DOCUMENT 84
ELECTRONICALLY FILED
3/5/2015 5:00 PM
02-CC-2000-002891.80
CIRCUIT COURT OF
MOBILE COUNTY, ALABAMA
JOJO SCHWARZAUER, CLERK

IN THE THIRTEENTH JUDICIAL CIRCUIT, MOBILE COUNTY, ALABAMA
__________________________________________
)
STATE OF ALABAMA,
)
)
)
vs.
)
)
Case No. CC-00-2891.80
WILLIAM J. ZIEGLER,
)
)
Defendant.
)
__________________________________________)
_______________________________________________________
DEFENDANT’S MOTION TO DISMISS BASED UPON THE STATE’S FAILURE TO
PRESERVE MULTIPLE PIECES OF EXCULPATORY EVIDENCE WHOSE ABSENCE
WILL PREVENT DEFENDANT FROM RECEIVING A FAIR TRIAL
_______________________________________________________
Defendant William J. Ziegler (“Mr. Ziegler”) respectfully submits the foregoing motion
to dismiss the indictment against him in the above-captioned matter based upon the State of
Alabama’s admitted failure to retain multiple pieces of highly relevant, probative, and
exculpatory evidence necessary for Mr. Ziegler to receive a fair trial in this matter, based on the
following:
PRELIMINARY STATEMENT
1.

As demonstrated during the lengthy evidentiary hearing presided over by this

Court in 2010, Mr. Ziegler’s original conviction was tainted by multiple constitutional violations
that individually and collectively deprived him of a fair trial. These violations included the
failure of the State to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S.
83 (1963), the failure of his initial trial and appellate counsel to provide effective assistance and
the failure of multiple jurors to honestly respond to questions during voir dire.

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2.

Based upon the overwhelming evidence brought forward by Mr. Ziegler during

those Rule 32 proceedings, this Court correctly overturned his conviction and sentence, and the
Alabama Court of Criminal Appeals unanimously affirmed that decision. See State v. Ziegler,
No. CR-12-0372, 2014 WL 1744098 (Ala. Crim. App. May 2, 2014).
3.

Since the conclusion of those proceedings, Mr. Ziegler’s case returned to this

Court where the State of Alabama announced its intention to re-try Mr. Ziegler. However,
during the re-trial proceedings it has now become clear that any such re-trial would again subject
Mr. Ziegler to violations of his rights to due process and a fair trial by virtue of the State’s
numerous, pervasive and egregious failures to preserve clearly relevant, and ultimately
exculpatory, evidence necessary for Mr. Ziegler to receive a fair trial.
4.

To be clear, Mr. Ziegler contends that the remaining evidence that has been

preserved would lead a reasonable jury to acquit Mr. Ziegler of the charges brought by the State.
Nevertheless, the record brought forward by the State during the January 15, 2015 hearing
establishes, at a minimum, that:
•
The State Failed to Preserve Information that Mr. Baker was Killed in Jay
Bennett’s Car – During its initial investigation, the Mobile County Sheriff’s Office
(“MCSO”) developed information that Mr. Baker may have been killed in the car of
James Gordon Bennett, including that “the vehicle may have been used in transport or
somebody might have been in there,” (1/15/15 Hearing Transcript at 49:25-50:2 (attached
and hereafter Ex. A)) and obtained a search warrant based upon that evidence. However,
the State failed to preserve the affidavit that set forth the basis for the issuance of the
warrant and the information developed by the MCSO; 1
•
The State Failed to Preserve Audio Tapes of the Interrogations of Anyone
Other than Mr. Ziegler – During its investigation of Mr. Baker’s death, the MCSO at a
minimum conducted recorded interrogations of: (i) Mr. Ziegler; (ii) James Bennett; (iii)
1

As detailed below, in fact, the State failed to preserve the actual warrant itself. Although Mr. Ziegler was able to
obtain a copy of the warrant that was left in the car after it was returned, no copy of the warrant itself has ever been
produced by the State from the files of the District Attorney, the MCSO, or from the files of the Mobile County
District Court from which the warrant was issued. Indeed, the only copy ever put forth by the State in these
proceedings was the copy introduced by Mr. Ziegler during the Rule 32 Proceedings. See Ex. A at 9:21-10:8.

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William Randall; (iv) Patricia Davis; (v) Sarah Myers; and (vi) Dawn Kohn. However,
the State has failed to preserve the recordings of any of these interrogations other than
that of Mr. Ziegler;
•
The State Failed to Preserve and Cannot Identify What was Contained in an
Evidence Bag Brought to the District Attorney’s Office – On or about December 14 or
15, 2000, the District Attorney’s office collected from the MCSO a number of items for
disclosure to prior defense counsel. Included in these materials were a “Club”
(presumably a golf club) and one “Bag” that now cannot be located. Yet, no witness
called to testify by the State at the January 15, 2015 hearing could offer any testimony
concerning what was in the “Bag” that was allegedly disclosed to Mr. Ziegler’s original
trial counsel in 2000 or 2001.
•
The State Failed to Preserve the Clothing Found on Mr. Baker’s Body – A
few hours after collecting the “Club” and “Bag” from the MCSO, the District Attorney’s
Office collected “Clothes” from the MCSO, which are believed to have been the clothing
on Mr. Baker’s body when it was recovered. Despite the fact that there is no dispute that
the State, specifically the District Attorney’s Office, was in the possession, custody and
control of those clothes throughout Mr. Ziegler’s trial, the State has now acknowledged
that those clothes cannot be found and have not been seen since March of 2001.
5.

These are not the only material items of evidence that the State has now

acknowledged to be missing and unavailable to Mr. Ziegler and his defense. 2 However, these
materials are clearly exculpatory and highly material and their unavailability for this re-trial
severely prejudices Mr. Ziegler and his ability to defend himself from the charges brought by the
State. Indeed, this Court has previously held that many of these items of evidence, including at
least the missing clothing and search warrant affidavit, were material and beneficial to Mr.
Ziegler’s defense.
6.

The law makes clear that a violation of due process occurs where, as here, the

State has lost or destroyed material evidence that is beneficial to the defense. This is true
irrespective of whether the State acted with bad faith. However, even if bad faith were to be
required, the record from the Rule 32 hearing and the prior trial establishes bad faith by the State
2

As noted below, the State also has been unable to locate notes of an interview conducted of Vickie Bosarge and her
son Ricky Melton, records of the BOLO made by the MCSO to the Bayou La Batre Police Department and pictures
of Mr. Bennett’s car (other than a contact sheet).

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in connection with its investigation and prosecution, as well as in connection with the failure to
retain this critical evidence. 3
7.

As detailed below, the appropriate remedy for the State’s multiple failures to

retain evidence necessary to ensure Mr. Ziegler’s rights under the United States and Alabama
Constitution are not prejudiced is the full and final dismissal of the charges against him.
Anything less would violate Mr. Ziegler’s constitutional guarantee of due process and a fair trial.
BACKGROUND AND PROCEDURAL HISTORY
8.

On February 21, 2000, Karen Baker Lee reported to the MCSO that her nineteen-

year old son, Russell Allen Baker, Jr. was missing.
9.

In the afternoon of February 23, 2000, Detective Dale Kohn of the MCSO visited

the residence of James Gordon Bennett III (“Bennett”) and took Bennett to the MCSO’s
Criminal Investigation Unit (“CID”) for questioning. Bennett told Kohn that Baker had been
killed and that his body could be found in a wooded area off of Jeff Hamilton Road.
10.

Following the discovery of Baker’s body, a number of law enforcement

personnel, including, among others, Detective Kohn, Deputy Chief James Mayo, and Dr. Leroy
Riddick proceeded to the wooded area. Mr. Baker’s body was found wearing clothing described
in the autopsy report as follows:
CLOTHING: Black tee shirt with Hilfiger athletics logo. The shirt has a tear at
the collar on the left upper chest that corresponds diagonally with the large sharp
force injury to the neck. The upper portion of the shirt appears black, partially
because of blood. The lower portion is blue and gold. The body has black denim
3

To be clear, based on the record, Mr. Ziegler does not believe that the Office of the Attorney General has acted in
bad faith in connection with the loss or destruction of this crucial evidence. To the contrary, the record reflects that
current counsel for the State acted consistent with their obligations of good faith and candor in having brought these
issues to the attention of the Court and counsel for Mr. Ziegler and created some of the evidentiary record regarding
the loss or destruction of this material evidence. However, the record reflects that the State, and, more specifically,
the MCSO and Mobile County District Attorney’s Office, lost or destroyed the critical evidence that is the subject of
this motion.

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trousers, and white and blue athletic shoes. Blood splotches are present on the
shoes, but not very many.
Rule 32 Ex. 99 at 2 (attached and hereafter Ex. C).
11.

At approximately 10:30 p.m. on February 23, 2000, Detective Donald Lunceford

was dispatched to CID to interview Bennett. At approximately 12:06 a.m. on February 24, 2000,
Detective Lunceford took a recorded statement from Bennett. Mr. Bennett was then allowed to
leave without restriction. In his statement, Bennett claimed that Mr. Ziegler and Mr. Randall had
killed Baker in the wooded area where Baker’s body was recovered. See Rule 32 Ex. 116
(attached and hereafter Ex. D).
12.

Detectives Lunceford and Kohn subsequently took recorded statements from Mr.

Ziegler, William Randall, Patricia Davis, Sarah Myers and Dawn Kohn. See Rule 32 Exs. 121,
120, 123, 118, and 115 (attached and hereafter Exs. E, F, G, H, and I). In connection with all of
these interrogations, Detectives Lunceford and Kohn initially conducted multiple unrecorded
interrogations and only then recorded so-called final interrogations. See Amended Order ¶ 5
(attached and hereafter Ex. B); see also Rule 32 Exhibit 155 at 45:5-46:3 (attached and hereafter
Ex. M).
13.

Dawn Kohn is Detective Kohn’s niece. See Ex. B ¶ 7. Ms. Kohn made at least

two statements to the MCSO. In her first statement – a handwritten statement apparently taken
at Ms. Kohn’s school – Ms. Kohn implicated Mr. Bennett and excluded Mr. Ziegler from
involvement in Baker’s death, writing:
Saturday night Jay found out Allen had raped his mom and x-wife [sic] and so
Allen and Jay got in a fight and me and Sarah and Will and Willie stopped them
then Will, Willie and Jay walked him to the stop sign and came back the fight was
only a few punches. Then they took me and Sarah home. Then all week me and
Will tried to find Allen and all that was told to us is that Jay and Allen left Sunday
together and only Jay returned.
Rule 32 Ex. 104 (attached and hereafter Ex. J) (emphasis added); see also Ex. B ¶¶ 7, 161.
5

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14.

Subsequently, Dawn Kohn gave a recorded statement in which she indicated that

Jay Bennett had taken a number of knives to his car before proceeding to leave Mr. Ziegler’s
apartment. See Ex. I. Ms. Kohn also apparently stated:
Jay took us home, Jay and Sarah and me and Will were in the car. Willie and
Trish went on up to bed, we took Sarah home first and dropped Will off and then
we went back to my house and dropped me off and we didn’t hear from them the
rest of the night. And then the next morning Will called me and told me he’d
(unintelligible) to the house and that Jay picked up Allen that morning and Jay
came back (unintelligible) and Allen never came back (unintelligible) …. this
week.
Id. at 5 (emphasis added).
15.

On February 26, 2000, it was reported that as of the day before “detectives had

not determined where Baker was killed,” and a spokesperson for the MCSO stated “I’m not sure
exactly where” Baker was killed. See Ex. B ¶ 9 (citing Rule 32 Ex. 130).
16.

On February 28, 2000, the MCSO obtained a search warrant to search Jay

Bennett’s 1988 Honda Prelude on the grounds that it “was a means for committing the felony of:
Murder, Alabama Criminal Code 13A-6-2,” and indicating the property to be searched as “[a]
golf club, blood stains, a knife, and any items that may have the victims, or other involved
parties blood on them.” 1/15/15 Hearing Ex. C (attached and hereafter Ex. K).
17.

Records of the MCSO indicate that a search was conducted on February 28, 2000

beginning at 1:29 p.m., (see Rule 32 Ex. 131 (attached and hereafter Ex. L)), and completed at
1:49 p.m., some 20 minutes later (see Ex. K). None of these records indicate that the MCSO
conducted any forensic or similar search during the 20-minute period.
18.

On March 16, 2000, a preliminary hearing was held for Mr. Ziegler, Mr. Bennett,

Mr. Randall, and Ms. Davis. During that hearing, in response to questioning from Donald
Friedlander, an attorney who attended the hearing as a friend of the Ziegler family, Detective
Donald Lunceford testified:
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Q.
Is his [Ziegler’s] statement recorded?
A.
Yes, sir.
Q.
So everything that you and he talked about, everything, would be on that
tape; is that right?
A.
During his taped interview, yes, sir.
Q.
Tell us what happened when he wasn’t on the tape. What was discussed
between you and him?
A.
The same thing that’s on the tape, Mr. Friedlander.
Q.
Well, is there any reason you did not tape it the first time you talked about
it?
A.
That’s my way of investigating. I go and talk to an individual prior to
taking a taped statement so that we can get the facts right the first time.
Q.
Facts right as far as you’re concerned, right? Is that right, sir?
A.
The facts right as far as what they told me happened.
Q.
How many different times did you talk to him about his story, his
rendition of what occurred, before you decided that you had the facts right so you
could tape it?
MS. MURPHREE: Object, Your Honor.
THE COURT:
I think that’s a proper question.
MS. MURPHREE: I’m sorry. I didn’t hear you.
Q.
How many times, Mr. Lunsford [sic]?
A.
How many times?
Q.
Yes.
A.
We probably went over the story at least once or twice.
Q.
At least once or twice, maybe more?
A.
No, sir, twice.
Q.
Okay. And was anyone else present besides you and him?
A.
Not at that time, no, sir.
Q.
So those two statements before you decided to tape record him, you and he
were the only ones present; is that correct?
A.
Yes, sir.
Ex. M at 39:13-40:25. Detective Lunceford also later admitted that he had engaged in multiple
unreported interrogations of the other Defendants and witnesses. See id. at 45:5-46:3.
19.

On August 3, 2000, Deborah Tillman, the Assistant District Attorney who

ultimately prosecuted Mr. Ziegler at his first trial, was publicly quoted as stating “[i]n this case,
there are no criteria under the facts as we have them that could establish capital murder.” See
Ex. B ¶ 15 (citing Rule 32 Ex. 181).

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20.

On September 22, 2000, a Grand Jury returned an indictment charging Mr.

Ziegler, Mr. Bennett, Mr. Randall, and Ms. Davis with one count of capital murder. See Ex. B. ¶
17 (citing Rule 32 Ex. 722).
21.

On September 22, 2000, the Honorable Robert G. Kendall entered an open file

order in connection with the prosecutions of Mr. Ziegler, Mr. Bennett, Mr. Randall, and Ms.
Davis that required the District Attorney to “produce or make available” to the defense, among
other things:
(b)
All statements of the Defendant which are reduced to writing;
(c)
All statements of the Defendant which are electronically recorded or
taped, and any transcripts hereof;
(d)
The substance of any oral statements made by the Defendant which are not
included within (b) and (c) hereof or if the District Attorney knows of any
statements or spontaneous remarks made while the Defendant is in the custody of
the police or during the investigation;
(e)
Any and all evidence tending to exculpate the guilty [sic] of the
Defendant;
(f)
The results of any scientific or expert tests, experiments, or examinations
to be used by the Prosecution at trial;
(g)
All physical evidence or documentary evidence which the Prosecution will
offer into evidence in its case in chief, including any search warrant and search
affidavits upon which the Prosecution will rely on its case in chief;
(h)
All physical evidence or documentary evidence seized from the Defendant
by law enforcement officers, whether or not the same will be offered into
evidence at trial;
Rule 32 Ex. 190 at 1 (attached and hereafter Ex. N). The Order also provided:
2.
In all instances where physical or documentary evidence, tape recordings,
and the like are to be inspected, examined or copied by the Defense Counsel, the
parties shall ensure that such procedures are used as will safeguard and maintain
the integrity of said evidence.
3.
The District Attorney is under an obligation to disclose to Defense
Counsel any evidence subject to this Order which he subsequently discovers to
exist, and to do so within a reasonable time after its existence is discovered.
Id. at 2.
22.

On October 30, 2000, Mr. Ziegler was arraigned on the charge of capital murder

before Judge Kendall.
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23.

On November 13, 2000, Mr. Ziegler’s prior defense counsel filed a “Motion for

Discovery of Prosecution Records and Files Necessary to a Fair Trial.” Rule 32 Ex. 220
(attached and hereafter Ex. O). Among other things, the motion sought:
•
“each document relating to any communications or statements (written or oral);
memoranda, summaries or audio or video recordings of such communications or
statements . . . made to any person by any and all persons,” that related to Mr. Baker’s
death or the investigation of Mr. Baker’s death;
•
“any documents in the state’s possession or available to the state that are
exculpatory or favorable to William John Ziegler on the issue of guilt or punishment
regarding any element of the offense of capital murder related to the death of the victim,
including but not limited to: (a) favorable or exculpatory evidence provided by or
relating to any of the prosecutions [sic] witnesses. . . .”
•
“all physical or documentary evidence, including diagrams, sketches, books,
papers, documents, photographs, illustrations or tangible objects in the possession of the
prosecution, law enforcement personnel, or a prosecution witness that relate to this case
or William John Ziegler in any way;”
Id. at 6-9.
24.

On the same day, November 13, 2000, Mr. Ziegler’s prior defense counsel filed a

“Motion to Inspect, Examine, and Test All Physical Evidence.” Rule 32 Ex. 227 (attached and
hereafter Ex. P). Among other things, the motion sought:
•
“all clothing taken as evidence in the course of investigating the murder of the
victim, including, but not limited to, the clothing taken from William John Ziegler, and
any other person;”
•
“all physical evidence seized during any search incident to the investigation in
this case;”
•
“all other physical evidence taken by the state that relates in any way to the
investigation of the murder of the victim . . . .”
Id. at 4-5.

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25.

On December 14, 2000, the MCSO took possession of an item labeled as

“Clothes.” 4 1/15/15 Hearing Ex. E at 4 (attached and hereafter Ex. Q). The following day,
December 15, 2000, Mobile County District Attorney’s Office took possession of the “Clothes,”
presumably to make them available to Mr. Ziegler’s prior defense counsel. On the same day, the
Mobile County District Attorney’s Office also took possession of a “Bag” and “Club.” See id. at
3.
26.

During a hearing held on December 14, 2000, Judge Kendall granted Mr.

Ziegler’s motion for inspection of physical materials and his motion for discovery of prosecution
records. See Rule 32 Ex. 262 at 8:20-12:12 (attached and hereafter Ex. S).
27.

On or about February 6, 2001, a month before Mr. Ziegler’s initial trial, ADA

Tillman received a fax from Deborah McGowin, Patricia Davis’s attorney, stating:
Trish [Davis] remembered something that was told to her about a bag of clothes
marked evidence in a White Honda that was Jay’s [Bennett’s] that was repoed.
Greg told Mack. Don’t know if this is important. Please call for additional.
1/15/15 Hearing Ex. G at 2 (attached and hereafter Ex. T) (emphasis in original).
28.

Mr. Ziegler’s initial trial began on March 6, 2001. During that trial, the State

contended that Mr. Ziegler killed Mr. Baker by stabbing him repeatedly, including in the chest
area, and cutting his throat in the woods where Mr. Baker’s body was recovered. The State
offered no physical or scientific evidence that connected Mr. Ziegler with Mr. Baker’s death.
Instead, the State’s case was based almost entirely upon the testimony of purported witnesses,
most specifically William Randall.

4

Mr. Ziegler reasonably believes that the MCSO took possession of these items from the Alabama Department of
Forensic Sciences (“ADFS”). A chain of custody form from the ADFS produced by the State indicates that the
MCSO took possession of “Clothes” on December 14, 2000. See STATE 0011898 (attached and hereafter Ex. R).

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29.

Mr. Randall was the only prosecution witness to offer any supposed first-hand

testimony that identified Mr. Ziegler as Mr. Baker’s killer. See 2001 Trial Tr. at 512:8-515:17
(Rule 32 Exhibit 344, excerpts attached and hereafter Ex. U). The State also called Sarah Myers,
(Ex. U. at 226:9-284:8), Dawn Kohn (Ex. U. at 294:9-354:12), 5 and Patricia Davis (Ex. U at
379:17-432:8) to testify against Mr. Ziegler.
30.

During Mr. Ziegler’s trial, the District Attorney’s Office had possession of the

clothing recovered on Mr. Baker’s body, in particular a shirt, pants, and shoes. See Ex. Q. The
clothing was never introduced into evidence during Mr. Ziegler’s initial trial.
31.

On March 8, 2001, the jury convicted Mr. Ziegler of one count of capital murder

and on March 9, 2001 the jury returned a recommendation of death by an 11 to 1 vote. 6
32.

On June 14, 2001, Judge Kendall sentenced Mr. Ziegler to death.

33.

On February 10, 2005, Mr. Ziegler, proceeding pro se, timely filed a Petition for

Relief from Judgment Pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. His
Rule 32 petition was ultimately amended four times.
34.

On November 1, 2007, this Court signed Discovery Order No. 1, which required

the production of certain documents regarding the claims in the Rule 32 Proceeding that the State
conceded would be the subject of an evidentiary hearing.
35.

On September 4, 2009, this Court granted in part, and denied in part, the State’s

Motion for Partial Dismissal of the then-operative Third Amended Rule 32 Petition.

5

During her trial testimony, Ms. Kohn claimed that Mr. Bennett and Mr. Randall had dropped her off and left
together, (Ex. U. at 335), contrary to the assertion in her statement that Mr. Bennett had dropped off Ms. Myers, then
Mr. Randall and then returned to drop Ms. Kohn off. See Ex. I at 5.

6

As detailed in this Court’s order granting Mr. Ziegler’s Rule 32 Petition, Mr. Ziegler suffered substantial violations
of his constitutional rights to a fair trial that rendered the jury’s verdict in the first trial suspect and unworthy of
confidence.

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36.

On December 17, 2009, this Court signed Discovery Order No. 2, which required

the production of certain documents and materials regarding the claims proceeding to an
evidentiary hearing.
37.

On May 13, 2010, this Court held a status conference, at which time a

representative of the Mobile County Sheriff’s Office, Mr. Craig Dahle, appeared. At that
conference, Mr. Dahle confirmed that the MCSO had never received a return of certain evidence
provided to the Mobile County District Attorney’s Office in 2000 and 2001, including the
“Clothes,” “Bag,” and audio tapes of the various statements taken during the MCSO’s
investigation. See 5/13/10 Hearing Tr. at 7:10-21, 9:23-10:4, 12:4-10 (attached and hereafter Ex.
V). 7
38.

This Court held an evidentiary hearing on Mr. Ziegler’s Fourth Amended Rule 32

Petition on July 26-30, 2010. During the hearing, Mr. Ziegler called twenty-four witnesses to
testify, and this Court admitted 690 exhibits.
39.

Among other things, substantial evidence at the hearing indicated that Mr. Baker

was not killed in the manner or at the time claimed by the State at trial. This included evidence
that was available to Mr. Ziegler’s prior defense counsel, including witnesses from law
enforcement, as well as exculpatory evidence suppressed by the State during Mr. Ziegler’s initial
trial proceedings.
40.

Mr. Ziegler called Dr. Leroy Riddick, the State Medical Examiner for the

Alabama Department of Forensic Sciences at the time of Mr. Ziegler’s initial trial, to testify at
the Rule 32 Hearing. Among other things, Dr. Riddick testified that he personally observed Mr.
Baker’s body in the woods and, based primarily upon the lack of blood at the scene, it was his
7

The transcript of the May 13, 2010 status conference, attached as Ex. V, is misdated April 15, 2010.

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expert opinion that Mr. Baker “was not killed there.” Rule 32 Tr. at 424-26 (excerpts attached
and hereafter Ex. W). In addition, in response to questioning from the Court, Dr. Riddick
testified concerning the importance of evidence concerning inconsistencies that could be found
in his autopsy report, stating:
I indicated [in the autopsy] that he [Baker] had his shirt on and somewhere - - I
didn’t look at it - - but two things exist. There should have been a detailed report
of the shirt. I indicate there was a cut on the neck but the shirt should have been
in shreds.
If you look at all the body diagram, the shirt should have been in shreds which
indicated that somebody either pulled the shirt up when this was going on and
there’s only one tear noted on the neck.
Id. at 468-69.
41.

Similarly, Mr. Ziegler called Detective William Gaut, an expert witness in a

number of areas, including crime scene investigation, forensic evaluation and police procedures.
Detective Gaut, who has approximately 30 years experience in law enforcement, 8 testified that it
was his expert opinion that Mr. Baker was not killed in the woods where his body was recovered,
but that the body instead was dumped in that location. Detective Gaut explained that the
clothing on Mr. Baker’s body was relevant to a determination of whether or not Mr. Baker was
killed in the woods:
Q.
Again, the significance of the surrounding blood or blood spatter that
you’re looking for, why is it that you would expect to see that type of evidence
given the nature of the wounds to the body and to the neck?
A.
Well, it’s alleged to be an active, very violent crime. As I say, with a
number of incised stab wounds, you should see blood spatter. You should see the
area around it. You should see blood on the various leaves and so forth. You
should see holes in the shirt. And when you don’t see those, again, it’s indicative
that, number one, the shirt was not on the victim at the time the victim received
8

Detective Gaut served with the Birmingham Police Department for approximately 25 years, ultimately retiring as
the Captain Commander of the Detective Division and the Director of Special Services Unit of the Jefferson County
District Attorney’s Office. Detective Gaut’s primary experience was in the investigation of homicides, having
participated in approximately 250 murder investigations and having been trained as a level 3 certified medical
forensic investigator.

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the postmortem stab wounds, and it’s also now much more credible that this is
likely a dump site as opposed to an active site.
Q.
Well, in your review of the materials from the case file, did you see any
evidence or information suggesting that the victim did not have a shirt on at the
time that the wounds allegedly were inflicted?
A.
No, I saw no evidence that the victim was not clothed.
Q.
Did you see any evidence that the victim, at the time, that the wounds
were inflicted had somehow had the shirt pulled up so that the wounds would be
made without causing similar tears to the shirt?
A.
No, I didn’t see any evidence suggesting that.
Q.
Did you review any analysis of the shirt itself in any of the forensic
materials or anything in the record?
A.
No, I wanted to do that but, apparently, nobody thought to look at the shirt
or if they did, they didn’t document the examination of the shirt.
Q.
You will recall, Dr. Riddick’s report indicated that at least the neck area of
the victim’s shirt there was a tear that was close to the area of the neck wound; is
that right? Do you recall that?
A.
That’s correct.
Q.
Do you recall any other references in any of the other reports to tears in
the shirt corresponding to any other wounds that were inflicted in the torso or the
chest or any other areas?
A.
No, I didn’t see any of that. Other than what I now know, Dr. Riddick
also had the same questions that I did.
Id. at 891:2-892:18; see also id. at 950-51 (testifying there was no evidence regarding the
movement of the shirt).
42.

On October 29, 2012, this Court granted Mr. Ziegler’s Rule 32 petition to vacate

his conviction and sentence on numerous grounds. The Court issued an amended order on
November 2, 2012 (the “Amended Order”) (Ex. B).
43.

In the Amended Order, this Court noted that the importance of the clothing from

Mr. Baker’s body to an adequate defense in a number of areas. For instance, the Court found
that a defense pathologist could have assisted a defense based upon, among other things, “the
lack of visible cutting on Baker’s shirt was inconsistent with him having been killed at the scene
because, in light of the number of wounds, the ‘shirt should have been in shreds.’” Ex. B ¶ 123.
Similarly, the Court quoted Detective Gaut’s testimony regarding the fact that that lack of
observable holes in the shirt contradicted the State’s theory of the crime. Id. ¶ 146.
14

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44.

This Court found that this evidence, in combination with other evidence

indicating that Mr. Baker was not killed in the woods “would have been extremely powerful and
clearly could have led to a different result in Ziegler’s trial. . . . [E]vidence that refuted the
State’s theory that Baker was killed in the woods by Ziegler would have undercut and destroyed
the whole premise upon which the State’s theory of the crime rested.” Id. ¶ 124. The Court also
found that “evidence that supported a defense that Baker had not been killed in the woods would
have been beneficial to the defense as it would have rebutted the central premise of the State’s
case against Ziegler and could have allowed a reasonable jury to find that the prosecution had
failed to prove that Ziegler was involved in Baker’s death.” Id. ¶ 332. 9
45.

In the Amended Order, this Court also discussed the affidavit for the search of

Mr. Bennett’s car, noting that “[u]nder Alabama law, the Sheriff’s Office must have obtained
evidence giving it probable cause to believe that Bennett’s car was utilized in connection with
Baker’s death.” Id. ¶ 52. The Court went on to find that evidence concerning the possibility that
Bennett’s car was utilized in connection with Mr. Baker’s death was material, holding:
[T]he Sheriff’s Department ultimately searched Bennett’s car on the grounds that
it “was a means of committing” Baker’s murder. . . . Under Alabama law, the
warrant for Bennett’s car could not have been obtained without an affidavit
detailing the facts that gave the Sheriff’s Office probable cause to believe that
evidence of, or evidence relating to, Baker’s murder would be located in
Bennett’s car. See Ala. Code § 15-5-3. Accordingly, in order to have obtained
the warrant, the Sheriff’s Office must have been in possession of facts
establishing probable cause that Bennett’s car “was a means of committing”
Baker’s murder.
* * *
9

See also ¶ 336 (“[b]y merely questioning Dr. Riddick about the conclusions throughout his autopsy . . . trial
counsel could have discovered that the State’s theory of the crime had significant flaws that could have been utilized
to exculpate Ziegler”); ¶ 338 (“there was ample and powerful evidence indicating significant doubt whether or not
Baker had been killed in the woods as the State had claimed”); ¶ 339 (“Had the State’s own expert [Dr. Riddick]
informed the jury that Baker was not killed at the scene, there is clearly a reasonable probability that the jury would
have reached a different result in Ziegler’s trial.”); ¶ 341 (“Had the jury been provided with the evidence indicating
that Baker may not have been killed in the woods . . . there is a reasonable probability that Ziegler would have been
found not guilty of the murder of Baker.”).

15

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Unfortunately, the Court cannot know precisely what information was included in
the affidavit to enable the Sheriff’s Office to search Bennett’s automobile.
Nevertheless, the Court finds that the information would have been favorable to
Ziegler’s defense. As noted, the warrant indicated that Bennett’s car “was a
means of committing” Baker’s murder, clearly indicating that the Sheriff’s Office
had reasonable information that provided them with probable cause to believe that
Baker had been killed or transported in Bennett’s car. In light of the State’s
theory at Ziegler’s trial that Baker was killed in the woods and then left there for
four days, evidence that Baker was killed or transported in Bennett’s car would
have been inconsistent and contrary to that theory. Accordingly, the evidence
establishes that the State must have had information indicating that Baker may
have been killed in a manner that was different from the State’s theory at trial.
***
This Court holds that the suppression by the State of the multiple pieces of
evidence indicating that Bennett’s car may have been utilized in Baker’s murder
violated Brady. Having observed the witnesses and reviewed the evidence, this
Court has no doubt that evidence indicating that the police reasonably believed
that Bennett’s car had been utilized in Baker’s murder, particularly when
combined with the physical evidence and witness testimony of Bennett’s attempts
to clean his car, could have convinced a reasonable jury to conclude that Baker
was not killed in the manner alleged by the State at Ziegler’s trial.
Id. ¶¶ 293, 295, 301.
46.

Furthermore, in connection with discussing the original defense counsel’s failure

to investigate the actions of Mr. Bennett, see id. ¶¶ 155-167, the Court noted the State’s failure to
produce the tape recordings of statements taken by the MCSO. See id. ¶ 160 n.18. Specifically,
in discussing substantial inconsistencies between the statements of Bennett, Randall and Davis
regarding who left Mr. Ziegler’s apartment in Mr. Bennett’s car and when, the Court noted it was
“unable to determine whether Randall’s reference to ‘(unintelligible) dropped me off’ referred to
Bennett since neither the Mobile County District Attorney’s Office or the Mobile County
Sheriff’s Office were able to produce the tape-recorded statements of anyone other than Ziegler,
despite repeated requests from Ziegler’s counsel, this Court and the State.” Id.
47.

On May 2, 2014, the Alabama Court of Criminal Appeals unanimously affirmed

this Court’s decision in the Amended Order granting Mr. Ziegler a new trial.

16

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48.

On July 11, 2014, the Alabama Court of Criminal Appeals denied the State’s

Petition for Rehearing. On July 30, 2014, the Alabama Court of Criminal Appeals entered
judgment, making the Court of Criminal Appeals’ affirmance of this Court’s Amended Order for
a new trial final.
49.

On September 16, 2014, Mr. Ziegler filed Defendant’s Motion for Discovery of

Institutional, Investigatory, and Prosecution Files, Records, and Information Necessary to a Fair
Trial (the “Discovery Motion”).
50.

On September 18, 2014, this Court held a status conference. At that time, both

the Mobile County District Attorney’s Office and the Alabama Office of Attorney General
appeared on behalf of the State. At the September 18, 2014 conference, in response to
questioning from this Court, the State indicated it was not prepared to announce what charges it
may bring against Mr. Ziegler on re-trial. Accordingly, the Court set a renewed status
conference for November 20, 2014 and directed that the State announce what charges it would
pursue at that time.
51.

On November 20, 2014, the Court held the renewed status conference. At this

time, the State was represented solely by the Alabama Office of Attorney General and
announced that it would charge Mr. Ziegler with capital murder and seek the death penalty. At
the November 20, 2014 conference, the Court announced that it was granting the Discovery
Motion, directed the State to produce all documents and materials responsive to the Discovery
Motion by January 15, 2015, and set a renewed status conference for that date.
52.

On January 2, 2015, the State filed a Subpoena Request Form seeking the

issuance of subpoenas to Sgt. James Riddick, Sgt. David Phillips, Lawrence Battiste, Tom Stiles,
JoBeth Murphree, and Deborah Tillman to offer testimony at the January 15, 2015 conference.

17

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On January 6, 2015, the State filed a subsequent Subpoena Request Form seeking the issuance of
a subpoena to Donald Lunceford to offer testimony at the January 15, 2015 conference.
53.

On January 7, 2015, this Court entered the Order Granting Defendant’s Motion

for Discovery of Institutional, Investigatory, and Prosecution Files, Records, and Information
Necessary to a Fair Trial (the “Discovery Order”).
54.

On January 15, 2015, the parties appeared at the status conference previously

ordered by this Court. At that hearing, the State identified a number of pieces of evidence that it
was unable to produce in response to the Discovery Order. First, the State acknowledged “[w]e
don’t have . . . the affidavit for the search warrant” for Mr. Bennett’s car. 10 Ex. A at 8:10-22.
Second, the State was “unable to find the recorded statements” of any witness other than Mr.
Ziegler, after having “searched through the DA’s office files [and] the sheriff’s department
files.” Id. at 11:11-12:5. Third, the State could not locate any record of the BOLO made by the
MCSO to the Bayou La Batre Sheriff’s Department prior to the discovery of Mr. Baker’s body.
Id. 12:5-20; see also Ex. B ¶ 51 (noting that Chief Joyner of the Bayou La Batre Police
Department testified at the Rule 32 hearing that the Bayou La Batre Police Department’s radio
logs were destroyed during Hurricane Katrina).
55.

Next, the State acknowledged “we have not been able to locate the clothing of the

victim.” Ex. A at 12:21-22. In so doing, the State acknowledged that the clothing had been in
the possession of the Mobile County District Attorney’s Office at the time of Mr. Ziegler’s trial
but was now lost, stating:

10

The State also acknowledged that it could not find a copy of the actual warrant itself in the possession of the
MSCO, Mobile County District Attorney’s Office or any other file attributable to the State, but could only produce a
copy of the warrant previously admitted into evidence by Mr. Ziegler during the Rule 32 Hearing. See id. at 9:2110:8.

18

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We do have the state’s witness list where during the trial they had the clothing at
the trial, but they did not introduce them and no one knows what happened to
them after the trial, but they were brought to the trial and they were listed on the
State’s Exhibit List, but they were never introduced or admitted in the trial. So
from that point on no one knows what happened to them.
Id. 13:10-17. Finally, the State also acknowledged that the Mobile County District Attorney’s
Office had taken possession of “a bag which came from the sheriff’s department” in December
of 2000, but “[t]here was no inventory of what was in the bag, so we don’t know what was in the
bag. So we don’t have the bag or what was in it.” Id. 13:2-6. 11
56.

Further, at the January 15, 2015 hearing, the State called Sgt. Riddick, Sgt.

Phillips, Mr. Battiste, Mr. Stiles, Ms. Murphree and Ms. Tillman to testify regarding evidence
and materials that were required to have been produced pursuant to the Discovery Order but had
not been located. 12
57.

In summary, at the January 15, 2015 hearing, Sgt. Phillips and Mr. Battiste

offered testimony regarding, among other things, the State’s failure to locate or produce the
affidavit for Mr. Bennett’s car. 13 Mr. Stiles, Ms. Murphree, and Ms. Tillman testified
concerning the transfer of the “Bag” and “Clothes” from the MCSO to the Mobile County
District Attorney’s Office in 2000, the subsequent failure to locate those materials, and the fact

11

In addition, the State acknowledged that it was unable to locate any records regarding an interview of Vickie
Bosarge and her son Ricky Melton prior to Mr. Ziegler’s initial trial. See id. 10:11-11:5. Mr. Ziegler does not seek
relief based upon this lost or destroyed evidence at this time based upon the State’s prior representation that they
would not seek to call Vickie Bosarge to testify that Mr. Ziegler supposedly threatened Mr. Baker. See 11/20/14
Conf. Tr. at 40:18-19 (attached and hereafter Ex. X) (“And going back to Ms. Vicki Bosarge, the State won’t use
her.”). However, Mr. Ziegler reserves his right to seek relief based upon this additional piece of lost or destroyed
evidence to the extent that Mr. Ziegler seeks to call Ms. Bosarge or Mr. Melton as witnesses on a re-trial or to the
extent that the State were to try to claim that Mr. Ziegler supposedly threatened Mr. Baker at the Bosarge home.
12

Mr. Lunceford did not appear or offer testimony at the January 15, 2015 hearing.

13

Sgt. Phillips also admitted, among other things, that the MCSO could find no photographs of Mr. Bennett’s car
other than an “index print” of photographs taken from the outside of the car. See Ex. A at 26:3-28:1. Sgt. Phillips
also admitted that he could find no record of the MCSO having taken any photographs of the inside of Mr. Bennett’s
car. See id. 29:25-31:9.

19

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that the Mobile County District Attorney’s Office was unable to locate the tape recordings of
anyone other than Mr. Ziegler. Sgt. Riddick testified concerning the MCSO’s inability to find a
record of a BOLO issued in 2000 to the Bayou La Batre Police Department “to be on the lookout
for” Mr. Bennett’s or his wife’s car. 14
58.

As to the missing search warrant affidavit, Mr. Battiste testified:

Q.
Would it be standard operating procedure for you as a crime scene
investigator or a criminal investigator to complete an affidavit showing probable
cause?
A.
Every search warrant that I’ve ever done, I’ve always done an affidavit to
request a search warrant to file with the search warrant at the time I made the
request for the search warrant.
Q.
So there was a search warrant -- I mean, an affidavit at the time that you
procured the search warrant?
A.
My standard practice was to do an affidavit to request a search warrant,
yes, ma’am.
Q.
Now, do you recall what evidence provided the probable cause for your
search of the vehicle?
A.
At this time I do not.
Q.
If I show you the search warrant, do you think that would jog your
memory as to what you were looking for -A.
Are you talking about in reference to the residence or -Q.
I’m sorry, in reference to the Honda Prelude?
A.
As it relates to the vehicle, I do not recall what the content of the affidavit
would have to been to request a search warrant for the vehicle.
Q.
Would looking at your search warrant maybe refresh your memory or
maybe bring something to mind?
A.
I could look -- from reading the report, the only thing that I could think
that I probably would have been looking for as it relates to the vehicle would be
any additional evidence that may have supported such as weapons or blood
evidence that may have been -- from information that we may have received
while we were conducting interviews that would have indicated that maybe the
body had been transported in the vehicle or some of the weapons that may have
been used in the commission of the crime may have been possibly located in the
vehicle.

14

During the Rule 32 Hearing, Chief Jonathan Joyner of the Bayou La Batre Police Department testified that the
MCSO had issued a BOLO for the car of Rose Johnson (Mr. Bennett’s wife) “and to see if Allen Baker was in that
vehicle.” Ex. B ¶ 51. Chief Joyner testified that BOLO was issued prior to the discovery of Mr. Baker’s body in the
woods. Id. Mr. Ziegler does not seek relief at this time regarding the failure of the State to produce the BOLO
although he reserves his right to do so in the future.

20

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Ex. A at 37:21-39:8; see also id. at 47:9-48:11. Later, in response to a question as to whether he
had any recollection of why the MCSO was looking for blood in Mr. Bennett’s car, Mr. Battiste
testified that he believed the search would have been conducted only “if you get any information
that maybe the vehicle may have been used in transport or somebody might have been in there
you know --.” Id. 49:22-50:2.
59.

As to the missing clothing and the “Bag” and its contents, Ms. Tillman

acknowledged that those items were brought to the District Attorney’s Office in December 2000.
See id. at 72:13-75:10. Ms. Tillman had no recollection of what was contained in the “Bag” and
further acknowledged that the missing clothing was brought to Mr. Ziegler’s initial trial but not
introduced into evidence. See id. 74:22-77:11. However, Ms. Tillman could not explain what
happened to the clothes following the completion of Mr. Ziegler’s initial trial, stating:
Q.
After the trial, do you know what happened to the shirt, the shoes, and the
pants?
A.
Because we didn’t use it into evidence, we didn’t introduce it into
evidence, it would have gone back to our floor with us to the DA’s office. And I
would have -- it would have been placed back into the evidence room and I would
have asked -- it would be my normal practice to ask the investigative agency to
take whatever evidence we didn’t use and return it to them.
Q.
Can you tell the Court if that is what actually happened, that the evidence
was returned to the DA’s office and then someone from the sheriff’s office took
possession of it? Can you represent that?
A.
No, I cannot tell the Court that I remember doing that, no. But I can tell
you that that would have been my normal practice. I mean, I don’t remember
taking any of the stuff, you know, back up there.
Q.
Is the shirt, the pants, and the shoes in the District Attorney’s Office
evidence room?
A.
Not today, no.
Q.
How do you know that?
A.
I have looked for it.
Q.
Have you conducted an independent search of your evidence room to find
these items pursuant to a request from the Attorney General’s Office?
A.
Yes.
Q.
Did you, in fact, conduct a search?
A.
I did. I looked for it on December the 17th. I looked for it on December
the 19th, the Friday before Christmas and I looked again, not in our evidence

21

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room, but I looked on January the 5th with Tom Styles in the clerk’s office to see
if there was anything was up there. On the 19th I spent a significant amount of
time with our chief investigator, Mike Morgan and Nancy McConnell going
through our evidence room, everything we could find to see if we could locate
those clothes.
Q.
And did you locate the clothes?
A.
We did not.
Id. at 77:12-79:2; see also id. at 81:20-82:4. Ms. Tillman further acknowledged that the District
Attorney’s Office could not locate the missing “Bag” or its contents. See id. at 79:3-12, 81:2082:4. In addition, Ms. Tillman acknowledged that the District Attorney’s Office could not locate
the missing search warrant affidavit or the tapes of the interrogations of anyone other than Mr.
Ziegler. See id. 80:25-81:19, 85:23-86:9.
60.

Ms. Murphree also testified that she did not know what had become of the

missing clothing, the “Bag” or its contents, the search warrant affidavit, or the tapes of the
interrogations. See id. at 95:20-96:25. In addition, Ms. Murphree also testified that evidence in
the possession of the District Attorney’s Office would be kept in their “evidence room,” but
testified that she was unaware of whether the District Attorney’s Office logged or kept track of
who entered the “evidence room.” See id. at 97:11-98:18 (“I know there’s a log in there, but I
know. I don’t fill it out and I don’t sign anything and I don’t keep up with the checking in and
checking out of the evidence. The investigators do.”). 15
61.

At the conclusion of the January 15, 2015 hearing, this Court set another status

conference for March 19, 2015 at 1:30 p.m.
STANDARD OF REVIEW
62.

Case law makes clear that a violation of a defendant’s constitutional right to due

process may arise where the State fails to preserve or retain evidence. See, e.g., Ex parte Gingo,
15

The State has never produced any log from the evidence room regarding these missing items of evidence or any of
the evidence related to Mr. Ziegler’s case.

22

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605 So. 2d 1237, 1240-41 (Ala. 1992). While a defendant must demonstrate bad faith on the part
of the State in order to obtain relief where the evidence in question is merely “potentially
useful,” see Arizona v. Youngblood, 488 U.S. 51, 58 (1988), the Alabama Supreme Court has
expressly held that “‘there may well be cases in which the defendant is unable to prove that the
State acted in bad faith but in which the loss or destruction of evidence is nonetheless so critical
to the defense as to make a criminal trial fundamentally unfair.’” Gingo, 605 So. 2d at 1241
(quoting Youngblood, 488 U.S. at 61 (Stevens, J., concurring in the result)).
63.

In Gurley v. State, 639 So. 2d 557 (Ala. Crim. App. 1993), the Court of Criminal

Appeals analyzed the Alabama Supreme Court’s decision in Gingo and determined that the court
adopted a “three-part analysis - which weighs culpability, materiality and prejudice” in order “to
determine whether the State’s loss or destruction of evidence constitutes a due process violation
in any given case.” Gurley, 639 So. 2d at 567. The Court also held “that that balance will
necessarily be drawn differently in every case because ‘fundamental fairness, as an element of
due process, requires the State’s failure to preserve evidence that could be favorable to the
defendant ‘[t]o be evaluated in the context of the entire record.’” Id. (quoting Hammond v.
State, 569 A.2d 81, 87 (Del. 1989) in turn quoting United States v. Agurs, 427 U.S. 97, 112
(1976))) (emphasis in original).
64.

Thus, in order to determine whether Mr. Ziegler’s due process rights have been

violated by the State’s admitted failure to preserve evidence, the Court must weigh (1) “the
culpability of the State for the loss of the evidence,” (2) “the materiality of the lost evidence,”
and (3) “the prejudice to the accused.” Gurley, 639 So. at 567-68. Once a due process violation
is established, the Court is empowered with the discretion to issue whatever order or orders are
necessary and available to ensure fairness to the defendant. See Gurley, 639 So. 2d at 569; see

23

 DOCUMENT 84

also Ala. R. Crim. P. 16.5 (stating if a party has failed to comply with an order for discovery,
among other things, “the court may . . . enter such other order as the court deems just under the
circumstances”); Gingo, 605 So. 2d at 1240 (finding the Circuit Court correctly found a due
process violation “under the facts of this case”).
65.

When evaluated “in the context of the entire record,” as it must be under the

governing law, the State’s admitted loss or destruction of multiple pieces of highly material and
exculpatory evidence here has violated Mr. Ziegler’s due process rights and requires relief. 16
I.

MR. ZIEGLER WOULD BE PREJUDICED IF FORCED TO GO TO TRIAL FOR
HIS LIFE WITHOUT THE MISSING EVIDENCE
66.

As the Court is aware, one of the central premises of Mr. Ziegler’s defense is that

the murder of Mr. Baker did not occur at the location or at the time claimed by the State. The
State claimed at Mr. Ziegler’s first trial that Mr. Baker was killed around midnight on February
19, 2000 in the wooded areas where his body was recovered four days later. See Ex. B ¶¶ 50, 85.
During the proceedings before this Court on re-trial, the State has acknowledged that it intends to
pursue this same theory of the crime again. See Ex. X at 27-37.
67.

As was true during the Rule 32 Hearing, Mr. Ziegler intends to defend against

these charges by demonstrating that the evidence rebuts the State’s discredited theory of the
crime and indicates that the crime was not committed by Mr. Ziegler. In particular, the scientific
evidence, as previously testified to by Dr. Riddick, Dr. Haskell and Detective Gaut, indicates that
Mr. Baker was not killed in the woods where his body was discovered and that the body was,
instead, dumped there after Mr. Baker was killed elsewhere. 17 See Ex. B ¶¶ 98, 120-148.
16

As was done in Gurley, Mr. Ziegler has addressed the factors in reverse order. See 639 So. 2d at 568.

17

In addition to the scientific evidence offered by these witnesses, at the Rule 32 Hearing, Mr. Ziegler also offered
testimony from Chief James Mayo. Chief Mayo, who was the Deputy Chief of the MCSO at the relevant time and
who was one of the first persons at the scene where Mr. Baker’s body was found, testified regarding his opinion that
Mr. Baker was not killed in the woods where his body was found. Ex. B ¶¶ 104-05.

24

 DOCUMENT 84

Additional scientific evidence, as previously testified to by Dr. Riddick and reflected in the
records of the Alabama Department of Forensic Sciences, indicates that Mr. Baker was unlikely
to have been killed at the time claimed by the State, largely confirmed by the lack of any alcohol
found in Mr. Baker’s blood. See id. ¶¶ 98-101. Additionally, Mr. Ziegler intends to introduce
evidence that Mr. Baker was, in fact, transported in Mr. Bennett’s car after the time when the
State claims the murder occurred, which, as this Court has previously found, is completely
inconsistent with the State’s theory of the crime. See id. ¶¶ 50, 291-95, 301.
68.

The three specific lost items of evidence discussed in this motion – (1) the

missing clothing from Mr. Baker’s body, (2) the missing probable cause affidavit for the search
of Mr. Bennett’s car, and (3) the missing audiotapes of statements from any witness other than
Mr. Ziegler – would all be relevant to this defense and strongly support Mr. Ziegler’s defense
theory. Accordingly, the State’s failure to retain this vitally important evidence has already
prejudiced Mr. Ziegler and his ability to obtain a fair trial.
A.

The Clothing from Mr. Baker’s Body Would Have Supported the Defense
Theory that Mr. Baker Was Not Killed in the Manner Claimed by the State

69.

Courts have found due process violations where, as here, the State has lost the

clothing of the victim and such clothing would have supported the defense. See, e.g., Cook v.
State, 953 P.2d 712, 715 (Nev. 1998) (reversing conviction where police lost evidence, including
victim’s sweater); see also Cost v. State, 10 A.3d 184, 196 (Md. 2010) (reversing conviction
where the State failed to preserve the victim’s “clothing, towel, sheets” and other materials, as
“[s]uch evidence might well have created reasonable doubt as to [the defendant’s] guilt”). The
same should hold true here, as the clothing on Mr. Baker’s body when it was recovered would
have provided Mr. Ziegler with extraordinarily powerful evidence supporting his defense.

25

 DOCUMENT 84

70.

This Court previously held that original trial counsel’s failure to investigate

whether or not Mr. Baker was actually killed in the woods in the manner claimed by the State
“was grossly prejudicial to Ziegler.” Ex. B ¶ 338. Similarly, on re-trial, the State’s failure to
retain the clothing on Mr. Baker’s body has grossly prejudiced Mr. Ziegler.
71.

As discussed above, the State’s theory of the crime, as advanced at Mr. Ziegler’s

initial trial and to be advanced on re-trial, was that Mr. Ziegler purportedly killed Mr. Baker in
the woods where his body was ultimately discovered. See Ex. B ¶ 85; Ex. X at 27-37. In light of
that fact, as this Court has previously found, any evidence refuting that theory and indicating that
Mr. Baker was not killed in the woods as claimed by the State was material and exculpatory to
Mr. Ziegler. See Ex. B ¶ 94 (“Clearly, evidence that Baker was not killed in the woods would
have been extremely useful to the defense.”); id. ¶ 332 (“evidence that supported a defense that
Baker had not been killed in the woods would have been beneficial to the defense as it would
have rebutted the central premise of the State’s case against Ziegler and would have allowed a
reasonable jury to find that the prosecution had failed to prove that Ziegler was involved in
Baker’s death”); id. ¶ 368 (“The Court also already explained the power and importance of
evidence indicating that Baker was not killed in the woods and explained that the failure to
discover such evidence clearly prejudiced Ziegler.”); see also id. ¶ 338 (“The evidence at the
Rule 32 Hearing establishes it is more than likely that there was ample and powerful evidence
indicating significant doubt whether or not Baker had been killed in the woods as the State had
claimed.”). Thus, as this Court has previously found, if a jury were “provided with the evidence
indicating that Baker may not have been killed in the woods, was most likely killed by a righthanded individual, and was unlikely to have been killed at the time claimed by the State, there is

26

 DOCUMENT 84

a reasonable probability that Ziegler would have been found not guilty of the murder of Baker.”
Id. ¶ 341.
72.

Among other pieces of evidence, the clothing found on Mr. Baker’s body is

strong evidence supporting a defense that Mr. Baker was not killed in the woods or in the manner
as claimed by the State. See id. ¶¶ 123, 146. As both Dr. Riddick and Detective Gaut explained,
the lack of visible shredding or holes in the shirt contradicted the State’s theory that Mr. Baker
was killed in the woods during a violent murder. 18 Dr. Riddick made clear that if the crime
happened in the manner claimed by the State, “the shirt should have been in shreds.” Ex. W at
469:2-20. And, as Detective Gaut explained, if the State’s theory that Mr. Baker was killed in
the woods were true:
[Y]ou should see blood spatter. You should see the area around it. You should
blood on the various leaves and so forth. You should see holes in the shirt. And
when you don’t see those, again, its indicative that, number one, the shirt was not
on the victim at the time the victim received the postmortem stab wounds, and it’s
also now much more credible that this is likely a dump site as opposed to an
active site.
Id. at 891:8-15.
73.

In addition, the importance of the missing clothing to Mr. Ziegler’s defense is

demonstrated by the description of the clothing in Dr. Riddick’s autopsy report, which stated:
CLOTHING: Black tee shirt with Hilfiger athletics logo. The shirt has a tear at
the collar on the left upper chest that corresponds diagonally with the large sharp
force injury to the neck. The upper portion of the shirt appears black, partially
because of blood. The lower portion is blue and gold. The body has black denim
trousers, and white and blue athletic shoes. Blood splotches are present on the
shoes, but not very many.

18

The fact that much of this testimony would come from Dr. Riddick, the State’s own forensic pathologist and
expert witness, only adds to the materiality and importance of this evidence. See Ex. B ¶ 339 (“Had the State’s
own expert informed the jury that Baker was not killed at the scene, there is clearly a reasonable probability that the
jury would have” acquitted Mr. Ziegler).

27

 DOCUMENT 84

Ex. C at 2. From the description, it appears that while there was some blood on the upper portion
of the shirt, there is no mention of blood stains on the lower portion, which also does not match
up with the State’s theory that Mr. Baker was killed in an active crime in the woods. Similarly,
the fact that Mr. Baker’s shoes did not have much blood on them is also inconsistent with the
State’s version of the crime. If the State’s theory were true, one would expect to have found a
shirt that was covered in blood throughout and a substantial amount of blood on the shoes.
74.

All told, the clothing recovered from Mr. Baker’s body should have been, and

would have been, extremely powerful exculpatory evidence to Mr. Ziegler’s defense. Having
been presented with a shirt lacking any holes or that, at a minimum, was not torn to “shreds” as
Dr. Riddick testified it should have been if the State’s theory were true, a reasonable jury could
readily have found that the State failed to carry its burden to prove Mr. Ziegler’s guilt beyond a
reasonable doubt. Moreover, because of the State’s loss or destruction of this evidence, Mr.
Ziegler’s defense has been deprived of the ability to examine the clothing, including the shirt and
the shoes, and make its own determination of how best to utilize this extraordinarily exculpatory
evidence before the jury on re-trial.
75.

In sum, the State’s failure to retain the clothing recovered from Mr. Baker’s body

has grossly prejudiced Mr. Ziegler in these proceedings. Regardless of whether or not such loss
was intentional, 19 the clothing would have supported Mr. Ziegler’s defense that the State’s
theory of the crime was and is simply untrue and refuted by the actual evidence. While the
clothing alone may not have been the only evidence supporting that defense, it would have been
extremely powerful physical evidence that could have been presented to and examined by the
jury, and ultimately could have led a reasonable jury to acquit Mr. Ziegler. Forcing Mr. Ziegler
19

As discussed below, case law makes clear that a denial of due process occurs regardless of whether the State acted
in bad faith where, as here, the evidence was material and exculpatory.

28

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to face a second trial for his life, having been deprived of these manifestly exculpatory and
material pieces of evidence as a result of the State’s action, would be grossly prejudicial and
violate the United States Constitution and Alabama law.
B.

The Missing Affidavit Would Have Demonstrated to the Jury that the Mobile
County Sheriff’s Office Obtained Information Indicating that Mr. Baker
Was Not Killed as the State Claims

76.

Under the Constitution and Alabama law, in order to have obtained the search

warrant for Mr. Bennett’s car, the State must have obtained detailed and specific information
giving them probable cause to believe that Mr. Baker had been killed or transported in that car.
See, e.g., U.S. Const. Amend. IV (“no warrants shall issue, but upon probable cause, supported
by oath or affirmation, and particularly describing the place to be searched, and the person or
things to be seized”); Ala. Code § 15-5-3 (“A search warrant can only be issued on probable
cause, supported by an affidavit naming or describing the person and particularly describing the
property and place to be searched.”).
77.

Under well-settled law, therefore, the affidavit submitted by Detective Battiste

must have contained specific and detailed information demonstrating the State’s probable cause
in order for the warrant to have issued at all. 20 See, e.g., Ex parte Green, 15 So. 3d 489, 492
(Ala. 2008) (“‘[s]ufficient evidence must be stated in the affidavit to support a finding of
probable cause for issuing the search warrant,’ and ‘[t]he affidavit must state specific facts or
circumstances which support a finding of probable cause[;] otherwise the affidavit is faulty and
the warrant may not issue.’”) (quoting Ex parte Parker, 858 So. 2d 941, 945 (Ala. 2003), in turn
quoting Alford v. State, 381 So. 2d 203, 205 (Ala. Crim. App. 1979)). Indeed, before a warrant
may be issued, Alabama law makes clear that the issuing judge must examine the person seeking
20

Indeed, it is a crime to have obtained a warrant without proper probable cause to justify its issuance. See Ala.
Code § 15-5-19.

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the warrant and be satisfied that the testimony has “set forth facts tending to establish the
grounds of the application or probable cause for believing that they exist.” Ala. Code § 15-5-4;
see also Ala. Code § 15-5-5 (stating that a warrant must be issued “[i]f the judge or magistrate is
satisfied of the existence of the grounds of the application or there is probable ground to believe
their existence”).
78.

Accordingly, it cannot be disputed that during its investigation into Mr. Baker’s

death, the MCSO obtained detailed information that it believed to be credible enough to seek a
search warrant indicating that Mr. Baker was killed or transported in Mr. Bennett’s car. Indeed,
at the January 15, 2015 status conference, former Detective Battiste testified that in order to have
obtained the warrant, the MCSO must have had information “that would have indicated that
maybe the body had been transported in the vehicle or some of the weapons that may have been
used in the commission of the crime may have been possibly located in the vehicle” or
“information that maybe the vehicle may have been used in transport or somebody might have
been in there.” Ex. A at 39:4-8, 49:25-50:2.
79.

Similarly, in the Amended Order following the Rule 32 Hearing, this Court held:

[T]he evidence establishes that even after the discovery of Baker’s body, the
Mobile County Sheriff’s Office was in possession of information indicating that
Bennett’s car was used in connection with the death of Baker. In particular, after
re-arresting Bennett, the Sheriff’s Office obtained a warrant to search his car on
the grounds that the car “was a means of committing” Baker’s murder. (Ex. 133).
However, the affidavit upon which the Sheriff’s Office obtained the warrant for
Bennett’s car has never been produced, either in Ziegler’s original trial or in these
Rule 32 proceedings, despite substantial efforts to locate it for purposes of this
proceeding. . . . Under Alabama law, the Sheriff’s Office must have obtained
evidence giving it probable cause to believe that Bennett’s car was utilized in
connection with Baker’s death. See Ala. Code § 15-5-3.
***
[T]he Sheriff’s Department ultimately searched Bennett’s car on the grounds that
it “was a means of committing” Baker’s murder. (FF ¶ 52). Under Alabama law,
the warrant for Bennett’s car could not have been obtained without an affidavit
detailing the facts that gave the Sheriff’s Office probable cause to believe that

30

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evidence of, or evidence relating to, Baker’s murder would be located in
Bennett’s car. See Ala. Code § 15-5-3. Accordingly, in order to have obtained
the warrant, the Sheriff’s Office must have been in possession of facts
establishing probable cause that Bennett’s car “was a means of committing”
Baker’s murder.
Ex. B ¶¶ 52, 293. 21
80.

This Court also specifically found that whatever information was contained in the

affidavit was material and exculpatory, as it supported the Court’s grant of relief under Brady v.
Maryland, 373 U.S. 83 (1963).
Unfortunately, the Court cannot know precisely what information was included in
the affidavit to enable the Sheriff’s Office to search Bennett’s automobile.
Nevertheless, the Court finds the information would have been favorable to
Ziegler’s defense. As noted, the warrant indicated that Bennett’s car “was a
means of committing” Baker’s murder, clearly indicating that the Sheriff’s Office
had reasonable information that provided them with probable cause to believe that
Baker had been killed or transported in Bennett’s car. In light of the State’s
theory at Ziegler’s trial that Baker was killed in the woods and then left there for
four days, evidence that Baker was killed or transported in Bennett’s car would
have been inconsistent and contrary to that theory. Accordingly, the evidence
establishes that the State must have had information indicating that Baker may
have been killed in a manner that was different from the State’s theory at trial.
***
Moreover, the Court holds that this evidence would have been favorable to
Ziegler’s defense and that its suppression was material. [Prior defense counsel]
testified that evidence that Bennett’s car had been utilized in Baker’s murder
would have been beneficial to the defense, as it was “different from the
prosecution’s theory” and “that would certainly be something relevant because
that’s different than what the state’s witnesses said and that would go to weaken
their whole case.” (FF ¶ 52). Additionally, the Court takes note of the opinion of
the United States Court of Appeals for the Tenth Circuit in Smith v. Sec. of N.M.
Dep’t of Corr., 50 F.3d 801 (10th Cir. 1995), where the Court granted habeas
relief under similar circumstances. In that case, law enforcement failed to
produce a police report about the discovery of bloody material found in the car of
a co-defendant. In finding the State had violated Brady, the Court held “there can
be no doubt that the evidence contained [in the report] was ‘favorable to the
defense’ . . . The evidence would have permitted a more thorough impeachment
of a critical state’s witness and would have immeasurably strengthened Smith’s
defense that [the owner of the car] was the perpetrator and not Smith.” Smith, 50
21

This Court also found that circumstantial evidence adduced at the Rule 32 Hearing indicated that the source of
information for the issuance of the warrant was Rose Johnson, Mr. Bennett’s wife. See Ex. B ¶¶ 53, 55.

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F.3d at 829. The Court also found the evidence material, as had it been disclosed
the Court could not “say that the result of the trial would have remained the
same.” Id. at 833.
***
This Court holds that the suppression by the State of the multiple pieces of
evidence indicating that Bennett’s car may have been utilized in Baker’s murder
violated Brady. Having observed the witnesses and reviewed the evidence, this
Court has no doubt that evidence indicating that the police reasonably believed
that Bennett’s car had been utilized in Baker’s murder, particularly when
combined with the physical evidence and witness testimony of Bennett’s attempts
to clean his car, could have convinced a reasonable jury to conclude that Baker
was not killed in the manner alleged by the State at Ziegler’s trial. Accordingly,
the suppression of this evidence undermines this Court’s confidence in the verdict
and requires relief under Brady.
Ex. B ¶¶ 295, 300, 301.
81.

Notably, this Court’s finding that the suppression of an affidavit for issuance of a

search warrant violated a defendant’s due process is amply supported by other case law that
recognized the importance that an affidavit for issuing a search warrant can carry for the defense.
Just last year the Alabama Supreme Court upheld the reversal of a conviction by the Circuit
Court of Pike County based upon, among other things, the importance of a non-disclosed
affidavit for a search warrant. See State v. Ellis, No. 1121390, 2014 WL 4851506 (Ala. Sept. 30,
2014). There, the Supreme Court quoted the Circuit Court’s finding that the State violated Brady
by failing to disclose an affidavit for a search warrant, stating:
Additionally, the State did not disclose the affidavit of Lee Barnes of the Troy
Police Department which was utilized to obtain a search warrant for cellular
telephone records of a suspect other than [Ellis], namely [S.L.F.]. The affidavit
stated the investigation had led to the suspect, S.L.F., and that the victim had
made a tentative identification of S.L.F. through a photographic lineup.
Additionally, the victim’s mother searched MySpace [social-media] records and
located the suspect with a picture and showed it to M.B. and M.B. became visibly
upset. An artist developed a composite sketch of the perpetrator with the
assistance of the victim and a person independently identified S.L.F. as the person
depicted in the composite sketch. This information is obviously exculpatory and
was not disclosed and would be material for a Brady violation. The information
would further be useful for impeachment purposes as it appears law enforcement
ruled out said suspect. The fact that the victim wrongfully identified another
person would be material.
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Id. at *7. Ultimately, the Supreme Court found “no error” in the Circuit Court’s determination
that collectively the suppressed evidence, including the search warrant affidavit, was material
and its non-disclosure violated the defendant’s due process rights and required that the defendant
in that case receive a new trial. See id. at *9-10.
82.

Here, however, the prejudice that Mr. Ziegler suffered as a result of the loss or

destruction of the missing search warrant affidavit is continuing and clearly would prejudice him
at re-trial. Unlike the defendant in Ellis, who would have been able to utilize the information
contained in the belatedly disclosed search warrant affidavit at his re-trial, Mr. Ziegler is left
unable to show the jury the exact facts that led the MCSO to seek and obtain a warrant to search
Mr. Bennett’s car. Although circumstantial evidence exists indicating that the source of
information for that warrant was Mr. Bennett’s own wife, see Ex. B ¶¶ 53, 55, the loss or
destruction of the affidavit by the State has rendered Mr. Ziegler unable to affirmatively make
use of the affidavit and its contents.
83.

Had the State not lost or destroyed the affidavit for the search warrant, Mr.

Ziegler on re-trial could have powerfully demonstrated to the jury that the MCSO had obtained
credible and detailed information indicating that Mr. Bennett’s car had been utilized in Mr.
Baker’s death. While he may still be able to bring forward some evidence regarding the use of
Mr. Bennett’s car in Mr. Baker’s death, due to the acts of the State, Mr. Ziegler is without the
sworn affidavit submitted by an MCSO detective that must have, under Alabama law, set forth
“specific facts or circumstances which support[ed] a finding of probable cause,” see Green, 15
So. 3d at 492, that Mr. Bennett’s car was utilized in Mr. Baker’s death. The best evidence of
those “specific facts and circumstances,” however, is now lost to Mr. Ziegler, as is his ability to

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utilize those specific facts to defend himself on trial for his very life. Clearly, Mr. Ziegler has
been grossly prejudiced by the loss or destruction by the State of this crucial evidence.
C.

The Missing Audiotapes Prejudice Mr. Ziegler’s Defense by Limiting Him to
Transcriptions that Cannot be Verified and Precluding Him from Exposing
the Jury to the Audio Recordings of Mr. Bennett, Mr. Randall, Ms. Davis,
Ms. Kohn and Ms. Myers

84.

The State has now also admitted that it has been unable to locate the audiotape

recordings of any of the statements taken by the MCSO during its investigation of Mr. Baker’s
death. See, e.g., Ex. B at 11:6-12:5. While the audiotapes might not immediately appear to carry
the same exculpatory weight as the lost or destroyed clothing and affidavit, the record here
demonstrates their loss has severely prejudiced Mr. Ziegler. Indeed, as detailed below, the loss
of the audiotapes has deprived Mr. Ziegler not only of the ability to confront the witnesses
against him with their own voice, but has left him unable to determine what those witnesses said
regarding some of the most crucial issues in this case.
85.

As the Court is aware, after the discovery of Mr. Baker’s body, the MCSO

interrogated Mr. Ziegler, Mr. Randall, Mr. Bennett, Ms. Kohn, Ms. Myers and Ms. Davis. 22 In
the course of those statements, only Mr. Bennett implicated Mr. Ziegler in Mr. Baker’s death.
Ex. B ¶ 159. Mr. Ziegler denied knowledge of who had killed Mr. Baker. See id. ¶ 158. While
admitting that he stabbed Mr. Baker, Mr. Randall implicated Mr. Bennett as the sole killer of Mr.
Baker. See id. Ms. Myers and Ms. Davis indicated they did not know who had killed Mr. Baker.
See Exs. H, G. Finally, Ms. Kohn gave a written statement that implicated Mr. Bennett and
exculpated Mr. Ziegler, but subsequently gave a recorded statement during which she did not

22

As the Court previously found during the Rule 32 proceedings, all of these interrogations were performed by
Detective Lunceford in violation of generally applicable standards for all Alabama law enforcement. See Ex. B
¶¶ 149-153, 367. In particular, Detective Lunceford only tape recorded these statements after multiple unrecorded
interrogations in violation of established protocols. See id. ¶ 151.

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indicate knowing who killed Mr. Baker and never discussed her prior written statement. See Ex.
B ¶ 161; Exs. J, I.
86.

Furthermore, as this Court previously found, at Mr. Ziegler’s trial, “[t]he State

offered no physical or scientific evidence that connected Ziegler with Baker’s death.” 23 Ex. B
¶ 22. Thus, the State’s case against Mr. Ziegler relied almost exclusively on testimony of
purported witnesses, including Ms. Kohn, Ms. Myers, Ms. Davis, and Mr. Randall. 24 See Ex. B
¶¶ 23, 376. Thus, in the absence of any physical or scientific evidence implicating Mr. Ziegler in
Mr. Baker’s murder, the “credibility, truthfulness, and reliability,” of the State’s witnesses will
be paramount. Ellis, 2014 WL 4851506, at *9.
87.

In light of their substance, Mr. Ziegler’s defense would seek to utilize the

recorded statements during cross-examination of any or all of the witnesses called by the State.
Indeed, the transcripts of the statements implicate Mr. Bennett and Mr. Randall as the actual
killers of Mr. Baker and exclude Mr. Ziegler. As noted above, Mr. Bennett was the only person
interviewed by the MCSO who ever indicated that Mr. Ziegler had any involvement in the actual
killing of Mr. Baker. By contrast, both Mr. Ziegler and Mr. Randall indicated that Mr. Ziegler
was not involved in the killing, and Ms. Davis, Ms. Myers and Ms. Kohn had no knowledge of
who killed Mr. Baker.
88.

However, because the State lost or destroyed the actual recordings of those

interrogations, Mr. Ziegler’s defense will be unable to confront these witnesses with their own
23

Indeed, the only scientific or forensic evidence introduced at Mr. Ziegler’s trial consisted of limited blood analysis
from within the apartment. See Ex. B ¶ 22. However, as the Court previously found, other than Randall, “the
State’s witnesses testified that they observed Bennett, Randall and Davis, but not Ziegler, having beaten Baker in the
apartment.” Id. ¶ 23 n.4. Thus, if anything, the only scientific or forensic evidence offered by the State exculpated
Mr. Ziegler, as, when combined with the testimony of all of the witnesses other than Randall, it implicated others in
the fight in the apartment.
24

Mr. Bennett did not testify at Mr. Ziegler’s first trial, and Mr. Ziegler does not know at this point whether or not
the State will call him on re-trial.

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words in front of the jury. Thus, due to State’s violation of his due process rights, Mr. Ziegler is
left without the ability to use the witnesses’ own words on cross-examination.
89.

Moreover, the fact that portions of transcriptions of the recorded interrogations

exist does not lessen the prejudice suffered by Mr. Ziegler as a result of the State’s loss or
destruction of the original recordings. 25 If anything, the fact that only unverified transcriptions
remain actually increases the amount of prejudice suffered here.
90.

As an initial matter, because of the loss of the recordings, Mr. Ziegler is unable to

examine whether or not the transcriptions are accurate. More importantly, the transcriptions of
the statements of Mr. Bennett, Mr. Randall, Ms. Davis, Ms. Myers and Ms. Kohn combined total
of 60 “(unintelligible)” sections, including an incredible 32 “(unintelligible)” portions of Ms.
Kohn’s statement alone. These 60 “(unintelligible)” portions of the statements include portions
that deal with crucial issues that would support Mr. Ziegler’s defense if decipherable, including:
•

Leaving the Apartment
o Ex. H at 6 (Myers) – “No, they only left to walk him towards
(unintelligible)…”

•

What Bennett Claimed Occurred in the Woods
o Ex. D at 18 (Bennett) – “He [Baker] started saying ‘ow’ and hollering.
Apparently they covered his mouth (unintelligible).”

•

Bennett Taking Baker in His Car After the Alleged Killing in the Woods:
o Ex. I at 5 (Kohn) – “And then the next morning Will [Randall] called me and
told me he’d (unintelligible) to the house and that Jay picked up Allen that
morning and Jay came back (unintelligible) and Allen never came back
(unintelligible) … this week.”

•

What Happened in Bennett’s Car After Leaving the Apartment

25

It is worth noting that the State played Mr. Ziegler’s recorded statement to the jury at the first trial evidencing the
fact that the State believed then that the audio recording carried weight beyond just the mere transcription.

36

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o Ex. F at 17 (Randall) – “Well, when we got back, after we changed
(unintelligible) out there, and Jay took the girls home and (unintelligible)
dropped me off, I ain’t seen him since. He was missing for about a day, that’s
all I know.”
•

Bennett’s Motive and What Happened to Baker
o Ex. I at 5 (Kohn) – Randall telling Kohn “if they took Allen down to the stop
sign and (unintelligible) was walking home and that Jay was really hurt
because (unintelligible) that’s his mom and his wife …”

91.

Other portions of the transcribed versions of the statements include multiple

“(unintelligible)” sections that Mr. Ziegler’s defense would investigate further if they could
listen to the actual recordings. For example, when asked if there was “anything else” she wanted
to add to her statement, Ms. Kohn discussed what Mr. Randall told her about what started the
fight in the apartment, stating, “Will said (unintelligible) his friends, and Jay’s (unintelligible) or
something and he said they only hit him a few times and that was it. . . .” 26 Ex. I at 8. Ms.
Kohn’s statement later included four “(unintelligible)” portions when discussing discussions she
had had with Ms. Myers and Mr. Randall after the night in question, stating:
Me and Sarah have had a few conversions and Sarah (unintelligible) … she didn’t
know where he was. Sarah really liked him, so Sarah didn’t want anything bad to
happen to him … (unintelligible) and that’s really the only conversation we had
and Sarah, had a conversation with Will’s cousin and I think Will got mad at her
for talking, for saying something (unintelligible) Jerry (unintelligible) yesterday at
the hospital. . .
Id.
92.

Significantly, many, if not most, of the transcript portions designated as

unintelligible go to some of the most key issues in this case. As shown above, the
“(unintelligible)” omissions include, other things, portions of statements regarding Mr. Bennett’s
motive and extraordinarily exculpatory information indicating that Mr. Randall confessed that
26

Curiously, at an earlier point in the statement, when asked whether there was “anything you want to add” Ms.
Kohn’s entire response is listed as “(unintelligible)”. Ex. I at 7. Randall’s statement includes a similar response to a
question of whether there was anything he wanted to add. See Ex. F at 17 (“(mumbling unintelligibly)”).

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Mr. Bennett picked up and left with Mr. Baker after the time when the State has claimed Mr.
Baker had been killed in the woods. Those “(unintelligible)” transcript portions also include
numerous areas that Mr. Ziegler’s defense would further investigate if the State had not lost or
destroyed the recorded interrogations.
93.

Because the State failed to retain these recorded interrogations, Mr. Ziegler has

lost the ability to fully confront these State witnesses with their own words, both because he
cannot expose the jury to compelling audio of those witnesses’ own statements, and because he
cannot present other statements from those witnesses now lost within the 60 “(unintelligible)”
portions of the transcripts. To take just one of the many examples, because the State failed to
retain the audiotapes of these interrogations, Mr. Ziegler will be unable at trial to fully confront
Ms. Kohn with that portion of her statement where she stated that Mr. Randall told her that Mr.
Bennett came back to the apartment on the morning after the crime as claimed by the State had
already occurred, picked up Mr. Baker, and then left with Mr. Baker. See Ex. I at 5 (“And then
the next morning Will [Randall] called me and told me he’d (unintelligible) to the house and that
Jay picked up Allen that morning and Jay came back (unintelligible) and Allen never came back
(unintelligible) … this week.”).
94.

In addition to the fact that the jury on re-trial will never hear Ms. Kohn’s voice

stating this extraordinarily exculpatory information, the defense, the Court, and ultimately the
jury will never be able to determine what else Ms. Kohn revealed during this critical portion of
her interrogation because Mr. Ziegler cannot reconstruct the three separate “(unintelligible)”
gaps that exist in this singularly important sentence in the written transcript. 27 This is just one of
the many separate instances in which Mr. Ziegler has been prejudiced by the State’s loss or
27

As noted previously, and as this Court has previously held, Ms. Kohn’s initial handwritten statement inculpated
Mr. Bennett while exculpating Mr. Ziegler. See Ex. B ¶¶ 7, 161.

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destruction of these original tapes. Accordingly, the record is clear that Mr. Ziegler will suffer
severe prejudice if forced to face second trial without the ability to use such exculpatory
evidence in his defense.
II.

THE EVIDENCE LOST BY THE STATE IS PLAINLY MATERIAL
95.

The standard for “materiality” under the due process clause is “anything ‘which,

if made available, would tend to exculpate [the defendant] or reduce the penalty.’” Ex parte
Womack, 541 So. 2d 47, 63 (Ala. 1988) (quoting Brady, 373 U.S. at 87-88); see also Ziegler,
2014 WL 1744098, at *8 (evidence is material if “‘there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the outcome’”
(quoting Hamilton v. State, 677 So. 2d 1254, 1260 (Ala. Crim. App. 1995) in turn quoting
United States v. Bagley, 473 U.S. 667, 682 (1985))). Moreover, while each individual piece of
evidence lost or destroyed by the State would properly be determined to be material, the law is
clear that materiality must be assessed collectively. See, e.g., Ellis, 2014 WL 4851506, at *9 (“it
is well settled that the evidence the State failed to disclose to [a defendant] must be considered
collectively, not item-by-item, in determining . . . the ‘materiality’ requirement of” Brady).
96.

As the Alabama Supreme Court has held, “[i]t is not in the interest of justice to

permit the prosecution, in its unfettered discretion, to determine the favorable or unfavorable
nature of potentially exculpatory evidence, and then allow the prosecution to destroy the
evidence, thereby forcing the defendant to establish the favorable nature of evidence that no
longer exists.” Ex parte Dickerson, 517 So. 2d 628, 630 (Ala. 1987). 28 Here, however, this
28

This is even more true in a case such as this one where the State seeks the ultimate penalty of the death penalty.
See, e.g., Ex parte Monk, 557 So. 2d 832, 836 (Ala. 1989) (“The capital case is ‘sufficiently different’ from other
cases, because there is no other criminal case in which the crime is murder and the possible punishment is death or
life imprisonment without parole.”).

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Court has already examined the materiality of the evidence that has been lost or destroyed by the
State in this case and determined that most of the evidence that is the subject of this motion is
clearly material.
97.

As discussed above, this Court has previously determined that evidence that

would support a defense that Mr. Baker was killed or transported in Mr. Bennett’s car was
obviously favorable and beneficial to the defense and was “clearly material.” See Ex. B ¶ 291;
accord id. ¶¶ 300, 301, 306. Thus, this Court has previously determined that the missing search
warrant affidavit was material. 29
98.

Similarly, albeit in the context of the ineffective assistance provided by Mr.

Ziegler’s prior counsel, 30 this Court specifically held that “evidence that supported a defense that
Baker had not been killed in the woods would have been beneficial to the defense as it would
have rebutted the central premise of the State’s case against Ziegler and could have allowed a
reasonable jury to find that the prosecution had failed to prove that Ziegler was involved in
Baker’s death.” Id. ¶ 332; accord id. ¶¶ 94, 33, 341, 368. As discussed above, this evidence
included the clothing found on Mr. Baker’s body which, as shown by the expert testimony of Dr.
Riddick and Detective Gaut, was inconsistent with the theory of the crime alleged by the State.
See id. ¶¶ 123, 146, 361. Accordingly, the missing clothing is also clearly material evidence that
has been lost or destroyed by the State.
99.

As for the missing tape recordings, this Court did not make findings relating to

their materiality during the Rule 32 Proceedings. Nevertheless, there should be little doubt that
29

While the missing affidavit was one of a number of items suppressed during Mr. Ziegler’s initial trial, this Court
specifically cited the missing affidavit as a piece of material evidence that was suppressed. See id. ¶¶ 293-296, 306.
30

Although analyzed for purposes of a claim arising under the Sixth Amendment’s right to counsel rather than under
the due process clause of the Fifth and Fourteenth Amendments, the prejudice component of an ineffective
assistance claim is similar to the materiality evaluation for a due process claim. See id. ¶ 321.

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this evidence was also material. In Ellis, the Alabama Supreme Court affirmed a finding of
materiality of evidence, including suppressed statements that differed with the statements of
witnesses presented at trial. See 2014 WL 4851506, at *8-9. Admittedly, Mr. Ziegler’s case
differs from Ellis insofar as it appears the statements at issue in that case were completely
suppressed at the initial trial, such that the defense was never provided with the tapes or any
transcription. See id. at *7-8. However, as discussed above, the tape recordings here themselves
are material as they would have given Mr. Ziegler the ability to directly confront these witnesses
with their own audio statements. Moreover, as also discussed above, in light of the significant
number of “(unintelligible)” portions, the transcriptions themselves are missing substantial and
material portions of information that would have likely benefitted the defense. Accordingly, the
missing recordings should be found to be material in their own right.
100.

In any event, the law is clear that materiality is evaluated by examining all of the

evidence together. See Ellis, 2014 WL 4851506, at *9. In this case, there is no doubt that the
combined lost or destroyed evidence of the missing clothing, the search affidavit, and the tapes is
plainly material. These pieces of evidence, now lost to Mr. Ziegler by the State’s failures, would
have greatly supported his ability to defend himself at trial by exposing the jury to evidence that
Mr. Baker was not killed in the woods by Mr. Ziegler at the time or in the manner alleged by the
State, and showing the jury that the State itself had reason to believe that Mr. Bennett, alone or in
combination with others, had killed or transported Mr. Baker in his car after the time of the
events in the woods as claimed by the State. Clearly, the evidence is material.

41

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III.

MR. ZIEGLER DOES NOT NEED TO ESTABLISH BAD FAITH TO
DEMONSTRATE THE VIOLATION OF HIS DUE PROCESS RIGHTS, BUT
EVEN IF HE DID, THE RECORD ESTABLISHES THAT THE STATE ACTED
IN BAD FAITH IN FAILING TO PRESERVE THE MISSING EVIDENCE
A.

Bad Faith is Not Required Where, as Here, the Lost or Destroyed Evidence
was Material and Exculpatory

101.

In Youngblood, the Supreme Court made clear that in evaluating whether or not a

defendant’s due process rights under the United States Constitution are violated as a result of the
State’s loss or destruction of evidence, courts focus on the strength of the evidence to the
defendant:
The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady,
makes the good or bad faith of the State irrelevant when the State fails to disclose
to the defendant material exculpatory evidence. But we think the Due Process
Clause requires a different result when we deal with the failure of the State to
preserve evidentiary material of which no more can be said than that it could have
been subjected to tests, the results of which might have exonerated the defendant.
. . . We think that requiring a defendant to show bad faith on the part of the police
both limits the extent of the police’s obligation to preserve evidence to reasonable
bounds and confines it to that class of cases where the interests of justice most
clearly require it, i.e., those case in which the police themselves by their conduct
indicate that the evidence could form a basis for exonerating the defendant. We
therefore hold that unless a criminal defendant can show bad faith on the part of
the police, failure to preserve potentially useful evidence does not constitute a
denial of due process of law.
488 U.S. at 57-58.
102.

Recognizing the distinction between merely “potentially useful evidence” and

material and exculpatory evidence, the Alabama Supreme Court in Gingo adopted Justice
Stevens’ concurrence in Youngblood to find “‘there may well be cases in which the defendant is
unable to prove that the State acted in bad faith but in which the loss or destruction of evidence is
nonetheless so critical to the defense as to make a criminal trial fundamentally unfair.’” 31 Gingo,
31

The United States Supreme Court has also made clear the distinction between “material exculpatory evidence”
and merely “potentially useful evidence.” See Illinois v. Fisher, 540 U.S. 544, 548 (2004) (per curiam) (“The
substance seized from respondent was plainly the sort of ‘potentially useful evidence’ referred to in Youngblood, not
the material exculpatory evidence addressed in Brady.”) (citations omitted),

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605 So. 2d at 1241 (quoting Youngblood, 488 U.S. at 61 (Stevens, J., concurring in the result).
As was further made clear in Gurley, while the existence of bad faith further supports a finding
of a denial of due process, it is only one factor considered by the Court along with the materiality
of the evidence and the prejudice suffered by the defendant in its absence. See Gurley, 639 So.
2d at 567-68.
103.

Consistent with the Alabama Supreme Court’s holding in Gingo and the Court of

Criminal Appeals’ decision in Gurley, courts have repeatedly held that a due process violation is
established without a showing of bad faith where the evidence was material and exculpatory and
not merely “potentially useful.” 32 See, e.g., Roberson v. State, 766 N.E.2d 1185, 1188 (Ind.
2002) (“Unlike potentially useful evidence, the State’s good or bad faith in failing to preserve
materially exculpatory evidence is immaterial.”); State v. Blackwell, 537 S.E.2d 457, 462 (Ga.
App. 2000) (“numerous courts from other jurisdictions have concluded that Youngblood’s bad
faith requirement does not apply where – as here – the exculpatory value of the evidence was
apparent before its destruction, and there is no reasonably available comparable evidence”); see
also Moldowan v. City of Warren, 578 F.3d 351, 392 (6th Cir. 2009) (“the Supreme Court has
recognized that the state violates a suspect’s due process rights, regardless of the bad faith of the
state actor, where material exculpatory evidence is not preserved. . . . Accordingly, the more
burdensome bad faith requirement does not apply where material exculpatory evidence was lost
or destroyed.”); U.S. v. Sullivan, 919 F.2d 1403, 1427 (10th Cir. 1990) (“As is clear from
Youngblood, however, if the interview notes are Brady material, then the good or bad faith of the
government is irrelevant. . . . [A]ssuming the lost evidence was also ‘material’ under Brady, . . .

32

Indeed, in Fisher, the Supreme Court noted that Alabama was one of “a number of state courts [that] have held as
a matter of state constitutional law that the loss or destruction of evidence critical to the defense does violate due
process, even in the absence of bad faith.” 540 U.S. at 549 n.* (Stevens, J., concurring).

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the government’s failure to preserve the evidence would constitute a denial of due process
regardless of the good or bad faith of the government.”).
104.

As explained above, the evidence at issue in this motion is clearly material and

exculpatory, as this Court has previously found with respect to, at a minimum, the lost clothing
of Mr. Baker and the missing affidavit. Accordingly, irrespective of whether or not the State
acted in bad faith in losing or destroying these materials, a due process violation has occurred.
B.

Although Not Required, the Evidence Establishes Bad Faith by the State In
Having Lost or Destroyed the Missing Evidence

105.

Although bad faith is not required here in light of the fact that the lost or

destroyed evidence was clearly material and exculpatory, the record establishes the existence of
bad faith in the State’s failure to preserve the evidence. To establish bad faith, Mr. Ziegler need
only establish that the State knew “of the exculpatory value of the evidence at the time it was
destroyed.” Youngblood, 488 U.S. at 56 n*. Thus, if “the police themselves by their conduct
indicate that the evidence could form a basis for exonerating the defendant,” Youngblood, 488
U.S. at 58, and fail to preserve that evidence, bad faith is established.
106.

In this case, the evidence of bad faith permeates throughout the prosecution of

Mr. Ziegler. As an initial matter, this Court has already heard extensive evidence indicating that
the investigation into Mr. Baker’s death was overseen by Detective Dale Kohn, who was
operating under an obvious conflict of interest due to the involvement of Dawn Kohn, his niece.
See Ex. B ¶¶ 154, 196, 367, 402. Moreover, this Court has also previously found that the State
attempted to conceal Detective Kohn’s role in this case, including through the false testimony of
Detective Lunceford. See id. ¶¶ 193-96, 212, 407; see also id. ¶ 105 n.13 (noting “Lieutenant
Lunceford admitted on cross-examination [in the Rule 32 Proceedings] that, . . . [he] had testified
falsely in prior proceedings in Ziegler’s prosecution”). Thus, as this Court has previously held:

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These facts, particularly when combined with the conflicted role of Detective
Kohn, could have given a reasonable jury reason to believe that the investigation
of the Mobile County Sheriff’s Office was improperly directed away from
potentially implicating Dawn Kohn in Baker’s death. Had Baker been killed or
transported in Bennett’s car at a time when Kohn was in the car, Dawn Kohn
could have potentially have been charged as an accomplice or an accessory in
Baker’s death. If the jury had learned that Dawn Kohn initially implicated
Bennett alone as Baker’s killer, but only changed her story after coming to the
Sheriff’s Office, the lingering question of why her statement had changed could
have provided fertile ground for the jury to find reasonable doubt about whether
the police had charged the right person in Baker’s death.
Id. ¶ 214.
107.

Notably, the testimony offered by the State during the January 15, 2015 hearing

further corroborated the improper role played by Detective Kohn in the investigation into Mr.
Baker’s death. Indeed, Detective Battiste testified unequivocally that he did not “remember the
case” other than “[i]t would appear from the reports that I read that I assisted Detective Dale
Kohn with the murder investigation.” Ex. A at 44:13-19; 36:14-19. Indeed, later in his
testimony, Mr. Battiste squarely and unequivocally identified Detective Kohn as the lead
investigator. See id. 52:14-20.
108.

Moreover, the evidentiary record here demonstrates that the State knew of the

exculpatory value of this evidence, such that its loss or destruction establishes bad faith on the
part of the State.
109.

First, as to the missing search warrant affidavit, it is notable that in addition to the

missing affidavit, the State has never produced the warrant itself from the files of the MCSO, the
Mobile County District Attorney’s Office, or the Mobile County District Court. To the contrary,
the warrant disclosed that the State had probable cause to believe that Mr. Bennett’s car “was a
means of committing” Mr. Baker’s murder was only produced to Mr. Ziegler’s counsel by the

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used car dealer who repossessed the car. 33 Indeed, the State acknowledged at the January 15,
2015 hearing that the copy of the warrant produced in these re-trial proceedings was, in fact, the
copy introduced by Mr. Ziegler during the Rule 32 Proceedings and that affidavit is “all we had.”
See Ex. A at 9:21-10:8. Thus, the record supports, at a minimum, a finding that there was a
concerted effort to hide the basis for the search of Mr. Bennett’s car.
110.

There can be no question that the existence of evidence suggesting that Mr. Baker

was killed or transported in Mr. Bennett’s car “could form a basis for exonerating the
defendant.” Youngblood, 488 U.S. at 58. As discussed above, this Court has previously held
that such evidence was obviously exculpatory and served to exonerate Mr. Ziegler. See Ex. B
¶¶ 52, 293, 295, 300, 301. The fact that the sworn affidavit and the actual warrant, which reflect
such obviously exculpatory information, has been lost or destroyed from every potential file of
the State is, at a minimum, circumstantial evidence of an intentional effort to conceal this
information from Mr. Ziegler. 34
111.

Similarly, circumstantial evidence indicates that the State acted in bad faith in

losing the evidence at issue. Ms. Tillman testified at the January 15, 2015 hearing that these
pieces of evidence had been located in their evidence room. See Ex. A at 75:18-24. Yet, the
record of that hearing establishes that the District Attorney’s Office failed to take steps to ensure
that this evidence would be secured. Indeed, in her testimony, Ms. Murphree indicated that
evidence could be accessed without any record of who went into the evidence room, testifying:
Q.
A.

If somebody goes into that room, do they have to sign in?
No, you don’t have to sign in.

33

During the January 15, 2015 hearing, Mr. Battiste admitted that the warrant in this case was consistent with one
left in the car after the search was conducted because of the lack of a return signature of the issuing court. See Ex. A
at 46:2-18.
34

Similarly, as this Court determined during the Rule 32 Proceedings, the Mobile County District Attorney’s Office
also suppressed similar information that was provided to them by counsel for Ms. Davis. See Ex. B ¶¶ 57, 298.

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***
Q.
There’s no log kept of who it was that checked the evidence out to look at
it?
A.
Well, it depends. If we’re just going to take it into the evidence room for
five minutes and look at it and then check it back in, I think they keep a log of
that, but I don’t personally sign anything, and I’m not really sure exactly how they
do it. I know they have a system of keeping up with that.
Q.
So there may be a log you think?
A.
I don’t know. I know there’s a log in there, but I know. I don’t fill it out
and I don’t sign anything and I don’t keep up with the checking in and checking
out of the evidence. The investigators do.
Ex. A at 97:19-21, 98:5-18.
112.

In sum, the record to date establishes the State’s bad faith in losing or destroying

this crucial evidence. While it is not required to afford Mr. Ziegler relief, the evidence
demonstrates that the State lost or destroyed evidence that was obviously and known to be
exculpatory to Mr. Ziegler. Accordingly, bad faith exists here. 35
IV.

THE APPROPRIATE REMEDY FOR THE STATE’S VIOLATION OF MR.
ZIEGLER’S DUE PROCESS RIGHTS IS DISMISSAL
113.

In Gingo, the Alabama Supreme Court essentially dismissed a case based upon

the failure of the State to retain evidence crucial to defense even without a finding of bad faith.
See 605 So. 2d at 1241. In that case, the Circuit Court’s suppression of evidence had the effect
of causing a dismissal of the entire case. In particular, the lost evidence at issue in Gingo was
samples of hazardous waste that the State had collected and tested and served as the basis for
charges based upon disposal of hazardous waste. See id. at 1238. In affirming the Circuit
Court’s suppression of the test results, the Alabama Supreme Court made clear that without the
test results the State could not prove its case in chief.

35

As discussed above, bad faith is irrelevant in light of the material and exculpatory nature of the evidence at issue
in this motion. However, Mr. Ziegler reserves his right to seek further discovery from the State regarding its loss or
destruction of this evidence.

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In the instant case, there is no evidence available to refute the test results, because
the samples have been destroyed. The evidence necessary to convict the
defendants of hazardous waste violations is the test results. The test results were
part of the State’s case-in-chief, i.e., the State had to use those test results to carry
its burden of proving the hazardous waste violations.
Id. at 1240. Thus, the remedy imposed in Gingo for the State’s loss or destruction of evidence
was, in effect, the dismissal of the charges against the defendants.
114.

Sanctions less than outright dismissal would not sufficiently remedy the

deprivation of due process caused by the State’s loss or destruction of the evidence discussed
above. For example, with respect to the missing clothing, in an ordinary case, an appropriate
remedy might be to exclude the State from introducing evidence relating to the discovery of Mr.
Baker’s body. Here, however, such a sanction would actually prejudice Mr. Ziegler further, as
the evidence relating to the scene in the woods supports his defense.
115.

Similarly, no preclusionary sanction would afford the ability Mr. Ziegler to show

the jury the facts that gave the State probable cause to search Mr. Bennett’s car, although those
facts clearly existed at some time. Indeed, at the January 15, 2015 conference, Mr. Battiste
testified that he had no recollection of the facts that supported the issuance of the affidavit that he
obtained. See Ex. A at 39:9-13. Finally, as to the missing audio tapes, not only is Mr. Ziegler
unable to confront the witnesses with the sound of their voices, but he is unable to listen to the
tapes to attempt to determine what was said in the 60 “(unintelligible)” sections of those tapes.
As discussed above, those “(unintelligible)” sections include missing portions of statements
where those witnesses discussed some of issues key to Mr. Ziegler’s defense including, among
other things, Bennett picking up Baker and leaving in his car.
116.

These facts demonstrate the loss or destruction of the evidence in this case is “so

critical to the defense as to make a criminal trial fundamentally unfair.” Gingo, 605 So. 2d at
1241 (citation omitted). Indeed, the loss or destruction of these items of evidence has rendered
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Mr. Ziegler unable to obtain a fair trial regardless of the good or bad faith of the State in
connection with the lost evidence.
117.

Moreover, even if bad faith were required, as discussed above, there is clearly

evidence supporting a finding of bad faith on the part of the State in failing to preserve the lost or
destroyed evidence. Most notable is the fact that no trace of the search warrant affidavit and the
warrant for Mr. Bennett’s car has been produced and cannot be located in any files of the MCSO,
the Mobile County District Attorney’s Office or any other file attributable to the State. That fact
is indicative of an effort to eliminate evidence of the fact that the State had probable case to
believe that Mr. Bennett’s car was utilized in the murder of Mr. Baker and its destruction is
indicative of the fact that the State knew of the clearly exculpatory nature of this information to
Mr. Ziegler’s case.
118.

In this case, no sanction less than dismissal of the charges against Mr. Ziegler

would remedy the harms wrought by the State’s conduct here.
CONCLUSION
119.

The investigation and prosecution arising from the death of Allen Baker were

flawed and unjust from their very beginning. As this Court is aware, the investigation of Mr.
Baker’s death was overseen and led by an investigator suffering under an obvious and apparent
conflict of interest. Additionally, the investigation was conducted in violation of standards
governing the conduct of law enforcement throughout the State of Alabama. Further, the initial
trial of Mr. Ziegler was permeated by multiple failures of constitutional dimension, including the
subornation of perjury and the suppression of material evidence, as this Court has previously
found. Finally, even now after the first trial was overturned, the State’s actions have left Mr.
Ziegler unable to fully exercise his constitutional rights to a fair trial.

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120.

Mr. Ziegler has always maintained his innocence and the evidence brought

forward previously before this Court supports that fact. Unfortunately, the State lost or
destroyed crucial evidence that would have further supported that fact and the State’s actions
require relief here.
121.

The remedy of dismissal is required and necessary under the Constitution and

Alabama law. However, the fault for the remedy of dismissal lies exclusively and solely with the
State, and, in particular, the Mobile County Sheriff’s Office and the Office of the Mobile County
District Attorney, the two state agencies responsible for the investigation and prosecution arising
from Mr. Baker’s death and the two agencies responsible for the loss or destruction of the
material and exculpatory evidence discussed herein.
122.

For all of the reasons set forth herein, Mr. Ziegler respectfully requests that the

Court dismiss the charges against Mr. Ziegler with prejudice as a consequence of the State’s loss
or destruction of material and exculpatory evidence.

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Dated: Mobile, Alabama
March 5, 2015
Respectfully submitted,
By: s/ Henry Callaway
Henry Callaway
HAND ARENDALL, LLC
P.O. Box 123
Mobile, Alabama 36601
(251) 694-6224
Thomas Jefferson Deen III
Deenlaw, PC
207 Church St.
Mobile, AL 36602
(251) 433-5860
Brandy Birk Hambright
Hicks, Matranga & Hambright
1206 Dauphin Street
Mobile, AL 36604
(251) 438-2700
John J. Lavelle*
Benjamin R. Nagin*
Nicholas K. Lagemann*
Andrew D. Hart*
SIDLEY AUSTIN LLP
787 Seventh Avenue
New York, New York 10019
(212) 839-5300
* Admitted Pro Hac Vice
Attorneys for Defendant William
Ziegler

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CERTIFICATE OF SERVICE
This is to certify that I have this 5th day of March 2015 caused to be served a copy of the
Defendant’s Motion to Dismiss Based Upon the State’s Failure to Preserve Multiple Pieces of
Exculpatory Evidence Whose Absence Will Prevent Defendant From Receiving a Fair Trial,
attached hereto, by first class mail, postage pre-paid, and properly addressed to:
Stephanie C. Billingslea
Assistant Attorney General
Office of the Attorney General
Criminal Trials Division
501 Washington Avenue
Montgomery, AL 36130-0152
Phone: (334) 242-7300
Fax: (334) 242-4890
scbillingslea@ago.state.al.us
Leigh Gwathney
Assistant Attorney General
Office of the Attorney General
Criminal Trials Division
501 Washington Avenue
Montgomery, AL 36130-0152
Phone: (334) 242-7300
Fax: (334) 242-4890
lgwathney@ago.state.al.us
Ternisha Miles
Assistant Attorney General
Office of the Attorney General
Criminal Trials Division
501 Washington Avenue
Montgomery, AL 36130-0152
Phone: (334) 242-7300
Fax: (334) 242-4890
tmiles@ago.state.al.us

s/ Henry Callaway