LIVE UPDATES: Day 4 of Jeff Pelley’s post-conviction relief evidentiary hearing

The fourth day of the post-conviction relief evidentiary hearing for Jeff Pelley began around 11:15 a.m. Pelley was convicted of killing his father, stepmother and two stepsisters on prom night in 1989.

His attorneys are trying to show his original trial counsel was ineffective because they did not pursue an alternate theory of the case and allowed evidence at trial saying Pelley had washed his jeans after the murders.

Witness Andre Gammage

The first witness of the day is Andre Gammage, who was on the original defense team during Jeff Pelley’s trial.

He met Jeff around 2003 or so. He said Alan Baum contacted him to be local counsel in the case, but was not part of the appeals process.

At first his role was to be the person licensed in Indiana and Baum was the primary counsel, but during the case issues came up and Gammage started handling hearings regarding a speedy trial and took on a bigger role.

In June 2006, Gammage was told he would be paid to represent Pelley during the trial, but he doesn’t recall specifics. The defense provided a document to refresh his recollection.

Gammage then remembered as the trial approached he and Baum’s firm came to an agreement regarding his fee to represent Pelley.

The financial issues were between Baum and his law group in California when Baum separated from that firm.

Gammage said those financial issues didn’t affect him, they were between Baum, the firm and maybe Jeff, but he didn’t know.

The defense asked why two experts, Larry Byrd and Dr. Wagner, weren’t called at trial, but Gammage didn’t recall why.

Byrd is a ballistics expert and Dr. Wagner was going to testify as to the time of death of the victims, according to testimony presented on Wednesday.

He did opening argument and he had some witnesses he was responsible for questioning and cross examining. He focused on those elements of the case.

For the Florida connection, Gammage said he didn’t have a lot of information on that. They knew there was a connection and made an effort to introduce evidence someone from Florida may have been involved in the crime.

The information they had was minimal. They tried to present evidence about Florida at trial, but the judge did not allow it.

He personally did not investigate the Florida connection.

Gammage was asked to discuss generally how the discovery process worked. He said usually it was provided by the state that were numbered and dated and mailed to the officer or he might have picked them up. Initially, he sent the discovery to Baum.

He said there were a lot of VHS tapes and he recalls sending discovery to Baum, at least at the beginning of the case.

The defense asked Gammage about requesting discovery in the case. He said that was done for every case. The defense showed him a document, which was the motion for discovery in this case, to refresh his recollection.

He said he did request copies of taped statements and he believed those were handed over.

He said there was a routine for going through discovery when it was handed over.

Watson showed him a document and asked if he reviewed it. He said he doesn’t specifically recall it. He recalls generally, but not the specifics of that document. The document refers to Toni Beehler’s statement with police.

He said the document would warrant a follow up, like a review of the videotape and look further into the information.

Watson asked if Campbell would have interviewed witnesses, like Beehler, and Gammage said it would be likely. His role wouldn’t be to try to prove someone else committed the crime.

He thinks someone would have followed up.

Is there any reason they wouldn’t have followed up? He said he thought they would have followed up. They even followed up on a psychic who claimed to have information.

Did they have a master list of their discovery? He doesn’t recall having one.

Does he remember sending a memo to Baum about discovery items that were outstanding? He said there were some things that were still outstanding. He said because he was the local attorney and spoke to Jeff on a regular basis, he is the one who kept Baum up to date on what was outstanding. He said the list was probably a collaborative effort between him and Jeff.

Gammage was unable to recall how responsive Baum was to his information.

He didn’t have the resources to hire experts and that was more what Baum did.

There were dozens of items on the list and he doesn’t recall whether they were followed up on.

Did he have an issue with Baum getting things done. Gammage said he doesn’t recall or have specific recollections.

Was Baum easy to work with? Gammage didn’t find him difficult to work with.

Did he ever have concerns about Baum’s representation of Jeff? Gammage said he had concerns about Baum’s commitment.

When they received initial discovery from state, he turned the tapes over to Baum and they were provided to 48 Hours or other TV entities.

Gammage agreed it would be better to leave the press out of it when asked by Watson.

Does he remember learning Campbell was not allowed to look inside items of evidence? He did not recall.

Watson asked about the state telling the jury the jeans had been removed from the washing machine and been washed? He didn’t remember specifically. He knew there were jeans taken from the washing machine and they were tested for blood. He remembers overall, but not specifics.

Watson then asked about his recollection that 34 coins and a readable receipt were found in the pocket of the jeans, which had been washed, was referenced in the probable cause affidavit.

He recalls there were items found in the pockets but does not recall looking further into the evidence or chain of custody of the jeans.

The defense is showing him a discovery receipt, exhibit 4, which refers to the items taken from the washing machine that were tested by the FBI.

The letter indicated there were two socks and one pink striped shirt taken from the washing machine. There were no pants listed as coming from the washing machine.

During trial, the defense did not object to the state saying the blue jeans came from the washer and had been washed. Gammage agreed not challenging or objecting to that was potentially a mistake.

Watson asked about the receipt that was found in the Annis grocery store bag. He was unaware the jeans had been in the Annis grocery store bag. He agreed one would assume the receipt was from the groceries in the bag.

Having known that would have made him question whether the jeans were found in the washing machine.

Gammage remembered that luminol testing was conducted in the case but didn’t recall when a report was created.

Prior testimony has shown the luminol testing was conducted in May 1989 but a report with the findings was not created until August 2002.

The state objected to the luminol testing report being entered into evidence as hearsay. The officer who created the document is deceased and cannot testify to their authenticity.

The defense said it is being presented to show ineffective assistance of counsel, not as hearsay/facts of the matter.

The court allowed the documents to be entered into evidence.

A second document referencing a memo that mentions John and Joe Hertzig and allegations they threatened Jeff.

The documents were not allowed except to refresh Gammage’s recollection.

He was asked if he was ever aware someone told police the Hertzig’s had threatened Jeff. He doesn’t recall specifically, but generally recalls the names. He said there’s no reason to believe he did not pursue that.

Watson showed Gammage a handwritten note that had been entered into discovery that documents a conversation with Matt Miller with ISP officer Senter.

Miller was at the Pelley house Saturday before the murders.

Gammage said he doesn’t recall specifics about witnesses.

The state objected to the document and it was not allowed as evidence, but Gammage can discuss any recollections.

The next document references information about Bob Pelley giving his guns to Thomas Keb. The state is objecting to the document. He said the document showed the guns may have been taken from the home and that was why they were entered into evidence. He believed Keb was on the witness list but doesn’t know or recall why Keb wouldn’t have been called as a witness.

He believes he asked the state to stipulate Keb was given a shotgun, .22-caliber rifle, and a pistol.

After a short recess, the state began cross examining the witness.

The state asked if he was more familiar with the documents at the time of the trial. Gammage agreed.

He asked if Gammage did everything he could and would have spoken up if there was something he needed to address. He confirmed he did or would have.

At the beginning of the case he was less involved than at the end of the case.

He can’t say for sure whether he saw the document about the Toni Beehler statement.

The state asked about the videotapes that were entered into evidence and Gammage had some videotapes in the case.

He was asked if the financial issues had any effect on his work on the case. He said it didn’t affect him.

Gammage was aware there were some things he thought should be done and expressed those to Baum. But he felt comfortable moving forward with trial.

Gammage agreed he looked into some stories in the case and a lot of discussion. Some had a bit of truth, but it was common for there to be stories about the case.

In re-direct, Watson asked a follow up question about Scott Campbell. Gammage thought he stopped working with them at least a few months before the trial. Which may have affected their ability to investigate.

Referring to the weapons being removed from the home, what was problematic about the reason. Gammage’s recollection was there was a significant risk between Bob and Jeff and Bob wanted the guns removed for the safety of the family. He did not want to go down that path during trial.

He recalled the reasons for the guns being taken from the home was problematic because they might not have been able to account for all of the guns.

Gammage was released from the witness stand.

Court has recessed for lunch. Court will resume around 2:50 p.m.

Witness Scott Duerring

When court resumed after lunch, Scott Duerring was called to the stand.

Duerring was a deputy prosecutor with the St. Joseph County Prosecutor’s Office from 1999, 2002 and 2003 to 2005. He was originally assigned to the Pelley case in 1999.

He doesn’t remember viewing the evidence, but says he probably did.

His paralegal was Elaine Battles, who testified earlier this week.

When he was asked about the probable cause affidavit and why the jeans being in the washer would help establish probable cause.

Was he aware of the Annis bag? He didn’t recall the specific bag.

He said if something was wet and was taken into evidence, they wouldn’t put it into a plastic bag.

Watson asked about Duerring requesting testing on water from the washing machine. He did remember asking for the water to be tested in 2002. He said it hadn’t been tested in 1989.

He was then asked about the interlocutory appeal where the state asked for family counseling records. He said he felt those records could be important to the case. He didn’t recall his exact argument he presented in court for those records.

If he had a question about a police report in a case, he would likely speak to the officer and question them. Did he ever do that in this case? Duerring said he didn’t recall doing anything like that.

In this case, he would have read a majority of the discovery documents in this case.

He didn’t remember reading a specific document created on May 16, 1989 about the counseling records at the Family and Children’s Center. He remembered reviewing the document after the defense refreshed his recollection.

Duerring says he knew there was a previous request for the counseling records.

He does remember needing a court order for the counseling documents.

The state began cross-examining the witness.

During the interlocutory appeal did he talk to Mabel Davis, he confirmed he did. He hoped the counseling documents would provide more information beyond what Davis told him.

He said he thought there might be information about statements from Bob Pelley before the homicides. Davis was involved in therapy with several of the family members. They were attempting to find documentation of conversations with Bob before the homicides.

And information about her counseling the family before the homicide.

The defense objected to questioning because Duerring is stating what Mabel told him, which is hearsay.

It was overruled because it shows the steps the witness took and why to go through the interlocutory appeal.

Duerring said after the murders Davis moved away.

He interviewed her in 2003.

Deurring was released from the witness stand.

Witness Frank Schaffer

The next witness is Frank Schaffer. He was a chief deputy prosecutor from 2005 to 2007. He tried the Pelley case.

He testified to reviewing the physical evidence in the case and viewing the crime scene photos.

He said when going through the evidence, he found a receipt in the pocket of the jeans.

Schaffer doesn’t remember who packaged the evidence for publication at trial. 00a

Schaffer was asked to review the document that shows what items were taken from the washing machine. He confirmed it did not say jeans were in the washer.

Watson asked about whether it was illegal to drive without insurance in 1990. It was, he confirmed.

The state then asked Schaffer about looking through the binders of evidence and made a list of what witnesses he wanted to talk with and made a plan.

Schaffer then said he is very confident the jeans came from the washing machine.

He said it was stipulated before trial that the jeans came from the washing machine because the person who took the item into evidence would not be able to testify at the trial because he had been injured.

Schaffer agreed he didn’t have any knowledge of what the jury did with the evidence in the case.

He also said he thought Pelley put on a good defense. He had a strong feeling Jeff would be found guilty.

In re-direct, the defense asked about whether he remembered witnesses saying Jeff had blue jeans on at the gas station.

He said he didn’t know what happened to the jeans Jeff was wearing after the prom, that he had the jeans that were in the washer.

He wouldn’t expect an officer to put a pair of jeans in a grocery bag. He said when the homicide unit started, things became more consistent.

He said he thought the expert testimony brought by the defense during trial was lacking.

At trial, the law allowing jurors to ask questions had just passed. So they didn’t know what to expect. Schaffer said they asked a lot of questions.

The jury deliberated 30 hours in this case. Schaffer said the case was complicated so he wasn’t surprised the jury was out so long, but he wasn’t sure what to think.

Schaffer was then released from the witness stand.

Witness stacy Uliana

Stacy Uliana is the next witness. She is a criminal defense attorney who represented Jeff in his appeal.

Uliana raised the issues of hearsay and criminal rule 4.

During the appeal, when she first got on the case, his sister brought Toni Beehler to her attention. It was before sentencing.

Uliana believed Beehler had some important information and wanted to find out more. She contacted his defense attorneys to find out if they knew about Beehler’s statement.

The defense didn’t remember Beehler at first. Then they found a report she had spoken to the police. Uliana was unable to use it as newly discovered evidence.

She obtained the report of Beehler’s interview after Jeff’s conviction.

Uliana sent an investigator to talk to Beehler.

The state is now cross examining Uliana.

She has done approximately 130 appeals.

The witness was released from the witness stand.

Court is taking a 5 minute break.

Witness Jessie Cook

The next witness is Jessie Cook. She is a criminal defense attorney. She has done 17 capital cases and 15 non-capital murder cases that went to trial. She had approximately 50 that didn’t go to trial. She had tried several that involved multiple victims.

She is considered an expert in criminal defense and is offering an opinion on this case.

Cook reviewed the charging information, trial transcript, selected correspondence between Baum and Gammage, Baum and the prosecutor, FBI files, photographs, diagrams.

She has not watched media coverage or spoken with Pelley.

The state is objecting to her testimony.

The defense says they’re trying to establish Cook is reliable and that her opinion in proper form. She has experience and has knowledge of what she is being asked to consider. She is being asked if she believes the attorneys were ineffective.

The defense is not asking for a final opinion on the outcome of the case, just on the opinion as to the effectiveness of counsel, so the judge is allowing it.

Cook testified it was important for the counsel to focus on physical and forensic evidence because it was a circumstantial case.

She said she expected to see the strategy laid out in the opening statement, to lay out a theme and a theory of the defense so the jury can see where the jury is going. The defense shouldn’t be in a defensive state.

Cook said she didn’t see that in the opening statement. There was no theme and the state had a persuasive opening statement.

Defense counsel didn’t object to certain aspects of the state’s opening, but Cook believes they should have.

She said Baum attempted to enter double hearsay into evidence, but didn’t know how to get that before the jury. But it is not admissible.

She said the defense expert witness who discussed the washcloth evidence had issues.

Cook said it was “ludicrous” the defense didn’t question evidence the money and receipt were washed in the pocket of the jeans. However, the FBI report said the jeans were dirty and deeply soiled. Several witnesses testified seeing him wearing jeans after he left the house.

One of the witnesses reported giving Jeff a paper sack to put his jeans in when he changed for the prom.

The lack of blood on the jeans was one of the most important factors of the case, Cook said.

Cook could not see a reason why the defense didn’t challenge the allegations the jeans were washed.

Cook was asked to detail deficiencies in the defense counsel.

The first was the failure to articulate a viable theory in the opening statement.

The next was the pervasive failure to conduct cross examination that would have established the fact there was no evidence that specific items were removed from the washing machine, failure to recognize and emphasize the multiple accounts of Jeff wearing the jeans that were alleged to have been in the washing machine.

Failure of counsel to establish the paper bag containing the jeans in question, was removed from the vehicle at the amusement park.

As a result of those failures to actually look at the paper sack containing the jeans, they failed to recognize the jeans were dirty, coins in the bag were dirty, the bag itself came from a grocery store where Greer worked, receipt in the bag dated the 29th which would have been the same day. All of those together, Cook said were convincing those pants could not have been in the washing machine.

The defense stipulating the evidence could be taken from outside the courtroom and be put into other bags without a defense team there was a dereliction of duty, Cook said.

Cook said the jurors had an unusual number of questions, in her opinion. She said it shows the jury wasn’t satisfied because all of their questions weren’t answered.

She said she has never represented someone at trial that had been charged 13 years after the crime. She agreed that can affect the defense of a case. Sometimes witnesses die, witnesses can forget, evidence and records get lost.

It can make it more difficult to try a case.

The state then began cross-examination of Cook.

The state asked Cook about a case where she was asked to review another murder case. Cook said he had very different facts.

Cook was then released from the witness stand.

Court is taking a short break.

Witness Melissa Mains

The final witness is Melissa Mains.

The state is objecting to her testimony because she is counsel of record.

Mains has withdrawn her appearance as counsel of record.

Mains is being allowed to testify.

She worked on the Pelley post conviction relief petition while attending law school.

She came to South Bend to review the evidence in this trial. She had multiple communications trying to get access to the evidence.

Mains didn’t recall who was present when they reviewed the evidence. They reviewed it in a conference room. She remembered there were 3-4 students in the conference room.

Mains said she took photos so they would have documentation of the evidence and the condition it was in.

She remembers reviewing the coins. She remembers people opening the bags.

Mains remembers the items of evidence were in plastic bags. They took pictures before the evidence was opened so they could document how they appeared before they were opened.

They wore gloves when examining the evidence.

Some of the pictures they took were entered into evidence.

Mains recalls Watson opening the bags of evidence, including the one that included the Annis bag, the jeans, the receipt and the coins.

Mains said you couldn’t see the coins until you removed the jeans from an outer zipper top bag.

She didn’t recall seeing the coins.

Mains said when they were finished viewing the evidence, they did the best they could to return the evidence to the positioning and manner when placing the items back in the bags.

The defense argues the trial defense should have realized the jeans weren’t taken from the washer had they opened the evidence and viewed it. They would have also seen that the receipt was still readable, even though the state argued it had been washed in the washing machine.

Mains was then released from the witness stand.

After a brief off the record discussion, the hearing continued.

Mains testified about a bankruptcy for Bob Pelley’s best friend in Florida. And it was going on at the time of the murders. A public record of the bankruptcy was entered into evidence by the defense.

The state objected to the bankruptcy court documents. It was allowed to be entered.

The defense then rested its case.

The state does not have any witnesses, but entered one document into evidence.

Both sides were given an opportunity to make a closing statement.

The defense said she believed the judge would consider all the evidence. She said her strongest argument was the trial defense was ineffective.

The state said they did not have a closing and didn’t want to prolong the hearing.

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