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Analysis Of Diane Fleming's
22 Claims In Her Habeas Corpus Petition
Which Were Denied by Judge Cleo E. Powell
By: Carol Guilford
© copyrighted - July 10, 2006
All Rights Reserved

The following information was researched from actual court documents and other documents, compiled and written by Carol Guildford, a Los Angeles based author and writer. Listed below are the (22) claims that Diane Fleming's attorney, David B. Hargett filed and argued for Fleming in her Habeas Corpus Petition for an evidentiary hearing. The Petition was denied on February 8th, 2006 by Judge Cleo E. Powell, Chief Judge of the Virginia Court, Chesterfield County. On June 30th, 2006 Diane's new Attorney, David B. Hargett; filed an appeal to Judge Powell's ruling with the Virginia State Supreme Court on Diane's behalf. If this appeal is unsuccessful, the case will move out of the Commonwealth Court and into the Federal Court System.

Listed are the (22) claims in the Petition that Fleming's attorney argued in the Habeas Corpus Petition, along with Judge Powell's ruling for each claim. There is a rebuttal after each claim to dispute Judge Powell's ruling.

Diane Fleming's supporters, through the Hargett-Watson law firm, have set up The Diane Fleming Legal Defense Trust Fund for all who want to help free Diane. For more information and if you wish to donate to The Diane Fleming Legal Defense Trust Fund which has been setup by her supporters with her Attorney, David B. Hargett, please refer to the link listed above or below.

Fleming's Claims 1 & 2 In Habeas Corpus Petition = Judge Powell's Ruling

  • Claims 1 and 2:

    The 6th amendment to the US Constitution says it must be established where the crime was committed, which district should be ascertained by law.
 = Judge Powell's ruling against Claims 1 & 2:

Judge Cleo E. Powell (The Court) using Strickland v. Washington, 466 U.S. 668,686, 1984, refused relief because "counsel's failure to argue that the Commonwealth failed to establish jurisdiction would not have altered the trial outcome."
Rebuttal to Judge Powell's Ruling On Claims 1 & 2:

Fleming's Attorney, David B. Hargett objects, on behalf of Petitioner because:

"it is not disputed that the decedent died at Chippenham Johnston Willis Hospital there is absolutely no evidence or properly noticed judicial finding that such hospital is in the county of Chesterfield."

Fleming's Claims 3,4 and 18 In Habeas Corpus Petition = Judge Powell's Ruling

  • Claims 3,4 and 18:

    FAILURE TO DISPUTE CAUSE OF DEATH

    In a letter to Diane Fleming, David B. Hargett writes: "I strongly asserted: The cause of death opinion included in the autopsy report is clearly inadmissible. Furthermore, the prosecution did not attempt to put on any evidence as to the cause of death. It is flatly inexcusable for an attorney to fail to subject the Commonwealth's case to adversarial testing. That is the function of the defense attorney."
= Judge Powell's ruling against Claims 3,4 and 18:

"the Petitioner has failed to effectively argue how her counsel's conduct deviated from that of a reasonably effective defense attorney." As stated by the Court in Strickland, "if counsel does not conduct a substantial investigation into each of several plausible lines of defense, assistance may nonetheless be effective."
Rebuttal to Judge Powell's Ruling On Claims 3, 4 and 18:

Hargett's objection: "the defense attorney admittedly (in an affidavit) did not consider the other possible causes of death and the Commonwealth did not present any expert testimony indicating the cause of death. There is no downside to mounting an adversarial challenge to the cause of death, as it is a key component in a murder case, and any decision not to challenge the cause of death was an unreasonable one by counsel. The attorney did not make a strategic decision on this issue; indeed, the attorney simply failed to do his job."

On page 139 of the trial transcript, Fleming's Defense Counsel, Cooley stated to the Court: "We're not disputing the cause of death. The issue is who caused this." In his affidavit, Cooley swears "he relied on the VA medical examiner, Dr. Marcella Fierro's findings."

United States v. Cronic 466 U.S. 648 (1984) invoked by Judge Powell, (in addition to Strickland v. Washington, 466 U.S. 668, 686 (1984) says ineffective assistance of counsel "has to be an actual breakdown of the adversarial process during a trial." This is exactly what Hargett told the court. There was an adversarial breakdown when counsel did not challenge the cause of death and relied, instead on the medical examiner's findings.

Hargett's objection to Claim 4 was, "it is clear Dr. Acker was a kidney doctor not a pathologist, and he never should have been able to testify as to any cause of death.

Other findings this writer found:

In a second affidavit, in May, 2005, Fierro defended her autopsy. Although this reluctant expert on aspartame poisoning agrees with Dr. Fierro's conclusion that Charles Fleming died from methanol poisoning, (from diet Coke, not windshield washer fluid or the prosecution's fantasy methanol from another source) it must be pointed out that Fleming also had cardiomegaly (enlarged heart), a cause of death. Cooley should have called witnesses to verify cardiomegaly is a cause of death. Charles Fleming was also on prescription and over-the-counter medications. The day Fleming became ill, he and Diane mixed three times the advised amount of creatine into the Gatorade bottles. Charles also did not drink water as the directions for taking the supplement instructed.

By the time Fierro gave her affidavit, she was aware of the possibility of methanol poisoning from aspartame (Equal, NutraSweet) use. At one point in the quagmire of Charles Fleming's death, Dr. Fierro, at the last minute, refused a promised telephone conference with endocrinologist and diabetic specialist, Dr. H. J. Roberts ("Aspartame Disease: An Ignored Epidemic")

Fleming's Claim 5 In Habeas Corpus Petition = Judge Powell's Ruling

  • Claim 5:

    CHUCKIE'S ALIBI FOR SUNDAY AFTERNOON (Looking for Whodunit)

    David B. Hargett argued to the court that is was "hugely important" whether Chuckie could have come home during his break (from the grocery store where he worked).

    Cooley, Diane's Defense Counsel then swore in his affidavit: "I did not see this as a significant issue, in light of the evidence that Chuckie had ample opportunity to adulterate the Gatorade that evening after returning from work and all family members had gone to bed. I should preface this by stating that I believed at trial and I believe now that the evidence utterly failed to establish Ms. Fleming's guilt. I believed then and I believe now that Mr. Fleming died of methanol poisoning, most likely by the efforts of his stepson, Chuckie."
= Judge Powell's ruling against Claim 5:

Judge Powell dismissed the claim citing Strickand. "Likewise, trial counsel's choice not to attack Chuckie's alibi on Sunday afternoon was a matter of trial strategy, in that counsel believed it was clear Chuckie had an opportunity at another time to adulterate the Gatorade".

Rebuttal to Judge Powell's Ruling On Claim 5:

Attorney, David B. Hargett's objection to Judge Powells's dismissal of this claim: "As to Claim 5, the Petitioner objects to the court's finding that counsel acted as a matter of trial strategy, when it was immensely important for the jury to understand that Chuckie could have driven home during his short break from the Food Lion. In fact, as stated by Juror Lynch, with this new information, he would have had a reasonable probability as to guilt. The Petitioner also objects to the court's refusal to consider the affidavits from jurors. The Petitioner believes that the court may consider information from the jurors as to whether there is a reasonable probability of a different result, whether as to guilt or the appropriate punishment."

Fleming's Claim 6 In Habeas Corpus Petition = Judge Powell's Ruling

  • Claim 6:

    FAILURE TO INFORM THE JURY PETITIONER WAS ON MEDICATION

    David B. Hargett argued that it was very important for the jurors to know Petitioner was on medication. " The defense attorney (Cooley) says he knew Ms. Fleming was on medication but didn't know what type of drugs she was taking, and he didn't bother finding out. We have affidavits once again from the jurors who said that would have been important information for them and it is certainly the right thing for a defense attorney to do. Furthermore, it is not a strategic choice because there is a very simple way to do it without any downside. He could have simply asked when Diane was on the witness stand whether she was on any type of medication and then let the jury hear that Petitioner was taking an antidepressant and a pain killer during the trial. This would alleviate the jurors' concerns that Petitioner was emotionless in the courtroom and when she was testifying."
= Judge Powell's ruling against Claim 6:

Judge Powell ruled (combining Claim 6 with Claims 8, 13,14,16,18 and 22): "Similarly, counsel relied only on informed strategic choices made by the defendant and on information supplied by the defendant (Strickland 466 US. 668,681, 1984) with regards to the assertion in Claim V1. If Petitioner never told her counsel that her medicine affected her demeanor and mood, Petitioner can not now raise the fact that her counsel never conveyed such information to the jury in support of her Petition.

Rebuttal to Judge Powell's Ruling On Claim 6:

Attorney, David B. Hargettt objects, in his letter for the record to The Honorable Cleo E. Powell, he writes: "The Petitioner objects to the court's ruling that the Petitioner never told counsel that her medicine affected her demeanor and mood. The only proper method to determine this factual issue is to hold an evidentiary hearing, and a reasonable investigation would have revealed this basic fact. The Petitioner's credibility was questioned due to the affects of the medication."

Fleming's Claim 7 In Habeas Corpus Petition = Judge Powell's Ruling

  • Claim 7:

    FAILURE TO HAVE JURY INSTRUCTED THAT IT WAS COUNSEL'S CHOICE TO CAST SUSPICION ON PETITIONER'S SON

    David B. Hargett argued it was important for the jury to hear evidence that it was defenses attorney's choice to point the blame at her son. The jurors indicate this issue would have affected their decision. Accordingly, the only evidence necessary to present would have been a simple question as to whether it was Petitioner's decision.

    The Court agrees with Respondent (the AG's office) that trial counsel addressed the fact that it was his choice, not his clients, to implicate Chucky.
= Judge Powell's ruling against Claim 7:

The Commonwealth claims they did enough by mentioning it in the opening statement. However, the jury was instructed at the orginal trial that an opening statement is not evidence.

The Court agrees with Respondent (the AG's office) that trial counsel addressed the fact that it was his choice, not his clients, to implicate Chucky.

Rebuttal to Judge Powell's Ruling On Claim 7:

Hargett objects: "While counsel did address an argument that it was his choice to implicate Chuckie, there was still no evidence, only argument (in the opening statement). Accordingly, petitioner hereby objects."

According to an affidavit from juror Marilee B. Soltis: "One of the most important factors that led to my decision in this case was that I perceived that Diane Fleming was having her defense attorney attempt to place the blame on her son Chuckie, (If I had known differently) it would have affected my decision on guilt." Diane Fleming, in her affidavit swears, " My trial attorney told me that all we had to do was create a reasonable doubt at trial. He told me that he was going to tell the jury that it was his decision, and not my decision to attempt to place the blame on Chuckie as the criminal agent. However, had he asked me at trial, I would have testified that it was not my decision to try the case in this fashion."

Fleming's Claim 8 In Habeas Corpus Petition = Judge Powell's Ruling

  • Claim 8:

    THE POLYGRAPH: FAILURE TO ELICIT FROM PETITIONER POLYGRAPH INFORMATION AS A REASON FOR HER ACTIONS IN HIDING COMPUTER TOWER.

    Flemings First Attorney, Cooley, in his affidavit swore: "I would not have wanted to inject into the trial any mention of the polygraph in any event, because it might have triggered a mistrial, and I did not want a mistrial because I believed the case was going very well for us at that point."

    David B. Hargett argued the importance of the polygraph results is clear. "Although it is true that polygraph evidence is not admissible for the propose of showing that someone was truthful, it is certainly admissible to show why you acted the way that you acted" In a letter to Diane Fleming, Hargett wrote:"You should have been able to testify that you removed the hard drive because you were told you passed your polygraph and Chuckie failed. Two jurors say this information would have been important to them. I challenged the Commonwealth to articulate why my argument was not correct, and, in my opinion, the Commonwealth failed to persuasively argue the point."
= Judge Powell's ruling against Claim 8:

Judge Powell combined Claim 8 with Claims 13, 14, 16, 18, 20 and 22

"All of these claims address Petitioner's claim that her counsel was insufficient and his deficits prejudiced the results of her trial. All of these matters attack trial counsel's strategy. The Court must be highly deferential in scrutinizing (counsel's ) performance."

Rebuttal to Judge Powell's Ruling On Claim 8:

Hargett's objection: "Although it is true that polygraph evidence is not admissible for the purpose of showing that someone is telling the truth, it can be admitted to show why a person acted in a certain way." Crumpton v. Virginia, 9Va. App. 131, 384S.E.2d 339 (1989)

Other findings this writer found:

It was a hard drive, not a tower computer as Defense Counsel Cooley, Judge Powell and the prosecutors all called it during the trial. After Diane Fleming passed the polygraph test, she tried to protect her son, Chuckie, who was being targeted by the police. She switched out the hard drive of the computer because she did not want the police to see Chuckie frequented 'horror' websites. Imagine having a client who passed a polygraph and not fight tooth and nail to get it into evidence.

Fleming's Claims 9, 10, 11 & 12 In Habeas Corpus Petition = Judge Powell's Ruling

  • Claims 9, 10, 11, 12:

    CHUCKIE'S TESTIMONY ABOUT MIXING DRINKS

    David B. Hargett argued there was clear prejudice on this issue. And based on the following information, Diane Fleming should be granted a new trial. "The Attorney General's Office has stated that an evidentiary hearing is required unless the court finds that there is no possible prejudice as a result of the attorney failing to object to the misrepresentation stated by the prosecutor during Chuckie's testimony. The importance of Chuckie's testimony is that the jury was led to believe that he saw his mother mixing bottles in the evening after your husband had gone to bed. This clearly refutes our statement that you mixed the bottles with your husband earlier in the day. Although it appears that Chuckie made different statements at different times, he certainly was not asked at trial whether he saw you mixing anything that evening."
= Judge Powell's ruling against Claims 9,10,11,12:

Judge Powell ruled: "The Court finds that trial counsel's actions were neither ineffective nor prejudicial. Chuckie's statements prior to the trial all indicated that he had seen his mother mixing the drink."

Rebuttal to Judge Powell's Ruling On Claims 9,10,11,12:

Hargett's objection was: "The importance of Chuckie's testimony is that the jury was led to believe that he saw Petitioner mixing bottles in the evening which clearly refutes Petitioner's statement. Although Chuckie has said different things at different times, it is important to note that he never testified at trial that he saw the Petitioner mix the bottles. In fact, in his affidavit, he states he would not have testified that he saw Petitioner mix the bottles.

Other findings by this writer:

The Chesterfield police were targeting Chuckie Tanner, even going to his place of work to question him.

What happened between Detective Akers first interview with Chuckie and the time Chuckie testified to the grand jury that he had seen his mother 'mixing the Gatorade'? One of the detectives told Chuckie that if he pled guilty to "product tampering," he would likely get six months in jail. In his affidavit, Chuckie swears: "I never testified at trial that I saw my mother' mixing' the contents of any Gatorade bottles. In fact, I do not recall seeing my mother ever touching the Gatorade bottles."

Here's a look at the Chesterfield police in action.

Detective O. F. Akers questions Chuckie Tanner, taken from the first court transcript:

Akers: " Basically I mean was he a prick towards you cause you were the oldest? And see I- I'm getting a feeling that this guy was a controlling guy. I'm not getting that from you. I'm getting if from other people ok. I'm getting it you know that this guy you know was like basically had a-- had a leash on your mom. I mean she couldn't even go buy groceries without showing him a receipt." Tanner: "Oh he was not like that at all."

Tanner: "I remember that night when I came home I was looking in the pantry for something. There was this container of-- it was the creotene. And I asked mom what's this for . And mom's like you don't want to take that. It's like a formula for muscle builders. It's not something you'd need."

Akers: "Did you notice gatorade in the refrigerator? "

Tanner: "I'll trying to.. to tell you the truth I can't remember. Honestly, Trying trying to think.

At this point, it is rather peculiar, that his testimony to the grand jury from no recollection at all is now seems to be an affirmation of Chuckie seeing his mother 'mixing' the Gatorade. How did the creatine get out of the cupboard?

Even here, Chuckie doesn't say he saw his mother 'mixing' anything; it's the way he talks. Chuckie answers the questions without considering the tense the questioner is using. Chuckie is trying to explain what his mother told him when he asked her about the creatine he saw in the cupboard. That's why he could swear, in his affidavit, he never said he saw his mother touch the Gatorade bottles-he didn't. In the question, "She was mixing it in there?" Chuckie doesn't pick up on the tense of the question. He doesn't differentiate between 'mixed' and 'mixing.' As to "And she was putting it in the Gatorade"-- again it's the syntax. Yes, she was putting it in, she had put it in. We know from Diane Fleming's polygraph she and Charles mixed the Gatorade and the creatine in the afternoon.

Q. " Where-in what room of the house did you see your mom?"

A: "In the kitchen."

Q. "And what was she doing?"

A: "Well, she said that when they were at Costco, they had gotten this Gatorade and it hadn't been real long, my stepfather was taken this stuff called Creatine".

Q. " Okay."

A: "And she was putting it in the Gatorade."

Q."She was mixing it in there?"

A: "Yeah, because he had-I guess, she said he had asked her to do that because he was trying to-he was on these muscle building things."

At trial, defense counsel, Cooley failed to object when during direct examination Chuckie was asked, "Now the bottles of Gatorade that you saw (Petitioner) mixing with creatine when you came home from the Food lion about 9:30 on Sunday, did you ever touch those bottles?" The Question was whether Chuckie ever touched the bottles.

Chuckie answered, "Well, I think I may have touched them to move them out of the way if I put drinks in the refrigerator." Chuckie's response did not address the first clause of the question about seeing his mother mixing creatine with Gatorade.

Craig S. Cooley, Diane's first court appointed attorney says in his affidavit: "I simply missed the phrasing of the question." Mr. Cooley must have been asleep to miss this second mention, in the prosecutor William Davenport's closing. Page 362 of the trial transcript.

"Now, that's exactly what Chuck said-Chuckie said when he came home from work, his stepfather was in the bed and she was mixing creatine and Gatorade in the kitchen. She told him, these are Chuck's, don't mess with them. Remember?"

Cooley then excuses his mistake." I knew from discovery that Chuckie had told the police he had seen his mother mixing the Gatorade". However, Cooley never asked Chuckie, as he did not depose or interview him before trial. To prove Diane Fleming's innocence, is it not ineffective assistance to depose the prosecution's chief witness against your client?

Counsel did not correct his mistake when he appealed the case. That is Petitioner's charge of ineffective assistance of counsel specifically related to Claim 12.

In addition, Judge Powell knows Diane Fleming passed a polygraph, and therefore she knows it is true that Diane and Charles mixed the Gatorade in the afternoon.

Fleming's Claim 13 In Habeas Corpus Petition = Judge Powell's Ruling

  • Claim 13:

    CHUCKIE'S GRANT OF IMMUNITY

    David B. Hargett argued how important it was for a jury to hear that Chuckie believed that he had immunity. "We have an affidavit from a juror saying that it would have made a difference in the juror's mind, and I have no doubt that the mere mention of the word immunity would have changed the view of many of the jurors."

    Fleming's first Attorney, Defense Counsel Cooley swears he filed a motion for discovery and exculpatory information. The response contained no mention of a grant of immunity to Chuckie. In his affidavit, he admits, "the Attorney General's office informed him of the immunity but the immunity is the same every witness gets and such a grant of immunity presents no incentive to testify falsely, and therefore would not be effective impeachment material in any event."
= Judge Powell's ruling against Claim 13:

Judge Powell court combined this refusal of the claim with claims 8,14,16,18 20 and 22. All of these claims attack trial counsel's strategy. The Court as argued by Hargett, "must be highly deferential in scrutinizing (counsel's) performance".

The Attorney General's office said the exculpatory information was available through independent sources, and thus was not suppressed, and no (Brady) violation occurred.

Rebuttal to Judge Powell's Ruling On Claim 13:

Hargett's objection is the same as his argument above.

Other findings by this writer:

If the information was available (the grand jury testimony) to defense counsel, Cooley and he did not discover it, how is this not "ineffective assistance of counsel" as Judge Powells claims in her refusal to grant the claim?

In the original habeas for Diane Fleming's writ of habeas corpus, written by Mason Lee Byrd, he says, "Counsel's performance was deficient for failing to ask Chuckie on the stand whether the Commonwealth had made him any promises. Furthermore, counsel never interviewed Chuckie prior to trial regarding his testimony. Had he questioned him on the stand he would have discovered that Chuckie believed that he had immunity."

Fleming's Claims 14, 15, 16, & 17 In Habeas Corpus Petition = Judge Powell's Ruling


  • Claims 14, 15, 16, 17:

    COMPUTER DATE OF METHANOL POISONING SEARCH

    David B. Hargett argued if Diane Fleming had performed a search for methanol prior to Charles' death that was some type of premeditation. "Without that evidence, they have nothing other than mere speculation. The expert in this case was never qualified as an expert… it is very common for attorneys to fail to challenge an expert's testimony. It has been my experience that many attorneys know that a person is an expert and just let them say anything that they want to say. However, if we get back to the point that a defense attorney has one job and one job only, and that job is to subject the Commonwealth's case to adversarial testing, then the attorney needs to do more than just let the prosecution put on whatever type of evidence that they want without challenging that evidence."
= Judge Powell's ruling against Claims 13:

Judge Powell once again relies on Strickland. "Although Petitioner feels her counsel should have objected to Virginia State Police Special Agent Michael Monroe's report, this decision was, again a matter of trial strategy. Regardless of whether or not counsel objected, the date of Monroe's search was bound to become evidence at trial."

Rebuttal to Judge Powell's Ruling On Claim 14, 15, 16, 17:

In his objections, Hargett writes to the Court concerning these claims, "the expert in this case was never qualified as an expert, and he could not say to a reasonable degree of certainty that the listed date was the actual date of the search. Under those circumstances, the opinion would not have been admissible, and counsel failed to subject the Commonwealth's evidence to adversarial testing. Prejudice is clear in that the expert testimony let the jury believe that petitioner searched for methanol poisoning instructions as an act of premeditation."

Other findings by this writer:

One of the many things that is disturbing is about Diane's first attorney, Defense Counsel, Craig S. Cooley's. In his opening statement, he promises the jury, "he will call his own expert about the date of the computer showing a date of May 15th for a methanol poisoning search. Charles Fleming died June, 2000. Cooley never put an expert on the stand; he relied on the state's "expert". It was both Mason L. Byrd who wrote the habeas and David B. Hargett in Diane's evidentiary hearing who argued it concluded the state's witness was not qualified to testify as an expert. Cooley refers to Michael Monroe as an "expert" in his own closing argument thereby bolstering the Commonwealth's case. This is most disturbing that Cooley would make such a statement, bolstering the Prosecution's case against Diane.

There is nothing in the trial testimony by Defense or Prosecution to make clear exactly what computer, taken from the Fleming house, the 'methanol search' appeared. Only one computer, according to Diane Fleming had Internet capabilities.

Clearly, the computer search for methanol could not have been on the hard-drive the police confiscated because it had been switched out after Fleming's death when the police began pestering Chuckie. In testimony, Defense Counsel told the jury that Diane Fleming did a computer search only after she found out how her husband died.

Taken from the original court transcript, Cooley questions Monroe concerning this.

Q. But that could have been wrong? (the date) It could have been done on July 10th and it might have said May 15th?

A. (from Monroe), That's correct.

Fleming's Claim 18 In Habeas Corpus Petition = Judge Powell's Ruling

  • Claim 18:

    FAILURE TO PRESENT EXPERT TESTIMONY AS TO ANOTHER CAUSE OF DEATH

    Hargett argued this claim along with Claim 3 and 4, as did the Attorney General's office.

    The original habeas by Mason L. Byrd points out that the conditions Charles Fleming presented to his doctor one month prior to his death were symptoms associated with cardiomegaly or side effects of the medicines Fleming was taking.
= Judge Powell's ruling against Claims 18:

Judge Powell combined Claim 18 together with 8, 13, 14, 16, 20, and 22 "The Court must be highly deferential in scrutinizing a counsel's performance ", this time citing Burker v. Angelone, 208 F. 3d 172m189 (4th Cir. 2000)

Rebuttal to Judge Powell's Ruling On Claim 18

None - needs to be added

Other findings by this writer:

None - needs to be added


Fleming's Claim 19 In Habeas Corpus Petition = Judge Powell's Ruling

  • Claim 19:

    FAILURE TO OFFER MATHEMATICAL PROOF THAT WINDSHIELD WASHER FLUID DID NOT POISON VICTIM

    Other Findings By This Writer:

    David B. Hargett argued the evidence was presented that there was not enough window washer fluid missing from the bottle to account for the amount of methanol in the Gatorade bottles, but it should have been spelled out clearly for the jury so that the jury would have no choice but to understand the situation. Hargett's assistant Mary Beth Rider who was at the motion hearing states, "Hargett told Judge Powell there were two tests that would show exactly where the methanol originated. These tests are the NFT1 chromophotography test and Raman Microscope test.
= Judge Powell's ruling against Claim 19:

Judge Powell ruled: "Claim X1X is dismissed for a number of reasons. Namely, because as mentioned above, the "Commonwealth never contended the windshield washer fluid had been the source of the methanol poisoning, the Court "must be highly deferential in scrutinizing (counsel's ) performance."

Rebuttal to Judge Powell's Ruling On Claim 19

In his objections, Hargett writes to the Court concerning these claims, "the expert in this case was never qualified as an expert, and he could not say to a reasonable degree of certainty that the listed date was the actual date of the search. Under those circumstances, the opinion would not have been admissible, and counsel failed to subject the Commonwealth's evidence to adversarial testing. Prejudice is clear in that the expert testimony let the jury believe that petitioner searched for methanol poisoning instructions as an act of premeditation."

Other findings by this writer:

The Commonwealth and Judge Cleo Elaine Powell contend that even if forensic tests determined that no blue dye (supposedly from the windshield washer fluid) was in the Gatorade, it did not necessarily exculpate Petitioner. (see Claim 22, the Smoking Gun)

Powell devotes an entire paragraph to Petitioner's Claim. Keep in mind during a 461 page trial transcript, the windshield wiper fluid was mentioned 50 times by itself and the words Gatorade and the windshield washer fluid were mentioned 215 times, separately or together. Most of the testimony of Dr. J. Saady, (the toxicologist who failed to know there were tests to show exactly where the methanol in the Gatorade came from) pertained to whether or not the Krystal Kleer windshield washer fluid was full or not. Prosecution contended "whoever did this had been doing it for some period of time. That's the only conclusion you can draw from this" (Tr. 209)

True. For years the methanol in Charles Fleming's daily diet Cokes and diet Sprites and Equal packets accumulated in his body.

Fleming was characterized as a 'health nut' at the trial. What kind of a health nut drinks 10 cans of diet soda a day?


Fleming's Claim 20 In Habeas Corpus Petition = Judge Powell's Ruling

  • Claim 20:

    FAILURE TO MOVE FOR A MISTRIAL BASED ON PROSECUTOR'S REMARK

    The Prosecutor asked Petitioner, ( Diane Fleming) on the stand at her first trial. "Knowing what you know now and the fact that (a bottle of Gatorade containing methanol) was located in your house and that the evidence is that it never went with him to work, that the only person or persons who could have placed methanol in that bottle had to have access to that bottle or your refrigerator?"Petitioner, Diane Fleming responded, "We're assuming he never took it to work." (transcript, page 276) The prosecutor then responded, "Well, there was no evidence that he did."

    David B. Hargett argued, at the evidentiiary motion hearing: "I presented to the court that this issue is fully set forth in the pleadings, but it is clear that the defendant does not have the burden of proof."
= Judge Powell's ruling against Claim 20:

Judge Powell combined the answer to Claim 20 along with Claims 8, 13, 14, and 22.

"All of these matters attack trial counsel's strategy, the Court 'must be highly deferential in scrutinizing (counsel's performance'."

Rebuttal to Judge Powell's Ruling On Claim 20

Mason L. Byrd, in Diane Fleming's habeas petition wrote: "This was a grossly improper statement to make to a defendant testifying on her own behalf. It was entirely the Commonwealth's burden to eliminate every reasonable theory of innocence. The Commonwealth's statement gave the appearance that the defense had some burden of proof. Counsel should have objected and requested a mistrial. Counsel's performance as deficient in failing to raise this issue at trial."

Craig S. Cooley, Diane Fleming's original defense lawyer says in his affidavit. " I did not object. Perhaps I should have. I really thought we were in great shape in the evidence. I truly expected that Judge Powell would grant the motion to strike. She should have and nearly did. I believe she let the case go to the jury believing the jury would acquit."

Fleming's Claim 21 In Habeas Corpus Petition = Judge Powell's Ruling

  • Claim 21:

    SUPPRESSION OF "EXCULPATORY" EVIDENCE OF GRANT OF IMMUNITY TO CHUCKIE

    In Brady v. Maryland, 373 U.S 83 (1963) the Supreme Court held that a due process violation occurs when the prosecution suppresses evidence favorable to an accused that is material either to guilt or to punishment, irrespective whether the prosecution acted in good faith or bad faith.

    David B. Hargett explained to the court that, in a Brady violation situation, you take all instances where the prosecution failed to disclose evidence favorable to the defense and you add up the prejudicial effect to determine whether the evidence would have been material under the legal definition. Although it was certainly defense attorney's duty to interview Chuckie, the prosecution had a duty to disclose the fact that the conversation took place where immunity was mentioned to Chuckie.
= Judge Powell's ruling against Claim 21:

Judge Powell rules the reasoning the Court now relies upon to dismiss Claim XX1 further supports the Court's dismissal of Clam XX11: the evidence does not clearly indicate that the Commonwealth is guilty of violating the duty imposed on it by Brady v. Maryland.

Rebuttal to Judge Powell's Ruling On Claim 21

Hargett's objection: As to Claim (21) the prosecution had a duty to disclose the fact that the conversation took place where immunity was mentioned to Chuckie.

Other findings by this writer:

Chuckie's testimony at the grand jury clearly indicates he was granted immunity.

Fleming's Smokiong Gun Claim 22
In Habeas Corpus Petition		 = Judge Powell's Ruling

  • Claim 22:

    THE SMOKING GUN
    SUPRESSION OF 'EXCULPATORY' EVIDENCE OF FURTHER FORENSIC TESTING OF POISONED BOTTLES

    From Defense Counsel Craig S. Cooley's affidavit: "I never received any discovery material from the Commonwealth indicating that the Division of Virginia Forensic Science was unable to identify the presence of that blue dye in the contents of the Gatorade bottles."

    In a letter to Diane Fleming from her habeas lawyer, David B. Hargett explains to her how he argued Claim 22:

    "Commonwealth's case relied upon window washer fluid being the source of the Methanol. There is no suggestion and certainly there is no evidence showing any other source. The Commonwealth presented evidence that you were the one that serviced the vehicles, and the Commonwealth even stated in closing argument that you were the one that handled the window washer fluid. They couldn't come out and say that we know this is the source of the Methanol because they didn't have any evidence and they would look foolish for making this argument. Nevertheless, they certainly wanted the jury to believe that you handled the window washer fluid and used it to poison your husband. So, it is very important that the Gatorade bottles did not contain any blue dye, which strongly suggests that window washer fluid was not in the Gatorade bottles. As to the inconclusiveness of the tests, it is still exculpatory evidence."

    Attorney, David B. Hargett told Judge Powell that the Attorney General said during her argument, "that the Commonwealth's position was that the window washer fluid was not the source or at least not the sole source of the Methanol. Therefore, during their argument, they admit that part of the Commonwealth's theory is that the washer fluid is an important factor in this case."
= Judge Powell's ruling against Claim 22:

Judge Powell instructed the jurors at Diane Fleming's trial, in 2002, "Apply your common sense to what you have heard from the evidence." One can only wonder why Judge Powell cannot follow her own instructions. Does Powell believe Fleming put a poisoned Gatorade in the refrigerator where her (then) 7-year old daughter could have drank it? Cleo Powell also knows Diane Fleming passed a polygraph.

Judge Cleo E. Powell's denial of Claim 22: "the evidence does not clearly indicate that the Commonwealth is guilty of violating the duty imposed on it by Brady v. Maryland… Although the claim made in Claim XX11 (that the Commonwealth suppressed exculpatory evidence of further forensic testing on poisoned bottles ) is not information that could be found elsewhere, there is no Brady violation as the information was not exculpatory (because) the Commonwealth never contended that the windshield washer fluid had been the source of the methanol poisoning." Therefore, the fact that the tests determined that no blue dye was in the Gatorade did not necessarily exculpate Petitioner."

Rebuttal to Judge Powell's Ruling On Claim 22

The question that needs to be asked then, Why, then, in a one-day trial was the windshield washer fluid mentioned separately 50 times and the Gatorade and windshield wiper fluid mentioned together, 215 times?

First mention of having the (Gatorade) bottles tested appears in the Chesterfield police report-- the date of Incident Number 200006140115 is 7/6/2000.

Ph.D. Saady, the toxicologist who swears he found methanol in the Gatorade bottles, told Detective Ruth Baker he was "sending the items to Tidewater for Ethyleneglycol for analysis, however he feels that the methanol originated from the container of unknown blue liquid containing 33% methanol." Saady did not do this. Ethyleneglycol is used in antifreeze, not windshield washer fluid.

Saady swears in a new June 3rd, 2005 affidavit, "Specifically, I was asked to attempt to test Gatorade Bottles for dye and soap elements of windshield washer fluid. I selected Item 13, Gatorade it contained had the highest concentrate of methanol, 4.7%... (The method used), did not have the appropriate sensitivity necessary to identify trace concentration. As a result, I could not definitively determine whether any amount of windshield washer colorant was present in the Gatorade mixture and, therefore, did not issue a Certificate of Analysis. I advised Investigator Elizabeth Baker... that I would not be issuing a report because no definitive conclusions could be reached from these tests".

The Prosecution, at trial, more than intimated to the jury, the methanol in the Gatorade bottles came from the windshield washer fluid. What actual proof did the Prosecution have? None. Their own toxicologist, Saady, could not confirm it.

Prosecutor Warren B. Van Schuch questions Detective Ruth Baker on the stand.

Q. "Would you take your pen and put your initials or a little number 1 or something up by the picture that shows the fluid, the blue windshield wiper fluid." (transcript - page 154)

This is a direct subliminal suggestion without basis or proof to the jury by the Prosecution that the windshield wiper fluid was put into Flemings' Gatorate.

The Gatorade and the windshield wiper fluid were mentioned 45 times during Detective Ruth Baker's short testimony in this subliminal way of convincing the jury that it was the windshield wiper fluid in the bottles of Gatorade.

Detective Baker did testify she saw no sign of blue colorant in the Gatorade bottles, but Defense Counsel Cooley in his incompetence of defending Diane was unable to parlay the information into vital questions such as, "Were there tests done?" "What were those tests?" "What did those tests show?" The jury would have then found out, from Baker, the tests did not find any blue dye in the Gatorade and that no further forensic tests were performed.

It is more than probable, a not-guilty verdict would have come down for Diane Fleming if the jury had known the Commonwealth withheld the information from the defense that no tests were done on the Gatorade bottles to prove or disprove not only that no blue dye was found in the Gatorade bottles but other tests that could have proven from where the alleged methanol originated from.

Saady on the stand, in giving his credentials, notes. "one of the things that a toxicologist is, is a chemist." If Saady is a chemist, he should have known about the Raman Microscope test or an NFT1 gas chromophotography test which could have proven the source of the methanol in the Gatorade bottles, whether from a natural food source or from a chemical source such as aspartame.

With a woman's freedom at stake, Saady, employed by the Virginia Division of Forensic Science, did not send the Gatorade bottles for more sophisticated testing when he could not find anything with his "do-it-yourself" tests. Saady swears in his affidavit: "I attempted to develop a procedure to identify the colorant in the windshield washer fluid."

This is the SMOKING GUN in this case !
This should have kept Diane from being wrongly convicted of having anything
to do with the purported poisoning of her husband, Chuck Fleming.

A Legal DefenseTrust Fund
Has Been Setup With Diane's New Attorney, David B. Hargett

Diane's Habeas Corpus was denied by Judge Cleo Powell in Virginia on February 8th, 2006.

Because of this, Diane must now file an appeal with the Supreme Court for a new trial. This is an expensive task. Copies of the court records alone cost $2,500.00 for ten copies. Legal costs could exceed $25,000 for her appeals. According to law, Diane's attorney can only file the appeals for her if he is "retained" by her, meaning being paid.

As of June 30, 2006, $4,605.00 has been donated to her Attorney, David B. Hargett by various people that believe in Diane's innocence. Diane plans on selling what little she has left of personal belongings in storage to help with her legal fees.

Diane's attorney, David B. Hargett, intends on pursuing the appeals for Diane, however, a trust fund has been set up to help defray the expensive legal costs that lay ahead. That is why we are appealing for donations to help Diane inher appeal.

If you can send even $5.00, it would be much appreciated. We are trying to get at least 1,000 people to donate just $20.00 each. This would raise $20,000.00 to help defray the legal costs in Diane's appeals, however...

Diane could need as much as $50,000.00. These funds are needed just for court costs, expert assistance, other court costs in filing her appeal to the Supreme Court and for the testing of the Gatorade bottles which is expensive. Her Attorney, David B.Hargett is working on Diane's case on a reduced fee basis, he cannot file Diane's appeal by law unless he charges her something. If you can donate more than $20.00, Diane would greatly appreciate it.

If you are donating to Diane Fleming's legal defense fund, please fill out this form. These forms will be mailed to Diane in prison and forwarded to her Attorney as well to match up with your check that you will mail directly to her attorney. Diane will try to write a personal response to everyone that sends in a donation. You may also input a short message to Diane.

Click below for further information about:
Diane Fleming
Legal Defense Trust Fund
Donation Input Form

David B. Hargett, Diane's new Attorney is a licensed attorney to practice law in the state of Virginia.
You can view his license record at the Virginia State Bar website.

The Diane Fleming Trust Fund
Hargett & Watson, PLC
Attorneys and Counselors at Law
11545 Nuckols Road, Suite C
Glen Allen, Virginia 23059
Phone: 804-788-7111
Fax: 804-915-6301
Website: www.hargettwatson.com

You can also write to Diane in prison at:
Diane Fleming #311655
FCCW 8D 209A
Box 100
Troy, VA 22974

Additional Articles and Information About This Case

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©2006
Carol Guilford
July 10, 2006