ANOTHER PLEADING – U.S. SUPREME COURT REVIEW OF FEN PHEN CASE DEFENDANT WILLIAM GALLION
by Hon. Michael Dowling
Another argument to consider…. (Please take a go at polishing the foregoing) The “one bite at the apple rule” should have been applied to Gallion as a consequence of the near acquittal of Gallion in the first trial that was fair. Gallion’s life Vis a Vis the just administration of justice in the federal court system leaves one to wonder. Is it really like “pulling teeth” to get a just decision in appellate review in a federal criminal appeal.
The Judgment at Nuremberg has this scenario.
“ Haywood visits Janning in his cell. Janning affirms that Haywood’s decision was just, but asks him to believe that he and the other defendant judges never desired the mass murder of innocents. Judge Haywood replies, “Herr Janning, it came to that the first time you sentenced a man to death you knew to be innocent.” Haywood departs; a title card informs the audience that, of 99 Nuremberg defendants sentenced to prison terms, none were still serving their sentences as of the film’s 1961 release. “Gallion asks the Court. Has it really come to this?
The undersigned counsel knows that the denial in this case is a complete miscarriage of justice. It is a “white wash” to avoid the undoing of over a 1000 docket entries and thousands of DOJ man hours prosecuting and destroying Gallion’s life and personal assets. Now all Gallion has is his life and he want to keep it. The notation by Helmers of $50 million for Charity made on the Settlement document during Mediation coupled with Schaefer’s Interview ( that the US had and failed to disclose to the Defense) of a discussion of monies being placed in a Charity during Mediation in the presence of all the AHP attorneys supports a finding that Gallion is INNOCENT of the charge that the $200 million settlement was only for 440 claimants as Gallion testified in both criminal trials.
“Gallion next argues that the prosecution improperly withheld investigatory materials that it received from the KBA. To prevail on his claim, Gallion must show that the prosecution withheld exculpatory or impeachment evidence and that the suppression resulted in prejudice. See Bell v. Howes, 703 F.3d 848, 853 (6th Cir. 2012). Reasonable jurists would not debate the district court’s rejection of this claim because Gallion failed to identify specific materials that should have been disclosed and explain how the suppressed materials would have affected the outcome of his trial.”
The foregoing is a FALSEHOOD. WHOEVER WROTE THAT CANNOT READ .
Gallion’s Application in bold type says the following:
Q. Now, Professor Erichson, in your opinion upon review of all of the information that you have done, in this aggregate settlement that you have described of $220 million for 440 clients, would there be excess funds?
A. No. There is $200 million. That’s the amount that the lawyers have to work with. If the plaintiffs’ lawyers have to do the allocation themselves, then they take that money, they divide it up, they allocate it among their clients. APPLICATION P.10
Only after Gallion and Cunningham were convicted did they learn that during the trial, the U.S. Attorney was aware of, and had access to, documents in the possession of the Kentucky Bar Association (“KBA”) that demonstrated that the KBA was seeking disbarment of Chesley by accusing Chesley of the very conduct that he had denied at trial and had information that was inculpatory with regard to Chesley. Kentucky Supreme Court Order, dated May 14, 2007. Exhibit B in Gallion’s Petition less than 28 USC 2255.
“The OBC is hereby authorized to release to the FBI and its counsel the documents, evidence and information that it has gathered or collected in connection with ANY DISCIPLINE MATTER arising out of the Darla Guard, et al., or Jonetta Moore, et al., v A.H. Robbins, et al., Case No. 98‐CI‐795.”
On April 10, 2006 the Kentucky Supreme Court entered the following Order.
“Upon request of the United States Attorney for the Eastern District of Kentucky directed to the Judicial Conduct Commission for access to the records of the Commission pertaining to Joseph F. Bamberger” the Kentucky Supreme Court in an Order dated April 10, 2006 waived the” confidentiality of papers and information relating to the Commission’s investigation of Joseph F. Bamberger” in favor of the United State Attorney.
Government Response to Gallion’s Motion to Vacate, p. 16. (GALLION’S APPLICATION) “Gallion is wrong. The United States was not provided with any other witness statement, impeaching, or exculpatory material by the KBA. Nor, did the United States have the legal means to obtain such information.”
The court states on page 15 of the Memorandum Opinion and Order that there is no for support for the inference that the Government had information that should have been disclosed to Gallion. APPLICATION PP. 14, 15
David Schafer’s Interview in 2005 with the Judicial Conduct Commission “JCC” was part of Judge Bamberger’s KBA file.
“Mr. Schaefer related the following: “Schaefer recalled that during the mediation sessions (2001), there was talk by some of the plaintiffs’ attorneys of the establishment of a charitable fund to receive any leftover monies as part of the settlement. Although he could not remember exactly which attorneys participated in this discussion, Schaefer believed that Pierce Hamblin, David Helmers, Shirley Cunningham, William Gallion and Stanley Chesley were present, and along with Schaefer’s two co‐counsel”. (D.E. 343‐346) APPLICATION P. 15
At trial on Direct Schaefer testified he did not remember Indemnification being discussed at the May 9 Settlement Hearing. He only recalled telling Judge Bamberger that the total amount of the Settlement was $200 million. (D.E. 294; Vol. 16A Tr.32, 33)
Judge Bamberger testified that in an off the record discussion at the May 9, 2001 hearing where the Settlement was approved he was advised in presence of Mr. Schaefer that indemnification was unlimited.( D.E. 294; Vol 15A, Tr. 82-84; Vol 25A Tr. 52). APPLICATION P.15
“The ultimate injustice is when the court misstates the facts.”
Anthony D’Amato is professor of law at Northwestern University and the author of over 20 books and 110 articles. The latter include: •”The Ultimate Injustice: When the Court Misstates the Facts,” Cardozo Law Review, Vol. 11: 1313 (1990).