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Dave's State Case

The state case is not like the Dave's Federal Case. The years of wrangling that has been the breath of the federal cases has never been about the merits underlying the convictions, but about the interpretation of statutes; whether the law and procedural rules allowed me access into the court so as to challenge the merits. The state case has always been about fundamental elements establishing my innocence. In the Dave's Federal Case I am legally innocent (convicted for offenses that are not crimes under federal law). In the state case I am factually and morally innocent.

The 1990 prosecution of me for the 1988 murder of my ex-wife, Ann Jenkins, is a case of tragedy and government corruption. I am 100% innocent of the murder, which is readily observed by all who look into the case. The overriding reason for my still being in prison is that acknowledgment of my innocence would be severely damaging to the careers of those law enforcement agents who drove the prosecution, and those who work to keep me falsely imprisoned. The depth of the malfeasance by those agents would result in destroyed careers and monetary judgments should my innocence be proven (innocence that will be proven). Instead of seeking justice, those agents are rabid in their efforts to protect their careers, and the good name of the judicial system, at the grave expense of my rightful freedom.

The details of the murder are gruesome. The evidence adduced at trial indicated that Ann was strangled and then her throat savagely cut. Her body was also covered with bruises of various ages from recent beatings. I have NEVER set foot in the residence where Ann was slain. On that fateful day, in 1988 when one or more perpetrators entered Ann's residence and cut her throat, I was far away in Del Mar. Her philandering husband was nearby, however. Gary Jenkins was suppose to be at work. He wasn't. In fact, Gary has never been able to establish where he was during those critical hours when it is believed Ann was murdered. And there were numerous reasons why Ann was worth more to Gary dead than alive: he was engaged in a string of extramarital affairs; there was talk of a bitter divorce to come; he was drinking heavily and battered Ann regularly; was rumored to be involved in the drug business; stood to inherit Ann's share of their jointly won lottery winnings of $750,000.00, as well as life-insurance on Ann. Furthermore, Gary lied to the police about his whereabouts the day of Ann's murder. Gary and Ann fought the morning of her death, and Gary later secreted away (never to be found) the home-telephone answering machine tape (believed to contain evidence of Gary's call after leaving for work, wherein he raged against Ann, and his threats to return home to continue the fight). In addition, later that day, when Gary was finally located hiding at his brother's house, and informed of something being wrong at home, i.e., that Ann had not picked up the children from school, Gary dawdled at his brother's for a long while! Gary, it seemed, dreaded returning home. Add to all the above, that Gary was desperately pushing law enforcement at Harrison, and it becomes clear that Gary was terrified of his dark secret being exposed. In fact, when law enforcement established that Harrison could not have left Del Mar, driven to the scene, committed the murder, and driven back to Del Mar in the narrow window of time he could not account for that day, it was Gary who took it upon himself to convince law enforcement otherwise. From the moment law enforcement arrived at the crime scene Gary was pointing fingers at Harrison, and away from himself.

Gary and his latest flame attended the trial, until the prosecutor admonished Gary that such a brazen display was inappropriate. In a very short time Gary was able to spend all the lottery and insurance moneys, with nothing to show for it. There could be another suspect.

David Johnson lived in southern-most Oregon, and was enamored of Harrison. Johnson had deeply disturbed feelings of hate towards Ann and Gary. Like Gary, Johnson was unable to account for his actions around the time of Ann's murder. Indeed, there were several days surrounding that critical time that Johnson could not account for; ample time in which he could have driven from Oregon to Ann's residence, and return to Oregon. He also held a twisted fascination with knives. Johnson testified at Harrison's preliminary hearing. Thereafter, however, Johnson told law enforcement agents that he would not testify at any trial. But the government forced him to testify. Upon hearing of Harrison's conviction of the murder, Johnson committed suicide. A suicide letter, left for law enforcement agents to discover, was forwarded to the prosecutor, Larry A. Burns, who took it to the trial judge, David B. Moon, exhorting that it be sealed from Harrison's appellate lawyers. Moon issued a statement that a suicide letter had been received, was of no import, and was being sealed! That letter has never been disclosed to any defense attorney. There is other concealed evidence of Harrison's innocence.

Prior to trial, Burns offered a contract to Harrison, offering that if Harrison would agree to a polygraph test as to the murder, and in the event Harrison passed the test, no prosecution would occur. Harrison jumped at the opportunity -- for the obvious reason that he is innocent. At the conclusion of the test, however, Burns had a private whispered conversation with his hand-picked examiner, and immediately took personal possession of the test records (all questions, answers, graphs, everything). Burns has concealed those records to this day (the records were never placed into any case files) and refuses to discuss them, other than to offer the self-serving suggestion that Harrison failed the test.

Just one of many Troubling Questions: If the suicide letter and the test results were not favorable to Harrison, then why the urgency to conceal them?

Burns is corrupt. He is a criminal. The very least of his egregious behavior is the knowing prosecution of this innocent man, and in doing so Burns also knowingly assured that the real murderer(s) would remain free. Moreover, to grease the prosecution, Burns allowed a parade of admitted criminals to go free in exchange for their scripted assistance, he also protected from prosecution an individual who openly admitted to years of incestuous relations with his young daughters, suborned perjury by government witnesses, fabricated evidence, concealed evidence, destroyed evidence, engaged in the corruption of a defense investigator (Note: years later Burns used his position as a federal judge to gain the investigator's freedom from spousal battery (repeat offender) and arson (burned down her place of business) charges, threatened witnesses favorable to Harrison, ad nauseam. Burns should not only be subjected to civil litigation for his constitutionally violative conduct, but he should be prosecuted to the full extent of the law. Regrettably, Burns is now a federal judge in the United States District Court for the Southern District of California, at San Diego, and has been protected at every turn by his brethren. Nonetheless, there is more to this tragedy than other suspects and egregious misconduct by Burns. There is substantial evidence of Harrison's innocence.

Burns is painfully aware of the DNA evidence recovered from off of Ann's body that would establish Harrison's innocence. Burns does not want that DNA evidence tested. He does not want Harrison's innocence proven. At the time of the trial, defense counsel, Alan May, informed Harrison that Burns had stated his belief that Harrison had some kind of knowledge about the murder, either before or after the crime. In fact, Burns told May that he (Burns) was "morally certain" Harrison did not commit the murder, but "bet" he could "win" a conviction. It was a game to Burns. He really didn't care one way or the other; it wasn't about justice, anyway. Harrison was convicted, not because he is guilty, but because he was selected by a corrupt law enforcement agent for prosecution. And now, Burns will do anything to keep the truth from being exposed.

  1. On 26 June, 1989, David Scott Harrison was charged by indictment with the murder of his former wife, Anne Jenkins. In addition to the charge of violating California Penal Code ("P.C.") § 187, it was further alleged that the accused personally used a knife, in violation of P.C. § 12022(d);
  2. On 26 February, 1990, in the Superior Court for the State of California, San Diego County, at Vista, Harrison waived trial by jury. A court trial commenced before judge David B. Moon on 27 February, 1990. Defense counsel was Alan May, and Special Prosecutor was Larry A. Burns;
  3. On 15 March, 1990, based on the flimsiest of circumstantial evidence (there was no direct evidence) and by altering testimony and facts, Moon found Harrison guilty of the charged offenses. Harrison was sentenced on 2 May, 1990, to a term of 25-years-to-life, consecutive to a one-year enhancement for use of a knife;
  4. The convictions and sentences were affirmed by the Fourth District Court of Appeals for the State of California on 30 June, 1992;
  5. Writs of habeas corpus in both the state and federal arenas were denied;
  6. In time, Harrison became aware that two hairs recovered from off of and beside the victim existed, it was believed, in the possession of San Diego law enforcement authorities. Over the years Harrison sought information as to the existence of the hairs. Law enforcement repeatedly refused to provide any information, at one time even suggesting that the San Diego Sheriff's Department had no involvement in Harrison's cases, despite that Department having been the lead investigative agency of the homicide. Persistence eventually paid off. In answering a California Public Records Act request from Harrison, San Diego law enforcement begrudgingly conceded the two hairs did in fact remain in the possession and control of the Sheriff's Department;
  7. Harrison wrote dozens of letters to San Diego District Attorney, Bonnie Dumanis, urging her to DNA test the hairs. Dumanis refused every request. Having never set foot inside the murder-residence, thus believing the unidentified hairs to be from the perpetrator of the murder, Harrison prepared a CONTRACT offering terms you would think Dumanis, if she honestly believed Harrison to be guilty, could not refuse (in the event Dumanis would have the hairs DNA tested and if such tests should indicate the hairs as coming from Harrison, he would forever cease all efforts at vindication). The CONTRACT was presented to Dumanis at least a half-dozen times, but she rebuffed every presentation;
  8. At the same time, Dumanis and her staff were issuing statements and giving press interviews touting the creation of the District Attorney's Office's DNA Project. Ostensibly, the purpose of the DNA Project would be to review pre-DNA cases and determine which ones should receive DNA testing of biological evidence. For example, in the San Diego case of Highway Patrolman Graig Pryor, who had been telling everybody of his innocence of the murder of Cara Knott, the DNA Project offered testing. Pryor immediately declined, no doubt because he is guilty. Conversely, in Harrison's case, the factors of which far surpass the criteria set out by the DNA Project to warrant testing, Dumanis and then-staff of her Office and the DNA Project, George "Woody" Clarke, Lisa Weinreb and Daniel Lamborn, to this day, have refused every request Harrison has made for DNA testing, and refuse to provide any explanation for denying testing. In the Pryor case,. the inferences to be drawn are obvious; Dumanis and the DNA Project staff knew Pryor to be guilty, and Pryor refused' testing because he knew the results would have proven him guilty. In Harrison's case the inferences are just as obvious; Dumanis and the staff of her Office and the DNA Project, know Harrison to be innocent, as Harrison knows testing will ultimately prove his innocence. What Dumanis, et. al., including Larry A. Burns, greatly fear is the liability they face upon proof of Harrison's innocence and the years of false imprisonment he suffers as a direct result of their strenuous efforts to keep him falsely convicted and imprisoned;
  9. On 5 August, 2003, Harrison filed into the Superior Court a P.C. § 1405 motion seeking appointment of counsel. On 15 August, 2003, Harrison's P.C. § 1405 motion was granted. On 19 September, 2005, counsel filed into the Superior Court our Motion For DNA Testing, seeking an Order from that Court requiring the state to test the two hairs taken off of and from beside the victim's body. In a strategic misstep counsel argued to the court that testing of the hairs might establish them to be from suspect David Johnson. To that end, counsel asked the court to unseal a suicide letter left by David Johnson, arguing to the court that biological samples might be found therein and tested, and the results compared to testing results from the hairs. But P.C. § 1405 does not require the moving party to identify the murderer, only to persuade the court that test results (e.g., of an unidentified perpetrator) could have resulted in a more favorable outcome to the convicted person had such results been presented to the jury or trier of fact. Consistent with her ill-agenda, Dumanis opposed any search for the truth;
  10. Precisely as I had warned counsel might happen, the court used counsel's argument against us and refused to order the state to DNA test the hairs. In an Minute Order dated 1 December, 2005, the court opined that there was no reason to believe that any biological evidence would be found by unsealing the suicide letter, thus nothing to compare any testing results from the hairs to, and testing of the hairs alone would not establish them to be from David Johnson, or any other person. Counsel had given the court a way out and the court unscrupulously jumped at the opportunity;
  11. On 14 March, 2006, the Court of Appeals affirmed;
  12. Counsel next filed a Petition For Review. On 24 May, 2006, after having requested an answer from the state, the State Supreme Court denied our Petition For Review, letting stand the Superior Court's avoidance of testing the hairs;
  13. On 8 November, 2006, and authorized by the United States Court Of Appeals For The Ninth Circuit's decision in OSBORNE v. DISTRICT ATTORNEY'S OFFICE FOR THE THIRD DISTRICT, 423 F.3d 1050 (9th Cir.2005), I filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 suing Dumanis and Burns, seeking an Order from a federal judge requiring the state to provide me access to the hairs so that I could have them DNA tested at no cost to the state. As in all matters of my convictions, I immediately moved to recuse all judges of the San Diego District Court due to their absolute prejudice in favor of protecting fellow judge Burns and their blatantly illegal rulings against me in prior cases. The recusal was granted (judges acknowledging their prejudices and illegal rulings?). Not quite, San Diego transferred the case to a (handpicked) friendly and accommodating judge in Nevada. The Claim against Dumanis simply sought access to the hairs. In addition, I sued to force Burns to turn over my polygraph test results establishing my innocence (results which he secreted away, and have never been seen by any other person). I also sought access to the David Johnson suicide letter, which Burns showed to at least one of his, non-law enforcement associates before privately contacting the trial judge, Moon, and urging that the suicide letter be sealed from me. The district court judge dismissed the Claim against Burns and the Claim as to the suicide letter, but allowed the Claim against Dumanis to proceed;
  14. As expected, Dumanis' attorney opposed the lawsuit and any access by me to the hairs for DNA testing, regardless that the testing would be at no cost to the state;
  15. Soon after the judge ordered the case to proceed, I offered Dumanis a Joint Stipulation to settle the case, asking for access to the hairs. Dumanis, true to form, never responded to my offer, choosing instead that taxpayers bear the tens-of-thousands of dollars in costs to oppose the lawsuit;
  16. On or about 12 February, 2007, Dumanis filed a Motion To Dismiss the Complaint arguing that because the § 1405 motion had been denied, I should not be allowed any other opportunity to argue for testing of the hairs. But there is a distinction between the cases. For example, § 1405 requires the state to pay the costs of DNA testing, where OSBORNE authorizes access to the hairs so that they may be DNA tested at my costs;
  17. Discovery (Requests For Production, Interrogatories and Admissions) was served upon Dumanis. Her attorney sidestepped all discovery;
  18. On 7 March, 2007, I filed Plaintiff's Opposition To Defendant's Motion To Dismiss;
  19. On or about 16 March, 2007, Dumanis filed a Reply to my Opposition;
  20. On 18 April, 2007, the Court Dismissed the Complaint;
  21. On 7 May, 2007, I filed my Motion For Reconsideration raising arguments of Due Process violations, miscarriage of justice, and abuse of discretion (court's decision based on erroneous interpretations of law and fact). Despite ever mounting costs to state taxpayers, on or abut 10 May, 2007; Dumanis filed an Opposition To Plaintiff's Motion For Reconsideration. Although provided to the court on 17 May, 2007, my Reply To Defendant's Opposition was not filed until 11 June, 2007;
  22. Having not heard from the court at all since the court's last Order of 18 April, 2007, dismissing the Complaint nor since my Reply of 11 June, 2007, I sent off a STATUS REQUEST letter, dated 15 July, 2007, to the Clerk of the Court asking what, if anything, had happened since the filing of my Reply;
  23. On 24 July, 2007, I received from the Clerk a Civil Docket record showing that the court had denied my Motion For Reconsideration on 12 June, 2007. THAT ORDER WAS NEVER PROVIDED TO ME. WORSE YET, THE COURT HAD APPARENTLY, ACCORDING TO THE DOCKET RECORD, MADE A PRELIMINARY ORDER OF DENIAL IMMEDIATELY UPON THE FILING OF THE OPPOSITION BY DUMANIS, BEFORE MY REPLY HAD BEEN RECEIVED -- THAT ORDER WAS ALSO NEVER PROVIDED TO ME. THE CLERKS, AS WE KNOW JUDGE BURNS AND HIS COHORTS TO BE, ARE CORRUPT! THERE CAN BE NO QUESTION -- HAVING ACTED SIMILARLY ON OTHER OCCASIONS -- THAT THE CLERKS DELIBERATELY, FOR THE PURPOSE OF PROTECTING BURNS, WITHHELD THE ORDERS SO THAT I WOULD NOT BE ABLE TO APPEAL THE CASE! INDEED, BY THE TIME I RECEIVED THE DOCKET RECORD AND DISCOVERED THE ORDER DENYING MY RECONSIDERATION MOTION, THE THIRTY-DAY TIME PERIOD TO FILE A NOTICE OF APPEAL HAD LAPSED. BY DELIBERATELY WITHHOLDING BOTH ORDERS THE CLERKS SUCCEEDED IN DERAILING THE CASE;
  24. Having discovered the malfeasance of the Clerks, on 27 July, 2007, I sent to the court for filing my Motion For Leave To File Belated Notice Of Appeal, explaining in a supporting Declaration under the penalty of perjury that I had not received any Order and only discovered for the first time upon receipt of the Docket record that an Order had issued;
  25. As stated above, the Clerks of the San Diego District Court are as dishonest and corrupt as the judges they work for. Judge Burns is a criminal, prosecuting me for a murder he boasted to defense counsel his moral certainty I did not commit, and at every turn his brethren and the clerks of the courthouse work to protect Burns from the accountability and responsibility he will face when I am finally able to have my day in court -- a day Burns will have to reckon with sooner or later; THE REAL MURDERER(S) REMAIN(S) FREE. DUMANIS AND BURNS SINK EVER DEEPER INTO THE DEPTHS OF HYPOCRISY AND DUPLICITY.
  26. My Notice Of Appeal was eventually accepted as timely filed, and the Court Of Appeals issued a Scheduling Order on 24 August, 2007;
  27. On appeal the state continued to argue that despite my having access to the two hairs in 1990 when DNA testing did not exist, the state's withholding of the hairs -- now that DNA technology exists to test the hair and determine their donor(s) -- does not violate my Due Process right of access to evidence. In other words, it is the state's position that the United States Constitution, and well-established case law, only require that law enforcement turn over evidence that cannot be tested, but once testing exists to thoroughly test the evidence, the evidence can be withheld so that testing cannot be conducted. Of course, there is the equally significant fact that testing of the hairs could free me from a wrongful conviction and identify the real perpetrator(s) of the murder; matters that the state apparently wishes to avoid at any cost;
  28. On 5 March, 2008, my Appellant's Informal Reply Brief was filed, thus completing briefing. The Court Of Appeals will eventually issue its opinion whether the Due Process Clause of the Constitution entitles me to access to the hairs for DNA testing purposes (or whether the truth seeking process is just a sham);
  29. 25 April, 2009. While awaiting a decision from the Ninth Circuit Court of Appeals on whether I have a constitutional right of access to biological evidence being withheld from me by San Diego District Attorney, Bonnie Dumanis, the United States Supreme Court granted certiorari (commonly known as "cert.") on a case out of Alaska on the same question. The Supreme Court heard oral arguments early last month, and a decision will be issued soon. The Ninth Circuit is no doubt waiting for the Supreme Court to decide the Alaska case, and will thereafter issue a ruling in my case along the lines of the Supreme Court's decision. Simply, if the Supreme Court decides that federal courts can order access to biological evidence for DNA testing, then we will most likely receive a favorable ruling from the Ninth Circuit. But if the Supreme Court decides that access to biological evidence is solely up to the discretion of the individual states, then we are sunk. Proving my innocence by DNA testing of the biological evidence probably comes down to the Supreme Court's impending decision. It is a shame that state law enforcement officials would even want to withhold biological evidence that could prove the innocence of a person convicted of a crime. Indeed, the argument was made to the Supreme Court on how the State of Alaska was opposing testing of evidence that would conclusively prove whether the convicted person was innocent or guilty (rape case). How could anyone not want to discover the absolute truth of the matter? Unfortunately, that is the problem I've had all along with Bonnie Dumanis, who has opposed my efforts to access the biological evidence, despite my repeated offers to pay for the testing. So now we wait for the Supreme Court's decision.
  30. Alas, on 18 June, 2009, the United States Supreme Court, true to its right wing conservative composition, decided in a 5-to-4 decision that prisoners, such as myself, have no constitutional right of access to biological evidence, post-conviction, for DNA testing. The decision of access was left to state law enforcement agents. Now, what sense does that make? The very law enforcement agents who secured the conviction are not about to provide access to evidence that could prove their own efforts and results wholly false. San Diego District Attorney, Bonnie Dumanis, no doubt breathed a huge sigh of relief, knowing that the Supreme Court's ruling effectively eliminates my chances of access to the evidence being suppressed by her -- evidence she knows would prove my innocence of the murder.
  31. On 4 July, 2009, appropriately, I sent to each of the nine justices of the Supreme Court a letter expressing in somewhat restrained (not offensive) terms my opinion of their decision, and asked that each of them provide me a reply explaining how they could so nonchalantly issue such a decision. Not surprisingly, no justice has bothered to explain themselves.
  32. Following the law of the Supreme Court, on 19 August, 2009, the Ninth Circuit Court Of Appeals issued a short Order finding that I have no post-conviction constitutional right of access to the biological evidence being suppressed. The Court Of Appeals' Order became final on 18 September, 2009.
  33. The next step for us will be to begin again back at the Superior Court seeking an Order from the State that Dumanis provide me access to the biological evidence. A long shot, but is all that is left by judicial means after the Supreme Court's decision.

To Be Continued ...

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