Tim Has Alibis–The Dates

Tim Has Alibis

Imagine that someone accused you of a crime you didn’t commit, let’s say assault. Imagine that there is no physical evidence of this supposed assault beyond the accusation. How could you defend yourself? You could say that you didn’t do it, but what if the police and prosecutors chose to believe your accuser rather than you? Most people believe that there needs to be some independent evidence to at least somewhat corroborate the accusation before you could be charged with a crime. The reality is there doesn’t. Some responsible prosecutors personally subscribe to this requirement and some do not. This is known as “prosecutorial discretion.” Legally speaking, all they need is an accusation and it is up to a judge or grand jury to find that there is probable cause for an indictment. It is an open secret that this safeguard is almost completely useless in our country because in 99.99% of cases a prosecutor will always get an indictment they seek. You may have heard of the saying that a grand jury would indict a ham sandwich. This is where that saying comes from. This is all to say that if a prosecutor chooses to believe your accuser over you, you will be charged, even without corroborating evidence.

So how do you defend yourself against a charge when there is no physical evidence to attack? One of the first questions that you may ask is exactly when and where did this assault supposedly occur? When you find out that your accuser told the police an exact date and an exact location you would do everything you could to scour your records to find out where you were. It would be devastating if you realized that you didn’t have an alibi for the date. Maybe you were sitting at home by yourself having a “me” day. You didn’t use your credit card and there is no one that could vouch for your whereabouts. Conversely, how ecstatic would you be if you had proof that you were not in that location on the date that the assault was alleged? What if you could prove beyond any doubt that you weren’t even in the same state as the accuser on that date? Most people believe that this would be the end of it. The charges would be dropped, and maybe the prosecutors would even charge your accuser for filing a false police report. Unfortunately, we do not live in that world.

There are many other sections of this website that cover the events leading up to Tim’s trials, the trials themselves, and the appeals afterwards. This page covers the issue of the dates that Tim supposedly abused Jennifer Astle/Snyder’s children. Throughout this discussion we will cite actual transcripts and handwritten statements submitted to the police during the investigation. The only editing of these documents is the replacement of the children’s names with their initials. There is no legal requirement that we do this, but this is what the courts do in any publicly released document. Furthermore, as angry as we are with Jennifer, we do not hold the same resentment towards her children. Even though they are all 18 or older now, they were 8, 9, and 12 when their mother called the police and accused Tim of abusing them. Anything that they said was directed by their mother or the prosecutor. If you are interested in Jennifer’s motives you should read Tim’s narrative or 5 questions for Jen.

Once we received the discovery packet from the DA’s office, we quickly learned that there was very little of an investigation. The hypothetical scenario above is pretty much what happened to Tim. There was no physical evidence to confirm or refute that there was any abuse. One of the few steps that former Detective Ginger Fittings of the Clarksville, TN police department took was to ask Jennifer when Tim stayed at her house in Nashville. Included in the discovery packet were a few handwritten pages written by Jennifer herself describing the specific dates that Tim supposedly stayed at her house. At the bottom of the pages Jennifer signed and swore that these were true and accurate. Below are two excerpts of the transcript from Tim’s first trial describing how this list of dates came to be.  They are during cross-examination wherein our lawyer Bernie McEvoy traced the creation of this evidence:

11 I believe you told General Moore on yesterday you
12 didn’t know the date on which you called the police and now
13 you know. Is that correct?
14 A. That’s correct.
15 Q. I don’t know if you, perhaps, looked at some document
16 last night that helped you to recall that date?
17 A. Yes.
18 Q. What was it that you looked at?
19 A. A set of my own notes from when this first started.

Jennifer Astle, Cross-Examination testimony, July Trial 2011 p. 76, lines 11-19

16 Q. You were able to provide Clarksville Police with a
17 written report, where you set out the number of times that Mr.
18 Guilfoy visited your home?
19 A. Yes, sir.
20 Q. How were you able to create that document?
21 A. I was able to do that based on the times and reasons
22 Tim visited when he did.
23 Q. Okay. So you — I don’t know, maybe just sat down in
24 a quiet room, took an hour and attempted to remember as best
25 you could?
1 A. The reason for the visit and the date, yes, sir.
2 Q. And I take it you spent a considerable amount of time
3 on that?
4 A. Yeah.
5 Q. Just relying on memory?
6 A. Yeah.
7 Q. Or did you have a calendar or something?
8 A. Memory.
9 Q. Part of the reason you were able to remember is that
10 there were occasion when Mr. Guilfoy came to the home on
11 Saturn Drive and he provided you with temporary work. Isn’t
12 that right?
13 A. Twice. Yes, sir.
14 Q. I think once you may have worked at the CMA’s in
15 Nashville?
16 A. Yes, sir.
17 Q. Is that about eight days?
18 A. I believe it’s just a weekend long event.
19 Q. And possibly also the Main Street Fest in downtown
20 Franklin?
21 A. Yes, sir.
22 Q. On both of those occasions you went to the booth that
23 he had sat up. Is that right?
24 A. Yes, sir.
Jennifer Astle, Cross-Examination Testimony, July Trial 2011 p. 82-83

The list was a bullet point inventory of about nine groups of dates ranging about three years, each group comprising of between two to five days. Each of these entries also included details of where Tim was supposedly sleeping, which child slept with him, and even what clothing was worn. Below is an example of what she wrote:

Jennifer Astle reports May 22-25, 2008 as dates of abuse of which she is “positive” because of knowing her child’s birthday

At Tim’s first trial, Jennifer was handed these notes that she created for the police. She read through them, confirming their accuracy.  For the example of the May 22-25, 2008 dates, she and state attorney Moore used this written report as evidence of her testimony:

10 Q. And the May 22nd?
11 A. That would be my daughter, [Child 1]’s, birthday.
12 Q. That was the camping event?
13 A. Yes, sir.
14 Q. Which coincides with the picture that we saw of the
15 girls in the back of the pickup truck?
16 A. Yes, sir.
17 Q. At the campsite where did Tim stay — Mr. Guilfoy. I
18 say Time because you have that written here.
19 A. Actually, I believe —
20 Q. Page two.
21 A. Page two? [Child 2] stayed in the tent with Tim. [Child 3]
22 and [Child 1] shared a two-man tent. And me and Robert Brown
23 would be in another tent.

Jennifer Astle, Redirect Examination, July Trial 2011, p. 107

During this testimony, while she was reading off the dates, the dates and details were written on a large dry-erase board that was sitting in front of the jury. The jurors all seemed to be writing in their notepads, presumably listing the dates and details for themselves.

After she finished reading through the dates, the prosecutor again asked her if these dates are correct and she confirmed that they were.

14 Q. Ms. Astle, since Mr. McEvoy passed the statement up to
15 you — which I believe you still have?
16 A. Yes, sir.
17 Q. When was that written out? Does it have a date on it?
18 A. March 31st of ’09.
19 Q. And do you remember anything about where you were,
20 what the circumstances were, in writing this out for the
21 detective?
22 A. I was at the Linwood home in Clarksville. That is
23 where I was at when I wrote it.
24 Q. Were you trying to remember dates, events, what was
25 the –
1 A. Basically these are the ones that I can positively
2 remember. I know there are multiple times. These are ones
3 that I can remember.

Jennifer Astle, Re-Direct Testimony, July Trial 2011, pp. 105-106

17 Q. So are the recollections that you wrote down, some two
18 and half years ago, contained in these pages accurate?
19 A. Yes, sir. To the best of my knowledge they are.

Jennifer Astle, Redirect Testimony, July 2011, p. 109

At this point the prosecutors were so certain of their case that they asked the court that the handwritten notes be entered as evidence. They requested that they be entered as “prior consistent statements,” meaning the jury would be able to take the notes back with them during deliberation.

24 MR. MOORE: I would introduce this as a prior
25 consistent statement, as an exhibit.

Jennifer Astle, Redirect Testimony, July 2011, p. 109

The prosecutors were sure that Jennifer was telling the truth, and that the notes bolstered her credibility, for a few minutes at least.

Tim’s defense attorney then called Tim’s former co-worker Gary Tautphaeus to the stand. Gary explained to the jury that he and Tim traveled around the country for work during much of the period when it was alleged that Tim abused Jennifer’s children. Gary continued to testify that on six of the nine dates alleged by the prosecution, he and Tim were working side-by-side 24/7, largely in other states.  Upon being asked where he and Tim were on May 22-25, 2008, Gary testified to the following:

16 Q. I think the next set of dates was May the 22nd.
17 Do your credit card receipts indicate where you spent that
18 night?
19 A. Let’s see here. Yes.
20 Q. Where were you that night?
21 A. It shows on May 26th we were at the — actually it
22 doesn’t have the exact date from, like, 5-23 to 5-26. But
23 it shows me checking out on 5-26 for an amount of five
24 hundred and nineteen dollars.
25 Q. Checking out of what?
1 A. Courtyard by Marriott in Rockford, Illinois.
2 Q. And from that, do you conclude that you spent a
3 certain number of nights there?
4 A. Yes. I actually called that hotel and confirmed
5 that we checked in on 5-23.

Gary Tautphaeus, Direct Examination, July 2011, p. 12-13

On the seventh (of nine) group of dates that Jennifer alleged, they were working in Nashville, Tennessee, but he and Tim shared a hotel room and he was able to state that it would have been unlikely to impossible for Tim to sneak out every night, start up the loud diesel truck right outside the door, leave for a few hours, return without being caught, and then work another 18 hour day and repeat the process for each night and day they were working. He remembered that Tim was sleeping in a bed next to his bed every night they were in Nashville, and it was only the two of them in the hotel room. The prosecutor was unable to impeach his testimony because he had work schedules, credit card receipts, and hotel receipts to prove his testimony. Tim was clearly not at Jennifer’s house abusing her children on these dates.

Next, Tim’s attorney called Michael Langston to the stand. He testified that on the third group of dates Tim was with him and his family in Colorado on a ski vacation. He also had receipts and pictures to prove this.  Jennifer’s statement said that Tim slept on the top of Child 2’s bunk bed with her at the beginning of March 2008 because it was her birthday, which should have been memorable enough to stand solid:

Jennifer claims Tim was abusing Child 2 in Nashville and is positive about the date because it corresponds to Child 2’s birthday

Langston testified to the following:

18 Q. Can you tell me when it was that you took your ski
19 trip?
20 A. The ski trip was taken — the dates on the hotel,
21 the lodging was March 2nd to March 8th of 2008.

Michael Langston, Direct Examination, July 2011, p. 3

13 Q. If I remember correctly, Mr. Guilfoy was at your
14 home on the evening of March the 1st.
15 A. That’s correct.
16 Q. And at a resort in Keystone, Colorado on March the
17 2nd?
18 A. That’s correct.
19 Q. When did you turn around and come back?
20 A. The 8th when we checked out.

Michael Langston, Direct Examination, July 2011, p. 5

Range of Dates Jennifer Astle testified she was “positive” Tim abused her children Where Tim actually was Citations of testimony of Gary Tautphaeus supported by work logs and credit card receipts shown in court Citation of testimony of Michael Langston of Tim’s presence on his family’s ski vacation (Langston had pictures available)
Feb 27-Mar 2, 2008 Keystone, Colorado p. 5, lines 13-20
April 26-27, 2008 Franklin, Tennessee (Tim worked or stayed in hotel room with Gary 24/7, did not leave his side) p. 6, line 11–p. 8, line 18
May 22, 2008 Rockford, Illinois p. 8 line 19–p. 9, line 13
May 23-25, 2008 Rockford, Illinois p. 8 line 19–p. 9, line 13
June 5-8, 2008 Nashville, Tennessee (Tim worked or stayed in hotel room with Gary 24/7, did not leave his side) p. 9, line 14–p. 11, line 10
July 23-28, 2008 Could not recall exact location but had work logs that he was with Tim (not in Nashville) p. 13, lines 10-13
Sep 21-24, 2008 Raleigh, North Carolina p. 13, line 14–p. 14, line 1

Tim was clearly not at Jennifer’s house abusing her children on these dates.

It is important to note that while Gary and Mike were demolishing Jennifer’s testimony, Jennifer was sitting in the court gallery watching them do it. There is a general rule that no one who is a witness or a possible witness can sit in the trial and listen to other witnesses while they testify. This is needed so a witness won’t curtail their testimony because of something they heard another witness say. However, in Tennessee there is an exception to this rule. In Tennessee, victims or relatives of victims are allowed to stay in the courtroom after they testify.  Tennessee Rule of Evidence 615: Exclusion of witnesses. “The Court shall order witnesses […] excluded at trial.  […] This rule does not authorize exclusion of […] a person designated by counsel for a party that is not a natural person. […] The prosecuting attorney could designate a crime victim, a relative of the crime victim, or an investigating officer {as a party that is not a natural person}.”

The thought process is that they can’t change their testimony after they testified, so there is no harm. This is usually true, except if there is a hung jury and the case is retried and this person has to testify again. This is exactly what happened in Tim’s case.

As just mentioned, Tim’s trial ended in a hung jury. We were half expecting that the DA’s office would dismiss Tim’s charges since he had proved during the first trial that 1. Jennifer was lying, 2. The police didn’t investigate and confirm that Jennifer was telling the truth, and 3. Tim was, without a doubt, not at Jennifer’s house (much less in her children’s beds) on the vast majority of the dates that she testified to. We thought that even if Jennifer testified again and changed her story, we would be able to impeach her with the transcript from the first trial. Even with these facts, the State still tried Tim again three months later.

At the second trial, Jennifer again testified that Tim stayed over at her house and slept in her children’s beds. This time, however, she did not testify to any specific dates that Tim supposedly abused her children. During her direct examination, she and the prosecutor had the following dialogues:

7 Q. And I asked something a minute ago, when I was
8 asking about to the best of your recollection, are you
9 the type of person who keeps a daily diary, like
10 entering everything you do on a daily basis so that you
11 can look back and say, I know what I was doing three
12 years and six months ago?
13 A.No. Things get kind of hectic sometimes. I
14 don’t remember everything. I don’t keep a diary. No,
15 sir.

Jennifer Astle, Direct Examination Testimony, October 2011, p. 186

20 Q. (By Mr. Moore:) And again, I asked about keeping
21 a diary and all that sort of stuff.
22 A. Exactly.
23 Q. Any way to pinpoint when that would have been or
24 anything, other than it was during the period of time
25 you lived at Saturn Drive?
1 A. a point in time where the beds had
2 been moved into what is now the dining room. So it had
3 been moved from the living room into, at this point, the
4 dining room.
5 Q. Again, would you be able to say whether or not
6 that was like the first time he came to visit and stayed
7 overnight, or second time, third time?
8 A. Not really.
9 Q. Actually, can you even say how many different
10 occasions that Mr. Guilfoy came and actually stayed?
11 A. No.
12 Q. More than once?
13 A. Yes, sir.
14 Q. More than three times?
15 A. Yes, sir.
16 Q. Less than a hundred?
17 A. Less than a hundred.

Jennifer Astle, Direct Examination Testimony, October 2011, p. 203-204

Jennifer clearly lied. She had sat and watched the dates to which she testified get obliterated by Tim’s alibi witnesses at the first trial. So, at this trial, she just said that she didn’t remember any dates and didn’t keep notes. She had already testified during the first trial that she kept “notes.” What’s even more shocking is the fact that the prosecutor knew she was lying, and in fact led her to lie to the court. Not only was the prosecutor aware of her handwritten “notes” in the police report, he himself had entered these “notes” into evidence during the first trial as credibility evidence for Jennifer. This is known as “suborning perjury.” It is a crime wherein a court officer (usually a prosecutor or defense attorney) puts someone on the stand under oath and allows them to say something that the lawyer knows is a lie. If this happens the lawyer is supposed to stop the proceedings and inform the judge and other lawyers that he has personal knowledge of the witness committing perjury. Not only did the prosecutor not call out Jennifer’s lie, he actually set her up to do it with his questioning. If this doesn’t convince you that the prosecutors in Tim’s case are corrupt, nothing will.

As unethical as Jennifer and the prosecutors were, Tim’s defense attorney (Bernie McEvoy) gave them a run for their money for the malpractice award. We immediately knew that Bernie needed to impeach her testimony with the transcript from the first trial. He should have made her admit, in front of the jury, that she did have notes. We would have again proven that Tim was not at her house sleeping in her children’s beds on these dates. Bernie did not do any of this. Bernie told us he “couldn’t do it.” He explained that since she didn’t give any dates, we couldn’t call any alibi witnesses. We asked him why he couldn’t impeach her with the transcript from the first trial. He just told us he “can’t,” with no further explanation. He could have, at the very least, made her admit to the jury that she had previously testified under oath to these dates, that she said that she was “positive” of these dates, and that now she admits that she was wrong. This would have completely destroyed her credibility, along with the credibility of the detective and prosecutors as well. But, none of this was done. There was nothing mentioned about any dates for the rest of the trial. The hand-written notes that Jennifer gave to the detectives were not entered as evidence or even mentioned at the second trial.  The prosecutors not only didn’t mention any exact dates that these assaults were apparently committed, not even offering a month, season, or year when they supposedly occurred. The jury was only given a three year time period for which Tim was, of course, not able to provide a sufficient alibi. Can you prove where you were every moment of every day for the past three years? Neither could Tim.

The jury convicted Tim on all seven counts. After the trial Tim’s new appellate attorney hired a private investigator to track down and interview the jurors. From this interview, we learned that the jury didn’t convict Tim because of anything they heard or saw during the actual trial. They based their convictions on two recorded interviews of the two children that were conducted prior to trial. These interviews were not played into evidence during trial, and Tim has not viewed these videos to this date. You can read all about the videos and what we are doing to get Tim a new trial. Also in these interviews, the jurors were asked about any inconsistencies in the testimonies. Many of the jurors didn’t seem to remember any.

This case was completely about credibility. With no physical evidence to prove or disprove the accusations, credibility was (or should have been) the only factor in Tim’s case. The fact that Tim had alibis might be a minor point when you consider how discredited Jennifer and the prosecutors would have been if we showed the jury how naturally it came to Jennifer to lie under oath about something that should have been a cold hard fact. The jurors in Tim’s first trial that voted not guilty told us that the number one reason for their vote was because it was obvious to them that the State’s witnesses were lying, especially Jennifer. The main difference between the jury in Tim’s first trial and the jury in the second was that the second jury did not hear anything about the dates, and did not see Jennifer swear to a large set of “facts” that were then completely disproven like the first jury did.

About three years after Tim’s conviction we filed his “post-conviction petition.” This is where convicts can claim ineffective assistance of counsel, or in other words, “my lawyer messed up big time and I wouldn’t have been convicted if he didn’t.” There was a hearing held in 2014 to litigate this petition in front of the original trial judge. There were multiple issues that we argued, but one of the main issues was that Bernie (Tim’s trial attorney) didn’t bring up Tim’s alibi defense at the second trial. Tim’s appellate attorney called Bernie to the stand to ask him why he didn’t do this:

7 Q. You were, actually, able to — I think you just said
8 this — able to call other witness to demonstrate that the
9 dates that she said was impossible because Mr. Guilfoy was not
10 in town on those dates?
11 A.I believe so. In, at least, some of them. Yes, sir.
12 Q. If I could, hand up another couple of transcripts.
13 (Documents provided to the witness.)
14 Do you recognize those as transcripts from the first
15 trial of Ms. Astle’s testimony, as well as defense witness,
16 whose last name I am unable to pronounce?
17 A. Yes, sir.
18 Q. That would be the defense witness that you called to
19 rebut the dates?
20 A. Yes, sir.
22 MR. MARTIN: Your Honor, if I could move those as
23 exhibits to his testimony, as well.
24 THE COURT: All right.
1 Q. (By Mr. Martin:) Was there any reason, at the second
2 trial, not to use those same visuals, and same technique, to
3 rebut her testimony?
4 A. My thinking was, the lack of specificity, with regard
5 to dates, was a weakness in the State’s case for the first
6 trial. And in the second trial, obviously, they would fix
7 that, they would be prepared for what I was doing. So, my
8 thinking was, the second trial we would present our case
9 differently, because if we tried the same case twice the State
10 would be able to anticipate everything we did.
11 Q. Do you recall that the direct on Ms. Astle, in each
12 trial, was, essentially, the same?
13 A. I — if it was — well, that probably makes sense,
14 that I wanted to — certain points that I wanted to make, that
15 I thought she was vulnerable on.
16 Q. There was nothing preventing you from bringing up the
17 dates issue the same way that you brought it up in the first
18 trial, other than this thought that you had; is that right?
19 A. Yes, sir.
20 Q. Would you agree that this theory — or, the theme of
21 the defense of implausibility would fit with Mr. Guilfoy not
22 even being present on some of the dates that these things were
23 alleged?
24 A. That is true.

Bernie McEvoy, Post-Conviction Hearing being questioned by James Martin, June 18, 2014, p.24-25

Bernie’s reasoning was that “if we tried the same case twice the State would be able to anticipate everything that we did.” We were infuriated. When Bernie refused to impeach Jennifer’s apparent amnesia about dates that she testified she was “positive” about three months earlier, he explained to us that he simply “couldn’t” do it. Had he told us that he simply didn’t want to bring it up because he didn’t want to try the same trial twice as a matter of style, we would have told him, “too bad, do it anyway.” He also testified that he was worried that the prosecution “would be prepared for what [he] was doing” at the second trial. However, he didn’t explain how they could have possibly disproven Tim’s two alibi witnesses. They were telling the truth and had documentation to back up their testimonies. There was simply nothing that the State could have done to refute Tim’s alibis no matter how many trials he had. The truth is a stubborn thing that doesn’t change. As expected, the judge denied Tim’s petition three months later. He made no findings of fact other than to say that the mistakes of Tim’s trial attorney would not have changed the verdict. We quickly appealed this denial.

Tim’s appeal of the judge’s denial did not go any better. They ruled:

Through the victims‟ mother and other witnesses during the first trial, trial counsel was able to demonstrate that the Petitioner was not at the victims‟ home on the dates their mother alleged the abuse occurred. However, trial counsel did not employ a similar technique during the second trial. During the second trial, the Petitioner’s theory of defense was to show the implausibility of the victims‟ allegations. At the post-conviction hearing, trial counsel explained that he chose not to present the same defense because he anticipated that the State would have solidified the dates on which the abuse was alleged to have occurred. Additionally, trial counsel stated that he changed his defense strategy because “if we tried the same case twice the State would be able to anticipate everything we did.” We will not second-guess a reasoned, yet ultimately unsuccessful, trial strategy. SeeGranderson,197 S.W.3d at 790. Accordingly, the Petitioner is not entitled to relief.”

Court of Criminal Appeals Post-Conviction Opinion State v. Guilfoy, 2015, p. 25

The appellate court’s decision was flawed in two ways. First, they ruled that Tim’s trial attorney “anticipated that the State would have solidified the dates on which the abuse was alleged to have occurred.” As you just read, he did not testify to that at all. Not only did the prosecution not allege any other dates that the abuse supposedly occurred at the second trial, Bernie did not testify that he had any knowledge of their intent to do so. He only testified that they would have been “anticipating” and “prepared” for the alibis, but he did not say how they could have possibly attacked Tim’s alibis or if they had other dates. Furthermore, if the State alleged new dates, it’s possible that Tim might have had other alibis for them as well. The court’s decision also ignored the fact that bringing up the dates and alibis would have damaged the credibility of Jennifer and the police in a case where credibility was the only factor.

The second way in which the appellate court’s decision was flawed was that they “will not second-guess a reasoned […] trial strategy.” Not to be glib, but go outside, stop anyone walking down the street, and ask them if NOT bringing up concrete alibis as a defense in a criminal trial is a reasonable strategy. As long as you don’t happen to run into one of Tim’s three appellate judges, you are going to get the same answer no matter how many people you ask.

Now that you have read the exact words from the mouths of Jennifer and Tim’s trial attorney, you may be asking yourself how it could be possible that this could have happened. Tim’s new attorneys, Samuel Muldavin and Kathleen Zellner, are also perplexed. They have scoured the transcripts of Tim’s trials and have found many, many errors. The vast majority of these errors could possibly be explained through oversight, accident, or misunderstandings, but it is usually impossible for an attorney to classify another lawyer’s error as intentional. However the fact that Tim had concrete alibis for the nine separate groups of dates that the State’s witnesses alleged he abused them, and he didn’t even bring them up at his second trial, leave them with no other explanation than Bernie McEvoy purposely threw Tim’s case. This is even more obvious when it is considered that he successfully used this defense at the first trial. Tim’s current lawyers can’t explain why Bernie was helping the prosecution, because they don’t know him personally, but they can conclude that he threw Tim under the bus.

We (Tim’s family) also believe that there was collusion between his lawyer and the prosecutors. Most defense attorneys make their money based on the quality of plea deals that they can arrange (only 4% of defendants go to trial). It is up to the prosecutors what type of plea deals are offered in most cases. Tim’s trial lawyer and the two prosecutors in his case regularly worked together. Bernie would profit from being the attorney that could get you a really great plea deal. Consider this along with the fact that the prosecutors knew that their witnesses were lying in Tim’s case, and it’s hard to imagine that they wouldn’t come to some understanding. One thing we learned early is that this DA will not drop charges. Once they start a case they will never admit they made a mistake. Also, as you can read on other parts of this site, not only did Tim never consider any offer (including probation), he never even counter-offered. He is not guilty, and everyone in the family supported his refusal to plead guilty to something that he didn’t do. Something had to give, and it wasn’t going to be Tim.

It’s almost a cliche for a convict to blame his attorney for throwing his case, which is why we will usually refrain from making such a statement. However, after you have read this page, how else can you explain why Bernie didn’t bring up Tim’s alibis at all in his second trial? Seriously, if you have a theory we would love to hear it, we’d make a dedicated page on this website to discuss it.

Another question arises when you think of all of this from the hypothetical angle of the prosecutors. You (as a prosecutor) have a trial where you put the accuser on the stand. With no physical evidence of the crime alleged, you have to convince the jury that she is so credible that they can use her testimony alone to convict the defendant of multiple Class A felonies. She testified to multiple dates that the abuse supposedly occurred. Not only does she swear that these dates are correct, she even gave the same dates to the police when she originally called the police. You’re pretty sure about your case. Then the defendant calls two extremely credible witnesses to the stand that decimate your star witness with paper receipts. He has concrete alibis. There is nothing that you can do about this because, unlike your witness, his witnesses have physical documentation to corroborate their testimony. Your witness–what are you going to argue, that she was confused and got her and her kids’ birthdays wrong?

The case ends in a hung jury because your witnesses were shown to be liars. It makes sense that you don’t want to go to trial again. This was embarrassing. Not only do the alibis show that your witnesses are liars, they also show that neither you nor the police attempted to vet or corroborate the very basic details surrounding the claims of your witnesses. You make a final offer to the defendant to plead guilty in exchange for probation, which is astonishing considering that your first offer to him was 28 years without parole. He refuses to plead guilty, and doesn’t even make a counter-offer. The only other option is to drop the charges, which you will never do because you have already spent about $200K of the public’s money to prosecute this case, and it would be a career-ender to have to admit that you put an innocent man through this without doing the most basic investigation into the allegations. What do you do?

You go back to trial. You again put your main witness on the stand. You ask her if she is a person who keeps a journal or any other record of what occurs in her life. She says no. You know she’s lying. Not only did she make a list of dates that she gave the police, you personally entered those physical and temporal notes as evidence in the first trial only three months ago. Why would you allow your witness to state such an obvious lie under oath? Wouldn’t you be afraid that the defense attorney would 1. easily prove that she is lying with the transcript from the first trial, 2. disprove the dates again with the alibi witnesses from the first trial, 3. explain to the jury that no one from the police or DA’s office bothered to confirm even the most basic details surrounding the allegations, and 4. report you to the State BAR because you clearly suborned perjury?

There is only one explanation why these prosecutors would take this huge risk: they knew that Tim’s lawyer wouldn’t take any of these steps. They knew that he was going to sit back and let them do whatever they wanted. How did they know this? We’re not sure how they knew this, but they clearly did. It’s easy to dismiss the allegation that Tim’s trial attorney colluded with the prosecution, but how else do you explain the FACT that he let them do this without asking even one question about dates the entire trial? How else do you explain that the prosecutors didn’t even try to hide what they were doing? We would love to hear any explanation that might lead to another conclusion.

So what can YOU do to help?  Call the people in charge to complain or donate to Tim’s cause for freedom.

It cost $7,000 to hire the PI to get the affidavit.  It cost $10,000 to file the error coram nobis.  It cost another $10,000 to go to the appellate court.  It will cost at least $15,000 if we need to go to the Supreme Court.  You may be surprised to learn that these are the discounted rates because our attorneys know that Tim is innocent.  This is all in addition to the $250,000 that has already been spent on trials and appeals.

If you can’t afford to donate money, your time is just as valuable to us.  On top of spreading Tim’s story you can call Glenn Funk (615) 255-9595.  He is the District Attorney of Davidson County.  He wasn’t the DA when Tim was convicted, but he was when we tried to go to court for the error coram nobis.  He is responsible for Assistant Prosecutor Roger Moore, who is assigned to Tim’s case.  We do not want anyone to threaten him in any way, but the first amendment allows you to let him know what you think of the loose ethics of his office.  You could let him know that what happened in Tim’s case was not justice.  You could ask him to do the right thing and agree to a new trial for Tim.  If he is so sure that Tim is guilty and that he has sufficient legally admissible evidence to convict him again, then what is he afraid of?  Funk was elected in 2015 on the promise that he would end corruption and restore integrity to the DA’s office.  Conceding to a new trial for Tim would be the perfect opportunity for him to fulfill that campaign promise.  Maybe ask him if he would be okay if he was on trial and secret evidence was shown to a jury in private without his knowledge?  You may think that your voice won’t make a difference, but it will.  If you happen to live in Davidson County, Tennessee, let him know that you don’t vote for DAs that promote unfair trials, and also let him know that your friends and family don’t either.  They already know that they’re dishonest, they just think that no one is paying attention.  Prove them wrong.  Let them know that you’re watching.  You could also call the State Attorney General, Herbert Slattery III, and ask him the same questions.  His office is the entity fighting Tim’s current appeal: (423) 663-4105  Again, please do not make any threats in any form, but let him know that you are paying attention to Tim’s case.

For the latest updates on Tim’s case, please Like his Facebook page at www.facebook.com/FreeTimGuilfoy  I will be reporting there to you live from Nashville April 16-18 as we have his oral argument on this issue.  Please follow and share with your justice-loving friends.  Thank you for your support.

~Katie Guilfoy Beyers

Latest update 9/20: Writ of Habeus Corpus submitted