Today marks 9 years of
being a falsely accused wrongly convicted incarcerate. It has now cost you and
all Oklahoma Taxpayers $150,000.00+[i]
to incarcerate me for crimes, that if they were actually true, seems an
exorbitant amount of money to spend warehousing me given the one act of alleged
over the clothes assault and one act of alleged leering that I am charged with.
In most any other state I
would have been classified as a first-time offender and their established
sentencing grid would more than likely have just indicated simple probation for
this alleged crime.
I am happy to report that
parole and commutation are not too far away. I've been asked, once again, to
write a narrative of the events that were alleged to happen that led to my
incarceration. I have done this with each appeal and thought that I could
simply have the parole investigator just print it off, only to recently
discover that that narrative, those appeal details, have never been published
to the public domain. I have always assumed that anyone who cared to know the
truth could have looked on OSCN.net or SCOTUS.gov and found this narrative of
the truth, but apparently not.
I encourage you to read
the narrative of the events that led to my incarceration that follows below.
(If it is not there today, please check back later in the week.) Prayerfully,
this time next year I will be writing about my journey of reintegration into a
post-covid post-carceral society.
By the numbers it has been
4517 days since my last positive interaction with my son, Brandon, at his 17th
birthday dinner at Cheddars on 4-20-09. It's been 4515 days since he then
"ran away" on 4-22-09 to live with his adopted maternal grandmother.
It's been 4332 days since Myrtha Mikel's 10-21-2009 vindictive, false, and
misleading e-mail that began this ball rolling. It's been 4148 days since my
arrest on 5-5-2010. It's been 9 years today since my conviction. It's been 3084
days since I last saw my daughter in person. It's been 2710 since I last spoke
to my daughter on the phone. It's been 807 days since I last received a letter
or e-mail from my daughter.
The OKDOC did their annual
chattle check on me last week. I am still 5'6", I weighed in at 167 pounds,
my blood pressure was 118/78, and my pulse registered in at 54bpm.
Please continue to pray
that lies and liars are exposed, and that the truth is revealed!
PETITION FOR
RELIEF
Robert Roland
Yerton, Jr., Petitioner, Pro Se, maintains his actual and factual
innocence and respectfully petitions for Relief from this Honorable Board,
for the appointment of counsel, and to consider his Petition with merits briefing
and oral arguments.
Steadfast and
persistent perjurious statements, as well as false allegations, are all the
evidence that the State ever had to offer in this case. By denying Relief this
Honorable Board would be allowing the State (Tulsa County) to continue to give
“a wink and a nod" to those whom continue to use weaponized false
allegations of abuse for their own personal gain: Whether they be Jussie
Smollett in
an effort to extend his contract with FOX-TV, Dr. Kristine Blasey-Ford to
discredit Brett Kavenaugh in
an effort to block his nomination to the Supreme Court, the “pejorative
‘Karen’”, Amy Cooper, to assert her white privilege,
or with the Petitioner’s son in an effort to convince his grandmother to purchase
him a new truck, allow him to drop out of high school, and to hope that his
mother and the Petitioner would divorce so that she would turn her affections
only toward himself.
The Petitioner cannot show or prove "factual innocence" any more than
Assistant District Attorney (ADA) Sarah McAmis could prove "factual guilt"
by the State. The Prosecution asserted to the jurors that there was no physical
evidence in this case (State's Ex. 14, Trial Tr. Vol. III, p. 391) and that all
they had "is a witness telling you and explaining to you their version of
what they allege happened (States Ex. 14, Trial Tr. Vol. III, p. 391)". In
Hayes v. Battaglia, 403 F.3d 935 (CA 7 2005) the court said that to
demonstrate innocence so convincingly that no reasonable jury could convict, a
prisoner must have documentary, biological, or other powerful evidence. The
Petitioner asserts that the reverse should be true to demonstrate actual guilt.
In this case, as testified to by the Prosecution and the State, there is no
powerful evidence; it is "Dad says versus what the son says". Even
the State’s Assistant Attorney General, Lori S. Carter, writing for Attorney General
Scott Pruitt, declares in her Response to the Petitioner’s appeal in the United
States Federal Court to the Northern District of Oklahoma that "it was essentially
the Petitioner’s word against the [alleged] victim," (p.31, par. 2).
Furthermore,
on p. 13, the State declares that the Petitioner has not alleged actual innocence
of the charges. This Petitioner absolutely has declared his actual and
factual innocence, several times (State’s Ex. 14, Trial Tr. Vol.
XI, p. 1927).
The
Petitioner's conviction is a fundamental miscarriage of justice resulting in
his unjust conviction. He is innocent and this Honorable Board should consider these
claims, and grant Relief, finding that the claims of anticipatory procedural
bar (Schulp v. Delo, 513 U.S. 298, 321-322, 115 S. Cf. 851, 864, 130 L.
Ed. 2d.808-832 (1995) by the OCCA are incorrect,
overturn his unjust verdict, and use his case to shed light on the continued prejudicial,
political and predetermined injustices sought by the Prosecutors of the Tulsa
County District Attorney's Office,
the injustices adjudicated in Tulsa County Courtrooms, and the injustices
agreed to by well meaning, but maliciously maligned, manipulated, and
marionetted Tulsa County jurors. This Honorable Board should commute his sentence,
exonerate him of these false allegations, restructure his sentence, or set him
free. Jackson v. Virginia, 443 U.S. 307, 99 S. Cf. 2781, 61 L. Ed. 2d.
560 (1979). These are precisely the types of issues that need to be resolved in
full briefing and arguments, and for this reason, appointment of counsel is
appropriate Schweller v. Hansen, 405 U.S. 785, 791 (1981) (Marshall, J.,
dissenting) (summary disposition only appropriate in cases where “law is
settled and stable, the facts are not in dispute, and the decision below is
clearly in error”). The Petitioner, Pro se, Mr. Yerton, respectfully request that
this Board grant his Petition for Relief, order the appointment of counsel, and
hear full briefings and arguments on the merits of this Petition.
PRIOR
PROCEEDINGS
The Petitioner
seeks Relief from his conviction in the District Court of Tulsa County,
Oklahoma, Case No. CF-2010-1707, for Child Sexual Abuse, 21 O.S. Supp. 2002, § 843.5(E)
(Counts II and III), of Brandon Yerton-Henderson, and
for Lewd Molestation, 21 O.S. Supp. 2009, § 1123 (Count IV), of Antonio
Paquette. The Petitioner was sentenced consecutively to
twelve years on Count II, twelve years with the last four suspended on Count
III, and all three years suspended on Count IV. The Petitioner directly
appealed his conviction on April 5, 2013, case number F-2012-918, to the
Oklahoma Court of Criminal Appeals (OCCA) through Oklahoma Indigent Defense
System (OIDS) counsel, Thomas Purcell, citing eleven propositions of error. On
February 14, 2014 the OCCA affirmed the Petitioner's convictions, while
holding that portions of Grounds One, Two, and Three were unexhausted. The
Petitioner subsequently filed a Petition for Rehearing on February 20, 2014,
wherein he raised an additional proposition of error not raised in his initial
filing, due to the dissenting opinion
proffered by OCCA Judge Lumpkin. On March 6, 2014, the OCCA denied the
Petitioner's Petition for Rehearing.
Acting Pro se,
the Petitioner subsequently filed a Second Application for Post-Conviction Relief
in Tulsa County District Court on April 16, 2014, citing the additional
propositions of error in his petition for rehearing to the OCCA, as well as the
two new propositions of error based on ineffective assistance of appellate
counsel. On November 19, 2014, the District Court denied the Relief. The
Petitioner subsequently appealed to the OCCA on December 15, 2014, case number
PC-2014-1054. The OCCA affirmed the District Court's denial of his Application
for Relief on February 27, 2015.
Again, acting
Pro Se, the Petitioner filed the Instant Federal Habeas Petition, case number
15-CV-130-GFK-PJC, on March 20, 2015. Therein, the Petitioner reiterates the
eleven propositions of error raised in his Direct Appeal and the one
proposition of error raised in his Second Application for Post-Conviction Relief.
The State filed a Response opposing the Habeas Petition, and the Petitioner
subsequently filed a Reply. The United States District Court, Northern District
of Oklahoma, denied the Petitioner's Application for Habeas Relief on March 23,
2018.
The Petitioner filed an Opening Brief and Request for a Certificate of
Appealability with the Tenth Circuit Court, case number 18-5034, on May 14,
2018. It was denied on September 18, 2018. Still acting Pro se the Petitioner
then filed for a Review En banc on October 22, 2018. It was denied on November
6, 2018. The Petitioner then filed for Habeas Review in the United States
Supreme Court of Appeals (SCOTUS), case No. 18-7322,
on December 27, 2018. It was denied on March 18, 2019. The Petitioner then
filed for a Motion for Rehearing on April 11, 2019. It was denied on May 15,
2019.
Again, acting
Pro se, the Petitioner filed a Third Application for Post-Conviction Relief on
July 30, 2019. That Petition was denied on October 8, 2019. The Petitioner
appealed that denial to the Oklahoma Court of Criminal Appeals, PC-2019-925, on
December 16, 2019. A denial was issued on January 3, 2020. Acting Pro se, the
Petitioner filed for a Writ of Certiorari with the SCOTUS, No. 19-8476,
on April 6, 2020. It was denied on October 5, 2020. A Motion for Rehearing was
filed on October 23, 2020. It was denied on November 16, 2020.
On August 27,
2020 the Petitioner submitted a Petition to the Tulsa County Court Clerk to
inform the courts, and ask for a decision, regarding Identity Theft and Credit
Card Fraud being perpetrated upon him by his alleged victim, Brandon Yerton.
On December 7,
2020 the Pro se Petitioner filed a Fourth Post-Conviction Relief with Tulsa
County in CF#2010-1707.
On December
18, 2020 the Pro se Petitioner filed a Writ of Mandamus with the OCCA with
specific regard to the unanswered August 27, 2020 Petition. That Writ of
Mandamus was assigned case number MA-2020-930.
It was denied on January 11, 2021.
On February
27, 2021 the Petitioner was creating a new Writ of Mandamus to compel Tulsa
County to answer the Fourth Application for Post-Conviction Relief when he
discovered that the January 11, 2021 OCCA ruling in MA-2020-930 was
erroneously applied to his Fourth Post-Conviction Relief, and that that Post-Conviction
Relief was therefore dismissed. Acting Pro se the Petitioner filed for a Writ
of Certiorari with the SCOTUS, No. 20-7754,
on March 4, 2021. It was denied on June 14, 2021. A motion for Rehearing was
filed on July 7, 2021. It was denied on August
23, 2021.
Statement of
Facts Relevant to the Issues Presented for Review
I maintain my
actual and factual innocence. In circumstances eerily similar to those recently
undergone by the new Supreme Court Justice, Bret Kavanaugh (fall 2018), my
weaponized false accusations arose out of a vindictive nature meant to harm me,
my wife, and my reputation. Prior proceedings in this case are available
online.
In the spring
of 2009, our 16-year-old son, Brandon Michael Roland Yerton,
was presenting some behavior issues at home. He was flunking a math class and
skipping the before school tutoring classes he was being dropped off at. It was
then discovered on Easter Sunday, April 13, 2009 that our son was breaking the
city curfew laws by sneaking out of his bedroom window in the middle of the
night for platonic hookups with the girl across the street creeping out of his
bedroom window about midnight, and returning just prior to 5 a.m. His mother,
Kimberly Ann Yerton,
and I were also suspecting this girl, Kelsey Spears, of encouraging him to
experiment with marijuana.
On that Easter
Sunday I woke up for church around 6 a.m., as I normally did, and I went to
wake up my children, as I normally did. When I went to wake up my son, he was not
in his bed. He was also not in the house. I woke up my wife and we immediately
began to be concerned and wonder what was going on. He was in our house at
curfew the Saturday night before. When we called his phone he answered, and we
discovered that he was at Kelsey Spears' house across the street. In the
background you could hear his panic as well as the vocalized concerns of Kelsey
and her mother, Ann Spears. The explanation he tendered, and that was supported
by Ann Spears, was that he had left his phone at her house the night before.
Not wanting to wake us up he just intended to run over and retrieve it.
Purportedly, as Kelsey and Ann were still awake watching a movie, he sat down
to watch for a minute, intending to leave shortly, but fell asleep. According
to Ann Spears, Brandon had told her that his parents knew where he was,
otherwise she would not have allowed him to stay. He lied. He had NOT been
allowed to even leave our home at all. We came to realize within a few days of
this incident that our son and Kelsey were dating and that her mother had been
allowing these late-night visits for some time.
Ann Spears lied to cover for our son.
My wife and I
decided to have a home alarm system installed, and in the meantime placed a
window alarm on our son's bedroom window. It is therefore understandable why
his mother freaked out on Tuesday, April 21, 2009, the day after he turned 17,
and confronted him while he was in the shower upon realizing that he had once
again snuck out of the house through his bedroom window so that he could engage
in coitus on his birthday. She used the bathroom bypass key, she opened the
bathroom door, she drew back the shower curtain and she confronted him with his
muddy high tops that he had tracked in dirt with as he climbed back in through
his bedroom window. He then chooses to chase her, in the nude, through the
house as she ran into her own bathroom closet to cry and calm down. It was
decided that she would drop him off at school and we would have a family
meeting later in the day to discuss the issue after everyone had calmed down.
She saw her own indiscrete youthful history
repeating itself in his platonic irresponsible sexual behavior and she was not
ready to become a grandmother, nor to see him and Kelsey Spears struggle with
the "choice" of how to handle an unintended pregnancy.
However, upon
being dropped off at school that morning by his mother, he proceeded to skip
school and "ran away" to live with his adopted maternal grandmother,
Annie Marie Henderson.
We came home from work to find he had moved his personal belongings out of his
room. He did however leave behind a VHS movie box he had been hiding used
condoms and what appeared to be rolling paper in. His mother and I had to
report him as a runaway and have the Tulsa Police Department retrieve him and
return him to our home.
This
unfortunate event is one of the versions of alleged no-contact leering that
Brandon used in his Count III weaponized false allegation of abuse. However, he
makes no mention of it the next day when filing for a protective order. When he
does eventually retell this scenario to Detective Baumann over a year later in
2010 and then relays it to ADA Sarah McAmis, he conveniently leaves out the
factors that his mother played as well as the fact that he chose to run nude
through the house in full view of all family members, including his 12-year-old
sister. When ADA McAmis retold this story to the jury three years later in
2012, she also conveniently left out the facts that his mother, Kimberly, unlocked
the bathroom door and pulled back the shower curtain, placing the oneness of
the entire events of that morning upon me. The next day, Wednesday, April 22,
2009 Brandon and his adopted maternal grandmother, Annie Marie Henderson,
attempted to file a protective order to be able to allow him to live with her.
That application for a protective order was denied.
However, Kimberly and I agreed to let Brandon temporarily stay long-term at his
adopted grandmother's house, just as he had frequently done his entire life
over the summer months. Ann immediately came out of semi-retirement to purchase
Brandon a new pickup truck if he would agree to allow her to have legal
guardianship over him. After a Family Court
hearing we agreed that she could have guardianship, but NOT custody, over him
for his senior year of high school, if certain conditions were met (no skipping
school, continued math tutoring, adherence to the city curfew laws, random drug
testing, and counseling) or he could be enrolled in Thunderbird Academy, which
was our preference.
One year
later, on April 20, 2010, Brandon turned 18 and the guardianship was
terminated. At that April 18, 2010 hearing, our son attempted to get an order
from the judge
requiring us to pay his health insurance until he was 25, and to pay his
tuition to the University of Oklahoma. His mother and I declined. As we left
the courtroom his adopted grandmother, Annie Marie Henderson, was heard
threatening, "You will pay for this”.
Within a few
days of this hearing, Brandon Yerton was initially approached by Tulsa Police
Department (TPD) Detective Dianna Baumann, questioning him about allegations of
abuse made by Bella Mendoz; inquiring about abuse in our home. He adamantly
denied, repeatedly, that any type of abuse ever happened in our home (also as indicated
in the denial of Protective Order PO-2009-1262 on April 22, 2009); he continued
this same denial over the course of many, many interviews with Detective
Baumann.
Concurrently, in
August 2009 through May 2010, I was an administrator at Skelly Elementary
School for Tulsa Public Schools. All year long I had been collecting data on
teachers to determine whom would be retained and whom would not for the
2010-2011 school year. In October of 2009, school counselor, Myrtha Mikle,
responded poorly to requests for better performance. She initiated an email on
October 21, 2009
that accused me of being ineffective and inappropriate (which eventually became
the crux of Count I for which I was acquitted because of Myrtha Mlkel's own testimony
that she had been less than forthright and retaliatory in her weaponized false
accusations).
In April of 2010, I
was preparing to admonish 1st grade teacher Bella Mendoza because she had left
a large, unsheathed knife out on her desk, with a room full of first graders at
large, and she was not even in her room supervising (Trial Transcript 8/23/2012
Vol. VI p. 1042 line 22-25). In retaliation, she conspired with Myrtha Mikle
(Trial Transcript 8/23/2012 Vol. VI p. 1045-1048) to file a false police report
(as Bella Mendoza later admitted to at a civil trial disposition
and during her testimony at my criminal trial),
claiming I had inappropriately touched her son, Antonio Paquette (Count IV).
Once the accusations had been made and the local media onslaught began, the
damage was already done to my reputation, my family, and my career. As Supreme
Court Justice Kavanaugh said in his opening statement in his nomination
hearings on September 26, 2018, "my life had become a circus".
To bolster their case, District Attorney Tim Harris, Assistant District
Attorney's Jake Cain, Sarah McAmis, and Amanda Self, as well as Tulsa Police
Department Detective Dianna Baumann,
badgered my 17 (nearly 18) year old son with multiple interviews and
manipulations, to encourage him to create a story to help them win their case.
During my 2010 preliminary hearing, my son, Brandon Yerton-Henderson, admitted
that ADA Jake Cain helped him to fabricate a false recollection of “unknowingly”
being masturbated while he slept. Upon cross examination this
fabrication fell apart as he revealed a covert meeting with the Assistant
District Attorney, Jake Cain, the night before as they concocted this new story
(within a week ADA Jake Cain resigned his position, moved to Dallas, and took
another job). In Count II,
at my 2012 trial, my then 20-year-old son stated that approximately as a
10-year-old that I helped him to purchase and properly insert/adjust an
athletic cup into his underwear that he was wearing for a wrestling event.
Detective Baumann and the other Assistant District Attorneys convinced him that
this normal father-son interaction was nefarious, inappropriate,
and should not have happened. His story and testimony did not, does not, ring
true because as anyone involved In Oklahoma Coaches Association (OCA) wrestling
can attest, you are not allowed to wear an athletic cup in any OCA wrestling
events. He did wear an athletic cup as a fourth grader, for 4-6 weeks, when he
played flag football. Had Detective Baumann conducted appropriate follow-up
interviews, she would have learned of these facts from the OCA coaches at my
son's school. This weaponized false allegation resulted in the Count II twelve
year sentence which I am scheduled to be discharged from on November 10, 2022.
The
commutation request set before this Honorable Board is for the consecutively
sentenced Count III weaponized false allegation of non-contact leering, which I
am sentenced to for another 12 years (8 in/4 out) beginning November 11, 2022. In
Count III, at trial, my then 20-year-old son states that I would, on occasion,
share a family restroom with him as we prepared for our day’s activities (he
may be showering behind two curtains, while I shaved at the sink). Detective
Baumann and the Assistant District Attorneys convinced him that this normal
father-son interaction was nefarious, inappropriate, and should not have
happened. One of the homes that our family lived in only had a single restroom,
and all four of us were frequently in it at one time trying to groom for the
day's events. Brandon also makes allusions to the jury of to the events of April
21, 2009 as outlined previously.
Therefore, I
have served 10 years in prison,
costing the taxpayers of the state of Oklahoma in excess of $225,000 for
helping my then 10-year-old son properly insert an athletic cup for the first
time in his sporting career, and for being in a family bathroom at the same
time as he was. It did not bother him then, nor for the next 8 years; until
after Detective Diana Baumann's 20+ badgered interviews attempting to cajole
some instance of impropriety to bolster her case in the falsely weaponized
allegations raised by the teacher (Bella Mendoza) and counselor (Myrtha Mikel)
who were not being recommended for retention in the 2010-2011 school year.
At trial, my
son could not fully embrace this lie, ran off the stand and
into the office areas behind the courtroom, causing Judge Kellough to stop the
trial and send a bailiff, the prosecutor, and my defense attorney, Richard
O’Carroll, to chase him down. He was found in the jury room with his
grandmother, Annie Marie Henderson, encouraging him to return to the stand and
to "stick to the story".
I agree with
Supreme Court Justice Kavanaugh that, “We live in a country devoted to Due Process
and the rule of law. That means taking allegations seriously. But if the mere
allegation, the mere assertion of an allegation.... is enough to destroy a
person's life and career, we will have abandoned the basic principles of
fairness and Due Process that define our legal system and our country. I'm here
today to tell the truth. I've never sexually assaulted anyone. Not in high
school, not in college, not ever. Sexual assault is horrific…. allegations of
sexual assault must always be taken seriously, always. Those that make
allegations always deserve to be heard. At the same time, the person who is the
subject of the allegations also deserves to be heard. Due Process is the
foundation of the American rule of law. Due Process means listening to both sides”.
I pray that this Honorable Board will read the facts, consider my side, commute
my sentence, or provide other relief, allowing me the opportunity to create a
successful future legacy.
REASONS FOR
GRANTING THE PETITION FOR RELIEF
This entire
case is strictly a matter of hearsay. It is at its core the word of the
Petitioner against the word of his anger filled, vengeful, vindictive, and millennial
entitled son. There is no DNA evidence, video recording, other physical
evidence, or actual witness to any of the events the Petitioner has been accused
of by his son, nor by Bella Mendoza. Much like the May 25, 2020 Amy Cooper accusations
in Central Park, the "victim" has made up a convenient lie to further
his/her own cause and financial gain. Brandon Yerton
agreed to this weaponized false allegation to further endearment of his
maternal grandmother, Annie Marie Henderson, and
the hope that his parents would get a divorce so that his mother, Kimberly
Yerton,
would turn her full attentions and affections upon himself.
Bella Mendoza used her weaponized false allegation to receive a $25,000.00
payout from Tulsa Public Schools. In
denying the Petitioner his Relief this Honorable Board would be supporting the
Petitioner's son's and Bella Mendoza's weaponized false allegation claims, abetting the trial court judge,
William Kellough,
in his grievous errors and missteps, as well as endorsing the Tulsa County
District Attorney's Office in their decade's long efforts to incarcerate those who
they deem unfit for society by whatever means they can: in this case the
suppression of evidence and lack of
exonerative investigation by the lead Detective Diana Baumann, and the
manipulations, marionetting, and malfeasance of Assistant District Attorneys'
Jake Cain and Sarah McAmis. In addition to the propositions presented in the
original Direct Appeal and in subsequent appeals the Petitioner feels that this
Honorable Board should know of the egregious way that he was treated by the
Tulsa County District Courts. His Due Process was violated many, many times
from the time of his original arrest. His original trial court judge, Thomas
Glasco,
had to be recused for having discussions about his case in chambers with the
Assistant District Attorney (ADA), Sarah McAmis, without him or his attorney
being present. This resulted in ADA McAmis having to take the stand to testify
against Judge Thomas Glasco. This furthered the tension between her and the
Petitioner's attorney.
After that it became a "tit for tat" game of personal "one-upmanship"
between the two attorneys.
By denying the
Petitioner Relief this Honorable Board would be allowing the State (Tulsa
County) to continue to endorse Tulsa Police Department Detective Dianna
Baumann's withholding of exculpatory evidence, as she deems fit and necessary,
because it will not support her arrest, nor Tulsa County's conviction. As
previous referenced, Dianna Baumann was the lead detective in the Petitioner's
case. In at least one subsequent case she
has admitted that she held back exculpatory information in her "master
file" that was not turned over to the prosecution, nor the defense
attorney of William Bridges. Once this evidence was turned over, at retrial Mr.
Bridges was acquitted by a jury in February of 2019.
Similarly, Detective Baumann was subpoenaed duces tecum,
yet did not bring her files, notes, paperwork etc., with her to the
Petitioner's July 31, 2012, Reliability Hearing, nor to his trial. At the
Petitioner's Reliability Hearing on July 31, 2012,
Detective Baumann replies on page 55 line 8, that she is unable to answer the
Petitioner's questions, "not without refreshing with my notes". On
page 58 line 23, she responds to the Petitioner's questions with, "not
without my reports". On page 59 line 11, she is unable to answer,
"without my notes." In the August 28, 2012, Trial Transcripts Volume
X page 1672-1760, the detective cannot, or will not, answer defense questions
because she, "does not have her notes". The defense attorney objected
during trial to the detective not honoring the subpoena duces tecum: each
objection was sustained, and he was eventually told that, "this was a
housekeeping issue," by Judge Kellough. On page 1705, Det. Baumann could
not answer, "without my reports". On page 1715, Det. Baumann admits
that, "she did not do follow up interviews
to confirm the reliability of her complaining witness (Brandon Yerton, the
Petitioner's son)". On page 1726, Det. Baumann replied that, "she
could not answer the question without her reports". Again, the defense
attorney raised the issue with the Court that she was subpoenaed along with her
notes. On page 1729 the defense attorney noted that all favorable reports
made by interviewing witnesses were withheld from the prosecution and defense.
On page 1741
Detective
Baumann replies that she, "cannot answer without her notes". On pages
1742-45, when confronted with the fact that Detective Baumann had interviewed
one Sherry Wallace-Fernandez and questioned as to why that report was not in
the District Attorney's possession, nor the Defenses, Detective Baumann could
not provide an answer. We now know, 9+ years later, that this was a pattern of
behavior by Detective Baumann as evidenced in the trial and acquittal of
William Bridges in Tulsa County case number CF-2018-5720.
These issues
with Detective Baumann are clearly Brady violations. In Kyles v. Whltlev
(1995), the Court confirmed that the Brady
disclosure duty has developed over thirty years through various decisions.
Significant among the summary conclusions of the Kyles Court are: The
requirement that the defendant demonstrate only that the nondisclosure of
material subject to the duty showed a reasonable probability that, but-for the nondisclosure,
the outcome of the proceedings would be favorable. The defendant is not
required to prove that he would have been acquitted had the required disclosure
been made; There is no requirement for proof of prosecutorial bad
faith or deliberate intent to
violate the accused's rights because the Due Process issue concerns only the
defendant's ability to respond to the prosecution's case and not the
culpability of the prosecutor in not making a required disclosure; Evidence
subject to the disclosure duty may be exculpatory - disproving defendant's
guilt - or impeaching - casting doubt on the credibility of the prosecution's case; The
disclosure duty is not dependent upon a specific request for discovery by the defense; The
actions of law enforcement officers and investigators, in failing to disclose
the existence of favorable evidence to the prosecuting attorney, are imputed to
the prosecutor, as members of the prosecution team.
In Scott v.
Mullin, 303 F3d 1222 (CA10 2002) the court said that the state's failure to
disclose information constitutes cause to excuse procedural default because the
State's concealment of the evidence is an "objective factor" external
to the defense that impeded counsel's efforts to comply with the State's
procedural rule. The court granted Scott relief based on a violation of Brady
and ordered a new trial. The Petitioner requests this relief based upon the Brady
violations caused by TPD Detective Dianna Baumann in her capacity as an imputed
member of the prosecution team.
At trial, in
front of a jury full of bible-belt strait-laced peers, ADA McAmis made several
direct inferences to her personal perception of the Petitioner's sexual
orientation to cast him in as bad a light as possible to the jury. She did this
in her direct examination of him, her direct examination of the computer
forensic analyst, and again at closing. Her attacks were vicious and
unwarranted but had their effect. After a thirteen-hour deliberation that ended
at 2 a.m., while the jury acquitted him of one of the two counts associated
with the original weaponized accusations raised by the teacher/counselor he was
not recommending for retention in the 2010-2011 school year, the counts that
were associated with the perjury statements from his son stood. ADA McAmis was
making claims that the Petitioner was homosexual and therefore a predator to
the children that were in his school building. She was pandering to the
Bible-belt born and bred jurors who were selected to hear this case. Despite
pre-trial hearings to limit this kind of character assassination, the ADA
persisted in their usage. When the Petitioner
attempted to put on an expert witness, Dr. Rick Kishner, to counter these
claims
(that homosexuality has no correlation to pedophilia), the trial court judge,
William Kellough, did not allow the expert to be heard claiming that, "I
believe
and I'll find for this record that it is a res gestae situation, that the
evidence of
computer ... pornography left in a position that could be viewed by Brandon
Yerton is some circumstantial evidence of the commission of the crimes
charged... (Tr. 208)”. Judge
William Kellough’s ruling was contradictory. It
claims the evidence was res gestae because it was circumstantial evidence of
the offense charged. These are two separate concepts. Res gestae
evidence has been described as evidence of "matters incidental to the main
fact and explanatory to it, including acts which are closely connected
therewith
as to constitute a part of the transaction and without knowledge of which the
main fact might not be properly understood." Dixon v. State, 1977
OK CR 32, 560
P.2d 204, 206. Circumstantial evidence "is proof of facts or circumstances
which
give rise to a reasonable inference of other connected facts that tend to show
the guilt or innocence of a defendant." OUIJ-CR-9-3. Res gestae
evidence must
be closely connected with the offenses, but need not prove a defendant's guilt,
while circumstantial evidence must prove a defendant's guilt, but need not be
closely connected to the offense.
The ruling
that the evidence was res gestae because it was circumstantial
is thus not sound legal analysis. In the Court of Criminal Appeals of the State
of
Oklahoma (OCCA) Summary Opinion denying the Petitioner's Direct Appeal,
Judge Lumpkin made a special note that “the Trial Court's decision to admit the
6 [individual] images of [legal] pornography found
on the [Petitioner's]
computer as res gestae evidence for an abuse of discretion”. Since the OCCA
found that evidence to be circumstantial, the Petitioner certainly should have
been allowed to be able to call his own defense expert witness to the stand.
With respect
to the Petitioner’s original Direct Appeal Ground One issue,
on direct appeal, the Petitioner raised the issue of the Trial Court’s denial
of his
request to call an expert witness to testify that there was no link between
pornography and child sexual abuse or molestation.
Consequently, at this point, the issue was preserved for review. However, when
the OCCA found the evidence admissible - not as res gestae as the Trial Court
had concluded - but rather as evidence of Petitioner's "motive and intent
to sexually abuse and molest B.H. [Brandon Yerton], and to rebut Petitioner's
claim
of mistake or accident in his touching of the victim," the Petitioner
filed a Petition
for Rehearing in light of the OCCA ’s new rationale for the admission of the
evidence. The Petitioner reasserted his claim to call an expert witness to
testify
that there was no link between pornography and child sexual
abuse or molestation, depriving the Petitioner of his Due Process. Again, the
issue
was preserved for review. Because the OCCA
opinion held that evidence that the Petitioner had 6 individual images of legal
adult pornography on his computer (in a cached file without his knowledge)
was admissible to prove motive, intent, mistake, or accident, the Petitioner
was
deprived of his right to present his defense when the trial court judge,
William
Kellough, refused to allow him to call an expert to show that there was
no link
between homoerotic pornography and the offenses charged. During trial, the
defense attempted to call an expert witness to show that there was no link
between homoerotic pornography and pedophilia (Trial Tr. p. 1533). Judge
William Kellough refused to allow the witness to testify on the grounds that
"there has been no suggestion that homosexuality equates pedophilia."
(Trial Tr. p. 1533). Given that the evidence of pornography was not sought to
be admitted as evidence of guilt, the trial court's ruling was arguably
correct. A witness cannot be called to rebut something that has not been
asserted. See Valdez v. State 46 p.3d 703 (2002) equity in procedural
bar.
However, on direct appeal, the OCCA
rejected Judge William Kellough’s
ruling, and held that the evidence was admissible to prove "Appellant's
motive
and intent to sexually abuse and molest B.H. and to rebut Appellant's claim of
mistake or accident..." (OCCA opinion, page 3). The OCCA's opinion means
that the Petitioner was denied his Due Process right to present witnesses in
his
own defense, since the witness he was prevented from calling was intended to
rebut the very theory which the OCCA was using to justify the introduction of
this
evidence.
Given the OCCA ruling on direct appeal, Judge Kellough’s decision
to prohibit the defense expert from testifying resulted in a fundamental and
prejudicial violation of the Petitioner’s Constitutional rights. See Kittleson
v.
Dretke, 426 F.3d (5th Cir. 2005) stating that a psychiatrist certified the
defendant
did not fit the profile of a sex offender. Chambers v. Mississippi, 410
U.S. 284, 93
S.Ct. 10381 35 L.Ed.2d 297 (1973); Washington v. Texas, 388 U.S. 14, 87
S.Ct. 1920,
18 L.Ed.2d 1019 (1967). It is fundamental that a defendant has the right to
present testimony and witnesses in his own behalf. U.S. Constitution
Amendment
VI; Okla. Const, art. II, § 20; Baker v. State, 572 P.2d 233 (Okla. Cr.
1977) The
exercise of this right is crucial to our criminal justice system because "the
truth is
more likely to be arrived at by hearing the testimony of all persons of
competent
understanding who may seem to have knowledge of the facts in a case." Rosen
V. United States, 245 U.S. 467, 471, 38 S.Ct. 148, 150, 62 L.Ed. 406
(1918). It is also
fundamental that all defendants have a right to present whatever defense they
may have and to have all such evidence presented to the jury with proper
instructions, so that they may more nearly arrive at a just result in their
deliberations. Washington v. Texas, 388 U.S., 14, 87 S.Ct. 1920, 18
L.Ed.2d 1019
(1967) [Petitioner] would contend that this issue involves strictly a matter of
law,
and thus the standard of review is de novo review. King v. State, 182
P.3d 842
(Okla. Cr. 2008). Because the OCCA held that the evidence of
pornography could be used for substantive purposes, it was error for Trial Court
Judge William Kellough to have prohibited an expert from testifying that such
evidence did not show motive and intent to commit pedophilia. Other Federal
Circuit Courts have found a District Court's refusal to permit unique expert
evidence a violation of a petitioner's confrontation clause. "Few rights
are more
fundamental than that of an accused to present witnesses in his own
defense"
Taylor v. Illinois, 484 U.S. 400, 408, 108 S.Ct. 646 (1987). "The
right to....call
witnesses in one's own defense has long been recognized as essential to due
process" Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35
L.Ed.2d (1973);
Ferensic v. Birkett, 501 F.3d 469 (6th Cir. 2007); Lunbery v.
Hornbeck, 605 F.3d 754
(9th Cir. 2010); see Kittleson v. Dretke, 426 F.3d (5th Cir. 2005) stating
that a
psychiatrist certified the defendant did not fit the profile of a sex offender.
The
6th Amendment, made applicable to the States by the Due Process Clause of
the 14th Amendment, entitles a criminal defendant to the effective assistance
of counsel not only at trial, but during his first appeal as a right.
As it was, the
imagery in question was testified to by forensics detective
Darren Gibson to be six (6) pictures in "a temporary internet file or
deleted, were
not downloaded or saved, were associated with pop-ups or banners, and could
have been placed in those folders without being viewed by the computer user
even being aware of their presence" (Trial Transcript Volume V, p.
778-780). In
Tobler v. State, 1984 OK CR 90, 668 P. 2d 350, the OCCA reversed the
defendant's conviction in part because of the introduction of the evidence
regarding the defendant's homosexuality. The OCCA held, "The most damaging
and prejudicial errors were the frequent allegations that [the] appellant was
homosexual, and testimony to that effect." The Petitioner would point out
to this
Honorable Board that the OCCA did not make the same application in this case.
In addition to
the questions presented in the Petitioner's original Direct Appeal, Certiorari
18-7322, OCCA PC-19-925, Certiorari 19-8476 and Certiorari 20-7754, this
Petitioner wants to remind this Board that as in this case, weaponized
false allegations of assault and abuse are one of the reasons for the
2020 spring and summer nationwide protests for justice. One of the initial
controversies that led to these protests were the caught-on-camera weaponized
false allegations of assault made by the “Pejorative Karen", Amy Cooper,
upon Christian Cooper on May 25, 2020, the same day of the George Floyd murder.
Christian Cooper was innocently bird watching in Central Park when he noted
that Amy Cooper had a wanton disregard for the posted public expectations and was
not following the established protocols. When Christian Cooper pointed out to
Amy Cooper that she was breaking the rules, she reared up, weaponized his race
and gender, called 911, and made a false police report of assault.
The Petitioner
brings this issue to the attention of this Honorable Board because this
situation resonates with the legal cause now set before you. As outlined in
OCCA PC-19-925 and SCOTUS 19-8476 the Petitioner is similarly the victim
of a weaponized false allegation; unfortunately, his accusers
were not caught-on-camera lying. However, a close reading of the Petitioner's
appeals and transcripts shows that both Bella Mendoza (the mother of Antonio
Paquette and a teacher that the Petitioner was not recommending for rehiring) and
Myrtha Mikel (a school counselor who was being placed on an employee improvement
plan)conspired together to create and weaponize a false allegation of abuse rather
than own up to their own behaviors and correct the deficiencies that they were
being admonished for by the Petitioner (see Trial Transcripts 8/23/2012 Vol. VI
p. 1045-48).
To further
compound this issue, after committing perjury during the Petitioner's criminal
trial (Tulsa Co. CF-2010-1707) "in order to win [his] mother back"
(Trial Transcript 8/20/2012 Vol. X p. 1719) the Petitioner has only recently, in
December 2019, uncovered evidence that his falsely accusing son, Brandon
Yerton-Henderson, has been committing persistent and willful acts of Federal
Felony Identity Theft and Credit Card Fraud, in the Petitioner's name,
to pay for his monthly X-Box subscription
and other online purchases.
After the
Petitioner's unjust verdict and incarceration his wife, Kimberly Ann
Henderson-Yerton
divorced him.
Soon afterward she moved into her mother's home
where Brandon was already living. Brandon and/or Kimberly opened a PayPal
account (#504990606607) with Comenity Capital Bank (account #T-75002225) on
11-17-2013, after her initial filing for divorce. The account was opened via
the internet with an email address of KYERTON@GMAIL.COM. Brandon and/or
Kimberly then used a P.O. Box
to receive their monthly billing.
The facility
used to house this P.O. Box was also used by the Petitioner's father, Robert
Roland Yerton, Sr. At some point Brandon and/or Kimberly stopped using this
P.O. Box. When an overdue collection notice arrived at the facility in late
2019 the clerk placed the notice in Mr. Yerton Sr.’s P.O. Box.
Upon opening the collection notice, that was in their common name, the Petitioner's
father discovered the I.D. Theft and Credit Card Fraud being perpetrated
against the Petitioner.
Perjury and
weaponized false allegations made for personal profit and financial gain are
all the evidence that the State has to offer in this case. The Petitioner
respectfully requests a hearing and that this Honorable Board grant relief as
the alleged victim, Brandon Henderson-Yerton, continues to prove that he is
culpable of committing fraud and perjury by committing identity theft to
continue to make a financial gain from the incarceration of his
Petitioner-Father.
The alleged
victim in Counts II and III, Brandon Henderson-Yerton, began his Trial Court
testimony by admitting to the jury that he was a known liar (Trial Trans. Vol.
VI p. 673, 677, 638, 680-684). He gave misleading testimony about his
participation in Union High School Athletics (Trial Tr. Vol. IV 696-699), that
he was removed from the family home due to abuse (Trial Tr. p. 674) and that a
Protective Order was issued (Trial Tr. p.631); all of which he retracted
under cross examination (Trial Tr. p.703, 740). Brandon went on to
state that he “was not here for the jury to believe him” (Trial Tr. p. 716-717),
but to win [his] mother back (Trial Tr. August 20, 2012 Vol X p. 1719).
When a witness
tells you that they are a liar, not to be believed, and their subsequent
behavior continues to show a consistent pattern of behavior where falsehoods, Identity
Theft, and Credit Card Fraud prove that assertion, then they should be believed
to be a liar. Brandon’s current culpability in Identity Theft and Credit Card Fraud
should call into question his trial testimony and perjury filled statements of
weaponized false allegations of abuse.
The Petitioner
has clearly satisfied, in Pro se terms, the reasonable jurist, exceptional and
special circumstances, as well as exigent circumstances as stated above. The
Petitioner moves this Honorable Board for Pro se special privileges, liberal
construments pursuant to special treatment, and that this Board does not hold
his action or inactions to "too rigid a standard" Holland
v. Florida. 130 S.Ct. 2549. The Petitioner also asserts that a Pro
se party is "unable to protect his own interest” which demands that
counsel be appointed Waldron v. Jackson. 348 F. Supp. 2D 877: Galindo
v. Johnson. 19 F. Supp. 2D 697: Taylor v. Maddox. 366 F. 326 933.
Conclusion
Mr. Yerton,
Petitioner, Prose, respectfully requests that this Honorable Board grant his
Petition for Relief and commute his sentence, exonerate him of these false
allegations, restructure his sentence, or set him free.
