Brian J. Peixoto
OpenTrial - equity's guardian.
THE HIGHLY IRREGULAR CASE OF BRIAN J. PEIXOTO
LEGAL SYSTEM SERIOUSLY COMPROMISED
In 2015 America is celebrating the 800th anniversary of Magna Carta; but does it any longer apply in the U.S.? Article 39 of Magna Carta provides that, "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land." And Article 40 that,"To no one will we sell, to no one deny or delay right or justice." Below we show that neither of these articles is being properly complied with.
The U.S., because hysteria rules, now incarcerates five times more people (one in 32 adults) than the world average; most without trial (including youths jailed for years without trial or conviction). However, crime rates are no higher than in Europe, where incarceration rates are a fifth to a tenth of what they are in the U.S. Even more unacceptably, while the UN Convention on the Rights of the Child prohibits imprisoning children without the possibility of parole, the U.S. has more than two thousand in jail (less than twenty in the rest of the world - in some U.S. states pass such sentences on children as young as ten); some for life. Furthermore, currently, about half a million people are locked up in U.S. jails awaiting the determination of their fate and, in the process, costing U.S. taxpayers about $17 billion annually. The average wait in jail is 68 days; but it can be much longer. At the infamous Riker's Island prison in New York, some 1,500 people have been incarcerated for a year or more pending their verdict. This figure does not include the 400 who have been detained there for at least two years, and the six prisoners who have been waiting for more than five years. Some of these prisoners are probably guilty of violent crimes; but three out of four are low-level offenders, accused of non-violent offences such as drug possession, or even traffic violations, and who simply cannot stump up the necessary bail money. The disruption this causes to lives can have serious consequences relating to work, family life, rented accommodation, etc., causing many who are eventually released to rely on welfare payments to survive and, may, therefore, actually encourage criminality.
A high proportion of prisoners in the U.S. are innocent and victims of the serious decline in the quest for truth and justice. In the interest of ensuring the public desire to feel safe is satiated, high standards of fairness and equal justice for all have been seriously eroded, with conflicts of interest becoming an integral feature of the system. However, that engineered safeness is an illusion, because, for every innocent person in jail, a real criminal remains at large to repeat his/her crime. To jail an innocent person, especially when it is for decades, constitutes a societal crime against the individual of wrongful imprisonment. And, to be sure, crime can never defeat crime.
The erosion of legal principles in the US – such as habeas corpus and the prohibition against self-incrimination – is undermining the presumption of innocence. Furthermore, inconsistent policing, rampant plea bargaining, overcrowded courtrooms and ever more draconian sentencing have added to the huge prison population, a disproportionate element of which is black. Supreme Court Justice Anthony Kennedy notes that 95 percent of all convictions in the US are the result of plea bargains and not trials: “Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.” He, therefore, admits that the criminal justice system is in reality a system of pleas. Since trials are now the exception to the rule, it is not surprising their quality has suffered.
In the seriously compromised US legal system, an admission of guilt under duress is now regularly accepted as sufficient proof of guilt. It was in 1978 that the Supreme Court ruled that threatening a defendant with life imprisonment for a minor crime, in order to induce him to forfeit a jury trial, did not violate his Sixth Amendment right to trial. To impress upon defendants that accepting a plea bargain is the preferred course of action, for daring to exercise their constitutional right to trial, they generally are bludgeoned with three times the sentence they would have earned had they accepted a plea bargain. Perhaps naively, Brian Peixoto took that risk in the belief that truth would win the day. After 18 years, he still awaits, in jail.
EVENTS LEADING TO THE DEATH OF A CHILD
1995 - Ami Sneed is investigated by the Department of Social Services(DSS) for child neglect. Among other things, as a small child, Christopher was hospitalised after swallowing an open safety pin. Reports indicate that neighbours had called the DSS to investigate other incidents of child neglect in Ami Sneed’s home.
On or about 12th January, 1996 - while in the sole custody of his mother, Christopher Affonso, Jr. falls down stairs at his maternal grandmother’s house. Brian Peixoto is not present. Although Christopher has a visible bump on his head, his mother, Ami Sneed, does not seek medical attention. The next day, at her mother’s prompting, Ami Sneed takes Christopher to the ER. He is diagnosed with a fractured clavicle and his mother is provided with instructions to return if symptomatic. Although several people, including Ami Sneed herself, notice that Christopher is symptomatic (lethargic, wobbly, “acting drunk”) over ten days, Ami Sneed fails to take him for follow-up care. She is staying at her own apartment at this time.
18th January 18, 1996 - two daycare workers, Susan Camara and Janet Souza, at WORD Daycare Center, question Ami Sneed about suspicious bruises on Christopher’s back and face. Ami Sneed responds jokingly, saying, “I know, he looks like an abused kid, huh.” Although the workers did not properly document their concerns at the time, they later confirmed the exchange in police reports and testimony. Brian Peixoto was not told of the conversations Ami Sneed had with the daycare workers and, during cross examination, Ami Sneed falsely claimed the day care workers never said anything to her about any bruises.
20th January, 1996 - Ami Sneed calls the pediatrician because of Christopher’s symptoms. Ami Sneed testified in court that on this day she was given an appointment to bring him in on 22nd January, 1996. Brian Peixoto was not told of this appointment.
22nd January, 1996 - Ami Sneed and her two children, Christopher, age 3, and Tarissa, age 4, are staying at Brian Peixoto’s rented house at 14 E Drive, Westport, MA, which he shares with Steve Morton. It is winter and Ami Sneed's heat and electricity have been turned off at her apartment for non-payment. Ami Sneed does not send Christopher to day-care because he is particularly lethargic and wobbly, more so than he has been over the last ten days, since the initial fall down stairs.
Sometime between 6:00 and 7:00pm that evening, Brian Peixoto and Ami Smeed are upstairs while the children are in the furnished basement. Brian Peixoto is down the hall in the bathroom and Ami Smeed is in the living room, closest to the stairs leading to the basement. Tarissa is yelling from the basement that her brother is vomiting. Brian comes out of the bathroom and meets Ami in the hall walking towards the basement. They both go downstairs and find Christopher in what appears to be a seizure, convulsing and throwing-up. Brian initiates CPR, but Christopher’s eyes are rolling back in his head and he is unresponsive. They jump in Brian Peixoto’s truck and drive a mile down the road to a fire/paramedic station. Christopher is transported to St. Anne's Hospital, in Fall River, MA, where he is pronounced dead.
Tarissa is removed from Ami Sneed’s custody shortly after Christopher’s death.
In Dr. Laposata’s opinion (see below) it was obvious that Ami Sneed did not take Christopher to the ER, or the pediatrician, because she feared the suspicious bruises would be discovered.
Because of Christopher's head injury, fractured clavicle and various bruises, it was evident that Ami Sneed was very fearful of being held culpable for Christopher's death and of suffering the fate Brian Peixoto has since suffered. Indeed, when the police stated they believed she had something to do with her son’s death, Ami Sneed became hysterical. Under the circumstances, it is perfectly plausible that Ami Sneed viewed the incrimination of Brian Peixoto as her salvation and this determined her conduct from thereon.
THE MAIN PARTIES INVOLVED
Brian Joseph Peixoto - born 26th June, 1969, in Fall River, MA. Brian Peixoto’s parents separated in 1984. Brian Peixoto found the educational demands of school difficult and dropped out after completing his sophomore year. In prison he was diagnosed with cognitive functioning learning disabilities. In 1996, Brian Peixoto was a delivery-truck driver, working for his father in the family business. He had applied to become a volunteer firefighter and was waiting to commence employment as a security officer at St. Anne's Hospital pediatric unit. Amber, Brian Peixoto's daughter, was born in 1991; Brian Peixoto was a devoted father. Prior to 1997, Brian Peixoto had no criminal record. In prison, Brian Peixoto has taken every opportunity at self-improvement, while also helping others in their efforts at rehabilitation. This includes pursuing a degree in sociology offered in collaboration with Harvard University, as part of the Boston University Prison Education Program. He was not able to complete this because of his transfer to another prison. He did, however, complete a Tutor Training Program to become the coordinator for the programme and has tutored Adult Basic Education student inmates. He is certified in victim advocacy, completing the course requirements through a correspondence course offered by Adams State College in 2011. Brian Peixoto is particularly proud of his involvement with the NEADS program. He was selected for this programme in which he trained service dogs for the blind and disabled, as well as for combat veterans suffering from PTSD.
Ami Sneed - born in 1974. Ami Sneed is an ex-prisoner with an extensive criminal record, having been arrested for drugs, prostitution, shoplifting and violating abuse prevention orders. She was vulnerable and, indeed, changed her testimony under interrogation more than six times in this case. Oddly, despite her vulnerability and, thus, possible unreliability, none of the interrogations was recorded. Ami Sneed, in 1996, was the mother of Christopher Affonso (aged 3) and Tarissa Affonso (aged 4). Ami Sneed was denied custody of Tarissa on the night of Christopher’s death. Following Brian Peixoto’s trial, full custody of Tarissa was awarded to Christopher Affonso Sr., who is not her biological father. Ami Sneed went on to have two additional children with two different fathers (one a police officer and the other a prison officer). She did not and does not have custody of either.
1996 - Brian Peixoto is detained in the county jail for over a year without any contact with his public defender. Just before the trial, his attorney, Lance Garth, suggests he should take a plea; but Brian Peixoto refuses because he is innocent. Brian Peixoto dismisses Lance Garth, as he does not want to be represented by someone who does not believe him. His family is obliged to find a new attorney, whose fees they now have to pay.
6th February, 1996 - Ami Sneed's defence attorney, Michael J. Zeman, writes to the ADA stating that Ami Sneed will not be making any more statements and/or assisting in the investigation into Christopher’s death. He explains that this is due to Westport Police Detective, Mario Lewis, telling Ami Sneed, during questioning, that he believed that she had beaten her child along with Brian Peixoto. However, the letter goes on to state that Ami Sneed wishes to aid in Brian Peixoto’s prosecution. Subsequently, no charges are brought against Ami Sneed and she agrees to testify for the prosecution.
March, 1997 - Ami Sneed is pregnant during the five-day trial presided over by Judge Charles Hely (Ami Sneed gives birth in August, 1997, but is denied custody). The father is Derrick Silva, a Fall River police officer.
- During the trial Lisa Morton testifies that Brian Peixoto showed up at her house covered in blood. None of the other people Brian Peixoto encountered - hospital security personnel and several others - testify he was covered in blood.
- Drs. Weiner and Newberger, the state’s medical experts, disagree on the age of some of the injuries. Forensic tests were not done to scientifically age the bruises. The autopsy photographs introduced at trial were not turned over to the defence. Brian Peixoto's trial attorney does not call a medical expert to testify for the defence or to contest any of the inconsistent opinions or conclusions offered by the prosecution’s medical witnesses. At the time Dr. Weiner (who was not board-certified in forensic pathology) had concluded his pathology report and formed his opinions, he had not examined the brain, nor reviewed the neuropathology report and was unaware of the child’s previous fall and injuries sustained on 12th January, 1996.
- The hospital Deacon made a statement to the police that he heard Mario DeCunha, the St. Anne’s Hospital security officer, tell Brian Peixoto to leave the hospital because he did not want a conflict between Christopher’s biological father and Brian Peixoto. However, Ami Sneed testifies that Brian Peixoto said that he was leaving because “he didn’t want to be blamed.” This testimony was used by the prosecutor to show “Consciousness of Guilt by Evidence of Flight.” The defence attorney never called Mr. DeCunha, or the hospital Deacon, to disprove Ami Sneed’s claim that Brian Peixoto fled the hospital.
- ER doctor, John Arcuri testifies that he reviewed a report by the St. Anne’s Hospital Radiologist, Dr. Debra Kimball, in which she concluded there was no skull fracture. This contradicts the medical examiner's autopsy report, which states that the cause of death was a 6” skull fracture caused by blunt force trauma. Oddly, no skull fracture was found at St. Anne’s Hospital, none was found at Dr. Weiner’s office at Cape Cod; but one was found at the medical examiner’s office in Boston. The presence at the medical examiner's autopsy of two state police detectives, two Westport police detectives and a Bristol County Assistant District Attorney, call his objectivity into question. Further, the medical examiner had not see the ER post-mortem x-rays or report.
- Dr. Eli Newberger, a pediatrician and child abuse expert, with no forensic pathology credentials, testifies that, based on finger-shaped marks on Christopher’s upper arm, he believes that he was grabbed and banged against a hard surface such as wood, concrete, or a wall causing the skull fracture and death. No blood, skin or hair was found on any surface in the room where this was alleged to have taken place. Indeed, Dr. Eli Newberger failed to obtain any first hand medical evidence; but merely supported the report of the Dr. James Weiner.[Dr. Laposata considers Dr. Newberger’s testimony “must be dismissed, and confirms that "Newberger always testifies for the state at a fee of about $10,000." Dr. Laposata's view is that Dr. Newberger “knows nothing about clotting and he could not even pronounce the name of the tests involved.“]
- The prosecution failed to provide reports or x-rays, produced by Dr. Kimball, to the defence. Furthermore, Dr. Kimball was never contacted by police investigators, anyone from the D.A.’s office or Brian Peixoto’s attorney about her involvement with the case.
- The judge does not define an “unlawful killing” to the jury; but instructs the jury on first degree and second-degree murder, as well as battery manslaughter. By failing to do this the judge relieves the Commonwealth of its burden to prove beyond a reasonable doubt every element of the crime with which the defendant was charged.
- Brian Peixoto is convicted of first degree murder without the possibility of parole.
January, 1998 - Ami Sneed is pregnant again. The father is a corrections officer. Again, she is denied custody of the child. After the trial, Brian Peixoto's defence attorney, Raymond Veary returns to his post at the D.A.’s office, and both he and the ADA, Renee Dupuis for the prosecution at Brian Peixoto's trial, are appointed as Superior Court Judges to sit with Judge Charles J. Hely.
1999 - Brian Peixoto's appeal is heard against the conviction before a full panel of the Supreme Judicial Court (SJC)
25th January, 2000 - the appeal is denied.
25th April, 2000 - Brian Peixoto's conviction becomes final.
20th October, 2000 - the Committee for Public Counsel Services (CPCS) assigns Mr. Schubert to Brian Peixoto's case.
March, 2001 - Mr. Schubert assures Brian Peixoto and his family that a Rule 30 Motion for a new trial has been filed, leaving time for a Federal Appeal to be filed, should the Rule 30 Motion be unsuccessful.
16th July, 2001 - Rule 30 Motion filed (actual date of late filing), thus, barring Brian Peixoto from filing with the U.S. District Court.
22nd January, 2002 - the Rule 30 Motion for a new trial is denied by Superior Court Judge Charles J. Hely, on the basis that no supporting evidence was included with the motion.
25th October, 2002 - Mr. Schubert files a second Rule 30 Motion for a new trial making the same claims as in the first motion, but with a supporting affidavit.
14th February, 2003 - Judge Hely denies the second motion explaining that the issues are waived as a result of not filing supporting affidavit with the first motion. Mr. Schubert promptly files a Notice of Appeal.
7th October, 2003 - Mr. Schubert, realising his error, files a Motion to File Late, with an affidavit from himself for the error, and files a petition with the Single Justice (Gatekeeper) pursuant to MGL Ch. 278, §33E.
7th April, 2004 - the petition is denied by the Single Justice on the basis that the issues were neither new nor substantial.
4th March, 2005 - Brian Peixoto files a pro se Petition for Writ of Habeas Corpus to the U.S. District Court requesting “Equitable Tolling,” claiming that he became time barred as a result of the incompetence of his appellate attorney.
6th February, 2006 - Brian Peixoto’s petition is denied as being “time barred,” pursuant to AEDPA U.S.C. §2244(d). It is adjudged that, “While the alleged deficiencies of petitioner’s counsel may be appropriate for inquiry by the Board of Bar Overseers, they are not grounds, in this case, for relief.”
NEARLY SIX YEARS GO BY.
25th October, 2011 - Brian Peixoto's case is accepted by the CPCS Innocence Program, and the Appellate Division. Brian Peixoto is assigned Attorney Donald Harwood.
17th February, 2012 - Governor Patrick signs the | Post-Conviction Access to Forensic and Scientific Analysis Act, 2012 Mass. Acts, c. 38, which provides a statutory right for wrongfully convicted defendants to obtain access to scientific and forensic analysis of evidence in their cases. The Act, which became effective 17th May, 2012, creates a comprehensive framework by which criminal defendants who have been found guilty may gain access to evidence and testing to support a claim that they are factually innocent. Anyone convicted of a crime or adjudicated a delinquent in a Massachusetts court may seek access to analysis, § 2(1), whether the conviction or adjudication was by trial, guilty plea or plea of nolo contendere, § 1 (definition of “conviction”), so long as the person is incarcerated in a prison or house of correction, on parole or probation, or has his liberty otherwise restrained due to such conviction, § 2(2), and he asserts that he is factually innocent of the offence. § 2(3).
3rd July, 2012 - Mr. Harwood files a Rule 30 Motion for a new trial with Superior Court Judge Charles J. Hely. The submission has two 'ineffective assistance of counsel' claims: a closed courtroom issue and failure to investigate evidence of innocence with supporting affidavits from Dr. Laposata and Dr. Squier, detailing new medical evidence. The medical perspective on Shaken Baby Syndrome (SBS) and Abusive Head Trauma (AHT) changed course in 2001. Prior to this time, the belief was that short-distance falls of four feet or less could not cause serious injury or death and could not cause a complex fracture. The new literature, including that of biomechanical analysis, indicates that this belief was incorrect. See: University of Wisconsin Law School's paper titled 'Shaken Baby Syndrome, Abusive Head Trauma and Actual Innocence: Getting It Right' co-authored by Keith A. Findley, University of Wisconsin Law School, Patrick D. Barnes, Stanford School of Medicine, David A. Moran, University of Michigan Law School and Waney Squier, John Radcliffe Hospital, Oxford, England.
31st December, 2012 - Judge Hely denies Brian Peixoto’s Rule 30 Motion for a new trial, without hearing the new medical evidence. It is normal practice under Rule 30 for the trial judge to hear a post-conviction motion in the first instance, for reasons of efficiency, given familiarity with the case. However, this very familiarity has the potential to introduce bias, and thus the Reporter’s Notes to Rule 30 provide that “[r]ecusal of the trial judge should be liberally exercised, particularly where it is requested by the moving party.” Indeed, for a judge to adjudicate on a matter in which he was previously involved, is entirely contrary to the natural legal principle of nemo judex in su causa.
26th January, 2013 - Mr. Harwood files a petition to the Single Justice requesting that he be able to argue his claims before the full panel of the SJC.
26th August, 2013 - Associate Justice, Fernande R.V. Duffly denies Brian Peixoto’s petition claiming that, as a result of rules intended to achieve finality in the litigation of criminal cases, and to ensure that limited judicial resources are not consumed, “the defendant’s claim does not present a new and substantial question which ought to be determined by the full court.”
10th January, 2014 - Mr. Harwood's writ of certiorari on the closed courtroom issue is distributed.
13th January, 2014 - The writ of certiorari - seeking judicial review of the case - is denied.
July & August, 2014 - Affidavits from two new experts are obtained: Dr. Hua, a forensic pathologist with more than 12 years experience as a Medical Examiner, and Dr. Chris Van Ee, a biomechanical/biomedical engineer who evaluated the fall from ten days earlier. See: http://brianpeixoto.com/updates/
SERIOUS FAIR TRIAL FLAWS THAT INDICT THE US LEGAL SYSTEM
Brian Peixoto was not presumed innocent until proven guilty beyond reasonable doubt. In fact, the trial was highly publicised and Brian Peixoto was, in effect, convicted by the media. Additionally, he was denied a trial by a competent, independent and impartial court and, suspiciously, his constitutional right to counsel was denied for more than a year.
The prosecution used emotion, outrage and anger at the death of a child, in preference to corroborated facts. Jurors were shown several gruesome autopsy photos during Brian Peixoto’s trial, causing emotional outbursts and looks of disgust. In her closing argument, the ADA put up a picture of Christopher, smiling, with blue eyes and blond hair, and said, “This was Christopher before he met Brian.” Then she put up an autopsy photo and said, “This was Christopher after he met Brian.” Everyone was in tears. Oddly, the judge raised no objection.
This case was conducted with all the professionalism one might expect in a seriously underdeveloped country.
There are numerous conflicts of interest and other irregularities in this case, which seriously call into question the impartiality of the justice system. In fact, there are so many, one is entitled to ask whether Brian Peixoto was 'stitched up' to satisfy the public frenzy for someone to be punished, e.g.:
- (i) the violation of the natural legal principle of nemo judex in su causa in allocating judges to cases;
- (ii) the presence of two state police detectives, two Westport police detectives and a Bristol County Assistant District Attorney at the medical examiner's autopsy;
- (iii) Ami Sneed's sexual relationship with Derrick Silva, a Fall River police officer;
- (iv) the appointment, after the trial, of both Raymond Veary and Renee Dupuis as Superior Court judges alongside Judge Charles J. Hely;
- (v) the failure to give Brian Peixoto access to a lawyer for more than a year after his arrest - Brian Peixoto was incarcerated in the county jail for an entire year without hearing from Attorney Lance Garth, his court-appointed attorney, whom he had phoned and to whom his family had written. Attorney Lance Garth visited his client for the first time on the Friday before the Monday the trial began;
- (vi) the lack of professional impartiality and certification of the state's 'medical experts';
- (vii) the withholding of evidence, including that regarding Ami Sneed's conduct as a mother;
- (viii) the judge's failure to properly direct the jury to ensure fairness;
- (ix) the failure to properly question the admissibility of some crucial testimony;
- (x) the failure to properly investigate Ami Sneed's history prior to January, 1996.
Flawed forensic evidence is the cause of thousands of miscarriages of justice in the U.S. In 2015, for instance, as a result of the recognition that unwarranted weight was given to, what has turned out to be, pseudo hair analysis, three men – Gates, Odom and Santae Tribble – were exonerated. These three are seen as the tiniest tip of a massive iceberg. There are 2,500 other cases awaiting review, and possibly tens of thousands more as yet unidentified across the 50 states. See: http://www.theguardian.com/us-news/2015/jun/23/fbi-evidence-single-hair-kirk-odom?CMP=EMCNEWEML6619I2 .
Brian Peixoto's case bears all the hallmarks of the glaring inconsistencies and inadequacies of the US justice system that are frequently found in cases of subsequent exoneration.
THE CONVICTION OF BRIAN PEIXOTO IS PATENTLY UNSAFE. ON THAT BASIS ALONE, IT DESERVES TO BE SET ASIDE. FAILURE TO DO SO REMAINS A SERIOUS INDICTMENT OF THE US LEGAL SYSTEM UNTIL IT IS. BUT, AS IS OFTEN THE CASE, THE BIGGEST PROBLEM A SYSTEM WHICH JUDGES THE FALLIBILITY OF OTHERS HAS, IS ACKNOWLEDGING ITS OWN FALLIBILITY:
Lord Denning, formally one of Britain’s most senior judges, displayed a truly lamentable reluctance to admit the fallibility of the English justice system. He is quoted as saying: “Hanging ought to be retained for murder most foul. We shouldn’t have all these campaigns to get the Birmingham Six released if they’d been hanged. They’d have been forgotten, and the whole community would be satisfied… It is better that some innocent men remain in jail than that the integrity of the English judicial system be impugned.” The US, which is, like England, a common law jurisdiction, has the same problem: judges will not decry their miscarriages of justice. Instead, rather than admit their failure to mete out justice, they compound the failure of the system by turning a blind eye to the miscarriage and refuse to acknowledge it. Thus, where there has been a miscarriage, in the eyes of the public the system is impugned twice, and by the judges themselves. Judges are often too aloof to acknowledge this, but they must be made, by constitutional challenge, to adopt the dictum of the eighteenth century English jurist, Sir William Blackstone: “Better that ten guilty persons escape than that one innocent suffer.”
ACTION FOR JUSTICE
Send messages of concern to: Mr. Deval Patrick, Governor of Massachusetts, Massachusetts State House, Room 105, Boston, MA 02133. Or make an online submission to Mr. Patrick, who is also a civil rights lawyer, using this link: http://www.mass.gov/governor/contact-us.html