Ira Einhorn's Reply Brief

After years in jail for a murder there is no evidence he committed, Einhorn finally got a transcript of his kangaroo court trial. The following is the reply brief he filed. Click here for an edition of this document in .pdf

Since it is illegal for Ira to be on the web, he can be reached by postal mail at:

Ira Einhorn
ES6859, P.O. Box 1000
Houtzdale, PA 16698-1000

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The Reply Brief was written over a weekend for the Superior Court of Pennsylvania due to the failure of my attorneys Bill Cannon and M. S. Strutin to file one, in spite of my insistence that they do so.

They then failed to enter it into the records as an addition to the brief they filed on my behalf, in spite of my writing Mr. Cannon four times to do so.

It is part of the record, but will not be part of the Superior Court’s consideration, due to their failure to enter it.

A typical action of ineffectiveness of counsel on their part. I have asked them to leave a number of times and have filed nine other motions, to protect myself and the record, due to their ineffectiveness.

There has been no adequate communication for over two years, though this is the biggest case that either of them will ever have.

IN THE SUPERIOR COURT COMMONWEALTH OF PENNSYLVANIA
EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA

APPELLEE

VS.

IRA EINHORN APPELLANT


DOCKET # 3666 EDA – 2002

TRIAL COURT # 7904-1296-1297

REPLY BRIEF

NOW comes the above captioned appellant, Ira Einhorn, pro se, to file an answer to the DA’s Letter Brief, and avers:

HISTORY

1. In previous motions filed with this court I have raised ineffectiveness of counsel issues which were not treated as the court itself stipulated most recently in Com v. Battle, 879 A. 2d 266 (PA. Super 2005)

2. I then asked the court to follow its own procedure.

3. In the meantime the DA filed his Letter Brief on my appeal.

4. As there is a time limit re: response to the Letter Brief and my lawyers are not communicating adequately, I must protect my interests, as I am effectively without counsel and my sixth amendment rights are being violated.

5. I am relying on Com. V. Blystone 617 A. 2d 788 and Battle (as cited above) as I have no assurance that my counsel will file an answer to the Letter Brief, so must do so myself.

6. If I do not do so, the opportunity will be lost.

7. If my counsel, as asked, does not file a reply, I would ask the court to accept my pro se brief as a reply.

“We will accept for filing pro se appellate briefs, but will not review a pro se brief if counseled brief has been filed, either before, simultaneously with or after the pro se....” (Blystone, as above, Page 7)

INTRODUCTION AND CONTEXT

The theme and underlying tone of the picture of the Defendant Ira Einhorn painted by Joel Rosen in two trials and in brief after brief filed by the DA’s office can be encapsulated by regarding the opening paragraph of the Letter Brief wherein Mr. Einhorn is called “an ersatz intellectual” and a statement from his youth about violence is misinterpreted.

Mr. Rosen and Ms. Christie, who is infamous in Philadelphia legal circles for her acts of judicial misconduct, both left the DA’s office in disgrace.

Mr. Rosen who called the Defendant “a bum who xeroxed things” in the in absentia trial and attempted to demean the Defendant in other ways, was joined in this activity by Judge Mazzola who in spite of his ‘public face’ of fairness often acted as a second prosecutor during both the trial and post trial proceedings. His 218 page(!) 1925(a) statement just dotted the ‘i’.

To set the record straight about all of these matters would require a book, so please bear with the condensed form used below to treat of the question of the Defendant’s intellectual stature, Judge Mazzola’s actions, and most important of all the perjury of the witness who ended the testimony at the trial and whose purpose, successful according to the Philadelphia Inquirer, was to destroy the veracity of the Defendant.

The entire trial was predicated on an attempted conflating of the gropings of a youthful mind full of its enormous still unintegrated reading with its later more mature accomplishments as presented below. Close to 15% of the trial testimony dwelt on alleged unreported prior acts. The defense prepared to defend against the Maddux killing and found itself up against two more very different charges.

The person depicted in the testimony of Michael Hoffman was not the same person who discussed for months in 1977 the process of separation with Holly Maddux.

Mr. Hoffman supposedly remembers conversations from over 40 years ago, but totally ‘forgot’ two major instances that indicated his total trust in the Defendant:

1. Leaving his two infant children with the Defendant overnight, while he and his wife attended a Broadway show;

2. Nominating the Defendant to be a professor in residence hired by the students at his college, University of California at Davis. A process that involved flying the Defendant to California and putting him up for five days while he gave lectures and was interviewed for the proposed position.

All of which would have been clearly described in the Defendant’s journals, mainly unavailable to the defense, as noted in the Defendant’s brief to the court, but made freely available to Steven Levy, author of The Unicorn’s Secret, so that he could write a damning book about the Defendant, which formed the basis for all the media to follow.

A basis which the following quote addresses.

An unprecedented act of prosecutorial misconduct: To take over 60 volumes of diaries from a Defendant, under warrant, and then hand them over to a writer. The Defendant’s address book, also seized under warrant, was handed over to Mr. Levy so that he could easily contact the Defendant’s world wide network of friends and associates.

“And what happened in this case – and I challenge defense counsel or anybody else to cite any case ever – and I really do mean that – ever in the state of Pennsylvania – possibly the whole country – that has so personalized and so sensationalized not just the case but a Defendant.”

Prosecutor Joel Rosen, Notes of Testimony.

The years between 1962 or 1965 and 1977 produced large changes in the Defendant and the culture in which the Defendant emerged as a leader, lecturing in venues all over the United States and Canada, spending time in residence at many colleges, doing numerous print interviews and radio and TV shows, organizing major demonstrations including Earth Day which will be discussed below as it involves a witness who perjured himself. The Defendant spent a good deal of his time with the intellectual and business elite not just in Philadelphia, but all over the planet.

Experience changes an individual, especially experience of the type described below. He was a callow youth from 1958-1965. He slowly emerged as a leader.

To call the Defendant an “ersatz intellectual” is to deny the facts of the Defendant’s actual life: To substitute insult for the actual truth. A process that culminated in the perjury described below.

INTELLECTUAL BACKGROUND

The quotes below are taken from Steven Levy, The Unicorn’s Secret (New York, 1990)

“I learned to rely on him absolutely. If he said he’d do something, he’d do it.....

“What is his reputation in the community?

“The finest, as far as I’m aware.

“The economist was followed by the dermatologist consultant, who was followed by the businessman, who was followed by the playwright, who was followed by the restaurateur, who was followed by the minister – a daisy chain that seemed to have no end. So many prominent people were ready to bestow equally vigorous sworn honorifics that the lawyer had them stand up at their seats and acknowledge that their experiences of the Defendant, Ira Einhorn, were congruent with the testimony thus far.

“There simply was not enough time for all their praises.”

From the Prologue, X.

The lawyer was, now U. S. Senator Arlen Specter.

The description was the Defendant’s bail hearing quotes from which continue below.

“It apparently began to dawn on Marutani that the telephone company actually took Einhorn seriously. It had an arrangement with him. It learned from him. ‘And Bell Telephone,’ the judge asked, ‘with all its wealth, never gave him a dime?” (page 37)

Judge William M. Marutani a respected jurist was totally puzzled by the Defendant’s relationship to a branch of what was then the world’s largest corporation. He kept questioning the Bell Telephone Vice President.

“What would be in it for people such as Ira to go to all this trouble?” (page 37)

Ed Mahler, the Bell Telephone V.P. didn’t have an easy answer to that question: “No, it was not money or any such motive that led Ira to set up his unique operation. Ira operated on a different kind of value system. He worked, without pay, for Planet Earth..” (page 37)

Pages 144-146 of the book describe parts of the Defendant’s relationship to the Bell Telephone Company and the rest of the business community, summed up by two quotes:

1. ‘Beard or no beard, the Unicorn became a valuable resource for the phone company.” (page 144)

2. ‘I don’t think in his way Ira was any more of a con man than I am.” Says Thatcher Longstretch, now a City Councilman. ‘I’m a con man, as president of the Chamber of Commerce, I tried to get my members to do things that I thought were good for them. Likewise, Ira’s interest really seemed to be the betterment of the world at large. If that was a con, it was one a person could support wholeheartedly (page 147).

The next quote has to do with a book editor friend at Doubleday Anchor, Bill Whitehead: “In the wake of this was a hunger for knowledge about human consciousness, self-realization and global thought that acknowledged both the Bucky Fuller Systems sensibility and the strange worlds unlocked by psychedelic drugs. Perhaps no one in the United States of America was more in touch with this mode of thought in 1970 than Ira Einhorn, and the two developed not only a warm friendship but a mutual respect that led to a highly unconventional arrangement, as far as the publishing world went.” (page 154)

“Ira became a de facto consulting editor to Anchor Books.” (Page 154)

The next paragraph describes the slew of books I had published in this prestigious series and the lack of any concern for compensation. I will not quote it.

The following paragraph describes the network called by some “the Internet before the Internet existed.’ It was serviced by the Bell Telephone Company.

“By the mid-1970s Ira Einhorn’s network was a certified phenomenon in and of itself. Names appearing on the cover letters of recipients of a given piece might include economist Hazel Henderson, Lehmann Brothers Managing Director Shel Gordon; Seagram Heir Charles Bronfman; futurist Alvin Toffler; Science Adviser to the British Commonwealth Christian De Lait; Corporate Presidents John Haas and George Bartol: Whole Earth catalog publisher Stewart Brand; Physicist Freeman Dyson, David Bohm, Frijtof Capra and Heinz Pagels; Esalen co-founder Mike Murphey; Journalist Alex Cockburn and Jack Anderson, authors Colin Wilson, Robert Theobold and Thomas Kuhn. ‘Adam Smith’ (himself a recipient of certain network mailings under his real name Gerry Goodman) wrote a column about it in New York Magazine, calling it ‘the far-out physics underground’; Smith described an afternoon discussing various mailings with fellow network recipient Arthur Kosetler.

“Einhorn’s network came under study in a 1978 Diebold Corporation study entitled “The Emergence Of Personal Communications Networks Among People Sharing The New Values And Their Possible Use In Sensitizing Operating Management.” It compared the network to the communities of correspondence during the American revolution, and to the invisible colleges of science in Britain that thrived before scientific discussion was legalized in 1663. It claimed that ‘much of our future’ resides in networks like Ira Einhorn’s.” (Page 186)

I’ll close this section of quotes about my ‘ersatz intellectual’ activities with a comment Levy made about a future study: Probes For A Time Of Crisis that I did for George Bartol, Chairman of the Board of Hunt Manufacturing Company:

“Read over a decade later, Einhorn’s observations seem prescient in predicting the business struggles of the 80’s: the report was a blueprint for redefining a corporation, making use of Japanese-style management, in-house entrepreneurial efforts, and a sensitivity toward workers that looked beyond standard management – worker conflicts.” (Pages 200-201)

In addition to the above consider the following list drawn at random from a much larger list compiled for the Defendant’s autobiography:

1. Nominated for a Harvard Junior Fellowship by Thomas S. Kuhn, the most cited intellectual of the 20th Century.

2. Nominated by John Cage for a Guggenheim Fellowship.

3. Appointed as a Fellow at the Institute of Politics at Harvard.

4. Paid $1,000 by the Diebold Corporation to lecture on networker. A lecture that produced a number of corporate offers at the same fee.

5. Appointed by the Governor of Pennsylvania to serve on the year 2000 Commission for the Delaware Valley area.

6. A member of the National Commission, created by the O. T. A. to study the influence of telecommunication upon transportation.

EARTH WEEK

The need to demean, to lie about the Defendant’s past to call the Defendant an ‘ersatz intellectual’ or ‘ a bum who xeroxed things’ is typical of those who have a weak argument. It is an old rhetorical gambit called ad hominem. You don’t have the facts, attack the man.

There is another more straight forward technique: get someone to lie. That is what Joel Rosen managed to do re: the Defendant’s Earth Week activities.

It is what was done throughout the trial. The truth was bent, as the enormous publicity loosed by the prosecutorial misconduct in giving Steven Levy the Defendant’s journals and address book had its inevitable effect: People more than happy to comply with seeing this ‘bum’ get his just due.

In his rebuttal testimony (Vol. 13, Pages 157-168) Dr. Nathan claimed that the Defendant had nothing to do with Earth Week, attended no meetings, was not the emcee of the event and wanted to turn the event into an attack on corporations and a number of other ludicrous statements in light of the actual truth.

I will first present some background, then some quotes from the principles involved. Note that the source for two of the quotes; Ed Furia and Austan Librach are the first two names Doctor Nathanson mentions on Page 163, Vol. 13 of the Notes of Testimony.

The shift of movement energy towards ecology was done consciously. The riots in Chicago in 1968 disturbed a number of counter cultural leaders including the Defendant, so they began to shift energy towards what became Earth Day: The first ecological movement publication was created, Earth Read Out, to which the Defendant contributed; the Defendant began to read all the ecological literature then available, he also began meeting with Professor Ian McHarg.

When the idea for a mass ecological demonstration emerged the Defendant was contacted by a number of people and asked to help create the event as by then he was known nationally as a good organizer. One of these people was Austan Librach. Ian McHarg sent him to me.

“An agreement was forged: Ira would deliver what constituency he had, and work with the Earth Week Committee behind the scenes. On the main celebration, Earth Day itself, he would act as the public Master of Ceremonies.” (Librach in Levy, Page 138.)

Then the business community was dealt with as they were planning to attack Earth Week efforts with a Sunday Supplement insert that the Defendant convinced Thatcher Longstreth was suicidal.

“And there was a feeling that Earth Week was another sort of preparation by students and radicals to create a ferment in the community.” (139)

“Among them was Ira Einhorn, who was turning out to be quite an asset for Earth Week in terms of winning establishment support. ‘He was somebody whom I’d known and regarded as a slightly eccentric wacko, but as I got to see more of him, I learned that he was highly intelligent and had a very valuable thrust on this whole action,’ says Longstreth. ‘He was quite good fun – a personable, entertaining person to have around. And we got to be friends.’

Longstreth argued the Earth Week case to the Chamber, and got them to listen to the organizers, Austan Librach made a strong pitch for business support, but the more memorable presentation was made by Ira Einhorn. “He made a personal request for cooperation before a fairly large group, and he did a perfectly beautiful job,’ Longstreth recalls ‘the major thing about Ira was that in areas of disagreement between the establishment and the flower children, Ira was a pretty good bridge. He wasn’t anti-business at all. He was quite business-oriented himself, and had he chosen to go in that direction, he would have probably been a very successful businessman’.” (page 139)

$s in hand, Ed Furia, with my participation, was hired to be the front man and handle the office. His therapist at the time, Dr. Nathanson, came along for the ride and did not organize or originate anything.

Here is Ed Furia on the Defendant: “ ‘ Ira got on the phone and started calling gurus and famous people in the community , all of whom he knew.’ Ira got commitments from Allen Ginsberg, Alan Watts, Dune author Frank Herbert and Nobel Laureate George Wald .”

The Defendant structured and organized both large events. He was also the emcee for both events. The actual Earth Day event held on Belmont Plateau electrified the city. It was one of the largest gatherings, up to that time, in Philadelphia history.

It was that event, which Philadelphia took the lead in, propagated by TV which lead to the formation of the EPA.

If I can manage to reproduce the picture from the book of the Defendant at Earth Day, it will appear as Exhibit One. The summation captures the gist of the quotes above:

“Ira Einhorn in his glory, hosting the huge Earth Day celebration in April, 1970. Ira was the most visible figure in the massive, nationally televised festival. In the process of working with the Chamber of Commerce to present the event, Einhorn developed contacts that led to his becoming a guru of the business community; eventually Bell Telephone financed his networking efforts.”

(Caption to Earth Week Picture in Levy Book)

Compare the two reports of my Earth Week Activities: one highly researched account done a few years after the event; the other a tissue of lies, perjury in short, that totally skewed the trial for it destroyed the veracity of the Defendant in the eyes f the jury.

THE JUDGE

The third prong of this attack was made by Judge Mazzola.

His closing attack on me is indicative (Vol. 17, Pages 9-11).

The Defendant is an ‘intellectual dilettante’, reads the first and last chapters of books, a ‘pseudo-classicist etc. An entire condensed litany that the pages above expose as bias.

Then to cap the attack he says (Vol. 17, Page 10) that a word I used in the trial psychotronics doesn’t exist, and that the correct word is psychotropic.

The DA uses the word psychotronics in his Letter Brief and it indeed does exist. In fact, at the time of the trial, google.com would have returned over 4,000 hits, 3 of which are long articles about the Defendant (all in the top 20) which deal with the Defendant’s activities and interaction with Phillip K. Dick, a world famous sci-fi writer whose work lies behind Minority Report, Blade Runner and a number of other movies.

His words of derision are pure projection, not based on any evidence – miming a good deal of the trial.

Moments after insulting the Defendant, Judge Mazzola invited the jury back into the box and invited TV cameras and the rest of the media into the court room for extensive celebrations and interviews.

My lawyers looked on in amazement for TV is forbidden in the court room without expressed consent.

The function of a judge is to serve as a referee, to keep the playing field level. Judge Roberts made this clear during his Supreme Court Confirmation hearings.

Judge Mazzola failed to do this in many instances.

A few are part of the issues complained of. Others are noted below.

1. His outright refusal to allow us to put our prosecutorial misconduct claims on record. A clear violation of my due process rights.

2. A bag of dimension 4” by 8” with the printed words: ‘Bullshit Bag’ was on the prosecution table while the Defendant was testifying (Vol. 13, Pages 3-6). The jury may have seen it; it may have been held up during the Defendant’s testimony. Certainly grounds for a mistrial, but Judge Mazzola refused (William Cannon made a motion to that effect) to put Ms. Lineberger under oath so she could be questioned about behavior so detrimental to a fair trial.

3. The judge failed to rule on a mistrial motion, made by the defense, due to a statement made by Mr. Rosen to the press. He took it under advisement and said he would rule later, but never did.

4. His 218 page 1925(a) statement that totally ignored all standard procedures. The DA attempts to apologize (page 12, FN. 2) for the judge’s outburst, but the excuse is feeble. The appeal was delayed for 29 months, producing an ice cold record and greatly harming the defense. I would say, directly that a 218 page 1925(a) statement goes to ‘state of mind’ and that calling it indicative of bias is mild.

5. When the judge finally filed he had been in contempt of court for six months.

Consider Burkett v. Fulcomer, 951 F. 2d 1413: Delay of 18 months between notice of appeal and Affirmation Of Judgment violated due process.

Delay was directly caused by trial Judge’s failure to file opinion for one year.

The Defendant waited 29 months. Almost 40 months ago his 1925(b) statement was filed.

6. In his history of the case, he acts as if my four docketed motions about his untimely actions are non-existent. A lie.

7. In his overblown statement, he praises the Defendant’s lawyers in three instances (pp 5, 173 & 215), hardly the function of a 1925(b) statement. An obvious attempt to protect them against an ineffectiveness of counsel claim.

8. He also asks the court to close out all further appeals and rule negatively on an ineffectiveness claim that had not yet been raised. Bizarre.

“Disqualification of the trial judge is mandated whenever a significant minority of the lay community could reasonable question the court’s impartiality.”

Code of judicial conduct, canon 3, subdivision C.

Or Dunn V. Board of Property, 877 A. 2d 504: “in general, recusal is required whenever there is substantial doubt as to a jurist’s ability to preside over a matter impartially.”

9. The Frye issue was raised by counsel three times (Vol. 3, Page 12; Vol. 3 Page 91, and in a long sidebar, Vol. 7, Pages 89-95) but it is what the judge says on pages 215-216 that must be read to be believed: “...as there is no indication on this record that a Frye hearing was ever requested, let alone considered, except here as an untimely afterthought on appeal. Still, defense counsel cannot be said to be ineffective in that not requesting a Frye hearing was a sound strategy, especially where, as here the Defendant is notorious for trying to manipulate a legal system for which he clearly has nothing but contempt.” (pages 215-216).

This is so blatantly ridiculous that I have to keep rubbing my eyes. Constitutional issues are not dependent on the attitude of the Defendant.

If Frye is waived, counsel is decidedly ineffective, as the allowance of Tumosa’s Testimony, which does not qualify as adequate under any standard and seriously prejudices the defense, claims about cumulative weight of the evidence notwithstanding.

There is much more, but the above ought to indicate that the judge functioned as a second prosecutor. Then not satisfied with that dual role, he now wants to tell the appeals court what to do.

The overview just provided above along with the Rosen quote (page 5) is indicative of the thoroughly one-sided context in which the Defendant was tried. The attempt to rewrite the Defendant’s history, by allowing blatantly outdated alleged prior acts into testimony, overwhelmed the jury by attempting to rewrite history. 1977 became 1965, so that he could be fitted into a category that excluded his growth and development. That which doesn’t fit is erased or twisted. He is a homicidal maniac. End of story.

Let me take one example: “violence always marks the end of a relationship.” To insist that means that every relationship ends in violence is patent nonsense and obviously false.

What the statement refers to is a simple fact: Once violence enters a relationship it indicates a deep communication failure, creates an impassible barrier and indicates the end of a relationship.

A simple statement twisted into a cult of violence, as with the idea we must confront our inner violence. ‘Confront” means regard, observe, not act out.

The Defendant learned much from the egregious incident with Ms. Sabot. He became a public figure who often soothed public hysteria.

If the Defendant had hit Holly Maddux, he would have recorded such incidents, as he hid nothing from his diary. There is only one recorded incident wherein Holly hit Ira with a bunch of keys and he slapped her back.

Holly had skin that would show marks for months, but her closest friends, Barbara Kubiak and Ruth Fink and her two therapists: Bea Klegg and Marion Coopersmith saw nothing. She saw Barbara and Ruth regularly. They saw no marks of violence, as there was none. Holly would not have put up with any violence. If there had been any, she would have left immediately and never returned.

But woodcutters see lumber not trees and prosecutors in the USA in 2006 see only guilt.

Thus the three pronged attack on the Defendant described above re:

Einhorn as ‘ersatz intellectual’, ‘a bum who xeroxed things’, a homicidal maniac.

A non participant in Earth Day though he helped organize it, convinced the business community to fund it and structured and emceed the two main events’

What Judge Mazzola has done under color of law; all flow out of percepts that do not bear up under scrutiny.

The above observations backed up by years of research that went into the Levy book indicate serious procedural violations in the case in front of this court they form the context for a few brief comments on the issues before the court.

ISSUE NO. 1:

ALLEGED INFORMATION FROM PRIOR ACTS SHOULD NOT HAVE BEEN INTRODUCED:

1. Ms. Resnick and Mr. Einhorn were the same age. Thus the contention that the Defendant was substantially older is nonsense.

2. Powelton Village in 1962 was not on a college campus, so the location of this alleged attack is not part of a pattern.

3. Neither Ms. Resnick nor Ms. Sabot reported the incidents.

4. Neither Ms. Resnick nor Mr. Einhorn were certain about what had actually happened.

5. Neither woman was hurt badly, so to equate what allegedly happened with Ms. Resnick (incident unclear), and Ms. Resnick did not testify, and what the Defendant admits happened with Ms. Sabot with the murder of Holly Maddux is to compare apples and oranges.

6. Ms. Resnick and Mr. Einhorn did not break up over the alleged incident but continued to see each other.

7. The idea of a common scheme, plan or design is a nonsense.

8. Holly Maddux had left a number of times before, often disappearing for months at a time.

9. The couple had agreed to separate. They discussed the terms of the separation for the entire spring of 1977. Ms. Maddux was not moving to Alaska, but across the street. They had agreed to continue seeing each other. She had insisted on going to Europe with Mr. Einhorn. There was no reason to kill her. All this is fully documented in parts of my testimony, my journals and the Levy book.

The introduction of prior acts, 11 or 12 and 15 years old (the DA’s math in attempting to reduce these figures doesn’t work) which as the above demonstrates, do not conform to the idea of any common scheme, were prejudicial rather than probative. The effect through 100’s of pages of the DA’s opening and closing statements the testimonies of Mr. Hoffman and Ms. Sabot and Mr. Einhorn could not help but make an injurious impression of the jury. A few words from Judge Mazzola could not even begin to balance the effect produced by 15% of the record. The introduction of such evidence dominated the trial.

Any objective observer would have thought that the Defendant was being tried for the alleged attacks upon Ms. Resnick and Ms. Sabot. A poem, words dealing with violence surrounding these distant situations were brought up again and again in a succession of hammer blows that had to make a deep impression upon anyone, let alone a jury who had been subjected to a previous barrage of negative publicity. A few words from a judge could not cure such an effect. Supreme Court Justice Jackson made this clear in a number of opinions as does Comm v. Satzberg, 358 PA. Super 39, 516 A 2d 758 (1986) (“Believing the jury could ignore the illegal evidence because of the judge’s instructions is not realistic.”). The overall effect was extremely prejudicial not probative. A judicial error was made. A new trial should be granted.

ISSUE NO 2:

42 PA C. S. A. #9543(C) IS UNCONSTITUTIONAL:

The rhetoric employed in attempting to turn away the challenge to the ‘Ira Einhorn Law’ (how it was described in a recent law book) should not be allowed to obscure the basic issue.

1. Circumstances around the creation of the law demonstrate that the law was created for Mr. Einhorn and Mr. Einhorn alone. Legislative discussion said this quite plainly.

2. Mr. Einhorn had a final decision.

3. Only a court can overturn a final decision.

4. A legislative act can’t overturn a final decision, for to do so is to violate the separation of powers and to trample upon the prerogatives of this court and others.

5. Comm v. Sutley, 378 A. 2d 780 (PA. 1977) and an unbroken line of cases on both the federal and state levels support the simple propositions stated in 2-4 above.
6. There is no contending case and the DA does not cite any. The law is unconstitutional and should be voided.

The aftermath of such an action is governed by very settled law. See U.S. v. Khan, 993 F. 2d 1368 (C. A. 9 (Nev.) 1993) which uses this authority which governs such cases and has for over 100 years U.S. v. Rauscher, 119 U.S. 407, 419-421, FS. Ct. 234, 240-241, 30 L. Ed 425 (1886) (FN 4). This court should void the trial as the law was unconstitutional. The aftermath of such a decision will have to be settled by the Supreme Court of PA or in Federal Court.

Let such an order be made.

ISSUE NO 3.

RE-TRIAL SHOULD HAVE BEEN BARRED

1. The hysteria generated around the Defendant (see Rosen quote, page 5) is a direct outgrowth of Ms. Christie’s behavior. She turned over or allowed access to 10,000 pages of the Defendant’s journal which was seized under warrant when the Defendant was arrested. She also turned over his address book to facilitate access to persons mentioned in the journal.

Sheppard V. Maxwell, 384 U.S. 6, 865. Ct. 1507 (1966) covers Judge Mazzola’s responsibility to deal with such corrosive actions.

The book that resulted from such behavior, The Unicorn’s Secret, cited above, is littered with quotes from the Defendant’s journals. There is no similar egregious action in the case law.

To turn over evidence to a journalist, pre-trial, so that it can be known publicly, poisons any possibility of a fair trial.

The Levy book, republished a number of times, most recently in 2000, poisoned public opinion against the Defendant. It formed the basis for a scurrilous TV mini-series, now on video in many languages all over the planet and at last count 13 TV specials that played again and again, pre-trial, and still play to this date late in February, 2006.

To say that Ms. Christie did not do this with intent to harm is ludicrous. She knew exactly what she was doing, and did similar things in a number of other cases (Com v. Raymond Martoranto and Albert Daidone Nos. 0002 and 0003 E. D. appeal Docket 1998 – knows as the roofer’s case) among others.

Judge Mazzola was also fully aware of what he was doing when he did not allow the record to be developed on this unprecedented issue of prosecutorial misconduct, as mentioned above (page 15, point 1). It is a direct violation of the Defendant’s right to be heard and raises due process issues and the constitutional right to defend oneself.

When a prosecutor’s actions lead to such hysteria (again read the Rosen quote) discussed minimally (see Vol. 1, PP. 37-44) on the basis of 565(!) newspaper articles, the judge can’t just bar the actions which produced such behavior from the court room. To do so is to prejudice the defense gravely.

To grant waiver would be to sanction both Ms. Christie’s egregious actions and the judge’s protection of such actions.

Just for the record; the Defendant’s journals are mentioned on pages: 159, 162, 165, 166, 187, 188, 194, 201, 203, 204, 215, 221, 226, 227, 228, 229, 310, 315, 316, 317, 318, 319, 322, 323-5, 326-327, 332-34, 336, 338, 339, 340-1, 345-6, 351-2, 360.

2. Ms. Christie did not just send the materials to the FBI. When she did not get the results desired she sent the materials to Toxicon Associates. They too, ‘failed’ her. So, she then turned to the man she had skipped over twice who invented a new untested, un peer reviewed procedure to save her case. She shopped around as testimony made clear (see Vo. 7, pages 60-69).

Once again Judge Mazzola did not permit the matter to be discussed in the pre-trial hearing on the matter.

3. Ms. Christie took the ‘Pearce Report’, the original basis of all the prosecution’s evidence, blew it down in size which in the process removed the page numbers. She then removed a number of things (some of which the defense has never seen as far as I can tell.) She removed five exculpatory sightings, two of which, in spite of five court hearings about the matter, testified to by Mr. Gelman, were not given to the defense until 2002. These Brady violations cast a shadow on the in absentia trial and prevented the defense from using one of them in 2002 as the man had died. Both sightings held back until 2002 were made by Philadelphia police detectives.

The Letter Brief’s discussion of these matters is both evasive and disingenuous. It states that this matter relating to discovery was completed by November 7, 1979. That is not true as the exculpatory statements (Brady Material) of both detective Draper and his partner were withheld in spite of five court hearings. As said above, they were withheld during the in absentia trial.

Other things were withheld: that ‘but‘ (October 11, 2002, Vol. 11, page 59) that Norris Gelman was not allowed to finish.

To prevent such obvious violations of due process from being brought to light and discussed, is to make a mockery of the right to defend oneself.

The court should satisfy itself by holding a hearing on these matters as rubber stamping such prosecutorial and judicial behavior is in flagrant disregard of our judicial principles. One can’t create a record when one is not allowed to be heard.

Failing to grant the above, the court has no choice but to declare a mistrial.

ISSUE NO VII:

DR. TUMOSA’S TESTIMONY WAS INADMISSIBLE

The forensics are key to any murder investigation. When Ms. Christie came up empty twice in farmed out testing, she turned to the man, Dr. Tumosa, who had been spurned twice. He then used a novel test which had never been published or peer reviewed. This made his test inadmissible as the Defendant demonstrated in his appeal brief.

Dr. Cordova who was Dr. Tumosa’s former boss made it clear in his testimony (Vol. 10, Pages 137-140) that what Dr. Tumosa did would never pass muster in the forensic community. The four pages are a lesson in admissibility. Dr. Tumosa flunked. He then added (Vol. 10, page 159): “...it’s got to be a validated technique, a technique that has been tested by other people. That’s the bottom line. Either you do it right or you don’t do it at all.”

Strong words, but a life was at stake.

Dr. Arden made it clear (Vol. 12, Pages 63-68) that if Holly Maddux had been killed in the apartment she shared with Mr. Einhorn, blood would have splattered everywhere. No blood was found. He also made it clear (Vol. 12, page 47) that the smell of a decaying animal does not differ from the smell of decaying human remains and that the odor of a human body decaying would remain for a long period of time. (Vol. 12, page 44).

Yet, Einhorn had visitor after visitor (Vol. 12, page 144), some who stayed overnight, one who spent a weekend. They smelled nothing, yet the prosecution insists a body was decaying in a trunk less than ten feet from where the visitors slept.

Holly was also sighted at least five times, months after she was supposedly dead. Could all these people have been wrong?

Thus the ‘mountainous’ weight of the evidence becomes rather shaky. Dr Tumosa’s improper testing took away from the Defendant’s assertion that Ms. Maddux was not killed in the apartment as the testimony of the five sightings, his many guests, the FBI agents, Dr. Cordova and Dr. Arden suggest.

One does not order a third forensic test when the two previous tests give you what you want. The DA needed some forensic good news. What it got was an inadmissible test that never should have been allowed in the court room.

The Defendant deserves a new trial.

ISSUE X:

THE VARIANCE HAS NO JUSTIFICATION

The variance in the date of the murder is not a question of a few days as Ms. Maddux was seen alive by a number of people months after her supposed death. She was seen in two separate banks, once in down town Philadelphia and in the Powelton Neighborhood by two Philadelphia police detectives. All of these sightings were initially withheld by Ms. Christie, as described above (Page 25).

The Defendant also had a number of visitors, one spending the weekend, others sleeping overnight. No one smelled anything, though the prosecutor claims a corpse was decaying under their noses.

The date itself was set in stone by the American promise to the French re: the death penalty.

The evidence re: screams, thumps, smells and leaks would also disappear, as would the faulty common scheme rational.

The prosecution focused on the September 11, 1977 date for twenty-one years.

The defense was totally focused on that date.

For the judge to suddenly declare that the date is not essential was to both undermine the defense and to give an advantage to the prosecution that destroys the concept of a fair trial.

To give an unrequested instruction stating that “the date of the death is not an essential element of the crime” destroyed the defense and turned the trial into a nullity. The date of death was the keystone upon which both the prosecution and the defense built their case. To remove it is to reduce the trial to rubble. The Defendant should be granted a new trial.

Murder is a heinous act. If I were guilty, I would deserve the severe sentence I received, but I AM NOT GUILTY, I DID NOT KILL HOLLY MADDUX. The real murder in this case has been truth and respect for the law and justice.

Respectfully submitted, Ira Einhorn