At Miller’s trial, which took place several months later, Miller’s attorney tried to have his many statements to the police suppressed. The basis for this application to the court was that Miller had been involved in an accident as a child from which he suffered brain damage. An expert psychologist and an expert psychiatrist testified to Miller’s brain damage and resulting memory impairment. The attempt to suppress Miller’s statements was unsuccessful and he too was convicted of first degree murder.
My attorney hired a private investigator to attend Miller’s trial where we first learned of Miller’s mental condition. My attorneys immediately filed a Petition with the Supreme Court of Pennsylvania, which had jurisdiction over my case on appeal, to remand the case to the trial court for a hearing to determine whether or not I was entitled to a new trial based on after discovered evidence. The Supreme Court denied my Petition for Remand.
Sometime later, Miller’s appeal was turned down by the Supreme Court of Pennsylvania. Miller then filed a Petition under the Post Conviction Hearing Act. In his petition Miller claimed that his lawyer was ineffective for not raising an insanity defense. Miller stated in his petition that he blacked out at the time of the homicide and could not remember what happened. We petitioned for remand again. This time the remand was granted. Miller later withdrew this petition on the advice of his attorney and the District Attorney’s Office.
The remand hearing was held before Judge John O’Brien in the Court of Common Pleas. Normally, this hearing would have been held before Judge Ziegler who presided over my trial. However, shortly after my trial, Judge Ziegler was appointed as a judge in Federal District Court. This hearing was held to determine whether or not I was entitled to a new trial based on after discovered evidence. At the hearing, the psychiatrist and the psychologist who examined and interviewed Clarence Miller testified. They testified that Miller had a mental defect resulting from an injury suffered in an accident as a child. The experts testified that Miller had an impaired memory and as a result filled in memory lapses with what is known as confabulation. In medical jargon, confabulation means unconscious lying. According to the psychologist and the psychiatrist, when they tested Miller, they found a significant memory deficit.
The hearing went well. It went so well that my attorneys did not take extra time to put on an expert witness we had retained, a psychiatrist with a fine reputation. Dr. Sadoff was a professor of psychiatry at the University of Pennsylvania. Dr. Sadoff had flown to Pittsburgh from Philadelphia and it was the end of the day. The hearing would have had to be continued until some weeks later and we would have had to pay Dr. Sadoff a considerable amount of money to come back again. Accordingly my attorneys decided that the hearing went well enough to forgo Dr. Sadoff’s testimony. Judge O’Brien denied me a new trial and the Supreme Court of Pennsylvania affirmed his ruling. Judge O’Brien in his written opinion stated that the psychiatrist had not recalled exactly what tests he had used to confirm his diagnosis of Miller. In the context of his testimony and all of the other evidence presented at the hearing, this reason lacked validity.
After the Supreme Court of Pennsylvania turned down my appeal my family hired new counsel to pursue my appellate rights. The firm of Arent, Fox, Kintner, etc. of Washington, D.C. represented me on direct appeal with Charles Scarlata esquire, as local counsel. My next attorney, Robert Potter, was hired to pursue my appeal. Mr. Scarlatta remained loosely involved but was not active in any of the proceedings. Mr. Potter filed a Post Conviction Hearing Act Petition in the Pennsylvania Courts because all issues had to be exhausted in state court before an appeal could be taken to Federal Court on a Petition for Writ of Habeus Corpus.
After running its course through the Pennsylvania Courts my Post Conviction Hearing Act Petition was turned down and a Petition was filed in Federal Court for Writ of Habeus Corpus. The Federal District Court turned down the Petition and Appeal was taken to the Third Circuit Court of Appeals and later to the Supreme Court of the United States.
Mr. Potter and I disagreed on the issues to raise in my appeal. Much to my regret, I acquiesced to his wishes. Mr. Potter would not raise the issues contained in my second petition which dealt with the crime scene, destruction of evidence, prosecutorial misconduct, and ineffective assistance of counsel. Mr. Potter’s choice of issues led to a dismissal order without opinion everywhere, except for the Federal District Court. Mr. Potter’s issues were really no more than a rehash of the issues raised on direct appeal. Because they really did not discuss anything new, there were summarily dismissed. I repeatedly told Mr. Potter that I wanted the case investigated. He would not do it.
In my second post conviction petition my lawyers requested the police records. They were informed that the files were missing. Please keep in mind that this was one of the highest profile cases of the 1970s. The detective file, maintained in triplicate, was voluminous. That three copies of a major case file would turn up missing due to inadvertence or innocent happenstance is hard to believe.
The missing three copies of the main detective file is only the tip of the iceberg. My attorneys requested a copy of the Mobil Crime Unite file. They also requested a copy of the file in the Police photo lab. These two files, separately maintained, also turned up missing. No logical explanation has been offered beyond the fact that the Detective Branch of the Pittsburgh Police moved locations. We requested that the City of Pittsburgh disclose how many investigative files there were and how many were missing. They refused to provide the information.
In December of 2005, my attorneys brought in one of our experts John Balshy, to examine the coroner files. At that time the coroner’s file was intact. For reasons not provided, Mr. Balshy was only allowed to see part of the file. This was not in accord with Pennsylvania law, which requires that the coroner’s files be open to the public. We did not make an issue of this because Dr. Wecht had just been elected coroner and was to take office in January. Dr. Wecht had previously written a letter on my behalf to the board of Pardons stating that in his opinion, I was not the assailant.
When Dr. Wecht took office in January of 2006, his staff discovered that the file was missing. Dr. Wecht asked the County Police to investigate. Nothing was determined and no charges were filed. Recently, my attorneys sought a copy to the Allegheny County Police file of this investigation and they were told that the file had been purged a few years after the investigation was undertaken.
That all these files turned up missing due to inadvertence or innocent happenstance is not logically credible. From a common sense point of view, all one has to do is ask how all these separate archives could turn up missing in the absence of intentional acts. According to Dr. Feinberg:
…finding 4 missing records is an extremely rare event. The alternative to assuming that we have observed such a rare event is to conclude that there is a connection among the files being lost, ie. That they were not lost at random.
In my second Post Conviction Relief Act Petition, I questioned the manner in which the police investigation of the killing was conducted. The experts we retained told us that if the police had conducted a complete and objective investigation that the assailant could definitely have been identified. This was not done and no good reason was given. My attorneys requested discovery. The district Attorney vigorously opposed this and the Court did not allow it. The trial court turned down my post conviction petition without a hearing.
The Superior court reversed this ruling and ordered that an evidentiary hearing be held. The District Attorney delayed the expeditious movement of this case. First they asked the Superior Court to review this ruling en banc. Then they sought Allowance of Appeal from the Supreme Court of Pennsylvania. This unnecessarily delayed matters by several months. It is only in rare cases involving significant legal issues that the Superior Court of Pennsylvania grants en banc review. There was also little to no chance that the Supreme Court of Pennsylvania would grant Allowance of Appeal, where the Superior Court had only granted a hearing and not finally disposed of a case. Nevertheless, the District Attorney filed these appeals to delay disposition and ultimately to keep me incarcerated as long as possible.
After the case was remanded to the Court of Common Pleas in Pittsburgh, the case was assigned initially to Judge McGregor, who has a reputation for being thoughtful and fair. The District Attorney sought Judge McGregor’s removal on the pretext that Judge O’Brien was the original judge from the first post conviction petition. After Judge O’Brien retired, the case was then assigned to Judge Donna Joe McDaniel.
Judge McDaniel decided that only Dr. Wecht, a prosecution rebuttal witness, and my original trial counsel would be allowed to testify. She based her ruling on a strained interpretation of the Superior court opinion. It made little sense and distorted the true nature of my ineffective assistance of counsel claim.
The essence of the ineffective claim was that my trial counsel failed to investigate the crime scene and the forensic evidence. Judge McDaniel treated the claim as one for failing to call a specific witness, namely Dr. Wecht.
Where a court considers a failure to investigate claim, it follows all legitimate leads that a reasonable investigation would create. On the other hand, a failure to call a witness claim involves deciding whether or not it was objectively unreasonable for a trial lawyer to not call a specific witness after the attorney has spoken to the witness. The inquiry is always premised on the fact that counsel, after interviewing the witness and knowing what the witness would testify to, then decides that it is not in the client’s best interest to call the witness in question.
Before trial, Mr. Rothman never spoke to Dr. Wecht or any other forensic expert. Mr. Rothman never made a conscious decision to call or not call Dr. Wecht as a witness at trial because he had not investigated. Mr. Rothman never spoke to Dr. Wecht before deciding not to call Dr. Wecht as a witness.
Mr. Rothman claimed that after Detective Freeman’s testimony concerning the blood spatter, he read a book on blood spatter by Dr. McDonnell. On the basis of what he read in the book, Mr. Rothman did nothing further.
We hired Dr. McDonnell as an expert in forensics and blood spatter. Please read over Dr. McDonnell’s affidavits. They will show that Mr. Rothman was wrong to not consult with experts. Also read the affidavits of Stanley Greenfield Esquire, and Gary Zimmerman, Esquire. These two highly experienced criminal defense lawyers have opined that Mr. Rothman was not effective.
If Mr. Rothman never spoke to Dr. Wecht, there is no basis to cast the claim as a failure to call a witness. There is no credible, above board explanation for Judge McDaniel’s ruling. I have not come across a ruling like this in any other case.
Dr. Wecht testified at the hearing before Judge McDaniel. Dr. Wecht testified that he was confident to a reasonable degree of medical certainty, that Clarence Miller was the assailant. Judge McDaniel allowed the prosecutors to call as a rebuttal witness, Tobey Wolson, a criminalist with the Miami Police. Mr. Wolson testified that he could not make a conclusion on the meaning of the blood spatter without a picture of it. However, he did admit on cross examination, that if the blood spatter was as described by Detective Freeman in his trial testimony, then Dr. Wecht was correct in his conclusions. Judge McDaniel turned down my petition. (A transcript of this hearing is in the website.)
The Superior Court of Pennsylvania turned down our appeal of Judge McDaniel’s ruling. Their opinion was short and conclusory. It offered no real explanation. It was not published. The Supreme Court of Pennsylvania denied allowance of appeal.
We next filed a request for permission to file a successive Petition for Writ of habeas Corpus in the Third Circuit Court of Appeal. Permission was granted and the case was sent to the United States District Court in Pittsburgh.
The case was assigned to Magistrate Lenahan who denied all our requests for discovery and an evidentiary hearing. Magistrate Lenahan issued a report recommending that my petition be denied. Her ruling was affirmed summarily by the United States district Court Judge Schwab.
We then appealed to the third Circuit Court of Appeal for a certificate of appealability. This was granted. The brief is due shortly.
Trouble Questions
There are several questionable facts and circumstances in this case, none of which alone, legitimately raises a question. But when taken together, the pattern is troubling.
I am reasonable sure that whatever happened in the beginning in 1974, had nothing to do with me. The original land fraud investigation was dropped in 1974, under unusual circumstances. In spite of the fact that the FBI felt that a fraud had been committed, the U.S. Attorney for Western Pennsylvania, Richard Thornburg issued a letter of declination, which meant that the FBI could not investigate further.
Mr. Thornburg was a very partisan and ambitious Republican who went on to be Governor of Pennsylvania and Attorney General of the United States. 1974 was an election year in which the Republican Party was experiencing difficulties due to Watergate. Republican Senator, Richard Schwiker was up for re-election. Once Mr. Thornburg was satisfied that the Senator’s office had nothing to do with Mr. Wilhelm’s loss, he was more than happy to let it go, regardless of whether or not a fraud had been committed. The case was not turned over to local authorities, so the whole matter died. In my opinion this was because it was an election year and Senator Schweiker was up for re-election. Times were tough for Republicans and if the case became public, it would have proven embarrassing to Senator Schweiker, even if no one connected to his office had anything to do with the fraud. Everything would have been fine from their point of view, if only Wilhelm had not been killed.
I have no solid proof that any one person did anything. However, the following facts cannot be disputed:
1. The declination by the US Attorney in 1974, after being told by the FBI that they felt that a fraud had been committed raises questions. Beyond this, neither the US Attorney not the FBI saw fit to contact any local law enforcement that an individual may have been swindled out of $20,000.
2. The crime scene investigation was done by the homicide department of a major city police force;
3. the police detectives knew that miller had scratches on his face and hands;
4. The police detectives knew that Clarence Miller failed a polygraph;
5. The police had a dying declaration from the victim stating, “Clearence Miller did this to me;”
6. The police interpreted the dying declaration to mean that Clarence Miller set Wilhelm up to be assaulted by Charles Goldblum;
7. Notwithstanding the fact that the police had a legitimate ‘wodunit” on their hands, they did not take pictures of the blood spatter on the dash board in the vehicle. In the alternative, the pictures were taken but came up missing by the time of trial. The photographer, Detective Crisanti, when contacted by my investigator did not remember whether he took pictures of the blood spatter or not. It is possible that these pictures were taken but lost. Later in a deposition, Detective Crisanti emphasized how important it was to always photograph evidence before moving it;
8. The police lost all three copies of a large sized voluminous case file for one of their most important homicide cases;
9. The police also lost two other files related to this case, namely the mobile Crime Unit file and the Police Photo lab file;
10. The coroner’s file which was intact in the end of 1995, ended up missing when Dr. Cyril Wecht took office a month or so later. It was well known that Dr. Wecht had previously expressed his opinion that I was not the assailant;
11. When I applied for commutation in 1998, a public hearing was granted. At that hearing, the attorney for the Commonwealth, James Gilmore admitted that lawyers in the District Attorney’s Office never believed Clarence Miller when he claimed that George Wilhelm was the arsonist of my restaurant. Mr. Dixon also admitted this to my attorneys. Notwithstanding this belief, no further investigation took place, and Clarence Miller was allowed to testify to this;
One or two of the above factors would not prove anything. However, there is a point where a series of unusual events or coincidences become so troubling that one has a right to ask why all of this has happened and who is the entity behind the curtain.
Read about Application for Commutation…