Danny Hayden Willoughby

possibly Innocent In Arizona

Danny H. Willoughby
# 094415
ASPC Safford -- Tonto Unit
896 S. Cook Road
Safford, AZ 85546-7526
U.S.A.

DOB 5-28-1939

THE CASE

Case No: CR91-10184, ICA-CR 02-0092
Date of the Crime: February 23, 1991
Date of Conviction: 1992 (first trial)/ January 15, 2002 (second trial)
Sentence: Consecutive Sentences of 25 Years to Life for First Degree Murder and Conspiracy to Murder

Mr. Willoughby was initially sentenced to death. After a second trial in 1999, he received consecutive sentences of 25 years to Life, for the two counts.

Introduction

In February, 1991 the Willoughby family were on vacation in Rocky Point, Mexico, a tourist town on the Gulf of California popular with Arizonans. The family had rented a house in a small enclave of vacation homes a short distance from Puerto Penasco itself. The family decided to have an outing into town to visit a small museum. At the last minute Dan's wife Trish decided she would rather take a nap, leaving Dan to take the three children into town. They visited the museum and, having heard that a whale had washed up on the beach, took a detour to view it. They were gone less than two hours. Returning to the rented house they were stunned to find Trish's battered body lying on the bed in the master bedroom. The local Medical Examiner conducted an autopsy, finding that her skull had been badly fractured and listed the cause of death as multiple stab wounds. Three table knives, one still lodged in Trish's skull, were recovered from the scene.

Trish had been in business with her mother, Thera Huish, operating a successful mail order vitamin company. Unbeknownst to Dan, Trish and Thera had recently executed a sizable insurance policy on each other's lives as a buy-sell agreement on the business. Despite Dan's lack of knowledge of this policy, it soon became the lynch pin of the State's theory that Dan had killed his wife.

Unfortunately, Dan had been having an affair with a Mexican National, Yesenia Patino. Yesenia was a flamboyant and beguiling young woman who, it was later revealed, had been born a hermaphrodite. As an adult, Yesenia had surgically removed her vestigal male genitalia. This fact, misunderstood by the press as a "sex change" operation, caused a sensation and forever altered the perception of the case and of Dan himself.

Seeking evidence that Dan had drugged Trish to render her vulnerable to attack by Yesenia, the police had Trish's body exhumed and another autopsy performed, this time in Phoenix, on June 3rd, 1991. No drugs were found in Trish's system. However, when the casket had been opened for the exhumation, the police did discover a farewell love letter from Dan to Trish which he had privately placed in her hands just before burial. The police did not preserve the letter, nor even mention in their reports having found it; such a loving gesture by Dan would contradict the case they were trying to build against him.

The police continued to pressure Yesenia for a statement they could use against Dan. They first charged her brother with the murder, then dismissed the charge in exchange for his testimony against Dan. Finally, on December 7th, 1991 she caved in to the pressure and gave the prosecution a statement which blamed Dan for the actual killing and claimed that she only entered the house after Trish's death, and only to steal jewelry and money to give the appearance of a robbery. Dan was arrested the next day, charged with murder and held without bond. Dan's worst problem was still to happen though. That problem was his defense attorney, David Ochoa. Mr Ochoa was a former County Judge and Dan readily accepted his assurances of victory without question. While Mr Ochoa had tips for Dan on how to graciously accept the not guilty verdict when delivered by the jury, he had little to say about what was being done to prepare for trial. Nor did he mention that the prosecution had effectively hobbled what little preparation he had undertaken by threatening him with obstruction of justice.

The trial was a disaster. In his opening statement, Mr Ochoa offered a theory in which Yesenia had gone to the house, with Dan's knowledge, to extort money from Trish and things had gotten out of hand. Not only was this a fabrication by Ochoa but, as the trial judge pointed out to him at a bench conference, if true, would make Dan guilty of felony murder. Mr Ochoa made few objections during the trial and did even less cross examination. Thera Huish's "assumption" that Dan had known of the insurance policy came in without objection or question. He did not call as a witness the agents who had written the policy and could testify that Dan had known nothing about it.

When Yesenia took the stand and testified to a new version of events, in which she was the actual killer, Mr Ochoa neither impeached her with her first statement, nor the even more exculpatory taped statement Yesenia had given him and he had in his briefcase. Needless to say, the prosecutor was unruffled that his key witness had changed her story so much; it was still enough to get a conviction, regardless of its accuracy. Dan's conviction was virtually inevitable and he was sentenced to death on the strength Ms Huish's assumption; the Judge found that the murder had been committed for pecuniary gain. Dan's conviction and death sentance were affirmed on appeal, again because Mr Ochoa's performance at trial left vitually no issues preserved for appeal.

The only thing standing between Dan and the gas chamber was a petition for post conviction relief which allowed him to raise ineffective assistance of counsel. Dan's luck changed for the better at this point. His friends, stunned by his conviction and death sentance, rallied to his aid, raising money and performing hours of necessary but often tedious work. One major accomplishment was arranging for the video deposition of Yesenia Patino, who was serving a 35 year sentance for the murder in a Mexican prison. Yesenia had made no secret of her distain for the prosecution who, she felt, had bullied and deceived her at every turn. Her testimony was devastating to their case. She told of how the State had openly threatened to prosecute her brother if she did not implicate Dan, their promises of leniency with her Mexican sentance, even of having given her drugs in the courtroom hallway to "calm her down" as she waited to testify.

The state prosecutor and his chief investigator (Kay Lines), told Yesenia that if she did not agree to their lie that Danny was involved, they would bring her to Arizona, and give her the death penalty. However, under Mexican law, its citizens cannot be given the death penalty which is constitutionally prohibited. Yesenia did not know this.

Dan's new attorneys filed a meticulously researched brief, alleging both ineffective assistance of counsel and presecutorial misconduct. The brief was filed October 19th, 1997, Dan had been in custody for nearly six years. The evidentiary hearing continued, off and on, for over two years. Finally, on November 17, 1999, the trial judge reversed Dan's conviction for ineffective assistance of counsel. By ruling on that ground, the judge was able to avoid addressing the misconduct issues which Dan's lawyers had raised.

To grant a new trial due to ineffective assistance of counsel, the trial court had to find both that counsel's performance had been deficient and, but for the deficient performance, the result of the trial would have been different. In other words, that Dan would likely have been found not guilty.

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Mr. Willoughby's letter to you:

My name is Dan Willoughby and I am an inmate at Arizona State Prison. I was sent to death row in 1992 after my conviction in 1992.

I was awarded a new trial in 1999 when Judge Howe overturned my conviction due to gross ineffective assistance of counsel, laced heavily with egregious investigative and prosecutorial misconduct.

The state's case began to erode when it's star witness, and linchpin of their case, Yesenia Patino, changed her 1992 trial testimony. Ms. Patino, incarcerated in a Mexican prison, confessed fully to this homicide, and exonerated me entirely from any foreknowledge, or participation in this crime. These confessions came in the form of letters to Judge Howe, the Arizona Attorney General's office, the American Consulate in Hermosillo, Mexico, the Mexican Attorney General, multiple interviews before state and defense attorneys and investigators, and culminated in a court ordered video deposition. In this video deposition Ms Patino gave a step by step recreation of how she alone committed the homicide, totally unbeknownst to me. In her words "I could not find peace with God until I told the truth".

Yesenia Patino was extradited from Mexico to testify at my 2001 trial, all the while vehemently and repeatedly denouncing the state's prosecution and investigators for their false promises, chicanery, coercion and subterfuge.

It was reported that days before Ms. Patino's trial testimony, a clandestine meeting was conducted between Ms. Patino and state officers of the court. Consequently, when she testified on direct examination by the prosecution, she reverted back to her rehearsed 1992 testimony, involving me in this crime. It's quite clear her testimony was suborned.

However, under cross-examination by the defense, Yesenia Patino explained in vivid detail how she committed this crime, and her motive for doing so. She even begged the trial judge to allow her to stop with her exhaustive testimony. Ms. Patino, physically and emotionally drained from this confession, had to be helped from the witness stand by a prison guard and a female attorney from the Attorney General's office.

The jury, backed into a Thanksgiving day vacation deadline to end this trial, rendered a guilty verdict. This verdict shocked my defense attorneys, as well as many legal pundits who followed this trial. When jurors were asked after the trial why they returned a guilty verdict, some stated that they were confused on some jury instructions and, in particular, "accomplice liability" and "reasonable doubt". It was blatantly obvious that there was an abundance of reasonable doubt. Further investigation, and in judge's chambers, discussion with some jury members revealed a clear presence of some jury misconduct and coercion.

The state, seeing their case before the trial start to unravel, elected to drop the death penalty. I was found guilty and sentenced to 25 to life sentences.

I have enclosed a sampling of some of the abundance of material that reinforce my innocence. I have available a plethora of documents, personal interviews, reports, letters etc., many in Yesenia Patino's own taped words and writings, that give support to my innocence. The video deposition is particularly revealing and poignant.

As you can see from these enclosures, Rubin "Hurricane" Carter personally endorsed his belief in my innocence. In addition, Mr. Carter's renowned organization, AIDWYC (Association in Defense of the Wrongly Convicted) unanimously chose to support my case. The Board members at AIDWYC are some of the most prestigeous legal minds in Canada and America.

This case was never a "slam dunk". There are copious amounts of evidence to demonstrate my innocence. "Smoke and mirrors", perjury, subornation of perjury, withholding exculpatory evidence and gross deception has made a mockery of my case and trials.

I thank you for enduring this verbose, yet vitally informative synopsis. I felt it necessary to give you enough facts with which to evaluate your decision of whether to help cure the injustices I have endured, and be a remedy in granting an innocent man his freedom.

If you wish, I can make available to you the names of investigators, attorneys and professional people who could give you further insight. I need "visibility" and legal assistance especially in the Habeas Appeal Process. Should anyone wish to contribute any legal expertise, or funding to procure competent counsel and investigators, please feel free to do so. My defense fund supervisor is Dr. Pomeroy at kentpomeroy@intouchmail.net. For legal assistance, you may contact my attorney Mr. Dew at dewme@cox.net.

I look forward to your reply at your earliest convenience.

Respectfully,

Dan Willoughby

Misconduct

The murderess recanted her statements on tape before the trial and Dan's defense attorney never played the tape at trial, which could have exonerated Dan.

Before Dan's sentencing the trial judge upon hearing this simply said to bring this up on appeal.

The alleged murder weapon was not the knife in the head, but was purported by the murderess to be "mace on a chain." This was used to bludgeon Dan's wife to death, and supposedly by Dan, even though he was at the museum with his children when the murder took place. This alleged murder weapon was never found, and never seen by anyone other than the murderess. This "mace" theory was inconsistent with the medical examiner's report, but again Dan's defense attorney did a poor job in cross-examining the medical examiner and in showing what a fabricated story was being produced by the prosecutor.

There were so many things that the prosecutor and investigators did in Dan's case that were malicious, and the prosecutorial misconduct was prevalent throughout the investigation and trial. One such example involved the exhumation of Dan's wife's body by the investigators, four months after she was buried. What they found, to their surprise and dismay, was a letter that Dan had put in his wife's coffin just minutes before the funeral directors closed the coffin lid at the funeral parlor. The letter was still in Dan's wife's hands, where he had placed it at the time the coffin lid was to be closed. No one knew that Dan had written this letter. Dan had told no one and showed this letter to no one. It was a love letter expressing Dan's deep love for his wife, and how that same love would be used to raise their children with loving memory of their mother. This certainly was not self-serving, and was exculpatory in every sense of the word.

After the body had been exhumed, Dan then - for the first time- told the attorney about the letter. Dan's attorney decided to wait a few weeks and see if the prosecutor or investigators for the Attorney General's Office brought the letter to Dan's attorney's attention. They did not. Dan's attorney then contacted the prosecutor about the letter, and the prosecutor claimed no knowledge of any letter. However, a few days later the prosecutor called Dan's attorney and acknowledged that he had a conversation with the lead investigator, and he admitted that he had found this love letter, but said it meant nothing, and put it back in the coffin.

However, Dan's investigator talked to the funeral director, who was present at the time the coffin was opened, and said that this lead investigator for the Attorney General's Office had said that "this won't do us any good" when he discovered the letter and read it. He obviously was playing with Brady material which was exculpatory, and which he did not want exposed. The letter was finally retrieved after a 2nd (second) exhumatation but because the letter was not put back into the envelope, and negligently thrown into the coffin, water seepage rendered this extremely exculpatory letter almost useless, and illegible. The state's chief investigator did this on purpose so this love letter would disintegrate beyond use!

Also, the investigator had a court order to take the coffin to the medical examiner's office. Instead, he brought the coffin to a Mormon funeral home to open it prior to bringing it to the medical examiner. Naturally, this was in violation of the court's order, and the investigator acted on his own. It was apparent that he wished to look at the body before the medical examiner did. Dan later found out from his investigator the reason for this: at one time this lead investigator for the Attorney General had gone into the medical examiner's office, and had tampered with evidence in another felony case, and had been caught doing so. The Medical Examiner "blackballed" this lead investigator, and had him on a "restriction list" so he would not be allowed into the medical examiner's facilities anymore.

Video

soon to come.

Documents

Court Order (pdf)
October 10, 1995

Deposition of Yesenia Patino Gonzalez (pdf, 21 (82) pages)
February 24, 1997

Interview of Yesenia Patino (pdf, 5 pages)
May 23, 2000
Guaymas Penitentiary, Guaymas, Mexico

Excerpt of Transcript of Proceedings (pdf, 31 pages)
November 1, 2001

Sentencing (pdf, 2 pages)

Brenda Pomeroy's notarized Affidavit (pdf)
January 25, 2004

Dan Willoughby's notarized Affidavit (pdf, 13 pages)
October 24, 2005

Reply to Response to Petition for Post-Conviction Relief (pdf, 14 pages)
October 27, 2005

Letter from Character Witness Dr. Gary M. Cushing (pdf)

Lawrence S. Matthew's notarized Affidavit (pdf)
August 30, 2005

Letter from AIDWYC (pdf)
Association in Defense of the Wrongly Convicted
January 18, 2001
www.aidwyc.org

Letter from Rubin "Hurricane" Carter (pdf)

Newspaper Articles (pdf, 5 pages)

Two Books

The book titled "Damaged Goods" - be advised that this author, Jim Henderson, is being sued. This "pulp fiction" booklet was paid for by friends of the prosecution with the sole intent of giving a one-sided "story" - not facts - about my case.

In fact, Mr. Henderson only took information supplied by the prosecutor's office, and victim's family - my in-laws. Not one defense attorney, defense witness, defense investigator, not the convicted murderer Yesenia Patino, and not even I was consulted for unbiased information to give the entire picture, and not some fictional salacious account that never happened.

This book was so inaccurate, that the prosecution never called any of the principle people mentioned in the book, to the witness stand except Thera Huish. Huish handed out copies of this booklet to jurors which naturally was illegal, and created bias. When only one side of a story, or case is written about, it is a false presentation of facts not in evidence, and only theories and suppositions. See enclosed a letter or affidavit from Brenda Pomeroy demonstrating the jury misconduct done by Thera Huish passing out this felonious account to prejudice the jury. And the jury was indeed prejudiced by reading this "pulp fiction".

There is a book titled "Rocky Point", a true story of murder by Mark Siegel. Mark was an attorney and author, and a very honest man. He wrote a true account of this case, and even drove to Mexico to view the crime scene and talk to the police and others who investigated this crime. He sought out both sides of the story from the Defense and Prosecution sides. Mark passed away from a heart attack, but his book should still be around some place. I suggest, if you want an honest and unbiased account of this crime, read Siegel's book. Siegel talked to Jim Henderson about his book of Damaged Goods, and Henderson said it was 90% fiction and only from the prosecutorial approach.

Other Websites

http://en.wikipedia.org/wiki/Gilbert,_Arizona
Wikipedia, the free encyclopedia: Gilbert, Arizona, USA

http://en.wikipedia.org/wiki/Maricopa_County%2C_Arizona
Wikipedia, the free encyclopedia: Maricopa County, Arizona, USA

http://en.wikipedia.org/wiki/Puerto_Pe%C3%B1asco
Wikipedia, the free encyclopedia: Puerto Pe�asco aka "Rocky Point", Mexico

www.google.de/search
Google Search: Daniel Willoughby Arizona

For more information check out the rest of the Innocent In Prison Project International website, please.