions were completed.”
It is clear that he was shocked that Tim was convicted of anything. SO what was the only difference between this alternate juror and the rest of the jury? He did not see the videos. It is crystal clear that Tim was convicted and sentenced to 70 years without parole based off of “evidence” that was not shown during his trial and that he has never seen to this day.
These results also brought up many questions. Mainly, how did they watch the videos? We were not made aware of any request from the jury to the Watkins court for equipment to watch them. If you call up Judge Watkins’ court clerk, they will tell you that when a jury is in deliberations and want to ask a question or make a request (for media viewing equipment, as an example), they are to write it down, give it to the bailiff, and the judge will call the defendant, jury, and all lawyers back to the courtroom to deliberate the jury request, which the judge will then rule on and the court reporter will enshrine ON THE RECORD. This clearly did not happen in our trial. During our private investigation none of the jurors told us how it was that they were able to watch them. We thought that maybe there was already a TV and DVD player in the deliberation room at the onset of deliberations? We simply didn’t know. We didn’t ever get to see the inside of the jury room, just like 100% of defendants of a criminal trial.
A couple of months later in March of 2012 we had our hearing for Tim’s motion for new trial in front of the same trial judge, Judge Monte Watkins. Among many other issues, we argued that the videos were improperly entered as exhibits because there was no discovery, no evidentiary hearing, and they weren’t played into evidence. Based on this last point we also argued that Tim had been denied a public trial since he wasn’t allowed to confront all evidence used against him. Watkins denied the motion as expected, and we were off to Appellate Court.
Tim’s new appellate lawyer (James) asked him what was on the videos that were entered during his trial. Good question. Tim explained to him that he didn’t know because they never gave them to him and they did not play them during the trials. James went to the clerk’s office in person where he demanded they at least let him view the videos that were admitted during the trial. First he watched the admitted DVDs, then he was able to watch the unedited interviews and receive a transcript of the unedited videos. He quickly understood why the prosecutors wouldn’t let Tim view either of the videos entered as exhibits. The girls’ video statements in the original interviews differed wildly than their claims made in testimony in the courtroom.
First, most of the video accusations made were set in Clarksville (Montgomery County), which by law could not be brought up in the Nashville trial (Davidson County). Second, there were many statements on the unedited video that made it clear they were fabricating accusations on the spot. For example, the middle child started out one accusation by saying that there was one night that her mother was visiting her brother in Florida when Tim supposedly came over and abused her in her bed in the middle of the night. The interviewer repeatedly identified this instance by confirming that Mom was in Florida for several days, that the child took refuge in Mom’s empty bedroom because mom was in Florida and that their nana was in charge of them for at least a week, distinguishing it as a prosecutable defined-in-time-and-location claim:
14 INTERVIEWER: Just one nana. Okay. All
15 right. So the time that you got up and went into your
16 mom’s room and your mom was in Florida, can you tell
17 me everything about that time, the same way you told
18 me everything about your school day today? Start at
19 the beginning and then to the middle and then to the
20 end.”
TA Original uncut forensic interview transcript, April 2009, p.13
TA gave very specific details for seven pages (about five minutes) about where everyone was sleeping in the house (noting her mom was absent and correcting herself several times on who was where), a few vague details about generic touching of “his hand on my private,” and then the interviewer asked her what she did immediately afterwards.
16 T.A.:That morning it was hurting. And I said,
17 Mom, my private part is hurting. And he wasn’t
18 there, he was at the hardware store buying stuff for
19 the house.
20 INTERVIEWER: All right.
21 T.A. :And she didn’t know why and
22 everything. She was like, okay, and then just like
23 try to sit down or something and see if it will feel
24 better or anything.”
TA Original uncut forensic interview transcript, April 2009, p. 20
In the uncut video, there is a pregnant pause here. The interviewer then slowly reminded her that she had originally claimed her mom was in Florida, challenging the child but not outright confronting the inconsistency. The child then showed a flash of stress on her face, then quickly corrected herself and said it was a few days later that she told her mom of her pain:
25 INTERVIEWER: Was your mom back the next
1 morning?
2 T.A.: Well, it was like a week after I was
3 telling her”
TA Original uncut forensic interview transcript, April 2009, pp. 20-21
This is only one example, but suffice it to say that the original uncut interview did not instill confidence in the girls’ credibilities.
James said that the edited videos the jury watched were exceptionally different from the unedited. First, he said the prosecutors edited out anything that didn’t make sense or that showed the girls’ inconsistencies, like the example that was just cited. Second, James said the prosecutors edited out many of the locations where the accusations were made. In the original interviews, the girls made one Nashville accusation each. This was a problem for the State because Tim was charged with four counts on each child in Nashville. To fix this, James reported that the State edited out words like “Clarksville” or “at the new house” to leave many of the locations of the accusations vague enough to allow the jurors watching the edited videos to assume that they were talking about Nashville. After editing, the prosecutors were able to make two Nashville accusations into seven. In other words, they manufactured false evidence against Tim.
Had they not hidden these videos from us, and had they actually attempted to enter the videos into evidence properly with pre-trial hearings and discovery, they would never have been allowed to edit these videos this way, much less use them as evidence in the case. In fact, had they followed the law, Tim would have been able to use the videos to his enormous advantage during cross-examination.
We soon filed Tim’s first appeal (aka “direct appeal”). There were many issues that we brought up, but the main issue was the videos (“forensic interviews”). We argued that Tim should be given a new trial because he wasn’t given copies before the trial, they were apparently edited without the court’s oversight or permission, and the State did not follow any evidentiary process to use them. After almost two years the appellate court gave their ruling. Direct Appeal Opinion Guilfoy. They completely agreed that the court erroneously entered the DVDs of the forensic interviews into evidence.
Let us repeat: It is clear from the record that the court erroneously entered the videos as substantive evidence. This is legalese for saying this was not and could not be used as legal evidence that the jury could consider.
The court noted that the contents of the videos were not played during trial. Then they noted the prosecutor’s closing argument where he told the jury that if they wanted to watch the videos that they would have to ask the court for a TV and DVD player. They then noted that there was nothing on the record that indicated the jury ever requested the video viewing equipment, so therefore they did not watch the videos. They ruled that no matter how erroneous the videos were, the jury never watched them, so the error was harmless.
These comments indicate that, in order to watch the recordings, the jury would have to request the appropriate equipment. The record contains no indication, however, that the jury ever requested the equipment. Nor does the record contain any other indication that the jury watched the recordings. The record is simply silent on this point. Accordingly, the Defendant has failed to satisfy the first prerequisite of plain error review.
Additionally, because the record contains no indication that the jury watched either of the recordings of the forensic interviews, the Defendant cannot demonstrate that the erroneous admission of this evidence adversely affected one of his substantial rights. Accordingly, the Defendant has failed to satisfy at least two of the prerequisites for plain error relief. Therefore, we hold that the Defendant is not entitled to plain error relief on this basis.” Direct Appellate Opinion, State v. Timothy Guilfoy, p. 20
As outrageous as this ruling was, this was actually the argument that the State had made in their argument to the Appellate Court:
The defendant fails to establish that a substantial right was affected. He had the opportunity to cross-examine the victims in court and nothing in the record indicates that the jury ever actually viewed the recordings.” State Direct Appellate Brief, p. 45
According to the State’s attorneys as well as the trial and appellate courts, the videos were never watched. We, of course, knew that they were. The jurors reported they privately saw them. There was just nothing in the official record that said it happened. Without proper recording of the court’s procedures, we couldn’t prove what did or didn’t happen out of the sight of the public courtroom. We didn’t know how it came about that the jury saw them when we were not told by the court of a request during deliberations for the viewing equipment for us to litigate that request at the time. So our task for successful appeal was to somehow correct the official record to show that the jurors DID watch the videos. It was the trial court’s job to report and record the fact they did request viewing equipment, they failed to do either, and the appellate court assumed the trial court would have followed correct procedure. No jury is entitled to have requests granted on the spot without a written record or public deliberation, but Judge Watkins and/or his officers of the court (all indications point to Stephanie Mosley the bailiff) did just that.
The appellate court also expressed confusion as to why there were so many charges and convictions when there were only three accusations in the in-court testimony on record:
As it did with its election of offenses as to counts one and two and six and seven, the State again “elected” to split a single criminal episode into two counts. The State may not violate a defendant’s protections against double jeopardy in this way.” (Guilfoy vs. State, 2013 *21)
To fix this, the appellate court merged (dismissed) three of the counts against Tim. The result was that his sentence was reduced from 70 to 40 years. This may seem like a good thing, but it was actually a slap in the face. We knew through the private investigator that the reason the jury convicted him of seven counts was because that’s how many accusations were on the videos. The accusations made during the in-court testimony were not credible enough to them to be used as the basis for the convictions. The appellate court, however, wasn’t taking into consideration at all that they had watched the videos. The jury interviews we did with the PI were not considered legal evidence to prove otherwise.
The basis in the appellate court’s reasoning lies in the fact that they assume that every trial judge properly records everything that happens during trial, and especially during deliberation. If the jury makes any note making a request to the judge during deliberation, he must bring everyone back into the courtroom (including the stenographer) and litigate the request or question with all parties. This gives both sides an opportunity to object to how the judge responds to the note. The appellate court in effect ruled that no judge would ever be so incompetent or corrupt that he would receive and grant such a request without noting something on the record. The appellate judges gave Judge Monte Watkins too much credit.
So how could we fix this problem? How could we get the fact on the record that the jury watched the videos? Tennessee, like all other states, allows defendants to file a “post-conviction petition,” through which he can argue issues outside of the original direct appeal like ineffective assistance of counsel and new evidence. We argued both.
The court held a hearing for Tim’s post-conviction petition in June of 2014. His trial attorney (Bernie) was called to the stand to testify to many accusations of ineffective assistance. One of Bernie’s many failures was the fact that he did not object to the admission of the DVDs as exhibits, and explained that he thought it was normal for the State to use this kind of evidence. When questioned, he said that he didn’t remember if the jury had requested a TV and DVD player or not. He claimed to not remember most details of this case, conveniently.
We also subpoenaed the foreperson of the jury to testify to whether or not the jury viewed the videos during deliberation. The appellate court had already ruled that Tim would have received a new trial had the jury watched the videos, or even if we were able to prove that they requested the viewing equipment. Before she could testify, however, the prosecutor objected.
Having a juror testify is a complex subject, but there are some cut and dry factors that indicate what can be asked and answered. Evidentiary Rule 606(b) states that a juror may not testify as to why they voted the way they did. This rule makes sense because if it didn’t exist every defendant from every jury trial would call every juror to the stand and grill them on every piece of evidence and force them to defend their verdict. The sanctity of the jury room would effectively be evaporated. However, the rule DOES allow a juror to testify to a few subjects like if they were exposed to an outside influence or if they were exposed to “extraneous prejudicial information.” Surely you have heard of mistrials being declared or convictions overturned because a juror read an article about the case or looked up a witness online before the conclusion of the trial. It is hard to imagine how these facts could be added to the record if the juror was not allowed to be called to the stand to explain what happened.
Prosecutor Roger Moore’s objection to the foreperson testifying was, according to him, based on Rule 606(b). He claimed that the rule says “a juror may not testify, period.” Judge Watkins pulled out the Court Rules and read the first half of the complete rule. The first half basically does say that a juror may not testify in general. He stopped there, at which point he agreed with Moore that the juror may not testify, period. The second half of this rule, which the judge did not read aloud, does say that the juror may testify as to outside influence, and our attorney Jay Martin quickly explained that he was not going to ask her anything about what was on her mind or why she voted the way she did, he was only going to ask her if the jury had seen videos during deliberations. Judge Watkins still said no. Tim’s lawyer asked if we could have her testify as an offer of proof, a “proffer,” which is almost always allowed. The prosecutor jumped up and shouted that the rule didn’t allow that (which is not true) and the judge agreed, and not only told us no again, but told the juror to leave the courtroom. That was that. There was now no way for us to compel a juror to testify to the fact that they watched the videos. The judge denied Tim’s petition a few months later.
We appealed the judge’s denial, but the appellate court again denied relief because there was still no evidence on the record that the videos never shown in public court were somehow shown privately to the jury.
The petitioner has presented no proof, and we will not assume, that the jury’s verdict was based on the forensic interviewer’s summary statement as opposed to TA’s trial testimony. The petitioner is not entitled to a rehearing on this issue.” Order Denying Petition for Rehearing, September 2015, p. 4
The court did not even make a comment on the fact that the juror was not allowed to testify. At this point, as far as the courts were concerned, the jury never viewed the videos. The team of State prosecutor Roger Moore and Judge Monte Watkins stymied the regular available remedies to this point and had successfully kept the truth hidden by reading half of a law that was meant to be taken as a whole.
After the denial, we realized that we needed new lawyers that could fight against what the court was doing to Tim. It was clear that defense/appellate attorneys from Nashville did not have the political stomach to fight the Nashville courts to the extent we needed, and much later we found out that our attorney for this appeal was being wooed by the Davidson County DA (Tim’s opponent) for employment at the time of writing the appeal to the ruling against 606b, which he eventually took and which equals a major conflict of interest. After a long search, Tim found Samuel Muldavin in Memphis and Kathleen Zellner in Chicago. They could battle the Nashville court system without fear of retaliation or unfavorable treatment in future cases, since they don’t normally practice there.
Samuel hired a new PI that was able to locate seven of Tim’s jurors. Most of them refused to talk to her (which is their right), but luckily, the foreperson of the jury was willing to speak out. The main question that we had: how was the jury able to watch the videos? Her answer: they requested the equipment and the court granted their request. How did she remember this so well after five years? She was the person that made the request. After we explained to her that the contents of the videos were not evidence in the case and very likely manipulated with intent to deceive, she was upset since most of the jurors based their decision on them. We asked her if she was willing to sign an affidavit to this fact, and she readily agreed. Here is her full affidavit filed on public record. We immediately filed a writ of error coram nobis (new evidence) in the trial court with the affidavit attached. Before we could have a hearing the State filed a motion to dismiss our writ. Their reason: too late.
A hearing was held in Judge Watkins’ court on March 22, 2017 on the State’s motion to dismiss. Here is the full transcript. At the hearing the prosecutor argued that we were past the one year statute of limitations. This is technically true, but the law governing error coram nobis provides many exceptions in the case where the new evidence was hidden or was prevented from being presented to the court, as was clearly the situation in Tim’s case. They argued that this is not “new evidence.” The only prosecutor from the case that was left (because the other one was let go for ethics reasons (!)) pretended that the juror’s request for video equipment was known, recorded, and litigated when he had spent years fighting all three of those actions:
(Prosecutor Roger Moore:)
23 And that it is probably in the record that, at some
24 point, the jury asked to have recording equipment to
25 see the video or to do whatever they may have done.
1 That’s nothing new.
Hearing for Error Coram Nobis Petition, March 22, 2017, p. 4-5
After five years and two appeals where they have been arguing that the jury didn’t watch the videos because there is nothing on the record that they requested viewing equipment, with the presence of the juror affidavit proving otherwise they are now acting as if the jury’s request existed, was granted, and is and has always been on the record. He offered no citation to where the official record showed a jury request (because there was none). Ironically, they also argued that this issue has already been litigated in the previous appeals:
22 That is a part of the case file. It’s a part of the
23 record. And it was litigated, again, on a post
24 conviction issue on the appeals and it’s nothing new.
State Prosecutor Roger Moore, Hearing for Error Coram Nobis Petition, March 22, 2017, p.5
It seems that they did not acknowledge the rulings in Tim’s previous appeals. This is because not only did the appellate court rule that there was no request on the record, they also ruled that the lack thereof was the specific reason that they did not give Tim a new trial.
The prosecutor’s main argument was that these videos were not “extraneous” because they were an “exhibit.”:
10 law. And this was not an extraneous item. It wasn’t
11 someone getting a laptop and googling Timothy Guilfoy
12 or whatever else. It was not extraneous. That’s one
13 of the key points, I would submit on behalf of the
14 State. This was an exhibit.”
State Prosecutor Roger Moore, Hearing for Error Coram Nobis Petition, March 22, 2017, p.20
The problem with this argument is that they are trying to have their cake and eat it too. They want to 1. show the jury something outside of the courtroom and use it to convict Tim, 2. argue that the jury didn’t see it when the appellate court finds that it “was not” and could not be used, and 3. argue that it was evidence when it’s proven the jury saw it. One of the non-foreperson voting jurors who has been following all of our legal struggle sought me out to let me know that if jurors ever get to testify in our case, she lives close enough to Nashville that she is willing to drop everything to come to court and testify about being “shown the secret video” (her words, not mine). She said she now feels like “the guys in charge” “played with the rules” to convict an innocent man and is pretty “pissed” about it. When the law is bent so much to secure and uphold a bad conviction, we all should be so pissed.
As confusing as this is, the appellate court has already dealt with this situation in 1997 in State v. Michael Wayne Henry. In that case, audio tapes were entered as exhibits but not played during the trial. During deliberation, the jury requested to hear them. The judge denied their request because the contents of the tapes were not played in the courtroom. The appellate court affirmed the judge:
It is immaterial whether the tapes themselves were entered into evidence or were made exhibits for the purpose of identification only. Evidence is ‘any species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties. . . for the purpose of inducing belief in the minds of the court or jury as to their contention.’ Black’s Law Dictionary 498 (5th ed. 1979) (citation to cases omitted). Evidence includes ‘whatever is submitted to a judge or jury to elucidate an issue, to prove a case, or to establish or disprove a fact in issue.’ In this instance, the contents of the tapes were not in evidence. Neither the state nor the defense requested that the tapes or any portion thereof be played for the jury. The trial court properly denied the jury’s request to review the tapes in the jury room.” State v. Henry, 1997 Tenn. Crim. App. LEXIS 506 at *9-*10 (internal citations omitted).
The contents of the videos in Tim’s case were not evidence in this trial, period. The jurors could have stared all day at the plastic DVDs in their jewel cases, but the contents were never entered as considerable evidence in Tim’s public trial. Tim, to this very day, has still not viewed the videos that convinced the jurors to convict him. If the jury is exposed to anything outside (“extraneous”) of the evidence in someone’s trial, a new trial is automatic. This is not just the law in Tennessee, it is also the law in all the other states and in the federal system. It is a violation of everyone’s Constitutional rights. However, Judge Watkins still dismissed Tim’s writ, again without allowing any juror to testify. His reasoning was not only because it was too late, but also because he said that we didn’t have an issue (it was without merit). We quickly appealed his denial, which was denied again in July 2018. We petitioned the Tennessee Supreme Court to take this case to acknowledge the failure of the trial and appellate courts to properly follow Tennessee’s own laws regarding extraneous influence on trial juries, which they denied with a one-sentence order on November 14, 2018
Writ of Error Coram Nobis Appeal Brief (Tim’s)
Writ of Error Coram Nobis Response Brief (State’s)
Writ of Error Coram Nobis Reply Brief (Tim’s)
11-14-18 Order Denying Application to Appeal to SCt
It is so easy to convict an innocent person in this country when those with state power abuse it, blatantly defy Constitutional Law, and almost impossible to undo it. The Tennessee state courts has gone to unbelievable lengths to uphold this bad conviction, to rule that Tim hasn’t taken some tiny action in the past that could have maybe prevented these errors, even though Tim and his lawyers have gone to great extremes to prove that the jury watched the videos, and the State’s attorneys have gone to even greater extremes to suppress their law-breaking. In fact, Tim’s lawyers have told us that this is a case of “first impression,” that is, a situation that the courts have never seen.
This is about as clear of a case of a cover-up as you can get. It is difficult to hold the appellate court’s ruling in one hand and the juror’s affidavit in the other and comprehend how the judge and prosecutors are not charged with obstruction of justice and Tim is still in prison. It’s even more depressing to realize that these people are still practicing law and Tim may not win a new trial until he reaches the Federal Courts. It very well may take another five to ten years for the courts to do the plainly right thing.
What’s really sad it that this is all preventable with an informed electorate. We elected these people who boldly do not follow the rule of law into their positions, and more often than not, we don’t do any research before re-electing the familiar names on the ballot. Think about that the next time election day comes up. You may not think that this can happen to you until it does. As you have read, Tim did everything that he could have done to defend himself, and he is still in prison for a crime that he did not commit. The prosecutors hid evidence from him, manipulated it to their advantage, secretly brought it to the jury behind closed doors, and then covered up everything they did. The trial judge didn’t do his duty to properly record the case or follow the rules of trial procedure, and covered that up too. Tim’s appeals would have worked if the levers of power in his case hadn’t in essence lied about what they did. That’s our justice system, and if you are naive enough to think that Tim is the only person that they do this to, then you should ask yourself why thousands of people had to be let out of prison when DNA technology came about. Also, think about the fact there are 2.5 million people incarcerated in our country today, and the vast, vast majority of them do not have anything close to the support and resources that Tim does to hire lawyers and investigators to reveal even a simple fact like a viewing of a video during deliberation. How many “Tims” are sitting in prison right now that are simply going to rot away because a prosecutor didn’t want to admit that they were wrong?
So what can you do? Donate to help us keep fighting.
It cost $7,000 to hire the PI to get the affidavit. It cost $10,000 to file the error coram nobis. It cost another $10,000 to go to the appellate court. It will cost at least $15,000 if we need to go to the Supreme Court. You may be surprised to learn that these are the discounted rates because our attorneys know that Tim is innocent. This is all in addition to the $250,000 that has already been spent on trials and appeals.
If you can’t afford to donate money, your time is just as valuable to us. On top of spreading Tim’s story you can call Glenn Funk (615) 255-9595. He is the District Attorney of Davidson County. He wasn’t the DA when Tim was convicted, but he was when we tried to go to court for the error coram nobis. He is responsible for Assistant Prosecutor Roger Moore, who is assigned to Tim’s case. We do not want anyone to threaten him in any way, but the first amendment allows you to let him know what you think of the loose ethics of his office. You could let him know that what happened in Tim’s case was not justice. You could ask him to do the right thing and agree to a new trial for Tim. If he is so sure that Tim is guilty and that he has sufficient legally admissible evidence to convict him again, then what is he afraid of? Funk was elected in 2015 on the promise that he would end corruption and restore integrity to the DA’s office. Conceding to a new trial for Tim would be the perfect opportunity for him to fulfill that campaign promise. Maybe ask him if he would be okay if he was on trial and secret evidence was shown to a jury in private without his knowledge? You may think that your voice won’t make a difference, but it will. If you happen to live in Davidson County, Tennessee, let him know that you don’t vote for DAs that promote unfair trials, and also let him know that your friends and family don’t either. They already know that they’re dishonest, they just think that no one is paying attention. Prove them wrong. Let them know that you’re watching. You could also call the State Attorney General, Herbert Slattery III, and ask him the same questions. His office is the entity fighting Tim’s current appeal: (423) 663-4105 Again, please do not make any threats in any form, but let him know that you are paying attention to Tim’s case.
For the latest updates on Tim’s case, please Like his Facebook page at www.facebook.com/FreeTimGuilfoy Please follow and share with your justice-loving friends. Thank you for your support.
~Katie Guilfoy Beyers
