The Tomasik Exoneration Part 1

Episode Notes

Transcript

State Bar of Michigan On Balance Podcast

The Tomasik Exoneration Part 1

01/16/2018

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Intro: Welcome to State Bar of Michigan’s On Balance Podcast, where we talk about practice management and lawyer wellness for a thriving law practice with your hosts JoAnn Hathaway and Tish Vincent, here on Legal Talk Network.

Take it away ladies.

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JoAnn Hathaway: Hello and welcome to another edition of the State Bar of Michigan: On Balance Podcast on Legal Talk Network. This is JoAnn Hathaway, Practice Management Advisor in the Practice Management Resource Center at the State Bar of Michigan.

Tish Vincent: And this is Tish Vincent, the Program Administrator for the Lawyers & Judges Assistance Program at the State Bar of Michigan. We are recording today’s show at the NEXT Conference in Detroit, Michigan.

JoAnn Hathaway: Joining us now we have two guests. We have Kris and Marty Tieber. Welcome to the show.

Kris Tieber: Thank you.

Marty Tieber: Thank you.

JoAnn Hathaway: Before we get started, please tell us a little bit more about yourselves, where do you work and what do you do? Let’s start with Marty.

Marty Tieber: Okay. I have been practicing since 1973, when as a second year law student I joined the State Appellate Defender as a student clerk. I got my Bar card in 1975 and became an Assistant Defender at the State Appellate Defender Office. And in 1978, I became the director of our newly opened Lansing office and did that until 2001. At that point I opened a private practice.

So I was with the State Appellate Defender for about 30 years and then began a private practice in 2002, and during all of those years, and it has been over 40 now, I have been doing criminal appellate defense work, first with the State Appellate Defender on a salaried basis and for the last 15 years in private practice.

Tish Vincent: Thank you. And Kris?

Kris Tieber: And I am Kris Tieber and I began working with my dad when I started law school at Michigan State University and ever since we have been working together on appellate cases and habeas cases and different appellate cases that we have taken to all sorts of courts through Michigan and the Federal Court system.

JoAnn Hathaway: Thank you.

Tish Vincent: Well, we thank you for joining us today. We understand you have a case that was just listed on the National Registry of Exonerations. Can you give us the background on this?

Marty Tieber: Sure. This is the case of Dennis Tomasik, which is out of Kent County, Michigan, Grand Rapids. This case came to me in the sixth year of my private practice, which was about 2008. The first attorney on the case was appointed Kent County judge shortly after he received the case on appeal after Mr. Tomasik was convicted of a criminal sexual assault. The assault was alleged to have occurred with a young neighbor boy ten years earlier.

And basically, it was very sketchy accusation. And the first thing that I saw about it was there was nothing there other than the words that the young man claimed were true. And looking further into the case after I received it on appeal I realized that the story had not been told. And this is critical in criminal cases because very many people do not understand the notion that you can go to prison for a long period of time just based on words out of somebody else’s mouth.

And the key to being able to protect against a false accusation and a wrongful conviction under these circumstances is to be able to have an attorney on your side of the equation developing everything that occurred in the case so that the jury who is ultimately determining your fate can know what actually happened there and make their decision based on full knowledge. And it was real clear to me as soon as I got into the case that that did not occur.

So what happened was that Kris and I had to redo the entire case. We had to act as trial lawyers and appellate lawyers and do the original investigation. And Kris can talk a little about what that entailed.

Kris Tieber: Right. And part of the claim that the complainant made and I think what was powerful to the jury was the number of times that he claimed it happened, and while he was never consistent in his story, his range of these abuses where anywhere from 10 to over 500 over the course of two-and-a-half years. And what was never brought out were the circumstances of how they could have interacted for that many abuses to have happened.

And I have always said, one of the key to our case was, we were able to get a hold of the children that were in — because they lived in a cul de sac near Grand Rapids, a very tight-knit community, and there was a group of about 10 children that always would play together.

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And the story of the complainant was that he was at this house everyday and almost everyday he was abused by Mr. Tomasik. And we were able to show that these kids, not only did he say that they were not friends, but they also said that they were around everyday and he was never at the house.

Furthermore, we were able to get work records from Mr. Tomasik that showed he worked long hours at a tool and die shop changing between first and second shift, just basically putting him in a place where he could never have committed the crimes that he was accused of.

Tish Vincent: Interesting. It’s fascinating to me how you could go back and get that information after the fact. Can you speak to that a little bit at all and what the process is?

Marty Tieber: Well, you know, it really wasn’t that difficult to get the information, which is one of the horrible things about this case, and this is not an isolated incidence. What you had here was the initial trial defense counsel did nothing, absolutely nothing. In fact, he would go up to — we have had him on several cases. He goes up to the jurors and when he begins questioning a witness he will say to the jurors, I have never really talked to this witness, not only with the prosecution witnesses, but with his own witness. He wears that as a badge of honor. It’s supposed to be showing in his mind that he is neutral, that he hasn’t tried to sway the result, which is in your adversary system it’s not the way to operate.

The problem was the jury in the first trial never heard any of this information about, one, this young man who is making these claims was really never at the Tomasik household contrary to his claims that he was there daily, and this comes from the whole neighborhood; and two, Mr. Tomasik was always at work, 60, 70, 80 hours a week.

The neighbors would talk about him having to come home and mow his lawn with a flashlight strapped to his head at night, because even in the summer he wasn’t getting home until that time of day. So you had a ton of evidence that the first trial attorney completely ignored.

Tish Vincent: Okay, so no investigation whatsoever.

Marty Tieber: Virtually no investigation whatsoever. That was one of our main claims on appeal was that there was ineffective assistance of counsel. There were a lot of different issues that contributed to the reversal of this case, and I think one of the very important facts about the case is the length of time that this case was on direct appeal. I think it is a record in Michigan. We handled it for eight years.

Tish Vincent: Eight years?

Marty Tieber: Eight years. The case was sent back to the Michigan Court of Appeals three different times by the Michigan Supreme Court. There were three unpublished opinions issued in this case by the Michigan Court of Appeals on direct appeal. We are not talking about post-conviction; we are talking about your first direct appeal. There were three full unpublished opinions issued by the Michigan Court of Appeals.

Finally, the Michigan Supreme Court granted full leave to appeal and that’s where Kris did the bulk of the work. He did the briefing on full leave to appeal on the Michigan Supreme Court and he did the oral argument, which he conducted very, very well. And then that resulted in the ultimate order about a year-and-a-half ago to reverse this case and grant a new trial. And that’s where Mary Chartier comes in, in terms of the excellent work she did to obtain an acquittal with virtually no time of deliberation. The jury immediately acquitted after the second trial.

Tish Vincent: So we are talking about this gentleman, Mr. Tomasik, he was in prison for eight years during this process.

Marty Tieber: Actually it was close to nine years.

Kris Tieber: Virtually that, eight years, 11 months.

Tish Vincent: Okay. You said it was basically unprecedented, the length of time it took to get this reversal?

Marty Tieber: Right. I do have to give credit to the Michigan Supreme Court. They stayed with this case. I would have liked to have seen it done a little earlier, but they would not let go of it. And I believe that means that we were successful on convincing at least some members of that court that there was something seriously wrong here. That there was a travesty of justice here, that this jury that convicted Mr. Tomasik did not have the information they needed to have, and there were a variety of reasons why that occurred.

The actual reason for the reversal was because the jury actually had some information they shouldn’t have had. When one of the investigating detectives was able to tell the jury or replay for the jury their interrogation of Mr. Tomasik where they would begin almost every question by telling him why they believed he was guilty. And that is absolutely a violation under a very recent Michigan Supreme Court case, People v. Musser, and for that reason the order ultimately issued after the full leave to appeal process from the Michigan Supreme Court.

So it actually was turned in the end on something that they saw that they shouldn’t have seen as opposed to all of the information that they should have had that they didn’t. But I have to believe that the reason that the Supreme Court stayed with this case for so long was because they were able to see all of the material that the jury should have seen in that first trial that they were not able to see.

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Tish Vincent: Well, we talk a little bit here about what you feel should have been introduced as exhibits and witnesses that should have been called during the initial trial. Can you speak to us a little bit about the content of those and the persuasive nature?

Kris Tieber: Sure. One interesting point and was basically a whole another track of the appeal was we had asked for the counseling records of the complainant because we knew he had been a troubled child based on his own testimony that he had been in counseling for most of his life. The original trial attorney had made a feeble effort to try to get it and the trial judge had done a very brief review of a very small period of his life.

So we asked for the full complete review, which the trial court initially indicated they would do, and after dragging their feet for a few months was never actually done. So we took that to the Court of Appeals and they also denied. But that was another time when the Supreme Court sent it back to have a full record review. Actually, I take that back, while they were doing their full record review, they uncovered three documents that turned out to be crucial to this case.

They were three documents that came from school counselors, his own therapist and teachers that he had gone through through elementary school. And basically the contents of these reports were that he had such trouble determining between truth and falsities that he basically didn’t know the difference.

Furthermore, when he got in trouble he would blame adults and he would lie and say it was something that happened to him or adults did something to him. It was just a constant refrain that he was continually lying and that he continually didn’t know the difference between truth and falsity. And obviously this would have been very important to bring out in the original trial. And we were able to obtain those results and bring those back in before the trial court, who again denied, and the Court of Appeals denied that, and the Supreme Court finally, after granting full leave, that was part of the process in the Supreme Court argument.

Tish Vincent: So those reports just showed a strong pattern that this young man was comfortable distorting the truth.

Kris Tieber: Exactly. And that he would learn to live with those lies and create them in his own mind as the truth.

Tish Vincent: Almost believe them himself after he had created them, yeah.

JoAnn Hathaway: As far as the accuser goes, wasn’t it several years between the alleged date of these incidence and the time he finally came forward and contends that all of this occurred. Can you speak to that a little bit?

Kris Tieber: Well, the precipitating factor for the accusation was the complainant being caught red-handed in his school committing a theft. As soon as that occurred, he first denied it and then when he was shown the videotape showing that he was the one in the locker room committing the theft, he said, okay, yeah, I guess it was me, but Mr. Tomasik abused me when I was a child, and of course he escaped prosecution.

Marty Tieber: Initially he had said it was a neighbor but he couldn’t remember the name, even though, supposedly he had been there everyday for three years. And after working with his parents and his new counselor, they were able to ascertain that it was “Dennis Tomasik.”

Tish Vincent: Okay. So fast forward, which really you can’t do when eight years have past, right, but okay, so let’s fast forward back to the retrial. I know you spoke to that a little bit Marty a short while ago, but maybe you can give us a little bit more detail; the length of the trial; how long the jury was out, anything else you would like to share that you think would be interesting.

Marty Tieber: In terms of the details of the length, I don’t have those. I think it was maybe a week or two. But the key is Mary Chartier begin retained by the family. At that point I became called; I had not been before. She is an amazing trial litigator. She took everything that we had developed during the appeal process that spanned eight years and developed it the way it should have been developed and added even more.

She was able to go through and show the second jury all the detail. She brought in, I think, well over 20 witnesses who talked about everything from the size of the house and the dimensions and the impossibility of this having occurred. The fact that the neighbors were able to see in the window where this allegedly occurred, all of the work records and all of the people at our client’s place of work who testified that he was always at work, all of the folks in the neighborhood and the children in the neighborhood who testified that, one, the complainant was a pathological liar who could not possibly be believed and was vindictive and untruthful and falsely accusatory towards lots of people. But more importantly, that this complainant never came around the Tomasik household; never played with the Tomasik kids; was never in the house hardly, other than on maybe one or two occasions.

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JoAnn Hathaway: Was the accuser called to the stand during the second trial?

Kris Tieber: Both trials.

JoAnn Hathaway: Both trials, okay.

Marty Tieber: In both trials he held a Batman doll and told the jury that he firmly believed that Batman was real.

Kris Tieber: The second of which he was 27 years old.

JoAnn Hathaway: Oh my goodness.

Tish Vincent: He actually did that?

Marty Tieber: Yes, in both trials.

Tish Vincent: Okay.

JoAnn Hathaway: Was the jury aware that this was a case that was being retried or were they not given that information?

Kris Tieber: Actually just at lunch today I learned that there was one slip up by one of the defense witnesses right at the end that cued them into that, but obviously it didn’t make one bit of difference because they said the last witness.

Marty Tieber: Yeah, normally from the defense perspective you don’t want the jury to know that the case was previously tried. But again, as Kris noted, it made no difference here, because when you look at all the information in this case the allegation is absolutely preposterous. It cannot possibly be believed. And Mary talked to jurors afterwards and they told her the same thing. That was their complete belief, and the fact they issued a verdict within a few minutes of reaching the jury room.

Tish Vincent: That sounds unprecedented right there.

Marty Tieber: On one vote with unanimous agreement shows that what this case needed from the start to protect Mr. Tomasik from this false accusation and from being locked up for nine years for something that never, ever occurred, not that just that he didn’t do it; it just never, ever happened, what he needed was somebody working diligently on his behalf, putting all of this information in front of the jury; that never happened in the first trial, that’s what occurred here.

And that’s what as attorneys we need to be on guard for this, because again, the key here is that you can go to prison for the rest of your life based on words coming out of somebody’s mouth alone. There is no question about that. And I think most laypeople are stunned to hear it said that way, and if you have not had that experience of being involved in a case where the only evidence that is being presented by the prosecution is a statement by a complaining witness saying, this happened to me, with no physical proofs, with no eye witnesses, and you then are in a position where the jury either believes the complainant and sends the defendant to prison for the rest of their lives or believes the defendant and acquits them.

If you have got a case like this, you have to develop the factual record; you have to be able to show that jury all of the things that were shown to them in the second trial that allowed them to conclude that this story was preposterous, which is something that we saw as soon as we got the case in 2008.

JoAnn Hathaway: Well, it looks like we have reached the end of our program. I want to thank our guest, Kris and Marty Tieber for joining us today.

Tish Vincent: If our listeners have questions or wish to follow-up with the two of you, how can they reach you?

Marty Tieber: I think the easiest way to get to both of us is email. I mean, we are constantly on top of that and it’s real easy. Mine is Marty,  HYPERLINK “mailto:[email protected]” [email protected] and Kris’ email address is Kris,  HYPERLINK “mailto:[email protected]” [email protected].

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Tish Vincent: Thank you.

JoAnn Hathaway: This has been another edition of the State Bar of Michigan: On Balance Podcast. I am JoAnn Hathaway.

Tish Vincent: And I am Tish Vincent. Until next time, thank you for listening.

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