Robert Ralph DiPietro v. Michael Nail, Commissioner, Georgia Department of Community Supervision

This case presents the following questions: This Case Presents Issues of National Importance Regarding Prosecutorial Misconduct and The Intentional Presentation False Evidence

1. Whether the lower courts erred in finding that the missing (lost or destroyed by the state) exculpatory trial evidence; the pro bono, expert DNA testimony about sperm and semen from DNA expert Dr. Greg Hampikian, with the Innocence Project—which refuted the State’s sole physical evidence in a rape and molestation case—was “irrelevant” to Petitioner’s conviction and direct appeal, thereby failing to address a meritorious Sixth Amendment claim of ineffective assistance of appellate counsel Brian Steel for losing his copy of the trial testimony, and failing to transmit the testimony and then his failure to notify the Georgia Court ofAppeals about the fact there was MISSING DEFENSE EXPERT TRIAL EVIDENCE FROM THE TRIAL RECORD FOR THE DIRECT APPEAL that was not included, in the transmitted documents that THE APPELLLATE COUNSEL was responsible for sending for the Petitioner’s motion for new trial and all appeals. Where that testimony directly contradicted the State’s false forensic evidence of semen and sperm and was essential to rebutting the prosecutor’s theory that the molestation was a prelude to a rape for which Petitioner was acquitted.

2. Whether the lower courts applied a legally incorrect standard under Strickland v. Washington by evaluating a lost trial evidence claim based on its “relevancy” to the count of conviction, rather than its potential to undermine the prosecution’s entire case, which was built on false DNA evidence of semen and sperm that related a single, continuous alleged incident.

3. Whether due process under the Fourteenth Amendment and Arizona v. Youngblood requires reversal of a conviction because the State lost or destroyed the trial evidence of Dr. Hampikian’s DNA expert exculpatory trial evidence so it was not available for appellate review—here, the missing videotaped trial testimony of the sole DNA defense expert was not retained by the state after trial as was their duty—thereby preventing any appellate review of the State’s intentional use of false forensic DNA evidence of sperm and semen in this case. Under Arizona v. Youngblood and California v. Trombetta requires reversal when the State loses or fails to preserve videotaped cxpqrt testimony that is the only record of exculpatory evidence.

4. Whether a prosecutor’s intentional misstatements of facts and out right fabrications of trial testimony and evidence during closing argument—by falsely claiming the victim’s drug test showed that she was given a “sexual stimulant” by the Defendant, when the State’s own medical expert testified the substance, an amphetamine, was “consistent with victim’s prescribed ADHD medication”—constitutes a due process violation under Napiie v. Illinois and Mooney k Hok) han that requires a new trial.

5. Whether the lower courts erred in deeming the fabrication of the “sexual stimulant” story by the state prosecutor was a “reasonable inference of trial evidence” despite the fact there was no trial evidence about amphetamines and no trial evidence of sexual stimulants.

6. Was due process denied when prosecutor intentionally lied to thejury about Batchelor and Chong’s testimony to bolster the prosecutor’s story thatlHI^vas not lying about being given a pill or Xanax. First, she ignores her expert witness Dr. Batchelor’s testimony the amphetamine in the drug test was her prescription for ADHD. Second, she fabricates testimony that the victim told the Forensic Interviewer Ester Chong in 2012 that, “the Defendant had given her a pill or Xanax pill”, when Ester Chong, under cross examination testified that the victim had NOT made any such a statement during the forensic interview.

7. Whether due process is violated when the prosecutor’s repeated and deliberate false and misleading statements of Forensic DNA Evidence of Semen and Sperm during closing argument—by telling the jury more than a dozen times that Petitioner’s “Sperm” and “Semen” were found on the victim’s clothing when the State’s own GBI crime lab confirmed test showed no sperm cells and as a result semen could not be confirmed— violate the Due Process Clause, and whether the lower courts erred in finding these statements were “reasonable inferences” from the evidence.

8. Whether the Due Process Clause is violated when a prosecutor conspires with state forensic GBI experts to present scientifically invalid evidence as definitive proof of guilt, fabricates witness testimony and drug test evidence, and then uses the criminal process to indict the defendant's wife as a co-defendant in order to silence her exculpatory testimony —and whether the lower courts erred by failing to recognize this pattern of coordinated prosecutorial misconduct as requiring reversal.