On March 22, 2006, Cleo E. Powell, a Circuit Court Judge, in Chesterfield, Virginia denied all 22 claims argued by 'habeas specialist' attorney David B. Hargett, of Richmond, Virginia, for Petitioner Diane Fleming. Granting of the habeas petition by the Judge Powell would have allowed an evidentiary hearing where evidence would have been presented to show Diane Fleming did not receive a fair trial.

Because Judge Powell denied the habeas, Diane Fleming can no longer have a court-appointed counsel, paid for by the Commonwealth. David B. Hargett has been retained privately to file an appeal with the Virginia Supreme Court. Mr. Hargett, on June 30th, 2006 filed an appeal with the Virginia Supreme Court regarding Judge Powell's ruling. If this appeal is unsuccessful, the case will move out of the Commonwealth Court and into the Federal Court System.

Diane Fleming was convicted of 1st degree murder, in February, 2002 for allegedly 'spiking' her husband's Gatorade with methanol which resulted in his death in June, 2000. The bottles remain in evidence, but are unavailable. An NFT1 test or Raman Microscope test can prove precisely where the methanol originated.

If injustice can happen to Diane Fleming, it can happen to any of us. Searching for 'whodunit' instead of 'whatdunit' brings a Twilight Zone aura to The Charles Fleming murder case.

Under an antiquated Commonwealth of Virginia law, new evidence cannot be presented during a habeas motion hearing; instead, Diane's new attorney, David B. Hargett, had to present other arguments in hopes of getting Diane an evidentiary hearing.

The 22 claims in the habeas brief pertain to "ineffective assistance of counsel." Two of the claims accuse the Commonwealth of withholding exculpatory evidence from the defense. Brady v. Maryland, 373 U.S 83 (1963). " A failure on the part of the government to disclose Brady (exculpatory) material requires a new trial, or a new sentencing hearing, if disclosure of the evidence creates a reasonable probability of a different result."

Judge Powell's decision basically exonerated Diane Fleming's trial lawyer, Craig S. Cooley. David B. Hargett, Fleming's new attorney told the Court, "The lawyer simply failed to do his job." Powell's denial of the habeas also acquits the Commonwealth of Virginia of violating Diane Fleming's constitutional rights.

On June 26, 2000, just days after her husband's death, Diane Fleming passed a polygraph. According to the police report by Chesterfield Police Department’s Detective Elizabeth Ruth Baker, Diane Fleming was truthful about having nothing to do with her husband's death.

There is a more sinister equation to Chuck Fleming's death the methanol in diet drinks and generic Equal, also known as the deadly chemical sweetener aspartame. One will be able to understand this deadly sweetener by reading Dr. Woodrow Monte's recent article about aspartame. Dr. Monte breaks his silence, ( since 1984 ), in his recent article, * "Methanol (in aspartame) is a chemical Trojan horse- a toxicological nightmare... "
[ see link listed below for Dr. Monte's entire recent article ].

On a daily basis, Charles Fleming drank 8 diet Cokes and 2 diet Sprites with aspartame. During one of the Chesterfield Police interrogations of Diane Fleming's son, Chuckie Tanner, told Detective O. F. Akers about his stepfather, "Well... I know sometimes he would doctor up his drinks." Akers never pursues this line of questioning. "Doctor up his drinks?" With what? - would have been a more appropriate question, considering Akers was investigating a possible poisoning.

Diane Fleming told this writer, "Charles added a generic brand of 'Equal' to everything he drank besides Diet Coke." The blue packets of aspartame sat on the kitchen counter, in a glass container. Did Charles put a blue packet of aspartame in the Gatorade, as he did in all his other drinks?

In Judge Powell's 6-page official decision denying Diane Fleming's habeas, Judge Powell again and again invoked: Strickland v. Washington, 466 U.S. 668, 686 (1984). In essence, 'Strickland' rules: "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment and The Court must be highly deferential in scrutinizing (counsel's) performance."

When this writer read Judge Powell's decision, she was tempted to send her a copy of Thurgood Marshall's Supreme Court dissent of "Strickland." Justice Marshall writes: "To afford attorneys more latitude, by 'strongly presuming' that their behavior will fall within the one of reasonableness, is covertly to legitimate convictions and sentences obtained on the basis of incompetent conduct by defense counsel."

Diane Fleming's supporters, through the Hargett & Watson law firm, have set up The Diane Fleming Legal Trust Fund for all who want to help free Diane. For more information, please click on link listed below.

The following is the The Smoking Gun. Claim 22:
"Suppression of 'exculpatory evidence' of 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."

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."

The question that needs to be asked...

Why, then, in a one-day trial was the windshield washer fluid...
mentioned 50 times?

David B. Hargett mentions in his objections that the Prosecution more than implies the windshield washer fluid was the source of the methanol.

On page 366 in the transcript, Davenport, the Prosecutor, in his closing argument says: "... and then the fact that she does purchase and service the vehicle as far as windshield wiper fluid is concerned... "

It is quite difficult to understand how Judge Powell could rule that the Prosecution never contended that the windshield washer fluid was the source when it had been mentioned 50 times and especially with Davenport's closing remark?

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 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. How can a court accept from a so called expert witness testimony, "he feels" without qualified proof.

Saady swore in a new June 3rd, 2005 affidavit,
[ see affidavit link below - pdf file - 217 KB ]

"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 the highest concentrate of methanol, 4.7%... (The method used)... did not have the appropriate sensitivity necessary to identify trace concentrations... 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."

In addition, 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.

The windshield wiper fluid was mentioned 16 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. 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.

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."

Diane's 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 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 she 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.

It was aspartame methanol poisoning that killed Chuck Fleming, not his wife Diane Fleming. At the website link below is a detailed account analysis of the other 21 claims are at the link below, including Dr. Woodrow Monte's article and Commonwealth toxicologist, Joseph J. Saady's complete affidavit.

Further analysis of the recent evidentiary hearing and 22 claims can be found at the links listed below as well as the Diane Fleming Legal Defense Donation Trust Fund.

Carol Guilford is a LA based writer and author of:
The New Cook's Cookbook, THE Diet Book
Carol Guilford's Main Course Cookbook, and The Easiest Cookbook.

Additional Articles and Information About This Case

• Diane's new Attorney is:
  
  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