Critical exhonorating evidence is being left out…

Critical exhonorating evidence that would impeach several witness statements were left at the courtroom steps. These exculpatory and impeachable evidence continues to be ignored and not properly reviewed by the jury and now the courts becuase it was excluded from the official record; the defense continues to receive “excuses” that this evidence has been “misplaced, digitially corrupted, unreadable, unusable becuase its on a flash drive, and then declared by the Fayette Clerk of Courts that it was “not admitted to the record” when in fact they were.

WHY!? Why is critical evidence that supports Mr. Tom’s innocence kept from being properly reviewed when it is clearly supposed to be a part of the official record???

When the prosecution fails to admit critical forensic interviews and FIGHTS to have the evidence discarded…you bet your life, and Toms freedom, they contain statements and facts that support his innocence…

“Prior to trial, the prosecution served Appellant’s trial counsel with forensic interviews of T.Z., A.Z., M.Z. and Z.S. (MNT. dated 11-9-18, pages 34-35, 48-49, 5288; MNT. dated 12-13-18, pages 70-74, 151-165). Appellant’s trial counsel attempted to introduce these forensic interviews at trial but was not permitted to do same because Appellant’s trial counsel failed to lay the foundation for these recordings and failed to place the State on notice of use of the Child Hearsay Statute. (See Entire Trial Transcript, specifically T. 421-460, 459-487, 488-493, 502-506, 506-509; MNT. dated 11-9-18, pages 47-51). Further, Appellant’s trial counsel failed to subpoena available, critical witness, Ms. Lynne Zerbarini, Appellant’s wife and the mother of T.Z., A.Z., and M.Z. and aunt of Z.S., as a witness at trial. (See Entire Trial Transcript; MNT. dated 11-9-18, pages 37-40, 74-88, 101-114; MNT. dated 12-1318, pages 70-73). As conceded by Appellant’s trial attorney, Ms. Lynne Zerbarini was the most important witness…it was Ms. Lynne Zerbarini who poisoned all of the alleged victims against Appellant by coaching and biasing these children or their family members into making false allegations against Appellant by asserting, on multiple occasions, that Appellant was a child molester. (T. 1074-1090, 1385-1401; MNT. dated 11-9-18, pages 37-40, 7488, 101-114, 121-127; MNT. dated 12-13-18, pages 119-124). In fact, at trial, an expert testified that it was possible that Ms. Lynne Zerbarini prodded her children to unleash false claims against Appellant. (T. 1385-1401).

At the Motion for New Trial hearing, Appellant called Ms. Lynne Zerbarini as a witness.  (MNT. dated 12-13-18, page 70). Ms. Lynne Zerbarini testified that she married Appellant and they have four (4) children, to wit: M.Z., A.Z., T.Z. and J.Z. and she  transported her children to be forensically interviewed in Troy, New York. (MNT. dated 12-13-18, pages 71-74). Ms. Lynne Zerbarini wrote a detailed statement memorializing the events relevant to this Indictment and same was provided in Discovery to Appellant’s trial counsel. (MNT. dated 12-13-18, pages 74-78, 133-142; MNT. dated 12-13-18, Exhibit 9). Critically, Ms. Lynne Zerbarini claimed that in July, 2014, T.Z. …accussed… Appellant. (MNT. dated 1213-18, pages 83-88, 102-106, 111-113, 119-124). Ms. Lynne Zerbarini explained that she then spoke with her niece, Z.S.’s family members as well as another alleged victim’s family members about Appellant’s supposed improper touching. (MNT. dated 12-13-18, pages  88-104, 133-142). …all of the outcries of the indicted counts of molestation began with Ms. Zerbarini poisoning these children and their families against Appellant. (MNT. dated 11-9-18, pages 143-154; MNT. dated 12-13-18,  pages 88-106).

Ms. Lynne Zerbarini stated that she reported these acts of molestation to Officer Judy. (MNT. dated 12-13-18, pages 88-106). Yet, Officer Judy testified at the Motion for New Trial hearing that on July 21, 2014, Ms. Zerbarini never reported that there was any act of child molestation committed on her child, but instead, that Ms. Zerbarini solely claimed to Officer Judy that she simply had a suspicion that Appellant molested her children but had no evidence that same occurred and there was no actual outcry by any of her children. (MNT. dated 11-9-18, pages 37-40, 5665, 74-88, 121-127; MNT. dated 12-13-18, pages 102-106, 111-113, 119-124; See MNT. dated 12-13-18, Exhibit 8). Specifically, Officer Judy memorialized his July 21, 2014, conversation with Ms. Zerbarini in his contemporaneous police report and swore that Ms. Zerbarini had no outcry of molestation from any of her children and only speculated that Appellant was molesting their children because Appellant “creeps her out,”  and that Ms. Zerbarini had no evidence as to why she believed that any molestation to her children had occurred. (MNT. dated 11-9-18, pages 59-61, 8283; MNT. dated 12-13-18, pages 83-88, 102-106, 111-113; MNT. dated 12-13-18, Exhibit 8).
If presented at trial, this evidence would have impeached the inculpatory testimony of T.Z., an indicted alleged victim in Counts One and Two. (R. 144).  This non-presented competent evidence would have provided original, non-cumulative testimony that Ms. Zerbarini coached her children and concocted the sexually deviant evidence and that these children adopted their mother’s cries/lies as Ms. Zerbarini claimed that on July 17, 2014, T.Z. outcried… yet four (4) days later, told Officer Judy that no such outcry ever occurred.  (MNT. dated 12-13-18, Exhibit 9, page 3 of 6; MNT. dated 12-13-18, pages 83-88, 102-106, 111-113; MNT. dated 12-13-18, Exhibit 8). This poisoning of these children was Appellant’s sole defense at trial but said evidence never made its way into the Courtroom… (MNT. dated 11-9-18, pages 33-152; MNT. dated 12-13-18, pages 102-106, 111-113, 119-124).

All of the alleged victims who testified at trial were connected to Ms. Zerbarini. (See Entire Trial Transcript; T. 590-592, 777-783, 797-801, 876-879, 964965; MNT. dated 11-9-18, pages 37-40, 101-114, 121-127; MNT. dated 12-13-18, pages 70-74, 119-124). …Ms. Zerbarini started this “witch-hunt” with a statement which could easily have been impeached since Ms. Zerbarini’s July 21, 2014, statement to Officer Judy was wholly inconsistent with her claim that on July 17, 2014, four (4) days earlier, T.Z. came forward with a specific cry of molestation committed by Appellant, (MNT. dated 11-9-18, pages 37-40, 101-114, 121-127; MNT. dated 12-13-18, pages 82-88, 102-106, 111-113; MNT. dated 12-13-18, Exhibit 8 and Exhibit 9, pages 3 of 6). Without calling Ms. Zerbarini and Officer Judy as witnesses, none of this critical, exculpatory and impeaching evidence was introduced at trial and the jury was uninformed and wrongly kept in the dark and prevented from properly evaluating whether Appellant committed any of these crimes. (See Entire Trial Transcript). The failure to call these available witnesses also adversely limited the expert’s testimony when explaining that Ms. Zerbarini potentially coached and influenced the children. (MNT. dated 11-9-18, pages 143-154).

Moreover, the recorded forensic interviews of Appellant’s children, conducted in Troy, New York, were critical to Appellant’s defense because they documented how T.Z. as well as the other act witnesses would have been impeached if these forensic interviews would have been introduced into evidence and played for the petit jury. (See MNT. dated 12-13-18, pages 151-165; MNT. dated 12-13-18, Defendant Exhibits 1-4; MNT. dated 11-9-18, pages 34-35, 48-49, 52-75, 88-92, 92-97). Instead, this material, impeachment evidence was wrongly left at the Courthouse steps because Appellant’s trial counsel never (i) subpoenaed these out-of-State witnesses, (ii) placed the State on notice of the use of Child Hearsay evidence, and (iii) failed to impeach witnesses with prior inconsistent statements. (MNT. dated 11-9-18, pages 34, 52-75, 88-92, 92-97). Appellant’s trial counsel rendered deficient performance by failing to subpoena these material witnesses and introduce this critical evidence that would have shown that Ms. Zerbarini concocted a subterfuge and wrongly targeted Appellant in acts for which he was not responsible. (MNT. dated 11-9-18, pages 143154). Thus, the first prong of the Strickland v. Washington, supra, test has been passed by Appellant.

There was (i) no inculpatory DNA evidence; (ii) no admission or confession made by Appellant; (iii) no video evidence to harm Appellant; (iv) no child pornography connected to Appellant; and (v) no medical evidence to support these allegations against Appellant. (See Entire Trial Transcript). …this entire case spun around Ms. Zerbarini’s desire and motivation to divorce Appellant, gain sole custody of their children; and crush Appellant forever as payback for his extramarital affair. (T. 1074-1090, 1139-1198; MNT. dated 11-9-18, pages 101-114, 143-154; MNT. dated 12-13-18, pages 114-117, 119-128). The failure to introduce this material evidence prejudiced Appellant and thus, the final prong of the Strickland v. Washington, supra, test has been met by Appellant.”

Zerbarini appeal brief