This argument was make before the RI Superior court on or about February 25, 2000 before judge Thunberg. The Attorney General never responded to the plethora of unethical and illegal conduct by the State, nor did the court reverse or reconsider her decision base upon the true facts and applicable law.

Mr. L’Heureux has been waiting for the transcripts and despite even offering to pay for the transcript he cannot get a copy thereof. A motion was filed to Judge Rodgers under the applicable court rules to ensure due process was complied with, but the motion was not heard, and for whatever reason the Public Defender’s office has not pressed the issue as requested. See Exhibit 1-10. Attached thereto.

Wherefore the Defendant has no choice but to type out his argument he read into the court file on said date, to establish the fact the State or Rhode Island is fully aware of the gross misconduct of its agents and refuses to correct these constitutional deprivations.

The following facts and law are still being ignored by the State as argued on February 25, 2000. "Before this court rules on the pending motion for bail defendant would as part of its motion respectfully request the court to seriously reconsider its decision of November 11,1999, I’m sure due to extensive laps in time not only from trial, but in the remand hearing, several relevant facts have been obscured or overlooked, and I would beg the court’s indulgence to incorporate them into my motion for bail. Thank you.

Since the defendant has never been even arrested on a petty misdemeanor, and all ready has parole on a twenty year sentence, the only real issue before this court is the likelihood of success on appeal. (Sic)

Regarding the likelihood of success on appeal, if this court does not vacate or amend its findings, first and foremost, with all due respect in the original motion for a new trial, and on remand the court did not use the standard required by Supreme court Article 6 Rule 1 and State v. Powers, 526 A. 2d 489. Quoting from my Motion for Judgment dated 1/11/97:

In making its decision on doubt the following irrefutable facts eluded the courts attention in applying Powers to this case at bar and seemingly placed the burden and blame on Justice Dimitri as trial counsel because the State refused to comply with his specific requests for evidence clearly I the prosecution’s possession under the teaching of Powers and the U.S. Supreme court in Kyles v. Whitely.

First, the detective who sat at the prosecution table admitted knowledge and possession before trial. (Trial transcripts "TR" 158) When the State did not produce the evidence requested prior to trial, Rule 16 and due process was violated. But what is extremely important is, as this court incorrectly found, Harris had physical possession as admitted and as also seen on Exhibit 13, the 11/12/89 report of Cheryl Withers, [the Rehoboth dispatcher] bearing Detective Beech’s name and home phone number. And most importantly Sergeant Withers testified at the Motion for New trial ("MNT" page 23) to these facts and was a requested finding going fact [in pro se request # 14]. He said: "I had personal knowledge that many of those reports, copies were made and forwarded to Pawtucket police." It also cannot be overlooked Withers at the motion for new trial page 23 testified regarding the Rehoboth police, and said: "We cooperated fully." Please note the obvious free exchange of reports seen in exhibit 10,11, and 12 of the remand hearing. They are all Pawtucket police reports in the Rehoboth file!

What in defendant’s mind unequivocally establishes this trial by ambush condemned in State v. Musumeci, 717 A. 2d 56 (RI 1998), I’ll cover later, is the fact that, 1.) Withers was advised of the trial’s start a week in advance, and was only requested apparently by the A.G. to bring the documents after two letters were sent to the Rehoboth police by the defendant’s attorney. Only the lawyers decide who the potential witnesses will be,[hence it is obvious Wall the prosecutor made a deliberate decision to suppress the Rehoboth reports]. State v. Heredia, says defense counsel has a right to rely on the state’s answer to discovery to be forthright and complete.

Anyway, whether Harris lied to Wall or Wall lied to the court, legally that knowledge must be imputed to Wall under a plethora of case law cited in the original memo. In support of the Motion for New Trial, not limited to State v. Powers, and the U.S. Supreme court in Kyles v. Whitely, 514 US 419, 155 S. CT. 1555 1567, cited to this court in defendant’s Motion for Judgment at page 11.

The U.S. Supreme Court said in Kyles: "This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting his obligation (citation omitted) the prosecution’s responsibility for failing to disclose known favorable evidence raising to a material level of importance is inescapable."

Argunedo, even if the State dumped some documents on Mr. Dimitri after the state closed its case in chief, foreclosing on any cross-examination, this court relied on testimony that cannot be deemed credible to conclude "everything" requested was turned over while the defense was presenting their case. Kyles at 421, requires a dual analysis of the net effect of the evidence withheld, which if complied with would have led the court to a deferent result. First, the court must know, though apparently it did escape the attention of this court, that the original motion for a New Trial, two facts were established, and conceded to by the State on the nondisclosure.

1. Withers in 1994 testified at page 24-25 MNT when questioned: Q. "When you went to court for Mr. L’Heureux’s trial, could you describe generically what documents you brought with you? A. No. I don’t recall what I brought with me." Withers admits not bringing Exhibit B , or 17 full the 6/24/89 fire bombing report. Q. "Am I correct and do I recall correctly that that document was not that you did not bring with your in response to the subpoena? A. That is correct." NT Tr. 39. Now note the state claims Exhibit 17 the exact same document was brought to trial, almost ten years later and so was almost everything.
2. Mr. White incorrectly but successfully at the original Motion for New trial used federal law to overcome Powers, or Wyche, 518 A. 2d 907 cited in State v. DiPrete, 710 A. 2d 1266, regarding the Keough standard adopted by the Rhode Island Supreme court, in addressing the issue of deliberate withholding. What Mr. White, contrary to his position now admitted in 1994 (MNT Tr. P. 74) "While there is discussion from the officer [Withers] about his provision and other provisions of photos, it is absolutely unclear what he gave who, when." I find it incredible that after the passage of almost six yearly, now Mr. Withers testimony about remembering every report or what ever is better and more accurate than in 1994. That defies logic.

In light of that prior testimony the State could never prove by clear and convincing evidence they turned over all the requested material under Powers, and the high court instructions, as pointed out in the State’s brief at 9, state, "The remand order of the Supreme court directed this Honorable court to hold whatever hearings were necessary and to make factual findings ‘on the question whether the material related to the Rehoboth police reports was provided to the defendant as per his request.’" Mr. Dimitri made his request on April 17, 1990 and according to the State’s brief he was not supplied with any Rehoboth reports until October 30, 1990, though that date may be incorrect. (10/26/90 should be correct.)

In any event, the testimony and evidence is absolutely and undeniably at odds with the court’s decision. With all due respect, this court, nor Mr. White can say that the photographs given once, maybe twice to the Pawtucket police were ever turned over at any time. Nor were the photos seized from Mr. Alfred L’Heureux’s car. They were specifically requested in two separate motions. "Motion to produce Photographs Viewed By The Prosecution’s Witnesses." Withers testified at the Motion for New Trial at page 18: "I inquired of Officer Walker yesterday in regards to the photos, and he informed me that the photos had been turned over to Pawtucket police." He goes on to testify under cross-examination by Mr. White: "When I asked him about the photos, he had advised me that he, in fact, had had an addition set make and provided to the Pawtucket police upon their request." (MNY 46)

As much as the state did not want to admit this fact, they had to admit the photos of the tire tracks were never turned over. The State in its memo. At page 5. States" "Sergeant Withers said that he did not bring photos of vandalism to defendant’s home to the trial."

The Rehoboth police clearly did not produce their photos, because they were in the custody and control of the prosecution at law, and seized by the Pawtucket police department. Had Mr. Dimitri’s Discovery requests been complied with Dr. Hans Stoeckler and Paul Levesque, the two expert witnesses court have not only corroborated Mr. L’Heureux’s testimony, but supported and provided numerous witnesses had testified falsely.

It must be noted as the State pointed out, Mr.Dimitri was unable to affirm or refute his having received copies from Mr. Wall of the Rehoboth vandalism reports. What he did make clear is, had he seen or realized the significance of officer Dubie or Mendes supplemental undercover report, we could not possibly have known existed, he would have objected to Bergeron’s testimony and the State arguing knowingly false evidence.

The court is completely overlooking the facts as to why their photo’s were essential, though the court did appreciate Mr. Dimitri’s trial strategy, stating "The judge testified that he relied on the Rehoboth police reports in forming a defense." The point the court totally misses is as stated in my bail motion at page 2 quoting U.S. v. Donatelli, 484 F. 2d 505 (1^st Cir.) from DiPrete, at 717. "A defendant in a criminal trial has the right to a fair trial, an as one aspect of this right he must be supplied by the prosecution all evidence which may be materially favorable to him including evidence which would have a material effect upon trial preparation." Id.

Since Harris sat at the prosecution table he was equally bound to point out Bergeron had committed perjury this court believed, even after the motion for a new trial in 1994. Apparently I cannot UN-poison the well of justice tainted by the use of perjury, but it is my solemn prayer this court will put aside its personal conclusion, and see the fact the defendant’s trial violates Constitution mandates. The U.S. Supreme Court said the dignity of the United States Government will not permit conviction of any person on tainted testimony." Mesarosh v. U.S., 351 US 1.

It is clear Bergeron committed perjury not that the defense has two separate pieces of evidence that Mr. Faria was not home at a party all night on Friday. And instead of Mr. Dimitri simply arguing in his closing argument at 324 regarding Ms. Bergeron, "her story does not add up at all." Had this evidence been provided prior, I don’t think anyone in this room would dispute Mr. Dimitri would have found it, and used it effectively. The State sent him at best, looking for the proverbial needle in the haystack.

Deborah Madden actually helps at one point contradicting Detective Haynes regarding mentioning Farria’s name to the police. Note Mr. Dimitri showing the modus operandi of the Pawtucket police department. (Tr. 326) "And strangely enough Detective Haynes never showed us any reports’, though specifically requested. Madden claims "[defendant] He had said about his house being trashed and his family being threatened a week before the shooting." (131-132) Yeageau manufactured another similar story and Mr. Dimitri could only argue (TR. 328) "but it doesn’t give her a right to manufacture testimony, because that’s what she did. She said that at two o’clock on Friday, November, 10^th, the defendant told her about the trashing of his house, well that was impossible because it didn’t happen until later that day."

This court rejected Mr. Dimitri’s argument and chose to believe the State’s false theory they argued, all the time withholding the truth from the defense, the jury, and the court. "Where the prosecution has deliberately caused false evidence to influence some part of the criminal trial, he has violated the most basic precepts of due process; the courts cannot allow the integrity of the criminal system to be undermined by the over-zealous prosecutor." Learner v. Moran, 542 A. 2d 1089, 1-91 (RI 1988)

The likelihood of success on appeal is great on this issue for two reasons: 1.) In Giglio v. U.S., 405 US 150,154 (1972), the United States Supreme court also held that the government’s obligation under Brady is to provide exculpatory evidence to the defense that encompasses evidence affecting a government witness’s credibility. The RI Supreme Court so ruled in Lerner supra. At 1092, as did the First Circuit in Ouimette v. Moran, 942 F> 2d 1 (1991). 2.) In Lerner v. Moran, and State v. Carrillo, 407 @. 2d 491 RI 1979), both cases were reversed when Red Kelly in Lerner, knowingly lied about a deal with the state. And in Carillo, a FBI agent had willfully and falsely testified that he had a Master’s degree. Knowing misrepresentation by a State witness, the Carillo court ruled is no less serious because the state prosecuting office happened to be unaware of the perjury.

Now however if the State and the court are going to maintain full disclosure that "exceeded" Rule 16, then this court should fine first as a fact;

1. both sets of photo’s were turned over and when;
2. state when the fingerprints off the fire bomb were turned over, along with the fire bomb itself and the Bic lighter;
3. when was the video tape of defendant’s interrogation turned over, and;
4. How destroying or erasing a tape and then turning it over constitutes exceeding the requirements of Rule 16.

And once the State and court can clear the first required hurdle, then of course they also are acknowledging full and complete knowledge of the facts contained in all this evidence and made a calculated decision to attempt to deceive the jury and court, and did just that. Under State v. Towns, the State, as Lies Geschiedt pointed out has a fiduciary duty to correct what it knows is false and elicit the truth. Since they are attempting to claim full knowledge, especially before closing arguments, again the likelihood of success on appeal is great, if this court not reverse its own decision.

any event, the State has now trapped themselves as the courts have also reversed cases when a prosecutor agrues false facts TO A court and jury. State v. Oliveria, 576, A. 2d 111 (RI 1990); U.S. v. Alzate, 47 F. 3d 1103 (11^th Cir. 1995)

Mr. Dimitri knew Wall was going to argue the defendant did the damage himself, and on page 328 stated that, and that is exactly what Wall did. Wall falsely attached the defendant’s credibility on top of it all starting out by saying, "consider his demeanor, the way he acted on the stand, rehearsed, acted answering the questions to a script, not true. (Tr. 345) Apparently he’s suggesting Judge Dimitri wrote that script? Then Mr. Wall starts arguing the false facts. (Tr. 245-46) He points to Steven Forge’’ testimony regarding the November 10^th vandalism saying;

1. Now, remember he told Steven Forge about that vandalism, Seven Forge told us before it even happened." (Tr. 346)
2. That vandalism never happened at the hands of Nat Faria, this defendant did it himself,";
3. ‘He told Joanne Yergeau at 2 PM that he told her about the vandalism that hadn’t been done yet,"

The court goes on to say Dimitri was "aware of this material he responded ‘Yes, of course, I knew." He also knew many of the state’s witnesses were lying too, but could not prove it due to the 12:45PM discovery, when the trial ended at 1:00, if the important reports were turned over at all.

Next, the court has Pauline L’Heureux’s testimony all wrong. She saw the same photos Alfred L’

L'Heureux testified to and Mr. L’Heureux saw the photos, gun and ammo go into his glove compartment. With all due respect, only a fool takes more than two blurred photos with a Polaroid before he gets it right. The fact is the police realized the significance of the photos. The only photos Mrs. L’Heureux had were introduced at the remand hearing.

I believe one or two blurred Polaroid photos consistent with the other photos.

The court fails to realize that just because defendant "know that the pictures were taken," doesn’t mean, obviously as we have seen in this over 10 year battle, that your State was ever going to give them up. Only through the grace of God, did these negatives turn up.

Finally, this court states, "it is ludicrous to suggest that these materials were withheld by Rhode Island prosecuting attorneys."
But the evidence mentioned prior proves they had physical possession of two or three sets of these photos, and refused to turn them over in 1994, even under a subpoena sanctioned by this court, and issued by Lise Geschiedt.

On the contrary, with the evidence in its true light, and I re-request this court either make the requested findings of facts requested in defendant’s memoranda or refute them. Then it will be ludicrous to deny the State not only withheld evidence, but used and argued false testimony it its closing argument, grossly violating due process and fundamental fairness in numerous ways cited prior.

In closing, defendant will let the U.S. Supreme Court out of Elkins v. U.S. 346 US 206,222 sum up:

"But there is another consideration - the imperative of judicial integrity. It was of this that Mr. Justice Holmes, and Mr. Justice Brandeis so eloquently spoke in Olmstead v. United State, 277 US 428 at 469 … more than 30 years ago. For those who agree with me, said Mr. Justice Holmes, ‘no distinction can be taken between the Government as prosecutor and the Government as judge.’ ‘In a government of laws’ said Mr. Justice

Brandeis, ‘existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. It the Government becomes a lawbreaker, it breeds contempt of law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means to declare that the Government may commit crimes in order to secure the conviction of a private criminal would bring treble retribution. Against that pernicious doctrine this court should resolutely set its face."

"This basic principle was accepted by the court in McNabb v. U.S., 318 US 322 … There it was held that ‘a conviction resting on evidence secured through such a flagrant disregard of the procedure which Congress has commanded cannot be allowed to stand without making the courts themselves accomplices in willful disobedience of law." 318 US 345, 87 L. Ed 819; S. CT. 608. Even less should the federal courts be accomplices in the willful disobedience of a constitution they are sworn to uphold."