Dino Constance is a 64-year-old white male of average height and build, slightly overweight, and in declining health. He files this petition seeking a commutation of his current 52-year sentence imposed in 2008. With no serious criminal record, he had no "strikes" and zero felony points coming into sentencing in this case.
Mr. Constance was convicted of three counts of Solicitation to Murder, despite the fact that they all involved Jean Koncos, his former wife. He was given an extremely lengthy sentence of 52 years with each sentence running consecutive to each other. He has been incarcerated for 17 years - since May of 2007. His current early release date is in 2055. His sentence is what is now called de facto life imprisonment. In other words, if his sentence is not commuted, he will die in prison. Clemency is his only remaining avenue for relief.
Mr. Constance was born, raised, and educated in Southern California. He left California at age 30, spent five years in Boulder, Colorado, then in 1994 relocated to the Pacific Northwest. Shortly after arriving, Mr. Constance's life was struck by tragedy when his partner died as a result of a hit and run accident in Portland.
Dino J. Constance worked as a mortgage broker and Jean Ann Koncos (the complaining witness) as a massage therapist. They met in 2003, and had a child in 2004. Mr. Constance and Ms. Koncos lived separately in Portland, Oregon until Ms. Koncos, pregnant at the time, became severely harassed due to her first custody battle, and by her many creditors. With her finances collapsing and her house in default, Mr. Constance moved the couple to a suburban home in Vancouver, Washington to protect her and their unborn child.
Already embroiled in a bitter child custody dispute over her first two children, Ms. Koncos (who had scheduled to abort the child four times) decided to relinquish her parental rights to her infant with Mr. Constance (provided she would have no child support obligation.) But the judge that signed the orders she had prepared, later rescinded them and had the child taken into foster care, having discovered several past frauds on the court by Ms. Koncos. (See documents attached to Letter in Support by (retired) attorney Gayle Ihringer.) Mr. Constance thereafter married Ms. Koncos, on advice of counsel Ihringer, so as to expidite his beloved son's release from foster care.
In early 2005, Koncos and Constance separated. The court designated Koncos as the primary residential parent, despite her past attempt to relinquish her rights. At the request of both parties, the court entered mutual restraining orders, and several others followed throughout very lengthy proceedings.
Mr. Constance currently resides at Stafford Creek Corrections Center in a minimum custody unit, having received multiple classification "overrides" due to his long-term nonviolent behavior. Mr. Constance is unusual as a prison inmate and as a clemency applicant, in that he is well-educated and was professionally employed. Prior to the current convictions, he had no record of violence or serious crime. None of the typical drivers of serious crime -violent temperament, substance abuse, poverty, or deviant sexual tendencies -apply to Mr. Constance.
Quite to the contrary, at the time of his arrest Mr. Constance was a successful self-employed "A Paper" mortgage broker. He has a spotless record and sterling reputation over a 22-year history in the mortgage industry, much of it as a top producer; an occupation which is heavily regulated by federal and state law, and extensive rules, regulations, and guidelines. Prior to his mortgage lending carreer, Mr. Constance worked as a Los Angeles County Lifeguard, and through six years of college as a teller and note teller for Bank of America. By all accounts, Mr. Constance should be seen as an honest man.
The case that brought Mr. Constance to prison was also unusual. The criminal case spun off from a hotly contested child custody case between him and his alleged victim, Ms. Koncos. After losing custody of her first two children, her decision to give up custody and rights to her child with Mr. Constance reversed to the extreme. This underlying child custody case was exacerbated by Mr. Constance's discoveries that Ms. Koncos had endangered, abducted, and was abusing their child. Ms. Koncos is a highly intelligent, large and powerful woman, and is known to possess a violent temper and unstable mentality; the reasons she lost custody of her first two children.
This petition and its attachments will also document and explain the fraudulent nature of Mr. Constance's case; inasmuch as Ms. Koncos collaborated with Mr. Constance's short-term roommates (Michael & Jordan Spry - father and son) to make them appear credible before the family court judge, and later Mr. Constance's jury. These (original accusing) witnesses had become involved in a heated financial disagreement with Mr. Constance, were nearly penniless, had attempted to blackmail him for desperately needed money, and were actively seeking vengeance by making false claims to assure Mr. Constance's demise.
Only by taking advantage of this situation was Ms. Koncos able to protect her threatened custody position. And only by seeing to Mr. Constance's wrongful conviction were the Sprys able to indulge their vengeance and prevent Mr. Constance from suing them into utter destitution for their malicious involvement in the underlying child custody case.
Unknown to the jury, at the time of Mr. Constance's trial, Jordan Spry had thirteen active arrest warrants, mostly for crimes of dishonesty. He had twice tried to blackmail Mr. Constance by way of long-winded voicemail recordings; threatening to sabotage Mr. Constance's custody case if Mr. Constance did not pay his father $1,500 - a threat he and his father made good on. (See Att. 1.) The attachments Mr. Constance will submit if granted a hearing (noted within this text) will prove this point and several other key assertions.
These recordings were the only defense evidence offered by counsel. But after trial, both recordings were somehow "lost" by all parties; The state, the Court, the underlying family court, and even defense counsel Brian Walker all reported the loss of this powerful evidence. And appellate and habeas corpus proceedings occurred in its absence.
Unknown to Mr. Constance when he moved in with the Sprys on January 15, 2007, they were in the final stages of eviction. Mr. Constance's move-in funds was all that kept them housed and eating a little while longer. Within only a few days of the move-in, Mr. Constance had also been compelled to lend the Sprys money to avoid utility shut offs, for groceries, and auto parts for Jordan's broken down car. And Mr. Constance never even received a "thank you".
When Mr. Constance subletted this room in the Sprys' rented residence, he had just relocated back to the area from San Diego after a financially disastrous year there, and was nearly destitute himself. But the first month after reestablishing his mortgage business in the Northwest (March 2007), Mr. Constance earned about $25,000. By comparison, Michael Spry had not worked in over a year (probably due to his raging opiate addiction). And Jordan, a shelf stocker for Costco, was also out of work. Michael Spry was collecting the last of his unemployment, and fraudulently, unemployment from the State of New York at he same time. Suffices to say that Mr. Spry was infuriated by Mr. Constance's rapid success, and was consumed with hatred and jealousy.
At trial, Michael Spry claimed to be an "ordained Baptist minister", and played the part well. Appearing to be a kind and thoughtful, pious man of the cloth, he commanded great credibility before the unsuspecting jury. Defense counsel Walker had not investigated the man, and so could not debunk Mr. Spry's self-fabricated Godliness and credibility. Even to the extent of repeatedly violating an "order in limine", Mr. Spry testified about Mr. Constance's supposedly endless offers to pay him to kill Ms. Koncos; the minister? And to make himself appear magnanimous, Michael Spry even claimed he only wanted to "help" the poor downtrodden Mr. Constance.
But he did not mention, and the state did not disclose, the eight-page, single-spaced, "flaming" Email he had sent to Mr. Constance when Mr. Constance cut off the money the Sprys had been living on, and moved into a spacious rented home without the Sprys. In this veritable encyclopedia of threats, Mr. Spry viciously threatened Mr. Constance with everything evil under the sun.
It should be noted that neither Jordan Spry's blackmail recordings nor Michael Spry's eight-page flaming Email said one word about solicitations from Mr. Constance, or threats to report same. Only upon having a sit-down meeting with Ms. Koncos immediately after she had been served with a custody change motion from Mr. Constance, were the solicitation allegations first concocted. In fact, they first appeared in declarations drafted for the family court (amidst slander of Mr. Constance's parenting), and were printed on Ms. Koncos' computerized pleading paper.
Post-conviction investigation also revealed the enormity of Mr. Spry's selfmisrepresentation. In fact, the man had once been a minister, but was removed from his ministry and defrocked after a voyeur sex scandal involving him, his first wife, and a deacon of the church. He was also accused of stealing from his ministry, alcohol and drug abuse, and he had a long history of malicious behavior. He had also demanded that his second wife perjure herself in a lawsuit against him over unpaid rent. (See Att. 2.)
Also noted in Att. 2, it was discovered that Michael Spry is a lifelong severe sexual predator. He had been drugging and raping women and girls since the age of 14; his first victim being his 11-year-old sister. He was almost arrested for intimidating witnesses in his eldest son's rape of a child case, and had assisted that son in the predation of under aged girls. Incredibly, he had also been legally restrained in adjacent Multnomah County after he attempted to force his second wife to commit beastiality.
But none of this was ever discovered for trial, and the flaming Email, known to the state, again was never disclosed. Suffices to say that the postconviction discoveries regarding the Sprys were so extraordinary that no juror would have believed a single word they said, had the jury been informed. But all the jury ever saw was the well-practiced 7.'ininister" assassinating Mr. Constance's character with devious, vicious perjury, while making himself appear credible by pretending to feel sorry for poor Mr. Constance.
In 2004, after exhausting Mr. Constance's savings, Ms. Koncos filed five (5) heavily falsified TRO applications against Mr. Constance (every time he was forced to refuse her financial demands.) These sworn but unaffirmed TRO applications, together with her excessive 911 [call] activity, is what triggered ten excruciating weeks of foster care, and Ms. Ihringer's involvement. (See Ms. Koncos' TRO retraction document, attached to Ms. Ihringer's Letter of Support.)
Soon after returning to the Northwest in 2007, Mr. Constance discovered on no uncertain terms that Ms. Koncos was physically abusing their 2-year-old son. He was not shy about this in court, and immediately filed for custody. Terrified over losing custody of her only remaining child, on March 16, 2007, Ms. Koncos falsely alleged to police that Mr. Constance had violated a mutual no-contact order the night before. Fortunately, this occurred a few days before the Spry's disagreement with Mr. Constance, so Jordan Spry was willing and able to establish Mr. Constance's alibi at the time. (See Att. 3, noting the single line atop Page 2.)
When that didn't work, also in 2007 Ms. Koncos impersonated a state official on the phone, contacted Mr. Constance's managing broker, and falsely alleged that his mortgage originator's license was expired. Naturally, this delayed Mr. Constance's first big paycheck. (See Att. 4.) Believing Mr. Constance would therefore be unable to honor his child support obligation, Ms. Koncos filed a carefully timed motion in the family court. Aided by the Sprys' extreme perjury, she sought to avert Mr. Constance's custody change motion, and to have Mr. Constance jailed; Anything that might prevent him from taking custody of her third and final child was pursued with wreckless abandon.
This time she succeeded; With the Sprys' help, the family court judge would not even give Mr. Constance the opportunity to prove that his child support had been paid. Ordered to jail for five days, in his boredom Mr. Constance told his cellmate all about his problems with Ms. Koncos and her conspirators, and his concerns for his beloved toddler son. (Mr. Constance had never been to jail for more than a day or two in his entire life, and was very naive.) This cellmate, one Ricci Castellanos, turned out to be a prolific "jailhouse informant"; accomplished at offering (often unreliable) information in exchange for special treatment in his many petty criminal cases.
Mr. Castellanos went on to become Mr. Constance's third accuser, having embellished and duplicated the Sprys' solicitation allegations. This informed, cultivated duplication was how Mr. Constance ended up with three highly motivated and severely disreputable accusers, all saying essentially the same thing. But DPA Golik made a point of falsely telling the jury that the Sprys and Mr. Castellanos knew nothing of each other, so must be independently credible.
For his "assistance", the small, feeble and harmless, perpetually unemployed and seriously mentally ill cancer patient, Ricci Castellanos, received several secret benefits from the state, to include $200 cash money. This also included the long-sought-after dismissal of of an old work release sentence; later discovered to be typical behavior for Mr. Castellanos. To insure Mr. Castellanos' performance in court, this main special benefit was withheld until after Mr. Constance's successful conviction.
The deputy prosecutor on Mr. Constance's case, DPA Tony Golik, did in fact meet with Mr. Castellanos' judge for this reason; to arrange the work-release dismissal. In post-conviction proceedings, Mr. Castellanos even drew a map of the courthouse floorplan where he saw Mr. Golik going into chambers for the meeting, just before the work release sentence was finally dismissed.
In fact, a two-year post-conviction investigation discovered thousands of pages of exculpatory and impeachment evidence. This evidence proved literally dozens and dozens of illegal nondisclosure ("Brady") violations, and defense attorney ineffectiveness ("Strickland") errors. It was this huge investigation, and the massive trove of documentation it revealed, that establishes the accuracy of the assertions made herein.
As part of his assistance to the state, Mr. Castellanos repeatedly called Mr. Constance, to try to entrap him into accepting his many claimed offers to kill Ms. Koncos ("to protect that poor kid.") In fact, Mr. Constance may have had an entrapment defense, except that even when Castellanos reduced his supposed price all the way down to $0, Mr. Constance never accepted any offer. From day one, Mr. Constance knew that Castellanos was harmless, and must be "after something". But he was unconcerned since he was never going to acquiesce or accept any of Castellanos' ridiculous offers.
Unknown to the jury, Mr. Constance only accepted Castellanos' absurd "welfare hit man telemarketing" phone calls, because he was considering using Mr. Castellanos to spy on Ms. Koncos, who worked from the home, so as to determine how serious his son's mistreatment might be. Unfortunately, defense counsel Walker failed to inform the jury that Mr. Constance had a history of using others (including hospital charge nurse Lisa Parcel) to pose as massage clients and investigate the condition of his son while residing with Ms. Koncos. (See Att. 5.) Trial counsel Walker did not even try to locate Ms. Parcel, or subpoena her for trial, despite the preexistence of her declaration. So a key opportunity to establish Mr. Constance's true innocuous motives was squandered.
Although Mr. Castellanos worked with police to record these conversations, the only person ever recorded saying anything about harming anyone, was Mr. Castellanos. Nevertheless, the conversations made Mr. Constance appear guilty because Mr. Castellanos predictably testified that an agreement to kill Koncos had supposedly been reached in some earlier, unrecorded conversation. And given the similarity to the unimpeached Sprys' malicious claims, with Mr. Constance being willing to speak with the apparently "hit-happy" Mr. Castellanos, this too made Mr. Constance appear guilty. Mr. Constance wanted to testify to explain his true reasons for even speaking with Mr. Castellanos. But Mr. Walker, "unprepared to deal with that can of worms", insisted he would explain for Mr. Constance. He did not.
In keeping with the "big case" fanfare in this matter, Mr. Constance's bail was set at an outrageous $1,000,000, so he was unable to bail out and afford proper counsel. Court appointed attorney Brian Walker (known for very poor performance in Clark County) simply failed to present a coherent defense, failed to conduct a pretrial investigation, failed to call important witnesses, failed to impeach hugely impeachable accusers, and refused to prepare Mr. Constance to give necessary testimony. The state had violated Mr. Constance's right to counsel by sending a police informant to speak to Mr. Constance about his case after he had been given an attorney, which under Washington law guaranteed Mr. Constance a. dismissal. But Mr. Walker failed to file the dismissal motion as well.
Rather, he just showed up for trial and "winged it", with an absurd "habit behavior" defense ("he just always talks like that"), which is all he could come up with given his extreme lack of preparedness. Not surprisingly, this defense was disallowed by the judge, leaving Mr. Constance with no defense at all. And so, the defense case lasted only a day and a half.
Although court-appointed for Mr. Constance's case, Mr. Walker was primarily a private practice attorney; and his private practice was failing. But soon after losing Mr. Constance's case, Mr. Walker was rewarded with a lucrative public defender contract. Counsel's deficient performance together with the prosecutor's secret deals and widespread unlawful nondisclosure explains how Mr. Constance's accuser's extremely poor characters for thruthfulness (and extraordinary impeachment evidence) was never revealed to the jury - in a case where witness credibility was everything.
One of trial counsel Walker's more meaningful failures was that he neglected to request a "true threat" jury instruction. It is well settled law in the United States that in cases involving verbal or anticipatory crime such as this, the law requires that the jury must examine the circumstances and consider a test for "true threat", separately and in addition to the elements of the crime. This is because provocative speech, even speech advocating for violence, could be a joke, simple venting, simply impossible, or be seen as harmless for other reasons. It is a necessary precaution to guard against injustice, and First Amendment violations.
Unlike other solicitation-to-murder cases, here Mr. Constance never met with an undercover law enforcement officer. No "hit fee" was ever paid. No "contract" ever existed. No "go ahead" was ever given. No conversation of him soliciting anything beyond a half-hour massage was ever recorded. And no one was ever harmed. And even if Mr. Constance's accusers had been truthful, Mr. Constance was never shown to have done anything that could be construed as any sort of follow-through. All this suggests that a true threat test, had it been conducted, would have precluded the existence of a crime here.
But as noted, Brian Walker failed to request this instruction, and trial Judge Robert Lewis did not require one either. Although the post-conviction court (also Judge Lewis) later rationalized that the wording of the Washington solicitation statute somehow satisfied this requirement, the bottom line is that Mr. Constance was deprived of this common sense, Constitutionally required test; a test that may well have eliminated any criminality by him, and averted the case against him.
Also, during post-conviction proceedings Mr. Walker was caught perjuring himself, clearly attempting to avoid an ineffectiveness finding. At that time, an incensed Neil M. Fox (Mr. Constance's post-conviction attorney) declared in open court: "Do you realize that if you perjure yourself in this proceeding you will lose your bar license?!"
The Deputy Prosecutor on the case, Anthony Golik, was aspiring to become the next elected prosecutor in Clark County. He needed a high profile case with a very long sentence to promote his candidacy. (This probably explains why there was never any sort of plea bargain offer.) Mr. Golik's campaign website boasted of Mr. Constance's conviction, and the extraordinarily long sentence. Mr. Golik even took credit for saving Ms. Koncos' life. Of course, the jury was never informed about the many illegal secret deals and benefits ("Brady violations") provided for Mr. Castellanos and other witnesses.
Later, extremely extensive post-conviction investigation revealed extraordinary prosecutorial misconduct by Mr. Golik; misconduct of such magnitude that had Mr. Constance prevailed in post-conviction or appellate proceedings, and thereafter sued, this would likely have bankrupted Clark County. It was also discovered that Mr. Walker made a substantial contribution to Mr. Golik's campaign, who sat with and assisted Mr. Golik (not Mr. Constance and his counsel) throughout post-conviction proceedings.
The notorious county, at the time ranked 6th for reversed convictions nationally, and had just been successfully sued for two other misconductrelated wrongful conviction cases - Davis v. Clark County & Spencer v. Clark County - for a combined $43.5 million. Each case involved a single Brady violation where Mr. Constance's case involved dozens. For a time at least, near to when Mr. Constance's post-conviction case occurred, Clark County was uninsured against more misconduct-related lawsuits. This, and the staggering volume of Brady material in Mr. Constance's case (whether adjudicated as such or not) may explain why Mr. Constance did not prevail post-conviction. Yet his case was so overwhelmingly meritorious, the attorneys involved - Neil Fox & Peter Connick - were left flabbergasted.
Indeed the secret Brady favors for Mr. Castellanos were just the tip of the misconduct-related iceberg. In fact, the secret benefits for tainted testimony by the state were so numerous, one of them resulted in the atgunpoint kidnapping and rape of an uninvolved Portland woman:
When interrogated by police, to demonstrate the absurdity of Castellanos' well-paid allegations against him, Mr. Constance told police that when in jail for the fabricated child support allegation, there were men there who actually would have been capable of harming Ms. Koncos; Anyone would have been more capable than the sickly, harmless Ricci Castellanos. The lead detective on the case, John O'Mara, inquired who. Unable to recall any names, Mr. Constance told police about an enormous man he had borrowed some food from and repaid, leading them to Mr. Zachary Brown.
O'Mara tracked & contacted the man in the jail, and offered him special treatment if he would testify against Mr. Constance. O'Mara was given Mr. Brown's price for this tainted testimony; the lifting of two no-contact orders that were protecting his children's mother, and keeping him from his children. O'Mara relayed this to Mr. Golik, and Mr. Golik complied by secretly using a subordinate prosecutor to defraud the Clark County Superior Court into dropping the two orders and dismissing Mr. Brown's probation.
Mr. Brown was so far out of compliance with the terms of his probation and had violated the no-contact provisions so often, that DOC filed another probation violation the very next day. But this violation was invalidated since the probation case had just been closed. So, instead of (for a third time) an extended jail sentence, Mr. Brown was released from jail, after two years, prematurely. He was therefore free to again assault the woman theorders had been protecting, and also committed the kidnapping and rape in Portland. Stonewalled and hidden from Mr. Fox's investigation until the eve of Mr. Golik's election to office, this became the main issue associated with the 2010 Clark County Prosecutor's election. (See Att. 6.)
Mr. Brown had anchored a Count 4 for solicitation to assault, and was the state's grand finale witness; At 6'4", 240 lbs., and impressively musclebound, only he possessed the physical prowess and violent temperament to have harmed the 5'10" 195 lb. Jean Koncos. The other accusers were much smaller, weaker, and were much less healthy than Ms. Koncos. In all, they were simply harmless men.
But Mr. Brown was gruesome looking and terrifying before the jury. And when Count 4 was reversed by the post-conviction court for the Brady violation that endangered the public, this rendered Mr. Brown's testimony (and its effect on the jury) inadmissible with respect to the other counts. As such, his indisputable effect on Mr. Constance's jury - a jury that heard all counts in a single the joined trial - spoiled the other three convictions as well.
To prevent the all but certain reversal of all counts, and a retrial that could never succeed with all the newly discovered (previously withheld) impeachment evidence, Mr. Golik himself. took the stand and testified in postconviction proceedings. In an effort to avoid the catastrophic ramifications of the Brady adjudication that led to a rape and kidnapping, Mr. Golik testified that his office often assisted men like Mr. Brown (violent, dangerous criminals) in the quashing of their no contact orders. This was a lie so outrageous and so ridiculous that onlookers sat watching with their jaws dropping and their eyes rolling. And, all three of Mr. Golik's paralegals had testified about the deliberate, arduous, and even unique efforts involved with getting Mr. Brown's no-contact orders dropped.
Nevertheless, Judge Lewis pretended to believe Golik's absurd testimony, and found that the Brady violation that led to the kidnapping and rape was "inadvertent". The judge then used this finding of inadvertence to justify reversing only Count 4. This shameful ruling was prominently challenged in Mr. Fox's Motion for Reconsideration, in where he excepted to nearly all of Judge Lewis' many legal conclusions. (See Att. 7.) This issue will be discussed in greater detail in the "extraordinary circumstances" section of this petition.
Even lead Detective John O'Mara was later (after the convictions) shown to be highly corrupt. He engaged in blatant criminal dishonesty so as to obtain the ambiguous and misunderstood Castellanos recordings, and was fired from law enforcement soon after Mr. Constance's conviction. But once again, the man's deplorable and subverting record as an officer of the court, riddled with misconduct, incompetence, and dishonesty, was withheld from Mr. Constance's jury.
One of the reasons for the extremely long sentence in this case, is what might be seen as an oddity of Washington State law. The "unit of prosecution" or number of charges that can be brought for criminal solicitation, is not tied to the number of victims. Rather, it is tied to the number of people allegedly solicited. This means that a solicitation offender may receive a much longer sentence just for speaking about murdering one person, than for the actual murder of two. Here, each of the very questionable accusing witnesses, each isolated and uncorroborated for the Count that they anchored, represented a unit of prosecution such that three consecutive penalties were delved out, even though only one person was allegedly solicited against. This disparity makes no sense and does not serve justice.
Perhaps the most extraordinary thing about Mr. Constance's case was the failure of the courts to grant relief beyond the dismissal of Count 4; triggering a sentence reduction of less than one year. Despite the postconviction and appellate cases being extraordinarily meritorious and meticulously documented, the Court of Appeals merely "rubber stamped" the post-conviction court's rulings. The appellate court also ignored the same issues and violations the post-conviction court had ignored, in what may have been the longest unpublished opinion (50 pages) in state history.
Mr. Golik's secret deal making clearly established pervasive prosecutorial misconduct. And Mr. Walker's deficient performance was ineffective to the point of defense attorney malpractice, regardless of what the post-conviction court may or may not have found. For a concise listing of all the issues and violations discovered post-conviction, and litigated in state proceedings, see Att. 8.
Disillusioned by the state courts' failures, Mr. Constance took his powerful post-conviction case, many times the size of his trial record, to federal court for pro se habeas corpus consideration. But the Attorney General's Office, which was required to furnish the complete record for these proceedings, simply did not. Instead, it claimed that the post-conviction record had been lost (the entire 4,000 page post-conviction record), and furnished only the useless trial record. Repeated motions and objections were filed by Mr. Constance seeking a full record, which were ignored by Respondent and the court alike.
But it should be noted that a few odd remnants of the post-conviction record did come with the trial record supplied by the state; the first page of Mr. Fox's 85 page opening post-conviction record, for example. This would have to mean that the paper record had been complete at some point, but was heavily picked over by someone.
This forced Mr. Constance to re-retain Mr. Fox to reconstruct the postconviction record, without which habeas corpus review could not take place. But only a few days later, and before Mr. Fox could do so, the federal magistrate blindly issued her Report & Recommendations (R&R). Incredibly, the federal District Court of Washington actually issued it's preliminary ruling against Mr. Constance in the absence of the enormous post-conviction record. This was akin to the magistrate speeding down the freeway on her way to work, with her eyes closed. And this huge volume of unreviewed evidence had been obtained by way of a two-year investigation, eight days of post-conviction evidentiary hearings, and over $250,000 in costs. See Att. 9 for a concise listing of the evidence the magistrate never saw.
Although the District Judge was required to consider and comment on Mr. Fox's overlength objections to the R&R, and to modify the R&R for the final order if appropriate, he did neither. Rather, the District Judge neglected all discussion (required for the "de novo" standard of review) ,. refused modification, and then blocked federal appeal to the Ninth Circuit Court of Appeals by unlawfully refusing a Certificate of Appealability.
Apart from the incredulous fact that the R&R was arrived at when the relevant portion of the record had not been furnished, the R&R was filled with inflammatory misinformation that had been disproved by the missing record, and it lacked critical analyses as well. For example, the Statement of Fact within the R&R contained a word for word quote from the soon-to-be-fired Det. O'Mara.
According to him, "one witness" had reported that Mr. Constance had violently assaulted Ms. Koncos during an attempted abduction of their child. He stated that this "one witness" had even claimed that Mr. Constance (two inches shorter and 30 lbs. lighter than Ms. Koncos) was dragging her around on the ground by her hair. But this "one witness" never appeared or testified, was never cross examined, and was never even named. Nevertheless, the magistrate adopted these claims as fact.
More importantly, the missing record proved an altogether different version of the event. Quite to the contrary, Mr. Constance had California court orders in hand, awarding him custody and restraining Ms. Koncos from the child. In fact, it was Ms. Koncos who had abducted the child; away from Mr. Constance's care and custody in San Diego. She had been hiding out with the child in violation of the orders, and felony "child stealing" charges had been filed against her by the San Diego District Attorney's Office •
...Acting on a tip from a PI, Mr. Constance traveled to Vancouver and found his abducted one-year-old son standing in the street, an unsafe distance from Ms. Koncos, and was compelled and authorized to recover the child. Moments later, Ms. Koncos attacked. No blows were exchanged, but a stand-up scuffle ensued until Ms. Koncos finally yanked the child from Mr. Constance's arms. Confident that this time she would surely be jailed, Mr. Constance called out to onlookers for someone to call the police.
When they arrived, neither party had a scratch, no one required medical attention, and police determined that (as always) Ms. Koncos was the primary aggressor. But a mutual no contact order that had been quashed by the family court failed to be cleared from police computers. So, because of this clerical error, Mr. Constance was automatically arrested instead of Ms. Koncos, and the child was placed with the state.
Soon after, Ms. Koncos contacted a "victim's aid" advocate, and told the woman that Mr. Constance had "punched, kicked, and choked" her. When Mr. Constance appeared for his bail setting the next day, noting his lack of criminal record, the judge set his bail at only $1,500. But then, the victim's aid advocate stood up and repeated Ms. Koncos' lie. Clearly alarmed, the judge then raised Mr. Constance's bail to the maximum of $50,000.
Ultimately, this DV case was dropped and Mr. Constance pled guiltly to non-DV simple disorderly conduct rather than try to litigate the matter from 1,100 miles away. But not before Mr. Constance and his family was forced to spend $5,000 for a bond and another $5,000 for an attorney to deal with the bogus charge.
This is just one example among many where dishonesty by Ms. Koncos or her "witnesses", together with dysfunction within the system, successfully subverted the courts. Here this dynamic cost Mr. Constance and his family thousands of dollars, and affected circumstances that both led to the fabricated criminal case and prevented post-conviction relief.
But the magistrate's irresponsible, record-absent R&R had more problems than just relying on "facts" that never happened. Federal habeas corpus exists as a Constutional 'reality check' of sorts, with legal authority as determined by the United States Supreme Court. Each of the great many issues and violations (Att. 8) represents a Constitutional error that went uncorrected in this case.
More importantly, in Kyles v. Whittley (also a habeas case), the U.S. Supreme Court established that materiality determinations (necessary to the finding of a proper Brady violation), in cases where multiple instances of withheld evidence are alleged, must be made cumulatively/collectively. In other words, a court must consider the collective importance of all the withheld evidence, and its effect on the jury, in deciding whether theidence is material (and each piece of withheld evidence constitutes a Brady violation.) The Supreme Court went on to prohibit "one by one", "item by item", and "in a vacuum" individual materiality considerations.
Particularly in this case, because of the extraordinary volume of withheld and undiscovered exculpatory and impeachment evidence, a cumulative Brady analysis was critical. So important is this concept that the Supreme Court reaffirmed this requirement in a new case (Wearry v. Cain) during Mr. Constance's habeas proceedings. Nevertheless, the R&R (which became the unchanged final ruling & order) contained only one by one and item by item materiality considerations; The District Court discounted and rejected each violation (except one), just as the state courts had done - exactly what the Supreme Court forbids!
The wisdom of the Supreme Court in repeatedly imposing this concept is unmistakable here. Just imagine if the jury had learned that the good "reverend" had lied about his minister's status, and lied about only wanting to "help" Mr. Constance. (Recall his eight-page flaming Email.) Further suppose that the jury had also learned about Mr. Spry's having assisted in his son's predation of under aged girls, and his having intimidated witnesses in the resulting case. Consider the jury's opinion of the man's true character and credibility, had they learned that he had demanded his wife perjure herself for him, that he had drugged and raped scores of women throughout his life, and had even tried to force his second wife to have sex with a dog! . And this witness was clearly seen as by far the most credible of the three accusers, lending strength to the other two counts.
Just one of these discoveries might have been overlooked by Mr. Constance's jury, but all this information taken together could only have caused each and every juror to disbelieve the totality of Mr. Spry's testimony. Rather, with all this information, they would have recognized Mr. Sprys' true malicious intentions, and acquitted Mr. Constance.
A similar analysis of the withheld and undiscovered evidence relative to the other accusers yields a similar conclusion. Just imagine that the jury would have learned of Mr. Castellanos' special treatment and favors (only a small portion of which have been discussed here.) Imagine that they learned that his most sought after favor (the work release dismissal) was dependent on Mr. Constance's conviction. Consider that a psychological evaluation of the man was known to the state and documents a diagnosis of "murder ideation". And so this evidence was also withheld, as was Mr. Castellanos' history of giving unreliable testimony for secret benefits in past cases. It just goes on and on and on with these "witnesses", and what the jury did not know.
As such, the lower courts' brazen disregard and disobedience regarding this key, reaffirmed Supreme Court command reveals the wrongfulness of Mr. Constance's incarceration. Sadly, only by suppressing his record and committing gross malfeasance, could the courts prevent Mr. Constance from prevailing at retrial, and avert another financial disaster for the judicially notorious Clark County.
Quite unexpectedly, Mr. Constance recently received a letter from a stranger who was familiar with his case, and with Ricci Castellanos. (See Att. 10.) Thereafter, Mr. Constance hired a private investigator to make contact with Mr. Finstat, and soon after Mr. Castellanos, in the hopes that he would repeat his retractions in open court. But alas, before this might have happened, Mr. Castellanos, critically ill with liver cancer for many years, died. Although secondhand recantations are useless under Washington law, this Board should be aware of this one; Mr. Finstat at least, is credible.
The legal standard for a Certificate 0£ Appealability is very low. And the Ninth Circuit is known to be intolerant of Brady violations, and would likely have reversed the convictions here. ut despite the legal authority to do so, the Ninth Circuit no longer issues Certificates of Appealability; They must be obtained by the lower, District Court. This has contributed greatly to the decline in habeas corpus functionality in recent years, enabled the District Court to avert review of its own deeply flawed decision, and deprived Mr. Constance of any federal appeal.
After the District Court refused a Certificate of Appealability to prevent Mr. Constance from appealing his habeas decision, Mr. Constance again tried to obtain a lawful cumulative Brady analysis by way of a Motion to Reopen his case under Civil Rule 60. (See Att. 11. The full motion is available on Mr. Constance's website.) But the District Court simply will not honor this functionally critical Supreme Court commanded obligation, and the reason seems clear.
By pointing out these egregious, seemingly inexplicable failures, Mr. Constance does not seek to relitigate his criminal case. Rather, by documenting the absurdity and wrongfulness of certain judicial actions and inactions in his case, he identifies such extraordinary circumstances that they warrant common sense executive intervention.
Nevertheless, Mr. Constance also recognizes his part in his nightmare, and accepts responsibility for his actions that contributed to the case. In particular, he regrets his mutually deceptive spying effort with Mr. Castellanos. Mr. Constance steadfastly asserts that the sum total of the testimony against him was staged, hugely exaggerated, or was simply malicious and untrue. Yet he also realizes that he was being plagued by incredible stressors, and that on a few occasions he made cathartically wild statements after having too much to drink.
Moreover, it should be prominently noted that Mr. Constance's sole motivation for whatever crimes he may have committed was to protect his small son from danger and abuse. But now, this young man is 19 years old, stands at least 6'3" tall, and is a black belt in Tai Quan Do; He no longer needs Mr. Constance's protection. What he needs now is his loving father, and for Mr. Constance to return to work, and provide the guidance and financial resources for him to receive a proper college education. Accordingly, and given his age and lack of serious criminal record, the likelihood of new offenses by Mr. Constance would seem to be nil.
Although male longevity runs on both sides of Mr. Constance's family, the poor quality of prison food together with the sedentary lifestyle has taken quite a toll on his health. Over his seventeen (17) years of incarceration, the previous very healthy and athletic Mr. Constance has been diagnosed with and/or suffered from Borderline obesity, type 2 diabetes, hypertension, "life-threatening" sleep apnea, stroke or Bell's Palsy, colon polyps, stomach polyps, Barrett's Syndrome, diverticulitis, H-Pyloria, nerve pain in shoulders and arms, arthritis, chronic anemia, liver damage, crushed fingertip, broken rib, a permanent injury to his left leg due to a fall from upper bunk, systemic skin fungus, severe gum disease and tooth loss, COVID-19 x 4, a bony cyst in his right hand, a moderate bone spur on his right heel, and early onset cataracts requiring surgery on both eyes.
Mr. Constance has lost the ability to run, and must take great care that he does not also lose the ability to walk. To whatever extent one might be prone to violence (which Mr. Constance clearly is not), his deteriorating health would preclude same and only adds to the wrongfulness of his incarceration.
In all, the extraordinary circumstances here show that fraud, judicial subversion, and failures precipitated Mr·. Constance's wrongful convictions, and how severe proceedural breakdowns prevented the granting of postconviction relief. Collectively, this reveals how a non-violent, lawabiding, white-collar professional who had never in his life harmed anyone, received a double life sentence for an alleged crime of words only, after a mere 2 1/2-day trial.
In many ways, Mr. Constance is actually a victim. And the deeper one examines the details of his case, the more extraordinary circumstances are illuminated. In fact, his entire story is filled with what can only be seen as truly extraordinary circumstances (the "perfect storm", as it were), and this broad summary does not do it justice.
When all is said and done, Ms. Koncos was never in the slightest danger. Mr. Constance's accusers were never actually solicited, and even if they had been, his three accusers are all harmless men. Convicted or not, Mr. Constance is by no means a violent or dangerous criminal in need of permanent banishment from society. A prison term in excess of half a century for his alleged speech only, even if accurately alleged by unreliable witnesses, and even if actually a crime, is something that should never have happened.
In any case, Mr. Constance asserts that life imprisonment for purely verbal offenses against a single person, is simply unjust on its face. He further asserts that seventeen (17) years for whatever he may have said, is more than sufficient, and respectfully requests that this Board and Governor Inslee consider the facts and circumstances that support these assertions.
Submitted by Dino J. Constance, Petitioner for Clemency