obvious and important questions, the answers to which undermined the defense case. Having demonstrated both deficient performance and resulting prejudice, Monschke is entitled to relief.
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PROSECUTORS ENGAGED IN MISCONDUCT WHEN THEY CALLED CRITICAL PROSECUTION WITNESSES KNOWING THEY HAD CONCOCTED A FALSE STORY TO OBTAIN FRYE’S EARLY RELEASE.
A prosecutor’s knowing presentation of perjured testimony is misconduct and violates a defendant’s due process rights under the Fourteenth Amendment. See State’s Response to PRP, at 16 (citing , 386 U.S. 1, 87 S. Ct. 785, 17 L. Ed. 2d 690 (1967); 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959); , 355 U.S. 28, 78 S. Ct. 103, 2 L. Ed. 2d 9 (1957); , 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 2d 791 (1935); , 231 F.3d 488, 271 F.3d 909 (9th Cir. 2000)).
Former Pierce County Prosecutor Barbara Corey was assigned to handle the charges against Pillatos, Frye, Butters, and Monschke. See Declaration of Barbara Corey (attached to PRP as an exhibit). Corey was privy to written correspondence to and from the four defendants after their arrest and incarceration. Decl. of Corey, at
2.
Frye was pregnant with Pillatos’ child and Corey believed the two were “fabricating a story in an attempt to perpetrate a fraud on the Court and the prosecutor’s office.” Decl. of Corey, at 2. Specifically, it appeared the two were scheming to pursue a theory that would result in a favorable plea agreement for Frye, allowing her to be released to raise their child. Decl. of Corey, at 2-3. lt was clear to Corey that Pillatos was attempting to shape Frye’s version of events by suggesting that she never assaulted Townsend or never assaulted him of her own free will. Moreover, Pillatos was suggesting ways in which Frye could help him mount a diminished capacity defense. Decl. of Corey, at 2-3.
This ‘very matter was discussed at a pretrial hearing on a defense motion to stop prosecutors from reading the defendants’ mail. Corey summarized Pillatos’ efforts to manipulate Frye’s testimony in a written response to the defense motion:
defendant Pillatos has been using the mail to tamper with witnesses. In a letter to his father dated April 22, 2003, he provided instructions to be given to defendant Frye about her testimony; in the letter, defendant Pillatos provides an explanation for some physical evidence from the scene and states, ‘‘It is extremely important she quits denying l was there with her.” -35-
Defendant Pillatos also has written to defendant Frye about her role in the murder: “Because you never assaulted the man of your own free will if at all.” Defendant Pillatos also has instructed defendant Frye “to testify against me” and also to help with his insanity defense: “Besides if you think I wasn’t myself that night it might help.” In a letter, defendant Pillatos wrote to defendant Frye: “Like I said plea against me if you’ll get a deal. Just remember I didn’t seem like myself.” in a letter to Cynthia Marler (who spent time in DOC following her murder conviction reported at 32 Wn.App. 503 (1982)), defendant Pillatos explained, “l told Tristain to testify against me.”
See State’s Response to Defendant’s Motion Re: Mail, at 9 (filed under Tristain Frye’s cause number and attached to this brief as appendix C). Referring to correspondence between Pillatos and Frye, Corey indicated “there’s a conspiracy to commit perjury charge that’s possible. There’s a witness tampering charge. . . RP 87-88.
Later, Corey was present when Frye — interested in cutting a deal that would ensure her earliest release — made an offer of proof regarding what she was willing to say on the stand. Decl. of Corey, at 6. After listening to Frye, and considering all available information (including the correspondence between Frye and Pillatos), Corey concluded that:
Pillatos’ and Frye’s efforts were not those of remorseful individual[s] seeking to cleanse their conscience through honesty and acceptance of responsibility. My experience and the facts told me that Pillatos was attempting to reduce Frye’s exposure, something I know he personally desired, by having her admit he was present at [t]he crime scene and then having her assert the exculpatory claim that he, Pillatos, forced her to assault Randall Townsend. . .”
Decl. of Corey, at 3. According to Corey, ”Pillatos and Frye’s efforts to manipulate the plea and trial processes were known to Prosecutors Geny Horne, Jerry Costello, Greg Greer, and other deputy prosecutors and police detectives.” Decl. of Corey, at 4.
Corey’s conclusion that Pillatos and Frye manipulated the process not only finds support in Pillatos’ letters, it finds support in Frye’s letters.
In some of her letters, Frye did speak of telling the truth about what she has seen. State’s Response to PRP, appendix 8, at 16514 (“I’m gonna have to be real and tell the truth.”); at 1826 (“l am going to tell the whole truth.”); at 2531 (“I am doing everything I can to tell the truth and somehow be free for my son.”); at 4916 (indicating she would do whatever was necessary short of lying); at 5412 (“l have to tell the truth and go home and be a mom.”). But these statements must be considered in light of other statements she made. Several letters show that Frye was willing to do whatever was necessary to secure a deal for herself in the hope she could be released to raise Pillatos’ child.
Frye made it clear in her letters that she was prepared to do whatever was best for her and her baby. Id at 1650 (“I’ve gotta do what’s best for me and the baby.”); at 1825 (‘‘I am doing what I must to get out as soon as possible so that I can raise our child”); at 2025 (“All I want is to be free to raise our child and be free for you.”); at 2316 (“I am trying to go State witness . . . for my son.”); at 4337 (“I have to do whatever I can to get out and raise our son.”).
Frye was undecided how to proceed, however, and she was looking to Pillatos for guidance. Id. at 1651 (indicating she has not decided what to do); at 1702 (“I can’t help but worry for him and wonder what he wants me to do as far as court goes.”); at 1721 (“I need to know what he wants me to do”); at 1724 (“l am so lost for what to do.”); at 1725 (“l wish I could just sit down and talk to David, or write him. I am soo [sic] irritated with not knowing what to do.”).
Pillatos supported Frye testifying against the others, including himself, so that she could get out and raise their child. Id. at 2026 (“I respect you so much for standing by me as far as testifying. . . . You wanting me to be free to raise our baby means the world to me.”); at 5930 (“David will be testifying on my behalf as well. He wanted me to testify against them all, including him. If it would get me to raise our son he is all for it.”).
Meanwhile, Frye did not care what happened to Monschke. id. at 1993 (calling him a punk); 2024-25 (stating she has no respect for Monschke, does not feel sorry for him, and does not care about him). And, notably, she admitted she was willing to lie if Pillatos asked. id. at 1721 (“they know that David would lie for me and that if he asked me I will lie for him”).
Despite Corey’s conclusion that Pillatos and Frye were manipulating the process to Frye’s advantage, and the fact this was known to the other prosecutors involved with the case, once Corey left the office, prosecutors gave Frye “a most favorable plea agreement and sentence.” Decl. of Corey, at 4. In exchange for a guilty plea to murder in the second degree, she testified against Monschke. She also minimized her own involvement. Just as Pillatos had suggested, she testified that she participated against her own free will. She claimed that Pillatos covered her eyes, moved her toward Townsend, and forced her to kick him.(5) RP 2361-62.
(5)Terry Hawkins, who – along with Cindy Pittman — watched the assault, testified that Frye was hollering and screaming just like the two men with her while beating and kicking Townsend. No one was holding her, it did not look like anyone was covering her eyes, and it did not appear she was forced to participate. RP 1266-1283. lndeed, by the time of trial, even Pillatos was no longer maintaining the facade that Frye had acted under duress. Sea RP 2086- 87 (denying that anyone forced Frye to violently kick Townsend in the side of the head).
According to Corey, Frye’s deal was inconsistent with the prosecutorial standards of the Pierce County Prosecutor’s Office for the 20 years she worked there. Decl. of Corey, at 2, 5. Moreover, it was unfair to Mr. Monschke. Decl. of Corey, at 6. Corey believes that Frye received favorable treatment “based on personal issues,” noting that Gerald Horne and Frye’s attorney, Judith Mandel, have been friends for decades. Decl. of Corey, at 5.
in response, the prosecutors office has submitted affidavits from Deputy Prosecutors Gregory Greer and Gerald Costello. See Affidavits of Greer and Costello (attached to State’s Response to PRP as appendices M and 0, respectively).
Prosecutor Greer notes that Corey’s employment with the Pierce County Prosecutor’s Office was terminated while she was handling this case. Aff. of Greer, at 1. Not mentioned is the fact Corey successfully sued her former employer for wrongful termination, defamation, false light, and outrage, and a jury awarded her more than $3 million in damages. See , _ Wn. App. _, 2010 WL 255955 (filed January 25, 2010).
According to Greer, Gerald Home was not involved in the decision to offer Frye a deal. Aff. of Greer, at 8. Greer concedes that Pillatos was trying to direct how Frye should testify. But his recollection (without a recent review of the letters) is that Frye’s correspondence revealed she intended to tell the truth and was remorseful for what had happened. Aff. of Greer, at 6-7. He believes Frye testified truthfully and attributes Ms. Corey’s contrary statements and opinions to personal animosity against Ms. Mandel. Aff. of Greer, at 3, 5-6, 9.
Costello, who also notes that Corey was terminated from the office, indicates that he often heard her speak harshly of Ms. Mandel. Aff. of Costello, at 2. Like Greer, Costello expresses his opinion that Frye was credible and indicates that neither Horne nor his relationship with Ms. Mandel played any role in the deal she received. Aff. of Costello, at 2-4.
Based on the correspondence between Frye and Pillatos, and Barbara Corey’s declaration, Monschke is unlawfully restrained under RAP 16.4(c)(2) because he has demonstrated a violation of his constitutional right to due process. Corey recognized the two were scheming to perpetrate a fraud, allowing Frye to take a deal and get out of prison well before the others so that she could raise her child_(6)
(6) Pillatos even conceded the scheme during his testimony at trial. RP 2134
Prosecutors had proof that Pillatos was attempting to shape Frye’s testimony. And, in her jail correspondence, Frye repeatedly indicated she was looking for his guidance and admitted she was willing to lie if that is what he wanted her to do. Yet, prosecutors made these two their primary witnesses against Monschke. (7)
(7) Monschke pointed out this ironic turn of events during the trial; i.e., prosecutors gave Frye a favorable deal that ensured her early release and made her and Pillatos their star witnesses after previously recognizing they were conspiring to commit perjury to ensure her early release. RP 483-485, 508. Monschke sought permission to call Corey as a defense witness on this subject, but was denied. RP 486-491.
There can e no doubt Monschke suffered prejudice. The two schemers – Pillatos and Frye – were the only witnesses to testify on the stand that Monschke assaulted Townsend. The State has conceded the importance of Frye’s testimony in particular. See Aff. Of Greer, at 8 (“This plea agreement [with Frye] secured us critical evidence that would be used to obtain convictions against the three other co-defedants…”); Aff. Of Costello, at 2 (“It appeared to us that to prove, in detail, the factual sequence of events on the night of the murder that Ms Frye’s testimony would be extremely valuable in the prosecution of her co-defendants.”); Aff. Of Costello, at 4 (Frye “was instrumental in convincing the jury.”).
Although Monschke maintains that the record is sufficient to find both a due process violation and prejudice, given the contradictory affidavits submitted by Corey, Greer, and Costello, at a minimum, this Court should order a reference hearing to determine precisely what prosecutors knew about Pillatos’ and Frye’s scheme to get her a deal and the effect of Gerald Horne’s relationship with Ms. Mandel on prosecutors’ decision—making. See , 99 Wn.2d 80, 88, 660 P.2d 263 (1983) (“If petitioner makes at least a prima facie showing of actual prejudice, but the merits of the contentions cannot be determined solely on the record, the court should remand the petition for a full hearing on the merits or for a reference hearing pursuant to RAP 16.11(a) and 16.12”).
STATE OF WASHINGTON v. KURTIS MONSCHKE — Colloquy, April 20, 2004, Volume 13, pages 483-491
THE COURT: You have her address and phone number?
MR. BERNEBURG: Yes, I do. She’s been served with a subpoena. I’ve made Contact with her. We’re pursuing that on our own.
THE COURT: Okay.
MR. BERNEBURG: Your Honor will recall, Ms. Barbara 7 Corey—Boulet was the prosecutor in this case along with 8 Mr. Greer up until, I think, about March, at which time she left suddenly. She left the Prosecutor’s Office.
Prior to her leaving, she had filed numerous briefs and made many arguments that David Pillatos and Tristain Frye — and they had seized — they were conspiring to commit perjury. They were conspiring whereby Tristain Frye was going to blame David Pillatos for much of what went on, and David Pillatos was going to take responsibility for that so that Tristain Frye could receive a plea bargain and get a lesser sentence.
Barbara Corey-Boulet used that argument in writing and in oral argument to this court as justification for a warrantless search and seizure of the defendant’s mail in the jail.
We fast—forward a little bit here, and Barbara Corey-Boulet is gone. Jerry Costello is on the case now with Mr. Greer, and Tristain Frye receives a plea bargain. She receives an offer of lesser time from the State in exchange for testimony. The testimony she’s offering is that David Pillatos did the bulk of the damage, that she was a minor participant.
The testimony, in other words, is entirely consistent with what Ms. Barbara Corey-Boulet once alleged was perjury and a reason for conducting a warrantless search and seizure in the jail. They’re now putting putting that witness on, who was once accused of perjury and conspiring to commit perjury. In fact, it is the maoin evidence and most damning evidence against Mr. Monschke, and only after the initial assault, later came back up the railroad tracks and attacked Mr. Townsend.
That is the only evidence which the State has which directly implicates Mr. Monschke in any form of actus reus in this crime. The state wants him by way of accomplice liability, that he was of like mind, and had he been there, he would have done it, however the State’s assertion that that implicates Mr. Monschke as an accomplice is simply wrong.
In this case Barbara Corey-Boulet’s testimony that she perceived Tristain Frye as a conspirator to commit perjury in this case and what that perjury testimony was to be is relevant to this case and goes directly to the credibility of Tristain Frye who is the main witness against our client.
Her testimony is relevant. It is material. We believe it impeaches the State’s main witness. We need to put her on. Once we put her on, her credibility —— as soon as she takes an oath and promises to tell the truth, her credibility becomes an issue. Well, her credibility has become an issue for reasons other than anything that, you know, the defense would propose.
We would like her to be credible. In fact, Pierce County Prosecutor’s Office that has accused her of not When we being credible. We have nothing to do with that. put this very important witness on, this witness who can in fact impeach the State’s primary witness against our client, we want to know and we’re entitled to know anything in that record that is public information which goes to her credibility.
There is case law out there, public information records requests and so on which identify prosecutors as public employees. There’s segments and sections of their personnel file which are public information. The defense is entitled to it, particularly when it goes to the credibility of this type of witness.
THE COURT: Have you made a public disclosure request of the Prosecuting Attorney’s office?
MR. BERNEBURG: We have not. Given the circumstances of what’s going on, she’s the former lead prosecutor in the case, given the public nature of what happened, you know, we don’t have to engage in fruitless exercises where the outcome is apparent.
We’re going directly to the court and asking the court order that those portions of the personnel file be turned over to us, so we can in fact put this witness on.
THE COURT: I want to make sure I understand your argument. You intend to put on Ms. Corey-Boulet’s testimony so that she can testify as to the veracity of another witness and then after she testifies as to the veracity of another witness, her credibility because she’s a witness then is at issue. Is that correct?
MR. BERNEBURG: She’s going to testify that Pillatos and Frye were conspiring to commit perjury. I don’t think she can testify as to the veracity of another witness. She can testify that she has a factual basis to believe and in fact accuse Tristain Frye, in fact did accuse Tristain Frye and David Pillatos of conspiring to commit perjury. That’s the testimony we want from her. That’s allowable testimony. Any witness that takes the stand, their credibility is at issue, always.
THE COURT: Thank you. Reply.
MR. COSTELLO: I’ll comment initially on what the court inquired about. It certainly would be improper to call a witness simply to offer an opinion on another witness‘ counsel has this theory that credibility. The letters, Ms. Corey-Boulet evidently has an opinion that there was some conspiracy or is some conspiracy between Pillatos and Frye. if Ms. Corey—Boulet holds it, would be based That opinion, upon letters which counsel has referred to.
The letters would speak for themselves. The defense should produce the letters that demonstrate this so-called conspiracy. The State is not aware of any instance where Pillatos urged Ms. Frye to lie about anything. Pillatos urged Ms. Frye in correspondence to take a plea bargain, to save herself, so to speak, but we’re not aware of any situation, to Mr. Greer or my memory, where Mr. Pillatos urged anyone to lie.
The State fails to see how Ms. Corey-Boulet can impeach Ms. Frye when Ms. Corey-Boulet has no personal knowledge of any events and circumstances surrounding the murder.
Her opinions about Ms. Frye and Ms. Frye’s credibility, whatever those opinions may be, are completely irrelevant. The defendant Frye made an agreement with the State of Washington. The agreement is in writing. Cross—examination of Ms. Frye about that agreement is 4 certainly fair game, but calling Ms. Corey-Boulet to offer up opinions about it and Ms. Frye’s credibility is completely irrelevant to the issues that will be offered to the jury.
With respect to Ms. Corey-Boulet’s personnel file, as I’ve indicated in the brief, as representing the State of Washington, Mr. Greer and I don’t have it. An order would apparently be directed to Mr. Horne, if an order is warranted. We certainly submit that it is not warranted in this instance.
MR. BERNEBURG: Brief response. Ms. Corey-Boulet, if counsel is unaware of it, she filed a briefings on the subject. I’ve included it in another motion, examples of that type of representations that Ms. Corey-Boulet did in fact make to the court in writing and on the record and purported to the truth, as amatter of truth, as a justifiication for continued warrantless seizure of the mail.
I’ve included that in another briefing, but she specifically outlined specific instances where David Pillatos is trying to influence Ms. Frye’s testimony. She puts very specific examples and includes the letters to back that up. If we have a witness who has specific instances, who has made allegations that the State’s star witness in a murder case has conspired to commit perjury, and that perjury that she was conspiring to commit is the same as the testimony she’s now giving from the witness stand, that is relevant. It is material. And it is important to the defense, Your Honor.
THE COURT: I’m going to deny the motion for discovery. Although I don’t believe I have the authority to even grant this motion absent a public disclosure request which never was made to the prosecutor’s office, I’m going to comment on the substance of it nonetheless, so the record is perfectly clear.
What the defendant is asking to do is to call a person who has no personal knowledge of the testimony which is sought from the defendant, but rather has formed an opinion based on all of the evidence which is currently available to the defendant. Ms. Corey—Boulet’s opinion would be the same as any citizen’s opinion. She’s not an expert. She’s just a person involved in the case who read all of the exhibits, so she may or may not have had an opinion, may or may not hold an opinion, but it was based on the evidence which is readily available to the defendant.
The very basis of her testimony is irrelevant and improper as I believe that it is an opinion as to the veracity of another witness, of the truthfulness of another witness’ testimony. However you try to dress it up, that’s really what it is.
Then you take it a step further saying that now that, “We want to call her as a witness to give opinion testimony on the veracity of another witness, then her own veracity is in testimony. We want to seek into the depths of her personal file to try to smear her credibility,” and I think, have that slosh over onto the State’s attorney generally. I believe that is completely improper. I’m not going to allow it.
MR. BERNEBURG: Your Honor, may I —
THE COURT; I’m moving on to exclusion of the testimony of Mark Pitcavage, if you would please.
MR. COSTELLO: Ms. Corey-Boulet contacted Mr. Greer regarding the subpoena she had received. We told her this issue would be dealt with before the court. What we’re wondering now is whether she should be instructed to disregard that subpoena, whether she should come to court. I don’t know if there’s any theoretical basis for her to be directed to appear by the defense subpoena. We would ask the court to please inquire.
THE COURT: Is there any other legal basis for erquiring Ms. Corey-boulet to appear.
MR. BERNEBURG: Not at this time.
THE COURT: I’m going to relieve her of the subpoena obligations.
MR. COSTELLO: We’ll communicate that to her then.
THE COURT: Motion to exclude the testimony of Mark Pitcavage, if you could, please. Are you prepared to go forward on the motion?
MR. BERNEBURG: Yes. Defense counsel is ready to proceed.
THE COURT: I’m ready.
MR. BERNEBURG: This is defense motion to exclude Dr. Pitcavage from offering opinions as an expert witness in State v. Monschke.
The state is proposed to bring Mark Pitcavage forward as an expert witness. In the State’s statement of clarification regarding the qualifying organization or identifiable group under RCW 10.95.020(b), the State wants to, as I understand it, have Dr. Pitcavage take the stand and testify that white supremacy, which is an idea or a concept, that white supremacy can also be taken as a whole, we can see is it as one group, that it’s an identifiable group, that it has a hierarchy, and the defendant can do something to obtain membership in the group of the white supremacist or do something to maintain membership in the group of white supremacy, or he can somehow rise in an organization called “white supremacy.”