William F. McIver II, PhD.
127 West 96th. St. (PHA)
New York, NY 10025
_________________________________________________________________________________
(212) 663-0833
Sent in 1994
Hon. Rives Kistler
Oregon Supreme Court
1163 State St.
Salem, OR 97301-2563
Justice Kistler:
I write this
on the chance you've cast off your prosecutorial blinders.
In a 11/27/92
brief to the appellate court you gave a starkly deceptive version of
testimony given by a state and defense expert in a post-conviction hearing.
You parroted
the judge's Memorandum of Opinion without reading the transcript. Or,
with a highly
selective inattention to fact, you read it and cherry-picked to win a case.
No matter, the
result was the same. You denied appellate justices the truth. Which,
if they were
objective, would have led them to grant a retrial. I enclose your brief and
a transcript of
the expert’s actual testimony.
This isn't an
attempt to argue the case. I'm simply going to lay out examples of your
false statements and invite you to correct the situation.
Summary: I
was found guilty of tampering with evidence prior to a civil malpractice
case. Of getting a former secretary to erase the plaintiff's name from a
5:00 PM slot in a
12/16/83 appointment book page and rewrite it in the 1:00 PM time so it
wouldn't look as
if I saw her after hours.
To quote your
opening paragraph:
"Petitioner was convicted of tampering with witnesses and evidence.
His
conviction was based primarily on his secretary's testimony that
petitioner directed her to
change an appointment log. On post-conviction, petitioner argued that
because the log
had not in fact been altered, his secretary's testimony was either
perjured or inaccurate.
The post conviction court found, however, that petitioner offered "no
persuasive or
credible evidence" to support his claim... Its finding is amply
supported by the evidence.
The state offered petitioner's earlier sworn testimony that his
secretary "erased or crossed
out" entries in the appointment log and put them in at different times.
... Petitioner's
expert conceded that the appointment log could have been altered if it
were done
carefully, and the state's expert agreed. Far from being "uncontroverted,"
as petitioner
argues, the evidence was both controverted and supported the
post-conviction court's
2
finding. If the log were altered, then
the factual predicate for petitioner's post-conviction finding claim
fails."
Conversely,
if the log wasn't altered, the post-conviction claim is true.
It comes down
to whether a name in an appointment book time slot was erased.
Prosecutors initially insisted, and had their witness repeatedly testify, it
was the 5:00 PM
slot for 12/16/83. But when, prior to a post-conviction hearing, she
was confronted with
the actual page, she admitted there was no erasure there. The
prosecutor immediately
called for a break and took her outside the deposition room. Her
witness returned to say
the time she'd claimed to a grand jury and in civil and criminal trials must
have been
wrong. It might have been the 4:00 PM slot.
You
sidestepped both expert's testimony they found no signs of erasure at either
time.
Here's what you wrote about Dr. Grimsbo's testimony out of context:
(p. 4): "The primary factual inquiry at the
post-conviction trial was whether the
appointment log had been altered. More specifically, because the names were
written in
pencil, the question was whether there was evidence that the names had been
erased. Dr.
Ray Grimsbo was petitioner's expert witness. Dr. Grimsbo testified
that he "found no
indication" of "any alteration, obliteration, or prior writing."
"Finally, the deputy district attorney
impeached Dr. Grimsbo's opinion. As the post-
conviction court explained, Dr. Grimsbo "backed off his initial opinion
quite
substantially, conceding that he [previously had] told the District
Attorney, in substance,
that he might not see something [some alteration] by way of erasure if
"someone had
erased very cleverly."
(p. 9-10) "It is difficult to see how petitioner can regard evidence as "uncontroverted"
when he testified that Mrs. Dobson "erased or crossed out" the patient's
later appointment
at his direction and when petitioner’s own expert testified that the log
could have been
altered if it had been erased very carefully."
Dr. Grimsbo
examined the document with his naked eye, a Sony infrared video
camera, various filters, and hot light to test for graphite particles left
by erased writing.
He wrote his initials on a test section and erased them. He used a
stereo microscope at 20
to 30 power and saw erasing disrupted the page fibers. This showed
erasure was
detectable. He also used the microscope to examine alleged alterations.
And oblique
lighting (electrostatic data process) to see if there were signs of indented
writing.
Here's what
Dr. Grimsbo actually said and the context in which he said it:
Grimsbo Testimony (Transcript, p. 89)3
By Mr. Mackesson:
3
Q. All right. Now, on the entries that
you examined, let's take the 1:00 o'clock entry first.
Were you able to determine, do you have an opinion as to whether or not
there was any
alteration, obliteration, or prior writing on the 1:00 o'clock entry?
A. I found no indication that there was.
And my opinion would be that there wasn't
any obliteration or writing.
Q. And the same question with respect to the
5:00 o'clock entry.
A. I would answer it the same way.
Q. And the same question with respect to the
4:00 o'clock entry.
A. I would answer it the same way.
Q. In your examination of that page of Exhibit 1 on those three entries, is
there any
evidence at all of any alteration or obliteration or prior writing on any of
those three
entries?
A. I didn't see any.
Does this
sound like he "backed off his opinion quite off substantially"?
It couldn't
be plainer. He examined the page at 1:00 PM, 4:00 PM, and 5:00 PM. He
found no sign of prior writing or erasure. No microscopic trace of graphite.
No
indentation. No disrupted fiber. Nothing but the absence of alteration,
obliteration or
prior writing.
Which, in
contrast to your account, is exactly what state expert Hurley found.
Ms. Barnett
referred to a conference call and asked (p.109) "In fact, in this
conversation on the, in the conference call, didn't you say that you didn't
observe
anything? You didn't detect anything, and you didn't believe it had happened
unless
somebody had, quote, "erased very carefully"?
Grimsbo: "That's correct."
You didn't
tell the court about the redirect, in which Dr. Grimsbo was allowed
to explain what he meant by "erased very carefully." I'll quote the whole of
it so you see the
context:
(Transcript, p. 109)
By Mr. Mackesson:
4
Q. Well, Dr. Grimsbo, in fact there are
other stray marks on that particular page for
December 15, 16, and 17; are there not?
A. That's correct.
Q. And, in fact, there was an erasure at the
2:00 o'clock entry; isn' there (sic)?
A. Macroscopically there appears to be an
erasure at that point, yes. One has to
remember, when we're dealing with pencil, that if we put a page over the
pencil and write
on that, that is going to transfer through like carbon paper. So
because we see something
there, doesn't necessarily mean it was there prior to or at any other time.
It can be simply
a transfer area, so there are a lot of other marks on the page dealing with
pencil. We have
graphite and carbon substances that float around.
Q. Now, you've examined other pages other
than the one I just referred to, the December
15, 16, and 17?
A Yes, I did.
Q. And does the pencil handwriting appear to
be consistent in terms of the amount of
pressure applied in the various other entries?
A. I couldn't say. I don't recall.
I looked at the other marked page.
Q. Well, let's just take the one page that
we have, and take a look at the various other
entries on that page.
A. It doesn't look inconsistent pressure
wise. I mean, the amount of pressure and the
amount of lead or the depth of the writing, if one would call it that, the
darkness of the
pencil marks on there, it doesn't look like someone very gingerly placed a
letter down as
opposed to just writing it.
Q. When you're saying that it would be
possible to erase without leaving a mark, what
assumptions would you have to make in order to cause that to come about?
A. Well, in the first place, "without
leaving a mark" implies both a transfer of lead to the
paper and the indentation and whatnot. And to erase it, one would have
to write lightly in
the first place, so it would have to be preconceived to knowing that they
may erase this.
So they would write it lightly, and then
they would have to, using a fine edge or a fine
eraser, go along the mark itself and doing it very, very lightly so it
didn't disrupt the paper.
Q. Something other than the eraser that you
would find at the top of a #2 pencil?
5
A. “ When I erased with mine, I did it
fairly lightly, and it was obvious that there was an
eraser mark there. So I suppose if you sharpen the edge of the eraser on a
#2 pencil, you
could edge it out, but again --
Q. If you speculate on that, you’re really
talking about somebody intentionally making a
mark on the paper so light it would be very faint and then intentionally
going back over
the exact course of the lead in order to remove that mark without making or
leaving some
trace of it on the page?
Barnett: Objection, Your Honor. That
goes beyond the expert’s ability to answer. That is
speculation.
The Court: Go ahead and answer it if you
can.
Witness: In my opinion, if I was going to
write something that I wanted to be able to
obliterate totally, I would do it lightly. If I was using a different
leaded pencil -- they
come in different numbers -- one with a very hard lead, I would have to press
harder to get
a darker image. The lighter the lead -- the #2 flows very easily, and so you
get a dark
image without a lot of pressure on it. So what we end up doing -- it just
depends on the
writing implement and basically your intent, how much care you want to take
in
obliterating that object.
By Mr. Mackesson: (Continuing)
Q. Would you please take another look at the
4:00 PM entry? Are there any stray or
inconsistent pencil marks on the 4:00 o’clock entry?
A. Two, maybe three. Depending on
where you want to dot the "I " in Mills. There are
two little dots in the area of the "M."
Q. Is there any indication or any evidence
at all that the name Betty Baggs was written in
originally on the 4:00 o’clock entry on December 16, 1983?
A. Not that I could see.
So Barnett asked Dr. Grimsbo if it wasn't
possible there could have been an
undetectable erasure there: (Transcript. 115)
Ms. Barnett: "Now, the truth is, Mr. Grimsbo
-- the truth is that you didn't detect any
erasure, but that doesn't mean that there wasn't one there?"
Dr. Grimsbo: "If we're looking at it from
the fact of 100% certainty, I cannot say that
someone would not have erased that. As an example, I could go to
Mervin's to buy a
sheet, and the sheet is pressed, folded, and in a plastic bag. I buy
the sheet in good faith
that it hasn't been on another bed. I don't believe it to have been on
another bed, but I
can't say with 100% certainty that it has never been on another bed.
6
The same way here. I can't find any
indication that there was writing in those areas. My
opinion is, based on that, that had not been written and obliterated.
I can't say 100% that
it couldn't have happened, because things do happen. There is always
the possibility."
Barnett: This is not the same as Mervin’s at
all, is it? In fact, your statement was on the
telephone conference, "I couldn’t see anything, but it might have happened
if someone
erased very softly, very carefully?"
Grimsbo: That’s what I’m saying.
There are no
absolutes in science. Barnett asked if it was possible undetectable
erasures could exist. Dr. Grimsbo explained, by analogy, anything was
possible, but in
this case, the probability was negligible. However Judge Huckleberry (and,
apparently,
you) turned his statement on its head to mean there was an acceptable
probability an
undetectable erasure existed.
Our language
is replete with abstract ways to compare things; to say "big" and "little"
and "more than" and "less than." Analogies like: "He's got the chance
of a grasshopper
tossed in a bass pond," "When pigs fly," or "A snowball’s chance in hell" .
. . usually get
the idea across without numerical elucidation. They mean virtually no
possibility;
infinitesimally small likelihood. Zip.
It takes a
shifty agenda to interpret “When Mervin’s sells used sheets for new” any
other way.
State expert,
Lt. Hurley, used a stereo microscope, standard microscope, filters,
different types of high contrast film, different printing papers, an
ultraviolet high intensity
Luma light, a long wave and a short wave ultraviolet light, and
electrostatic data process.
He couldn't find any sign of prior writing or erasure at 1:00 PM, 4:00 PM,
or 5:00 PM.
Yet you, Judge
Huckleberry and Ms. Barnett gave a brazenly false version of Lt.
Hurley's testimony. Your depiction is a deceptive, across-the-board
reversal, the opposite,
of what he actually said:
Memorandum
"Lt. Michael Hurley . . . testified that
given the nature of the paper upon which these
appointments were noted, he is unable to form an opinion one way or another
whether an
erasure had occurred."
Your version
(p. 5)
"Finally, the state’s expert testified that
he was unable to form an opinion whether the
paper had been erased because the type of paper used in the log permitted
erasures
without disrupting the paper fibers."
7
You gave your
discussion of his testimony pretty short shrift, considering the weight
you attribute to it.
Please read
it. In the direct, you’ll see a guy do his damndest to slide around
the truth
while the prosecutor slaps on the grease. Pinned down in the cross, he
finally has to admit
he saw no evidence of prior writing, obliteration or alteration at 1, 4, or
5:00 PM. Which
is exactly what Grimsbo stated.
Here’s Hurley in direct:
Transcript p. 143.
Barnett:
Q. Now, as to the time in the area where one cannot see visually the erasure
to bring
anything up?
A. Yes.
Q. And were you able in the area where one
cannot see the erasure to bring anything up?
A. No I wasn’t.
Q. Now, as to the time on December 16, the
1:00 o’clock, the 4:00 o’clock and the 5:00
o’clock time, did you get similar results there with the techniques you
used?
A. Yes.
Q. So you were unable to determine if
something had been altered in those areas?
A. I couldn’t demonstrate that, no.
Q. In your opinion, what, in your opinion ,
You got to hear Ray Grimsbo’s opinion. Do
you think his conclusion is correct?
Mr. Mackesson: Objection.
The Court: Sustained.
Ms. Barnett; I’m sorry. That’s ...
The Court: The form of the question is
improper.
Ms. Barnett: Let me rephrase that.
8
Q. What is your opinion as to those three
times in terms of them being altered or raised?
A. Three times being?
Q. The 1:00 o’clock, 4:00 o’clock, 5:00
o’clock on December 16th.
A. The 1: 00 o’clock has some extra lines in
it, which suggests to me that there may have
been something else with that signature. The 3:00 o’clock - No.
Excuse me. 4:00
o’clock, I can’t say one way or the other. And I guess that’s, I guess
that’s what I’m
saying about the 5:00 o’clock as well.
The fact that the 5:00 o’clock position on
this date is blank, in my opinion, does not mean
that there was nothing there, because, in my opinion, I think this paper, I
think an
individual could possibly have written something and erased it and it
wouldn’t be
detected. That is a possibility that can’t be discounted."
And here’s Hurley without wiggle room:
Transcript of Lt. Hurley’s cross examination
testimony (p.150) By Mr. Mackesson.7
Q. Did you subject the entries for 1:00,
4:00, and 5:00 PM on December 16 to those three
tests?
A Yes.
Q. With respect to the 1:00 o'clock entry,
was there any evidence of a prior writing or
obliteration or alteration?
A. I couldn't detect any.
Q. With respect to the 4:00 o'clock entry,
was there any evidence at all of any prior writing or
alteration or obliteration?
A. None that were detected.
Q. Same question with respect to the 5:00 PM
entry.
A. No, sir, none were detected.
Mr. Mackesson then asked if he used the
electrostatic data test on the three entries in
question on December 16:
A. It would be the entire page, sir.
Q. Was there any evidence of obliteration,
alteration or prior writing by use of that test at
the 1:00 o'clock entry?
9
A. No.
Q. Same question with respect to the 4:00
o'clock entry.
A. No.
Q. And the same question with respect to the
5:00 o'clock entry.
A. No.
Q. Did you do any other tests other than the
ones I've covered in the cross-examination?
A. The different, I guess pure
photographic techniques that would be using high
contrast film and various types of filters, different red filters and green
filters and
paperwork and development techniques, but other than that, no.
Q. The ones you -- the tests you just
described, did you use those in examining the 1:00,
4:00, and 5:00 P.M. entries on December 16?
A. Yes.
Q. And did any of those tests disclose any
alteration, obliteration or prior writing in any
of those three entries?
A. No.
Q. And did any of those tests disclose any
alteration or prior writing in any of those three
entries?
A. No.
Under cross
examination, without Barnett’s guidance, Lt. Hurley clearly did not
testify, that, as you wrote, "...that he was unable to form an opinion
whether the paper
had been erased..."
The polar
opposite.
You didn’t
disclose Hurley's unqualified "No" when asked if he could find any signs
of "alteration, obliteration, or prior writing" in any of the time slots he
examined."
The
transcript shows both experts' testimony was unequivocal. They said
they didn't
see any signs of alteration at 1, 4, or 5 PM (the time allegedly erased): "I
didn't see any"
... "none that were detected"... "No."
10
"No" isn't up
for interpretation. There's no part of "NO" to misunderstand.
You, Judge
Huckleberry and Ms. Barnett falsified the experts' opinions. You
defrauded the court out
of the truth.
You echoed
Judge Huckleberry's fiction in your 11/27/92 brief:
"Petitioner's
expert conceded that the appointment log could have been altered if it
were done very carefully, and the state's expert agreed. Far from being "uncontroverted."
as petitioner argues, the evidence was both controverted and supported the
post-
conviction court's finding. If the log were altered, then the factual
predicate for
petitioner's post-conviction claim fails."
To repeat: By
implication, the verifiably unaltered log shows the factual predicate for
the post-conviction claim was justified, and Barnett's claim and Judge
Huckleberry's
decision weren't justified.
The primary
evidence is a 1"x 2" time slot for 5:00 PM on a 12/16/83 page in an Ideal
appointment book.8 Prosecutors claimed I had Mary Dobson erase, from
this page, the
name "Betty Baggs" written at 5:00 PM, and rewrite it at 1:00 PM. They
copied the
original during the 9/86 Hutton vs. McIver trial. D.A. Stapleton,
Asst. D.A. Hammersly,
and, later, Asst. D.A. Barnett, saw the original. Which means they
could only have seen
signs it had not been tampered with. In Oregon vs. McIver they
displayed a copy,9
though it couldn't conceivably show signs of tampering not on the original
page.
Because it's
physically impossible to see, in the 5:00 PM time slot of the original, any
signs of tampering which, in spite if your claim to the contrary, defense
and state experts
in a 1/17/92 post conviction trial10 testified they couldn't detect.
And which independent
scientists at McCrone Associates, Inc., a laboratory specializing in
ultramicroanalysis,
microscopy, and solid state chemistry, cannot detect with state of the art
techniques. They
concluded: "...we could find no evidence whatsoever that a name had been
written in the
5:00 PM slot and subsequently erased or otherwise altered. Because of
the physical
characteristics of the paper, had an alteration taken place, it would have
been quite
apparent."11 I include their report and photomicrographs of the page.
The hackneyed
"Evidence of absence isn't absence of evidence" is pointedly true in
this case. The evidence is no alteration. The absence is readily
confirmed and verifiably
certain.12 It's tangible, rock solid, proof clearly visible to the
naked eye. The slot's just a
three-dimensional slice of untouched compressed paper fibers with no
indentation,
smudge, smirch, or even ultramicroscopic trace, of graphite.13
Incidentally,
I didn’t testify, as you wrote, I had Dobson change Baggs’ appointment
time. (p. 9) Although it’s easy for someone bent on saying I had Baggs’
name changed to
see it that way. You put in considerable time and effort to distort
and slant the record to
score a win.
11
I ask you now
to do me the courtesy of reading the relevant parts of the transcript
along with my comments which explain my actual testimony. (Page 24 through
page 35
of the Affidavit).
But no matter
if I’d sworn from the rooftops I actually had Dobson erase and
rewrite
Baggs’ name, as you, two judges, four prosecutors and two other lawyers
claim, physical
evidence proves it wasn’t erased or rewritten. I went to her house
after Huegli filed his
first malpractice case against me. Four months before he discovered
his client also had
sex with Jesus three times while He was on the cross and he solicited Baggs
to file.
Fleeting
comment on a couple of your statements on page 6 of the brief: "At the time
of the post-conviction trial Mrs. Dobson had died. Her husband
testified, however, that
on September 16 or 17, shortly after the patient’s suit had been filed,
petitioner visited
their home "in regard to a patient appointment log and some other records."
Earl Dobson
lied. Understandably.
During the
criminal trial psychiatrist George Kjaer, M.D., testified he thought she had
brain damage. We called her a liar. It also came out that she
couldn’t account for
thousands of dollars taken from the office. When Barnett gave him a
chance to try and
clear her name her husband took it.14 (Of little consequence, but it’s
discussed on page
24 of the affidavit. By the way, I briefly discuss you on page 63.)
You wrote:
(p. 6) "One of Mrs. Dobson’s co-workers testified that in mid-September,
Mrs. Dobson told her that petitioner asked her to change the appointment."
This gal,
Sharon Gribble, had bilked her insurance company out of thousands of dollars
by falsely
( and unknown to me until the trial) listing her son and husband as my
patients and
pocketing the insurance money. She also stole patient’s files and
billing records from the
office for lawyer Huegli, DA Stapleton, Asst, DA Hammersly, and AG
investigator
Jeanine McGloughlin (your old office), and gave them names and billing
records of all
my patients, who they proceeded to contact. In return, they gave her
immunity from
charges of theft and, presumably, perjury. (Discussed on page 22 of
the Affidavit.)
I invite you
to do the right thing now and arrange for me to present my case to the
appellate justices, or some honest legal forum. I can’t afford a
lawyer. It won’t take long.
I’ll show them transcripts of the experts’ testimony, the McCrone report
(with photomicrographs of the pristine area of the phantom erasure), and the
actual page.
I realize another state prosecutor will tell them up is down, they don’t see
what they see,
and experts mean the opposite of what they say. But I’ll take my
chances.
The enclosed
Affidavit is the skeleton of a book. It best fits the RICO format.
Every
charge backed by documents and testimonial evidence. The lack of
alteration is supported
by the Grimsbo and Hurley testimony, the McCrone report with
photomicrographs, and
the appointment book itself (the prime witness in this case). It would
be presumptuous of
me to expect you to read it all. But, in addition to pages I’ve
suggested, you might find it
interesting to glance at the introduction.
You were
attacked because you spoke honestly about your sexuality. You got a
chance to prove yourself and came through admirably. I was attacked
for speaking up
about the excesses of the child abuse industry and dishonest prosecutors.
As a result, I
was convicted for a crime that never happened.
I’d appreciate it if you’d give me a chance
prove it.
Sincerely,
Enclosed:
Transcripts of testimony by Dr. Grimsbo and
Lt. Hurley.
Your Brief to the Appellate court.
Affidavit
A report with photomicrographs issued by
McCrone Associates.
