VIRGINIA: IN THE CIRCUIT COURT OF ALBEMARLE COUNTY COMMONWEALTH OF VIRGINIA v. MARK LAWRENCE WEINER Case No.

CR13000030-00

MOTION TO SET ASIDE VERDICT The defendant, by counsel, pursuant to Rule 3A:15, Code 8.01-428(D), and this courts inherent authority, hereby moves this Honorable Court to set aside the verdict against him and vacate the order adjudicating guilt based upon actual innocence, insufficient evidence, actual intrinsic fraud upon this court by Chelsea Steiniger, constructive intrinsic and extrinsic fraud upon the court by the prosecution, the presentation by the Commonwealth of false testimony, prosecutorial misconduct in failing to disclose exculpatory information, and constructive extrinsic fraud upon the court and ineffective representation by his trial counsel, all of which denied the defendant each of his Sixth Amendment rights and his right to a fair trial in violation of the due process guarantee of the Fourteenth Amendment to the United States Constitution and Article I, Sections 8 and 11 of the Virginia Constitution. On December 14, 2012, Mark Weiner was charged with abduction with intent to defile in connection with an alleged abduction of Chelsea Steiniger on December 13, 2012. On May 2124, 2013, Mark Weiner, represented by Ford Childress, was tried by a jury and found guilty of the charge with a jury recommended sentence of 20 years. Following the substitution of current counsel, the sentencing scheduled for April 30, 2014, was continued for the litigation of postverdict motions.

INTRODUCTION Mark Weiner was convicted of a crime that never occurred. Chelsea Steiniger, the Commonwealths only witness to that crime, fabricated an abduction to manipulate and provoke her boyfriend, Michael Mills, when he would not let her stay at his apartment after 11:30 p.m. on December 12, 2012. Chelsea walked from the boyfriends apartment on Grady Avenue to a Lucky 7 convenience store, where she received a ride from Mark Weiner. When they arrived at her mothers apartment, she gave him her phone number and got out. Chelsea then began texting a made-up story to her boyfriend, pretending she had been abducted. She refused to answer her boyfriends calls, and began sending him texts pretending to be the abductor. When the boyfriend said he was calling the police, 1 she stopped pretending to be the abductor, called the boyfriend and sent texts, saying that she had escaped and was hiding in the woods. She refused the boyfriends request that she call 911, 2 she refused to answer two calls from Police Emergency Communications Center (ECC), and after listening to a message on her cell phone from ECC to call them so they could locate her, she deleted the phones record of the call (Tr. 777, 831), 3 and stopped using her phone. Despite her efforts, the police became

She testified at Preliminary Hearing on January 3, 2013, that when she was in the woods, she saw his text to the abductor that he was going to call the cops unless he spoke to her (Transcript, January 3, 2013, at p. 79).
2

On December 13, 2012, Michael Mills told Charlottesville Police Officer James Tennyson that he got a call from Chelsea Steiniger saying she had jumped out a window and was hiding in the woods. Michael Mills told Chelsea Steiniger to hang up and call the police.
3

The transcript of the court proceedings on May 17, 2013; May 21-24, 2013; and August 27, 2013 was filed with the Clerk of this Court on April 14, 2014. All Tr. references are to that transcript. All other documents referenced in this Motion are attached as exhibits. 2

involved and found her at home, where Chelsea continued her fraudulent scheme, ultimately perpetuating it on this Court. To do this, Chelsea had to explain how the abductor texted from a phone she still had; how she was abducted without a struggle, injuries, or restraints; and why she never called 911. Because Chelsea was permitted to testify falsely, and because cellphone records and other evidence were not admitted that would have proven her lies, the jury was denied material evidence of her perjury and of Mark Weiners innocence. For the reasons set out in this motion, the guilty verdict returned in this case should be set aside, the adjudication of guilt should be vacated, Chelseas testimony should be struck, and a judgment of acquittal should be entered. FACTS CELLPHONE EVIDENCE CHELSEAS PHONE 1. Chelsea Steiniger testified that after she began yelling and cursing at her abductor for passing her street and not letting her out, she was rendered immediately unconscious by an unknown inhalant at 12:22 a.m. on December 13, 2012, and was taken to an abandoned house at 2184 Richmond Road. 2. She further testified that: a. While she was unconscious, Mark Weiner used her phone (434-242-8764) to send five text messages between 12:23 a.m. and 12:41 a.m. (Tr. 329-332; Photos of text messages on Chelseas phone - Commonwealths Trial Exhibit 1; Summary of text messages Defense Trial Exhibit 60). b. When she awoke 20 minutes later in the abandoned house, she recovered her phone, jumped off the second story balcony, hid in the woods, and sent three text messages to her boyfriend, Michael Mills. 3

c.

Her third text - that she was about to go out the window - was sent when she was already in the woods, and was sent to stop her boyfriend from calling her (Tr. 343: It was the first thing that popped into my head).

3.

In order to explain why she never called 911, she testified that: a. Her phone died (stopped working due to a depleted battery) after she sent that third text at 12:52 a.m., a couple of minutes after she had escaped into the woods (Tr. 340-344, 413-414; Commonwealths Trial Exhibit 1). b. c. She received no calls from her boyfriend (Tr. 414). She was unable to use her phone until she walked two miles to her mothers apartment at Knightsbridge Court and charged her phone for 5-10 minutes (Tr. 345-349). d. She did not call her voicemail and retrieve a message from the 911 operator until she was home and had recharged her phone (Tr. 349, 372, 414).

4.

On March 22, 2013, law enforcement obtained AT&T Mobility Usage records concerning the voice and text usage of Chelseas phone. 4

5.

On April 3, 2013, Det. Greg Anastapoulous had a recorded telephone conversation with an AT&T representative in which the voice and SMS usage detail and cell tower information in the records were explained. This recording was not provided to trial counsel and was only made available to the defense after trial (see Childress Affidavit,

A copy of these records was introduced in support of the defendants motion to continue on May 24, 2013 as Exhibit D and is attached as an exhibit to this Motion to Set Aside. A request for issuance of a Subpoena Duces Tecum to AT&T for authenticated copies of these records was filed on March 27, 2014. Copies of the AT&T Mobility Usage records were obtained by the defense only after they were admitted into the record during the motions hearing after jury deliberations began (Tr. 1205 Exhibit D). 4

paragraph 10). The recording remains in the sole possession of the Commonwealth. 6. The AT&T Mobility Usage records and the recorded call with the AT&T representative prove actual intrinsic fraud upon the court by Chelsea Steiniger, including the following: a. During the period that Chelsea testified her phone was dead following her escape into the woods by 12:51 a.m. (Tr. 414, 342-344) and until she arrived home and recharged it for 5-10 minutes (Tr. 348), the phone was not dead. Instead, Chelsea used it as follows: (1) to call her boyfriend at 12:56 a.m., (2) to answer a call from her boyfriend at 1:00 a.m., (3) to retrieve a voicemail message from the 911 dispatcher at 1:09 a.m. (See AT&T Records, p. 1-2, Items #27, 28, 31-33). b. Contrary to Chelseas testimony that she did not get any phone calls that she answered (Tr. 344), that Michael Mills did not call her (Tr. 414), and that she did not talk to anyone while she was in the woods (Tr. 344): (1) Chelsea spoke to her boyfriend three times: (a) at 12:47 a.m. (19 seconds - she called him) (b) at 12:56 a.m. (for 1 minute and 23 seconds she called him) (c) at 1:00 a.m. (23 seconds he called her). (2) She also received two calls from ECC and accessed her voicemail: (a) at 1:07 a.m., ECC called her and left a voicemail message (b) at 1:08 a.m., ECC called her again (c) at 1:09 a.m. she called her voicemail, entered her password, and retrieved the ECC message 5

(See AT&T Records, p. 1-2, Items #27, 28, 31-33). c. The time when Chelsea called and accessed her voice mail to listen to a message from the Emergency Communications Center from home (Tr. 372) was at 1:09 a.m., contrary to her false testimony that she was in the woods at 1:09 a.m. with a dead phone (AT&T Records, p. 2 Item #33). d. Contrary to Chelseas testimony that she did not listen to the ECC message until she recharged her phone and right before she spoke to the police at Michael Mills apartment (around 2:00 a.m.) (Tr. 349-350), she listened to the message at 1:09 a.m. an hour earlier (AT&T Records, p. 2 Item #33). e. Between 12:00 am and 2:14 am on December 13, 2012, Chelseas phone accessed the two AT&T cell towers near her mothers apartment dozens of times and never accessed the AT&T cell tower closest to the abandoned house (Tr. 1174-1183; AT&T Records; Report from Glen Bard). 7. The cellphone records prove that Chelsea Steiniger committed perjury by testifying that on December 13, 2012, (1) she was at 2184 Richmond Road; and (2) her phone died minutes after she had entered the woods around 12:51 a.m. 8. The cellphone records establish Mark Weiners innocence by proving that Chelsea Steiniger was at home at 1:09 a.m. and not in the woods behind an abandoned house. 9. By testifying falsely as to the entirety of events after 12:22 am, Chelsea Steiniger committed actual intrinsic fraud upon the court. By preventing the evidence in the cellphone records from being presented to the jury to prove the falsity of Chelsea Steinigers testimony, the prosecution committed constructive fraud upon the court. By failing to get the cellphone records admitted into evidence, trial counsel failed to provide 6

effective assistance of counsel and committed constructive fraud upon the court. CELLPHONE EVIDENCE MARKS PHONE 10. Chelsea Steiniger testified that: a. At 12:41 a.m., Mark Weiner used her phone to send a text message and then set the phone down. b. She picked up her phone and sent a text message at 12:49 a.m. (Baby); but she did not know whether she was in the house or the woods when she sent this message (Tr. 332). c. By 12:51 a.m., when she sent another text message (I cant answer hell find me), she was in the woods (Tr. 342). d. Mark Weiner stayed on the balcony for 10-15 minutes before exiting the house, getting in his car, and driving away (Tr. 345). 11. Det. Brian Cosgro, the Commonwealths forensic technical investigator on the case, testified that GPS evidence recovered from Mark Weiners cellphone showed that his phone was in the Route 29 corridor a little to the north of the Sheetz service station south of Ruckersville at 1:26 a.m. on December 13, 2012 (Tr. 842). 12. The GPS location a little north of the Sheet z service station at 7020 Seminole Trial, Ruckersville, VA 22968, would be at least 17 miles from the abandoned house at 2184 Richmond Road, and involve at least two intersections and turns before reaching Route 29. 13. Based on this evidence, from the Commonwealths forensic technical investigator and Chelsea Steiniger, because it was factually impossible, the evidence was insufficient as a matter of law to support the abduction conviction. 7

EXPERT IN VOLATILE ANESTHETICS 14. At trial, Chelsea Steiniger described being rendered immediately unconscious when a cloth was placed on her face. She testified that: a. At 12:22 a.m., she sent a text message to her boyfriend (In car just passed pan tops idk wher we going Baby) (Tr. 325-326). b. c. At the same time, she was yelling and cussing at Mark (Tr. 324, 388). Mark pulled a dark cloth from his pocket and placed it with his right hand on her face (Tr. 324). d. She yelled at Mark for 10-15 seconds and then he put the thing over [her] face . . . and then [she] was out (Tr. 388). e. f. The text sent at 12:23 a.m. was from her abductor. She woke up on the floor of the abandoned house to hear someone using her phone (click click click) (Tr. 333, 335-336). g. h. The last text sent by her abductor was at 12:41 a.m. She laid there until the person left and then she grabbed her stuff (cellphone and backpack that she was still wearing) and ran to another room (Tr. 337-338). i. Within a minute she went back to the original room and jumped off the second story balcony (Tr. 339). 15. 16. Her entire story of cloth-induced unconsciousness was pure fiction. An expert anesthesiologist who is familiar with the volatile liquids used as inhalants (volatile anesthetics) to produce unconsciousness, the administration requirements for producing unconsciousness using volatile anesthetics, and the bodys response to the administration of volatile anesthetics, considered a hypothetical based on Chelsea 8

Steinigers testimony concerning the circumstances of her unconsciousness and abduction and concluded as follows: (see attached Affidavit from Dr. John R. Janes, Jr.) a. b. The unconsciousness could not have occurred as described. There is no volatile anesthetic which will render an adult female completely unconscious in 10-15 seconds. c. If a volatile anesthetic is administered, it takes several minutes of continuous administration at proper concentrations with a cooperative patient (who is cooperatively inhaling and exhaling as directed) to render the person unconscious. d. Under current practice, continuous administration is accomplished with a calibrated vaporizer. Administration by use of a soaked cloth does not permit calibrated induction of the volatile anesthetic, increasing the potential for insufficient induction resulting in no unconsciousness, or over-induction resulting in vomiting or death. e. During the administration of the volatile anesthetic, the first few minutes (1-5 minutes) of induction are marked by consciousness and recall for the events; there is no amnesia and the individual will remember what occurred. The persons reflexes remain intact and an unwilling person or uncooperative patient will have the capacity to hold their breath, to move all parts of their body, and to struggle. f. After the first few minutes of induction, the person will enter a second stage in which the reflexes remain intact. During this stage there almost always is an excitement or delirium in which even the cooperative patient will reflexively struggle. g. Only after the first and second stages produced by continuous induction of a 9

volatile anesthetic will the person start to lose consciousness and recall of events. h. Only after several minutes of continuous administration of a volatile anesthetic is unconsciousness possible for an adult female. Unconsciousness cannot result within 10-15 seconds. Even if a person is completely cooperative (voluntarily taking deep breaths and exhaling as instructed), it is not possible to attain unconsciousness in less than a minute. i. Continuous administration of a volatile anesthetic is also necessary to keep a person unconscious. If the administration is halted after the person has proceeded through the second stage and unconsciousness is achieved, the person will regain consciousness within a couple of minutes. A person will not stay unconscious for 20 minutes without sustained administration of a volatile anesthetic. j. k. Volatile anesthetics are professionally-regulated substances of limited availability. Chloroform is a highly toxic volatile liquid that will burn and irritate the skin, nasal passages, and airways. It will not render an adult female unconscious within 10-15 seconds. 17. Based on the evidence from Dr. Janes, it is clear that Chelsea Steiniger committed actual intrinsic fraud on this court by testifying falsely that she was rendered unconscious on December 13, 2012. MATCHBOOK 18. At trial, consistent with all of his statements to law enforcement, Mark Weiner testified that: a. He gave Chelsea Steiniger a ride from the Lucky 7 convenience store to her mothers apartment on Knightsbridge Road. 10

b.

He did not administer any substance to Chelsea Steiniger, did not take her to a house on Richmond Road, and never had possession of her phone.

c.

Chelsea gave him her phone number and he wrote it down on a matchbook that would have been in his van when he was arrested on December 14, 2012 (Tr. 981989).

19.

The van Mark Weiner drove when he picked up Chelsea Steiniger was seized by law enforcement at the time of his arrest. At the time of the seizure, multiple matchbooks were found in the drivers door pocket of the vehicle but were not collected by law enforcement.

20.

When the van was released by the police department, Mark Weiners trial counsel searched the van and discovered in the drivers door pocket a matchbook with a phone number handwritten on the inside cover. The phone number was the cellphone number of Chelsea Steiniger. Trial counsel took possession of the matchbook (see Childress Affidavit, paragraph 14; Photo of matchbook with phone number).

21.

The Commonwealth vigorously cross-examined Mark Weiner about his testimony that Chelsea had given him her phone number, and effectively impeached him with the apparent falsity of his claim (Tr. 982-989).

22.

In closing argument, the Commonwealth argued that he was lying because the phone number was not found in the van (Tr.1097, 1110-1111).

23.

The Commonwealths argument was false and constituted constructive fraud upon the court.

24.

The failure of Ford Childress to disclose the existence and recovery of the matchbook constituted constructive fraud upon the court and ineffective assistance of counsel. 11

25.

Chelsea Steiniger voluntarily gave her phone number (242-8764) to Mark Weiner when he gave her a ride to her mothers apartment on December 13, 2012. That circumstance not only supports Mark Weiners testimony and his innocence, it is independent evidence that Chelsea was neither rendered unconscious nor abducted. INJURY TO LEG

26.

At trial, Chelsea testified that she jumped from the second floor balcony. She did not testify that she was injured, fell on her side, or landed in any way other than on her feet.

27.

During the cross-examination of the nurse who examined Chelsea the night of December 13, 2012 (within 24 hours of the alleged incident), the Commonwealth elicited testimony that the nurse detected a bruise on the right lateral (outer) side next to the knee (Tr. 589).

28.

In closing argument, the Commonwealth argued that this injury was consistent with Chelseas testimo ny that she had fallen on her right side in her jump from the balcony and corroborated her testimony (Tr. 1102-1103).

29.

The photos of Chelseas right knee taken by the nurse in the possession of the Commonwealth show no bruise, or a bruise that is so light in color as to be indistinguishable in the photo. The nurse observed no injuries or marks anywhere else on Chelseas body.5

30.

In his recorded interview of Chelsea on December 19, 2012, seven days after the alleged incident, Det. Anastopoulos asked Chelsea if she had any injuries and Chelsea showed her left leg. Det. Anastopoulos observed a little mark on her lower calf of left leg.

The copies of the photos and the report of the nurse are in the possession of the Commonwealth. 12

Chelsea did not claim any injury to her right leg. 6 31. Despite the contradictory evidence in its possession (the photo of the right leg showing no bruise and Chelseas prior statements to Det. Anastopoulos), and the absence of any testimony that she landed on her right side, the Commonwealth made the false argument that Chelseas testimony was corroborated by the observations of the nurse (Tr. 11021103). CHELSEAS OTHER STORIES AND ADMISSIONS THAT SHE FABRICATED THE ENTIRE ABDUCTION STORY 32. On December 13-14, 2012, Chelsea Steiniger admitted she lied to Michael Mills, as evidenced by the text messages from Michael Mills, inclu ding why did u lie to me . . . 33. Howard Steiniger, Chelsea Steinigers husband, spoke with her three times about the incidents of December 13, 2012, while he was housed at Dillwyn Correctional Center from December, 2012 through June, 2013. The first two stories were relayed in recorded phone calls from January-May, 2013 to telephone number 434-882-0086 from Dillwyn Correctional Center; the third discussion occurred during public visitation at the facility in June, 2013. 34. Chelseas first story to Howard Steiniger was that she got a ride from a stranger in a van. She claimed to have jumped out of the van after the driver attempted to put something over her face and she fought the driver off. She made no mention of an abandoned house or unconsciousness. 35. Chelseas second story to Howard Steiniger was that she got a ride from a stranger and passed out after something was put over her face. She claimed she woke up in an

This recording is in the possession of the Commonwealth. 13

abandoned house and hid in a closet until the driver went into another room and she then ran out of the house. 36. In June, 2013, Chelsea told Howard Steiniger that she was going to take care of it when he expressed doubts about the truthfulness of her trial testimony against Mark Weiner given her prior stories about the incident and her general reputation for untruthfulness. She explained that the entire event had been an elaborate scam to piss off a man that had gone horribly wrong. The man was a guy named Mike and the scam was to falsely claim that a man had tried to kidnap her. She claimed she was just trying to piss this Mike guy off. ATTORNEY ERROR 37. Trial counsel in this case rendered constitutionally ineffective assistance of counsel by: a. Failing to adequately prepare for trial by not requesting production by subpoena duces tecum of the cellphone records of Chelsea Steiniger on December 12-13, 2012 detailing her voice usage, SMS message usage, data usage, and cell tower location information; b. Failing to adequately prepare for trial by not obtaining expert assistance in interpreting the AT&T Mobility Usage records to understand the significance of the voice usage detail and how the records proved the usage and functionality of the phone; c. Failing to adequately prepare for trial by not obtaining or determining whether the Commonwealth had obtained a certificate of authentication of the AT&T Mobility Usage records of the type described in Code 19.2-70.3(F) when the records were obtained by search warrant by the Commonwealth; 14

d.

Failing to obtain a stipulation or compel the attendance of the necessary records custodian to authenticate the AT&T Mobility Usage records concerning Chelsea Steinigers cellphone on December 12-13, 2012;

e.

Failing to request a recess or a continuance to compel the attendance of the necessary records custodian at trial when the Commonwealth objected to the admission of the AT&T Mobility Usage records on the grounds that the records were not properly authenticated;

f.

Failing to request a mistrial on the grounds that he had failed to adequately prepare for trial when the Commonwealth objected to the admission of the AT&T Mobility Usage records;

g. h.

Failing to produce the matchbook at trial; Failing to inform the court and the Commonwealth of the existence of the matchbook;

i.

Failing to seek a stipulation establishing the existence and recovery of the matchbook;

j.

Failing to move to withdraw as trial counsel, or move for a mistrial, recess, or continuance in order to testify concerning the existence and recovery of the matchbook;

k.

Failing to adequately prepare for trial by not obtaining the necessary expert assistance in volatile anesthetics (see Affidavits of Dr. John R. Janes, Jr. and Dr. Joseph Manley);

l.

Failing to summons the necessary expert witness to testify as to the impossibility of Chelseas story concerning unconsciousness by volatile anesthetic; 15

m.

Failing to request necessary funds to secure expert assistance and testimony concerning volatile anesthetics;

n. o.

Failing to introduce exculpatory evidence at trial concerning volatile anesthetics; Failing to introduce video evidence at trial concerning the route Mark Weiner testified that he drove on December 13, 2012;

p.

Failing to introduce video evidence at trial concerning the route Chelsea Steiniger claimed Mark Weiner drove on December 13, 2012;

q.

Failing to introduce the nurses knee photo and Chelsea Steinigers prior statement claiming no injury to her right leg during the alleged abduction incident;

r.

Failing to object to the Commonwealths false argument that the nurses observation of a bruise o n Chelseas right knee corroborated her testimony;

s.

Failing to adequately investigate and prepare for trial by interviewing Howard Steiniger concerning Chelseas prior statements and general reputation for untruthfulness;

t.

Failing to adequately prepare for trial by requesting production of the recorded statements of Chelsea Steiniger to Howard Steiniger that provided different versions of her story of the events of December 13, 2012;

u.

Failing to introduce Chelseas prior inconsistent statements that were recor ded by law enforcement;

v.

Failing to present a coherent timeline of events as alleged by Chelsea Steiniger to the jury;

w.

Failing to call Michael Mills as a witness at trial to testify that Chelsea Steiniger 16

called him at 12:47 a.m. and 12:56 a.m., and that he called her at 1:00 a.m. on December 13, 2012, and that he spoke with her on each of these calls. x. Failing to call Michael Mills as a witness at trial to testify that Chelsea admitted that the abduction story was a lie as evidenced by his texts to her on December 13-14, 2012, including why did u lie to me . . . y. Failing to articulate the proper theory of admissibility for evidence of Chelsea Steinigers motivation to lie and manipulate to get what she wants, and to deflect punishment for her own misconduct, including but not limited to her false statements: i. concerning the threats by Louis Coleman in a protective order application that she used to obtain a government-issued cellphone and to deflect her husbands accusations of inappropriate flirting/contact with Louis Coleman; ii. concerning her involuntary commitment to a psychiatric facility from ages 14-16 to garner attent ion from her husband and to undercut her mothers credibility concerning Chelseas own misconduct; iii. concerning her claims that Michael Mills attempted to strangle her to keep him from leaving her and to undercut his credibility concerning her admissions that the abduction story was a lie. 38. Trial counsel rendered constitutionally ineffective assistance of counsel which denied Mark Weiner a fair trial when trial counsel failed to adequately investigate and prepare for trial; failed to present exculpatory evidence of Mark Weiners innocence at trial; failed to impeach, contradict, and prove the fraud of Chelsea Steinigers testimony 17

concerning events after 12:22 am on December 13, 2012; and failed to present evidence rebutting the Commonwealths theory that an abduction occurred. 39. Trial counsels ineffective representation violated the defendants constitutional rights to counsel, confrontation, and compulsory process, and resulted in the denial of his right to a fair trial guaranteed by the Sixth Amendment and the due process clause of the Fourteenth Amendment to the United States Constitution and Article I, Sections 8 and 11 of the Virginia Constitution. 40. A proper investigation and preparation for trial would have produced admissible evidence of Mark Weiners actual innocence including (1) the AT&T Mobility Usage records and testimony that prove the falsity of Chelsea Steinigers testimony; (2) expert testimony concerning the administration of and the bodys responses to volatile anesthetics that prove the falsity of Chelsea Steinigers testimony; (3) the matchbook supporting Mark Weiners testimony and rebutting the Commonwealths theory of an abductio n; and (4) Chelsea Steinigers prior inconsistent statements, admissions that she had lied about being abducted, and evidence of her motivation to lie to manipulate, get attention, and deflect punishment for her own misconduct. 41. Proper and effective representation at trial would have included the presentation of the exculpatory evidence in and concerning the AT&T Mobility Usage record; expert testimony on the administration of and the bodys responses to volatile anesthetics; the matchbook; Chelsea Steinigers prior inconsistent statements, admissions that she had lied about the abduction, and evidence of her motivation to lie to manipulate, get attention, and deflect punishment for her own misconduct. 42. Trial counsels performance fell below an objective standard of reasonableness and 18

counsels deficient performance prejudiced the defendants ability to adequately defend himself and denied the defendant his right to a fair trial. 43. There is a reasonable probability that, but for counsels deficient performance, the result of the trial would have been different. If the jury had been presented any part or combination of the exculpatory information in the cellphone records, the matchbook, the expert testimony by an anesthesiologist, Chelsea Steinigers prior inconsistent statements, and the admission that the abduction story was fabricated, the jury would have acquitted Mark Weiner. MEMORANDUM OF LAW Mark Weiner was convicted of a crime that he not only did not commit, but that never occurred. Chelsea Steiniger, the Commonwealths sole witness as to the crime, fabricated an abduction to manipulate and get attention from her boyfriend after he kicked her out of his apartment and bed at 11:30 pm on December 12, 2012.7 Mark Weiners entire contact with Chelsea Steiniger was to give her a ride from the Lucky 7 convenience store to her mothers apartment. But after he dropped her off, Chelsea began texting her boyfriend messages intended to disturb and upset him. She claimed an abduction and then feigned unconsciousness while sending taunting texts pretending to be her abductor. The boyfriend called her cellphone repeatedly, but she refused to answer. She continued this passive aggressive, attention-getting game with her boyfriend by calling him and pretending to be hiding from her abductor. Despite her boyfriends insistence that she hang up and call 911, she d id not. Shortly after 1:00 a.m., Chelseas boyfriend called 911 and reported the abduction of

It worked. After the officers left at 4:00 a.m., she took a taxi back to her boyfriends apartment (Tr. 353-354). 19

Chelsea. The 911 dispatch officer tried to contact Chelsea by calling her cellphone, but she deliberately ignored the call and the dispatchers call was forwarded to voicemail. The dispatcher left a message for Chelsea to call so they could map her location using her phone. Immediately after receiving a voicemail notification at 1:09 a.m., Chelsea listened to the dispatchers message and realized that her game could get her in trouble. Having been told that the police could locate her using the cellphone, Chelsea turned it off to avoid having the police discover she was really at home. She waited almost an hour, and then around 2:00 am, she called her boyfriend from a different phone and discovered that the police were at his apartment. The police officer insisted on speaking with her and she was forced to continue her fraud to avoid getting into trouble. Although her story of abduction was patently implausible for its report of cloth-induced instantaneous unconsciousness, her never calling 911, the cell tower accessed by her phone, and the physically impossible timeline her charade resulted in Mark Weiners prosecution. The investigation, however, developed no evidence supporting Chelseas story. Instead, by April, 2013, the investigation had produced compelling or conclusive evidence of Mark Weiners innocence in the cellphone records from Chelseas own phone. Additionally, if the prosecution had consulted with an expert in volatile anesthetics, they would have been told that Chelseas story was based on a myth about chloroform or any volatile anesthetic that simply could not have happened. Her story was pure fiction and an affront to common sense. This Motion to Set Aside is intended to correct the injustice of the jurys verdict . The evidence of Mark Weiners innocence is overwhelming, but through the perjury of Chelsea Steiniger, the constructive fraud of counsel in permitting Chelseas perjury and letting it go unrebutted, and the ineffectiveness of defense counsel, the jury failed to appreciate the 20

impossibility of Chelseas story and was denied the exculpatory evidence of the cellphone records. It is the duty of this court to correct the injustice and acquit Mark Weiner, or in the alternative, to afford him the fair trial that he was denied. This Motion to Set Aside Verdict is based on numerous grounds including (1) actual innocence; (2) fraud upon the court; (3) after-discovered evidence of innocence; (4) presentation of false testimony; (5) failure to timely disclose exculpatory evidence; (6) denial of effective assistance of counsel; and (7) insufficient evidence to sustain the conviction. These grounds may involve slightly different legal determinations as discussed briefly below, but the individual and cumulative effect of each ground was to cause a verdict based on fraud and the denial of a fair trial to Mark Weiner. This court is the sole court with the subject matter jurisdiction and the authority to remedy the injustice of the conviction and incarceration of Mark Weiner, an innocent man. Mark Weiner has no other means for obtaining his release and vacating his conviction at this time than through a motion to this court. Pursuant to Rule 3A:15, Code 8.01428, and as an exercise of this courts inherent authority in this criminal case, Mark Weiner moves this court to correct the injustice in this case by setting aside the verdict, vacating the order adjudicating his guilt, and entering a judgment of acquittal, or in the alternative, to grant him a new trial. RULE 3A:15 Rule 3A:15(b) provides in relevant part: If the jury returns a verdict of guilty, the court may, on motion of the accused . . . set aside the verdict for error committed during the trial or if the evidence is insufficient as a matter of law to sustain a co nviction. The rule does not limit the courts authority to set aside the verdict to certain errors committed at trial, but allows the court to address any errors committed during trial. As detailed above, the motion in this case is based 21

on error committed at trial, including fraud, prosecutorial misconduct, ineffective assistance of counsel, the denial of the right to a fair trial, and insufficient evidence. Claims of Defense Attorney Error The Commonwealth has previously noted her intent to object to the court reviewing issues of defense attorney error committed at trial, but the Commonwealths position lacks any support under specific language of the Rule or in the case law. Rule 3A:15 does not restrict the type of error that the court may consider. Further, claims concerning prosecutorial attorney error are frequently litigated through Rule 3A:15 motions to set aside the verdict, such as for the failure to disclose exculpatory evidence. The Virginia Supreme Court has adopted a rule that ineffective assistance of counsel claims are not cognizable on direct appeal, but has not extended that rule to proceedings in the trial court. In Walker v. Mitchell, 224 Va. 568, 571, 299 S.E.2d 698, 700 (1983), the Supreme Court held that a claim of ineffective assistance of counsel is not cognizable on direct appeal.8 That the denial of effective assistance of counsel claims is cognizable in the trial court through a Rule 3A:15 motion to set aside is demonstrated by Turner v. Commonwealth, 259 Va. 816, 528 S.E.2d 112 (2000). In Turner, the defendant moved for a new trial based on the denial of effective assistance of counsel because of an alleged conflict of interest on [defense counsels] part. 259 Va. at 818, 528 S.E.2d at 113. The trial court heard evidence and ruled on the alleged conflict. 259 Va. at 819, 528 S.E.2d at 114. On appeal, Turner contend[ed] . . . that the court failed in its duty to inquire into the conflict and to determine its effect on his right to the

The defendant objects that such a rule as applied to his case, where the Walker rationale is not applicable, unconstitutionally denies him due process and equal protection for arbitrarily denying him the opportunity to vindicate his Sixth Amendment right to counsel on direct appeal and for denying him appointed counsel for that purpose. 22

effective assistance of counsel. 259 Va. at 821, 528 S.E.2d at 115. As the Supreme Court noted, however, the trial court did consider the evidence and argument on the conflict of interest issue and found that no conflict existed. Id. For that reason, the trial court had no duty to consider the extent to which the alleged conflict affected trial counsels performance , and the courts ruling was correct that Turner could pursue a remedy in habeas proceedings. In other words, the trial court found that Turner failed to establish conflict of interest, so it was not necessary to determine whether there was any prejudice to the defendant from that alleged conflict; but the trial court clearly did consider whether the defendant had been denied his Sixth Amendment right in the motion to set aside. In dicta, the Court noted that the claims of ineffective assistance of counsel may be raised in habeas proceedings and cited the language of Walker, which held that ineffective assistance of counsel claims may not be raised on direct appeal. Id. The Turner case demonstrates, however, that errors concerning the Sixth Amendment right to effective assistance of counsel are cognizable in the trial court on a Rule 3A:15 motion to set aside the verdict. Nor would a rule that ineffective assistance of counsel issues are not cognizable before the trial court make sense. During the pendency of the criminal case, the trial court is the sole court with jurisdiction over the accused and the sole court with the authority to guarantee and preserve the criminal defendants constitutional rights, including his Sixth Amendment rights to effective assistance of counsel. Prior to final judgment, the criminal accused has no other avenue for relief available except through the trial court. See Code 8.01-654 (for petitioners held under criminal process, habeas jurisdiction is vested only upon filing a petition within two years from the date of final judgment in the trial court . . . ).

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FRAUD In addition to being cognizable as a claim of a constitutional due process violation under a Rule 3A:15 motion, an allegation of fraud may be raised by the defendant directly challenging a verdict prior to final judgment under Va. Code 8.01-428. Section 8.01-428(D) states in relevant part: Other judgments or proceedings This section does not limit the power of the court . . . to set aside a judgment or decree for fraud upon the court. This code section applies equally to civil and criminal proceedings. See, e.g., Belew v. Commonwealth, 284 Va. 173, 726 S.E.2d 257 (2012); Lamb v. Commonwealth, 222 Va. 161, 279 S.E.2d 389 (1981). [T]he judgment of a court, procured by intrinsic fraud, i.e., by perjury, forged documents, or other incidents of trial related to issues material to the judgment, is voidable by direct attack at any time before the judgment becomes final; the judgment of a court, procured by extrinsic fraud, i.e., by conduct which prevents a fair submission of the controversy to the court, is void and subject to attack, direct or collateral, at any time. Jones v. Willard, 224 Va. 602, 607, 299 S.E.2d 504, 508 (1983). Fraud is either actual or constructive. Actual fraud is a false representation of a material fact made knowingly and intentionally with the intent to mislead; constructive fraud is a false representation of a material fact made innocently or negligently. State Farm v. Remley, 270 Va. 209, 218, 220, 618 S.E.2d 316, 321 (2005). As detailed above, Chelsea Steinigers story of events after 12:22 a .m. on December 13, 2012, was fraud. As demonstrated by cellphone and cell tower records, expert testimony concerning volatile anesthetics, the timeline of events from external sources (the cellphones and cellphone records, law enforcement dispatch records, text messages) compared with her version of events, the existence of the matchbook, and Chelseas prior incons istent statements and subsequent (pretrial and post-trial) admissions of fraud, Chelsea Steinigers testimony 24

constituted actual intrinsic fraud upon this court. As detailed above, acts and omissions of the prosecution and defense counsel - which permitted the false representation to the jury of the events of December 13, 2012 - constituted constructive intrinsic and extrinsic fraud upon the court. The verdict cannot stand. A judgment of acquittal must be entered for Mark Weiner. FALSE TESTIMONY Additionally, the court has the power to grant a motion for a new trial based on afterdiscovered evidence. A motion for a new trial must be granted if the defendant establishes that the evidence: (1) was discovered after the trial; (2) could not have been secured for use at the trial in the exercise of due diligence; (3) is not merely cumulative, corroborative, or collateral; (4) is material to the extent that it is likely to produce different results from a new trial. See Garnett v. Commonwealth, 275 Va. 397, 416-417, 657 S.E.2d 100, 112 (2008); see also Hines v. Commonwealth, 136 Va. 728, 117 S.E. 843 (1923); Gatling v. Commonwealth, 14 Va. App. 60, 414 S.E.2d 862 (1992); Whittington v. Commonwealth, 5 Va. App. 212, 361 S.E.2d 449 (1987). Unlike other newly-discovered evidence claims, the defendant who has evidence of falsified testimony is not asking for a new trial simply to present additional evidence, but a fair trial, a trial untainted by the presentation of false evidence. A conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment. . . . The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. Napue v. Illinois, 360 U.S. 264, 269 (1959)(internal citations omitted); see also Miller v. Pate, 386 U.S. 1, 7 (1967)(More than 30 25

years ago this Court held that the Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence. There has been no deviation from that established principle. There can be no retreat from that principle here. (internal citations omitted)); Alcorta v. Texas, 355 U.S. 28, 31-32 (1957)(per curiam)(finding a violation of due process when the prosecution knowingly allowed a prosecution witness to testify falsely regarding the nature of his relationship with the victim). [D]ue process is violated not only where the prosecution uses perjured testimony to support its case, but also where it uses evidence which it knows creates a false impression of a material fact. Hamric v. Bailey, 386 F.2d 390, 394 (4th Cir. 1967). Therefore, [e]vidence may be false either because it is perjured, or, though not itself factually inaccurate, because it creates a false impression of facts which are known not to be true. Id. The United States Supreme Court has held that a defendant is entitled to relief on a claim of false testimony when there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. Kyles v. Whitley, 514 U.S. 419, 433 n. 7 (1995)(quoting United States v. Agurs, 427 U.S. 97, 103 (1976)). Chelseas testimony as to the 911 message created false impressions of the facts. Chelsea testified that her phone died within minutes of her escaping into the woods, which she said she had done by the time she sent the 12:51 a.m. text. She testified that she was unable to use her phone to call for help until she walked home and recharged her phone for 10-15 minutes. She testified that it was when she arrived home and recharged her phone that she listed to the ECC message asking her to call. That this testimony was both false and created a false impression of facts . . . known not to be true, Hamric, 386 F.3d at 394, was established by the cellphone records that were in the Commonwealths possession, and that the Commonwealth successfully kept from the jury. 26

Chelseas admission to Howard Steiniger in June, 2013, that the entire abduction was just a scam to piss of Mike (Chelseas boyfriend is Michael Mills) proves the falsity of the abduction claim, clearly justifying the courts setting aside of the verdict. As detailed above, the evidence of fraud by Chelsea also proves that her testimony was false, justifying reversal of the verdict. PROSECUTORIAL MISCONDUCT If misconduct by the prosecution so infected the trial with unfairness as to make the resulting conviction a denial of due process, Darden v. Wainwright, 477 U.S. 168, 181 (1986), the conviction must be reversed. Here, the prosecution engaged in a series of improper arguments and failures to disclose exculpatory evidence to Mark Weine rs counsel. Without access to this information, Mark Weiner was denied the opportunity to effectively cross-examine Chelsea Steiniger, in particular concerning her false testimony about her location and the functionality of her cellphone. The Commonwealths intentional efforts to keep the cellphone information from the jury were improper and prejudiced Mark Weiners rights to cross examination, depriving him of a fair trial. In Brady v. Maryland, the United States Supreme Court held that the suppressio n by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material to either guilt or to punishment, irrespective of the good or bad faith of the prosecutor. 373 U.S. 83, 87 (1963). In order to prove that the Commonwealths failure to tender certain evidence constitutes a Brady violation, the defendant must show that the undisclosed evidence was (1) favorable to him either because it is exculpatory, or because it is impeaching; (2) material to the defense, i.e., prejudice must have ensued; and (3) that the prosecution had materials and failed to disclose them. United States v. Wilson, 624 F.3d 640, 660-661 (4th Cir. 27

2010)(citing United States v. Stokes, 261 F.3d 496, 502 (4th Cir. 2001)). The legal determination that must be made by this court is whether failure to disclose the evidence denied the defendant a fair trial, understood as a trial resulting in a verdict worthy of confidence. Workman v. Commonwealth, 272 Va. 633, 645, 636 S.E.2d 368, 374 (2006). If the prosecution fails to disclose exculpatory evidence, the conviction must be reversed if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial. United States v. Bagley, 473 U.S. 667, 678 (1985); see also Telequz v. Commonwealth, 273 Va. 458, 488, 643 S.E.2d 708, 727 (2007). Although the court may examine the undisclosed evidence item-byitem, the cumulative effect of all suppressed evidence must be determined. Kyles v. Whitley, 514 U.S. 419, 421-422 (1995). The cellphone evidence including the recording of the AT&T representative on April 3, 2013, explaining the sequence of calls and the voice usage of the phone not only proves that Chelseas testimony was false a nd that she was never at 2184 Richmond Road, but also was important is discredit the investigation. See Kyles, 514 U.S. at 445 (such evidence could have been used by the defense to attack the thoroughness and even the good faith of the investigation); see also Bly v. Commonwealth, 280 Va. 656, 702 S.E.2d 120 (2010). The police and prosecutor knew that the cellphone records showed that Chelsea called her boyfriend multiple times and received the 911 dispatchers message when she claimed that her phone was dead. They also knew that the cell tower location information showed that Chelsea was never in the area of 2184 Richmond Road. Additionally, they knew that she had received the dispatchers message at 1:09 a.m., when she was, by her own admission, at home (Tr. 372) and not two miles away hiding in the woods from a fabricated abductor. The non-disclosed evidence here, as in Workman and Bly, would clearly have led to extrinsic evidence admissible to 28

contradict Chelsea, admissible to impeach Chelsea, and admissible to discredit the investigation and prosecution. It was withheld by the prosecution, Mark Weiner was clearly prejudiced, and there can be no confidence in the outcome of this trial. Bly, 280 Va. at 664, 702 S.E.2d at 124; Workman, 227 Va. 650, 636 S.E.2d at 375. ATTORNEY ERROR To prevail on an ineffective assistance of counsel claim, the defendant must demonstrate that (1) counsels performance was deficient and (2) the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance means counsels representation fell below an objective standard of reasonableness. 466 U.S. at 688. Prejudice is demonstrated when there is a reasonable probability, but for counsels unprofessional errors, the result of the proceeding would have been different. 466 U.S. at 694. A reasonable probability is defined as a probability sufficient to undermine confidence in the outcome. Id. Since the prejudice determination requires the court to consider the tot ality of the evidence . . . a verdict of conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. 466 U.S. at 696; see also Brown v. Smith, 551 F.3d 424, 434-435 (6th Cir. 2008)(Where there is relatively little evidence to support a guilty verdict to begin with . . . the magnitude of errors necessary for a finding of prejudice will be less than where there is a greater evidence of guilt). A finding of prejudice is also more likely where the jury had a false impression of the reliability of the states key witness. See, e.g., Monroe v. Angelone, 323 F.3d 286, 314 (4th Cir. 2003)(If the prosecution had complied with its disclosure obligations, however, [the witnesss] testimon y would have been significantly undermined, and there is a reasonable probability that the . . . prosecution . . .would have collapsed). 29

Trial counsel had a duty to conduct a reasonable investigation including of the claims of the administration of the volatile anesthetic, the cellphone records, and Chelseas prior statements. It is not a reasonable strategic choice for defense counsel to rely on the finding of a police investigation. Counsel has an obligation to make its own independent investigation and not to rely on the investigation completed by the police. Hash v. Johnson, 845 F. Supp. 2d 711, 741 (W.D. Va. 2012); see also Elmore v. Ozmint, 661 F.3d 783, 854 (4th Cir. 2011)(defense counsel ineffective where lulled into inaction by the belief that the police were above reproach); Anderson v. Johnson, 338 F.3d 38, 392 (5th Cir. 2003)(defense counsel ineffective when he relied exclusively on the investigative work of the State and based his own pretrial investigation on assumptions divined from a review of the States files). The failure to conduct a reasonable investigation renders an informed tactical decision . . . impossible. Bell v. True, 413 F.Supp.2d 657, 699 (W.D. Va. 2006). Trail counsel failed to subpoena the necessary AT&T records custodian to authenticate the AT&T Mobility Usage records. These records were central to the defense, including to contradict Chelseas testimony about the events after 12:22 a.m. and as the necessary basis for the expert testimony concerning the cell tower location information (Tr. 1174-1183). There is, and there was, no reasonable strategic decision with respect to the failure to subpoena the records custodian (see Childress Affidavit). Trial counsels performance was deficient and the prejud ice to the defendant is clear. Chelsea Steingers testimony was the only evidence of the commission of the alleged crime. Evidence from the cellphone records would have destroyed her credibility to the jury and would have established that she was never at 2184 Richmond Road. But for trial counsels error, the jury would have acquitted Mark Weiner. Trial counsels failure with respect to the matchbook is patently obvious. He had the 30

physical evidence supporting Mark Weiners testimony and contradicting Chelseas claim of an abduction and he failed to use it at trial. There is, and there was, no reasonable strategic decision with respect to the failure to produce the matchbook (see Childress Affidavit). Trial counsels performance was deficient and the prejudice to the defendant is clear. Mark Weiners credibility the crucial element in the defense case (particularly given trial counsels failures with respect to the cellphone records) was destroyed by the Commonwealths cross-examination and (false) argument to the jury that Mark Weiner lied on the stand with respect to the matchbook. Additionally, the jury was not provided with physical evidence that Chelsea had been willing to have further contact with Mark Weiner, thereby contradicting her claim that she had been abducted. But for trial counsels error, there is a reasonable probability the jury would have acquitted Mark Weiner. Additionally, t rial counsels failure to investigate and present the cellphone information (both voice usage and cell tower location information) and the administration of volatile anesthetics meant Mark Weiner was prevented from effectively contesting Chelseas story and thus his commission of a crime. Because trial counsel never pursued an independent investigation into the cellphone records and the volatile anesthetics, but instead accepted the police investigative work and conclusions as to the cellphone information (and the lack of any investigation into the volatile anesthetics), there could be no reasonable strategic decisions with respect to these two areas of evidence. Therefore, trial counsels performance was clearly deficient. The prejudice to Mark Weiner is also clear. Evaluating the collective trial evidence together with the collective evidence that a reasonable investigation of [the cellphone and volatile anesthetics] would have uncovered, Elmore, 661 F.3d at 868, there is a reasonable probability, that but for counsels error, a different verdict would have been returned. 31

Strickland, 466 U.S. at 695. The cellphone evidence and the expert testimony, as detailed in paragraphs 1-17 above, would have shown the jury that Chelsea Steinigers testimony of events after 12:22 am on December 13, 2012, was completely fabricated. The jury would have been presented evidence that established Chelsea Steiniger was not (1) unconscious; or (2) at 2184 Richmond Road; and that (3) her phone was not dead since she not only made calls, but also received calls, and retrieved a voicemail a message from the 911 dispatcher. This evidence, which directly refutes Chelseas testimony the only evidence of an abduction, weighed against the overall weakness of the case compels the conclusion that, but for trial counsels errors, the jury would have acquitted Mark Weiner. CONCLUSION WHEREFORE, the defendant requests that the verdict against him be set aside, the order adjudicating guilt be vacated, the testimony of Chelsea Steiniger be struck, and a judgment of acquittal entered on his behalf. Respectfully Submitted, MARK LAWRENCE WEINER

By _____________________________ Counsel Steven D. Benjamin, VSB#18772 Email: sbenjamin@benjamindesportes.com Betty Layne DesPortes, VSB#34360 Email: bldesportes@benjamindesportes.com BENJAMIN & DesPORTES, P.C. P.O. BOX 2464 Richmond, VA 23218-2464 (804) 788-4444 (telephone) (804) 644-4512 (fax) Counsel for Mark Lawrence Weiner

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CERTIFICATE I certify that a true and exact copy of this Motion to Set Aside Verdict was delivered to: Denise Y. Lunsford, Esquire, Office of the Commonwealths Attorney, 410 East High Street, Charlottesville, VA 22902, this 14th day of April, 2014.

______________________________ Counsel Steven D. Benjamin, VSB#18772 Email: sbenjamin@benjamindesportes.com Betty Layne DesPortes, VSB#34360 Email: bldesportes@benjamindesportes.com BENJAMIN & DesPORTES, P.C. P.O. BOX 2464 Richmond, VA 23218-2464 (804) 788-4444 (telephone) (804) 644-4512 (fax) Counsel for Mark Lawrence Weiner

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