A Hypothetical Scenario

"A defense investigator spoke with Von Wendel on June 11,1986, after petitioner had been convicted in the guilt phase of the trial.  At that time, the investigator learned of the incident with Bo.  In the same interview, Von Wendel told the investigator of an incident in which petitioner had threatened a woman with a dog.  When Von Wendel intervened, petitioner left and returned with a machete."  (Thomas v. Wong, p. 14)

(The way I read this is that Thomas threatened a woman who had a dog--not that Thomas had a dog and he threatened the woman with it.)

I want to critically examine the prosecution's argument at trial by considering a hypothetical situation based on Von Wendel's report. Looking at the incident in which Thomas allegedly threatened the woman, let's say that Thomas had had hacked Von Wendel to death with the machete after he intervened. And let's say that the police had arrested Thomas and that he was brought to trial. Would the prosecution have used Thomas's criminal record to explain why he threatened the woman and killed Von Wendel for intervening?

People v. Thomas summarizes Thomas's prior felony convictions in the following: "The trial court took judicial notice of defendant's 12 prior felony convictions. On July 24, 1974, in Monterey County, defendant was convicted of two counts of rape and one count of armed robbery. On November 1, 1974, in Alameda County, defendant was convicted of two counts of kidnapping, two counts of rape, two counts of violating section 288, subdivision (a), two counts of robbery, and one count of sodomy. The jury in that case found true the allegations that defendant was armed with a deadly weapon (a handgun) during the commission of the offenses, used the weapon in committing the kidnappings, rapes, and robberies, and acted in concert in committing the rapes and sodomy." (People v. Thomas, p. 24)

I don't think they would have relied on Thomas's record in their prosecution, because it would be simpler to explain the murder of Von Wendel in terms of intense anger and some underlying psychological issue. I don't think that they could have argued for the death penalty because there would have been no evidence of special circumstances.

Of course the prosecutors don't seem to have had Von Wendel's story prior to or during the trial, so to make a compelling argument they had to use Thomas's record to get a conviction from the jury. My argument relies on Von Wendel's testimony and that of Vivian Cercy (something the prosecution could not and would not do at trial because they were looking for a conviction and the death penalty.

A desired end calls for the means to achieve it. The prosecution desired a conviction and the capital punishment so they built an argument to get them. Thomas's appeals team desired a new trial and they built a case (positing an alternate suspect) to get it. Some of the people interviewed for the podcast desired justice, and so they went to Payne Lindsey to help them get it. Payne Lindsey desired to make money and advance his career and so he put together the podcast.

It's my opinion that you first have to get as close as you can to the truth in order to get justice and avoid injustice…