Wednesday, December 29, 1999

Mr. John A. Lentine
Attorneys For Petitioner-Appellant
Ronald Patrick Swiney
SHEFFIELD, SHEFFIELD,
SHEFFIELD, & LENTINE, P.C.
323 Frank Nelson Building
Birmingham, AL. 35203
(205) 326-1365

Gentlemen:

On Page 19 of 35 of your petition for rehearing dated 22 July 1994, you came to the conclusion that with the "foregoing arguments the Petitioner reasserts that his conviction is due to be reversed and this cause remanded for a new trial." Excerpts from said page 19 are as follows:

included offense of intentional murder. Ex parte Washington, 440 so.2d 404 (Ala. 1984). Further, capital murder is merely intentional murder with aggravating circumstances. Beck v. State, 396 So.2d 645, 662 (Ala. 1980); Rill v. State, 455 So.2d 930, 932 (Ala.Cr.App. 1984). Specifically, capital murder pursuant to 813A-5-48(a)(lO) Code of Alabama (1975) requires the intentional killing of two or more persons. Ex parte Murray, 455 So.2d 72, 76 (Ala. 1984). Based on the principle expoused in Ex parte Washington, supra., this Honorable Court has ruled reckless murder is not a lesser included offense of capital murder predicated on the intentional murder of two or more people. Walker v. State, 523 So.2d 528 (Ala.Cr.App.), cert. denied, 523 So.2d 538 (Ala. 1988). Therefore, it is clear from these precedents that if the Petitioner's former attorney had properly objected to the giving of such a charge at trial this issue would have been properly preserved for appellate review and constituted reversible error on the subsequent appeal. However, the Petitioner's former attorney initially testified he did not recognize that the improper charge could have lead to reversible error on appeal. (R. 220). He later testified he could not even recall if he knew at the time of trial that it was error to charge on both reckless and intentional murder. (R. 253). In Kuk v. State, 602 So.2d 1213 (Ala.Cr.App. 1992), this Honorable Court was confronted with a nearly identical situation in which a petitioner claimed his former attorney was ineffective because he failed to object to a reckless murder charge given in a case where the petitioner was only charged with intentional -19- <end of excerpt>

The above arguments are based on a presumption that Patrick Swiney was in fact the shooter and at some level, responsible for the deaths of Betty Snow Swiney and Ronnie Pate.

However, in 1997 [10 years after the shootings] State Forensic Lab reports that indicate Patrick was not the shooter surfaced. These reports had been suppressed by the District Attorney during the trial. Remember, the defense attorney had relied on the DA's open files instead of filing a Motion for Discovery.

Also, additional witnesses have recently come forward to verify that the police reports are in error and other witnesses have come forward to verify other anomalies at the trial. Remember, there were no witnesses for the defense. There was only unsubstantiated conjecture presented by the prosecution.

However, all these things come too late for the courts in the State of Alabama to rectify.

Our pro se petition for Writ of Certiorari is presently at the US Supreme Court awaiting denial. After that, we will be approaching the Governor of Alabama. In preparation of this, we are currently in the process of collecting letters of endorsements for Patrick's release from prison.

We have tried to obtain replications of the original photographs and videos that were used during the crime scene investigation but have been turned down by the DA's office because "the case is so old." Like that's a good reason for preventing justice.

There is new technology that was not available at the time of the trial which is called 3D crime reconstruction technology. We want to subject the photographs and video tapes to this new technology to pin down exactly who the shooter is. However, since it was the prosecuting attorney who suppressed the evidence of innocence in the first place, it is no surprise that the district attorney's office has denied any chance of confirming the truth of what happened that awful night.

We have specialists on standby should events take a turn that will allow us to obtain these photos and videos.

As mentioned above, we are in the process of collecting endorsement letters supporting Patrick's freedom. Since you were Patrick's second defense attorney, trying to help get his sentence reduced to fit what you believed was the crime, perhaps you would now write a letter endorsing Patrick's release from prison. Your letter will go into the package we are preparing for the governor.

Keeping Patrick in prison isn't going to hide the truth. Killing him isn't going to hide the truth. Too many people outside now know the truth is being hidden, whereas the only one who knew it at the time of the trial was Michael Campbell who abused his judicial powers.

The innocent ones are not afraid of the truth, only the guilty ones hide the evidence.

We intend to ask the governor to quietly let Patrick go, to avoid any embarrassment for the governor and the State of Alabama. We know he does not have the power to grant clemency of a guilty party except in death penalty cases. But he can recommend a pardon, and when there is a gross injustice, he has the authority to make it right.

We certainly know that it would be most prudent for us to leave the State of Alabama upon Patrick's release, and we already have these plans in motion.

I hope you will join the others who are helping us correct this grave injustice. No innocent person should ever spend time in prison. But it happens every day because of unchecked prosecutorial misconduct.

Please send your letter of endorsement to me at the address below so that I may add it to the governor's package.

I am intending to communicate with the trial judge and other judges who denied Patrick's motions so that they too may review the evidence of innocence, in the hope that they will join us in helping to free Patrick from prison. He has now served 11 years for a crime he did not commit. His health condition is now quite fragile. At age 55, he is a dying man because of the abuse and medical neglect he has received in prison.

He did not receive a fair trial; his right to appointed counsel was denied and his right to federal habeas corpus was denied. All that's left now is the denial from the US Supreme Court, which we expect to arrive shortly. Our plea to the Governor is our last hope for justice in Alabama.

If you have any questions or would like to examine the proof of innocence for yourself, please do not hesitate to call me at 205-621-7699.

Sincerely,
 
 

Sherry Swiney
P.O. Box 1891
Alabaster, AL 35007

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