The U.S. 8th Circuit Court of Appeals has denied a petition for habeas relief in the case of Pederson v. Fabian, No. 06-2582. Two important issues are raised in the petition, issues that PWC believes are more commonplace than most people want to admit. For background, Stephen Dean was also present at the burglary which resulted in murder. Pederson said Dean did it, Dean said Pederson did it. Tony Moses was friend to both Pederson and Dean, and testified against Pederson in favor of Dean. Dean pleaded guilty to burglary in the first degree and aiding and abetting intentional 2nd degree murder, and agreed to testify against Pederson. Pederson was convicted of aiding and abetting first degree murder in the course of a burglary, and second degree murder. Pederson received a life sentence.
The Juror's admission
After Pederson's conviction, the Prosecutor sent the jurors a questionnaire "to learn their impressions of the trial." One of the jurors sent this typed response to the Defense Counsel:
I wanted more from him presenting a defense. I know a person is supposed to be innocent until proven guilty, but in reality it didn't work that way. The prosecutor presented overwhelming evidence that someone died. The defense needed to present more evidence that it wasn't [Pederson] that caused the death. [Pederson] obviously was not prepped. He was not led through his testimony like Stephen Dean and Tony Moses were. That worked toward credibility for [Pederson] but against him because [Pederson] wasn't very articulate. [Defense counsel] was the only one who could help [Pederson] be more articulate. I wanted [defense counsel] to ask his witness why they didn't say anything or speak to anyone right after the murder. [Defense counsel] went on the premise it should be obvious what the truth is. Unfortunately after the prosecution has offered so much in the way of presentation, it wasn't obvious.
"The purported juror response further stated that the juror disbelieved the testimony from Moses and Dean and believed Pederson's testimony." (page 6 of the opinion)
This is very disturbing, that the juror believed Pederson over Dean and Moses, but still convicted him of 2nd degree murder. What evidence could the Defense have presented?
Tony Moses' admission
After the trial, Moses sent the Defense Counsel a "seven-page summary of his own police statement and grand jury testimony that had been prepared by the prosecutors but not disclosed to Pederson" and a "letter that stated Moses was unable to sleep at night because he could not get the case out of his head."
They interviewed me so much and through the whole thing what came out of whose mouth wasn't clear to me to this day. I'm not saying I was lying, but through all of what came out of whose mouth I had to try to remember got twisted I think from my statement. I had to stick to certain things and remember it so I thought it was the truth. . . . Things would go on paper and I was asked to remember key things[.] It really was just too much it really confu[sed] me.
"The summary . . . provided to Moses set forth dialogue in the form of a script. . . . A sticky note was attached to the summary that stated. "Tony, read this and be VERY familiar with the info. Read it several times. Thank you!" (page 8 of the opinion)
Quoting from a previous appeal, the Court notes that the summary "transformed conversations related by a key state witness before the grand jury into a scripted version of those conversations, much like a playwright." (page 9 of the opinion)
We should not that Moses was guilty of assisting Dean and Pederson in the burglary of the victim's home after the initial robbery/murder, and was given immunity from prosecution for his testimony against Pederson. He waived the immunity, on request from the prosecution, in order to increase his credibility, but he was not prosecuted. He sent the summary and letter to the Defense Counsel when the statute of limitations for his prosecution was about to expire.
The physical evidence at the scene did not point to Pederson any more than to Dean, Moses was working from a prosecution-produced scripted version of his statements, Pederson was more believable than Dean and Moses, and yet Pederson serves a life sentence.