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Stephen Nodine Defendant ) ) ) ) ) ) ) ) )

Judge Partin

MOTION TO DISMISS INDICTMENT IN THE INTERESTS OF JUSTICE, VIOLATION OF DUE PROCESS, AND LACK OF GOOD FAITH Comes now the Defendant and does hereby move this Honorable Court to dismiss the Indictment in this case in the interests of justice pursuant to the 5th Amendment and the 14th Amendment of the United States Constitution and Section Six of the Alabama Constitution. In support thereof the defense offers the following: 1. Count One of this indictment charging the Defendant with Intentional Murder was initiated by a Baldwin County Grand Jury and returned on October 12th, 2010. 2. As this court is well aware, the State of Alabama pursued this matter under the theories of intentional murder and felony murder. The State of Alabama consistently posited that Mr. Nodine shot Angel Downs and that Ms. Downs had not committed suicide. 3. It is presumed as a matter of law and as a matter of fundamental fairness that the prosecutions theory accurately reflected the theory of the Baldwin County Grand Jury and accurately reflected the evidence that was presented to the Grand Jury. See Russell v. United States, 369 U.S. 749 (1962).

4. At no time during the previous trial did the State attempt to claim that Mr. Nodine was---or could be---criminally responsible for the death of Angel Downs as a result of a suicide. 5. On the 8th day of August, 2011, Mr. Nodine was indicted by a third Baldwin County Grand Jury in CC-11-1745. Count One of the indictment charged Mr. Nodine with the offense of Criminally Negligent Homicide. Based on recently supplied additional evidence and conversations with several members of the District Attorneys Office (including the District Attorney), the State of Alabama had changed their theory of the case and were operating under a completely different theory of criminal liability as opposed to the previous prosecution. 6. These two theories are clearly mutually exclusive. The States new theory posits that Angel Downs committed suicide and that Mr. Nodine was criminally responsible for her taking her own life; the States former theory accused Mr. Nodine of pulling the trigger and murdering Ms. Downs. 7. Based on several conversations with the current District Attorney and members of her office, it was the clear and unequivocal position of the State of Alabama that they would seek dismissal of the indictment returned in the instant case and operate under the superseding indictment returned in CC-11-1745 (see Motion to Compel and Enforce Agreement). 8. It is additionally clear that the most recent Grand Jury considered and no billed the charges of Murder, Stalking, and Manslaughter.

9. The following statement was recently released by the District Attorney:

10. On October 19, 2011 a press conference was held where it was announced that the Alabama Attorney Generals office had taken over the prosecution of this case. Former District Attorney Whetstone announced that he had been specially appointed by the Attorney General to prosecute this case and CC-11-1745. 11. According to the Press Register: Whetstone said the judge in the case, Charles Partin, would decide whether one or both of the indictments would be the basis of the trial, but he was ready to seek a verdict for murder. The states position at this moment is to pursue the murder case, the lesser included (charges) of the murder case, which could include negligent homicide, Furthermore: Whetstone said he had some theories on the case that he declined to describe. But he suggested the trial may be markedly different than the first one, which centered on a dispute over whether Nodine shot Downs or she shot herself. And most significantly: I think there is a theory of the case that Mr. Nodine could be responsible no matter who pulled the trigger. 12. It is clear that the most recent Grand Jury that was convened to consider this case found that the Murder charge was inappropriate. Upon information and belief, the Grand Jury considered all of the evidence after four days of testimony. Presumably this evidence also included the findings of a new state expert, Stuart James. Mr. James is a highly regarded forensic scientist who examined this case and made the following findings: In my opinion, based on the spatter stains on the decedents right hand, the cadaveric spasm in the right toe, the decedents posture on the ground at the time the shot was fired, it is not probable that anyone but Angel Downs fired the weapon.

13. It is equally clear that the State of Alabama has now adopted a posture where they anticipate ignoring the findings of Dr. Eugene Hart (who initially found this to be a suicide and later changed his opinion to undetermined), Dr, James Lauritson (an expert with strong historical ties to law enforcement, who also found this to be a suicide), Jan Johnson (a universally highly regarded forensic scientist who found this to be a suicide), and the most recent expert, Mr. James. 14. Such conduct on the part of the State of Alabama prosecutors violates all known concepts of due process and fair play. 15. The sanctity of the Grand Jury and their duty to return an indictment that is supported by certain facts and the prosecutors duty to present a theory based on these same facts is one of the cornerstones of due process. As the United States Supreme Court warned: A grand jury, in order to make that ultimate determination, must necessarily determine what the question under inquiry was. To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guarantee of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him. Russell v. United States, 369 U.S. 749 (1962) (emphasis added). 16. Allowing a prosecutor to ignore the will and intent of a grand jury frustrates the ends of justice and allows this prosecutor to set sail on the prevailing winds of politics instead of following the definitive course charted by a competent grand jury. As stated by the United States Supreme Court: Far from informing (the Defendant) of the nature of the accusation against him, the indictment instead left the prosecution free to roam at large---to shift

its theory of criminality so as to take advantage of each passing vicissitude of the trial and appeal. Russell v. United States, 369 U.S. 749 (1962).

This course of conduct does not display good faith. The resulting prejudice to these defendants affected their substantial rights and denied them due process of law. U.S. v. Atkinson 135 F.3d 1363 (11th Cir. 1998).

18. The 11th Circuit has also issued a recent opinion concerning the dangers of this type of conduct: This danger is compounded when the grand jury indicts on one theory of the illegal conduct, but the government prosecutes the case on an entirely different theory. This roaming theory of the prosecution can produce trial error of constitutional proportions. US v. Chandler, 388 F. 3d 796 (11th Cir. 2004) 19. Case law is equally clear concerning the duty of the government to refrain from prosecuting mutually exclusive theories of guilt. This situation has come up typically in the context of the government prosecuting two codefendants in the same case with divergent and mutually exclusive theories.

While this issue has not been reached in the State of Alabama, other courts of competent jurisdiction have considered this disturbing situation. The 9th Circuit has held: From these bedrock principles, it is well established that when no new significant evidence comes to light a prosecutor cannot, in order to convict two defendants at separate trials, offer inconsistent theories and facts regarding the same crime. Then-judge Kennedy wrote for our court that when there are 1059*1059 claims of inconsistent prosecutorial conduct, reversal is not required where the underlying theory "remains consistent." Haynes v. Cupp, 827 F.2d 435, 439 (9th Cir.1987). Here, little about the trials remained consistent other than the prosecutor's desire to win at any cost. Thompson v. Calderon, 120 F. 3d 1045 (9th Cir. 1997).


The 8th Circuit:

Smith contends that this manipulation of the evidence deprived him of due process and rendered his trial fundamentally unfair. We agree. The State's use of factually contradictory theories in this case constituted "foul blows," error that fatally infected Smith's conviction. Even if our adversary system is "in many ways, a gamble," Payne v. United States, 78 F.3d 343, 345 (8th Cir.1996), that system is poorly served when a prosecutor, the state's own instrument of justice, stacks the deck in his favor. The State's duty to its citizens does not allow it to pursue as many convictions as possible without regard to fairness and the search for truth. Suppose, for example, that the prosecutor had argued a murder theory based on Lytle's December 2, 1983, statement to convict Smith in Courtroom A in the morning, then walked upstairs to Courtroom B and argued a contradictory murder theory based on Lytle's November 30, 1983, statement to convict Cunningham in the afternoon? Again, suppose that Smith and Cunningham had been tried jointly. Would the prosecutor have been entitled to ask the jury to accept as true both of Lytle's accounts of who had murdered the Chamberses in an attempt to secure convictions of both Smith and Cunningham? We do not hold that prosecutors must present precisely the same evidence and theories in trials for different defendants. Rather, we hold only that the use of inherently factually contradictory theories violates the principles of due process. For example, the passage of time between trials, such as the four months' time between Smith's trial and Cunningham's, may be a legitimate excuse for minor variations in testimony or defects in memory, as seems to have occurred in Albanese. See 195 F.3d at 393. In Smith's case, however, the relevant variation was neither minor nor found in the testimony at trial. Smith v. Groose, 205 F. 3d 1045 (8th Cir. 2000). 22. And exhaustively by the California Supreme Court: The appellate court concluded, "the use of inconsistent, irreconcilable theories to convict two defendants for the same crime is a due process violation." (Stumpf, supra, 367 F.3d at p. 611.)The vice rests in the fact that of two inconsistent and irreconcilable theories, one must be false: "Because inconsistent theories render convictions unreliable, they constitute a violation of the due process rights of any defendant in whose trial they are used." (Id. at p. 613.) In Stumpf, the state had clearly used such irreconcilable theories, for each proceeding, the prosecutor argued that the defendant had

been the one to pull the trigger, resulting in the fatal shots to [Mrs.] Stout." (Ibid.) These courts and judges have found a prosecutor's 180-degree change in theory "deeply troubling" (Jacobs v. Scott, supra, 513 U.S. at p. 1069, 115 S.Ct. 711), in part because by taking a formal position inconsistent with the guilt or culpability of at least one convicted defendant, the government, through the prosecutor, has cast doubt on the factual basis for the conviction. "If the prosecutor's statements at the Hogan trial were correct, then Jacobs is innocent of capital murder." (Ibid.) "The conclusion seems inescapable that the prosecutor obtained Henry Drake's conviction through the use of testimony he did not believe ...." (Drake v. Kemp, supra, 762 F.2d at p. 1479.) "The prosecutor ... at Leitch's trial essentially ridiculed the theory he had used to obtain a conviction and death sentence at Thompson's trial." (Thompson, supra, 120 F.3d at p. 1057.) As both of two irreconcilable theories of guilt cannot be true, "inconsistent theories render convictions unreliable." (Stumpf, supra, 367 F.3d at p. 613.) Because it undermines the reliability of the convictions or sentences, the prosecutions use of inconsistent and irreconcilable theories has also been criticized as inconsistent with the principles of public prosecution and the integrity of the criminal trial system. A criminal prosecutor's function "is not merely to prosecute crimes, but also to make certain that the truth is honored to the fullest extent possible during the course of the criminal prosecution and trial." (United States v. Kattar (1st Cir.1988) 840 F.2d 118, 127.) His or her goal must be "not simply to obtain a conviction, but to obtain a fair conviction." (Brown v. Borg (9th Cir.1991) 951 F.2d 1011, 1015.) "Although the prosecutor must prosecute with earnestness and vigor and `may strike hard blows, he is not at liberty to strike foul ones.'" (Smith, supra, 205 F.3d at p. 1049,quoting Berger v. United States (1935) 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314; see also ABA Model Code Prof. Responsibility, EC 7-13 ["The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict"].) For the government's representative, in the grave matter of a criminal trial, to "chang[e] his theory of what happened to suit the state" is unseemly at best. (Drake v. Kemp, supra, 762 F.2d at p. 1479.) "The state cannot divide and conquer in this manner. Such actions reduce criminal trials to mere gamesmanship and rob them of their supposed purpose of a search for truth." (Ibid.) Thus, even a court that did not believe inconsistent positions, by themselves, to be constitutional error found it "disturbing to see the Justice Department change the color of its stripes to such a significant degree ... depending on the strategic necessities of the separate litigations." (United States v. Kattar, supra, 840 F.2d at p. 127; see also Thompson, supra, 120 F.3d at p. 1072 (dis. opn. of Kozinski, J.) [prosecutor's use of inconsistent factual theories "surely does not inspire public confidence in our criminal justice system"].)

In re Sakarias, 106 P. 3d 931(Cal. 2005). 23. The conduct of the State of Alabama has threatened to undermine the integrity of these proceedings. "Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly." Brady v. Maryland,373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

WHEREFORE, the Defendant respectfully requests this court to dismiss the indictment in this case.

DONE: October 26, 2011 /s/ John W. Beck JOHN W. BECK Attorney for Defendant (BEC021)

BECKDEFENSE.COM, INC. Post Office Box 931 Fairhope, Alabama 36533 (251) 990-5454 Office (251) 990-5410 Facsimile Email: john@beckdefense.com CERTIFICATE OF SERVICE I do hereby certify that on October 26, 2011 a copy of the foregoing pleading was automatically served on opposing counsel for the State of Alabama through the Alafile system. /s/ John W. Beck JOHN W. BECK Attorney at Law

IN THE CIRCUIT COURT OF BALDWIN COUNTY, ALABAMA STATE OF ALABAMA, Plaintiff, vs. Stephen Nodine Defendant ) ) ) ) ) ) ) ) )

Judge Partin

ORDER The court having considered the Defendants Motion to Dismiss in the Interests of Justice, it is hereby ORDERED that this matter shall be heard on the ______ day of _____________________, 2011.

Done this the _____ day of __________________, 2011.

________________________________ Hon. Charles C. Partin Circuit Court Judge