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To be Argued By:

LISA A. PEEBLES, ESQ.


FEDERAL PUBLIC DEFENDER
Estimated Time: 15 Minutes
___________________________________________
NEW YORK STATE SUPREME COURT
APPELLATE DIVISIONFOURTH DEPARTMENT
___________________________________________
PEOPLE OF THE STATE OF NEW YORK,
Appellee,
-vGARY THIBODEAU,
Defendant-Appellant.
___________________________________________
__________________________________________________________________
BRIEF ON APPEAL FOR DEFENDANT-APPELLANT
GARY THIBODEAU
Oswego County Indictment Number 94-161
Docket Number KA 16-00510
__________________________________________________________________
LISA A. PEEBLES
Federal Public Defender
Office of the Federal Public Defender
4 Clinton Square, 3rd Floor
Syracuse, New York 13202
315.701.0080

TABLE OF CONTENTS
TABLE OF CITATIONS ....................................................................................................................... vi
QUESTIONS PRESENTED.................................................................................................................... 1
PRELIMINARY STATEMENT .............................................................................................................. 1
STATEMENT OF FACTS ...................................................................................................................... 2
I.

Trial Evidence ..................................................................................................................... 2


A.

The discovery of Allens disappearance and the initial investigation ........................ 3

B.

Richard Thibodeau identifies himself as making the last recorded purchase ............. 4

C.

John Swenszkowski confirms Thibodeaus presence at the D&W ............................ 4

D.

Christopher Bivens calls the Sheriffs Department on April 8, 1994 to report


witnessing an argument outside of the D&W ........................................................... 5

E.

Richard Thibodeau fully cooperates with the Sheriffs Department on April 9, 1994,
and a forensic examination fails to link him to Heidi Allen ...................................... 5

F.

Richard Thibodeaus corroborated alibi ................................................................

G.

Gary Thibodeaus corroborated alibi ....................................................................

H.

Physical Descriptions of Heidi Allen, Gary Thibodeau, and Richard Thibodeau....

I.

Bivens is repeatedly interviewed by the Sheriffs Department after the announcement


of a reward ........................................................................................................... 9

J.

On April 23, 1994, material washed out of Richard Thibodeaus van at a carwash is
collected and forensically tested by FBI, resulting in no link to Allen ................. 11

K.

On May 26, 1994, Gary Thibodeau is arrested by the Sheriffs Department on a


Massachusetts bench warrant and thereafter detained in Massachusetts...............

11

L.

On June 7, 1994, Nancy Fabian makes first report to Sheriffs Department about a
van she observed on the morning of April 3, 1994 .............................................. 11

M.

On June 20, 1994, Gary Thibodeaus neighbors make first statements about Gary
Thibodeau to the Sheriffs Department ............................................................... 12

N.

Additional forensic tests fail to connect the Thibodeaus to Allens abduction......

O.

In July of 1994, jailhouse informants claim Gary Thibodeau admitted being with his
brother and Allen on the morning of her abduction ............................................. 13

13

II.

P.

On July 24, 1994, the Sheriffs Department removes property from Gary Thibodeaus
residence that provides no forensic link to Allen................................................. 15

Q.

Gary Thibodeaus neighbors make their first report of seeing a van outside of his
residence on April 3, 1994.................................................................................. 15

R.

The verdict, sentencing, and post-verdict motions...............................................

16

New Evidence ................................................................................................................. 16


A.

New evidence exonerating Gary Thibodeau is brought to the Peoples attention in


2013...................................................................................................................... 17

B.

New evidence concerning the Peoples suppression of Brady material .................. 21

C.

Thibodeaus 440 motion........................................................................................ 22

D.

The Peoples late document disclosure on the eve of Thibodeaus 440 hearing ...... 23

E.

Thibodeaus 440 evidentiary hearing ..................................................................... 24


1.

Evidence establishing the Peoples suppression of Brady material .................. 24


a. Failure to disclose Brady material concerning Heidi Allens CI file........... 24
i.

The creation of Allens CI file by Deputy Van Patten and Sergeant Lortie
........................................................................................................... 24

ii.

Allens CI file is lost by Deputy Van Patten in the D&W parking lot and
found by Kristine Duell ...................................................................... 25

iii. Deputy Montgomery retrieves Allens CI file from the D&W and omits
Kristine Duells name from his report ................................................ 26
iv. Kristine Duells name is not located on the Sheriffs Departments
complaint card documenting the recovery of Allens CI file from the
D&W ................................................................................................ 26
v.

Fahey asks for Allens CI file and the prosecution denies its existence 26

vi. The Sheriffs Department finds Allens CI file six days before the start of
Gary Thibodeaus trial in a box in the Sheriffs Departments garage .. 27
vii. Gary Thibodeaus attorneys had never seen the December 9, 1994
memoranda, Allens CI File, or the Kleist report prior to 2013 ............ 28
viii. The creation and maintenance of the Sheriffs investigative file .......... 28
ix. The People claim disclosure of the December 9, 1994, internal
memoranda on December 14, 1994 ..................................................... 29

ii

x.

Dodds procedure with respect to shared documents ........................... 30

xi. Attorney Walsh moved for sanctions against Dodd after December 14,
1994 based on the Peoples disclosure violations ............................... 31
xii. Dodds May 17, 1995 claim of simultaneous disclosure of the Kleist
report and Allens CI file to Fahey and Walsh................................... 31
xiii. Dodds June 5, 1995 second claim of disclosure of the Kleist report and
Allens CI file .................................................................................... 32
xiv. Fahey would have used the CI evidence to show the motive of other
suspects to harm Allen to discredit the jailhouse informants
testimony ......................................................................................... 32
b. Evidence pertaining to Allens CI status the defense was not permitted to
develop during the evidentiary hearing..................................................... 33
2.

Newly Discovered Evidence Concerning Alternative Suspects ...................... 34


a. Direct observations of Allens abduction ................................................... 35
i.

William Pierce.................................................................................... 35

ii. Jennifer Wescott ................................................................................. 36


b. Evidence establishing the new suspects were connected in 1994 ................ 39
c. Incriminating statements made by the new suspects .................................. 40
i.

James Steen ....................................................................................... 40

ii. Roger Breckenridge............................................................................ 41


iii. Michael Bohrer ................................................................................... 42
d. Proffered evidence linking Bohrer to Allens abduction ........................... 45
i.

Prior related conduct........................................................................... 45

ii. Evidence provided by John Bohrer ..................................................... 48


iii. Physical evidence connecting Bohrer to Allens abduction .................. 48
iv. Profile evidence explaining Bohrers conduct ..................................... 48
C.

The County Courts Denial of Thibodeaus 440 Motion ......................................... 49

iii

ARGUMENT ........................................................................................................................................ 51
I.

THE COUNTY COURTS DECISION DOES NOT COMPLY WITH THE MANDATE
SET FORTH IN BRADY v. MARYLAND, 373 U.S. 83 (1963), AND THIBODEAU WAS
DENIED DUE PROCESS OF LAW WHEN THE COUNTY COURT PRECLUDED HIM
FROM PRESENTING EVIDENCE IN SUPPORT OF THIS CLAIM. .............................. 51
A.

The County Courts First Reason for Denying Thibodeaus Brady Violation Claim
that Allen Was Not a CI Finds No Support in the Record and Contradicts the
County Courts November 2, 2015, Determination that Allens CI Status Was
Undisputed. ........................................................................................................... 53

B.

The County Courts Second Reason for Denying Thibodeaus Brady Violation Claim
that Allens CI Evidence Was Provided to Thibodeaus Trial Attorney Is
Contrary to the Documentary Evidence Admitted During the Post-Conviction
Hearing. ................................................................................................................ 55
1. The non-disclosure of the December 9, 1994 internal memoranda during the
December 14, 1994 discovery meeting between Fahey and Dodd. ................... 56
2. The non-disclosure of Investigator Kleists report and Allens CI file. ............. 59
3. The non-disclosure of the Kleist report and Allens CI file on June 5, 1995 ..... 62

II.

C.

The County Courts Third Reason for Denying Thibodeaus Brady Violation Claim
that the CI Evidence Was too Remote and too Speculative to Be Admissible at Trial
Is Erroneous Because the County Court Would not Allow Thibodeau to Present
Evidence Showing the Continuity Of Allens CI Status. ......................................... 65

D.

The County Courts Final Reason for Denying Thibodeaus Brady Violation Claim
that Fahey Disregarded the CI Evidence for Strategic Reasons Is Entirely
Nonsensical and Contradicted by the Record. ........................................................ 72

THE COUNTY COURT ABUSED ITS DISCRETION BY BASING ITS DENIAL OF


THIBODEAUS NEWLY DISCOVERED EVIDENCE MOTION ON A FLAWED LEGAL
ANALYSIS AND CLEARLY ERRONEOUS FACTUAL DETERMINATIONS. ............. 75
A.

The County Court Erred by Failing to Assess the New Evidence Against the
Backdrop of the Trial Evidence. ............................................................................ 76

B.

The County Court Erred by Failing to Non-Mechanically Consider the New Evidence
in Its Totality. ........................................................................................................ 81
1. The introduction of Jennifer Wescotts recorded admission would change the
outcome at a new trial ...................................................................................... 83
2. The introduction of William Pierces testimony would change the outcome at a
new trial........................................................................................................... 88
3. Taken Together, the Accounts from Pierce and Wescott Would Result in a More
Favorable Verdict. .......................................................................................... 93
iv

III.

IV.

THE COUNTY COURT VIOLATED THIBODEAUS STATE AND FEDERAL DUE


PROCESS RIGHTS BY LIMITING HIS PRESENTATION OF THIRD-PARTY
CULPABILITY EVIDENCE. ........................................................................................... 95
A.

Molineux Does Not Bar the Admissibility of Bohrers Prior Related Conduct ......... 97

B.

The County Court Erred by Excluding Relevant Evidence Tending to Corroborate


Third-Party Culpability. ...................................................................................... 103

C.

The County Courts Mechanical Application of the Hearsay Rules to Reject ThirdParty Admissions of Steen, Bohrer, and Breckenridge Denied Thibodeau His State
and Federal Constitutional Right to Present a Defense. ........................................ 107

THE COUNTY COURT ERRED BY FAILING TO ADDRESS THIBODEAUS CLAIM


OF ACTUAL INNOCENCE, WHICH WAS PROVEN BY THE NEWLY DISCOVERED
EVIDENCE. .................................................................................................................... 111

CONCLUSION ................................................................................................................................... 113

TABLE OF CITATIONS
STATE CASES
Commonwealth v. Jackson, 417 Mass. 830 (1994) ............................................................................. 102
Commonwealth v. Kater, 432 Mass. 404 (2000) ................................................................................. 102
Greenfield v. People, 85 N.Y. 75 (1881) .............................................................................................. 83
Matakov v. Kel-Tech Constr. Inc., 84 A.D.3d 677 (1st Dept 2011) ...................................................... 76
People v. Abdul, 76 A.D.3d 563 (2d Dept 2010) ............................................................................... 108
People v. Alston, 91 A.D.3d 448 (1st Dept 2012) ................................................................................ 92
People v. Backus, 129 A.D.3d 1621 (4th Dept 2015) .......................................................................... 75
People v. Beam, 57 N.Y.2d 241 (1982) .............................................................................................. 101
People v. Bellamy, 84 A.D.3d 1260 (2d Dept 2011) ........................................................... 75, 76, 79, 94
People v. Bleakley, 69 N.Y.2d 490 (1987) ............................................................................................ 81
People v. Bryant, 117 A.D.3d 1586 (4th Dept 2014) ................................................................ 75, 93, 94
People v. Bryce, 287 A.D.2d 799 (3d Dept 2001) ............................................................................... 76
People v. Buari, 50 A.D.3d 483 (1st Dept 2008) ................................................................................. 92
People v. Cintron, 306 A.D. 151 (1st Dept 2003) ................................................................................ 92
People v. Cole, 765 N.Y.S.2d 477 (Sup. Ct. 2003) ............................................................................. 112
People v. Deacon, 96 A.D.3d 965 (2d Dept 2012) ............................................................................ 108
People v. DiGuglielmo, 75 A.D.3d 206 (2d Dept 2010) ...................................................................... 76
People v. DiPippo, 27 N.Y.3d 127 (2016) ............................................................................. 80, 100, 101
People v. Fonfrias, 204 A.D.2d 736 (2d Dept 1994) ......................................................................... 109
People v. Gamble, 72 A.D.3d 544 (1st Dept 2010) .............................................................................. 70
People v. Garrett, 23 N.Y.3d 878 (2014) ............................................................................................. 52
People v. Gissendanner, 48 N.Y.2d 543 (1979) ................................................................................... 69
People v. Greene, 150 A.D.2d 604 (2d Dept 1989) ............................................................................. 92
People v. Hamilton, 115 A.D.3d 12 (2d Dept 2014) .......................................................................... 112
People v. Kidd, 76 A.D.2d 665 (1st Dept 1980) .................................................................................. 76
vi

People v. LeGrand, 8 N.Y.3d 449 (2007) ........................................................................................ 89, 90


People v. Maynard, 80 Misc. 2d 279 (N.Y. Sup. Ct. 1974) .............................................................. 71, 76
People v. Mcfarland, 108 A.D.3d 1121 (4th Dept 2013) ................................................................... 108
People v. Molineux, 168 N.Y. 264 (1901) ................................................................................ 47, 98-101
People v. Neely, 645 N.Y.S.2d 494 (2d Dept 1996) .............................................................................. 75
People v. Oxley, 64 A.D.3d 1078 (3d Dept 2009) ................................................................ 99, 109, 110
People v. Penoyer, 135 A.D.2d 42 (3d Dept 1988) .............................................................................. 91
People v. Perez, 18 Misc. 3d 752 (N.Y. Sup. Ct. 2007) ........................................................................ 76
People v. Perez, 2014 WL 2967608 (Cal.App.2 Dist. July 2, 2014) .................................................... 102
People v. Primo, 96 N.Y.2d 351 (2001) .......................................................................................... 96, 99
People v. Robinson, 89 N.Y.2d 648 (1997) .......................................................................................... 98
People v. Schulz, 4 N.Y.3d 521 (2005) ................................................................................................. 96
People v. Tankleff, 49 A.D.3d 160 (2d Dept 2007) ............................................................. 75, 76, 87, 88
People v. Vilardi, 76 N.Y.2d 67 (1990) ................................................................................................ 52
People v. Willock, 125 A.D.3d 901 (2d Dept 2015) ............................................................................. 95
People v. Wong, 11 A.D.3d 724 (3d Dept 2004) ............................................................................ 94, 95
People v. Wright, 86 N.Y.2d 591 (1995) .............................................................................................. 70
St. Clair v. Commonwealth, 455 S.W.3d 869 (Ky. Feb. 19, 2015) ...................................................... 102
State v. Bible, 175 Ariz. 549 (1993) ................................................................................................... 102
State v. Garfole, 76 N.J. 445 (1978) ..................................................................................................... 99
State v. Hyatt, 355 N.C. 642 (2002) ....................................................................................................... 2
FEDERAL CASES
Brady v. Maryland, 373 U.S. 83 (1963) ........................................................................................ passim
Chambers v. Mississippi, 410 U.S. 284 (1973) ......................................................................... 98, 107-10
Crane v. Kentucky, 476 U.S. 683 (1986) .................................................................................. 95, 98, 107
Green v. Georgia, 442 U.S. 95 (1979) ................................................................................................. 98
Herrera v. Collins, 506 U.S. 390 (1993) ............................................................................................ 112
vii

Holmes v. South Carolina, 547 U.S. 319 (2006) ...................................................................... 95, 98, 108
Kyles v. Whitley, 514 U.S. 419 (1995) .................................................................................................. 71
Pointer v. Texas, 380 U.S. 400 (1965) ................................................................................................. 95
United States v. Aboumoussallem, 726 F.2d 906 (2d Cir. 1984) ............................................................ 98
United States v. Bagley, 473 U.S. 667 (1985) ....................................................................................... 52
United States v. Glover, 1998 WL 575125 (D. Kan. Sept. 1, 1998) ....................................................... 71
United States v. Scheffer, 523 U.S. 303 (1998) ............................................................................ 107, 109
United States v. Stevens, 935 F.2d 1380 (3d Cir. 1991) ........................................................................ 99
Washington v. Texas, 388 U.S. 14 (1967) ............................................................................................. 95

CONSTITUTIONAL PROVISIONS
U.S. Const. amend. V ..................................................................................................... 42, 95, 109, 112
U.S. Const. amend. VI .................................................................................................................. 95, 107
U.S. Const. amend. XIV ....................................................................................................... 95, 107, 112
STATUTES
N.Y. Jud. Ct. Acts Law 2-b(3) ........................................................................................................ 111
N.Y. C.P.L. 240.60 ...................................................................................................................... 22, 60
N.Y. C.P.L. 330.30 ........................................................................................................................... 16
N.Y. C.P.L. 440.10 .................................................................................................................... passim

viii

QUESTIONS PRESENTED
1.

Did the County Courts decision comply with the mandate set forth in Brady v. Maryland, 373 U.S.

(1963), and was Thibodeau denied due process of law when the County Court precluded him from
presenting evidence in support of this claim?
2.

Did the County Court abuse its discretion by basing the denial of Thibodeaus newly discovered

evidence motion on a flawed legal analysis and clearly erroneous factual determinations?
3.

Did the County Court violate Thibodeaus state and federal due process rights by limiting his

presentation of third-party culpability evidence?


4.

Did the County Court err by failing to address Thibodeaus claim of actual innocence, which was

proven by the newly discovered evidence?

PRELIMINARY STATEMENT
Gary Thibodeau has spent the past twenty-one years in a maximum security prison for a crime he
did not commit. Thibodeau was convicted of kidnapping Heidi Allen from a convenience store despite (1)
the lack of any forensic evidence linking him to her abduction,i (2) the absence of eyewitness testimony
placing him at the store, (3) the polices inability to extract a confession; and (4) the prosecutions failure
to provide a solid motive for his alleged involvement. What is more, Thibodeaus brother, with whom
Thibodeau was alleged to have acted, was acquitted by a separate jury, despite his acknowledged presence
at the store prior to Allens abduction. Aside from uneven and inconclusive circumstantial evidence,
Thibodeaus conviction was the direct result of testimony elicited from two jailhouse informants and
defense counsels understandable inability to raise doubt by pointing to alternative suspects.
During the past several years, Thibodeau has unearthed information that serves to undermine the
evidence presented against him and to establish alternative suspects responsible for Allens abduction. This
same evidence also demonstrates how the prosecution unconstitutionally secured his conviction. As a result
of this newly discovered evidence, Thibodeau filed a motion seeking a new trial for the following two
reasons.

First, newly discovered evidence shows the prosecution conducted a concerted effort to thwart its
obligations under Brady v. Maryland, 373 U.S. 83 (1963). Most significantly, the prosecution suppressed
the fact that Heidi Allen had been acting as a confidential informant and the fact that her status had been
publicly exposed. By doing so, the prosecution was able to (a) suggest (falsely) that Allens abduction
might be the result of her own drug use; (b) keep defense counsel from spoiling and undermining the
jailhouse informants testimony; and (c) prevent defense counsel from pointing to possible alternative
suspects and to highlight the inadequacy of the police investigation. Had defense counsel been presented
with this information, there is a reasonable possibility (and probability) the verdict would have been
different.
Second, newly discovered evidence firmly establishes for the first time the identity of and motives
for alternative suspects responsible for Allens abduction. More particularly, this new evidence consists of
eyewitness accounts, admissions by third-parties, and other corroborative evidence linking three other
suspects to Heidi Allens abduction. Beyond merely impeaching or contradicting the evidence presented
at trial, this newly discovered evidence exonerates Gary Thibodeau and establishes his actual innocence.
Because a jurys consideration of this evidence at a new trial would likely result in a favorable outcome,
this Court should grant Thibodeaus 440 motion and order a new trial.
Despite the fact that this new evidence exonerates Thibodeau, the County Court issued a written
decision on March 2, 2016 denying his motion for a new trial. As explained more fully below, the County
Court abused its discretion by basing its decision on mistakes of law and clearly erroneous factual
determinations. Therefore, this Court should reverse the County Courts order, vacate Thibodeaus
judgment, and order a new trial. ii
STATEMENT OF FACTS
I.

Trial Evidence
A jury trial was conducted in Oswego County Court from May 22 to June 19, 1995, at which the

following facts were established. Gary Thibodeau was represented by Joseph Fahey and the case was
prosecuted by Donald Dodd, then-Chief Assistant District Attorney in Oswego County.
2

A.

The discovery of Allens disappearance and the initial investigation

On the morning of April 3, 1994, Easter Sunday, John Stinson drove to the D&W convenience
store and gas station (D&W) located at the corner of New York State Routes 104 and 104B in the Town
of New Haven, New York. See Transcript of Trial of Gary J. Thibodeau (T.T.) at 1397-98.

It was

daylight savings time and Stinsons wife was setting the clock at his home ahead one hour when he left his
house, which is located on Route 104, one mile west of the D&W. (T.T., 1400-01). Based upon that clock,
he estimated he arrived at the D&W at 7:41 a.m. Id. Stinson did not observe any vehicles on the road. Id.
When Stinson entered the D&W, he did not observe anyone inside or outside of the store. (T.T.,
1401-02). He placed exact change on the counter for the Sunday newspaper and waited for the clerk. (T.T.,
1403). Two men entered the store at separate times, took a Sunday newspaper, left money on the counter
for the paper, and left after Stinson told them the clerk was in the bathroom. (T.T., 1403-04). Two more
people arrived at separate times, also left money on the counter, and stayed to search the store with Stinson
for the missing clerk. (T.T., 1404-05).

Stinson went outside to look for the clerk when he noticed an

Oswego County Sheriffs Departments vehicle at the intersection of 104 and 104B and flagged down the
vehicle occupied by Deputy Richard Curtis. (T.T., 1405-10).
Deputy Curtis notified dispatch of suspicious activity at the D&W which dispatch entered onto a
complaint card that was punched into a time clock at 7:55 a.m. (T.T., 1457). Deputy Curtis observed no
signs of a struggle inside of the D&W and it appeared the clerk left voluntarily. (T.T., 1418, 1423, 1445).
Between 8:00 and 8:30 a.m., Deputy Curtis placed yellow crime scene tape around the front of the store.
(T.T., 1425-1427, 1447, 1449).
Around 8:00 a.m., Deputy Curtis telephoned Kristine Duell, the owner of the D&W, requesting her
presence at the store. (T.T., 1429). Duell identified Heidi Allen as the missing clerk and believed Allens
name was on the work schedule, posted in public view at the D&W, a week prior to her disappearance.
(T.T., 1429, 1509-10, 1520). Duell learned from the cash register tape that Allen started her drawer at 5:55
a.m. and the last recorded purchase occurred at 7:42 a.m. for two packs of generic cigarettes. (T.T., 149095). Duell had no ability to determine who made this purchase. (T.T., 1515-19). No money was missing
3

from the cash register. (T.T., 1442, 1484). The Sheriffs Department never took custody of the money five
people left on the counter or the money in the cash register drawer. (T.T., 2031).
B.

Richard Thibodeau identifies himself as making the last recorded purchase

Shortly after 10:00 a.m. on April 3, 1994, Richard Thibodeau called the Sheriffs Department to
inform them of his presence at the D&W that morning. (T.T., 2033-35, 2058, 2272-73, 2459, 2460). This
caused Deputy Van Patten to interview Richard Thibodeau at 11:20 a.m., at the residence of John and Leona
Corey, in Scriba, New York, where Richard was spending Easter Sunday. (T.T., 2273-74, 2446-48, 2454).
Deputy Van Patten noted that Richard Thibodeau was cooperative during the interview and signed a written
statement at 11:35 a.m. (T.T., 2447-48, 2454). It was his cooperation that helped the Sheriffs Department
identify him as the person who made the 7:42 a.m. purchase. (T.T., 2034-35). Additionally, Richard
Thibodeau had possession of the cigarettes he had purchased from the D&W that morning. (T.T., 2464).
Deputy Van Patten observed a white and black van in the driveway. (T.T., 2454).
C.

John Swenszkowski confirms Thibodeaus presence at the D&W

On April 4, 1994, the Sheriffs Department learned John Swenszkowski passed a slow moving van
on Route 104 as he drove to the D&W the morning of April 3, 1994. (T.T., 1222, 1262-63). During trial,
Swenszkowski identified the van as Richard Thibodeaus van. (T.T., 1247). After making his purchase
inside of the D&W, Swenszkowski noticed the same van in the parking lot of the D&W as he was walking
to his car. (T.T., 1234, 1236-37). As he approached his car, Swenszkowski noticed the van was running
and he did not see anyone inside of it. (T.T., 1237). A man, described as 56 or 57 tall, 145 pounds,
with a mustache, wearing jeans, a t-shirt, and a baseball cap, was walking into the store as Swenszkowski
was walking out. (T.T., 1222, 1226, 1235-36, 1283). After taking a few moments to settle into his car,
Swenszkowski drove forward and passed the same man who had returned to his van and moved forward
twice as he was beginning to leave at the same time. (T.T., 1267-68, 1244). Swenszkowski went around
the van, which had begun to move toward the front door of the D&W. (T.T., 1239). He then continued
west along Route 104 for several miles. (T.T., 1275). Swenszkowski did not notice another car or person

at the D&W the entire time he was there. (T.T., 1254-55). Moreover, he did not see another vehicle as he
left the D&W and drove west along Route 104. (T.T., 1275).
D.

Christopher Bivens calls the Sheriffs Department on April 8, 1994 to report


witnessing an argument outside of the D&W

On April 8, 1994, Christopher Bivens called the Sheriffs Department to report driving past the
D&W between 8:00 and 8:30 a.m. and observing two men and a woman arguing on the porch area outside
of the D&W. (T.T., 1317, 3120). Bivens was unable to describe the people and he was unable to identify
any vehicles at the store, but reported seeing a vehicle near the gas pump. (T.T., 1317, 3121). Bivens did
not describe what the three people were doing. The Sheriffs Department did not respond to Bivenss call
until April 17, 1994.
E.

Richard Thibodeau fully cooperates with the Sheriffs Department on April 9, 1994,
and a forensic examination fails to link him to Heidi Allen

On April 9, 1994, Richard and Gary Thibodeau, along with their girlfriends, Teresa Crawford and
Sharon Raposa, volunteered in a foot search for Heidi Allen. (T.T., 2037, 2280, 2615, 2757). After the
search, Richard and Teresa agreed to undergo an interview at the Sheriffs Department. (T.T., 2037-38,
2281, 2764). They were at the Sheriffs Department between 4:00 p.m. and 11:30 p.m. (T.T., 2282-85).
During this time period, Richard Thibodeau underwent a lengthy interview, consented to a search
of his van, provided police with a hair sample from his head and a pubic hair. (T.T., 2038-39, 2068-69,
2077, 2094). He also agreed to a police escort to the hospital to provide a blood sample. (T.T., 2038-39,
2068-69, 2095, 2284-85).
The van underwent an extensive search by the Sheriffs Department between April 9 and 10, 1994.
(T.T., 2077-2085, 2089, 3042-3032). Richard Thibodeaus van has a distinctive appearance. (A. 2257). iii
The van is mismatched white and black, with a noticeably worn appearance. Id. The back of the van has
a GMC logo below the license plate with rust at the bottom of the double doors, bumper, and trailer hitch.
Id. The double doors are black with a window on the top half of each door. Id. The rear side of the van is
half white with a black stripe and the other half is a black. Id. The front quarter panel is three-quarters
white and one-quarter black. Id. The van is very loud with an identifiable noise. (T.T., 2206, 2263-64,
5

2588). The van is prone to stalling and requires several attempts at starting before it can be driven. (T.T.,
2264). The van was described at trial as having a sound of its own. Its got six cylinders, its noisy, its
pretty remarkable. You can pick it right out. (T.T., 2207).
Investigator Kleist was the evidence technician for the case. (T.T., 2072-73). The van was
photographed both inside and out prior to the search. (T.T., 2077-78). The van was not clean, contained a
number of items, and was full of clutter. (T.T., 2041, 2086, 3111). All lights were turned off inside of the
Sheriff Departments garage and an ultraviolet light was used to find evidence that fluoresced under the
light. (T.T., 2078). A good of amount of material fluoresced under the ultraviolet light, including hair and
different types of fiber. (T.T., 2090). The fluoresced material was removed and collected into two
containers. (T.T., 2090, 2094). The entire van was then vacuumed to collect any trace evidence that could
have been transferred from the victim onto the van or from the van onto the victim. Id. A struggle occurring
between two or more people would likely cause a transfer to occur. (T.T., 3208-09). The vacuuming
created nine containers of material. (T.T., 2093). One container of hair fibers was collected and three
containers of carpet samples. Id. They also raised five latent fingerprints from inside of the van. (T.T.,
2078, 2083, 2094). Heidi Allens fingerprints were not found in the van. (T.T., 2084). All of this evidence
was sent to the FBI lab. Id.
Investigator Kleist obtained control specimens, consisting of Allens hairbrushes, for comparison
to the items removed from the van. Id. There were no matches. (T.T., 2084-85).
The van was rolled over adhesive to obtain tire impressions. (T.T., 2095). These impressions were
necessary for Investigator Kleist to make a comparison of tire marks he found at the D&W on April 3, 1994,
near the front gas pump closest to the front of the store. (T.T., 2095-96, 3031-32). Investigator Kleist
collected it because it looked like an acceleration mark, as though someone was leaving the store in a hurry
after the abduction. (T.T., 2096, 3032). The impressions from Richard Thibodeaus van did not appear to
match the acceleration mark from the scene, so no further testing was conducted. (T.T., 3049-50).
Investigator Kleists examination of the van compared with Allens control specimens provided no
indication that Allen was ever inside the van. (T.T., 2104). The examinations performed by the FBI reached
6

the same conclusion. (T.T., 3210). Christopher Allen, special agent with the FBI and an expert in the area
of hair and fiber analysis, testified about his examinations of the material he received from the Oswego
County Sheriffs Department on April 19, 1994. (T.T., 3175, 3192-93). The control specimens pertaining
to Allen included her hair bushes, carpet samples from her residence, a hair sample from Allens sisters
dog, and Allens sweatshirt. (T.T., 3177-3180). After analyzing all of the items of evidence collected from
Richard Thibodeaus van, his hair, his pubic hair, and his blood against the control specimens, FBI Agent
Allen found no forensic link between Heidi Allen and Richard Thibodeau or his van. (T.T., 3210).
The Sheriffs Department returned the van to Richard Thibodeau on April 10, 1994, and took
custody of it again on May 26, 1994, the date of Richard Thibodeaus arrest. (T.T., 2042, 2768). It has
been in the custody of the Sheriffs Department ever since. (T.T., 2042); Evidentiary Hearing Transcript
(H.T.) at 1113.
F.

Richard Thibodeaus corroborated alibi

Teresa Crawford testified that on the morning of April 3, 1994 she was living with her boyfriend,
Richard Thibodeau, and her two children on the corner of Route 104 and Egglestone Road in New Haven.
(T.T., 2259-60). She was sleeping on the couch that morning when she heard Richard start the van. (T.T.,
2262). The van had a poor starter which caused it to stall a number of times before it would start. (T.T.,
2264). Richard left in the van at 7:30 a.m., and returned at 7:50 a.m. with two packs of cigarettes. (T.T.,
2265). The family left their house at approximately 8:30 a.m. to celebrate Easter at her grandparents (John
and Leona Corey) residence located in the town of Scriba. (T.T., 2265, 2267, 2268). They passed the
D&W on the way, and she observed a patrol car and yellow tape outside of the D&W. (T.T., 2268). They
first stopped at her mothers residence, which is right next door to her grandparents residence, at 8:45 a.m.
(T.T., 2269). Teresas brother, Richard Mitton, was at her mothers home and they discussed what she had
observed outside of the D&W. (T.T., 2269-70). They arrived at her grandparents home between 9:15 and
9:30 a.m. where she heard information come across the police scanner about an incident at the D&W. (T.T.,
2271-72). She also saw a report about the D&W on the television. (T.T., 2271). Teresa witnessed Richard
make a telephone call and thirty minutes later Deputy Van Patten arrived at the house. (T.T., 2272-73).
7

Teresa Crawfords testimony was corroborated at trial by Dayne, John, and Leona Corey, Francis
Bruce, George Wallis, Jacqueline Warren, and Amanda Crawford. (T.T., 2205, 2207, 2229, 2232-34, 2237,
2240-41, 2244, 2359, 2360-61, 2380, 2383, 2407, 2412, 2416, 2433, 2930-34). Steven Fraiser, Richards
neighbor, testified he was preparing to leave his home between 8:00 and 8:30 a.m. on April 3, 1994 when
he looked out his window and saw Richard Thibodeaus van in Richards driveway. (T.T., 2987-88).
Another neighbor, George Ingersoll, observed Richards van driving west on Route 104 between 7:15 and
7:30 a.m. and saw the van return in the opposite directions less than a half hour later. (T.T., 2188-89, 92).
G.

Gary Thibodeaus corroborated alibi

On April 11, 1994, Sheriffs Investigators Yerdon and Yager went to Gary Thibodeaus residence
on Kenyon Road in the Town of Mexico to interview him. (T.T., 2010). When asked why Gary Thibodeau
was being interviewed, Investigator Yerdon replied:
First, we didnt know who Gary Thibodeau was. We knew he was the brother. We never
met him. We just wanted to find out basically information of who he was, how long he
had been there, and if he knew anything about the case.
(T.T., 2042).
Gary Thibodeau told Investigators he was at his residence with his girlfriend, Sharon Raposa on
the morning of April 3, 1994. (T.T., 2605, 2608-09, 2752). They were woken up by the ringing of their
telephone between 9:00 and 9:30 a.m., and they never left the house that day. (T.T., 2608, 2767). Sharon
Raposa corroborated Gary Thibodeaus statements. (T.T., 2608, 2615-16). Richard Thibodeau never came
to their home on April 3, 1994. (T.T., 2612, 2923).
The testimony of Gary Thibodeau and Sharon Raposa was corroborated by their neighbors, Edward
and Trisha Bartlett, who did not hear or see Richard Thibodeaus van at Garys residence on the morning
of April 3, 1994. (T.T., 2525-27, 2564). Additionally, Trisha Bartlett was informed by a Sheriffs
investigator that if Richards van had been there, she certainly would have heard it. (T.T., 2588).
H.

Physical Descriptions of Heidi Allen, Gary Thibodeau, and Richard Thibodeau

Allen was described at trial as being between 510 and 511 tall, weighing 145 pounds, with dirty
blonde hair. (T.T., 1134, 1455). On the date of her disappearance she was wearing a white pair of canvas
8

shoes, light blue jeans, a gray Syracuse University sweatshirt, and glasses. (T.T., 1134). Richard Thibodeau
was described by Investigator Yerdon as 57 tall, weighing 155 pounds, having gray hair, a mustache, and
glasses. (T.T., 2004). Investigator Yerdon described Gary Thibodeau as 510 tall, weighing between 180
and 190 pounds, having dark brown hair, a mustache, and a goatee or beard. (T.T., 2011). In view of the
jury, Gary described himself as between 58 and 59 tall and weighing between 150 and 160 pounds.
(T.T., 2925).
I.

Bivens is repeatedly interviewed by the Sheriffs Department after the announcement


of a reward

On April 14, 1994, a $20,000 reward was announced for information related to Allens
disappearance. (T.T., 1365). Three days later, on April 17, 1994, Deputy William Cromie called Bivens
in response to Bivenss April 8, 1994 call. (T.T., 3146). Bivenss prior inability to describe any of these
people transformed into a positive identification of Allen, where he stated, I know that was Heidi. (T.T.,
3146-47, 3156).
When questioned by Sheriff s deputies at his home on that same date at 6:22 p.m., Bivens provided
descriptions of the men he could not describe nine days prior. (T.T., 1327). Bivens told the officers the
two men were between thirty and forty years of age and each were both 511 tall. (T.T., 1328). The men
appeared strong looking and husky. Id. Moreover, instead of merely witnessing an argument, Bivens
claimed that one of the men had the woman in a bear hug as the other man walked toward the van. (A.
2208).
On April 18, 1994, Bivens underwent a second lengthy police interview at the police station. (T.T.,
1329-30). During this interview he told police he saw a light blue van outside of the D&W as he was
driving 45 miles per hour on Route 104 just before approaching the intersection of Routes 104 and 104B.
(T.T., 1334-38). Bivens, a self-reported expert in vehicle body repair and mechanics, could not identify the
vehicle as a Chevy C-10 or a Dodge, or identify whether the vehicle had pin stripes on it. (T.T., 1286,
1334-35). He saw a side glimpse of the girls face, which had a darker complexion than the two white
men, and she was three or four inches taller than the man holding her. (T.T., 1336-37).

On April 20, 1994, Investigators Yerdon and Hall drove Bivens by Richard Thibodeaus van (T.T.,
1341-42). Bivens indicated the van was the right style, but the wrong color. Id. On April 21, 1994,
Investigator Hall appeared at Bivenss place of employment, A&P Auto Parts, and he was shown a
photograph of the passenger side and back doors of the van he was unable to identify the day prior. (T.T.,
1286, 1343). Bivens did not believe the van in the photograph was the same van he observed at the D&W
on April 3, 1994. (T.T., 1343). He was then shown a second photograph which displayed the dark blue
side doors. Id. Bivens was still uncertain and Investigator Hall gave him overnight to sleep on it. Id. On
April 22, 1994, at approximately 7:00 a.m., the officers met with Bivens again and they showed him pictures
of Richard Thibodeaus van, the same van he was unable to identify the day before in photographs and two
days prior in person. (T.T., 1343-45). It was on this day that Bivens positively identified Richard
Thibodeaus van as the van he observed outside the D&W between 8:00 and 8:30 a.m. Id. Bivens claimed
he was able to identify the van because of the bumper in the back and a rust spot over the back wheel. (T.T.,
1344-45).
During trial, Bivens testified he was in the proximity of the D&W around 7:30 a.m., rather than
between 8:00 and 8:30 a.m., the time he first reported on April 8, 1994. (T.T., 1287, 1289). Additionally,
Bivenss trial testimony changed his rate of speed from what he originally reported to the police. (T.T.,
1291). Instead of driving 45 miles per hour, as he indicated on April 18, 1994, he testified he was driving
30 miles per hour as he drove by the D&W. Id. Bivens testified he was low on fuel and had intended to
purchase gas at the D&W but did not want to become involved in the dispute he observed. (T.T., 1293,
1298, 1311). Bivens testified that the van caught his attention because it had a stripe on it and it did not
look right on the van. (T.T., 1300). His many years of experience in auto body repair made the stripe stand
out in his mind because it looked like someone had painted it on the van. (T.T., 1300-01). The stripe was
never mentioned in any of his prior sworn statements.

10

J.

On April 23, 1994, material washed out of Richard Thibodeaus van at a carwash is
collected and forensically tested by FBI, resulting in no link to Allen

On April 23, 1994, two weeks after Richard Thibodeaus van was thoroughly searched by the
Sheriffs Department, an investigator observed Richard Thibodeau washing out the inside of his van at a
car wash. (T.T., 3029-31). All of the material washed out was collected and sent to the FBI for testing,
which did not provide a match to Allen. (T.T., 3029-31, 3181-82).
K.

On May 26, 1994, Gary Thibodeau is arrested by the Sheriffs Department on a


Massachusetts bench warrant and thereafter detained in Massachusetts

Members of the Sheriffs Department appeared at the residence of Gary Thibodeau and Sharon
Raposa on May 26, 1994. (T.T., 2768). Gary was asked to appear at the police station for an interview,
and when he refused, he and Sharon were arrested. Id. They both had Massachusettss bench warrants
related to a 1992 misdemeanor drug offense. Id. Gary was taken to FBI headquarters in Syracuse, New
York, where he was questioned about April 3, 1994. (T.T., 2768-69). He was transported to the Oswego
County Jail, where he was held for approximately three weeks before being transported to the Worcester
House of Corrections in Massachusetts. (T.T., 2769). Gary was held in C block with James McDonald and
Robert Baldasaro. (T.T., 2771). Baldasaro and McDonald were already familiar with each other before
Garys arrival. (T.T., 1534, 1686).
L.

On June 7, 1994, Nancy Fabian makes first report to Sheriffs Department about a
van she observed on the morning of April 3, 1994

On June 7, 1994, Nancy Fabian made her first report to the Sheriffs Department that she witnessed
a van driving erratically on Route 104 the morning of April 3, 1994, at approximately 7:45 a.m. (T.T., 1718,
1721-22, 1731, 1748-49). The van caught her attention because it came up behind her vehicle very quickly.
(T.T., 1725). The van swerved back and forth into the oncoming traffic lane four or five times which made
her very nervous. (T.T., 1725-26). Mrs. Fabian was only able to see the front portion of the van through
her rearview mirror. (T.T., 1726). She observed the male driver, who had dark, bushy hair and a scruffy
beard trying to control something or push something down in the back of the van, possibly a dog. (T.T.,
1728-29). She did not see any other people in the van. (T.T., 1730). Mrs. Fabians husband, Leo Fabian,

11

a driver for U.P.S., was seated in the front passenger seat of the vehicle and he did not make any similar
observations even though his wife made three nervous statements to him about a van driving erratically less
than two feet behind them. (T.T., 1725, 1772-74).
Mrs. Fabian appeared at the Sheriffs Department on June 7, 1994, to report this dramatic encounter
and described the van as light blue. (T.T., 1749-54). Mrs. Fabian agreed at trial that Richard Thibodeaus
van is not light blue. (T.T., 1752).
On June 9, 1994, Mrs. Fabian returned to the Sheriffs Department for a second interview, where
she was shown a photograph of one van and Richard Thibodeaus van in the Sheriffs Departments garage.
(T.T., 1755, 1757). Because the lighting in the garage affected the color of the van, the investigators offered
to push it out of the garage into the light. (T.T., 1758-59). She did not want the investigators to hurt
themselves so she thought it would be easier [to make the identification] if it was sitting where it was and
made the identification in the garage. (T.T., 1759-60).
M.

On June 20, 1994, Gary Thibodeaus neighbors make first statements about Gary
Thibodeau to the Sheriffs Department

On June 20, 1994, Donald Neville, Sr., who had been following the Allen investigation, made his
first statement to the police about his neighbor, Gary Thibodeau. (T.T., 1779, 1812-18). News reports
informed him that Gary and Richard were brothers and a van was involved in Allens abduction. (T.T.,
1815).
Mr. Neville does not keep track of time, pay attention to time, or really care about time when he is
not working. (T.T., 1784, 1809, 1818, 1823-24). He was not working on the morning of April 3, 1994.
(T.T., 1785, 1833). According to Mr. Neville, he did not observe any vehicles in Gary Thibodeaus
driveway at 7:30 a.m. on April 3, 1994, but recalled seeing a Cadillac, Richard Thibodeaus van, and
another car in Gary Thibodeaus driveway between 8:00 and 8:30 a.m. (T.T., 1785-87, 1793-1799).
William Cowen, another neighbor, reported that Gary was burning things in a furnace located on his
property. (T.T., 1863, 1889-90, 1894).

12

N.

Additional forensic tests fail to connect the Thibodeaus to Allens abduction

On June 22, 1994, Investigator Kleist collected carpet samples from Richard Thibodeaus
previously searched van on consent. (T.T., 2342-23, 3038-39). FBI analysis provided no forensic match
to Allen. (T.T., 3183, 3189-90, 3210).
On June 23, 1994, the Sheriffs Department obtained a search warrant to seize the furnace reported
to them by William Cowen from Gary Thibodeaus yard. (T.T., 3037). Investigator Kleist vacuumed
everything out of the furnace filling two or three large garbage bags. (T.T., 3032-34). Each bag weighed
seven or eight pounds. Id. Investigator Kleist also collected soot piles from Gary Thibodeaus property in
similar garbage bags. (T.T., 3035). This material was all sent to the FBI for analysis. (T.T., 3186). Bone
fragments found in the soot pile were sent to the Smithsonian Institute to be examined by an anthropologist.
(T.T., 3187-88). No bones of human origin were recognized and none of the material matched the Allen
control samples. (T.T., 3191-92, 3208, 3210).
Gary Thibodeau and Sharon Raposa both testified that the furnace at their residence blew up in
January of 1994. (T.T., 2612-14, 2750-51). The insurance company paid for them to live at Becks Hotel
for forty-nine days while their home was being restored from the furnace damage. Id. They met Allen
during their stay through her boyfriend, Brett Law. Id. When they returned to their home, they kept the
old furnace in the yard and used it to burn their garbage. (T.T., 2615, 2775).
O.

In July of 1994, jailhouse informants claim Gary Thibodeau admitted being with his
brother and Allen on the morning of her abduction

Gary Thibodeau called Teresa Crawford from jail in Massachusetts to receive updates on the Allen
investigation. (T.T., 2288-89, 2769-71). Gary would share details of news reports Crawford fed him with
James McDonald and Robert Baldasaro, including the removal of his furnace from his property. Id.
Additionally, McDonald actively eavesdropped on Garys phone calls. (T.T., 1684).
Gary Thibodeau was released prior to Baldasaro and McDonald, who were released a week apart
from each other in July of 1994. (T.T., 1554, 1687). Baldasaro and McDonald shared the same lawyer,
Michael Taylor, who brought Baldasaro and McDonald together upon McDonalds release from jail when

13

he collected McDonald from jail and delivered him to Baldasaro who agreed to make a 2-hour, 120-mile
round trip drive to return McDonald to his home. (T.T., 1524, 1584, 1687).
Weeks later, Baldasaro and McDonald met with investigators from the Sheriffs Department to
provide information on Gary Thibodeau. (T.T., 1556, 1712). Baldasaro told them Gary Thibodeaus first
night at the jail included nothing more than an exchange of hi to each other. (T.T., 1536). The very next
morning, Gary purportedly told Baldasaro he was a suspect in kidnapping a girl from a convenience store
in New York because he and his brother were the last ones with the girl that morning. (T.T., 1538-40).
Baldasaro asked if he did it and Gary responded, No, and if I was, I wouldnt tell you anyway. (T.T.,
1540). That afternoon, Baldasaro claimed Gary told him the girl was dead after Baldasaro suggested that
Gary could clear his name through a line up when the girl returned from being kidnapped. (T.T., 1541-43).
The next morning, Baldasaro offered more investigative tips, such as clearing Garys name through
fingerprints left at the scene. (T.T., 1543-44). In response, Gary told Baldasaro there was no struggle at
the store and the girl left the store with someone she knew. Id. After knowing Baldasaro for one day, Gary
implicated himself in the crime by telling Baldasaro the following:
He said, well, him and his brother went down to talk to her because she was upset and they
wanted to try and straighten things out, that she thought they were - - Gary was going to
try to screw her about something and she was really upset so they went down - - they
wanted to have a conversation with her. Gary said that when he got there they got in the
van, they drove up by the woods up by his house, they talked to her, Gary got out at his
house, his brother drove this girl back to the store, dropped her off and then remembered
he forgot to get cigarettes. When he went back to get cigarettes, there was nobody at the
store.
Id.
This all occurred in his brothers van. (T.T., 1545).
Possibly three days later, Baldasaro suggested Garys name would be cleared when the girl returned
but Gary told him the girl was dead. (T.T., 1548-49). Baldasaro wanted to know how she died, and Gary
said her head was beaten in with a shovel and she was mutilated. (T.T., 1550). Baldasaro wanted to know
how Gary knew that and Gary replied, Well, they are accusing me of doing it. If I was going to do it,
thats how it would have been done. Id. Finally, Baldasaro said Gary was concerned about the Sheriffs

14

Departments removal of the furnace from his property and Baldasaro warned him that teeth do not burn.
(T.T., 1582-83).
Baldasaros pending charge resulted in a sentence of probation, rather than a jail sentence, after he
spoke with investigators. (T.T., 1529, 1624).
McDonald was in jail for a driving while intoxicated charge. (T.T., 1647). At the time of his
incarceration, he had two prior drinking and driving convictions, four assault and battery convictions, and
a breaking and entering conviction. (T.T., 1712). Less than two weeks after he spoke to investigators about
Gary Thibodeau, he was sentenced to probation, without conditions. Id.
McDonald testified Gary Thibodeau told him he was with his brother in his brothers van at the
D&W the morning of the girls disappearance. (T.T., 1663). McDonald claimed he heard Gary tell
Baldasaro the girl was killed with a small Army fold up kind of shovel. (T.T., 1666). McDonald believed
Garys involvement with the girl had to do with drugs because the girl was into cocaine and Gary and the
girl used to do cocaine together. (T.T., 1688).
P.

On July 24, 1994, the Sheriffs Department removes property from Gary Thibodeaus
residence that provides no forensic link to Allen

After speaking with Baldasaro and McDonald, Sheriffs Investigators obtained a search warrant on
July 24, 1994 to search Gary Thibodeaus residence. (T.T., 3060-61). Items removed from Garys home
included a machete knife, two hacksaws, two coping saws, and a round-nosed shovel. (T.T., 3057-62).
Forensic testing proved no link to Allen and they were returned to Gary Thibodeau on March 27, 1995. Id.
Q.

Gary Thibodeaus neighbors make their first report of seeing a van outside of his
residence on April 3, 1994

On November 15, 1994, after already speaking with the Sheriffs Department in June and
September of 1994, William Cowen told investigators for the first time that he saw Gary Thibodeau
standing outside of a van talking to someone inside of the van at his residence on the morning of April 3,
1994. (T.T., 1872-74). Mrs. Cowen reported the same information on the same date. (T.T., 1928). At
trial, the Cowens could not identify the person inside of the van or identify the van as Richard Thibodeaus.
(T.T., 1881, 1918-19, 1921, 1934).
15

In May of 1995, days before the start of Gary Thibodeaus trial, 13-year-old Brittany Link reported
for the first time that she saw Richard Thibodeaus van in Gary Thibodeaus driveway at approximately
7:49 or 7:50 a.m. on April 3, 1994. (T.T., 1840-42, 1852).
R.

The verdict, sentencing, and post-verdict motions

On June 19, 1995, the jury returned a verdict of guilty against Gary Thibodeau for the crime of
Kidnapping in the First Degree. (T.T., 3494). Between the time of the verdict and sentencing on August
7, 1995, Fahey received an anonymous tip that the People had possession of Allens diaries. (H.T., 25,
144). Thibodeau filed motions pursuant to CPL 330.30 and 440.10 seeking production of Allens diaries
on the ground that they contained withheld Brady material. (H.T., 28). On the date of sentencing, Dodd
brought two very thick packets of copies of Allens diaries to the County Court asking the Court to review
them in camera. (H.T., 27). Over defense objection, the County Court agreed and thereafter denied
Thibodeaus post-verdict motions and sentenced him to an indeterminate term of 25 years to life in prison.
II.

New Evidence
During the past few years, Thibodeau discovered new evidence establishing the identity and

motives of three alternative suspects, who, acting in concert, were responsible for Allens abduction. The
new evidence establishes that Heidi Allen was forced into a van and abducted from the D&W by James
Steen, Roger Breckenridge, and Michael Bohrer, who transported her to Jennifer Wescotts residence, after
which Allen was neither seen nor heard from again.
While investigating this new evidence, Thibodeau also discovered that the People violated Brady
by withholding exculpatory material, Allens confidential informant (CI) file, specifically requested by
the defense prior to Gary Thibodeaus trial. At the time of the defense request, the prosecution denied the
existence of this evidence. The suppressed material also included reports showing that the Sheriffs
Department lost Allens CI file in a public place, thereby exposing Allen to harm from people in the
community who learned of her CI status.

16

A.

New evidence exonerating Gary Thibodeau is brought to the Peoples attention in


2013

As noted above, Gary Thibodeau was represented at trial by Joseph Fahey, who is now a retired
County Court Judge in Onondaga County, New York. Richard Thibodeau was represented at a separate
trial by William Walsh, also a retired County Court Judge in Onondaga County, New York.
Following Gary Thibodeaus jury verdict, Joseph Fahey requested the assistance of attorney Randi
J. Bianco with Thibodeaus post-trial motions and appeal. (H.T., 23). Since that time, Bianco has continued
to represent Thibodeau in both state and federal courts, seeking post-conviction relief on his behalf. (H.T.,
24, 28).
In 2012, Bianco left private practice and sold her law practice to two attorneys, one of whom used
to be an Assistant District Attorney for the Oswego County District Attorneys Office. (H.T. 22-23, 48,
50). The new attorneys kept Biancos law office telephone number. (H.T., 50). In February of 2013, a
woman called that telephone number seeking out Bianco with information about the Heidi Allen case.
(H.T., 49; A. 2059). The woman was directed to call Oswego County District Attorney Gregory Oakes
instead of Bianco. Id. Bianco learned of this diversion and sought the womans information from Oakes
who refused to release it to Bianco. Id. Bianco alerted Oakes to the ethical violations he was committing
through his withholding of information intended for Gary Thibodeaus defense attorney. (H.T., 51). Oakes
asked Bianco to allow his office to investigate the matter further. Id.
Oakes sent a letter to Bianco on June 6, 2013, with attachments, outlining the information he
received and collected since February of 2013. (A. 2410). The letter revealed Tonya Priest as the woman
who had tried to call Bianco four months earlier. (A. 2410). Priest told Oakes and the Oswego County
Sheriffs Department that three men, not including Gary or Richard Thibodeau, had abducted Allen from
the D&W on April 3, 1994. (A. 2417-19). These men were James Steen, Michael Bohrer, and Roger
Breckenridge. Id. Priest learned the information through James Steen who also told Priest that Roger
Breckenridges girlfriend, Jennifer Wescott, was a witness to the abduction after the fact. Id. Since Priest
grew up with Wescott, she was able to contact her to confirm Steens admissions. (A. 2420, 2432). During

17

a text message exchange, Wescott admitted to Priest that she helped destroy the van used to abduct Allen.
(A. 2437-2469).
With the supervision and monitoring of the District Attorneys Office and the Sheriffs Department,
Tonya Priest made a phone call to Wescott on March 2, 2013. (A. 2410-2413, 2506). The recorded call
included the following exchange:
Tonya Priest: But he [James Steen] just told me that him, Michael Bohrer and Roger had
taken Mikes van to the store and that they brought her to your house and he said that you
did flip out when they got there and I stuck up for you and I dont blame you for flipping
out . . . its not your fault you know so I knew a long time ago-I just didnt want you to
think I thought less of you.
Jennifer Wescott: Right . . .no, um in my own head dropped that shit . . . I dont know
probably about ten years ago. . . but it took me a while to get it gone.
Tonya Priest: How the hell, why did they even involve you, or even do this?
Jennifer Wescott: I dont know.
Tonya Priest: I mean you were young.
Jennifer Wescott: yeah that and the cocaine.
Tonya Priest: It was for cocaine. Yeah, sounds like the area. I dont know kiddo. I love
you and Im sorry this happened to you.
Jennifer Wescott: Yeah.
Tonya Priest: Roger put you through a lot and there is no reason for it Jennifer. You are
a good girl.
Jennifer Wescott: Well, maybe that is why he is sitting in Elmira where he needs to be
right now.
***
Tonya Priest: Did you even know that . . . this was Heidi that they brought there and that
this is what they were going to do?
Jennifer Wescott: Nah, uh uh
Tonya Priest: Had no clue, they just showed up with her? . . What a bad position for you
probably scared the shit out of you?
Jennifer Wescott: Well its not even - they didnt even bring her in the house, they made
her sit in the van.
***
Tonya Priest: Thats what he had told me and I mean as long as thats all you know and
everything then the only thing they said you did was junk the van with Roger then I really
18

wouldnt worry about anything. I mean you really had no part of it-its kind of sad that it
even happened. Is that why you guys went to Florida?
Jennifer Wescott: Uh huh . . . . Yup, We went to Florida before Jacob, right after . . . .
***
Tonya Priest: What did they do just leave her in the van when they got to your house?
Jennifer Wescott: Yeah.
***
Jennifer Wescott: It bothers me to talk about it. I wont lie to you but . . . .
Tonya Priest: Oh I know Hon, but thats why it bothers me its been bothering me since
Thumper told me and I was like no way Jennifer doesnt know she would have talked to
me and Vicki about because we were all very close.
Jennifer Wescott: I couldnt say anything about that-never to anybody-no nothing.
Tonya Priest: Why was it you didnt say anything because they scared you Hon?
Jennifer Wescott: Uh Yeah.
(A. 2372, 2506).
The recording corroborated Steens admissions to Priest. (A. 2372, 2506). Wescotts knowledge into
Allens abduction was exhibited through her statements to Priest that (1) she helped destroy the van used
to abduct Allen (A. 2375, 2506 at 6:50); (2) she pushed that stuff out of her mind a decade earlier and did
not want to think about it again (A. 2372, 2380, 2506 at 2:09-2:19, 13:22-13:40); (3) Allen was not brought
into her home or murdered in front of her (A. 2374, 2378, 2506 at 3:24-3:37, 8:10-8:20, 8:36-8:43); (4)
Allen was abducted because of cocaine (A. 2374); (5) she and Breckenridge were subpoenaed to testify at
Thibodeaus trial (A. 2506 at 10:34-10:54); (6) she and Roger Breckenridge fled to Florida after Allens
abduction (A.2375); (7) she would never disclose her knowledge about Allens abduction to the police
because she feared for her own life (A. 2376-77, 2506 at 6:00-9:00, 13:37); and (8) she wasnt willing to
do the investigators job by telling them what really happened because they would not give her a big
reward (A. 2378, 2506, 8:36-8:43).
The Sheriffs Department requested an interview of Wescott, which occurred on March 7, 2013
and was recorded. (A. 2410, 2507). After Wescott received the request, she sent a text message to Priest

19

asking her if she was a cop. (A. 2441). Wescott also sent text messages to Richard Murtaugh, the owner
of a junkyard, prior to being interviewed. (A. 2401, 2507 at 1:17:31-1:18:31).
Not knowing her phone call with Priest had been listened to by the Sheriffs Department, Wescott
denied making admissions to Priest about Allens abduction and provided a false alibi for Breckenridge.
(A. 2507 at 3:26-3:38, 5:24, 4:50-16:00, 31:19-31:25, 40:40-40:47, 41:50-41:53).
When Wescott learned Investigators had heard what she told Priest, she responded with outrage
(A. 2399-2400, 2507 at 40:58, 42:43-42:49); accused Priest of editing the recording (A. 2402, 2507 at
39:00-40:15); and claimed the idea that Allen was brought to her home in a van was the craziest fuckin
shit I ever heard in my life! (A. 2399, 2507 at 40:40-40:49). Wescott told investigators she wanted to
visit Steen, her former best friend, in prison to find out the truth about what happened to Allen. (A. 240809, 2507). Wescott also told investigators she contacted Richard Murtaugh about a van being destroyed at
his junkyard. (A. 2401, 2507 at 1:17:31-1:18:31). Wescott gave her cell phone to investigators and allowed
them to retrieve all of the text messages from her phone, including those between Wescott and Murtaugh.
(A. 2401, 2507 at1:17:31-1:18:31).
When confronted about Allen being in a van outside of her house, Wescott said, I dont know, I
dont know. I have nothing else to say. I have nothing else to say. (A. 2507 at 42:35-42:45). Wescott
asked if she was in trouble and Investigator Pietroski assured her she was not. (A. 2507 at 58:17). Wescott
was allowed to leave after signing a statement denying all knowledge about Allens kidnapping. (A. 2507
at 1:22-1:24, 2143). Prior to signing her statement, she expressed concern about signing a statement that
contradicted her recorded admissions. (A. 2409).
Oakess reference to Wescott in his June 6, 2013 letter to Bianco implied a basic denial of Priests
claims. For example, Oakes stated the following:
Ultimately, we made arrangements to have Priest make a monitored telephone call to
Wescott. Investigators from the Sheriffs Department subsequently interviewed Wescott
and obtained a written statement from her. She denied any knowledge about Heidi Allens
disappearance or death. She denied the allegations made by Priest.
(A. 2410-11).

20

The letter failed to mention that Wescott admitted in a secretly recorded conversation that Steen,
Breckenridge, and Bohrer brought Allen to her residence on the day of her abduction.
Michael Bohrer, James Steen, and Roger Breckenridge were also interviewed by Sheriffs
investigators in response to Wescotts admissions. Michael Bohrers interview was recorded and occurred
on March 21, 2013. (A. 2508). During this interview, Bohrer revealed (1) he lived down the road from the
D&W at the time Allen was abducted (A. 2508 at 4:13-4:17); (2) he was interviewed about Allens
abduction by the Sheriffs Department in 1994 (A. 2508 at 5:00-5:30); (3) his knowledge of Allens
abduction is different from what everybody else believes (A. 2508, :10); (4) he was obsessed with Allens
disappearance and collected memorabilia about the case that he stored in a box in his trailer (A. 2499-2503,
2508 at 20:35-20:54,30:50, 46:10); and (5) he had been waiting for a call from the law enforcement because
he knew I was going to pop up in the picture someday (A. 2508,10:40-11:00). Bohrer claimed he was
not capable of harming Allen because he has daughters Allens age and he is not prone to violence. (A.
2508 at 4:31, 27:50-27:55, 28:12, 28:50-29:01). Both Steen and Beckenridge were interviewed by Sheriffs
Investigators while they were serving New York State prison sentences for murder and grand larceny,
respectively, and both denied involvement in Allens disappearance. (A. 2159, 2496).
B.

New evidence concerning the Peoples suppression of Brady material

Bianco, unfamiliar with Wescott, retrieved Richard Thibodeaus trial file in July of 2014, to
determine if it contained any information about her. (H.T., 30-31). During the review of this file, Bianco
discovered memoranda written by Deputies Van Patten, Anderson, and Montgomery. (H.T., 32-37; A.
2342, 2343, 2344). These memoranda revealed Heidi Allen became a confidential informant for the
Sheriffs Department in 1991, and a confidential informant file was created for her that Deputy Van Patten
lost in the parking lot of the D&W, the very place Allen was employed and abducted. (A. 2342, 2343).
Neither Bianco nor Fahey had previously seen these memoranda. (H.T. 29-42, 139).
The defense also found the following items, never before seen by Bianco or Fahey, in Richard
Thibodeaus trial file. (H.T., 38, 47,139). The first item was an evidence inventory log sheet. (A. 2345).
It noted that Investigator Whipple stored one plastic bag with miscellaneous papers, a photograph, and a
21

1993 personal planner on shelf B-20 of the evidence room on May 23, 1995. Id. The second item was a
copy of a May 23, 1995 evidence tag located on the plastic bag. (A. 2347). The evidence tag on the plastic
bag described the evidence as miscellaneous papers, a photograph, and a 1993 personal planner that was
located in the Sheriffs Departments bulk evidence storage on May 16, 1995, at 10:30 a.m. Id. The third
item was a report created by Investigator Kleist on May 16, 1995 detailing that he and Investigator Yerdon
found paperwork that referred to [Allen] as a confidential informant which included a photograph of her,
names and numbers, a sheriffs departments card, and paperwork with drug information. (A. 2346). The
items were found in a box in the Sheriffs Departments garage. Id. Allens actual confidential informant
file was not included with these materials in Richard Thibodeaus trial file. (H.T., 47).
C.

Thibodeaus 440 motion

As a result of the newly discovered evidence, and the discovery of the Peoples ongoing
suppression of Brady material, Thibodeau moved in Oswego County Court on July 31, 2014, to vacate his
judgment of conviction pursuant to CPL 440.10(1)(b), (g), and (h). (A. 266). The Peoples Response in
Opposition to Thibodeaus 440.10 motion, dated October 10, 2014, included numerous exhibits, one of
which contained a copy of Allens confidential informant file. (A. 349, 605). The confidential informant
file consisted of a photograph of Heidi Allen, a 3 x 5 index card containing Allens name, address, social
security number, code name (Julia Roberts), height (59), weight (156 1lbs), eye color (blue), hair color
(brown). (A. 605). Allens left and right thumb print were on the card, dated December 11, 1991. Id. Also
included was a business card from the Oswego County Sheriffs Department. Id. The file contained
notations of names and numbers of people provided by Allen to the Sheriffs Department. (A. 606-608).
In their opposition papers, the People attempted to prove disclosure of Allens CI file by attaching
a May 17, 1995 cover letter from then-Chief Assistant District Attorney Donald Dodd, addressed to
attorneys Fahey and Walsh, stating, Pursuant to the Peoples on going duty to disclose, CPL 240.60, I
am providing with this letter copies of additional discoverable property obtained since my last disclosure
to you by letter dated April 25, 1995. (A. 603, 605-08). The mailing occurred six days before Gary

22

Thibodeaus trial and the disclosed material was not identified in the letter. Id. October 10, 2014 was the
first time Bianco had ever viewed Allens CI file. (H.T., 44-45).
Thibodeaus request for a 440 evidentiary hearing was granted by the Hon. Daniel King, Acting
Oswego County Court Judge, and was scheduled to begin on January 12, 2015. (A. 1353).
D.

The Peoples late document disclosure on the eve of Thibodeaus 440 hearing

Motion filings in connection with Thibodeaus 440 motion occurred between July 30, 2014, and
October 22, 2014. (A. 74-1084). The People attached 50 exhibits to their opposition papers. (A. 5241083). During a prehearing conference, the District Attorneys Office promised the Court that any
additional discoverable material would be timely provided to the defense prior to January 12, 2015. (A.
1353-54).
On Friday, January 9, 2015, the District Attorney asked the defense to meet at the Great Northern
Mall in Clay, New York, at 5:10 p.m. to receive additional discoverable material. (A. 1354). The total
disclosure amounted to 6.66 gigabytes of information, comprising 2,645 documents, 816 pictures,
approximately 13 hours of audio recordings, and 8 hours and 43 minutes of video recordings. (A. 1354).
The evidence contained in this disclosure spanned from June 2013 through January of 2015. (A. 1354).
Additional suppressed Brady material found within this disclosure included, among other things,
(1) a report from Chris Combes that Breckenridge admitted to burning Allen in a woodstove and taking her
remains to a junkyard owned by Richard Murtaugh (A. 1355); (2) an August 21, 2014 sworn statement
from Michael Depaolo that he heard Bohrer killed Allen and buried her in a swamp (A. 1355); (3) an August
4, 2014 recorded interview of Jennifer Wescott telling investigators that (a) Breckenridge told her Allen
was burned in a wood stove and taken care of in a van and (b) she received a warning from Breckenridge
through his sister to keep her mouth shut about Allen; (4) evidence that Wescott failed a polygraph
examination on August 11, 2014, regarding her knowledge about Allens abduction (A. 1356); and (5) a
recorded interview of Jonathan Barkley where he confirmed a Heidi? Ciao text message was sent from
his cell phone to Steens cell phone after Steen committed a double murder in 2010 (A. 1356).

23

Also contained within this voluminous material was a sworn statement provided by 79-year-old
Oswego County resident William Pierce, who provided an eyewitness account of Allens abduction. Pierce
shared this information with the Sheriffs Department in July of 2014.
On January 10, 2015, the Saturday before the start of the post-conviction hearing, Oakes contacted
defense counsel at 4:31 p.m., through email and fax, regarding Time Sensitive Brady material that was
included in the material provided on January 9. (A. 1338). Specifically, Ronald Clark told investigators
on October 30, 2014, that Steen admitted knowledge of Allens abduction, the Thibodeaus were wrongly
accused, and Allen was long gone to Canada. (A. 1339, 1342). This interview occurred 20 days after the
People filed their Opposition to Thibodeaus 440 motion. (A. 1349, 1340, 1342).
On January 11, 2015, the Sunday before the start of the 440 hearing, Oakes sent a second fax to
defense counsels office at 4:39 p.m., regarding urgent-Brady material asking defense counsel to READ
IMMEDIATELY regarding a July 28, 2014 Sheriffs interview of Chris Combes, which had occurred two
months before the People filed their Opposition to Thibodeaus 440 motion. (A. 349, 1345, 1350). During
this interview, Combes informed that Breckenridge admitted that he and others killed Allen, burned her in
a wood stove, and took her to Murtaughs junkyard. (A. 1350). Richard Murtaugh is the person Wescott
was texting prior to her March 7, 2013 police interview. (A. 2401, 2507 at 1:17:31-1:18:31).
E.

Thibodeaus 440 evidentiary hearing

Thibodeaus 440 hearing was held on January 12 - 16, February 3, 5 - 7, March 24 - 27, and April
7, 2015. Thibodeau called 35 witnesses and the People called 21 witnesses. As a remedy for the Peoples
late document disclosure on the eve of the hearing, the County Court, with the Peoples consent, removed
the due diligence requirement from Thibodeaus newly discovered evidence claim. (H.T., 18-19).
1.

Evidence establishing the Peoples suppression of Brady material


a.

Failure to disclose Brady material concerning Heidi Allens CI file


i.

The creation of Allens CI file by Deputy Van Patten and


Sergeant Lortie

24

On December 11, 1991, 16-year-old Heidi Allen became a confidential informant (CI) for the
Oswego County Sheriffs Department. (H.T., 1927-29). Sheriffs Deputy Christopher Van Patten and
Sheriffs Sergeant Roy Lortie met with Allen at her home and created her CI file. (H.T., 1927-30). During
this meeting, Deputy Van Patten took notes from Allen about illegal drug activity within Oswego County
and incorporated them into her CI file. (H.T., 1929). He kept Allens CI file in his patrol vehicle rather
than the required locked file at the Sheriffs Department. (H.T., 1929, 2287). Deputy Van Patten agreed
that the file contained highly sensitive information that would be incriminating for Allen if it fell into the
wrong hands. (H.T., 1929, 1934, 1950-51).
Deputy Michael Anderson met with Allen on a different date at the request of Deputy Van Patten
and Sergeant Lortie to obtain additional information about drug activity in Oswego County. (H.T., 197374). Deputy Anderson had no knowledge of the information Allen shared with Deputy Van Patten or the
fact that he had created a CI file for her. (H.T., 1982-83). Allens boyfriend, Brett Law, was present during
this meeting. (H.T., 1975-76). Deputy Anderson also agreed that exposure of Allens CI file to the public
would expose her to danger. (H.T., 1931, 1985-86).
Deputy Van Patten testified Allens CI status was the result of her uncle, Russell Sturtzs, personal
friendship with Deputy Van Patten. (H.T., 1927, 1936, 1944-45). Sturtz was a judge in the Town of New
Haven and he told Van Patten his niece wanted to share some information with the Sheriffs Department.
Id. Deputy Anderson testified in the same manner. (H.T., 1990).
ii.

Allens CI file is lost by Deputy Van Patten in the D&W


parking lot and found by Kristine Duell

Sometime between December 11, 1991, and January 23, 1992, Deputy Van Patten lost Allens CI
file in the D&W parking lot. (H.T., 1976-77; A. 2342, 2343, 2714). In April of 1992, Allen became
employed at the D&W and continued to work there up until the date of her abduction. (H.T., 1877; TT.,
1474). Owner Kristine Duell found Allens CI card. (H.T., 1877-78). Duell kept the card on her person,
claimed to have only told her mother about it, and ended up calling the Sheriffs Department on January

25

23, 1992, to turn the card in. (H.T., 1877-79, 1915; A. 2714). Despite knowing Allen for nine years before
employing her, Duell testified that she never told Allen she found her CI card. (H.T., 1899, TT., 1474).
iii.

Deputy Montgomery retrieves Allens CI file from the D&W


and omits Kristine Duells name from his report

Deputy Michael Montgomery retrieved Allens CI file from the D&W and left Duells name out of
his report. (H.T., 1934, 1966; A. 2342). Instead, he implies in his report that he was on routine patrol when
he stopped at the D&W and a person spontaneously supplied him with the compromised file. Id. Deputy
Van Patten instructed Deputy Montgomery to place Allens CI file in his mailbox at the Sheriffs
Department. (H.T., 1934-35; A. 2343). No investigation was ever conducted concerning the compromised
file. (H.T., 1939, 1950, 1954, 2002). Neither Allen nor her family, including Deputy Van Pattens close
friend, Russell Sturtz, were ever informed that her CI status had been exposed to the public. (H.T., 1950).
iv.

Kristine Duells name is absent from the Sheriffs


Departments complaint card documenting the recovery of
Allens CI file from the D&W

The Sheriffs Departments complaint card documenting Kristine Duells call about the lost CI card
does not include her name. (A. 2714). The complaint card itself was lost until January 23, 2015. (H.T.,
1093,1120; A. 2714). It was found during the 440 hearing after Michael Bohrer testified that he had prior
knowledge that Duell found Allens CI card in the D&W parking lot. (H.T., 594-95).
v.

Fahey asks for Allens CI file and the prosecution denies its
existence

Just before a December 8, 1994 pretrial motion hearing, Fahey learned Allen may have been a CI
for the Sheriffs Department through his review of a report created by Sergeant. Lortie on April 27, 1994.
(A. 2288, 2317-18). Sergeant Lorties report indicated he was alerted to Allens disappearance between
8:00 a.m. and 8:30 a.m. on April 3, 1994 when he remembered she was a CI. (A. 2286-87). Sergeant Lortie
informed Undersheriff Reuel A. Todd of Allens CI status and stated her CI file should be locked up in
Investigator Ralph Scrutons drug file. (A. 2287). Sergeant Lortie further informed Undersheriff Todd that
the file included names of dealers that Allen would have been involved with. Id. Investigator Scruton
could not locate Allens CI file, causing Sergeant Lortie to question Deputy Van Patten, Allens contact,
26

about its location. Id. Deputy Van Patten first claimed no memory of Allen but then called his office to
have someone retrieve the file from his mailbox and deliver it to the crime scene. Id. Sergeant Lorties
report makes no reference to the loss and recovery of Allens CI file. Id.
During the pretrial motion hearing Fahey demanded production of Allens CI file, stating:
The report that Mr. Walsh shared with me indicated there was a file in existence that was
brought to the scene of the D&W, but Mr. Walsh has not been given that particular file.
Thats what I would ask to be disclosed.
(A. 2318).
Chief Assistant District Attorney Donald Dodds first response to Faheys Brady demand was Judge, I
didnt realize that Mr. Fahey was going to argue on behalf of Mr. Walsh. (A. 2318). When the County
Court prodded Dodd further, he replied,
Judge, I have some information. I most certainly, again, will speak with Mr. Fahey. It
appears often times the first time I hear something is when I read it in the paper and in that
regard, Judge, that will create an issue I wish to address when we are through with this
particular motion, your Honor.
(A. 2319).
The Sheriffs Department, through Lieutenant Goodsell and Undersheriff Todd, officially denied
Allens CI status in a news report saying there was no formal file, because Allen was not really an
informant. (A. 2276-77). Undersheriff Todd stated Sergeant Lortie was thinking of a file he hadnt seen,
so he wouldnt have known if there were one or 100 cases involving Allen. (A. 2277).
vi.

The Sheriffs Department finds Allens CI file six days before


the start of Gary Thibodeaus trial in the Sheriffs
Departments garage

On May 16, 1995, six days prior to the start of Gary Thibodeaus trial, Allens CI file was found
by Sheriffs Investigators Kleist and Yerdon in a box the Sheriffs Departments garage. (H.T., 2243-2249,
2257-2258; A. 2346). Allens CI file had been stored in this location for over a year. (H.T., 2249; A. 2287,
2343, 2346). As set forth above, Investigator Kleist created a report on May 16, 1995 detailing this
evidence. (A. 2346). He and Investigator Yerdon found Allens CI file and turned it over to the evidence
custodian who stored it in the evidence room on May 23, 1995. (A. 2345-47). Gary Thibodeaus trial
began on May 22, 1995. (H.T., 39).
27

vii.

Gary Thibodeaus attorneys had never seen the December 9,


1994 memoranda, Allens CI File, or the Kleist report prior to
2013

Neither Fahey, Bianco, nor Robert Calver, the licensed private investigator hired by Fahey to assist
in the defense of Gary Thibodeau, had ever seen the December 9, 1994 internal memoranda documenting
the creation, loss, and recovery of Allens CI file; the Kleist report documenting the finding of Allens CI
file; or Allens CI file. (H.T., 29-42, 139, 175-176).
viii.

The creation and maintenance of the Sheriffs investigative


file

Sheriffs Department Investigator Terry Whipple was the custodian of all records in the Allen
investigation. (H.T., 1476, 1511-12, 1516, 1523, 1712). In order to keep track of the voluminous material
in the case, Investigator Whipple assigned lead numbers chronologically to documents and logged them on
a master lead sheet that contained all lead numbers. (H.T., 1479, 1512, 1520, 1530-1531, 1712; A. 2688).
The Sheriffs investigative file consisted of 5 boxes containing over 1500 leads. (H.T., 1634-35, 1714).
Investigator Whipple assisted Dodd in handling discovery matters and he became the liaison
between the defense attorneys and the District Attorneys Office and the Sheriffs Department. (H.T., 1481,
1489).
Investigator Whipple believed all leads were important in a case of this magnitude. (H.T., 1517).
Investigator Whipple never observed Allens CI file until May 23, 1995, and he never assigned a lead
number to it. (H.T., 1522-24, 1533-35; A. 2668). The Kleist report, received by the District Attorneys
Office on May 16, 1995, documenting the recovery of Allens CI file, did not contain a lead number. Id.
He also never assigned lead numbers to the December 9, 1994 internal memoranda of Deputies Van Patten,
Montgomery, and Anderson. (H.T., 1523-24, 1565-69, 1634; A. 2668). Investigator Whipple could not
recall if those documents were located in the file maintained by him. (H.T., 1565-69).
In another instance, Investigator Whipple had created a lead on June 23, 1995, that stated Heidi
Allen is a snitch written on the wall of a bathroom at the Junius Pond rest area on the New York State

28

Thruway. (H.T., 1545, 1548; A. 2610-11). Gary Thibodeaus trial had ended four days prior and
Investigator Whipple did not know if this lead was turned over to the defense. (H.T., 1547, 1549).
ix.

The People claim disclosure of the December 9, 1994 internal


memoranda on December 14, 1994

Dodd testified that he was particularly careful about discovery matters to insure that we had a
systematic, organized, verifiable way to demonstrate in the event this day came to be able to point back
in time to twenty years ago . . . with a measure of reliability to this judge the procedure that was in place
for the purposes of demonstrating that the documents in fact were photocopied, reproduced in their entirety
and turned over to attorneys Fahey and Walsh. (H.T., 1786).
Dodd claimed a one-time disclosure of the December 9, 1994 internal memoranda of Deputies Van
Patten, Montgomery, and Anderson to Fahey on December 14, 1994. (H.T., 1659, 1670, 1731). This
occurred six days following the pretrial motion hearing, where Fahey demanded production of Allens CI
file. (A. 2317-19). Fahey was at the District Attorneys Office to review the prosecutions evidence against
his client and to obtain a copy of the Sheriffs investigative file. (H.T., 1659, 1670, 1731). Prior to this
December 14, 1994 meeting, the District Attorneys Office had created three reproductions of the Sheriffs
investigative file for Fahey, Walsh, and the Oswego County Court. (H.T., 1638, 1640).
Before the file was reproduced, Dodd created handwritten notes to account for all material
contained within the five boxes of discovery for the purpose of being systematic and organized in an effort
to verify the contents of the boxes and what was being reproduced for the defense attorneys. (H.T., 2039,
2046, 2051; A. 3116). Dodds twenty-two pages of notes were meticulous, referencing start to finish on
each box. (A. 3116-3143). There were 38 specific Brady references throughout the notes. (H.T., 2042-43;
A. 3116-3143). Although Dodd testified that the December 9, 1994 memoranda were Brady material, his
notes make no reference to these memoranda. (H.T., 1670, 2069; A. 3116-3143). Dodd claimed they were
included on page 4 of his notes under the police reports notation. (H.T., 2053-2054, 2058; A. 3119). The
top of that page is dated, 12/5/94, which predates the creation of those memoranda. (H.T., 2039-40; A.
3119, 2342, 2343, 2344). Additionally, there is no Brady notation next to police reports. (A. 3119).

29

The December 14, 1994 meeting was documented by Dodd in a letter to Fahey, dated December
21, 1994. (A. 2361). Dodds letter stated Fahey received a copy of the Sheriffs investigative report,
consisting of five cardboard file boxes, on December 14, 1994. (H.T., 1640-1647; A. 2361). Dodds letter
referred to the December 8, 1994 pretrial motion hearing but makes no mention of Faheys specific request
for Allens CI file. (H.T., 1640-47; A. 2362). Dodd pointed to more than two hundred possible items of
Brady material contained within the five boxes. (A. 2363-65).
Missing from the list of thirteen Oswego County Sheriff Department personnel are Deputies Van
Patten, Montgomery, and Anderson. (H.T., 1723-1725, 20176; A. 2363-65). Dodd claimed the portion of
his letter stating, In the motion presently filed in County Court, you demanded all, Brady material. You
presently are in possession of, Oswego County Sheriffs Department criminal investigation report relative
to the facts and circumstances involving the kidnapping of Heidi Allen. To the extent that there is any
potential evidence or information property that may in fact or may tend to be exculpatory, it is included
meant the December 9, 1994 memoranda were included. (H.T., 1723-1726; A. 2363). This portion of
Dodds letter appears before the two hundred specific Brady items listed in the letter. (A. 2363-65).
x.

Dodds procedure with respect to shared documents

When documents in the Allen investigation were shared between the District Attorneys Office and
the Sheriffs Department they were required to have a received date stamp from each office. (H.T., 171517). First, when a document was received by the District Attorneys Office, it was date stamped received
by the District Attorneys Office and made the original document for the file. (H.T., 1663, 1678-79,
1715-17, 2025). Second, the document was then hand-delivered to Investigator Whipple at the Sheriffs
Department to receive a date stamp from that office. (H.T., 1663, 1678-79, 1715-17, 2025). Dodd insisted
with 100% certainty that all documents in the Heidi Allen investigation were handled in this manner.
(H.T., 1717-18). Although he testified he viewed them, the December 9, 1994 internal memoranda do not
contain a received date stamp from the District Attorneys Office. (H.T., 1666-69, 1725, A. 2342, 2343,
2344). They do have a date stamp from the Sheriffs Department. (A. 2342, 2343, 2344).

30

Dodd testified he had his own copy of these memoranda but wrote only on Deputy Van Pattens
memorandum, my copy on the top in red ink and H-A, meaning Heidi Allen. (H.T. 1666; A. 290810). He also wrote on Deputy Van Pattens memorandum, Brady, C-C, carbon copy, and T-O-T,
(turned over to), at the top of the page. (H.T. 1666-69; A. 2908). There is no indication on the document
as to when it was turned over. (A. 2908).
xi.

Attorney Walsh moved for sanctions against Dodd after


December 14, 1994 based on the Peoples disclosure violations

Attorney Walsh filed a pretrial motion after the December 14, 1994 disclosure seeking production
of more than one hundred lead sheets that were not provided on that date. (H.T., 1787-1799; A. 2612,
2622). Walsh also moved for sanctions against Dodd based upon disclosure violations under Rosario and
CPL 240.44, with respect to both defendants. (A. 2639). Walsh noted that Dodd had represented to the
court that everything, would be provided to the defense, when in fact Dodd had not done so as of January
13, 1995. (A. 2640-41, 2644) (emphasis in original). Dodd s answer to Walshs motion claimed 62 out
of Walshs 113 lead sheet requests had already been provided. (H.T., 2027, 2062; A. 3032, 3043, 3046).
xii.

Dodds May 17, 1995 claim of simultaneous disclosure of the


Kleist report and Allens CI file to Fahey and Walsh

Dodds first claim of disclosure of the Kleist report and Allens CI file revolves around his May
17, 1995 cover letter addressed to attorneys Fahey and Walsh, sent with unnamed attachments through U.S.
Mail. (H.T., 1674; A. 2348). According to Dodd, the disclosure to Fahey and Walsh was simultaneous and
the unnamed attachments were Investigator Kleists report along with Allens CI file. (H.T., 1674, 1866;
A. 2348). There is no response in the trial record from Fahey regarding receipt of evidence on the eve of
trial that he specifically requested on December 8, 1994.
The Kleist report offered by the People in support of Dodds May 17, 1995 claim of disclosure does
not match the Kleist report found in Richard Thibodeaus file. (A. 2346, 2349). Richard Thibodeaus
Kleist report contains two date stamps, one is marked received May 16, 1995 by the District Attorneys
Office and the second is marked received May 23, 1995 by the Sheriffs Department. (A. 2346). The
presence of the May 23, 1995 date stamp on Richard Thibodeaus Kleist report does not allow for a May
31

17, 1995 mailing. (A. 2346, 2348). Dodds Kleist report also did not comply with Dodds document
procedure, which required a date stamp from each office. (H.T., 1715-18). Additionally, Richard
Thibodeaus Kleist report contained handwritten notes made by Investigator Kleist (re: OCSD evidence,
R. Thibodeau, G. Thibodeau, Inv. Kleist) that are absent from Dodds Kleist report. (A. 2346, 2349).
Allens CI file was not located in Richard Thibodeaus trial file. (H.T., 41-42).
xiii.

Dodds June 5, 1995 second claim of disclosure of the Kleist


report and Allens CI file

Although Dodd testified that he never duplicated discovery, he offered a second disclosure of the
Kleist Report and Allens CI file to Fahey, occurring on June 5, 1995 one day prior to the People resting
their case. (H.T., 1681, 1731, 1748-49). Dodds purported evidence is a June 5, 1995 cover letter,
referencing unnamed attachments, he hand-delivered to Fahey at the courthouse. (H.T., 1681, 1684-85,
1689, 1691, 1866-67; A. 2914). This claim of disclosure brought forth a third version of the Kleist report,
also different from Richard Thibodeaus Kleist report. (A. 2346, 2349, 2761). This Kleist report contained
only one date stamp, marked Received, May 23, 1995, Oswego County Sheriffs Department. (H.T.,
2101; A. 2761). The May 23, 1995 date stamp is in a different location on this Kleist report than the May
23, 1995 stamp on Richard Thibodeaus Kleist report. (H.T., 2101; A. 2346, 2761). Dodd stated he never
brought Allens CI file with him to Gary Thibodeaus trial. (H.T., 2110).
Fahey testified that if he had been provided with these documents days before and/or during trial,
he would have raised holy hell about it. There would have been sanctions and he would have moved for
a mistrial. (H.T., 962).

The trial record does show Fahey strenuously objecting to late disclosure of a

different report from Investigator Kleist on June 6, 1995. (T.T., 3093-94).


xiv.

Fahey would have used the CI evidence to show the motive of


other suspects to harm Allen and to discredit the jailhouse
informants testimony

Had Fahey known about Allens CI status, and the exposure of that information to the public, he
would have argued at trial that people other than the Thibodeaus had a motive to harm her. (H.T., 144-45,
970). Fahey testified this evidence was especially important because the People had no apparent motive as

32

to why the Thibodeaus wanted to harm Allen, other than Dodds summation about a possible drug deal that
only the jailhouse informants testified about. (H.T., 145). Additionally, Fahey noted that Allens CI status
would have discredited the jailhouse informants testimony that Allen was involved in a drug deal with the
Thibodeaus because a CI working for law enforcement is not allowed to engage in criminal activity. (H.T.,
939). Fahey stated that the CI evidence, in conjunction with Allens diaries, which do not mention either
Richard or Gary Thibodeau, would have cast doubt on the Peoples case. (H.T., 144).
b.

Evidence pertaining to Allens CI status the defense was not permitted


to develop during the evidentiary hearing

On April 7, 2015, the County Court declared an official recess of the 440 hearing. (H.T., 2422; A.
1889, 1890). During the recess, the defense learned of additional evidence pertaining to his Brady violation
claim, specifically how Allen truly became a CI for the Sheriffs Department. The defense learned Allens
cousin, Melissa (Searles) Adams, had possession of a bracelet she gave to Allen prior to her abduction. (A.
1812-27). This bracelet was engraved Heidi on the front and Love Missy on the back. (A. 1815, 1824,
1860). Adams brought this to the attention of the defense after reading a newspaper article on Syracuse.com
that contained Michael Bohrers notes about the Allen investigation where he referred to Allen hiding a
bracelet in the vehicle used to abduct her. (A. 1813-14, 1819, 1824-25).
The notes were significant to Adams because she spoke to people about the bracelet she gave to
Allen and wondered if she was wearing it when she was abducted. (A. 1826). Adams recalled Bohrer
being present during these discussions about the bracelet. (A. 1826). Years later, the bracelet appeared in
her mailbox in a plain white envelope. (A. 1825-26). Thibodeau made two requests to the County Court
seeking permission to call Adams to testify at the evidentiary hearing that were denied. (A. 1812-1827).
In response to the defense request to call Adams, the People sent Sheriffs investigators to speak to
Adamss family members. (A. 1828-30). Martha Sturtz, the wife of Russell Sturtz, Deputy Van Pattens
personal friend, was interviewed at her home on September 8, 2015. (H.T., 1927, A. 1829, 1874).
According to Martha Sturtz, Allen was confronted by the police when she was 15-years-old for
leaving a child alone in her car while she was at a booze party. (A. 1874 at 8:25-8:39). Allen was facing

33

criminal charges until Judge Russell Sturtz intervened on her behalf and asked the Sheriffs Department if
she could avoid criminal charges by becoming an informant. (A. 1874 at 8:44-8:55). An agreement was
reached and a Person In Need of Supervision (PINS) Petition was filed allowing Allen to live with her
parents under certain conditions. (A. 1874 at 8:57-9:03). The arrangement was not working out, and Allen
moved in with her grandmother. (A. 1874 at 9:03-9:08). This is where Allen was living at the time of her
abduction. (A. 1874 at 9:25-9:30; T.T., 1163-66, 2156, 2171). Martha Sturtz revealed that the negotiated
deal was all connected to drug stuff Allen became involved in and she got into all this trouble. (A. 1874
at 9:40-9:49).
Deputies Van Patten and Anderson omitted Allens legal troubles from their December 9, 1994
memoranda and their 440 hearing testimony. (H.T., 1927, 976; A. 2343, 2344).
The defense attempted to offer evidence showing the continuity of Allens CI work with the
Sheriffs Department through Rhonda Burr. (A. 1875). Rhonda Burr, Allens co-worker at the D&W,
stated Allen spoke to her about her CI work and she feared for her safety. (A. 1876-77). Deputies Van
Patten and Anderson testified Allen was not an active informant at the time of her abduction. (H.T., 1953,
1957-1958, 1976, 1978).
The County Court denied Thibodeaus requests to call Sturtz and Burr in a Decision and Order
issued on November 2, 2015. (A. 1888). The County Court held that Burrs testimony is irrelevant and
immaterial because [i]t has already been established at the hearing that Ms. Allen was a confidential
informant. (A. 1907). Likewise, the County Court, again noting that [i]t is undisputed Ms. Allen was an
informant prior to her disappearance, denied Thibodeaus motion to introduce any and all evidence
concerning the PINS Petition and Sturtzs knowledge of how Allen became a CI. (A. 1906, 1907).
2.

Newly Discovered Evidence Concerning Alternative Suspects

During the 440 hearing, Thibodeau introduced evidence disclosed by the People and obtained
through an independent defense investigation. The newly discovered evidence portion of Thibodeaus
motion was based on the two new accounts of Allens abduction provided by William Pierce and Jennifer
Wescott. To these new accounts, Thibodeau offered evidence establishing that the three new suspects were
34

connected through a local junkyard owned by Richard Murtaugh and through the use and distribution of
drugs. Additional corroborating evidence was provided through incriminating statements the suspects made
to other individuals and during the hearing. Finally, Thibodeau proffered (though was not permitted) to
introduce evidence establishing Michael Bohrers involvement in Allens abduction.
a.

Direct observations of Allens abduction

Thibodeau called both William Pierce and Jennifer Wescott to testify about their newly discovered
accounts of Allens abduction.
i.

William Pierce

During his testimony, Pierce revealed on the morning of April 3, 1994, he drove past the D&W on
his way to check on his trailer located at Brennans Beach. (H.T., 974). He was at the intersection of
Routes 104 and 104B when he observed a white van with a lot of rust on the side of it, outside of the
D&W. (H.T, 975). This van was not Richard Thibodeaus van. iv (H.T., 977, 1042; A. 2608). There was
a man located in the drivers seat and a woman standing next to the driver on the outside of the van.
(H.T., 977). The woman was wearing a black or navy blue puffy jacket v and the man had a beard, dark
hair, and was husky. (H.T., 986-88, 1043). Pierce believed they were arguing because the woman walked
away from the driver toward the front of the van and toward the gas pumps. (H.T., 976). The driver exited
the van, walked to the front of the van, came up behind the girl and hit her behind the right ear on the base
of her neck with his fist. (H.T., 976). The girl folded like a rag doll. (H.T., 976). The man caught her
before she hit the ground. (H.T., 976). A person in the passenger seat opened the door on the passenger
side of the van. (H.T., 976.). At this point, traffic started to move and Pierce drove away. vi (H.T., 977).
Pierce provided this information to the Sheriffs Department in July of 2014, after reading a
newspaper article that indicated a member of the Sheriffs Department continued to be bothered by Allens
disappearance. (H.T., 976).

Back in 1994 or 1995, Pierce believed Thibodeau was the abductor after

drawing a beard on his picture and thinking he looked close enough. (H.T., 1005). Pierce had faith in
the Sheriffs investigation and figured they knew more than he did. (H.T., 976). When he read that the
law enforcement officer was still concerned, Pierce wanted to put his mind at ease. (H.T., 976-77). He
35

attempted to do this on July 25, 2014, when he provided a sworn statement to Investigator Pietroski. (H.T.,
1006). He was not shown a photo array of any suspects during this initial interview. (H.T., 978).
After his interview with Investigator Pietroski, Pierce observed James Steens photograph in the
newspaper and realized he had made a terrible mistake regarding Allens true abductor. (H.T., 1032-34).
Pierce immediately realized that James Steen was the man he saw hit Allen outside of the D&W, not Gary
Thibodeau. (H.T., 977-78, 1034). He wanted to rectify his mistake as soon as [he] possibly could and
he called the Sheriffs Department on July 30, 2014. (H.T., 977, 1032-34, 2219).
Investigator Pietroski responded to Pierces urgent message three months later on October 28, 2014.
(H.T., 2219). It took him three months because he was trying to find a photograph of James Steen from
1994. (H.T., 2219). This photo array included a 1988 photograph of a youthful, baby face image of
Steen without facial hair. (H.T., 2219, 2222-23). Pierce did not recognize this image as Steen. (H.T., 978,
2219). Despite Pierces description of the van he observed outside the D&W that morning, Investigator
Pietroski failed to show Pierce a photograph of Richard Thibodeaus van. (H.T., 1041-42). However, Pierce
confirmed during his testimony that he did not see Richard Thibodeaus van on the morning of Allens
abduction. (H.T., 977).
ii.

Jennifer Wescott

Thibodeau also introduced the newly discovered account of Jennifer Wescott. With consent of the
People, Thibodeau offered Oakess June 6, 2013 letter and attachments. (A. 2410). As noted above, this
included, among other things, Tonya Priests statements and the recorded conversation between Priest and
Wescott, in which Wescott admitted that Steen, Breckenridge, and Bohrer brought Allen to her home on
the morning of her abduction and made her wait in the van. (A. 2410-2518). At the 440 hearing, Wescott
continued to repeat her recantation of these admissions, claiming that she told a lot of lies to Priest, that she
has never lived on Rice Road, and had not met Steen, Breckenridge, and Bohrer prior to Allens abduction.
(H.T., 1324, 1364, 1394, 1408-1409).
Thibodeau introduced evidence undermining Wescotts recantation and supporting the
involvement of Steen, Breckenridge, and Bohrer. For example, Wescott acknowledged that after the
36

Sheriffs Department showed up at Breckenridges mothers house in Parish and interrogated him in 1994,
Breckenridge told her Allen was burned in a woodstove and taken care of in a van. (H.T., 1383-84, 141819). She kept quiet about Breckenridges admission for 20 years because she didnt want family drama
for her children. (H.T., 1384).
Additionally, in June of 2014, Wescott communicated with Carl Robinson through Facebook and
discussed the disappearance of Allen. (H.T., 1365). Wescotts recorded conversation with Priest had been
published in the newspaper and she wrote to Robinson that she would not be the next one dead in a box in
the woods for running her mouth off. (A. 215). A month later, Wescott wrote Robinson again and directed
him not to tell anyone she ever lived on Rice Road or fled to Florida after Allen was abducted. (A. 217).
Wescott confirmed communicating with Robinson on Facebook, but denied sending these responses,
claiming others had access to her Facebook user name and password. (H.T., 1365-68).
Moreover, in September of 2014, Wescott admitted through a text message to Joe Storto that she
had given a false statement to the police. (H.T., 1356-57; A. 1149-1163). During this conversation she
said Thibodeau was going to get a new trial, but she would have to plead the Fifth in order to stay out of
prison. (A. 1155-57). She told Storto she did sign a false statement, but District Attorney Oakes was trying
to protect her. (H.T., 1358; A.1160). However, Wescott acknowledged what the judge says goes and
they cant charge her with anything until a decision is made. (A. 1160). During her testimony, Wescott
tried to suggest these statements referred to a 2008 conviction for a false statement pertaining to a stolen
washer and dryer. (H.T., 1357).
Thibodeau also introduced evidence establishing Wescott lived on Rice Road. Although denying
the fact at the 440 hearing, Breckenridge admitted that Wescott lived on Rice Road in a recorded interview
conducted prior to the significance of the address being made public. (H.T., 335-36; A. 1125-26, 1147).
In addition, Deborah Vecchio, who has lived on Rice Road for forty years, confirmed Wescott lived on
Rice Road in 1993 or 1994. (H.T., 1192, 1197, 1201). Vecchios father has owned the property next to
her on Rice Road since 1990 or 1991. (H.T., 1193). During the winter months, Vecchios father lived in
Florida and she would assist him with tenants renting a trailer on his property. (H.T., 1193). In 1993 or
37

1994, Wescotts mother rented the trailer on her fathers property. (H.T., 1203). Wescott had been staying
in the trailer, and Vecchio confronted her due to the number of cars in the driveway at different times of
the day and night. (H.T., 1203). Wescott was told the trailer had been rented to Wescotts mother, not her,
and she had to vacate the premises. Id. Breckenridge was present during this confrontation and Vecchio
was afraid of him. (H.T., 1203-04).
The People called Darcy Purdy to testify that she and her boyfriend, Thomas Rathbun, resided in
the trailer for four consecutive years beginning in 1992. (H.T., 2140-2151). The evidence established that
Purdy did sign a five-month lease dated December 1992 through May 1, 1993.vii (H.T., 2158; A. 2589).
Purdy claimed that the elder Walter Rice and his girlfriend moved in with her and Rathbun when they
returned from Florida. (H.T., 2158). Purdy acknowledged that she did not know Rice or his girlfriend but
suggested they lived with her in the trailer while she continued to pay rent. (H.T., 2162). Purdys claim
was contradicted by the testimony of Darron Vecchio, who assured the County Court that his grandfather,
Walter Rice, would never have moved in with a tenant. (H.T., 2382). Moreover, Deborah Vecchio testified
that her father returned from Florida in April or May 1993 and he wanted Purdy out of the trailer because
they caused a lot of damage. (H.T., 1197). Brian Mensch also testified that in late 1993 into early 1994 he
rented the apartment from Vecchio located on the same Rice Road property as the trailer, and when he was
living in the Rice Road apartment the trailer was vacant. (H.T., 1285).
Finally, Thibodeau offered evidence concerning a collapsed cabin located off of Rice Road at which
three cadaver dogs indicated the presence of human decomposition. (H.T., 528, 531-39, 558, 2185-86; A.
2582-2588). After a New York State Police Cadaver dog alerted on a location at the site, a forensic dig
was conducted on July 29, 2014. (H.T., 2185-86, 2192). Neither the Sheriffs Department nor the forensic
examiner conducting the dig had any training in this area. (H.T., 2200-02). They did not find human
remains in their three-day investigation, and they failed to test the soil for chemical traces of human remains.
(H.T., 2204).
The defense obtained assistance from the Massasauga Search and Rescue Team to conduct an
independent canine (K-9) cadaver search of the area. On October 23, 2014, Kathryn Bamford and Dana
38

Malabar brought their trained cadaver dogs to the collapsed cabin off of Rice Road. (H.T., 528).

K-9

Hawk, trained in the detection of charred human remains, detected human decomposition twice at the site.
(H.T., 533-34; A. 2582). K-9 Libby, who was kept away during K-9 Hawks search, indicated at the same
location as K-9 Hawk. (H.T., 539).
b.

Evidence establishing the new suspects were connected in 1994

Thibodeau offered evidence establishing that the new alternative suspects all lived in the New
Haven area and were connected through a local junkyard owned by Richard Murtaugh and through the use
and distribution of drugs. For example, Brian Mensch, who has lived in Oswego County since 1981,
testified that he has known James Steen on and off for twenty years. (H.T., 1290). In 1992 or 1993, he
purchased marijuana from James Steen. Id. Mensch has known Breckenridge for the same amount of time
and also purchased marijuana from him. (H.T., 1291). Mensch knew Michael Bohrer as the local
computer guy, and he would bring his computers to Bohrer for repair. Id. Bohrer sold Mensch marijuana
at Medspars, the company owned by Bohrer in Parish. Id. Steen acknowledged being an acquaintance of
Breckenridge in 1994 and admitted they smoked weed together. (H.T., 224-25). Steen smoked weed
with and sold marijuana to a lot of people. (H.T., 225,249). Moreover, as set forth above, Steen,
Breckenridge, and Bohrer each admitted to using or distributing drugs in 1994. (H.T., 222, 224, 225, 250,
321, 590, 640, 762, 1054, 1078, 1290, 1291, 1293, 1331, 1387, 1388, 1468; A. 1540).
Thibodeau elicited additional testimony establishing that the alternative suspects were acquainted
with one another in 1994. Earl Russell lived in Oswego County between 1991 through 1993. (H.T., 145455). He was employed by Tom Martin between 1988 and 1993, as was Breckenridge. Id. Russell also
knows Steen through a family relationship; Steen is the cousin of Russells wife. (H.T., 1456, 1458).
Russell met Michael Bohrer through Tom Martin. (H.T., 1456, 1458). Prior to 1993, Russell was at a party
at Tom Martins residence when Breckenridge was asked to leave with underage-Wescott because he was
serving her alcohol. (H.T., 1457-58).
Moreover, evidence introduced at the 440 hearing established that at the time of Allens abduction,
Steen, Breckenridge, and Bohrer were all connected to Richard Murtaugh, who owned a junkyard near the
39

D&W. (H.T., 217, 321, 459). Steen regularly hauled scrapped vehicles for Murtaugh (H.T., 284-85),
Bohrer scrapped vehicles for Murtaugh (H.T., 459), and Breckenridge confirmed that he worked for
Murtaugh beginning in 1994. (H.T., 321). Wescott considered Murtaugh a family friend and has known
him for over 38 years. (H.T. 1342, 1395).
Wescott spoke to investigators about Murtaugh during her recorded March 7, 2013 interview and
admitted she sent text messages to Murtaugh about a van being junked at his junkyard prior to her interview.
(A. 2401, 2507 at 8:30-8:40, 43:38-44:24). The recorded interviews show Investigators taking possession
of Wescotts cell phone with her permission and retrieving text messages from her phone. Id. All text
messages taken from Wescotts cell phone were provided to the defense except for the text messages
between Wescott and Murtaugh. (H.T., 11-14). The defense demanded production of the missing text
messages. Id. When the County Court told the People that it was odd that pictures had been taken of
those text messages, and for some reason all text messages that were before and apparently text messages
after exist, but the photos of those actual text messages do not exist, the People agreed. (H.T., 12-14).
The People claimed to have said to Investigator Piestroski, if we have screen shots of everything else, why
not that? (H.T., 12). The unexplained missing text messages have never been produced.
c.

Incriminating statements made by the new suspects


i.

James Steen

Six witnesses directly heard James Steen admit to either killing Allen or helping to dispose of her
body after she was killed. As set forth above, Steen provided a detailed account of his involvement to
Tonya Priest in 2006, when he admitted that he, along with Breckenridge and Bohrer, abducted Allen from
the D&W, brought her to Wescotts residence on Rice Road, carried her body through a field, and buried
her remains in a nearby cabin. (A. 2417-19). Steen repeated details of that admission to Megan Shaw later
in 2010. (H.T., 759, 761). Ronald Clarke testified that Steen was at his house a few years following Gary
Thibodeaus conviction and Steen said, shes long gone now . . . shes gone to Canada and I know more
about the Heidi Allen case than the Oswego County Sheriffs, they got the wrong guys. (H.T., 1051).
Joseph Mannino, who had known Steen for more than ten years, testified that Steen told him in 2011 that
40

the Thibodeaus had nothing to do with Allens abduction, that Allen was a rat, and that Steen destroyed
the van used in her kidnapping by hauling it to Canada and having it scrapped. (H.T., 640-42). Amanda
Braley overheard Steen admitting to being involved in Allens kidnapping when he said, Im not afraid to
go to prison, Ill go for anybody . . . . I can, however, tell you I will never see a day in prison for what we
did to Heidi. (H.T., 673).
On September 12, 2010, after Steen murdered his wife and another man, he received a text message
to his cell phone from Jonathan Barkleys cell phone that asked, Heidi? Ciao. (279, A. 2520, 2552).
Barkley testified that when he woke up the morning of the murders, he saw news accounts of Steens arrest.
(H.T., 1181). Barkley called Steens cell phone, but Steen did not answer. (H.T., 1182). One minute later
a text message was sent from Barkleys cell phone to Steens cell phone with the above text. (H.T., 279,
1184; A. 2552). Barkley admitted making the phone call, but denied sending the text message that came
from his phone a minute later, even though Barkley was the only person in the house when these events
took place. (H.T., 1181-83).
In response to being questioned about killing and disposing Allens body, Steen provided the
following testimony concerning the destruction of Allens body:
Knowingly I wasnt, but if I drove that truck up there, then I guess I was the one that hauled
it, but I had nothing to do with getting to doing it. I didnt know it was on my load is what
Im saying. I did not expect my inspect my load. I picked up a load of crushed cars, took
them to Canada. I was driving a step deck trailer. I backed up in front of the shredder.
Thats where I had to back up in front of. If I would have had a high flat on, they would
have taken the cars off and stacked them in the yard because the yard was full of cars, but
since I had a step deck trailer and all the cars were uneven, they cant pull them off in neat
stacks, the crane unloaded it.
(H.T., 284-285).
Steen said he did not know he disposed of Allens remains until after it was done. (H.T., 290). He learned
from Breckenridge that Allens remains were in the van he hauled to Canada. (H.T., 286).
ii.

Roger Breckenridge

Since Allens abduction, Roger Breckenridge was overheard making incriminating statements to
several people. For example, even before Priest provided sworn statements in 2013, Jessica Howard, who

41

is married to Andrew Howard, Breckenridges nephew, contacted the Sheriffs Department on August 8,
2011 to tell them she heard Breckenridge say Allen was a rat and she would never be found. (H.T., 1142,
1149-50; A. 2607). Howard testified that Allen was going to break Breckenridge or have him arrested
for selling drugs. (H.T., 1154). Similarly, Breckenridge said to Chris Combes, [w]e chopped her up, we
put her in a wood stove and put her in a vehicle and sent her to Canada. (H.T., 1131). Brittany Johnson,
who socialized with Breckenridge between 2009 and 2011, heard him say about Allen in 2011, that bitch
is long gone as he pointed his beer up to the sky. (H.T., 1465). In 2003, while Amanda Braley was at
Jennifer Wescotts parents house, she heard Breckenridge say about Allen, he took that bitch to the scrap
yard in the van, they had it crushed, and that she was shipped to Canada. (H.T., 670-71). Wescott
chuckled. (H.T., 671). Breckenridge swung his arm up behind him and pointed to the northern direction
of the sky and he said, See you, bye, as he left. Id. Wescott slapped Roger and said, You shouldnt be
talking about that shit, Rog. Id. Breckenridge responded, What, Jen, its done and over with, and besides,
nobodys ever going to find her. Id.
At the 440 hearing, Breckenridge denied knowing Steen, Wescott, and Bohrer prior to Allens
abduction and denied involvement in Allens abduction.

However, Breckenridge admitted reading

newspaper stories about Thibodeaus 440 motion. (H.T., 396). As a result, he sent a message to Wescott
through his sister Emmie West to tell Wescott to shut the fuck up about Heidi Allen. (H.T., 397). When
asked why he sent that message, he stated, I plead the Fifth Amendment on that. (H.T., 399).
iii.

Michael Bohrer

Thibodeau offered incriminating statements Bohrer made to Tyler Hayes and Danielle Babcock.
On November 29, 2000, Tyler Hayes called the Sheriffs Department to report statements made by Bohrer
at the Liberty Bell Tavern on that date regarding Allens abduction. (H.T., 200-201; A. 2370-71). Bohrer
was telling others that he had information about the Allen case, the Thibodeaus were not involved, and he
knew who killed Allen and where her remains were located. (H.T., 200, 201. 209). The Sheriffs
Department never responded to Hayess call. (H.T., 202). Danielle Babcock worked for Bohrer in 2001 for

42

approximately six or seven months but quit because Bohrer constantly threatened to do to her what he had
done to Heidi Allen. (H.T., 633-36).
At the 440 hearing, Bohrer denied any involvement in Allens abduction. However, he confirmed
that at the time of Allens abduction, he lived at Spinners Hotel, located at the corner of County Routes 6
and 104B, less than half a mile from the D&W. (H.T., 415-16, 440). Bohrer went to the D&W every day
and Allen would often make him sandwiches. (H.T., 416-17).
Bohrer also admitted that he conducted an investigation into the disappearance of Heidi Allen.
He set up a business called the Little Fix-it Shop directly across from the Heidi Allen Command Center.
(H.T., 440). He acknowledged that he became consumed with the facts underlying Allens disappearance
and conducted interviews and compiled documents about the case. (H.T., 472). The materials he wrote
and collected were found in a box in the recreational vehicle he resided in more than twenty years after her
abduction. (H.T., 423, 492; A. 2500-03). He kept copies of court records, newspapers, and pictures of
Allen. (A. 2500-03). For example, Bohrer possessed all three statements from Christopher Bivens, who
claimed to have witnessed Allens abduction. (H.T., 472, A. 2559-61). He testified that Bivenss first
statement was the closest to the truth. (H.T., 624-25; A. 2508 at 30:35-30:38).viii
Bohrer also kept a series of notes he made during his investigation. His writings consisted of
both typewritten documents and handwritten notes. He referred to his typewritten documents as his
literature. (H.T., 499). Included within his typewritten literature was a document entitled, The Heidi
Allen Triangle, which Bohrer authored on August 19, 1996, a year following Gary Thibodeaus conviction.
(H.T., 479, 482; A. 2562). This writing was dedicated to the DEAD and MISSING CHILDREN of today
and THE CHILDREN OF YESTERDAY. (A. 2562). These are the children whom have found
themselves victims of the deadly EMPIRE GAMES of the DEVILS TRIANGLE. Id. In this writing,
Bohrer referred to himself as Investigator A, and Jim Beningfield, the Allen family private investigator,
as Investigator B. (A. 2574).

43

Bohrers literature also demonstrated his personal knowledge about the D&W work schedule, when
he wrote, how did David [Stinson] know Heidi was the clerk? She was not on the schedule located behind
the counter on the wall. The store originally was scheduled to be closed Easter Sunday. (A. 2599).
In his handwritten notes, Bohrer described how Allen hid a bracelet behind the seat of the vehicle
real good. (A. 1819). Also in his handwritten notes, he suggested through a psychic that Allens
abduction was carried out by three men and a woman who beat her with a pipe and stabbed her over and
over again, but she was still alive before being burned to death. (A. 1804). The County Court admitted
Bohrers typewritten documents, but denied admission of Bohrers handwritten notes. (H.T., 482, 485-87;
A. 1804-08).
Thibodeau also introduced evidence concerning the Sheriffs investigation into Bohrer, who was
labeled a suspicious person early on during the investigation of Allens disappearance. (A. 2367). Lead
977 was labeled New Haven Post Office. (A. 573-74, 2367). According to this lead, Bohrer aroused
suspicion when he left around Easter and returned around April 20, 1994. (A. 574). He also began to phone
in false leads on April 7, 1994, four days following Allens abduction. The first lead Bohrer called in
suggested he saw a red pickup Chevy or GMC, with a yellow light on top driving around New Haven. (A.
1011-12). On April 13, 1994, Bohrer called in yet another lead and stated he saw a guy in military fatigues
in a grey pickup truck. (A. 1013-14).
Bohrer was interviewed twice by law enforcement throughout the investigation. On February 1,
1995, prior to Thibodeaus trial, Bohrer was questioned by FBI agents. (A. 1015-16). During this
interview, he provided several false leads. Id. He continued the same pattern when interviewed by Sheriffs
Investigators on March 21, 2013, following Wescotts recorded admissions. (A. 2508). During the
interview, Bohrer claimed his knowledge about the Allen case was different from what everyone else
believed, and he had been waiting for this call. Cause I knew one day Im gonna pop in the picture
somewhere, because I made it publicly known that this is what I believe . . . . (A. 2508 at 00:16, 10:3710:40). He took a personal note because his daughter was the same age as Allen and it freaked him out
that a kid could be taken like that. (A. 2508 at 4:28-4:46; 28:56-29:13). Bohrer offered several theories to
44

investigators as to who kidnapped Allen and claimed he was not capable of doing anything like abducting
Allen. (A. 2508 at 27:47). He assured investigators he was not a violent man and it was not in him to
abduct another person. (A. 2508 at 27:53-27:57).
Bohrer asserted he did not know Steen or Breckenridge, but claimed they were both capable of
abducting Allen. (A. 2508 at 17:04; 28:30-28:43). Bohrer said they made her disappear. (A. 2508 at
17:41). Bohrer volunteered that Allen could have ended up at Crosby Hill salvage yard owned by
Murtaugh. (A. 2508 at 17:56). Bohrer acknowledged junking vehicles at Murtaughs junkyard at the time
of Allens disappearance until things got too hot. (A. 2508 at 19:10-19:13).
Bohrer was so emotionally attached to the case that it bothered him every time he had to drive by
the Wheres Heidi? sign. (H.T., 483). During this testimony about the sign, he became visibly shaken
and was about to breakdown when the Court asked if he needed a break. (H.T., 483-84).
d.

Proffered evidence linking Bohrer to Allens abduction

Throughout the proceedings, Thibodeau discovered and proffered evidence establishing Bohrers
connection to Allens abduction. More particularly, Thibodeau sought to offer evidence of Bohrers prior
related conduct involving the abduction and sexual abuse of females, his prior dealings as described by his
brother, John Bohrer, physical evidence belonging to Allen, and a forensic profile created shortly after
Allens abduction. (A. 1426-39, 1470-1505, 1593-1695, 1696-1724, 1742-1808). Although the defense
made repeated efforts seeking to introduce this third-party culpability evidence involving Bohrer, the
County Court ultimately denied these motions and precluded Thibodeau from presenting a complete
defense. (A. 1465-1469, 1583-1592, 1888-1907).
i.

Prior related conduct

Though apparently unknown to law enforcement officers at the time of Allens abduction or prior
to the 440 hearing, ix a subsequent defense investigation revealed Bohrer had been previously convicted and
implicated in prior abductions and sexual assaults of woman. The County Court ordered the defense to
conduct this investigation at its own expense and relieved the District Attorneys Office from any further
obligation to investigate Bohrer. (A. 1336).
45

Bohrer was first convicted in Wisconsin for disorderly conduct on July 17, 1980. (A. 1595, 161718, 1631-32). This offense involved Bohrers attempt to abduct a lone female whom he didnt know as she
drove home from work during the early morning hours. Id. After being followed by Bohrer, who attempted
to drive her off the road, she stopped at a stop sign. Id. Bohrer got out of his car and tried to open her door.
Id. It was locked, so he began to pound on the window. Id. The woman drove to the police station and
Bohrer followed. Id. When she approached a security officer at the station, she was hysterical and visibly
shaken. Id.

While the woman was reporting the incident, Bohrer was observed making a U-turn and

slowly driving past the station. Id.


The defense also learned that Bohrer had been convicted in Wisconsin for false imprisonment in
1981. (A. 1426-28, 1433-34, 1436-39, 1616-17). While driving around Milwaukee during the early
morning hours, Michael and his brother, John Bohrer, followed a woman they did not know as she was
driving home from work. Id. They followed her into an apartment complex parking lot, pulled in behind
her, and blocked her ability to back out. (A. 1433-34, 1616-17). Michael Bohrer got out of his car and
approached the woman, who was later identified as Catherine Schmitt. Id. He placed his arm around her
neck and held his forearm to her throat. Id. He began dragging her to his car and when she tried to resist,
he punched her repeatedly. Id. He tried to force her in the back seat of his vehicle but she broke free and
ran to her apartment. Id. Schmitt suffered lacerations to her mouth and her clothes were torn. Id. The
brothers were arrested and charged, but the charges against John were dismissed. (A. 1433-34, 1619).
During the 440 hearing, the defense discovered that Bohrer was suspected of an attempted murder
and rape of a 23-year-old woman in 1985 in Beacon, New York. (A. 1595-98, 1638, 1640-45, 1650). The
investigation revealed Bohrer had contacted the police after he allegedly found a woman lying in a pool of
blood naked on the bed with the bed spread wrapped around her leg. Id. Bohrer told investigators he heard
moaning coming from the apartment next door and, as the landlord, he had let himself into the apartment
with his extra set of keys. (A. 1655-57). The victim was severely injured and she was initially declared
dead, but survived as a result of multiple brain surgeries. (A. 1664-65). On May 9, 2015, the victim was
interviewed by the defense and recalled being awakened by Bohrer, who was standing alone in the bedroom
46

doorway holding a box or briefcase. Id. He asked her where her girlfriend was because she was supposed
to spend the night. Id. She replied that she was coming the next day. Bohrer responded, thats too bad, I
wanted to fuck her too. (A. 1664). She was terrified and tried to run through the house to get away from
Bohrer. (A. 1665). The last thing she remembers before waking up in the hospital is hiding under a cabinet.
Id. As she was recovering in the hospital, Bohrer reached out to her mother and questioned her about her
daughters condition. (A. 1667-78). The police arranged for security to be posted outside of the hospital
room door. Id. No one was ever charged with this offense.
Finally, John Bohrer revealed that his brother had been married, and did in fact have two daughters.
(A. 1500-01, 1597). He disclosed that his brother had sexually abused both girls when they were young.
Id. In May, 2015, the defense located Bohrers ex-wife, Mary Hazell, who confirmed that she was married
to Michael Bohrer from 1975 to 1983. (A. 1597, 1670). She stated they had two daughters together. (A.
1670). She disclosed that Bohrer sexually, physically, and emotionally abused her. (A. 1670). She revealed
he was into bondage and would pin her down and sexually abuse her. Id. Hazell described how she fled
Beacon with her two daughters in 1983 after she learned Bohrer was abusing their daughters. Id. She
contacted social services and a police report documented her daughters allegations of abuse. (A. 167275).
Even though Dodd acknowledged during his testimony that if there were reliable information that
an individual had previously participated in imprisonment or abduction of an individual it would be
something that should have been considered in relation to the investigation of Allens abduction, the County
Court, relying principally on People v. Molineux, 168 N.Y. 264, 292 (1901), ultimately denied Thibodeaus
multiple attempts to offer this evidence. (H.T. 1433, 1480; A. 1355, 1391, 1442, 1685, 1690). The County
Court found the underlying facts and substantive nature as to how Michael and John Bohrer attempted to
take a woman into their vehicle was inadmissible because the manner in which Heidi Allen was abducted
and presumably killed is still not known. (A. 1893). Despite evidence to the contrary, the County Court
held there were no unique facts pertaining to the 1981 conviction which link Michael Bohrer to Ms. Allens
disappearance and hypothesized [i]f defendant were allowed to admit a conviction based on these broad
47

facts, i.e. that Michael and John Bohrer followed a woman in a parking lot around 1:00 A.M. and attempted
to put her in their car, then defendant would be casting a wide net involving anyone who lived in or around
the vicinity of Oswego County in 1994 and who had a prior ten to fifteen year old out-of-state false
imprisonment conviction involving a woman. (A. 1894-95). x
ii.

Evidence provided by John Bohrer

The defense sought to introduce evidence through John Bohrer that he and Michael were in the
business of selling marijuana in Mexico, New York. (A. 1426-31, 1470-71, 1500-02, 1691-92). John
Bohrer provided additional information outlining his whereabouts between 1990 and 1994, which directly
links him to the New Haven area with his brother. (A. 1430, 1500-02, 1691-92). On March 26, 1992, John
Bohrer was issued a series of traffic tickets while driving his brothers car in the neighboring town of Scriba,
and he was dropped off at a location close to the D&W. (A. 1485-87, 1489-91, 1691).
John Bohrer also confirmed that he was familiar with James Thumper Steen. (A. 1502, 1692).
John Bohrer said they had a falling out because his brother was concerned that he would sell drugs to the
wrong person because he was a bad judge of character. (A. 1501, 1691).
The defense also sought to introduce testimony from John Bohrer regarding an incident in 1992 or
1993 where his brother drove him to look for the broad in the New Haven convenience store, but she was
not there so he left. (A. 1883-85). Michael Bohrer testified that he lived alone in New Haven. (H.T., 415).
John Bohrer was not permitted to testify. (A. 1893).
iii.

Physical evidence connecting Bohrer to Allens abduction

On September 2 and 21, 2015, the defense filed two letter requests, with supporting affidavits,
offering testimony from Melissa (Searles) Adams at the 440 hearing regarding a bracelet she gave to Allen
prior to her abduction. (A. 1812-21). Claiming that the bracelet was not the same one worn by Allen, the
County Court refused to allow Adamss testimony, or the bracelet, at the 440 hearing even though the
People did not object to the defense request. (A. 1828, 1897, 1905).

48

iv.

Profile evidence explaining Bohrers conduct

The defense sought to introduce testimonial and documentary evidence from FBI Agent Clinton
Van Zandt, who created an FBI profile report shortly after Allens disappearance. (A. 1696-1724, 17421808). On April 9, 1994 Van Zandt completed a profile report to assist the Sheriffs Department with their
investigation. (A. 1700-01). In Van Zandts report, he explained how research shows offenders in
kidnapping cases are known to interject themselves into the investigation. Id. They closely follow the
investigation in order to anticipate and provide police with logical reasons for their actions. Id. When
there is a possible sexual motive, offenders have been known to record their offenses in writing and
drawings, to collect newspaper articles detailing the crime, and to retain physical objects from the crime.
Id. These offers of proof were also rejected by the County Court. (A. 1904-05).
C.

The County Courts Denial of Thibodeaus 440 Motion

On March 2, 2016, the County Court issued a Decision and Order denying Thibodeaus 440 motion.
The County Court rejected Thibodeaus Brady violation claim on the following grounds: (1) there was no
Brady material to turn over because, according to the court, Allen was not a confidential informant; she
was never formally signed up and her information was not useful to the Oswego County Sheriffs
Department; (2) Thibodeaus trial attorney, Joseph Fahey, received all evidence pertaining to Allens CI
status on December 14, 1994, May 17, 1995, and June 5, 1995; (3) Allens CI status was too speculative
and remote in time from her abduction to be admissible at trial; and (4) Fahey had the CI evidence but chose
not to use it at trial for strategic reasons. (A. 12-28).
As to Thibodeaus newly discovered evidence claim, the County Court acknowledged in its
decision that there was a plethora of information provided by a multitude of sources, but concluded that
none can be corroborated or deemed credible. (A. 34).

The court agreed that Tonya Priests sworn

statement was already admitted into evidence upon consent of the parties, but concluded it was hearsay and
Steens admissions to her, that he abducted and killed Heidi Allen with others, were not declarations against
his penal interest. (A. 33). Assessing the new evidence within the context of Steens admissions to Priest,
the County Court found that Wescotts admissions to Priest during a recorded phone call were wholly
49

unreliable. (A. 62). In this connection, the County Court found Wescott never lived on Rice Road, the
cabin did not match the description provided by Steen through Priest, and the canine evidence failed to
establish the presence of human remains. (A. 37, 45-48, 62)
Moreover, the County Court faulted Thibodeau for failing to demonstrate how Allen was killed and
what was done with her body:
Further, even if the Court were to credit Wescotts statement about Ms. Allen being in the
van at the house, it does not prove that Ms. Allen was dead at the time and that the three
men thereafter killed her at a cabin and either buried her under floor boards or drove her in
a van to Canada after she was killed. At best, even if her statement is the truth, defendant
has presented no credible evidence other than this statement as to what happened with Ms.
Allen and how the three specifically were involved.
(A. 45).
The County Court also discredited Steens own admission made during his 440 hearing testimony
that he hauled a van to Canada containing Allens remains because, according to the County Court, Steen
lacked the requisite intent to be deemed an accomplice after the fact and because the statute of limitations
has run for that offense. (A. 49, 68).
The County Court further discredited William Pierces identification of Steen as Allens abductor,
offering the following reasons: (1) Pierces identification came twenty years too late; (2) he did not help
the woman he saw knocked unconscious; (3) he reported seeing slush and snow on the roads that morning;
(4) he could not identify dated pictures of either Thibodeau or Steen in a photo array; and (5) scientific
evidence, not part of the instant record, renders eyewitness identification unreliable. (A. 49-60).
Finally, the County held that none of the statements attributed to Steen, Breckenridge and Bohrer,
which defendant seeks to introduce as newly discovered evidence, are admissible under the statement
against penal interest hearsay exception. (A. 72).

50

ARGUMENT
I.

THE COUNTY COURTS DECISION DOES NOT COMPLY WITH THE MANDATE SET
FORTH IN BRADY v. MARYLAND, 373 U.S. 83 (1963), AND THIBODEAU WAS DENIED
DUE PROCESS OF LAW WHEN THE COUNTY COURT PRECLUDED HIM FROM
PRESENTING EVIDENCE IN SUPPORT OF THIS CLAIM.
Thibodeaus constitutional claim pursuant to New York CPL 440.10(1)(b) and (h) centered on

the prosecutions failure to fulfill their continuing obligations under Brady v. Maryland, 373 U.S. 83 (1963).
Specifically, the prosecution actively suppressed Allens status as a confidential informant for the Oswego
County Sheriffs Department and the Departments loss of Allens confidential informant file in the parking
lot of the D&W convenience store, the very place she was employed and abducted from on April 3, 1994.
On April 7, 2015, after the testimony concluded, the County Court declared an official recess of the hearing
to allow further investigation into evidentiary matters. During the April 7, 2015 recess, Thibodeau learned
of additional evidence supporting his Brady violation claim, but the County Court refused to hear the
evidence.
Thibodeaus Brady violation claim included the prosecutions failure to provide Thibodeau with
the following documents pertaining to Allens confidential informant status and the exposure of her CI file:
(1) the December 9, 1994, internal memoranda of Oswego County Sheriffs Deputies Van Patten,
Anderson, and Montgomery, documenting the creation, loss, and recovery of Allens CI file (A. 2342, 2343,
2344); (2) Oswego County Sheriffs Investigator Kleists May 16, 1995 report indicating he found Allens
CI file in a box in the Sheriffs Departments garage on that date (A. 2346); and (3) Allens CI file (A.
2350-54).
The Oswego County Court denied Thibodeaus Brady violation claim on the following grounds:
(1) there was no Brady material to turn over because Allen was not a confidential informant; (2)
Thibodeaus trial attorney, Joseph Fahey, received all evidence pertaining to Allens CI status; (3) Allens
CI status was too speculative and remote in time from her abduction to be admissible at trial; and (4) Fahey
chose not to use the CI evidence for strategic reasons. (A. 10, 12-28). As discussed more fully below, each
of these grounds is incorrect.
51

In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court held that the
prosecution has the duty to furnish favorable information to the accused and that failure to do so violates
due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution. Id. at 87.
Brady material includes impeachment evidence as well as exculpatory evidence. United States v.
Bagley, 473 U.S. 667, 676 (1985). Such evidence is material if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have been different. Id. at
682.
Under New York law, where a defendant makes a specific request for a document, the materiality
element is established provided there exists a reasonable possibility that it would have changed the result
of the proceedings. People v. Garrett, 23 N.Y.3d 878, 891 (2014) (quoting People v. Fuentes, 12 N.Y.3d
259, 265 (2009)). Failure to disclose specifically requested Brady material is more serious in its potential
to undermine the fairness of the trial, and ought to be given more weight . . . by a reviewing court. People
v. Vilardi, 76 N.Y.2d 67, 77 (1990). Where the defense itself has provided specific notice of its interest
in particular material, heightened rather than lessened prosecutorial care is appropriate.

Id. The

reasonable possibility standard is equivalent to the seldom if ever excusable rule. Id.
On December 8, 1994, Attorney Fahey specifically requested the Oswego County District Attorney
to disclose Allens CI file, stating:
The report that Mr. Walsh shared with me indicated that there was a file in existence that
was brought to the scene of the D&W, but Mr. Walsh has not been given that particular
file. Thats what I would ask to be disclosed.
(A. 2318).
In light of this specific request, the reasonable possibility standard applies to the facts of this case.
However, Thibodeau would be entitled to the same relief even if the reasonable probability standard
applied.

52

A.

The County Courts First Reason for Denying Thibodeaus Brady Violation Claim
that Allen Was Not a CI Finds No Support in the Record and Contradicts the
County Courts November 2, 2015 Determination that Allens CI Status Was
Undisputed.

The first ground used to deny Thibodeaus Brady violation claim rests on the County Courts
implausible finding that Allen was not really a CI. (A. 13). Therefore, the County Court concluded, the
prosecution was not required to disclose it to the defense. To the contrary, the evidence presented at the
440 hearing established the following:
(a) Heidi Allen, then a 16-year-old high school student, became a CI for the Oswego
County Sheriffs Department on December 11, 1991. (H.T., 1927, 1928).
(b) One Sergeant, and three Deputies, from the Oswego County Sheriffs Department had
interaction with Allen during this process. Sergeant Lortie and Deputy Van Patten were
the officers who signed Allen up as a CI on December 11, 1991. (A. 2286-87, 2343).
Deputy Anderson met with Allen one time, at the request of Deputy Van Patten, to obtain
information about drug activity in the community. (A. 2344). Deputy Montgomery is the
officer who retrieved Allens lost CI file from the D&W convenience store after it was lost
by Deputy Van Patten. (A. 2342).
(c) Deputy Van Patten met with Allen on December 11, 1991 to gain information about
drug activity in Oswego County. (H.T., 1927-28).
(d) On that date, Deputy Van Patten created Allens CI file which included a 3 x 5
confidential informant index card containing Allens true name, code name (Julia Roberts),
her address, telephone number, date of birth, social security number, height, weight, eye
color, hair color, left and right thumbprint, the date it was created, and the Oswego County
Sheriff Deputy she was working with. (A. 2350-54). The file included a photograph of
Allen and Deputy Van Pattens field notes with the names and numbers of potential drug
targets he obtained from Allen. Id.
(e) Between December 11, 1991 and January 23, 1992, Deputy Van Patten lost Allens CI
file in the parking lot of the D&W convenience store. (H.T., 1976, 1977; A. 2342, 2343).
(f) Allens CI file was found in the parking lot of the D&W by Kristine Duell at an unknown
date and time and eventually reported to the Oswego County Sheriffs Department on
January 23, 1992. (H.T., 1877-78; A. 2714). The complaint card documenting Duells call
was discovered for the first time by Deputy Moskal on January 23, 2015, during the
pendency of the post-conviction hearing. (H.T., 2416; A. 2714). Kristine Duells name is
not on the complaint card as the person who found Allens CI file. (A. 2714).
(g) Deputy Montgomerys memorandum documenting the recovery of Allens CI file from
the D&W does not mention Kristine Duells name and does not mention a call being placed
to the Sheriffs Department to retrieve the lost file. (A. 2342).

53

(h) Deputy Montgomery placed Allens CI file in Deputy Van Pattens mailbox at the
Sheriffs Department where it remained until April 3, 1994, the date of Allens abduction.
(A. 2287, 2342).
(i) Michael Bohrer testified during the post-conviction hearing that he knew Allens CI
card was lost in the parking lot of the D&W store and he knew Kristine Duell found the CI
card. (H.T., 581).
(j) The Sheriffs Department failed to conduct any investigation concerning the
compromised file. (H.T., 1939, 1950, 1954, 2002). Neither Allen nor her family were
informed that her identity as a CI had been exposed to the public. (H.T., 1950).
(k) On April 3, 1994, Sergeant Roy Lortie responded to the scene of Allens abduction
and immediately recalled Allen was a CI and sought production of her CI file. (A. 228687). Sergeant Lortie wanted to investigate names of dealers Allen had been involved with.
Id. Allens CI file was not properly secured in the Sheriffs Departments drug file. Id.
(l) On December 9, 1994, nearly two years after Deputy Van Patten lost Allens CI file
in the D&W parking lot, and eight months after Sergeant Lortie learned the file was not
properly secured at the Department, three internal memoranda were created, at the request
of Lieutenant Goodsell, by Deputies Van Patten, Montgomery, and Anderson to explain
the creation, loss, and recovery of Allens CI file. (A. 2342, 2343, 2344).
(m) On June 23, 1995, Investigator Whipple created a lead sheet that revealed Heidi Allen
is a snitch was found written on the bathroom wall at the Junius Pond rest area on the New
York State Thruway. (A. 2610-11). Gary Thibodeaus jury trial had ended on June 19,
1995. (T.T., 3494).
(n) Former Chief Assistant Oswego County District Attorney Donald Dodd testified that
he received the December 9 internal memoranda of Deputies Van Patten, Montgomery,
and Anderson at his office on December 9, 1994, and he agreed they constituted Brady
material. (H.T., 1662-1663, 1670, 1712, 2069).
It was this clear-cut proof that caused the County Court to declare Allen an undisputed CI in a
prior written order. (A. 1906, 1907). As will be discussed more fully below, this determination was
employed by the County Court to restrict Thibodeau from fully developing his Brady violation claim. Id.
Contradicting its prior decision, the County Court characterized Thibodeaus references to Allens
CI status as misleading and inaccurate. (A. 13).

The County Court came to this determination by

reviewing one piece of evidence, Deputy Andersons December 9, 1994 internal memorandum. (A. 13-14,
2344).

54

Reliance solely upon this memorandum is erroneous because it fails to account for the 440 hearing
testimony of Deputy Anderson. Although Deputy Andersons memorandum states Allen had no useful
information and she was not formally signed up as a confidential informant, he testified he had no
knowledge Deputy Van Patten had already signed Allen up as a CI and created a CI card for her. (H.T.,
1982-83; A. 2344). Moreover, Deputy Anderson did not state how he determined the merits of the
information she provided. Deputy Anderson also did not know Allen had provided names of people
engaged in drug activity in the community to Deputy Van Patten. (H.T., 1983). Therefore, the County
Courts dismissal of Allens CI status based solely on the fact that Deputy Anderson had one brief meeting
with Allen and did not find her information useful cannot overcome the evidence cited above, proving Allen
was in fact a CI for the Oswego County Sheriffs Department.
Moreover, this ground for denying Thibodeaus motion to vacate his judgment of conviction must
be reversed because it does not comport with the County Courts prior ruling that Allens status as a CI was
undisputed; Donald Dodds testimony that the CI evidence constituted Brady material; and Allens actual
CI card documenting the Sheriffs Department formal agreement with Allen to engage her as a confidential
informant, beginning on December 11, 1991. In any event, whether Allen was in fact a CI is of little
moment. This is because a person whose drug operations were threatened would still have a motive to
harm Allen upon learning that her CI file was discovered at the D&W. The person viewing her lost file
would have no ability to determine the Sheriffs view of the information Allen provided.
B.

The County Courts Second Reason for Denying Thibodeaus Brady Violation Claim
that Allens CI Evidence Was Provided to Thibodeaus Trial Attorney Is
Contrary to the Documentary Evidence Admitted During the 440 Hearing.

Despite finding no Brady material existed to be turned over to the defense because Allen was not
truly a CI, the County Court in its second reason for denying Thibodeaus claim decided Fahey received all
material pertaining to Allens CI status. (A. 13-24, 28). According to the County Court, Fahey received
the December 9, 1994 internal memoranda of Deputies Van Patten, Montgomery, and Anderson on
December 14, 1994, and the Kleist report along with Allens CI file through a May 17, 1995 mailing and
again through hand delivery on June 5, 1995. (A. 20, 22, 28). Dodds testimony, along with writings he
55

created to document these events, proves otherwise. What is more, the conduct of the esteemed counsel
for Gary Thibodeau is inconsistent with the Peoples claim of disclosure and wholly undermines the County
Courts findings.
Prior to Thibodeaus December 8, 1994 pretrial hearing, Fahey gained preliminary information that
Allen may have been a CI for the Sheriffs Department through a reference made by Sergeant Lortie in his
April 27, 1994 police report. (A. 2286-87, 2317-18). Fahey had no knowledge of the loss of Allens CI
file in the parking lot of the D&W because it is not contained in Sergeant Lorties report. Id. At the pretrial
hearing, Fahey demanded production of Allens CI file, but Dodd denied knowledge of Allens CI status.
(A. 2317-19).
The Sheriffs Department officially denied Allens status as a CI in a newspaper article dated
December 7, 1994, stating there is no formal file, because Allen was not really an informant. (A. 227677). They described Sergeant Lortie as confused and having a faulty memory. Id. Unbeknownst to Fahey,
Sergeant Lortie was not confused because he was present with Deputy Van Patten when Allen was signed
up as a CI. (H.T., 1927-29).
1.

The non-disclosure of the December 9, 1994 internal memoranda during the


December 14, 1994 discovery meeting between Fahey and Dodd.

Deputies Van Patten, Anderson, and Montgomery each created an internal memorandum on
December 9, 1994, detailing the creation, loss, and recovery of Allens CI file. (A. 2342, 2343, 2344).
These memoranda confirm Allens CI status and refute the Sheriff Departments denial of Allens CI status.
Fahey did not receive these documents during his December 14, 1994 meeting with Dodd as claimed by
the County Court.
At this meeting, Dodd offered, and Fahey accepted, a copy of the entire contents of the Sheriff
Departments Investigative file. (H.T., 1640-47). The file consisted of five cardboard file boxes, in excess
of 1,500 leads. Id. This is Dodds only claim of Fahey receiving the December 9, 1994 internal memoranda.
(H.T., 1659, 1670, 1731).

56

Prior to the December 14, 1994 meeting, in order to maintain an accurate account of the contents
of the boxes, Dodd created handwritten notes labeling the contents of each item contained within the five
boxes. (A. 3115-3143). Dodd testified that the notation of police reports on page four of his notes meant
the December 9, 1994, internal memoranda were included in the material provided to Fahey on December
14, 1994. However, this cannot be true because page four of Dodds notes is dated 12/5/94, which
predates the creation of those memoranda. (A. 3119).
Additionally, Dodd testified he marked Brady on all documents he considered Brady material and
also made this notation on his notes. (H.T., 1670, 2042-43, 2069). Dodds notes contain 38 specific Brady
references. (A. 3115-3143). Page 4 of Dodds notes, police reports, does not have a Brady notation. (A.
3119). As noted above, Dodd considered the memoranda to be Brady material.
Investigator Whipple, the custodian of the Sheriffs investigative file, had no recollection of the
memoranda being made a part of the master file. (H.T., 1565-69). Investigator Whipple was in charge of
creating lead numbers for all documents made a part of the Sheriffs Investigative file and the December 9,
1994 internal memoranda were never assigned lead numbers. Id. Investigator Whipple testified no lead
was too big or too small to be included in a case of this magnitude. (H.T., 1517).
Dodds document procedure also confirms non-disclosure of the memoranda. Dodd created a twostep document procedure for materials shared between the District Attorneys Office and the Sheriffs
Department. (H.T., 1715-17). First, when a document was received by the Oswego County District
Attorneys Office, it was date stamped received by the District Attorneys Office and made the original
document for the file.

(H.T., 1663, 1678-79, 1715-17, 2025). Second, the document was then hand

delivered to Investigator Whipple at the Sheriffs Department to receive a date stamp from that office.
(H.T., 1663, 1678-79, 1715-17, 2025). Dodd insisted with 100% certainty that all documents in the Heidi
Allen investigation were handled in this manner. (H.T., 1717). The December 9, 1994 internal memoranda
contain only one received, December 9, 1994 date stamp from the Sheriffs Department. (A. 2342, 2343,
2344). These documents do not show that they were received by the District Attorneys Office. Id. Thus,
they were never made a part of the file.
57

Dodd created a letter on December 21, 1994, documenting his meeting with Fahey on December
14, 1994, and listing all material turned over to Fahey on that date. (A. 2361-66). Dodds letter specifically
references the December 8, 1994 pretrial motion hearing, but omits Faheys request for Allens CI file. (A.
2362). Dodd points out possible Brady material contained within the five boxes Fahey received on
December 14, 1994, directing the reader to 200 items of potential Brady material. (A. 2363-65). This
portion of the letter makes no reference to Allens CI file or the December 9, 1994 internal memoranda.
Id. Nor does the letter reference Van Patten, Anderson, or Montgomery. Id.
The County Court erroneously decided Fahey received the December 9, 1994 internal memoranda
simply because they were created, stating [i]t does not make sense that Lt. Goodsell would instruct these
officers to make written statements if the statements ultimately were not to be turned over. (A. 21). This
reasoning is flawed for the following reasons. First, the creation of a document does not prove disclosure.
Second, Donald Dodd, not Lieutenant Goodsell, is the attorney for the People and the party responsible for
complying with the rules of discovery. Third, there was no testimony from Goodsell explaining why he
requested the memoranda. Presumably, he wanted an explanation regarding the exposure of Allens CI file
to the public and Van Pattens inability to locate it on the date of Allens disappearance.
The County Court also improperly relied upon Peoples Exhibit QQQ (A. 2908-2910) to reach its
erroneous finding of disclosure. (A. 18). Peoples Exhibit QQQ is a photocopy of Deputy Van Pattens
report, with a received, December 9, 1994, Oswego County Sheriffs Department date stamp that Dodd
testified was his work product. (H.T., 1668-69; A. 2908). Dodd testified he wrote MY COPY, HA
BRADY, and CC TOT BOTH D ATTN on the top of the document. (H.T., 1668-69; 2908). Dodd
testified HA BRADY, meant Heidi Allen, Brady material; CC TOT BOTH D ATTN, meant carbon
copy, turned over to, both defense attorneys. Id.
The County Courts acceptance of this testimony as proof Fahey received these documents on
December 14, 1994 is erroneous for the following eight reasons. First, the document does not have a date
as to when it was turned over to the defense. Second, we know this document was turned over to
attorney Walsh, because defense counsel found copies in Richard Thibodeaus trial file, which prompted
58

Gary Thibodeaus current Brady violation claim. However, we do not know from looking at that work
product when it was turned over to Walsh. Third, there is no date on the work product indicating
when Dodd made those notes on the document. Fourth, this was not Dodds procedure with every
document, and he did not do this with the other two December 9, 1994 internal memoranda that he also
considered Brady material. (H.T., 1667-68; A. 2909, 2910). Fifth, Dodd testified his work product notes
provided proof they were contained within the Sheriffs investigative file on December 14, 1994, but
Investigator Whipple, the custodian of that file, stated they in fact were not included. Sixth, Investigator
Whipples testimony of non-inclusion is corroborated by the fact that Deputy Van Pattens memorandum
did not contain two date stamps, one from the District Attorneys Office, and the other from the Sheriffs
Department, which Dodd required before it was made a part of the Sheriffs investigative file. Seventh, it
contradicts Dodds testimony that every document he received was required to have a date stamp from the
District Attorneys Office. Eighth, as previously discussed, Dodd could not point to Deputy Van Pattens
memorandum in either his notes documenting the contents of the Sheriffs investigative file, or his
December 21, 1994, letter, documenting disclosure of the Sheriffs investigative file to Fahey on December
14, 1995.
2.

The non-disclosure of Investigator Kleists report and Allens CI file.

Investigator Kleist created a report on May 16, 1995, a week before the start of Gary Thibodeaus
trial, documenting his discovery of Allens CI file in a box in the Sheriffs Departments garage. (H.T.,
2255-2256, 2243-2249, 2257-2258; A. 2346). Allens CI file had been stored in this location for one year
after it had been requested by Sergeant Lortie on the date of Allens disappearance. (H. T., 2249). It was
never made a part of the Sheriffs Investigative file and was never seen by Investigator Whipple before
May 23, 1995. (H.T., 1522-1523, 2258-2259).
Only Investigator Kleists report contains a date stamp from the District Attorneys Office, marked
received on May 16, 1995. (H.T., 2244, A. 2346). After his report was stamped by the District Attorneys
Office, it was returned to the Sheriffs Department and dated stamped received by the Sheriffs
Department on May 23, 1995. (A. 2346). Allens CI file was provided to Investigator Whipple on May
59

23, 1995 and stored on shelf B-20 of the evidence room. (A. 2345-47). Unlike Investigator Kleists report,
the evidence log sheet and the evidence tag for Allens CI file only contain a May 23, 1995 received date
stamp from the Sheriffs Department. (A. 2347). Gary Thibodeaus trial commenced May 22, 1995. (T.T.,
39). Richard Thibodeaus trial commenced in September of 1995.
Investigator Kleists report is one of the documents that inspired Thibodeaus Brady violation
claim. (H.T., 41-42, 1626). This report was found in Richard Thibodeaus trial file by Bianco in 2014 and
was never before seen by her or Fahey. (H.T., 41-42, 1626). The Kleist report found in Richard
Thibodeaus trial file contained the two date stamps discussed above, May 16, 1995 and May 23, 1995. (A.
2346).
Dodds first claim of disclosure of the Kleist report and Allens CI file centers on his May 17, 1995
cover letter addressed to attorneys Fahey and Walsh, and sent with unnamed attachments a week before
Gary Thibodeaus trial commenced. (H.T., 1674, 1866; A. 2348). Dodds letter states, Pursuant to the
Peoples on going duty to disclose, CPL 240.60, I am providing with this letter copies of additional
discoverable property obtained since my last disclosure to you by letter dated April 25, 1995. (A. 2348).
Dodd testified that the unnamed attachments were the Kleist report and Allens CI file. (H.T., 1674). The
unnamed attachments could not possibly be the Kleist report or Allens CI file for two reasons. First,
Walshs copy of the Kleist report found in Richard Thibodeaus trial file by Bianco contained a May 16,
1995 date stamp and a May 23, 1995 date stamp. Walsh could not receive a document with a May 23,
1995, date stamp through a May 17, 1995 mailing. Second, Allens CI file was not in Richard Thibodeaus
trial file. (H.T., 41-42).
The County Court erroneously credited Dodds testimony that he provided both defense attorneys
with the Kleist report and the CI file even though it could not be supported by the documents themselves.
(A. 20, 2346, 2348). Specifically, the County Court ignored the date stamps contained on the copy of the
Kleist report found in Richard Thibodeaus trial file. Because Thibodeau strenuously argued Walsh could
not receive the Kleist report with a May 23, 1995, date stamp, through a May 17, 1995, mailing, the
prosecution tried to mask this reality by providing a different version of the Kleist report at the 440 hearing
60

which contained only the May 16, 1995, date stamp. (A. 2349). The County Courts decision never
addressed the discrepancy in the different versions of the Kleist report and it never addressed the
impossibility presented by the prosecution.
Upon deciding Fahey received these documents, the County Court made the following perplexing
statement, [t]his Court has no reason to question that this information was not provided to both counsel
and the trial court in light of the fact that Dodds testimony underscores the May 23, 1995 date stamp
attached to the May 17, 1995 letter and which was also located in the trial courts original file (See Exhibit
11A). (A. 20). There was no testimony from Dodd underscoring how Walsh received a Kleist report
with a May 23, 1995 date stamp through a May 17, 1995, mailing.
In an attempt to bolster Dodds testimony, the County Court turned to the trial courts original file,
where it found a copy of Dodds May 17, 1995 letter. (A. 20). The County Court reviewed the trial courts
original file outside of the presence of the parties and off the record. Thus, there is no record evidence of
what, precisely, the County Court reviewed.
In any event, the viewing of the May 17, 1995 letter does not prove Thibodeau received the Kleist
report and Allens CI file along with the May 17, 1995 cover letter. This portion of the County Courts
decision only speaks of the May 17, 1995 cover letter, which was date stamped received by Jefferson
County Court on May 23, 1995. (A. 20-21). There is no mention of the unnamed attachments referenced
in the May 17, 1995 letter. In a puzzling response to Thibodeaus claim of non-disclosure of these items,
the County Court states, [i]t is contrary to logic to argue that the trial court received this letter on May 23,
1995 but that neither trial counsel received it without the attached documentation. (A. 22). We do not
know from this statement whether the County Court found attachments to the May 17, 1995 letter, and, if
so, what those attachments were. Additionally, the Jefferson County Court May 23, 1995 date stamp
supports, rather than negates, Thibodeaus argument because neither the court, Fahey, nor Walsh, could
receive a copy of the Kleist report with a May 23, 1995 date stamp through a May 17, 1995 mailing.

61

3.

The non-disclosure of the Kleist report and Allens CI file on June 5, 1995.

In a second attempt to suggest Fahey received these documents, the County Court erroneously
credited Dodds testimony that he hand-delivered the Kleist report and Allens CI file to Fahey in the midst
of trial with a June 5, 1995 cover letter, not on official letterhead. (H.T., 1681, 1684-85, 1731, 1748-49, A.
22-23, 2914). Dodds explanation for writing his letter on unofficial letterhead was to save the District
Attorneys Office an expense. Id. The County Court found Dodd truthful on this point because [t]he fact
that the letter [A. 2914] is not printed on letterhead shows that Dodd was truthful because his working copy
was, in fact, on a plain piece of paper. (A. 22-23).
The June 5, 1995 unofficial letter, like the May 17, 1995 letter, does not name the attachments, but
Dodd testified they were the Kleist report and Allens CI file. (A. 2914). This testimony is not credible for
five reasons. First, Dodd testified he never duplicated discovery. (H.T., 1681, 1731, 1748-49). Therefore,
if the court finds Dodds testimony credible on the May 17, 1995 claim of disclosure it cannot coexist with
Dodds testimony about never duplicating discovery. Second, the June 5, 1995 letter was hand-delivered
to Fahey at trial one day prior to the People resting their case. (H.T., 1689, 1866-67). There is no reaction
from Fahey on the record responding to receipt of Allens CI file in the midst of trial after he demanded
production of this material six months prior. It is highly unlikely that an experienced litigator such as Fahey
would have no reaction to such a delayed disclosure. Third, Dodd testified he never brought Allens CI file
with him to Gary Thibodeaus trial. (H.T., 2110). Fourth, this claim of disclosure brought forth a third
version of the Kleist report, containing only the May 23, 1995 date stamp. (H.T., 2101; A. 2346, 2349,
2761). Even more curious, the May 23, 1995 date stamp is in a different location than the May 23, 1995
date stamp found on Richard Thibodeaus copy of the Kleist report. (A. 2346, 2761). Fifth, Allens CI file
was not in Richard Thibodeaus file. Thus, this Court, without explanation from the People, would have to
believe that Dodd disclosed Allens CI file to Fahey, but not to Walsh. The County Courts decision ignored
these fatal flaws in the Peoples attempt to prove disclosure.
The trial record itself cannot support Dodds claims of disclosures. Fahey specifically requested
production of Allens CI file referenced in Sergeant Lorties report on December 8, 1994. Fahey had no
62

information through Sergeant Lorties report that Allens file was lost in the parking lot of the D&W. It is
undisputed that Allens CI file was hidden away until Investigator Kleist found it on May 16, 1995.
Dodds claims of disclosure do not comport with Faheys on-the-record-trial behavior. At the time
of Gary Thibodeaus trial, Fahey had nearly twenty years of criminal defense experience. Both Fahey and
Walsh brought Dodd to task for his failure to disclose material before and during the trial. After receiving
a copy of the Sheriffs investigative file on December 14, 1994, Walsh filed a pretrial motion seeking
production of over 100 lead sheets that Dodd failed to disclose on that date. (H.T., 1787-1799; A. 2612,
2622). During trial, Fahey heatedly objected to other untimely evidence offered by the People on June 6,
1995 and through Investigator Kleist. (T.T., 3093-94). This is one day after Dodd purportedly dropped the
Kleist report and Allens CI file on Faheys table during trial. To suggest Fahey would object to this and
not to evidence constituting Brady material he specifically requested six months prior, which undermines
the case against his client, is utterly implausible. Fahey himself testified that he would have raised holy
hell about it. There would have been sanctions and he would have moved for a mistrial. (H.T., 962). If
Fahey received the December 9, 1994 internal memoranda as Dodd claims on December 14, 1994, then he
most certainly would have demanded production of the actual CI file he specifically requested production
of on December 8, 1994.
Faheys testimony is credible because the Peoples argument regarding Thibodeaus Brady
violation claim defies common sense. The People suggest the following timeline: (1) Fahey asked for
Allens CI file on December 8, 1994, and its existence was denied by the People and the Sheriffs
Department; (2) Fahey received the December 9, 1994, internal memoranda on December 14, 1994,
confirming Allens CI file not only existed, but was lost and exposed to the public by the Sheriffs
Department; (3) Fahey and Walsh did nothing: neither one demanded the CI file; neither one demanded
disclosure of all police reports concerning who Allen informed on and who knew Allen was a CI; and
neither conducted their own investigation into these facts; and (4) Fahey (and Walsh) received the Kleist
report and Allens CI file through a May 17, 1995, mailing days before Gary Thibodeaus trial commenced
and again did nothing; and (5) Fahey received the Kleist report and Allens CI file a second time via hand63

delivery with a scrap cover letter during trial and a day before the People rested their case and again did
nothing. To imply two seasoned attorneys, each with over twenty years of criminal defense experience,
would receive memoranda on December 14, 1994 confirming the existence of their prior discovery request
and then never again ask for the actual CI file is preposterous. And to even further imply that Fahey would
just silently accept late disclosure of withheld Brady material immediately before and during trial is even
more outrageous.
Dodd touted himself as a meticulous record keeper during his post-conviction hearing testimony.
He stated he was particularly careful about discovery matters to insure that [the prosecution] had a
systematic, organized, verifiable way to demonstrate in the event this day came to be able to point back
in time to twenty years ago . . . with a measure of reliability to this judge the procedure that was in place
for the purposes of demonstrating that the documents in fact were photocopied, reproduced in their entirety
and turned over to attorneys Fahey and Walsh. (H.T., 1786) (emphasis added).
During the 440 hearing, Dodd could not point back in time to demonstrate disclosure to Fahey
of the December 9, 1994 internal memoranda of Deputies Van Patten, Montgomery and Anderson, the
Kleist report, and Allens CI file. Dodds notes referencing the entire contents of the Sheriffs investigative
file do not mention the December 9, 1994 internal memoranda. Dodds December 21, 1994 letter
documenting discovery turned over to Fahey does not refer to these memoranda. Neither the May 17, 1995
letter nor the June 5, 1995 handwritten letter make reference to the Kleist report or Allens CI file. All of
this despite the fact that Dodd was on notice that Fahey highly valued these documents. Moreover, the
People presented two different Kleist reports during the post-conviction hearing containing date stamps
different than the Kleist report contained in Richard Thibodeaus trial file without explanation. Had Dodd
actually turned over the CI evidence, the record would have made it abundantly clear.
Additional evidence of suppression is found in two aspects of Faheys trial conduct. First, Oswego
County Sheriff Investigators Yerdon and Kleist, the investigators who found Allens CI file just days before,
were prosecution witnesses at Gary Thibodeaus trial. (T.T., 1988, 2072). Allens CI index card contained
her right and left thumbprint. (A. 2350). During the 440 hearing testimony of Donald Dodd, an offer of
64

proof was made by the defense on the issue of Allens thumbprints and trial testimony elicited by Dodd of
Investigators Kleist and Yerdon. (H.T., 1841-45). The County Court agreed to review the trial record on
these claims. (H.T., 1844). The trial record showed the following. During direct examination conducted
by Dodd, Investigator Kleist was specifically asked how he had obtained Allens fingerprints for
comparison with fingerprints lifted from the crime scene. (T.T., 2073-74). Instead of referring to Allens
CI card that contained her thumbprints, Investigator Kleist testified at trial that he had to obtain her
fingerprints from her notebooks that were found in her vehicle at the D&W. (T.T., 2076).

Likewise,

Investigator Yerdon avoided any reference to the existence of Allens thumbprints on her CI card during
cross examination by Fahey. (T.T., 2063). Fahey asked, Do you have fingerprints of Heidi Allens? and
Investigator Yerdon answered, I didnt take them. I believe theres a thumb print. (T.T., 2063). Fahey
continued fingerprint questioning, asking if Investigator Yerdon had a full set of Allens fingerprints and
Yerdon answered, Not to my knowledge. I have never saw one. (T.T., 2063). Investigator Yerdon was
even asked if he had checked Sheriffs Department records to see if there were any Heidi Allen fingerprints
on file, and he said he did not and he did not know if that had ever been done. (T.T., 2063).
Second, prior to sentencing, Fahey received a tip that Allen maintained a diary, the fact of which
the People never disclosed. In an effort to review the diary, Fahey never argued that it may contain
information concerning her work as a CI. Surely, had Fahey been aware that Allen was a CI, he would
have offered that fact as a basis to review the diary. The County Courts decision failed even to mention
these facts. Therefore, this Court should find that the People suppressed the CI evidence.
C.

The County Courts Third Reason for Denying Thibodeaus Brady Violation Claim
that the CI Evidence Was too Remote and too Speculative to Be Admissible at Trial
Is Erroneous Because the County Court Would not Allow Thibodeau to Present
Evidence Showing the Continuity of Allens CI Status.

The County Courts third basis for denying Thibodeaus Brady violation claim rests on a conclusion
that the exculpatory evidence would not be admissible at trial because it is too remote and too speculative.
(A. 24). This faulty conclusion is grounded on an equally faulty premise. The County Court suggests,
Fahey testified that he was aware Ms. Allen was not an informant, so any theory that someone other than

65

defendant kidnapped her because she was a rat, would have been too speculative to argue without any
corroborating evidence. (A. 26). The County Courts analysis lacks a citation to Faheys post-conviction
hearing testimony to support this proposition. It seems the County Court is trying to suggest Fahey gave
testimony that he did not pursue a line of defense during Gary Thibodeaus trial that Allen was a known
CI, giving others a motive to harm her, because he did not have any corroborating evidence to support this
theory. If this is in fact the County Courts reasoning, then, coincidentally, this is the very essence of
Thibodeaus Brady violation argument. Fahey received limited information through Sergeant Lorties
report that Allen may have been a CI for the Oswego County Sheriffs Department. He could not pursue a
defense showing others had a motive to harm Allen because he had nothing more to go on than Sergeant
Lorties report, which clearly does not include the fact that Allens CI file was exposed to the public through
the negligent acts of the Sheriffs Department. Both the Sheriffs Department and the District Attorneys
Office denied this evidence existed when Fahey requested it. What Fahey did repeatedly state during the
440 hearing is that he was told Allen was not an informant. For example, Fahey responded to the following
questions from the People on cross-examination:
Q: Did you ever send any kind of follow up request not having since you never got the
[CI] file, any kind of written request?
A: We were told she wasnt used as an informant, so no, I didnt.
****
Q: Okay, but you were requesting the file such as it was back on December eighth. My
question is did you ever follow up to find out if there was a file either by writing or
after you discovered the the
A: Not once it was represented to us that she wasnt an informant.
(H.T., 968).
The withheld evidence cures this. Fahey would have learned through the CI card the identity of
people Allen provided information about. He could have conducted an investigation into these people and
others in the community who may have known about Allens status, regardless of how the Sheriffs
Department valued the information she provided to them.
The County Court found the loss of Allens CI file would not be admissible at trial because it
occurred two years prior to her abduction. (A. 27). Relying on Kristine Duells testimony that she only

66

told her mother about finding Allens CI card, the County Court found no others in the community knew
Allen was a CI. (A. 27). This clearly contradicts Michael Bohrers testimony, where he indicated he knew
Allens CI card was dropped in the parking lot of the D&W and that it had been found by Kristine Duell.
(H.T., 594-595). This information was never publicized. Kristine Duell never testified about finding
Allens CI card during Gary Thibodeaus trial (TT., 1471-1522); her name was not included in Deputy
Montgomerys memorandum regarding the retrieval of Allens CI card (A. 2342); and her name was not
included on the complaint card documenting the call to the Sheriffs Department to retrieve Allens CI card
from the D&W (A. 2714). Michael Bohrers 440 hearing testimony about his knowledge of Kristine Duells
connection to the CI card caused the Sheriffs Department to locate the complaint card on January 23, 2015,
during the 440 hearing. (H.T., 594-95, 2318-19; A. 2714).
The County Courts decision also disregards the June 23, 1995 lead sheet, which reports that the
text, Heidi Allen is a snitch was found written on the wall of a bathroom at the Junius Pond rest area on
the New York State Thruway. (H.T., 1545, 1548; A. 2610-11).
Further still, the County Courts remoteness argument appears to be premised on a conclusion that
the fact of Allens status as a CI carried a statute of limitations against those who may wish to silence her.
(A. 68). Obviously, this is not true. As a result of the exposure of her CI file, an unknown number of
individuals learned that Allen was an informant. Any one of those individuals could have spread that fact
to an additional unknown number of individuals. That the information may not have been useful to the
pool of individuals who knew of Allens CI status in 1992 does not mean that the information would cease
to be relevant. Once established, the fact of Allens CI status would prove useful to any drug dealer
suspecting his operations were threatened by an informant.
Even if there were any validity to the County Courts general remote and speculative reasoning,
it cannot support denial of Thibodeaus Brady violation claim because the court placed restrictions upon
Thibodeaus ability to present evidence to the contrary. The County Court cannot deny Thibodeau the
opportunity to develop the record to present a defense and then deny him relief on the ground that the record
was insufficient. (A. 28-29).
67

Thibodeau made concerted efforts to present evidence demonstrating the extent and nature of
Allens CI status. (A. 1812, 1822, 1872, 1875, 1878, 1886). The County Courts November 2, 2015
determination that Allens confidential informant status was not in dispute was used to deny Thibodeau a
subpoena duces tecum to access an Oswego County Family Court Person in Need of Supervision (PINS)
Petition that Allen was the subject of prior to her abduction. (A. 1907). Thibodeau also sought to offer
testimony from Martha Sturtz about the PINS Petition. (A. 1872). The PINS Petition and Sturtzs proposed
testimony were directly related to how Allen became a confidential informant for the Oswego County
Sheriffs Department. (A. 1872-1874, 1878-1880, 1886-1887).
Thibodeau learned of the PINS Petition through a recorded interview of Martha Sturtz, Allens
aunt, conducted by the Sheriffs Department during the April 7, 2015 recess of the evidentiary hearing. (A.
1874). Martha Sturtz revealed Allen had police contact when she was 15 years old because she was at a
party where alcohol was being served and she left a child under her care unattended in her car. (A. 1874 at
8:24-8:37). Marthas husband, Russell Sturtz, was a judge in the Town of New Haven and contacted the
Sheriffs Department on behalf of his niece to avoid criminal charges being filed against Allen. (A. 1874
at 8:40-8:49). Judge Sturtz negotiated a deal between Allen and the Sheriffs Department that a PINS
Petition was filed against Allen, instead of criminal charges, as long as Allen provided the Sheriffs
Department with information. (A. 1874 at 8:49-8:57). The PINS Petition allowed Allen to live with her
parents, but the arrangement was not working out, causing Allen to move in with her aunt and grandmother.
(A. 1874 at 9:00-9:29). That is where Allen was living at the time of her abduction. (A. 1874 at 9:29).
Martha Sturtz stated the deal was connected to drug stuff Allen became involved in and she got into all
this trouble. (A. 1874 at 9:44-9:49). The family made efforts to keep this information secret. (A. 1874 at
9:40-9:42).
This evidence is entirely relevant and crucial to Thibodeaus Brady violation claim when reviewing
the trial testimony of Allens boyfriend, Brett Law, and Allens parents, Ken and Susan Allen. All three
witnesses were called by the People. Dodd carefully constructed his direct examination of these witnesses
to exclude the reason for Allens living arrangements. Dodd never asked Brett Law why Allen was living
68

with her grandparents, rather than her parents. (T.T., 1163). Dodd never asked Allens parents, Sue and
Ken Allen, why their daughter was living with her grandmother, rather than at their home. (T.T., 2156,
2171).
The County Court, without viewing the PINS Petition, although the People did not object to the
Court viewing the PINS Petition, concluded there was not the slightest inkling that the [alleged PINS
petition] contain[s] any exculpatory material. (A. 1881, 1906-07) (quoting People v. Gissendanner, 48
N.Y.2d 543, 551 (1979)). The County Court further declared Thibodeaus request a fishing expedition.
(A. 1907). However, this evidence was relevant to the entirety of Thibodeaus Brady violation claim.
The PINS Petition and Sturtzs proposed testimony called into doubt the veracity of Deputy Van
Patten, who testified during the 440 hearing that Allen became a confidential informant because her uncle,
Russell Sturtz, suggested she may have information about drug-related activity in Oswego County. (H.T.,
1927). Deputy Van Patten testified he met with Allen because Russell Sturtz was his personal friend. Id.
Deputy Van Pattens sworn testimony omits Russell Sturtz calling his personal friend for a favor because
he wanted his niece to avoid criminal charges. (H.T., 1922-1969).
This excluded evidence also called into doubt the veracity of Deputy Andersons 440 hearing
testimony. Like Deputy Van Patten, Deputy Anderson omitted Allens true reason for agreeing to provide
information to the Sheriffs Department, stating Allen wanted to talk to him about kid stuff because she
was concerned her friends were getting involved in drugs. (H.T., 1976). Contrary to Martha Sturtzs
proposed testimony, Deputy Anderson indicated Allen did not use drugs and she did not want her friends
to use drugs. (H.T., 1976). This testimony provided an entirely different picture than what actually
happened. Allen did not become a CI to rescue her friends, but instead became a CI because she was in
legal trouble and this was her opportunity to work her way out of criminal charges.
During the testimony of Brian Mensch, a resident of Oswego County since 1981, Thibodeau made
an offer of proof that was ultimately diluted by the court. Menschs proposed testimony revealed he was a
friend of Deputy Van Patten and had a conversation with him at Champs Corners Tavern about a
confidential informant. (H.T., 1284, 1286-88). This testimony was permitted, but Thibodeau sought to
69

have Mensch testify to the entire conversation, which included Deputy Van Patten telling Mensch he had a
female CI he was working with in New Haven who disappeared right before they were about to make a
drug arrest. (H.T., 1294). Given Heidi Allen was the only woman from New Haven who disappeared
during this time period, Mensch was able to discern that Deputy Van Patten was referring to Allen. The
County Court would not allow this testimony, stating it was offered for the truth of the matter asserted that
Allen was a CI. (H.T., 1294). Defense counsel argued the testimony was offered to show the effect on the
listener. Specifically, Mensch believed Deputy Van Patten had a female CI in New Haven who vanished
before a major drug bust. Thibodeaus offer of proof was reduced to Deputy Van Patten telling Mensch, I
have a female CI in New Haven. (H.T., 2413).
On September 30, 2015, the defense filed a letter request seeking to call Rhonda Burr to testify at
Thibodeaus 440 hearing. (A. 1875-77). Burrs testimony would show Allen was actively working as a
confidential informant a mere three weeks prior to her abduction. Rhonda Burr, Allens co-worker at the
D&W, stated Allen would often talk about working for the Sheriffs Department and Allen feared for her
safety. (A. 1876-77).
The County Court denied Thibodeaus request to call Rhonda Burr, declaring her testimony is
irrelevant and immaterial because [i]t has already been established at the hearing that Ms. Allen was a
confidential informant. (A. 1907).
Without ever saying why, the County Court claimed that Thibodeaus Brady claim was more
analogous to People v. Gamble, 72 A.D.3d 544 (1st Dept 2010), than People v. Wright, 86 N.Y.2d 591
(1995). (A. 25-26). Not so. As here, the defendant in Wright sought a new trial after learning that the
victim had been working as a confidential informant for the police officers involved in investigating his
alleged victimization. By contrast, the defendant in Gamble apparently sought to rely on unsubstantiated
claims that the victim merely offered to become a confidential informant. Unlike in this case, the defendant
in Gamble did not contend that the evidence pointed to the culpability of any particular third party, and
there was no evidence suggesting that someone other than defendant was the killer. Gamble, 72 A.D.3d
at 545.

In further contradistinction, Thibodeau has consistently argued that evidence concerning Allens
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status as a confidential informant provided the motive for three individuals (Steen, Breckenridge, and
Bohrer) to harm her. A witness (Jennifer Wescott) knew Allen was abducted in a van that was brought to
her home and participated in the destruction of that van. Also, one of the suspects, Michael Bohrer, knew
both that Allen was an informant and that her CI file was exposed at the D&W parking prior to either fact
being made public.
What is more, the County Court wholly failed to account for an entirely separate ground for
admitting the CI evidence. As Thibodeau has consistently argued, the suppressed evidence concerning
Allens CI status and file undercuts the thoroughness and good faith of the police investigation. (H.T.,
189). When . . . the probative force of evidence depends on the circumstances in which it was obtained
and those circumstances raise a possibility of fraud, indications of conscientious police work will enhance
probative force and slovenly work will diminish it. Kyles v. Whitley, 514 U.S. 419, 446 n.15 (1995). The
Supreme Court has therefore held that informations tendency to undercut the thoroughness and good faith
of a police investigation is a factor to be considered in determining whether withheld information is
exculpatory. Id. at 445-49; see also Smith v. Secretary of New Mexico Dept. of Corrections, 50 F.3d 801,
830 (10th Cir. 1995) (while the knowledge the police were investigating [alternative suspect] would
arguably carry significant weight with the jury in and of itself, that fact would also have been useful in
'discrediting the caliber of the investigation or the decision to charge the defendant,' factors we may consider
in assessing whether a Brady violation occurred); Stano v. Dugger, 901 F.2d 898, 903 & n.28 (11th Cir.
1990); Bowen v. Maynard, 799 F.2d 593, 613 (10th Cir.1986) (A common trial tactic of defense lawyers
is to discredit the caliber of the investigation or the decision to charge the defendant, and we may consider
such use in assessing a possible Brady violation.); Lindsey v. King, 769 F.2d 1034, 1042 (5th Cir. 1985)
(awarding new trial because withheld Brady evidence "carried within it the potential . . . [for] the
discrediting, in some degree, of the police methods employed in assembling the case against" defendant);
United States v. Glover, 1998 WL 575125 at *4 (D. Kan. Sept. 1, 1998) ([C]ommunication of facts which
tend to discredit the investigation, within the meaning of Kyles is included within the scope of Brady
material); Orena v. United States, 956 F. Supp. 1071, 1100 (E.D.N.Y. 1997) (As the O.J. Simpson case
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and many others demonstrate, destroying the bona fides of the police is a tactic that has never lost its place
in the criminal defense reasonable doubt armamentarium.). This is especially true when the very law
enforcement officers responsible for exposing Allens CI file to the public were also in charge of
investigating her disappearance.
If this evidence had been disclosed, Fahey would have been able to argue to the jury that the
Sheriffs Department closed down Sergeant Lorties desired line of investigation into people Allen had
provided information about because they were at fault. Not only did they compromise her safety by
exposing this information to the public, they did nothing to remedy their error. They directed the
investigation away from themselves and toward the Thibodeaus in an effort to conceal their own
wrongdoing. Therefore, this Court should find that the CI evidence would be admissible at trial.
D.

The County Courts Final Reason for Denying Thibodeaus Brady Violation Claim
that Fahey Disregarded the CI Evidence for Strategic Reasons Is Entirely
Nonsensical and Contradicted by the Record.

The County Courts final basis for denying Thibodeaus Brady violation claim professed Fahey
chose not to use the CI evidence for strategic reasons because, in the County Courts opinion, the CI
evidence bolstered the testimony of Robert Baldasaro and James McDonald. (A. 26). On the contrary, the
CI evidence was material to Thibodeaus innocence.
As a preliminary matter, were it actually true that the CI evidence bolstered the testimony of the
jailhouse informants, the prosecution likely would have sought its introduction. Notably, Dodd extensively
cross-examined both Sharon Raposa and Gary Thibodeau about Sharons cocaine use, presumably to
connect the dots to McDonalds trial testimony claiming cocaine activity between the Thibodeaus and
Allen. (T.T., 2671-2681, 2811-2814).
The CI evidence was material and favorable to the defense because it undermined the Peoples
theory of the case against Gary Thibodeau. The lack of forensic and eyewitness evidence to support the
charge against Gary Thibodeau caused the People to base their case upon the testimony of two jailhouse
informants, who were detained at the Worcester House of Corrections in Massachusetts with Gary
Thibodeau while he was being held on a misdemeanor drug charge. They claimed Thibodeau had confided
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in them and suggested Allens abduction was a result of drug activity between Allen and Thibodeau that
went badly, thereby creating a motive for the prosecution to present to the jury.
At trial, Baldasaro claimed Gary Thibodeau confided in him about Allens disappearance and told
him that he and his brother, Richard Thibodeau, went to the convenience store to talk to her because she
was upset and they wanted to try and straighten things out, that she thought . . . Gary was going to screw
her about something and she was really upset so they went down wanted to have a conversation with her.
(T.T., 1544, 1630-31). Baldasaros trial testimony indicated the first thing he told law enforcement was
that Thibodeau believed Allen was mad at him because she thought he was trying to screw her. (T.T.,
1636). According to Baldasaro, Thibodeau met Allen through a friend, something to do involved with
drugs. (T.T., 1636-37). Baldasaro went on to say that Allen thought Gary Thibodeau was trying to screw
her and get her in some kind of trouble and he went to talk to her to calm her down. (T.T., 1637). The
suppressed CI evidence directly contradicts this testimony. If Allen were working for the Sheriffs
Department to help create drug arrests, she would not be concerned about getting into trouble.
Baldasaro claimed Richard and Gary Thibodeau picked Allen up from the store in Richards van,
drove her to the woods by his house and talked to her. (T.T., 1544-45). Richard Thibodeau then dropped
Gary off at his house and drove Allen back to the store, dropped her off, and later returned because he had
forgotten to purchase cigarettes. Id. Upon Richard Thibodeaus return, no one was at the store. Id.
Baldasaro alleged Gary Thibodeau told him five to several times that the girl was dead, her head had
been bashed in with a shovel and mutilated, and they would not find her. (T.T., 1549-50). Baldasaro
never testified that Gary Thibodeau knew Allen was a CI.
James McDonald testified that Gary and his brother went to the store to buy cigarettes in his
brothers van. (T.T., 1662-63). McDonald claimed Gary Thibodeau said Allens head was bashed in with
a fold up Army type shovel and her body would never be found. (T.T., 1665-70. 1690). According to
McDonald, upon leaving prison, Gary told McDonald and Baldasaro not to say anything to anybody about
what he told them. (T.T., 1670). When McDonald was interviewed by investigators he told them Garys
involvement with Allen had to do with drugs. (T.T., 1685, 1688). McDonald claimed Gary told him Allen
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was into cocaine and would use cocaine with Thibodeau. (T.T., 1688-89). James McDonald never testified
that Gary Thibodeau knew Allen was a CI.
In an effort to support this testimony, Dodd provided the following argument about the jailhouse
informants during summation:
They told you that this particular defendant had described that he and his brother had gone
to the D&W Convenience store and that this defendant went there because that girl was
upset about something that may have had to do with drugs. Now, I agree with Mr. Fahey.
The testimony you have heard from Brett Law, Sue Allen, Ken Allen tend to support that
Heidi Allen would have nothing to do with drugs. But you know something, ladies and
gentlemen? We dont know and thats the plain fact of it. We dont know. Sometimes
moms and dads and boyfriends dont know everything. Sometimes they dont know that
a person may have some knowledge about something, someone thats a friend or a relative
that may have some connection to this defendant. The reason for why can only be stated
to you through the witnesses that have testified and Bob Baldasaro and James McDonald
told you reasons for why.
(T.T., 3377-78).
According to Martha Sturtz, Dodd misled the jury because Allens parents were aware of Allen being in
legal trouble.
The most critical point in Dodds closing where Faheys use of the CI evidence would have entirely
undermined the Peoples case can be found in Dodds discussion of motive to the jury. Dodd told the jury
the case was not about robbery or larceny because no money was missing from the cash register at the
D&W. (T.T., 3379). Therefore, Dodd surmised, the case was about a person who had a reason to want to
go to where that girl was and drugs may very well be a reason. (T.T., 3379). Had Fahey been provided
with the CI evidence, these words could very well have been spoken by Fahey during summation.
The outcome of Thibodeaus trial turned on whether the jury believed Baldasaros and McDonalds
testimony that Gary Thibodeau caused harm to Allen because of drug activity they were involved in
together. Allens status as a CI provided motives for other people to want to harm her. She gave names of
people involved in drug activity to Deputy Van Patten, who carelessly lost this highly sensitive information
in the parking lot of the D&W less than a month after he created it. Approximately two months after he
lost this file, Allen began employment at the D&W the very place she was abducted from two years later.

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Therefore, this Court should reverse the County Courts denial of Thibodeaus Brady violation claim made
pursuant to CPL 440.10 and grant a new trial.
II.

THE COUNTY COURT ABUSED ITS DISCRETION BY BASING ITS DENIAL OF


THIBODEAUS NEWLY DISCOVERED EVIDENCE MOTION ON A FLAWED LEGAL
ANALYSIS AND CLEARLY ERRONEOUS FACTUAL DETERMINATIONS.
It is well-settled that in order to obtain a new trial on the ground of newly discovered evidence, a

defendant must prove by a preponderance of the evidence that there is newly discovered evidence: (1)
which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3)
which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and
[ ] (6) which does not merely impeach or contradict the record evidence. People v. Bryant, 117 A.D. 3d
1586, 1587 (4th Dept 2014) (citations omitted); N.Y. CPL 440.10(1)(g), 440.30(6).
The County Courts denial of Thibodeaus motion was based solely on a conclusion that he failed
to satisfy prong (1) that the new evidence would not change the result of a new trial. In considering
whether new evidence would likely change the outcome at a new trial, a court must conduct a nonmechanical evaluation of the new evidence in its totality. See People v. Tankleff, 49 A.D.3d 160 (2d Dept
2007). Just as importantly, [t]he court must make its final decision based upon the likely cumulative effect
of the new evidence had it been presented at trial. People v. Bellamy, 84 A.D.3d 1260, 1261 (2d Dept
2011) (citing Tankleff, 49 A.D.3d at 178-181). In order to do so, the newly discovered evidence must be
evaluated against the backdrop of the trial evidence. See Tankleff, 49 A.D.3d at 182.
The decision to grant a motion on the basis of new evidence rests with the discretion of the hearing
court. People v. Backus, 129 A.D.3d 1621, 1623-24 (2015) (quoting People v. Salemi, 309 N.Y. 208, 215216 (1955)). Accordingly, this Court reviews the decision of a hearing court for abuse of discretion. Id.
Though a County Courts factual findings are given deference and reviewed for clear error, this Court is
not bound by a trial courts factual determinations and it may reach its own factual conclusions by reevaluating the testimony and the other evidence. See N.Y. CPL 470.15(1); People v. Neely, 645 N.Y.S.2d
494, 496 (2d Dept 1996). Moreover, this Court may reverse the County Court as a matter of discretion in

75

the interest of justice. See N.Y. CPL 470.15(3)(c); People v. Bryce, 287 A.D.2d 799 (3d Dept 2001);
People v. Kidd, 76 A.D.2d 665, 668 (1st Dept 1980).
The County Court abused its discretion in denying Thibodeaus motion. In general, a court abuses
its discretion when it bases its decision on a mistake of law or a clearly erroneous factual finding.
Matakov v. Kel-Tech Const., Inc., 84 A.D.3d 677, 679 (1st Dept 2011) (Mazzarelli, J.P., dissenting)
(quoting Goldberger v. Integrated Resources, Inc., 209 F.3d 43, 47 (2d Cir. 2000)). The County Court
abused its discretion in both ways. In reviewing Thibodeaus motion, the County Court committed a
mistake of law by failing to assess the new evidence within the context of the trial evidence and by failing
to apply a non-mechanical review of the new evidence in its entirety. The County Court also abused its
discretion by basing its decision on clearly erroneous factual findings that failed to account for conflicting
evidence and, perhaps more importantly, failed to consider certain exonerating evidence altogether.
Because there is a reasonable probability that the new evidence would have created a more favorable verdict
at trial, this Court should reverse the County Courts decision and grant Thibodeaus motion for a new trial.
A.

The County Court Erred by Failing to Assess the New Evidence Against the Backdrop
of the Trial Evidence.

As noted above, a court reviewing a motion for a new trial must assess the likely cumulative effect
of new evidence had it been presented at trial. See People v. DiGuglielmo, 75 A.D.3d 206, 215 (In
determining the probable effect of the newly discovered evidence on the verdict, the court must engage in
a critical analysis of the evidence and view and evaluate all of the evidence in its entirety.) (quoting
Tankleff, supra, 49 A.D.3d at 180181). Quite obviously, the likely cumulative effect of new evidence at
the trial can only be determined with an understanding of the trial evidence. Id. (noting review of the effect
of new evidence must take place in the context of the central legal issue at trial . . . .); Tankleff, 49 A.D.3d
at 181; Bellamy, supra, 84 A.D.3d at 1261 (The court must make its final decision based upon the likely
cumulative effect of the new evidence had it been presented at trial.); People v. Maynard, 80 Misc.2d 279,
284 (N.Y.Sup.Ct.1974) (The evidence is viewed only in context of its effect on the previous outcome of
the trial.); People v. Perez, 18 Misc.3d 752, 754 (N.Y.Sup.Ct. 2007) (To set the defendants claim of

76

newly discovered evidence in its appropriate context, it is necessary to briefly set forth the facts adduced at
trial.). The County Court utterly failed in this regard.
In essence, the Peoples case hinged on the following evidence: (1) Richard Thibodeaus
acknowledgement that he drove his van to the D&W on the morning of Heidi Allens abduction and made
what would later be established was the last recorded purchase prior to Allens abduction; (2) an eyewitness
account from Christopher Bivens, who claimed only after considerable alternation, prompting, and an
announced reward that he witnessed two unidentified (though reportedly tall and burly) men struggling
(though initially only arguing) with a woman near a van (that he would only later identify as belonging to
Richard Thibodeau) in front of the D&W store near the time of her abduction; (3) two accounts from
jailhouse informants, Robert Baldasaro and James McDonald, who testified that Thibodeau, though never
confessing to kidnapping or murdering Allen, made incriminating statements concerning his supposed
interactions with Allen on the day of her disappearance; and (4) uneven testimony from several witnesses
concerning the location and movement of Richard Thibodeaus van on the morning of Allens abduction.
Notice that the People failed to produce eyewitness or forensic evidence placing Gary Thibodeau
at the D&W on the morning of Allens abduction. Just as importantly, the People failed to forensically link
Allen to the person or property of Gary or Richard Thibodeau, including Richard Thibodeaus van and the
Thibodeaus separate residences, though they had unfettered access to search, collect, and test physical
evidence from each of these locations.
The only evidence providing a purported direct link between Gary Thibodeau and Heidi Allens
abduction came from out-of-court statements offered for the truth of the matter asserted by two jailhouse
informants (Baldasaro and McDonald), neither of whom could provide a plausible motive for Thibodeaus
asserted involvement. Moreover, the testimony provided by the jailhouse informants conflicted with the
Peoples case. For example, Baldasaro claimed Richard and Gary Thibodeau picked Allen up from the
store in Richards van, drove her to the woods by his house, and talked to her. (T.T., 1544-45). According
to Baldasaro, Richard Thibodeau then dropped Gary off at his house and drove Allen back to the store,
dropped her off and later returned because he had forgotten to purchase cigarettes. (T.T., 1544-45). Upon
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Richard Thibodeaus return, no one was at the store. (T.T., 1544-45). Among other problems with this
testimony, the Peoples evidence showed Allen never left the store prior to her last recorded transaction.
What is more, neither informants assertions were corroborated, even though law enforcement officers had
unfettered access to the Thibodeaus property and spared no expense uncovering and testing possible
forensic evidence. Finally, the People failed to produce Allens body or a murder weapon, and failed to
provide a theory as to what happened to Allen following her abduction. xi
It is against this factual backdrop that the new evidence must be assessed. Despite this wellestablished mandate, the County Court failed to draft a single word about the evidence presented at trial,
let alone assess the new evidence in the context of the trial evidence and the broader nature of the case.
Had the County Court assessed this new evidence against the backdrop of trial evidence, it would
have observed that the new evidence mirrors the trial evidence, with one obvious difference each
respective set of evidence points to a different and mutually exclusive set of suspects.
Beyond pointing to alternative suspects within the several categories of evidence presented at
trial,xii the new evidence also lays bare several evidentiary holes in the Peoples trial evidence. For example,
in contrast to the Peoples failure to produce (1) an eyewitness of Allens location following her abduction;
(2) incriminating admissions concerning the disposal of Allens body; or (3) corroborative forensic
evidence, the new evidence offers (a) the recorded account of Jennifer Wescott concerning Allens location
following the abduction; (b) the statements concerning the disposal of Allens body by James Steen
(through Tonya Priest, Ronald Clarke, Joseph Mannino, Amanda Braley, Megan Shaw), Roger
Breckenridge (through Jennifer Wescott, Amanda Braley, Chris Combes, Jessica Howard, and Brittany
Johnson), Michael Bohrer (through Tyler Hayes and Danielle Babcock), and Wescott (through her recorded
conversation with Priest); and (c) the forensic evidence from the cadaver canines establishing the existence
of human remains at a nearby cabin.
Given that the new evidence provides an alternative account for how Allen was abducted that,
unlike the trial evidence, more than fully satisfies each category of evidence, one is left to wonder how the
County Court concluded that the new evidence would not change the outcome at a new trial. The most
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immediate answer comes from the County Courts noted failure to assess the new evidence within the
context of the evidence presented at Thibodeaus trial.
The County Courts fundamentally flawed analysis led it to hold Thibodeau to a heightened burden
of proof and to require him to prove facts that are not elements of the offense. Moreover, viewing
Thibodeaus new evidence in isolation distorted the probative value of the new evidence relative to the
Peoples evidence at trial. Nowhere are these errors more evident than in the County Courts rejection of
Wescotts recorded admissions:
Further, even if the Court were to credit Wescotts statement about Ms. Allen being in the
van at the house, it does not prove that Ms. Allen was dead at the time and that the three
men thereafter killed her at a cabin and either buried her under floor boards or drove her in
a van to Canada after she was killed. At best, even if her statement is the truth, defendant
has presented no credible evidence other than this statement as to what happened with Ms.
Allen and how the three specifically were involved.
(A. 45).
Contrary to the County Courts suggestion, N.Y. CPL 440 places no obligation on a defendant to
prove that another person committed the crime or how facts beyond the crime were actually committed.
See, e.g., Bellamy, supra, 84 A.D.3d at 1262 (affirming Supreme Courts decision to grant a defendant a
new trial where, even though new evidence did not conclusively establish an alternative suspects guilt,
new evidences implication of another suspect could raise a reasonable doubt in the jurors minds . . . .)
For one thing, if a defendant were able to do so, a new trial of the defendant would hardly be necessary.
The People would simply move right to trying the new suspects. That a defendant need not establish another
persons guilt is made obvious in light of the relief provided by Section 440. A defendants successful 440
motion results only in a new trial, not an order terminating the prosecution against him. The motion is
granted when a defendant presents new evidence that, had it been presented at trial, would raise a reasonable
doubt in the context of the remaining trial evidence. See id. Determining whether the new evidence would
create a reasonable doubt can only be done by assessing the new evidence in light of the trial evidence. Id.
Beyond this basic point, the County Courts treatment of Wescotts recorded admission overlooks
both the limited elements of a kidnapping offense and the evidence presented by the People at trial. It

79

hardly bears mentioning that a person may be convicted of first degree kidnapping even without any
evidence of what happened to the victim following the abduction.xiii In fact, Thibodeau himself was
convicted in the absence of any evidence to corroborate the claims of the jailhouse informants about what
became of Allens body. That Allens body is still missing and no murder weapon has been recovered are
not facts that can only be held against Thibodeau. The Peoples failure to produce a body, a murder weapon,
or a single item of forensic evidence to support its theory equally informs the analysis of the new evidence.
This point was recently illustrated by the New York Court of Appeals in People v. DiPippo, 27
N.Y.3d 127 (2016), the facts of which will be discussed more fully below. As relevant here, the DiPippo
Court made clear that assessing third-party culpability evidence necessarily depends on the nature of the
crime at issue. Id. at 140. Accordingly, a court must account for the type of proof available to a defendant,
including the fact that a victim of a crime is dead, and thus incapable of identifying her assailant. Id. at
141. Just as importantly, the failure to produce an instrument of the victims death cannot be held solely
against the defendant. Id. Finally, just because a defendant cannot produce a victims body (or an
identification from the victim) or a murder weapon does not mean that the remaining third-party culpability
evidence lacks probative value or fails to connect the alternative suspects to the crime. Id.
Without an appreciation of the evidence at trial, the County Court was also left with no basis upon
which to compare the relative strengths and weaknesses of the new evidence (its probative value) against
the nature of the evidence presented at trial. This failure obscured the true probative value of the new
evidence. Viewed in a vacuum and outside of the trial evidence, the perceived fact that the new evidence
may not have provided a fully consistent explanation as to what the new suspects did with Allens body
may tend to reduce its probative value. However, when the new evidence is placed within the context of
the trial evidence, which provided no account of what became of Allens body, its probative value
necessarily increases, especially when considering that neither the People nor Thibodeau, in offering a
third-party culpability defense, would be required to prove what happened to Allen after her abduction.
Properly focusing the new evidence on who was responsible for Allens abduction, then, would lead a jury
to doubt Thibodeaus role in the offense.
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What is more, by failing to assess the new evidence against the backdrop of the trial evidence, the
County Court required near certainty from the new witnesses of Allens abduction. Beyond the treatment
of Wescott just discussed, the courts inflated standard is most apparent in its assessment of Pierces
testimony, which it rejected because it could not wholeheartedly invest any credence in his account. (A.
59). As already noted above, a defendant moving for a new trial is only required to prove every fact
essential to support the motion by a preponderance of the evidence. N.Y. CPL 440.30(6). This standard
does not require a defendant to elicit a courts wholehearted investment in any witnesss credibility.
Because the new evidence, when placed in the context of the trial evidence and held to the appropriate
burden, would result in a more favorable verdict, this Court should grant Thibodeaus motion.
B.

The County Court Erred by Failing to Non-Mechanically Consider the New


Evidence in Its Totality.

Setting aside for a moment the County Courts failure to assess the new evidence within the context
of the trial evidence, the courts treatment of the new evidence was also flawed on its own. As already
noted, Thibodeaus motion was based on the new eyewitness accounts provided by Wescott and Pierce.
Instead of recognizing this fact, the County Court assumed that Thibodeaus motion was grounded in
Steens confession to Tonya Priest, and that the remaining evidence was offered merely to corroborate
details of that account. In framing the new evidence within the context of Steens confession to Priest, the
County Court overemphasized details that, at least on the surface, appeared to undermine the reliability of
Steens confession. In truth, however, Steens admission to Priest was simply one of several pieces of new
evidence introduced to corroborate the eyewitness accounts of Wescott and Pierce, and specific details
relayed through Priest are not essential to Thibodeaus motion. In any case, Thibodeau offered sufficient
evidence to permit a jury to find that Steens admission to Priest raised a reasonable doubt as to Thibodeaus
guilt.
As for the eyewitness accounts of Wescott and Pierce, the County Court applied an overly
mechanical evaluation and failed to weigh or even consider certain corroborative and exonerative evidence.
See People v. Bleakley, 69 N.Y.2d 490, 495 (1987) (If based on all the credible evidence a different finding

81

would not have been unreasonable, then the appellate court must, like the trier of fact, below, weigh the
relative probative force of conflicting inferences that may be drawn from the testimony.) (internal
quotations omitted). In assessing Wescotts secretly recorded account, the County Court, in addition to
requiring proof of facts beyond those establishing Allens abduction by alternative suspects, rejected her
admissions by placing greater weight on the claimed lack of the alternative suspects mutual familiarity
than the evidence could bear and failing to so much as acknowledge evidence that established the alternative
suspects were sufficiently connected and acquainted at the time of Allens abduction. What is more, the
County Court relied on an apparent lie in the recorded conversation Wescotts claim to have been
subpoenaed at the time of the trial to discredit the critical admission. Upon closer scrutiny, however,
Wescotts alleged fabrication concerning her claim to have been subpoenaed turns out to support her initial
account.
The County Courts treatment of Pierces testimony fared no better. Pierces account of observing
a man strike and then carry a woman toward a van on the morning of Allens abduction establishes two
essential facts: (1) Pierce identified Steen as the man who struck and abducted the female; and (2) the van
toward which the man carried the female did not belong to Richard Thibodeau. From these two facts,
Pierces account established that someone other than Gary Thibodeau abducted Allen and that a van other
than the one belonging to Richard Thibodeau was used to accomplish the abduction.

In denying

Thibodeaus motion, the County Court focused entirely on Pierces identification of Steen, which the court
found to be incredible and unreliable. However, the County Court failed to appreciate the second fact
established by Pierces account that Richard Thibodeaus van was not used to abduct Allen. Because this
fact alone is sufficient to warrant a new trial, this Court should grant Thibodeaus motion. But even the
County Courts assessment of Pierces identification of Steen was flawed for reasons discussed more
thoroughly below.

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1.

The introduction of Jennifer Wescotts recorded admission would change


the outcome at a new trial.

Boiled to its core, the reasons underlying the County Courts rejection of the evidence connected
to Wescott can be found in the following passage:
With respect to the facts before the Court in the instant case the evidence presented is too
remote and disconnected to show that someone other than defendant kidnapped Heidi
Allen. None of the witnesses can credibly place Steen, Breckenridge or Bohrer at the D&W
the morning Ms. Allen disappeared. None of the witnesses testified to the fact that Steen,
Breckenridge or Bohrer had a van similar to the one seen that morning at the store. None
of the witnesses can tie Steen, Breckenridge or Bohrer as being together the morning before
or during the morning Ms. Allen was kidnapped. None of the witnesses can prove that
Steen, Breckenridge or Bohrer were more than social acquaintances, and even Steen and
Bohrer both admit that they did not meet one another.
(A. 42).
As a preliminary matter, the County Court incorrectly asserts that the new evidence is remote and
disconnected. As the case cited by the County Court establishes, these labels are reserved for evidence
concerning acts outside of the crime itself. Greenfield v. People, 85 NY 75, 89 (1881). Evidence directly
establishing alternative suspects for the crime in question can never be labelled remote or disconnected.
Turning to the County Courts factual considerations, its conclusion that none of the witnesses can
prove Steen, Breckenridge or Bohrer were more than social acquaintances and that Steen and Bohrer had
even met is spectacularly misguided.xiv For one thing, the County Court never paused to consider what
level of acquaintanceship individuals must attain before they can agree (or be recruited by another) to abduct
a young woman, or why a social acquaintanceship fails to rise to the requisite level.
More fundamentally, the County Courts factual analysis is flawed for two additional reasons.
First, it hardly bears mentioning that the easiest way for the three individuals to deflect suspicion is to
downplay their mutual familiarity. This obvious point was lost on the County Court. Second, Thibodeau
presented credible evidence from two disinterested parties, neither of whom were even mentioned by the
County Court, though each established that the three individuals were in fact well-acquainted prior to
Allens abduction. Consider Steens wifes cousin, Earl Russell, who testified that he was employed by
Tom Martin from 1988 through 1993. (H.T., 1454-58). According to Russell, all three suspects were

83

connected to Tom Martin, and he had witnessed their presence together prior to 1993 at Martins social
gatherings. (H.T., 1457-58). Even Michael Bohrer admitted that he, Steen, and Breckenridge were
connected to Tom Martin. (T.T., 462-63). Further evidence concerning the connection between the three
alternative suspects was proffered through an affidavit from John Bohrer, who acknowledged that while
living with his brother, Michael Bohrer, they became acquainted with James Steen.xv (A. 1396). All three
alternative suspects were also associated with and connected to Richard Murtaugh, who owned a junkyard.
(H.T., 217, 321, 459). Finally, every new suspect was involved in the distribution and consumption of
illicit drugs. (H.T., 222, 224, 225, 250, 321, 590, 640, 762, 1054, 1078, 1290, 1291, 1293, 1331, 1387,
1388, 1468; A. 1540).
The County Courts conclusion that the new evidence failed to tie the three alternative suspects
together on the morning of Heidi Allens abductionxvi overlooks the secretly recorded admissions of
Jennifer Wescott, who admitted that the three individuals brought Heidi Allen to her residence on the
morning of her abduction.
In addition to relying on a misguided conclusion that the three alternative suspects were not
sufficiently acquainted, the County Court attempted to discount Wescotts admissions by leaning on
testimony from Darcy Purdy to establish that Wescott did not live on Rice Road, the location Steen
identified in his admission to Tonya Priest. (A. 46-48). Again, the County Courts treatment of where
Wescott resided on the morning of Allens abduction was overly mechanical. To start with, Thibodeaus
new evidence does not stand or fall with a determination that Wescott resided on Rice Road. The paramount
fact from Wescotts secretly recorded admission which, by the way, does not even mention Rice Road xvii
is that she confirmed Steen, Breckenridge, and Bohrer brought Allen to her residence (within Oswego
County) on the day she was abducted. This point was lost on the County Court. What is more, evidence
provided through Deborah Vecchio, acting landlord of the Rice Road property at the time of Allens
abduction, confirmed Wescott was living there in 1993 or 1994. (H.T., 1197, 1201). Brian Mensch also
confirmed that Purdy, who claimed to have resided without interruption at the Rice Road address, was not
residing there when he lived in a garage nearby in 1994. (H.T., 1285). Additionally, though Roger
84

Breckenridge denied the fact at the hearing, prior to the potential significance of Rice Road being made
public, he acknowledged that Wescott lived on Rice Road. (A. 1125, 1147). Finally, though not admitted
by the County Court, Thibodeau also proffered evidence establishing that Wescott sent a message to Carl
Robinson requesting him not to tell anyone she lived on Rice Road and fled to Florida following Allens
abduction. (H.T., 1074; A. 217).
The County Court further faults Thibodeaus new evidence for failing to establish that any of the
three alternative suspects owned a van at the time of Allens abduction. There is no reason to believe the
abduction could have only been committed with a van owned by one of the suspects. Indeed, the evidence
established that all three suspects had access to vehicles through their connection (either through
employment or friendship) with Richard Murtaugh, who owned a junkyard. (H.T., 217, 321, 459). Steen
admitted that he regularly hauled scrapped vehicles for Murtaugh, including a van he suspected contained
the remains of Heidi Allen, (H.T., 284-85), Bohrer admitted he scrapped vehicles for Murtaugh during the
time of Allens abduction, (H.T., 459), and Breckenridge confirmed that he worked for Murtaugh beginning
in 1994. (H.T., 321). Finally, Roger Breckenridge acknowledged that he stole a van in 1994, further
rendering ownership irrelevant. (H.T., 326).
The County Courts decision was also guided by a surprisingly mechanical assessment of the
evidence concerning the disposal of Allens body a fact that, as already noted, is not essential to support
Thibodeaus motion. James Steen, through Priest, admitted disposing of Allens body in a cabin located
near Rice Road. Thibodeau presented evidence establishing that forensic cadaver canines indicated to the
presence of human remains at the site of a collapsed cabin, which was constructed prior to Allens abduction
near Rice Road. (H.T., 1580, 2186; A. 2582-2588). Nevertheless, the County Court concluded that Steens
admission that Ms. Allen was buried somewhere out on Rice Road under the floor of a cabin was proven
false. (A. 62). This conclusion was based on (a) the apparent fact that details concerning the cabin in
question did not fully match the description of the cabin identified in Steens admission, and (b) the
testimony of two state forensic examiners, who claimed to have been to sites where no human remains were
found, even though human remains were detected by cadaver canines.
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The problems with the County Courts treatment of the cabin evidence are difficult to enumerate
fully. Start with the location of the cabin. If true, Steens admission means that he had disposed of Allens
body only after abducting her, beating her, killing her, and then dragging her body through a dense field.
Following these events, it would seem reasonable to expect that Steens recollection of certain details
concerning the cabins precise description and location might be less than perfect, especially because he
made the admission twelve years after the abduction. Moreover, Priest disclosed Steens admission seven
years later, and nineteen years after Allens abduction.

But even these concerns obscure a more

fundamental point: Steen admitted abducting Allen. In addition, he admitted disposing of her body in a
cabin located in a field where, twenty years later, cadaver dogs alerted to the presence of human remains.
Turning to the canine dog indications, the fact that two forensic examiners have previously been to
sites where cadaver dogs have alerted for the presence of human remains and none have been located does
not mean the alerts in any of the cases were inaccurate. All it means is that no physical evidence was
recovered from those sites (and the cabin in question) to corroborate the alerts.
The County Court also sought to place considerable weight on an alleged fabrication contained in
Wescotts secretly recorded conversation. In addition to admitting to Priest that Allen was brought to her
residence on the morning of her abduction, Wescott also informed Priest that she and Roger Breckenridge
were subpoenaed to testify at Thibodeaus trial. (A. 2506 at 10:34-10:54). At the 440 hearing, however,
Wescott claimed that she was never subpoenaed to testify at the trial. (H.T., 1412). The County Court
seized on this testimony to conclude that Wescott went along with the conversation Priest wanted to have
about the kidnapping to give Priest attention and that she even lied to Priest about being subpoenaed to
testify at the Thibodeaus trial. (A. 46). Even assuming Wescott was not subpoenaed, a point Thibodeau
does not concede, the fact would hardly establish Wescott fabricated her admission that Allen was brought
to her residence following the abduction. Moreover, the recording establishes Wescotts knowledge that
Breckenridge was in fact subpoenaed. From that fact, a jury could infer that Wescott was acquainted with
Breckenridge prior to Allens abduction, a point Wescott, though originally conceding (A. 2506 at 13:3714:00, 14:50-16:00), later attempted to call into question. (H.T., 1321, 1400, 1420; A. 2506 at 1:00:0886

1:00:25). Finally, a jury could conclude that Wescott was so connected to Breckenridge that she considered
a subpoena on him as amounting to a subpoena on both of them, and that the two found the subpoena
sufficiently troubling to discuss its implications.
In crediting Wescotts recantation over the secretly recorded admission, the County Court also had
to overlook evidence establishing that the new suspects acted with a consciousness of guilt. In addition to
her request of Carl Robinson not to inform anyone she lived on Rice Road and fled to Florida following
Allens abduction, Wescotts guilt was also demonstrated by texts she sent Richard Murtaugh immediately
before being interviewed by Oswego County investigators. (H.T., 11-14; A. 2506 at 46:00, 1:1731). xviii
Wescott also sent a message to Robinson assuring him that she would not be the next one dead in a box in
the woods for running her mouth off. (A. 211-15). Finally, Wescott sent a message to Joe Storto in which
she admitted giving a false statement to the police and claimed that she has to plead the Fifth, but the DA
is going to protect her. (H.T., 1356-58; A. 1084, 1155-57).
Evidence at the hearing also established Steen, Breckenridge, and Bohrer acted with a guilty
conscience. For example, Steen admitted that he hauled Allens remains to Canada. (H.T., 284-85).
Thibodeau also introduced a text message Steen received shortly after committing a double murder, in
which he was asked, Heidi? Ciao. (H.T., 279, A. 2520, 2552). Similarly, once news of Wescotts
admissions spread, Breckenridge told Wescott to shut the fuck up about Heidi Allen. (H.T., 397). Finally,
Thibodeau elicited evidence establishing Bohrers bizarre obsession with the investigation into Allens
abduction. In addition to evidence chronicling Bohrers maintenance and creation of documents concerning
his own investigation into the case, Bohrer broke down on the stand when testifying about driving by the
Where is Heidi? sign several times a day. (H.T., 483-84).
The County Courts treatment of the evidence concerning Wescotts recorded admission is no
different from the disparaged manner in which the hearing court mechanically assessed the evidence in
People v. Tankleff. Specifically, the county court in Tankleff was faulted for (1) discrediting unrelated and
unconnected witnesses who each implicated alternative suspects; (2) failing to evaluate the cumulative
effect of the new evidence and instead erroneously applying a narrow approach and methodology in
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evaluating the evidence; (3) applying a blanket disqualification of all of the defendants proffered
evidence by viewing all of the new witnesses as questionable, untrustworthy, or unreliable; and (4)
dismissing the testimony of several witnesses as inadmissible hearsay. Tankleff, supra, 49 A.D.3d at 181.
Just as in Tankleff, Thibodeau called numerous witnesses to testify at the 440 hearing, each of whom
corroborated Wescotts recorded admissions to Priest that Steen, Breckenridge, and Bohrer abducted Allen
from the D&W on April 3, 1994. Like the lower court in Tankleff, the County Court here took a dismissive
view of Thibodeaus witnesses, most of whom were not connected, yet all of whom reported admissions
made by the three suspects. Interestingly, the County Court acknowledged in its decision that there was a
plethora of information provided by a multitude of sources, but, based on a mechanical assessment of the
evidence, concluded that none of their testimony can be corroborated or deemed credible. (A. 34).
Because the new evidence concerning Wescotts account would have led to a more favorable verdict, this
Court should grant Thibodeaus motion.
2.

The introduction of William Pierces testimony would change the outcome at


a new trial.

The County Court took great pains to undermine the testimony of William Pierce, who identified
Steen as the man who carried Allen toward a van not belonging to Richard Thibodeau at the D&W on the
morning of Allens abduction. As explained by Pierce, Steen exited a white van with a lot of rust on the
side of it, walked behind a girl and hit her behind the right ear on the base of her neck with his fist and
carried her to a van that was occupied by at least one other individual. (H.T., 977-78, 1034). Pierce made
clear that the van located in front of the D&W did not belong to Richard Thibodeau. (H.T., 975).
According to the County Court, Pierces testimony could not be credited for the following reasons:
(1) scientific evidence, not part of the instant record, has rendered eyewitness identification unreliable; (2)
he did not help the woman; (3) he reported seeing slush and snow on the road that morning; (4) he could
not identify dated pictures of either Thibodeau or Steen in a photo array; and (5) his identification came
twenty years after Allens abduction. (A. 49-60).

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Though apparently unknown to the County Court, the evidence presented against Thibodeau was
based to a considerable degree on the eyewitness testimony of Christopher Bivens, who, at trial, claimed to
be driving by the D&W at a speed of between 30 and 45 miles per hour when he saw a woman being carried
in a bear hug outside the D&W on the morning of Allens abduction. According to Bivens, one man was
holding the woman from behind, while another man stood nearby, even though Bivens first reported to
police that the two men were simply arguing with a woman near the front porch. (T.T., 3120). All three
were located near a cargo van that Bivens claimed, at trial, belonged to Richard Thibodeau, even though in
one of his original statements to police, Bivens said Thibodeaus van was the right style, but the wrong
color. (T.T., 1342). Although he described the abductors as tall and burly (neither of which characteristics
would ever be applied to Thibodeau), Bivens could not identify the two men or the woman. In any case,
Bivens described the event as a domestic dispute with which he did not care to become involved.
Consequently, the County Courts reliance on research to undermine the validity of Pierces
eyewitness identification also serves to undermine Bivenss supposed identification. Indeed, reliance on
Pierces failure to aid the apparent victim of abuse to undermine his account applies equally to Bivens, who
also failed to assist the victim of an apparent abduction. Even more problematic, Bivens initially indicated
that the three individuals were merely arguing outside of the store and near a van Bivens claimed was blue.
He changed his story to claim the woman was in a bear hug near Richard Thibodeaus van only after nearly
continuous contact with police, intense media coverage, and the announcement of a reward. (T.T., 12901345). Without Bivens, the Peoples primary trial evidence against Thibodeau is reduced to the out-of-court
statements of two jailhouse informants, neither of whom, as noted above, could provide a coherent and
consistent account of or a plausible motive for Thibodeaus alleged involvement.
In addition to undermining the Peoples sole eyewitness, the County Courts reliance on the
scientific evidence concerning eyewitness accounts is problematic on its own. Without either party so much
as mentioning this scientific evidence, the County Court cited it for the first time in its Decision and Order.
Relying principally on the Court of Appealss decision in People v. LeGrand, 8 N.Y.3d 449 (2007), the
County Court noted its awareness of the significant multitude of research which has been published in the
89

recent years about the credibility of eyewitness identifications. (A. 52). Then, citing a publication from
the National Research Council of the National Academies, the County Court identified the general concerns
underlying eyewitness identifications. (A. 54).
There are several problems with the County Courts treatment of this scientific research. First,
neither party cited to the research nor was given an opportunity to address its application to Pierce (or, for
that matter, Bivens). Second, and relatedly, the case cited by the County Court People v. LeGrand
merely permits the trial court discretion to allow a party to introduce expert testimony concerning how the
scientific evidence may be applied in a specific case. It does not purport to authorize a court on its own to
interpret and apply scientific evidence to particular cases, especially in the absence of either partys input.
Because neither party introduced an expert, the court was left to interpret how it might use the research to
assess Pierces testimony. Finally, much of the research, save the length of time in reporting the incident,
does nothing to call into question Pierces identification. Pierce observed the incident for approximately
twenty seconds in the morning light and made a same-race identification during an incident that did not
involve a weapon and induced no fear and no more than a moderate level of stress in him. xix See National
Research Council of the National Academies, Identifying the Culprit: Assessing Eyewitness Identification
48-50 (2014) (noting accuracy of identification improves with greater light level, duration of observation,
same-race identification, and the absence of threats, weapons, or stress).
Beyond the problems associated with the scientific evidence concerning eyewitness identification,
the County Courts factual considerations relied upon to discredit Pierce do not survive scrutiny for several
reasons. First, though not mentioned by the County Court, Pierces account of slush on the road is matched
with testimony from the prosecutions own trial witnesses. Don Neville described the road conditions as
really slushy, snowy and slushy, and wet slushy snow. (T.T., 1786, 1810, 1962). Likewise, William
Cowen agreed the weather conditions were snowy with about an inch, half an inch of snow or so on the
ground. (T.T., 1869). Brittany Link also agreed the conditions were snowy. (T.T., 1846). Finally, Bivens
drove by the D&W convenience store on the morning of Allens abduction and it was raining, a little snow
in the air. It was like a bluish hazy day. (T.T., 1289).
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The County Court discredited Pierces description of slush on the road because two photographs
of the D&W introduced by the prosecution did not depict slush on the road. (A. 3027, 3114). However, the
County Courts reliance on these two exhibits must fail because (1) the photographs were taken well after
Allen was abducted and after the slush had melted; and (2) the prosecutions own witnesses at trial, as just
noted, described snow and slush on the road earlier that morning.
Second, though overlooked by the County Court, Pierces failure to identify Steen in a photo array
comes with an obvious explanation. In 2014, Pierce recognized an image of Steen in newspaper articles.
He was able to say with certainty that he witnessed Steen assault Allen on the morning of her abduction.
Pierce was presented with a photo array prior to the hearing. Although Allen was abducted in 1994, the
photo array included an image of Steen taken from 1988. Though Steen wore a full beard in 1994, the
image in the photo array depicted him with a young clean-shaven face. (H.T., 2219, 2222-23). Obviously,
Pierce did not recognize this image as Steen. (H.T., 978, 2219).
Finally, while it is true that Pierce did not immediately notify law enforcement after witnessing
Steen assault Allen on the morning of her abduction, the County Court failed to even take Pierces
explanation into account. In 1994, Pierce thought the assailant might be Gary Thibodeau after he drew a
beard on a photo of Thibodeau that was in the newspaper. Upon seeing James Steens photograph in the
newspaper in 2014, he instantly knew Steen was the man he observed that morning. The fact that 20 years
had lapsed between Pierces observation and the time he notified law enforcement is of little moment. It
was not until 2014 that Pierce had any need to come forward. Until then, he operated under the assumed
(though incorrect) conclusion that law enforcement officers had apprehended Allens assailant.
The factors relied upon by the County Court to discredit Pierces identification of Steen stand in
stark contrast to those relied upon in other cases involving new identification evidence. For example, in
People v. Penoyer, 135 A.D.2d 42 (3d Dept 1988), the Court rejected new identification testimony because
the witness was not in a position to see the described event, was looking at an event claimed to have occurred
in the direction of blinding sun, and only came forward after a result he did not fancy was reached by the
jury. Id. 44-45. The new witness in Penoyer was also said to be an avid newspaper reader and television
91

viewer, . . . with a good deal of time on his hands, much of which he spends visiting with people at area
coffee shops and taverns. Id. at 45. He was also described as a talker, storyteller, one who exaggerates
and embellishes, and who enjoys being the center of attention. Id. Courts have also rejected new witness
identification testimony where the trial witness had a longer and better view of the incident. See, e.g.,
People v. Alston, 91 A.D.3d 448 (1st Dept 2012). New identification testimony has also been rejected
when the new witness has a motive to embellish her account. See, e.g., People v. Cintron, 306 A.D. 151
(1st Dept 2003); People v. Buari, 50 A.D.3d 483 (1st Dept 2008). Finally, a witnesss testimony in support
of a new trial has also been deemed incredible where it would conflict with testimony offered in support of
defendant at trial. See People v. Greene, 150 A.D.2d 604 (2d Dept 1989).
In contrast to the witnesses in each of these cases, Pierce was in position to make a lengthy
observation of Allens abduction and he had no basis upon which to fabricate Steens involvement, either
through a motive for or against Steen or Thibodeau or out of a self-interest for local notoriety. There is also
no basis upon which to prefer Bivenss account to Pierces. Indeed, Pierce, who was stationary while
waiting to turn was afforded a better and closer position from which to view the incident than Bivens, who
claims to have seen the incident occurring closer to the store (and thus at a greater distance from where
Pierce saw the incident) and while he was traveling at a speed of between 30 and 45 miles per hour. Finally,
Pierces account of Allens abduction fully exonerates Thibodeau; it does not conflict with any description
of the abduction offered by him at trial.
Even setting aside the County Courts rejection of the identification of Steen, the court failed to
consider a separate, though equally exonerating aspect of Pierces testimony that the abduction was
committed with a van not belonging to Richard Thibodeau. Pierce testified at the 440 hearing that he
witnessed the man who struck a woman on the morning of Allens abduction exit a white van with a lot
of rust on the side of it. (H.T., 975). When shown a picture of Richard Thibodeaus van and asked whether
that was the van he saw on the morning of the abduction, Pierce unequivocally stated that it was not. (H.T.,
977). Though the People focused their cross-examination on Pierces identification of Steen, they asked
no questions concerning his identification of the van. Because no evidence established Pierce could have
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been mistaken as to his testimony excluding Richard Thibodeaus van from Allens abduction, this Court
should grant Thibodeaus motion.
3.

Taken Together, the Accounts from Pierce and Wescott Would Result in a
More Favorable Verdict.

Though a hearing court is normally accorded discretion to make factual findings and credibility
assessments, this Court should exercise its inherent authority to reject those determinations and find the
new accounts of Wescott and Pierce (even if not deemed sufficient in isolation) taken together would likely
result in a more favorable verdict. In fact, this Court recently did this exact thing in Bryant, supra, 117
A.D.3d 1586 (4th Dept 2014). After the defendant in Bryant was convicted of assault, he moved for a new
trial on the basis of new eyewitness testimony. Though the hearing court found the new testimony
incredible, this Court reversed and granted the motion on the basis of the new eyewitness testimony.
At trial, the defendant in Bryant was convicted on the basis of the identification of the victim, even
though the victim informed the police officers investigating the shooting that, because he wore glasses, he
was unable to identify the shooter. Id. at 288. In support of his motion, the defendant offered the testimony
of a new witness who claimed to have observed another person shoot the victim. Id. A second witness
offered by the defendant claimed to have observed men on the street before and after the shooting. Id.
Though she knew the defendant from the neighborhood, she claimed that he was not present before or
immediately after the shooting. Id. Recognizing that the identification evidence against the defendant at
trial was weak, this Court held that the testimony of the first witness, when combined with the information
obtained from the second witness and the trial testimony of defendants alibi witness, would probably
change the result if a new trial were granted. Id. at 289-90.
As in Bryant, Thibodeau offered accounts from two new eyewitnesses to Allens abduction and
removal from D&W. Pierce made an identification of a different suspect using a different van. Wescott,
whose accuracy could not be questioned, admitted that Allen was brought to her residence following the
abduction. Together, the two new accounts answer the only question contested at trial: who was responsible
for Allens abduction. While the County Court may not have believed the new evidence conclusively

93

established the culpability of Steen, Breckenridge, and Bohrer, that was not really the question. Instead,
the sole question is whether the new evidence whose admissibility has never been questioned would
have raised a reasonable doubt as to Thibodeaus guilt. See Bellamy, supra, 84 A.D.3d at 1262. Although
the County Court failed to address that question, this Court, as it did in Bryant, should find that the new
evidence, taken together and viewed holistically, would result in a more favorable verdict.
Moreover, the new evidence offered by Thibodeau is no different from the evidence relied upon by
the Third Department when it granted a new trial in People v. Wong, 11 A.D.3d 724 (3d Dept 2004). The
defendant in Wong was convicted at trial of a prison murder on the basis of eyewitness testimony from a
prison guard and a fellow inmate. The prison guard testified that he observed one of several hundred
inmates stab another from his position atop a tower more than 100 yards from the incident. Id. at 725. The
fellow inmate claimed to have witnessed the defendant walk up behind the victim and hit him. Id. In
support of his motion for a new trial, the defendant offered the recantation of the fellow inmate and the
testimony of 10 witnesses, six of whom identified [a recently deceased third-party] as the perpetrator. Id.
The remaining evidence was offered for the purpose of corroborating a motive for [the alternative suspect]
having committed the murder or for the purpose of stating that defendant did not commit the murder. Id.
The Third Department reversed the hearing court and found the new evidence created a probability
of a more favorable verdict. As for the recantation evidence, the court found it had an aura of believability
because of the testimony of the other witnesses at the hearing and the lack of trial evidence connecting
defendant with the commission of the crime or establishing a motive for him to commit the crime. Id. at
726. With respect to the evidence provided by the other inmates, the Third Department found that the
hearing court erred in finding that certain minor inconsistencies in their testimony were sufficient to
require that the testimony as a whole be considered incredible. Id. As for the remaining trial evidence,
the Wong Court noted the defendant was not challenging the credibility of the prison guard, but rather the
reliability of his identification, given the distance that he was from the crime scene, as well as certain other
inconsistencies between his trial testimony and his earlier statements and grand jury testimony. Id.
Moreover, though the Peoples theory of how the crime was committed would have created a sufficient
94

amount of blood to have splattered over the perpetrator, the prosecution provided no physical evidence
or motive linking defendant with the crime. Id.
Just as in Wong, Thibodeau has provided evidence from two new eyewitnesses to Allens
abduction. He has also provided incriminating statements made by the alternative suspects to numerous
unrelated individuals. Thibodeau has also offered a motive for and physical evidence to corroborate the
alternative suspects abduction of Allen. Finally, as in Wong, the evidence at Thibodeaus trial failed to
establish a motive for his involvement or any physical evidence linking him to the crime, despite a
prosecution theory that would have necessarily created corroborative physical evidence and despite
investigators unfettered access to the alleged crime scenes. Therefore, as found by the Wong Court, this
Court should hold that had the new evidence been available at trial, a probability exists that Thibodeau
would have received a more favorable verdict.
III.

THE COUNTY COURT VIOLATED THIBODEAUS STATE AND FEDERAL DUE


PROCESS RIGHTS BY LIMITING HIS PRESENTATION OF THIRD-PARTY
CULPABILITY EVIDENCE.
The Constitution guarantees criminal defendants a meaningful opportunity to present a complete

defense. This right is abridged by evidence rules that infringe upon a weighty interest of the accused and
are arbitrary or disproportionate to the purpose they are designed to serve. Holmes v. South Carolina, 547
U.S. 319, 324 (2006). This right is derived from the more general right of an accused to present evidence
in his defense found in the Confrontation and Compulsory Clauses of the Sixth Amendment, see
Washington v. Texas, 388 U.S. 14, 19 (1967) (construing Compulsory Process Clause to entitle state
defendants to present witnesses in their favor); Pointer v. Texas, 380 U.S. 400, 404(1965), and the Due
Process Clauses of the Fifth and Fourteenth Amendments. See also Crane v. Kentucky, 476 U.S. 683 (1986)
(Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, . . . or in the
Compulsory Process Clause or Confrontation clauses of the Sixth Amendment, . . . Constitution guarantees
criminal defendants a meaningful opportunity to present a complete defense.). Encompassed within the
right to present a defense is the right to present evidence that someone else (a third party) committed the
offense. See People v. Willock, 125 A.D.3d 901 (2d Dept 2015).
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Evidence offered by a defendant pursuant to his right to present a defense is subjected to the
general balancing analysis that governs the admissibility of all evidence. People v. Primo, 96 N.Y. 2d 351,
356 (2001). Accordingly, relevant evidence of third-party culpability may only be excluded if its probative
value is outweighed by the prospect of trial delay, undue prejudice to the opposing party, confusing the
issues or misleading the jury. Id. at 355. Even if otherwise relevant, [t]he admission of third-party
culpability may not rest on mere suspicion or surmise. Id. at 357; People v. Schulz, 4 N.Y. 3d 521 (2005).
At various points during the proceedings below, Thibodeau offered evidence supporting and
corroborating the primary new evidence linking Steen, Breckenridge, and Bohrer to Allens abduction.
More particularly, Thibodeau offered evidence implicating Michael Bohrer, including his criminal history,
his incriminating admissions, his collection of articles surrounding Allens abductions, his own writings,
his behavior throughout the investigation, and a profile prepared by a forensic investigator shortly after
Allens disappearance. Thibodeau proffered additional evidence through Bohrers brother, John Bohrer,
establishing that Bohrer was well-acquainted with the other suspects, that he sold narcotics in the area
surrounding Allens abduction, and that he appeared fixated on Allen. Thibodeau also sought to proffer yet
additional evidence linking Bohrer to Allens abduction through an affidavit from Melissa Adams, who
received a bracelet belonging to Allen from an anonymous source after discussing Allens abduction in
Bohrers presence. Finally, Thibodeau sought to introduce admissions made by Steen, Breckenridge, and
Wescott.
The County Court rejected this evidence in its entirety, declaring it too speculative, immaterial,
unreliable, based upon hearsay, or moreover, irrelevant and concluded, [w]hile the Court applauds
defendants attorneys for leaving no stone unturned in its investigation, zealous representation cannot
require this Court to take off its figurative judicial hat and replace it with a law enforcement badge that
allows this Court to review the proposed evidence under a different standard of review. (A. 1898). The
County Courts rejection and refusal to consider this evidence violated Thibodeaus right to present a
defense.

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A.

Molineux Does Not Bar the Admissibility of Bohrers Prior Related Conduct.

Throughout the proceedings below, Thibodeau sought to introduce the following evidence concerning
Bohrers prior related conduct involving women:

A 1980 conviction in Wisconsin for disorderly conduct in which Michael Bohrer


followed a woman driving home from work and attempted to force her off the road.
When the victim came to a stop, Bohrer exited his vehicle and forced himself on the
woman. (A. 1593, 1631-36).

A 1981 felony conviction in Wisconsin for false imprisonment in which Michael


Bohrer and his brother, John Bohrer, followed a woman from work into a parking lot.
After the brothers exited their vehicle, Michael Bohrer placed his arm around the
victims neck and dragged her back to his car. With Johns assistance, Michael
attempted to wrestle her into his car before the victim managed to break free and run
to safety. (A. 1426-28, 1433-34, 1616-29).

His sexual, physical, and emotional abuse of his wife and daughters between 1975 and
1983. (A. 1593, 1670, 1672-75).

A 1985 suspected commission of attempted murder and sexual assault in Beacon, New
York, in which the victim, whom Bohrer met at her work, recalled being awakened by
Bohrer, being told by Bohrer that he wanted to fuck her roommate too, and then
running through her apartment trying to get away from Bohrer before she was found
naked lying in a pool of blood. (A. 1593, 1595-98, 1628-1688).

Thibodeau sought to introduce this evidence to prove that Bohrer had the motive, the know-how, the
wherewithal, and experience to brazenly and forcefully kidnap a young female, who fit a certain type, in a
public place, in broad daylight, without disguise, and thus with an apparent motive to kill the victim. The
other crimes Bohrer committed also contradict his own statements to Sheriffs investigators and his 440
hearing testimony, during which he stated he was neither capable of violence nor did he commit acts of
violence against women. (H.T., 409-10; A. 2508 at 4:31, 27:50-27:55, 28:12, 28:50-29:01).

The

circumstances surrounding Bohrers prior violent acts against women also demonstrate his willingness to
inject himself directly into the investigation, feign concern for the victim, and express a desire to capture
the perpetrator, just as he did in this case.
Thibodeau argued all of this evidence was relevant because it was similar in nature to the Allen
abduction, and denying him the right to introduce evidence concerning the unique circumstances of
Bohrers prior conduct violated his federal and state constitutional rights to present a defense of third-party
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culpability. See Chambers, supra; Green v. Georgia, 442 U.S. 95, 97 (1979); Crane, supra; Holmes, supra;
People v. Robinson, 89 N.Y. 2d 648 (1997); People v. Oxley, 64 A.D.3d 1078 (3d Dept 2009).
The County Court held Bohrers prior related conduct was not admissible under People v.
Molineux, 168 N.Y. 264 (1901). For example, the County Court found the underlying facts and substantive
nature as to how Bohrer attempted to take a woman into his vehicle was inadmissible because the manner
in which Heidi Allen was abducted and presumably killed is still not known. (A. 1893). Despite evidence
to the contrary, the County Court held there were no unique facts pertaining to the 1981 conviction which
link Michael Bohrer to Ms. Allens disappearance and hypothesized [i]f defendant were allowed to admit
a conviction based on these broad facts, i.e. that Michael and John Bohrer followed a woman in a parking
lot around 1:00 A.M. and attempted to put her in their car, then defendant would be casting a wide net
involving anyone who lived in or around the vicinity of Oswego County in 1994 and who had a prior ten
to fifteen year old out-of-state false imprisonment conviction involving a woman. (A. 1894-95).
Contrary to the County Courts decision, Molineux does not bar the introduction of this evidence.
The general evidentiary rule is that [a] person cannot be convicted of one offense upon proof that he
committed another, however persuasive in a moral point of view such evidence may be. Molineux, 168
N.Y. at 292. Importantly, the exclusion of propensity evidence is designed to protect the defendant from
wrongful conviction. Although propensity evidence is relevant, the risk that a jury will convict for crimes
other than those charged or that, uncertain of guilt it will convict anyway because a bad person deserves
punishment creates a prejudicial effect that outweighs ordinary relevance. Old Chief v. United States,
159 U.S. 172, 181 (1997).
In the case of third-party culpability evidence, the third party is not on trial and the risk of wrongful
conviction is non-existent. In other words, the protections laid out in Molineux are for the benefit of a
defendant, not an uncharged third party. Indeed, it would be passing strange if rules designed to protect a
defendant were also applied to handicap his attempt to mount a defense. This is why courts have relaxed
the traditional Molineux standards when prior bad act evidence is offered by a defendant in support of a
third-party culpability defense. See, e.g., United States v. Aboumoussallem, 726 F.2d 906, 911 (2d Cir.
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1984) (We believe the standard of admissibility when a criminal defendant offers similar act evidence as
a shield need not be as restrictive as when a prosecutor uses such evidence as a sword.); State v. Garfole,
76 N.J. 445, 452-53 (1978); United States v. Stevens, 935 F.2d 1380, 1404-05 (3d Cir. 1991). Far from
requiring the type of similarity normally required by Molineux, these courts have permitted introduction of
the evidence if, in the absence of a countervailing policy concern, it tends to refute [the defendants] guilt
or buttress his innocence of the charge made. Garfole, 76 N.J. at 452-53.
Indeed, as the New York Court of Appeals made clear in Primo, evidence of third-party culpability
does not constitute a special or exotic category of proof. Primo, supra, 96 N.Y.2d at 356. Instead, thirdparty evidence is subjected to the same standard generally governing the admissibility of any evidence. Id.
To be admissible, the evidence must be relevant and its probative value must outweigh some countervailing
policy concern. Id. Evidence of third-party culpability in the form of prior crimes and bad acts evidence
are subjected to this same standard and are not limited to the categories outlined in Molineux.
By limiting its analysis to the Molineux factors, the County Court failed to assess the admissibility
of the evidence of Michael Bohrers related prior conduct in the full context of the evidence establishing
his participation in Heidi Allens abduction. The prior related offense evidence is not some free-standing
claim of propensity. Instead, it was offered in combination with Bohrers testimony; William Pierces
testimony identifying James Steen and another unidentified person in Heidi Allens abduction; Pierces
identification of a different van than the one owned by Richard Thibodeau; the monitored phone call
between Wescott and Priest, in which Wescott acknowledged Bohrers presence at her residence, where
Allen was brought on the morning of her abduction; the March 21, 2013, interview between Bohrer and
two Sheriffs investigators, in which Bohrer failed to mention his brother, John Bohrer, and denied the
capacity to abduct someone or to commit violence; Tyler Hayess and Danielle Babcocks testimony
recounting incriminating statements made by Bohrer; Lead Sheet 977, which indicates that Bohrer was
driving a black pickup truck in April 1994 and left around Easter and returned around April 20, 1994;
Bohrers bizarre obsession with the case, as evidenced by his notes and maintenance of other investigative
files and pictures of Allen; the profile report of Agent Van Zandt; and Melissa Adamss recovery of a
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bracelet described in Bohrers notes after Adams discussed the bracelet in Bohrers presence. Holistically
assessing the prior related conduct evidence within the entirety of the evidence concerning Bohrers
connection to the abduction, this Court should find that the evidence tends to establish Thibodeaus
innocence and is not outweighed by a countervailing policy concern. A contrary finding would violate
Thibodeaus constitutional right to present a defense.
Even if Molineux were rigorously applied, this evidence is still admissible. The Court of Appealss
recent decision in People v. DiPippo, supra, amply demonstrates why. In DiPippo, the defendant was
convicted of felony murder and first degree rape of a 12-year-old girl, who disappeared in October, 1994,
and whose body was recovered nearly one year later in a wooded area off a dirt road known as Marijuana
Road. DiPippo, 27 N.Y.3d at 131, As explained by the DiPippo Court, [t]he victims remains were
found with rope tied around her wristswhich were behind her backand looped around her neck and
down to her ankle in a hogtied position. The victim did not appear to have been wearing clothing, and the
deteriorated remains of her underwear were found balled up at the top of the skeleton's spine. Id. at 135.
Not surprisingly, the defendant argued that he did not commit the rape and murder. In addition to
casting doubt on the main witness to the alleged crime, the defendant sought to offer various forms of thirdparty culpability evidence implicating an alternative suspect. More particularly, the defendant proffered an
affidavit from a former prison inmate, in which the affiant detailed incriminating admissions the third party
made to him while incarcerated. Id. at 131-32. In sum, these admissions established the third partys
familiarity with the victim during the time of her disappearance, that he had sex with the victim in a red car
around the time the victim disappeared, and that he had to persuade her. Id. 132. The third party also
identified another missing girl whose body he claimed would never be found. Id. The affiant interpreted
[the third partys] statements to him as boasts that [he] had killed both girls, and that defendant [was]
wrongly prosecuted for killing the victim. Id. Beyond the third-party admissions, defendant proffered
evidence indicating the alternative suspect knew and spent time with the victim and that defendant had
access to a red car. Defendant proffered evidence from a witness who claimed to have seen the victim get
into a red car driven by a person she could not identify but bore a resemblance to the third party. Finally,
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defendant proffered evidence that the third party had sexually assaulted two minor children on some
occasions in the woods, while restraining their hands (in at least one instance with a rope in a hogtied
fashion), and shoved articles of clothing in their mouths. Id. at 139.
On appeal, the DiPippo Court held that defendants so-called reverse Molineux evidence
concerning the alternative suspects prior related offenses was admissible. Although acknowledging
defendants invitation to adopt a more relaxed standard, the DiPippo Court found that the evidence satisfies
the traditional Molineux standards. Id. at 138. More particularly, the DiPippo Court held that the evidence
reflected a modus operandi, which ordinarily requires that similarities between the prior and instant offenses
are unusual enough to compel the inference that the [same individual] committed both. Thus, the . . .
modus operandi must be sufficiently unique to make the evidence of the uncharged crimes probative of
the fact that [the individual] committed the one charged. Id. at 139 (quoting People v. Beam, 57 N.Y.2d
241, 251 (1982), in turn quoting People v. Condon, 26 N.Y.2d 139, 144 (1970)). Ultimately, the DiPippo
Court found that the characteristics of the third partys prior offenses, in particular, the shoving of the
clothing in the victims mouths which is consistent with the state of the victims body when it was found
and the prosecutions theory of the potential cause of her death are sufficiently unique for those bad acts
to qualify as modus operandi evidence connecting [the third party] to the victims death. Id.
As in DiPippo, Thibodeau proffered evidence of a sufficiently unique character to establish
Bohrers connection to Allens abduction. Each of his prior offenses were committed against women who
he followed from work (1980 and 1981 abductions) or previously met through their employment (1985
rape and assault) with an apparent sexual motive. Moreover, at least two of his prior offenses involved the
attempted abduction of a young (18 and 21 years old, respectively), Caucasian, blonde (or dirty blonde)
woman, outside of a building, as the victim was leaving work, without disguise or subterfuge, accomplished
by physically restraining the victim from behind and forcing her into a vehicle, and committed with no
apparent financial motive. No greater similarity is required. Beam, 57 N.Y.2d at 253 (1982) (It is not
necessary that the pattern be ritualistic for it to be considered unique; it is sufficient that it be a pattern

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which is distinctive. This is not to say each element of the pattern must be in and of itself unusual; rather
the pattern, when viewed as a whole, must be unique.).
Indeed, other courts have found a modus operandi based on less unusual commonalities than found
here. See, e.g., St. Clair v. Commonwealth, 455 S.W.3d 869 (Ky. Feb. 19, 2015) (permitting introduction
of evidence that, following escape from Oklahoma prison, defendant and accomplice had carjacked at
gunpoint prior victim who had been driving late-model small pick-up truck, handcuffed victim, and took
victim from scene rather than just taking truck, to prove identity based on modus operandi, in that, in instant
case, defendant and accomplice had also used gun and handcuffs to steal specific type of truck and to abduct
victim to prevent him from reporting theft to police); State v. Hyatt, 355 N.C. 642 (2002) (upholding
admission of prior kidnapping evidence where [i]n each of the three cases, the perpetrator captured lone
females, took them to isolated locations in Buncombe County, and committed or attempted to commit the
same crimes against them by using or threatening to use a knife.); Com. v. Kater, 432 Mass. 404 (2000)
(permitting evidence of prior kidnapping where both prior victim and instant victim were young teenaged
girls, both were abducted and placed in a car while walking or riding their bicycles alone on rural residential
roads, both were brought to dense and remote wooded areas within 20 miles of sites of their abductions,
and both were tied in a similar manner); Com. v. Jackson, 417 Mass. 830 (1994) (affirming introduction of
evidence of prior incident in which bound man was discovered in defendants car to establish identity in
kidnapping prosecution); State v. Bible, 175 Ariz. 549 (1993) (authorizing admission of evidence of prior
kidnapping convictions in kidnapping prosecution where both incidents occurred in the same area, both
incidents involved a vehicle, both victims were Caucasian female minors, both victims had their clothes
removed and their hands tied behind their backs, both offenses occurred during daylight hours, and both
instances involved consumption of vodka and the use of a knife); People v. Perez, 2014 WL 2967608
(Cal.App.2 Dist. July 2, 2014) (finding evidence spanning several decades sufficiently similar to establish
modus operandi in charged attempted kidnappings because in each case the defendant approached young
women who were walking alone on the street, or sitting alone at bus stops, and urged them to get into his
car); State v. ODonnell, 2001 WSL 548714 (Ohio App. 4 Dist. May 21, 2001) (holding prior kidnapping
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offense established modus operandi where [b]oth crimes involved the kidnapping of appellant's
acquaintances who were believed to be drug dealers with significant amounts of cash. All three victims
were removed from their homes and taken to one of the abductors barns or garages.).
To require any greater similarity between the offenses would violate Thibodeaus constitutional
right to present a defense and unfairly benefit the People. This is because Bohrer, though of singular
purpose, was thwarted in his first two known abduction attempts, and Heidi Allens body has never been
discovered. Accordingly, no post-abduction similarity between the offenses can be drawn. However, a
jury is certainly free to conclude that Bohrers lack of disguise in the first two attempted abductions
demonstrated his plan never to release each victim. Therefore, this Court should find that the County Court
erred in failing to find Bohrers prior related conduct admissible.
B.

The County Court Erred by Excluding Relevant Evidence Tending to Corroborate


Third-Party Culpability.

Throughout the proceedings below, Thibodeau sought to introduce evidence tending to corroborate
Bohrers involvement in Allens abduction. This evidence included notes created and maintained by Bohrer
concerning his knowledge of Allens abduction, a forensic profile report created by a FBI Special Agent at
law enforcements request, physical evidence establishing Bohrers connection to Allens abduction, and
proffered testimony from Bohrers brother, John Bohrer. The County Court refused to consider any of this
evidence, either for purposes of a new trial or as evidence establishing Thibodeaus actual innocence.
Contrary to the County Courts conclusions, this evidence is relevant because it tends to corroborate
Bohrers participation in Allens abduction.
During the 440 hearing and 2013 law enforcement interview, Michael Bohrer admitted he had been
consumed with the Heidi Allen case for over twenty years. (HT, 419; A. 2508 at 4:28-4:46; 28:56-29:13).
His obsession caused him to conduct his own investigation into her disappearance, which included
interviewing people, collecting documents, and creating his own notes about his findings. (H.T., 509).
Bohrer provided the Sheriffs Department with a box of documents, which he kept for twenty years and
stored in the front seat of his van. (H.T., 470-73; A. 2500-03). Documents found in the box covered a

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variety of subjects, including a discussion of Allen as a confidential informant, a summary of Allens work
schedule (and the fact that Allen was not scheduled to work on the day of her abduction), a description of
the manner in which Allen was killed and how her remains were burned, and a conclusion that Allens
information about drug activity was a likely motive for her death. (H.T., 486, 489; A. 1804-08, 2562-2575,
2595-2606).
Thibodeau also sought to introduce evidence from FBI Supervisory Special Agent Clinton Van
Zandt regarding the third-party culpability of Michael Bohrer. (A. 1696-1724, 1742-1808). Five days
following Allens abduction, Van Zandt created a profile report to assist the Oswego County Sheriffs
Department with their investigation into the abduction of Heidi Allen. (A. 1700-01). The profile report
described kidnapping offenders as people who inject themselves into an investigation by providing false
and misleading information to law enforcement to misdirect the investigation away from themselves;
volunteer to participate in the search of the missing victim; follow the investigation closely to provide police
with logical reasons for their behavior if they become a suspect; collect newspaper articles detailing the
crime; and create their own writings and drawings. Id. If the kidnapping involved a sexual motive, the
report indicated that the kidnapper would keep a souvenir such as jewelry taken from the victim. (A. 1701).
As was painfully obvious, Michael Bohrer engaged in the exact conduct outlined in Van Zandts
report. He provided several false leads to investigators and false accounts of where he was living and the
vehicle he was driving at the time of Allens abduction (A. 1696-1724, 1742-1808); created numerous
writings detailing his own investigation into Allens abduction, where he referred to himself as Investigator
A (H.T., 482; A. 1804-08, 2562-2575, 2595-2606); maintained a box of documents pertaining to the Allen
abduction for more than 20 years that included police reports, newspaper accounts and pictures of Heidi
Allen (H.T., 470-73; A. 2500-03 ); opened a business across the street from the Heidi Allen command
center weeks after Allen was abducted (H.T., 440; A. 1594-98); and authored The Heidi Triangle, which
contains details of his contact with Allen prior to her abduction (H.T., 1627-57; A. 2595-2606).
The County Court also precluded Thibodeau from introducing the testimony of Melissa Adams,
Heidi Allens cousin, about an ID bracelet she gave Allen for her graduation. (A. 1812-1827). Adams was
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speaking to her sister soon after Allens abduction about this bracelet and wondered if Allen was wearing
it when she was abducted. Adams recalled Michael Bohrer being present when she spoke with her sister
about the bracelet. Bohrer admitted being present during this conversation. (H.T., 616, 626). Even more,
Bohrers notes referenced Allen hiding a bracelet in the vehicle used in her abduction. (A. 1806). This
bracelet mysteriously appeared in Adamss mailbox in a plain white envelope years after Allens
disappearance. (A. 1813-14, 1824-25). Although the prosecution consented to admitting Adamss proposed
testimony, the County Court miscomprehended its significance, stating that, Melissa Adams (Searles),
who claims she received a bracelet in the mail which was similar to the one her cousin Ms. Allen wore,
although Ms. Adams does not know who sent her this bracelet, or in fact, if it is the same bracelet that Ms.
Allen was known to wear. (A. 1828, 1897).
The proffered evidence by Adams, however, affirmatively stated that the bracelet she discovered
in her mailbox was in fact the bracelet she had given Allen and there was never any suggestion that it was
merely similar. Nevertheless, the Court stated, [t]he Court sees no evidentiary purpose for this testimony
as it has not been established that this bracelet was, in fact, the bracelet belonging to Ms. Allen. (A. 1905).
This is directly contrary to the proposed testimony, and the County Courts finding of fact was made without
ever assessing Adamss credibility.
Finally, the County Court, for unknown reasons, denied Thibodeaus request to introduce testimony
from Michael Bohrers brother, John Bohrer. Proffered evidence from four affidavits established that John
Bohrer lived with his brother in the New Haven area between 1990 and 1994. (A. 1430-31, 1500-02, 169192, 1884-85). This included living at the corner of County Route 6 and 104(B), Spinners Motel, at certain
times between 1991 and April 1994. Id. John also lived with Michael Bohrer in a house he rented when
they moved to New Haven. (A. 1884). The location of this house was in New Haven, on Mason Road, not
far from the D&W where Allen worked and was abducted. (H.T. 415). John confirmed that both he and
his brother knew Steen, describing him as heavy set with longer dark hair. (A. 1502). In 1992 or 1993,
Michael drove John to the convenience store to see if the broad was working there. (A. 1884-85). Michael

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stayed in the car and John went into the store looking for the girl. (A. 1884). The girl was not working so
he returned to the car and informed Michael of her absence. Id.
Taken together, this evidence establishes that Michael Bohrer was living in close proximity to the
D&W; he went to the D&W on a daily basis where Allen made him sandwiches; he was obsessed with
Allens disappearance as displayed in his notes; he lied to investigators regarding the reason for his
obsession when he talked about his daughters; he previously committed or attempted to commit several
acts against women; he called false leads to the Sheriffs Department about the case; he left the area for two
weeks following Allens disappearance; he injected himself into the investigation; he feigned concern for
Allens well-being; he opened up a business across from the Heidi Allen Command Center; he became
emotional during his post-conviction testimony when he described the difficulty he had driving by the
missing Heidi billboard; he hid the existence of his co-defendant John Bohrer in a prior attempted
kidnapping and the fact they lived together in New Haven; he was tied into the junkyard with Breckenridge
and Steen and told investigators Allen could have wound up at the junkyard (H.T., 467-68; A. 91, 183, 185200); he told investigators he knew his name would one day pop up in this investigation (A. 188); he lied
about his capacity to commit violent acts against women (H.T., 409); on November 29, 2000, he became
emotional when he admitted to Tyler Hayes he has been burdened with Allens disappearance and disposal
of her body and the Thibodeaus were not involved (H.T., 201); he threatened Danielle Babcock that he
would do to her what he did to Heidi (H.T., 634); and he knew about Allens informant card being dropped
in the parking lot of the D&W before the information was made public (H.T., 581). Failing to admit this
evidence deprived Thibodeau of his right to present a defense.

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C.

The County Courts Mechanical Application of the Hearsay Rules to Reject ThirdParty Admissions of Steen, Bohrer, and Breckenridge Denied Thibodeau His State
and Federal Constitutional Right to Present a Defense.

The County Court erroneously held that the following third-party admissions of Steen, Bohrer, and
Breckenridge were inadmissible hearsay and not permitted under the statements against penal interest
exception to the hearsay rule:

Tyler Hayes testified that he called the Oswego County Sheriffs Department on November 29,
2000, to inform that Michael Bohrer told him he knew who killed Allen and knew where her
remains were located. (H.T., 200-209; A. 2370-71).

Danielle Babcock testified that while working for Michael Bohrer he threatened to do to her what
he did to Heidi Allen. (H.T., 631-36).

Amanda Braley, Jessica Howard, Chris Combes, Jennifer Wescott, and Brittany Johnson revealed
they all heard similar admissions by Breckenridge, who consistently stated that Allen was long
gone as a result of being chopped up, burned in a woodstove, and sent to Canada. (H.T., 67071,674, 1131-32, 1149-50, 1154, 1157, 1465-66).

Ronald Clarke, Joseph Mannino, Amanda Braley, Tonya Priest, and Megan Shaw revealed Steen
had been heard stating Allen was long gone to Canada; the Thibodeaus were not responsible for
Allens disappearance; he destroyed the van used in Allens kidnapping; he would never go to
prison for what he did to Allen; he disposed of Allens body with others by putting her remains
under the floorboards of a cabin in the woods; and he believed Allen was a rat. (H.T., 640-42,
673, 759, 761, 1051).
The Supreme Court has acknowledged that state and federal rule makers have broad latitude under

the Constitution to establish rules excluding evidence from criminal trials. United States v. Scheffer, 523
U.S. 303, 308 (1998). However, that latitude has limits. Whether rooted directly in the Due Process
Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth
Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a
complete defense. Crane, supra, 476 U.S. at 689 (quoting California v. Trombetta, 467 U.S. 479, 485
(1984)). Indeed, the Supreme Court has on several occasions found certain rules of evidence infringe upon
a weighty interest of the accused or are arbitrary or disproportionate to the purposes they are designed
to serve. Scheffer, 523 U.S. at 308 (quoting Rock v. Arkansas, 483 U.S. 44, 58, 56 (1987)).
Of particular relevance to the instant case is the Supreme Courts decision in Chambers v.
Mississippi, 410 U.S. 284, 302-303 (1973). In Chambers, a defendant on trial for murder called an
107

individual who had previously confessed to the crime and had made three additional self-incriminating
statements to three other persons. The state trial court precluded the defendant from cross-examining the
suspect as an adverse witness and prohibited him from introducing his three separate self-incriminating
statements as inadmissible hearsay. The Chambers Court concluded the defendant had been denied a trial
in accord with the traditional and fundamental standards of due process. Id. at 302. As for the hearsay
statements, the Court held that the testimony of the three witnesses was offered under circumstances that
provided considerable assurance of their reliability. Id. at 300-01 (citations and footnotes omitted).
Because the hearsay statements were vital to the accuseds defense, the Chambers Court concluded that the
Due Process Clause required their admission, noting that where constitutional rights directly affecting the
ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends
of justice. Id. at 302 (emphasis added).
More recently, the Supreme Court has approvingly cited Chambers when addressing a state
evidentiary rule that barred evidence of third-party culpability. In Holmes v. South Carolina, 547 U.S. 319,
325-26 (2006), the Court unanimously concluded that the trial court erred in preventing a defendant from
introducing hearsay testimony that another person had admitted to committing the crime.
Courts in New York have jealously guarded the right to present a defense. To that end, New York
Courts have held that where, as here, the declarations exculpate the defendant, they are subject to a more
lenient standard, and will be found sufficient if [the supportive evidence] establish[es] a reasonable
possibility that the statement might be true. People v. Deacon, 96 A.D.3d 965 (2d Dept 2012) (quoting
People v. Settles, 46 N.Y.2d 154, 169170 (1978)); People v. Bradley, 99 A.D.3d 924 (2d Dept 2012)
(Indeed where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay
rule may not be applied mechanistically to defeat the ends of justice.) (quoting Chambers, 410 U.S. at
302); People v. Abdul, 76 A.D.3d 563, 565 (2d Dept 2010) (same).
In the context of statements against penal interest, this leniency appears to have been most
frequently applied to the fourth prong of the exception, which requires sufficient proof independent of the
utterance to assure the statements reliability. For example, in People v. McFarland, 108 A.D.3d 1121 (4
108

Dept 2013), the defendant sought to introduce evidence in the form of an affidavit from an individual to
whom a third-party confessed to killing the victim. Id. at 1122. Relying on the leniency provided to the
admissibility of hearsay statements offered in the service of a defendants right to present a defense, this
Court remanded the denial of his 440 motion for a hearing on whether sufficiently competent evidence
assured the statements trustworthiness and reliability. Id. at 1123. Third-party statements used against
the accused may be admitted only when competent independent evidence is presented to establish that the
declaration was spoken under circumstances which renders it highly probable that it is truthful. Declarations
which exculpate a defendant, however, as in the case at bar, are subject to a more lenient standard. People
v. Fonfrias, 204 A.D.2d 736 (2d Dept 1994) (citing People v. Brensic, 70 N.Y.2d 9, 15 (1987), and quoting
Settles, 46 N.Y.2d at 169-70) (emphasis added by Fonfrias). And the [t]he sheer number of independent
confessions may provide additional corroboration for each. Id. at 738 (quoting Chambers, 410 U.S. at
300).
Even more importantly, in circumstances surprisingly similar to those present here, courts in both
New York and other jurisdictions have also held that the unavailability requirement of the statements
against penal interest exception must give way to a defendants due process right to present a defense. For
example, in Oxley, surpa, 64 A.D.3d 1078 (3d Dept 2009), the Third Department held that the hearsay
rule, as applied, is arbitrary or disproportionate to the purposes [it is] designed to serve such that its
application infringed upon a weighty interest of the accused. Id. (quoting Scheffer, supra, 523 U.S. at
308, in turn quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)). Before addressing that particular question,
the Oxley Court observed a perverse consequence of the unavailability requirement:
As applied here, New Yorks common-law exception to the hearsay rule for declarations
against penal interest would permit the admission of Chases statements only if he asserted
his Fifth Amendment right and refused to testifymaking him unavailablebut those
statements are deemed inadmissible under this particular exception if he testifies that he
never made the statements. Yet the ability to challenge those statements through crossexamination when the witness testifies provides a better opportunity to test or assure their
credibility.
Id. at 1083-84.

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With that observation in mind, the Court found that when supported by the relevant non-hearsay evidence,
the hearsay third-party admissions bore persuasive assurances of trustworthiness and were critical to
Oxleys defense. Id. at 1093 (citing Chambers, 410 U.S. at 302-303; People v. Darrisaw, 206 A.D.2d 661,
665 (3 Dept 1994); Hawkins v. Costello, 460 F.3d 236, 245 (2d Cir. 2006)). Finding that the hearsay rules
must bend to a defendants right to present a defense was made easier by the Third Departments decision
in Darrisaw, in which the Court held that when a statement is exculpatory as to [a] defendant, a less
exacting standard applies in determining whether statements against penal interest are admissible, and
where the statement forms a critical part of the defense, due process concerns may tip the scales in favor
of admission. Id. (quoting Darrisaw, 206 A.D.2d at 664).
As held by the Third Department in Oxley, application of the unavailability requirement in this case
infringed on Thibodeaus weighty constitutional right to present a defense. At his original trial, Thibodeau
raised considerable doubt as to the prosecutions evidence against him. Through effective crossexamination, he established that no evidence (testimonial or physical) directly placed him at the D&W on
the morning of Heidi Allens disappearance and no evidence directly placed him with Allen at any point
thereafter. Cross-examination also called into question the accuracy and reliability of Christopher Bivens,
who claimed to have seen Allen in a bear hug as she was being abducted near a van in front of the D&W.
Additional doubt was raised concerning the statements attributed to Thibodeau by the jailhouse informants.
Despite the considerable doubt raised through skilled questioning of the prosecutions witnesses, defense
counsel was at a loss to establish an alternative theory to explain Allens abduction. This was partly owing
to the suppression of material evidence, including the fact of Allens role as an informant together with the
fact that her status was disclosed to some members of the public. Equally important, however, was the
unavailability of newly discovered evidence exonerating Thibodeau and establishing an alternative
explanation for Allens disappearance. Part of this newly discovered evidence comes from individuals with
first-hand knowledge concerning Allens disappearance, including William Pierce and Jennifer Wescott.
Still other new evidence comes in the form of circumstantial evidence, including testimony from Katheryn
Bamford. Further tying this evidence together are the admissions of Steen, Breckenridge, Bohrer, and
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Wescott. The County Courts failure to permit Thibodeau to introduce this newly discovered evidence
placed an undue burden on his right to present a meaningful defense.
IV.

THE COUNTY COURT ERRED BY FAILING TO ADDRESS THIBODEAUS CLAIM OF


ACTUAL INNOCENCE, WHICH WAS PROVEN BY THE NEWLY DISCOVERED
EVIDENCE.
Thibodeau raised a claim of actual innocence in his original motion. This claim is brought under

C.P.L 440.10(1)(h), which provides, as a ground for vacating a judgment, that [t]he judgment was
obtained in violation of a right of the defendant under the constitution of this state or of the United States
and Judiciary Law Section 2-b[3], which permits the Court to devise new processes where fairness so
requires, and thus provides an alternative mechanism for the Court to remedy the injustice of a wrongful
conviction .
The County Courts 64-page decision does not, even once, address Thibodeaus freestanding actual
innocence claim. Instead, the County Court repeatedly refers to and purports to apply the standards that
govern a motion for a new trial based on newly discovered evidence. (A. 31) (Defendant argues that his
conviction should be vacated based on the fact that newly discovered evidence, which could not have been
discovered during trial, would have resulted in a favorable verdict for defendant (CPL 440.10[1][g]);
(A. 32) (Pursuant to CPL 440.10 (1)(g), a court may vacate a judgment of conviction on the ground that
[n]ew evidence has been discovered since the entry of judgment, based upon a verdict of guilty after trial,
which could not have been produced by the defendant at the trial even with due diligence on his part and
which is of such character as to create a probability that had such evidence been received at trial, the verdict
would have been more favorable to the defendant). As a result of this myopic focus on the new trial
standard, the County Court devoted all of its attention to considering the potential admissibility at trial of
the newly discovered evidence.
As discussed above, the County Court repeatedly erred in the course of applying those standards.
More fundamentally, however, those standards are utterly inapplicable to Thibodeaus freestanding actual
innocence claim. The failure to address this claim is important because courts may consider more evidence

111

when evaluating a claim of actual innocence than they can consider when evaluating a motion for a new
trial. People v. Hamilton, 115 A.D.3d 12, 27 (2d Dept 2014).
A showing of actual innocence warrants relief because the imprisonment of an actually innocent
person violates the fundamental guarantee of fairness embodied in due process, and also constitutes cruel
and unusual punishment. See Hamilton, supra; People v. Cole, 765 N.Y.S.2d 477 (Sup. Ct. 2003) (holding
that the imprisonment of an actually innocent person violates the New York Constitution); cf. Herrera v.
Collins, 506 U.S. 390 (1993). A defendant must establish by clear and convincing evidence (considering
the trial and hearing evidence) that no reasonable juror could convict the defendant of the crimes for which
the [defendant] was found guilty. Cole, 765 N.Y.S.2d at 486. In making this determination, a court must
consider all reliable evidence, whether in admissible form or not. Id. Under New York law, a claim of
actual innocence can be raised, either as a gateway to review another claim, which is otherwise
procedurally barred, or as a freestanding claim justifying relief on its own. Id. at 21.
Here, Thibodeau asserts a freestanding claim. In Hamilton, the Court adopted a common sense
approach when considering a freestanding claim of actual innocence and held, where the defendant asserts
a claim of actual innocence, new evidence may be considered, whether or not it satisfies the Salemi factor
and other legal barriers, such as prior adverse court determinations, which might otherwise bar further
recourse to the courts. Id. at 25 (internal citation omitted). Accordingly, all reliable evidence, including
evidence not admissible at trial based upon a procedural bar-such as the failure to name certain alibi
witnesses in the alibi notice-should be admitted. Id. at 26 (citing People v Cole, 1 Misc 3d at 543; Schlup
v. Delano, 513 U.S. 298, 328 (1995)).
Thibodeau has always maintained his innocence and even submitted to a polygraph examination
on March 28, 1996. The results were unequivocal that Thibodeau was telling the truth that he had no
involvement in or knowledge of the disappearance of Heidi Allen. (A. 83).
Accordingly, this Court should find that the County Court violated Thibodeaus Federal and State
Due Process rights under the Fourteenth and Fifth Amendments of the United States Constitution by failing
to address and grant his actual innocence claim.
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CONCLUSION
In view of the foregoing, Gary Thibodeau respectfully requests that this Court reverse the Order
below denying his 440 motion, grant his 440 motion, and remand for further proceedings in Oswego County
Court.
Dated: September 20, 2016

Respectfully submitted,

_______________________
Lisa A. Peebles, Esq.
Federal Public Defender
4 Clinton Square, 3rd Floor
Syracuse, New York 13202
(315) 701-0080
lisa.peebles@fd.org

Indeed, police had access to and searched both the alleged vehicle used to abduct her (Richard Thibodeaus van)
and the place Allen was allegedly brought following the abduction (Gary Thibodeaus house).
ii
This Court granted Thibodeau permission to pursue this appeal on July 5, 2016. (A. 3).
iii
Citations to the Joint Appendix (A) are to the page numbers inserted therein.
iv
Initially, Bivens did not believe Richard Thibodeaus van was the van he observed outside of the D&W until
Sheriffs Investigators convinced him otherwise. (T.T., 1324, 1343-45).
v
The defense does not dispute Allen was wearing an SU sweatshirt while inside of the D&W on the morning she
was abducted, but the fact she may have also worn a jacket to work on that cold snowy morning should not come as
a surprise.
vi
Pierce did not pull into the gas station because of the snowy road conditions and his vehicle started to slide
sideways toward oncoming traffic. (H.T., 996, 1000). Pierce drove through the intersection and was going to turn
around but decided that it was a domestic dispute and he did not want to get involved. (H.T., 1000, 1013, 10241025).
vii
Purdy claimed she signed more than one lease because they added a pet at one time. (H.T., 2160). However, in
the Peoples response, Purdy provided an affidavit which stated, sometime around 1992 I was living in the City of
Syracuse with my then boyfriend, Thomas Rathbun Jr, and we were looking to move to a more country setting. We
were specifically looking for a place that was pet friendly because we had a Golden Retriever. Id. We found a place
at 66 Rice Road in Parish, NY through an ad. (A. 535).
viii
Bivenss first statement was made on April 8, 1994, when he contacted the police and reported driving past the
D&W between 8:00 and 8:30 a.m. and observing two men and a woman arguing on the porch area of the store.
(T.T., 3120). Bivens witnessed one vehicle near the gas pump. (T.T., 3121).
ix
According to Dodd, on May 25, 1995 Investigator Whipple ran a criminal record check for Michael Bohrer and it
did not reflect Bohrers Wisconsin convictions. (H.T., 1847, 1848).
x
It is worth noting that the County Court miscomprehended and misstated several critical facts in its November 2,
2015, Decision and Order, denying Thibodeau the opportunity to present a defense through additional proffered
evidence. Instead of considering the proffered evidence, the court instead denied requests never made, such as
permission to recall William Pierce, Tyler Hayes, Danielle Babcock, Tonya Priest, and Brett Law to testify at the
post-conviction hearing. Thibodeau never made such requests. (A. 1896-97).
xi
Though this Court on direct appeal found that the trial courts improper admission of certain testimony harmless
because the remaining evidence was said to be overwhelming, see People v. Thibodeau, 267 A.D.2d 952, 953 (4th
113

Dept 1999), in light of the evidentiary gaps in the Peoples evidence, it is hard to see how the evidence was much
more than merely sufficient. In any case, the evidence certainly did not foreclose the possibility of Thibodeaus
innocence. Moreover, even if the evidence appeared overwhelming at the time of Thibodeaus direct appeal, the
newly discovered evidence has illuminated gaps in the trial evidence that establishes Thibodeaus innocence.
xii
These categories include: (1) eyewitness to Allens abduction; (2) eyewitness to Allens location following the
abduction; (3) incriminating admissions concerning Allens abduction; (4) incriminating admissions concerning the
disposal of Allens body; (5) eyewitnesses to the vehicle following Allens abduction; and (6) corroborative forensic
evidence.
xiii
At trial, the County Court instructed the jury that to find Thibodeau guilty of kidnapping in the first degree, in
violation of N.Y. Penal Law 125.25(3), they must find the following elements beyond a reasonable doubt: (1) that
on April 3, 1994, this defendant, Gary Thibodeau, in the County of Oswego either by his own acts or while aiding
and abetting another abducted Heidi Allen; that is, while aiding and abetting another, the defendant restricted Heidi
Allen's movements intentionally and unlawfully so as to interfere substantially with her liberty by moving her from
the D & W Convenience store without her consent knowing that such restriction was unlawful with the intent at that
time to prevent her liberty by secreting her in a place where she wasnt likely to be found; and (2) Heidi Allen
died during the abduction or before she was able to return or to be returned to safety. (TT., 3461-62). In further
explaining the second element, the court made clear that it is not necessary for the people to establish that the
defendant intentionally caused the death of Heidi Allen but only that she died during the abduction or before she was
able to return or be returned to safety after the abduction. (TT., 3462). In that regard, the jury was instructed that it
could presume Allens death (and find the second element satisfied) if it found that following the abduction and
prior to trial, a person whom the person abducted would have been extremely likely to visit or communicate with
during that period were she alive and free to do so did not see or hear from her during such period received no
reliable information during such period persuasively indicating that she was alive. (TT., 3462). The limitations
and presumption embedded in the second element would also be available to Thibodeau in arguing third-party
culpability at a new trial.
xiv
This factual assessment constitutes the primary basis for the County Courts rejection of Wescotts secretly
recorded admission that the three men brought Heidi Allen to her residence on the morning of her abduction.
xv
For reasons that are not entirely clear, the County Court impermissibly precluded Thibodeau from introducing this
evidence at the hearing.
xvi
Of course, the same can be said of the evidence introduced against Gary Thibodeau. No evidence, save the
inherently suspect and inconsistent testimony from two jailhouse informants, tied Gary Thibodeau to the D&W on
the morning of Allens abduction.
xvii
In discussing Wescotts recorded admission, the County Court incorrectly states that she confirmed residing on
Rice Road. In fact, the location of Wescotts residence was never mentioned in the recorded phone conversation.
xviii
Though law enforcement officers were given access to and copied text messages from Wescotts phone during
the interview, the texts between Wescott and Murtaugh were never disclosed to the defense.
xix
Though Pierce indicated that the man he identified as Steen may be Hispanic, he did not confirm that the
individual has not white. (H.T., 987) (Im saying that he could be other than a full Caucasian. Thats what Im
saying. As far as his skin colors concerned, that picture says it all.).

114