Grounds Raised
I. Motion for New Trial (October 25, 2001)
1. Verdict is contrary to evidence and without evidence to support it.
2. Verdict is decidedly and strongly against the weight of the evidence.
3. Verdict is contrary to law and the principles of justice and equity.
II. Amended Motion for New Trial (January 31, 2003)
1. The Trial Court erred by granting the State’s motion in limine and prohibiting the defendant from introducing evidence of non-disclosure witnesses.
2. The Trial Court erred by not requiring the State to turn over to the defense the notes and records of Safe Path that were produced pursuant to this case.
3. The Trial Court erred in requiring Defendant to turn over work product; specifically the notes of defense witness Dr. Amy Morton.
4. The Trial Court erred in allowing into evidence out-of-court statements made by the alleged victims that were without sufficient indicia of reliability.
5. The Trial Court erred by allowing the Videotapes of the alleged victims to be presented to the jury when the videotaped statements were without sufficient indicia of reliability.
6. The Trial Court erred by allowing, over objection, testimony of behavioral changes of the alleged victims.
7. Defendant submits that the failure of the state to notify Defendant of his
right to contact the Consulate of Peru was a violation of his rights under the Vienna Convention and the U. S. Constitution.
(a) Hearing held on February 5, 2003
(b) Order Denying Motion signed on February 10. 2003
III. Appeal to the Georgia Court of Appeals (October 1, 2003)
1. The Trial Court’s improper admission of massive amounts of hearsay testimony from the parents and through videotapes of interviews with the complainants violated Mr. Fiek’s State and Federal Confrontation and Due Process Clause rights.
2. The Trial Court’s improper ruling prohibiting Mr. Fiek from using videotapes of 41 non-accusers or even their statements, deprived Mr. Fiek of the opportunity to cross-examine state witnesses and mount a defense, in violation of his State and Federal Confrontation and Due Process Clause rights.
3. Bolstering and vouching testimony by the state’s experts invaded the providence of the jury and violated Mr. Fiek’s State and Federal Confrontation and Due Process Clause rights.
4. The evidence is insufficient to support the conviction.
· Court of Appeals Decision on March 24, 2004. Judgment affirmed.
Fiek v. The State, 266 Ga. App. 523, 597, S. E. 2d 585 (2004)
IV. Petition for Writ of Certiorari to Georgia Supreme Court (April 13, 2004)
Same issues raised with the Appeals Court.
Writ was denied on September 7, 2004.
Note: Trial attorneys were also involved in the direct appeal process, steps I through IV; thus, ineffective assistance of trial counsel was not claimed.
V. Application for Writ of Habeas Corpus and Brief in Support (April 25, 2005)
1. Trial counsel failed to seek a change of venue from Cobb County in light of the continuing, pervasive, and prejudicial pretrial publicity against him and the supportive and complementary pretrial publicity of the State’s Attorneys conducting the case that were published on both the area and local newspaper on an almost daily basis.
2. Trial counsel failed to seek the sequestration of the jury in light of the continuing and pervasive pretrial publicity and media coverage.
3. Trial counsel failed to seek the admission of certain videotaped interviews and related documentation of non-accusatory witnesses (children) on the grounds of and for the purpose of using these interviews to impeach the trial testimony of the complaining witnesses (children) whereby these non-accusing witness’s directly contradicted and impeached statements made by the accusing witnesses that the non-accusers were subjected to or witnesses to the alleged acts of molestation.
4. Trial counsel failed to seek the admission of videotaped interviews and related documentation of non-accusatory witnesses (children) on the grounds of and for the purpose of using these interviews to show that the interviewers (police officers) 1) failed to follow the mandates of the Cobb County Child abuse interview protocols; 2) testified inconsistently at trial regarding both their interviews techniques and the leading and suggestive nature of the interview questions propounded to and about the allegations of molestation and to impeach their testimony as to these issues; and 3) used interview methods that are scientifically proven to corrupt children’s memories and recall ability and thereby induce children to believe they have experienced events that have not actually occurred to them.
5. Trial counsel failed to subpoena and call the non-accusatory witnesses (children) to testify at trial; such witnesses testimony would have impeached the complaining witnesses (children’s) trial testimony and impeached the testifying / interviewing police officer’s testimony, as to heretofore uncontradicted trial evidence of the allegations of molestation.
6. Trial counsel failed to adequately prepare Mr. Fiek’s case for trial and in doing so failed to properly present the case or have necessary information by which to impeach testifying witnesses, thereby prejudicing Mr. Fiek’s defenses, including but not limited to failed to subpoena and review the school records of the complaining witnesses, failed to subpoena and review the records of an agency, AlphaCare, that interviewed many of the complaining witnesses, failed to research scientific interview tactics and techniques of the very types used by the police detectives interviews to extract the children’s statement, and failed to present Mr. Fiek’s case defense seriatim, which clearly shows the pervasive hysteria created by the parents and the interview techniques.
7. Trial counsel failed to take action and/or explore potential juror bias resulting from the jurors viewing Petitioner on 2 separate occasions being transported to and from the courtroom and elevators while in handcuffs and waist chain.
a. Hearing on Petitioner’s writ was on December 12, 2005.
b. Petitioner’s Supplemental Brief in Support of Petition for Writ of Habeas Corpus filed on February 22, 2006.
c. Petition for Writ of Habeas Corpus was denied on May 31, 2006
VI. Petitioner’s Application for Certificate of Probable Cause to the Georgia Supreme Court (June 28, 2006)
a. The Habeas Court abused its discretion by finding that Petitioner’s trial counsel was not constitutionally ineffective under the 5th, 6th and 14th Amendments to the United States Constitution and Article 1, Section 1, Paragraph 14 of the Constitution of the State of Georgia for failing to seek a change of venue given the evidence presented of the media exposure, both print and television, regarding Petitioner’s arrest, the claims, the investigation, the history of the D. A. ‘s office, etc. in the community in which he was to be tried.
b. The Habeas Court abused its discretion by finding that Petitioner’s trial counsel was not constitutionally ineffective under the 5th, 6th and 14th Amendments to the United States Constitution and Article 1, Section 1, Paragraph 14 of the Constitution of the State of Georgia for failing to seek sequestration of the trial jury given the evidence presented of the media exposure, both print and television, regarding and during Petitioner’s Trial.
c. The Habeas Court abused its discretion by applying the “cumulative errors doctrine” to uphold the exclusion of 14 critical impeaching and substantive non-trial witnesses presented through the videotape (DVD) evidence to find that Petitioner’s Trial counsel was not constitutionally ineffective under the 5th, 6th, and 14th Amendments to the United States Constitution and Article 1, Section 1, Paragraph 14 of the Constitution of the State of Georgia for failing to make obvious and fundamental evidentiary arguments for the admission of this evidence at trial.
d. The Habeas Court abused its discretion in not considering the cumulative impact of the exclusion of the numerous videotaped children’s interviews when said evidence clearly indicated a pattern for impeachment and substantive evidence which directly contradicted the testifying children’s assertions in violation of Petitioner’s 4th, 5th, 6th, and 14th Amendments to the United States Constitution and Article 1, Section 1, Paragraph 14 of the Constitution of the State of Georgia
5. The Habeas Court abused its discretion in not finding that Petitioner’s trial counsel did not adequately investigate facts, evidence, and issues thereby denying Petitioner effective assistance of counsel in violation of the 5th, 6th, and 14th Amendments to the United States Constitution and Article 1, Section 1, Paragraph 14 of the Constitution of the State of Georgia
* Application was denied on November 6, 2006.
VII. Application for a Writ of Habeas Corpus to the United States District Court for the Northern District of Georgia, Atlanta Division
(Case No. 1:07-DV-1443, June 20, 2007)
1. Petitioner’s right to effective assistance of counsel under to Fifth and Fourteenth Amendments to the United States Constitution was violated when the trial counsel did not properly rise that state used massive amounts of hearsay to convict Petitioner.
2. Petitioner’s
right to effective assistance of counsel and confrontation under the Sixth,
Eighth, and Fourteenth Amendments to the United States Constitution was
violated when counsel did not properly preserve the record with the evidence
that would have severely impeached the alleged victims.
3. Petitioner’s right to due process under the Fifth and Fourteenth Amendments to the United States Constitution was violated by State’s key witnesses improper bolstering of the alleged victims and vouching for their veracity.
Amended Grounds to the Original Petition (July 07, 2008)
4. The Petitioner was denied effective assistance of trial counsel when the trial court precluded the defense from acquiring very important material, which was exculpatory, relating to evidence in Safe Path Children’s Advocacy Center’s control; concomitantly, the court denied the defendant substantive due process, contrary to the United States Constitution, 5th and 14th Amendments when it failed to identify material exculpatory evidence when conducting an in-camera inspection of Safe Path’s files, 24 each, of accusing witnesses.
5. The Petitioner was denied substantive due process, contrary to the United States Constitution 5th and 14th Amendments when the State Habeas Corpus Court unreasonably and ridiculously attempted to use Strickland v. Washington to determine ineffective assistance of counsel as denying the cumulative effects of trial counsel’s errors because Georgia chose not to recognize the cumulative errors doctrine (see Bringes v. The State, 268 Ga. 200, 492 S.E. 2d 877 (1997)) and did not cure the erroneous doctrine that was in conflict with United States Supreme Court law, Strickland (Supra.) until Schofield v. Holsey, 281 Ga. 809, 812 (2), 642 S.E. 2d. 56 (2007), which disapproved eight (8) cases which held the cumulative error doctrine did not apply.
6. Trial counsel did not properly investigate the case before trial and consequently was not aware of the important evidence contained in the non-accusing witness’ tapes and could have been obtained through direct testimony of the uninterviewed and uncalled non-accusing children would have severely impeached the testimony of some accusing witnesses, state experts, and the detectives. The lack of investigation and preparation was not a legal nor recognized strategy but was ineffective assistance of counsel, contrary to the United States Constitution 6th Amendment, applicable to the States under the 14th Amendment.
Actual Innocence / Miscarriage of Justice claim was also filed as an “Additional Issue to be Decided Through A Finding of Fact and Conclusion of Law”
· First three grounds were filed by Attorney Rodney Zell
· Grounds 4 through 6, including Actual Innocence / Miscarriage of Justice claim were filed by Petitioner, acting Pro Se.
Amended Ground I (Submitted on Dec. 1, 2008. Granted on June 22, 2009)
1. The improper admission of massive amounts of hearsay testimony from parents and through videotapes on interviews with the complainants violated Mr. Fiek's State and Federal constitutional rights under the sixth amendment confrontational clause and due process, fifth and fourteenth amendment.
Amended Ground V (Submitted on Dec. 1, 2008. Granted on June 22, 2009)
5. The Petitioner was denied a full and fair hearing at the state habeas level when the court unreasonably and ridiculously attempted to use Strickland v. Washington to determine ineffective assistance of counsel by refusing to consider the cumulative effects of trial counsel's errors on the fundamental fairness of the trial by following the unconstitutional case law in Georgia - Bringes v. The State, 268 Ga 200, 492 S. E. 2d 877 (1997), which does not allow any cumulative error doctrine even in a single ground (i. e.: ineffective assistance of counsel). The unconstitutional case law, Bringes (Supra.) remained in conflict with the United States Supreme Court law in Strickland until Schofield v. Nolsey, 281 Ga 809, 812(2), 642 S. F. 2d 56 (2007) was decided, which disapproved eight (8) case which held cumulative error doctrine did not apply.
a. Final Report and Recommendation approved and adopted by the District Court, dismissing petition and denying request for a Certificate of Appealability on August 25, 2010.
b. Motion for Reconsideration filed on September 22, 2010 and denied on November 15, 2010,
VIII. Application for Certificate of Appealability with Reservation of Right to Amend to the United States Court of Appeals for the Eleventh Circuit (September 28, 1010)
(Appeal Case No. 10-14574-F)
1. Did the District Court give deference to a state habeas court ruling on ineffective assistance of trial and appellate counsel without using sound discretion when the trial records show he did not call children who vehemently denied witnessing molestation of others who said they were present (video tapes of the denials existed and available to defense) and the trial court itself made defense counsel ineffective when the trial court precluded the second page of a Safe Path interview form which indicated no approved method was used by detectives in their interviews with children ?
2. Did the District court wrongfully conclude that deference should be given to the State Habeas ruling and misidentify the effect of Bringes (Supra.) which was contrary to clearly established federal law by Strickland ?
3. Did the District Court have sufficient expert knowledge to know if the improper methods of interviewing children by detectives, if brought to light about how those methods could create false memories in children, would have influenced a reasonable juror to acquit the defendant because of unreliable testimony (not based on credibility or believability of testifying children)?
Additive Amended Application for Certificate of Appealability to the United States
Court of Appeals for the Eleventh Circuit (January 21, 2011)
4. Does a fact finder abuse its discretion when it determines the reliability of scientific evidence when such independent determination is outside its field of knowledge (such as reliability and suggestibility of child witnesses)?
5. Whether the District Court used sound discretion when it made clearly erroneous findings of fact denying an evidentiary hearing thus preventing Petitioner from proving his actual allegations?
6. Where the findings of fact and conclusions of the District Court objectively reasonable without the benefit of the limited discovery and evidentiary hearing to learn about reliability and suggestibility of child witnesses?
7. Whether the suppression of probative evidence deprived Applicant of his right to a fair trial ?
8. When should a fact finder seek advice in determining evidence that its outside their field of knowledge (e. g. reliability and suggestibility of child witnesses) ?
a. Application for Certificate of Appealability denied on March 14, 2011
b. Motion for Reconsideration filed on April 1, 2011
c. Motion for Reconsideration denied on May 6, 2011