FAIRBANKS—Superior Court Judge Paul Lyle will be looking for "clear and convincing evidence" when he begins assessing the claims of the four men seeking to overturn their murder convictions for killing 15-year-old John Hartman in 1997.
The state attorney who is leading the defense of the 1999 convictions of George Frese, Eugene Vent, Marvin Roberts and Kevin Pease, argued in her closing statements Tuesday that almost nothing the petitioners presented was clear or convincing.
“There will not be clear or convincing evidence of many factual assertions in this case,” said special prosecutor Adrienne Bachman. “The court is going to have a very hard row to hoe here in order to establish anything by clear or convincing evidence.”
Bachman then spent the majority of the three hours allotted to the state for closing arguments in a point-by-point explanation of why Lyle shouldn't find one piece of new evidence or another clear or convincing.
Picking apart the alternate theory
Bachman started with poking holes with the petitioners' argument that a group of Lathrop High School students were the true killers of Hartman, noting that exactly who was involved varies from account to account.
Bill Holmes said he and four other former students committed the crime, naming Jason Wallace, Rashan Brown, Marquez Pennington and Shelmar Johnson.
Wallace named only himself, Holmes and Johnson in a sealed court document that was inadvertently made public and that was a summary of an admission he purportedly made to an investigator working for his attorney in a later case.
In a third account, Scott Davison, who said he heard a confession from Wallace shortly after the attack, named Wallace, Holmes and a man named Harold in his affidavit.
“An example,” she said. “If the court is trying to figure out if it’s going to credit Scott Davison or if it’s going to credit Williams Holmes, who factually was involved in the episode they’re describing? Was it Bill, Jason and Harold, the mysterious Harold? Was it Jason, Bill and Rashan? Or is it the five men now named by Holmes. You will not have clear or convincing evidence of who was involved in the alternative explanation that the petitioners have offered you.”
Bachman's closing arguments came with a presentation that included a slide that compared the confessions of Wallace as told by investigator Tom Bole and Holmes, showing that those, too, conflicted on issues like who was driving that night or where a party that night was held.
"Clear and convincing? Not at all," she said.
She also took issue with the petitioners' explanation of why Holmes waited to come forward with his confession and why he didn't use it during the original trials both he and Wallace faced for murders related to a 2002 plot to take over a drug ring.
"He knows that Jason Wallace has unleashed all of this against him, yet he keeps sheathed the ultimate weapon against him," she said. "There was no mutually assured destruction."
Bachman said it's far more likely that Holmes researched the Hartman case and is using it to get back at Wallace as well as potentially help his own case now that California is considering a law that could grant some people parole.
Similar points were made about many of the alibi witnesses put forward on behalf of the four petitioners. The state has also argued that many of the witnesses who also testified at the original trial shouldn't be admitted because they're repetitive.
As for the petitioners’ argument that the alibi witnesses should be considered in a new, more credible light after the revelations that Arlo Olson, a star witness in the original trials, has recanted his testimony, Bachman was dismissive.
She said there was strong evidence of collusion by the witnesses in an effort by everyone to lie and cover for the four men.
Bachman noted that witnesses such as Garry Edwin, who testified that he saw Roberts at a wedding reception, were "reconstructing history to help" Roberts.
The same went for Roberts' mother, Hazel Mayo; her husband, Art Mayo; and his brother Kenneth Mayo in denying the story of Kenneth Mayo's ex-girlfriend, Margaretta Hoffman.
Hoffman was one of the new witnesses put forward by the state. She testified that she saw Roberts hand off a pair of bloody sneakers to Kenneth Mayo and then spent the morning helping Kenneth dispose of the shoes.
"The family understandably wants to support Marvin Roberts and has reconstructed history," she said.
In addition to the alternate perpetrator theory, the petitioners' case also rests on a key witness going back on the testimony he gave during the original trials.
Olson testified that he saw Pease, Frese, Vent and Roberts attack Franklin Dayton outside a wedding reception at the Eagles Hall on First Avenue. There were doubts about his ability to actually see what he claimed at the original trial, but jurors ended up siding with him over the alibi witnesses.
The state has worked to paint a picture of Olson as a promising young man who always sought to do the right thing and did so by telling the truth about what he saw at what turned out to be great expense. Olson has reported mistreatment while in prison as well as exclusion from his friends and community for what he said in the 1999 trials.
A slide in Bachman's presentation read "Arlo Olson, The bravest witness."
In talking about Olson's new testimony, she focused in large part on a series of recorded calls between Olson and former Daily News-Miner reporter and University of Alaska Fairbanks journalism professor Brian O'Donoghue, who produced a series of stories about the Hartman case while at UAF. The News-Miner published the stories and was involved in the editing of the stories.
Bachman said O'Donoghue gave Olson improper legal advice about how to best take back his testimony, suggesting O'Donoghue was part of the plot to build a case for the four men.
"One fair interpretation of this is this series of calls is just a rehearsal of what we're here to discuss," she said.
Bob Bundy, one of the pro-bono attorneys from the firm Dorsey & Whintey, delivered a passionate 40-minute rebuttal of the state's closing arguments.
During that time he offered what he said were far more simple and reasonable explanations of the evidence than Bachman's claims of collusion and conspiracy.
He put forward Marvin Roberts' night as an example.
"It’s impossible that a person that was behaving and everyone was there being sociable and being pleasant, dancing, would suddenly get into his car and in a murderous rampage go out, rob Frankie Dayton, cruise around and find an individual just walking down the street, jump out and assault him. How is that possible?” he said. “Is it more possible to believe that a bunch of guys that were later convicted of multiple murders would be the guys that were going out looking for someone to beat up?”
He said the theory that all the young alibi witnesses worked together to create a false timeline of events and stick to that timeline after 18 years "is hard to believe" but said "it's easy to believe if you have the suspects and want to believe they are guilty."
Bundy attacked Wallace's denial, calling him a "manipulative liar," and drew attention to implausible claims about how he didn't know his neighbor, another person at his church or whether or not he got a GED.
As for Olson, he said that Olson was never the "bright-eyed, bushy-tailed" person the state had suggested, referencing Olson's many crimes and documented mental health problems.
Bundy ended his appeal to Lyle with a call to justice for the men who he said have been imprisoned for most of their adult lives.
"We're told that they should be kept there. Why? Well to uphold the verdicts of jurors who had never heard of Holmes or Wallace or the true nature of Arlo Olson's tortured path to his testimony," he said.
“Justice requires, demands and cannot exist without the truth,” he said. “And the truth, clear and convincing, settled and abiding, is that George Frese, Eugene Vent, Kevin Pease and Marvin Roberts are innocent.”
Contact staff writer Matt Buxton at 459-7544. Follow him on Twitter: @FDNMpolitics.