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RONALD LíHeureux *



Vs. C.A. No. 00-474ML


ASHBEL T. WALL, Director *


General State of Rhode Island Respondent *




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. LíHeureux 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 Defenderís 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, Iím 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 courtís indulgence to incorporate them into my motion for bail. Thank you.

First, under the Abbott & Freeman standards for bail pending appeal, or post conviction proceedings to " (1) whether the appeal, or post conviction proceeding is taken for delay or in good faith on grounds not frivolous but fairly debatable; (2) the habits of the individual regarding respect for the law insofar as they are relevant on the question of whether an applicantís release would pose a threat to the community; (3) local attachments to the community by way of family ties, business or investment; (4) the severity of the sentence imposed, and circumstances relevant to the question of whether a defendant would remove himself from the jurisdiction of the court.

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:

"If deliberate withholding of evidence is alleged, the prosecution will have the burden of proving by clear and convincing evidence that it did not know of the existence of the statements anytime before they were testified to by the witness on the stand, And if the prosecution had to previously made available to the defense those exact statements [and evidence] as required, defendant is automatically entitled to a new trial." I would respectfully ask this court toke judicial notice of the above citation pursuant to the mandates of Rules of Evidence 201(d). The court takes notice as requested.

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 in the prosecutionís 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 Beechís 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 of 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 defendantís mind unequivocally establishes this trial by ambush condemned in State v. Musumeci, 717 A. 2d 56 (RI 1998), Iíll cover later, is the fact that, 1.) Withers was advised of the trialís 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 defendantís 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 stateís answer to discovery to be forthright and complete.

    1. Wall had to admit, contrary to his affidavit, and this courtís finding on page 3, Wall know all about the Rehoboth evidence before may witness hit the stand. Tr. 19, a full exhibit that states: ĎAnd on the Friday night November 10, there had been vandalism at the defendantís home in Massachusetts, and youíll learn that the defendant blamed Nat Faria for those acts going vandalism that occurred at the defendantís home. Youíll learn that he reported it to the police, the defendant reported to the policeÖ"
    2. I find it far beyond belief, as Mr. Wall claims, that Detective Harris never told him he had the evidence prior to trial, as Harris answered Mr. Dimitriís same or similar question truthfully at trial. Tr. 158. The State in its memo. Corrects the courts error also on page 6, stating:: "Mr. Wall indicated that he had known prior to that point in the trial about defendant having told people that he had reported his complaints to the police." Yet not even the Pawtucket police report was produced [regarding LíHeureuxís complaint on 11/12/98.]

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 defendantís 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 governmentís behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting his obligation (citation omitted) the prosecutionís 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. LíHeureuxís trial, could you describe generically what documents you brought with you? A. No. I donít 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 Stateís 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 Ďon the question whether the material related to the Rehoboth police reports was provided to the defendant as per his request.í" Mr. Dimitri made his request on April 17, 1990 and according to the Stateís 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 courtís 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 LíHeureuxís car. They were specifically requested in two separate motions. "Motion to produce Photographs Viewed By The Prosecutionís 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." (MNT 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 defendantís 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. Dimitriís Discovery requests been complied with Dr. Hans Stoeckler and Paul Levesque, the two expert witnesses court have not only corroborated Mr. LíHeureuxís testimony, but supported and proved 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 Bergeronís testimony and the State arguing knowingly false evidence.

The court is completely overlooking the facts as to why their photoís were essential, though the court did appreciate Mr. Dimitriís trial strategy, stating "The judge testified that he relied on the Rehoboth police reports in forming a defense." The point the court totally missed is as stated in my bail motion at page 2 quoting U.S. v. Donatelli, 484 F. 2d 505 (1st 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 defendantís 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 donít 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 Farriaís 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 reportsí, 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 doesnít give her a right to manufacture testimony, because thatís what she did. She said that at two oíclock on Friday, November, 10th, the defendant told her about the trashing of his house, well that was impossible because it didnít happen until later that day."

This court rejected Mr. Dimitriís argument and chose to believe the Stateís 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 governmentís obligation under Brady is to provide exculpatory evidence to the defense that encompasses evidence affecting a government witnessís 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 Masterís 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 photoís 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 defendantís 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 argues false facts to A court and jury. State v. Oliveria, 576, A. 2d 111 (RI 1990); U.S. v. Alzate, 47 F. 3d 1103 (11th 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 defendantís 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 heís suggesting Judge Dimitri wrote that script? Then Mr. Wall starts arguing the false facts. (Tr. 245-46) He points to Steven Forgeíí testimony regarding the November 10th 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. ĎHe told Joanne Yergeau at 2 PM that he told her about the vandalism that hadnít been done yet,"

Wall goes on to emphasize testimony he knows is false on Tr. 350; "Ö the threats escalate. Including Friday, November 10th, on the same day and the same conversation at 2 PM that he told her about the vandalism that hadnít been done yet," Then on 351 Wall tells the jury: " Also remember, Patricia Bergeron told you that Nat Faria was at his house all Friday evening, he never left the house". He states on 351 Elaine Roods "observed the vandalism that the defendant had done to his own home." Then goes on to say on 351 about "Deborah Madden a week before the shooting saying the defendant told her Iím going to kill Nat," regarding her testimony again for trashing the defendantís home and threatening his family before either incident occurred!

There seems to be further issues on appeal that increase the likelihood of success that are raised by this misconduct by the State violating Bradyís punishment analysis, and due process sentencing a defendant based on false facts. This courtís decision is proof positive the court believed false facts. This court states at 417, "Deborah Madden, the mother of Kerry Madden, also said that the week before the killing, the defendant said he was going to kill some body because of his house being trashed." And went on to say on 420, "I also find that the defendant gave patently false testimony during the trial", no doubt for his claims of who did the damage to his home and the fact an officer was on Newport Ave, among other things. But again even under Lise Geschiedtís subpoena and an order of this court the State refused to produce the police log or photographs.

This courtís feelings obviously have not changed after the Motion For New Trial as even though every time physical evidence is turned over it proves the defendantís veracity. At re-sentencing the court was still relying on erroneous facts to make a decision TT II 102 "The assertion of self-defense, both as it pertains to the moment of the incident and the vandalism, which this defendant speciously attributes to the victim is totally unsupportable, in my estimation by fact, by reason, or by any evidence in this case." Why, because the State suppressed, withheld, and or destroyed, and then used known false testimony to deceive this court.

The State argued at the Motion for New trial at page 71, further deceiving the court, and this court believed, that "thereís no independent evidence other than Mr. LíHeureuxís claim that it was, in fact, Mr. Faria who was responsible for those Indy like tracks." Even Attorney McElroy pointed this court.

In State v. Nardone, 334 A. 2d 208 (RI 1975) the RI Supreme Court held a sentence is invalid when based on fraudulent misrepresentation of facts. When Lise Geschiedt proved defendantís testimony had corroborative evidence, the courtís position did not change. What the defendant would like this court to recognize is every single time the physical evidence comes to light it proves the Stateís witnesses lied, and they know it. Itís unfortunate and unconstitutional that the adversary process that was supposed to be a search for the truth not a "poker game" according to Williams v. Florida, 399 US 78, 82 (1970) is just that. Mr. Wall at trial Tr. 355) says, "I have to play the hand thatís dealt me." But does the State have the right to stack the deck and so poison the well of justice that at this point defendant would need all the physical evidence to prove the veracity of all his statements.

Of course that will never happen because the logs, fingerprints, audiotape, and videotape have been destroyed or erased. The law both civil and criminal says deliberate destruction of discoverable evidence allows the trier of facts to presume the strongest negative inference against the party who destroys the evidence. McCrary-El v. Shaw, 992 F. 2d 809 (8th Cir. 1993); Anderson v. Cryovac, 805 F. 2d 1 (1st Cir. 1986). If these principals are applied to the evidence still withheld, and no doubt gone forever, there is a strong likelihood of success of appeal, if this court does not reverse itself.

In my bail memo., citing a 6th circuit case cited out of DiPrete, the 6th circuit vacated its own decision sua sponte, based on prosecutorial misconduct. "Observing Ďon court system can function without safeguards against actions that interfere with its administration of justice Ö as an officer of the court, every attorney has a duty to be completely honest in conducting litigation." DiPrete, at 1279. Recognizing the true facts the state whether inadvertently at first or not, so far has not been completely honest, though Mr. White did admit the photographs were never produced at trial in 5. I would ask this court to take judicial notice of that undisputed fact pursuant to RI rules of evidence 210 (d). I hope this court appreciates the fact that pursuant to State v. Wyche, and Powers cited prior reversal is automatic based on that fact.

However, if the court chooses to reject all the prior arguments, another significant new case gives a reasonable likelihood of success on appeal mentioned prior, State v. Musumeci, 717, A. 2d 56 *RI 1998), where the RI Supreme Court following Heredia and LaChappelleís logic stated a criminal defendant is entitled to a trial by jury, not a trial by ambush. It this court was deceived because Judge Dimitri did not have at all, or have time to develop the evidence the end result is the same. False facts got by as truth tainting the whole trial. The courts own words establish this very unfortunate fact.

Another reason for the likelihood of success on appeal is the denial of defendantís right to a speedy trial, caused by the deliberate withholding of at least the two sets of photographs, not to mention the set of Polaroidís the defendant took, and the Pawtucket police seized. State v. DiPrete address that issues at 1279-80. And I must also point out that the decision to remand this case in the first instance not only violated the many issues of estoppel and res judicata raised to this court, which should be addressed, but the Supreme Court was also in fact deceived, leading to the remand.

This court over looked the fact Wall admitted he knew about the reports from this court misconceived that irrefutable fact. But what is an uncontroverted fact by the testimony of Sergeant Withers (MNT 24) is he was in attendance for one day, and at the remand hearing he testified to seeing Mr. LíHeureux testifying. That clearly proves contrary to what the Supreme Court was led to believe, that, "the material from the Rehoboth police department was furnished to counsel for the defendant in the course of trial and was used by him in his cross-examination to the extent that he felt appropriate." The state had closed their case in chief, hence there was on one to cross-examine. And I donít think either this court or the state wants to blame Mr. Dimitri for failing to appreciate the significance of the Dube/Mendes undercover report, it he ever saw it. All this caused the inordinate delay in final judgment.

It also appears my pushing to get this remand resolved has annoyed the court, and the court rushed in making its decision without fully reading or appreciating the arguments of both the Sate and defense. The lapse of time from trial and the remand may have also led to incorrect facts being set forth.

Next, as stated for Powers and Kyles, contrary to this court decision, and the evidence pointed out by MR. White on direct examination of Mr. Wall, Wall know about the Rehoboth materials long before trial, and note as stated on page 3 of this courtís findings. "After Mr. Wall became aware for the first time that these reports were filed, [after the trial had begun] he contacted the Rehoboth police." The court correctly noted on page 3 "it was through prosecution witnesses that Mr. Wall learned that the defendant had reported incidents of vandalism," but failed to realize from Wallís opening statement he possessed that knowledge long before trial.

Wall even admitted in his testimony he learned of the reports from his witnesses, not doubt Elaine Rooks, Steven Forge, Deborah Madden, Joanne Yergeau and Patricia Bergeron, when he deliberately led Bergeron on page 106-107 of the trial transcripts into her perjury. Wallís question was "Now, at some point, did you learn that the defendant believed that on Friday, November 10th vandalism at his home in Rehoboth had been caused by Natalino Faria?" That and his opening statement already mentioned make it irrational to suggest Wall told the truth in his affidavit, and his claiming he did not fine out until Harris testified flies right in the face of the irrefutable truth and logical lawyering.

The courts next erroneous finding is in stating "He {Withers] definitely brought to the trial the vandalism reports." Mr. White conceded in 1994 as stated prior Withers could not establish what was given to who, except he did not as the court goes on to fine, "shared them with the attorneys." Withers testified consistently for the most part that he only met with the prosecutor Wall, and Wall confirms this fact. Wall testified that he copied what ever he was given and turned it over to Mr. Dimitri or they shared the documents. The irrefutable break down in he chain of custody was evidence as mentioned prior; that is, Withers did know what he brought to trial in his 1994 testimony. Now being the town prosecutor he knows better than to say that.

The court correctly states Mr. Dimitri knew about the Rehoboth vandalism, but avoids the teaching of State v. Verlaque reiterated in DiPrete and Musumeci that the state must fuly comply with discovery requests. Another reason for the likelihood of success on appeal, Mr. Dimitri as the court noted "relied on the Rehoboth police reports in forming a defense," yet never received them timely at best.

The court goes on to say Dimitri was "aware of this material he responded ĎYes, of course, I knew." He also knew many of the stateís 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 LíHeureuxís testimony all wrong. She saw the same photos Alfred L'Heureux testified to and Mr. LíHeureux 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. LíHeureux had were introduced at the remand hearing. I believe it was one or two blurred Polaroid photos consistent with the other photos.

The court fails to realize that just because defendant "knew that the pictures were taken," doesnít 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 defendantís 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 Ö more than 30 years ago. For those who agree with me, said Mr. Justice Holmes, Ďno distinction can be taken between the Government as prosecutor and the Government as judge.í ĎIn a government of lawsí said Mr. Justice

Brandeis, Ďexistence 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 Ö There it was held that Ďa 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."

Aside from the Superior court not addressing the above issues of fact and law, on August 28, 2000, the court denied bail, and claimed there is no law that would allow her to set bail, totally disregar5ding the whole hereinbefore argument, and well established facts. But what is extremely disturbing is the court ignored the defendantís due process right to a speedy trial and finality in judgment. Thunberg claims the defendantís Rule 35 Motion [a motion to reduce sentence] is premature almost 10 years after the sentence was imposed, because he cannot get his direct appeal decided. (Emphasis added) And it cannot be heard because of transcripts.

It also cannot escape this courts attention that the court declined to even address the issue that the transcripts are not being made available, and defense counsel also would not even raise the issue. Defendant had to raise these two issues himself. Ironically, this was the very reason bail was requested the Thunberg said the case file will be transmitted to the Supreme Court forthwith. She denied the bail motion without prejudice, and said if the appeal is not timely heard re-file your motion.

Then the court goes on to say if she grants bail now it would END THE SENTENCE. Inadvertently she seems to admit her prior decision is erroneous, but is being vindictive for Mr. LíHeureux pointing out her errors of law and fact

It is absolutely clear that the State courts have on intention of even granting petitioner the basic Constitutional due process rights due every citizen of the United States.

Wherefore, your petitioner respectfully requests that a Writ issue, bail is set forthwith, and due process and fundamental fairness that has deliberately been denied by the State of Rhode Island for the past almost 10 years will be granted by this court

Respectfully submitted,



August, 31, 2000


Ronald LíHeureux

P.O. Box 8212

Cranston, RI 02920

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