Former assistant district attorney Donald Dodd took the stand for more than five hours Wednesday, a day featuring heated exchanges over filing procedures and evidence disclosure in the hearing to determine if Gary Thibodeau deserves a new trial for his conviction of kidnapping Heidi Allen.
Prosecutors have tried to establish that Dodd and the Oswego County Sheriff’s Office investigators were thorough in ensuring Thibodeau’s defense attorney received all evidence in the case. The defense team, however, paints a picture of suppressed evidence and mismanaged files.
Dodd was adamant about two things: that all of the sheriff’s office investigation files were turned over to Gary and Richard Thibodeau’s attorneys — including documents related to Allen giving confidential information to investigators — and that Allen never actively worked as a confidential informant.
“Heidi Allen provided confidential information, I believe, on one occasion in 1991,” Dodd testified. “She never worked as a confidential informant.” Dodd made the distinction in line with what prosecutors have argued, that Allen provided some information to investigators but was not consistently tipping investigators off to criminal activity.
Thibodeau’s defense team, pointing to an informant identification card dropped in the parking lot of the same New Haven convenient store where Allen went missing, argues the perception of Allen as an informant gave other suspects a motive.
They also argue documents related to Allen giving confidential information were not properly disclosed to Thibodeau’s lawyer, Joseph Fahey.
Fahey testified in February he was unaware Allen was an informant and would have “raised holy hell” if he saw such documents in the middle of Thibodeau’s trial.
Cross-examining Dodd — and former Inv. Terry Whipple Tuesday — Bianco tried to establish that investigators didn’t place enough importance on Allen’s status as a confidential informant.
On Tuesday, Whipple said he was informed, “there was nothing to it,” in reference to Allen’s informant card being dropped. Dodd said he did not recollect whether the informant card itself was ever given a “lead number.” Dodd said, however, that Allen’s informant status was discussed openly in a pretrial proceeding Dec. 8, 1994, and that very day, he told investigators to provide him “the full file and record to find out if Allen at any time provided information as a confidential informant.” The next day, three investigators provided statements to Dodd revealing Allen had provided some information confidentially. Dodd said the statements were then photocopied and turned over to defense counsel.
“In fact, those documents were turned over personally to Fahey on Dec. 14, 1994,” Dodd testified.
Dodd said he spoke with both Fahey and William Walsh, Richard Thibodeau’s attorney, “on more than one occasion, to the best of [his] recollection,” about Allen providing confidential information.
Both attorneys came to the District Attorney’s office in March of 1995, where Dodd says the “entire” investigation file, including documents on Allen giving investigators information, were made available to the defense teams.
But Bianco questioned whether certain information about Allen’s informant status was not given to defense lawyers until the middle of Gary Thibodeau’s trial; Dodd said discovery was always ongoing.
Bianco also engaged in testy exchanges with Dodd over his record keeping, with both of them — and eventually Judge Daniel King — expressing frustration.
Dodd said he had no control over what items were assigned lead numbers, and made clear there was a required procedure, which included marking all original documents in the sheriff’s office case file with green ink to notify they were copied and turned over to defense counsel.
But Bianco pointed to cover letters without Oswego County letterhead, copies without green ink, or documents excluding specific references to Allen being an informant.
“They supposedly have this system where they stamp things, then they don’t,” said Bianco to King. “There’s a green marker, then there’s not.” Dodd asserted only originals were marked with green ink, and repeated that defense attorneys were shown, and given copies of, the entire case file, and received further discovery documents as time went on.
Bianco asked about a January 1995 court proceeding in which Walsh asked for more than 100 lead sheets and asked the court whether there should be a hearing on sanctions over Dodd’s sharing of evidence.
Bianco asked if Dodd didn’t think the original defense team was “entitled” to review the grand jury minutes from Richard Thibodeau’s trial.
Dodd later told Moody during redirect examination that he opposed disclosure of the grand jury minutes because the District Attorney’s Office didn’t have them completed yet, and because no indictment had been filed.
He said by law there’s no requirement to disclose grand jury minutes until after an indictment has been filed.
Bianco claimed Fahey — when asking for discovery documents in December of 1994 — was asking specifically for the confidential informant identification card.
“He was asking for the actual file and the actual file wasn’t given to him,” said Bianco.
“That’s absolutely incorrect,” replied Dodd, who said he couldn’t speak to what was in Fahey’s mind at the time, and “nor can [Bianco].” Dodd maintains Fahey asked for any information related to Allen providing confidential information, and a week later received everything the sheriff’s office had in the file at the time.
There was also some testimony on Michael Bohrer, with Dodd saying investigators ran a national criminal background check on Bohrer, which showed no record of any convictions or active warrants.
He did acknowledge to Bianco, however, that “you could still have a criminal record with an agency not entering it into the national system,” he said.
Dodd said investigators ran the background check on Bohrer because someone with a similar name — Michael Bort — was on Thibodeau’s lawyer’s witness list.
Dodd called Bohrer “part of the overall investigation,” saying he had been interviewed by the sheriff’s office and the Federal Bureau of Investigation.
Dodd said it “absolutely” would have been significant for him to know Bohrer’s criminal record if he had one, just as it’s important for him to know information on “any suspect as part of the investigation.” But Dodd said he did not think “that was the case here,” and Bianco, after attempting to once again introduce more details of Bohrer’s 1981 false imprisonment conviction, was told to change her line of questioning by King.
King still needs to rule on whether to hear testimony from the victim in Bohrer’s 1981 conviction, and also whether to allow questions to Dodd regarding trial discussion of Allen’s fingerprints.
The hearing resumes today, from 8:45 a.m. to noon. After this week, the proceeding con-tinues April 7.