Peel asks for new trial

Steve Gonzalez May 1, 2007, 1:00am

Gary Peel

Attorneys for Gary Peel filed a motion asking U.S. District Judge William Stiehl to grant him a new trial claiming cumulative errors in the case denied Peel a fair trial.

Federal public defenders Phillip J. Kavanaugh, Stephen Williams and Dan Cronin say that errors included giving improper jury instructions, excluding evidence that prevented Peel from presenting a complete defense, and allowing the government to present incompetent testimony and evidence that should have been excluded.

Peel was convicted on March 23 by a federal jury on charges of bankruptcy fraud, obstruction of justice and possession of child pornography.

He is being held in detention at the Clinton County jail until his June 25 sentencing at the Melvin Price Courthouse in East St. Louis. Peel faces up to 40 years in prison.

"The interests of justice require that a new trial be granted," Peel's attorneys wrote.

They also claim that evidence was insufficient as matter of law to support a guilty verdict on two counts of child pornography due to the lack of evidence pertaining to Peel's knowledge and a nexus between the images in evidence and interstate commerce.

"Giving erroneous jury instructions is a proper ground upon which a motion for a new trial can be granted," Peel's attorneys wrote. "Mr. Peel asserts that this Court erred in refusing to give his proposed instruction #8, which would have instructed the jury that Mr. Peel's subjective intentions in taking the photographs at issue in this case were irrelevant to the jury's determination of whether any image met the definition of child pornography."

Peel's legal team claims the instruction should have been given because the determination of whether a particular image is lascivious should, properly, be an objective one.

"In this case, by allowing the jury to consider Mr. Peel's subjective intentions, the Court impermissibly expanded the scope of the statute beyond its plain language and in violation of Mr. Peel's Fifth Amendment rights to due process," Peel's attorneys wrote.

Peel's defense team claim Stiehl's failure to give this instruction allowed the jury to consider testimony of Donna Rodgers relating to the circumstances of the production of the images.

They also claim Stiehl also allowed the government to argue that the evidence was relevant to whether the photographs were child pornography.

At trial, Rodgers testified that Peel had instructed her how to pose in photographs and also testified that she and Peel had engaged in sexual intercourse at the time the photos were taken at his law office.

"The failure to give the proposed instruction allowed the government to invite the jury to consider the contemporaneous sexual activity between Mr. Peel and Ms. Rodgers, as well as Ms. Rodgers testimony regarding Mr. Peel's alleged instructions to her, as further evidence that the pictures in question were child pornography," Peel's attorneys added.

"Ultimately, consideration of this evidence allowed the jury to weigh Mr. Peel's subjective intentions at the time the photos were taken in determining whether the photographs, on their face, met the criteria for child pornography beyond a reasonable doubt.

"This was error."

Peel's legal team also claims Peel was prejudiced by Stiehl's exclusion of evidence important to his defense.

"Prior to trial, this Court granted a number of motions in limine by the government, including the government's motions seeking the exclusion of evidence pertaining to non-reconstructive plastic surgery, such as a facelift, which Deborah J. Peel sought to have paid out of marital funds," Peel's attorneys wrote.

Peel asserted that the evidence is relevant to his ex-wife's credibility, veracity, and lack of good faith, but Stiehl said he "is not so persuaded."

"It is respectfully submitted that these rulings were in error and impeded Gary Peel's defense to a degree which necessitates the granting of a new trial," Peel's legal team wrote.

They added, "Moreover, as distasteful as divorce litigation may be, that context should not have served to innoculate Deborah J. Peel from proper challenges to her credibility, state of mind, bias, and untruthfulness."

Peel's legal team claims a witness's credibility suffers when he or she improperly spends funds, no matter how proper that witness's access to those funds were. They claim it is not merely the dispersal of funds, but the witness's explanation about that dispersal which can cast doubt on that witness's credibility.

"Put plainly, Deborah J. Peel's misappropriation of funds gave her a powerful bias against Gary Peel - a bias about which Gary Peel's jury was completely unaware," Peel's attorneys wrote.

They claim Deborah J. Peel's alleged misuse of marital funds was also directly relevant to the charges of bankruptcy fraud and obstruction of justice.

"By excluding the evidence of Mr. Peel's claims against his wife regarding the improper use of marital funds, this Court prevented Mr. Peel from explaining to the jury the full extent of the consideration he was giving up in the negotiations with his ex-wife," Peel's attorneys wrote.

They claim the jury was not allowed to properly weigh whether the government had proven beyond a reasonable doubt whether Peel had fraudulently used the pictures to gain an advantage in the bankruptcy.

Peel's team claims by denying Peel the right to present this evidence Stiehl denied him his right to prevent a complete defense.

"Mr. Peel testified at trial that his conduct with respect to the pictures was a reaction to activities on the part of his ex-wife in making private matters in the bankruptcy public," the motion states. "They were not done for the purpose of obtaining an advantage in the bankruptcy.

"Had Mr. Peel been allowed to explain his claims against his ex-wife, as well as the fact that he was willing to give them up as part of his settlement offer, he would have been able to show the extent to which he was offering very real, and very fair, consideration for the settlement."

Peel's legal team also claims the government failed to prove beyond a reasonable doubt that the photocopies of the original image were manufactured with materials that traveled in or affected interstate or foreign commerce.

Stiehl has not set a date for a hearing on Peel's motion. The government is likely to file a response by the end of May.

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