This case involved the post-conviction death penalty appeal for a marijuana grower and distributor who was basically framed for the murder of two of his “mules”. I was first contacted by R. Kenyon Meyer of Dinsmore & Shohl. He had been assigned the case by the Court and he knew he needed a terminal ballistics expert and an expert in firearms and ammunition design.
The Tamme case is remarkable for the level of abuse, of the science and technology of firearms, done by the prosecution, in order to gain a conviction. (They did not have the evidence to charge Tamme with drug offenses, so they put the blame for two killings on him.) And the original defense attorney was a typical dunderhead who thought he knew something about firearms but, in fact, was totally incompetent to deal in that arena.
The State had only a fire pit with a bunch of burned human bones, a projectile from the fire pit, an alleged death weapon (a Smith & Wesson M-39 pistol in 9mm Luger caliber), and some witness testimony from “experts”, investigators, and two alleged observers of the crime.
I reviewed the original trial transcript (which had resulted in conviction and the death penalty) plus the transcript of a 4 November, 1999, post trial hearing, wherein the issue was incompetent assistance of counsel in the original trial.
The original counsel, Mr. Lee X. Rxxx (hereinafter Rx) apparently thought bones, and retained Dr. William M. Bass, III; one of the world’s most renown forensic anthropologists (Google him, the good Dr. is phenomenal). At that, Rx thought himself ready and went to trial.
In the post trial hearing, Rx testified that he heard someone say “…right groove or something…” in the original trial, but he did not know what it meant. He testified that he thought Dr. Bass was “…good enough…” on firearms issues. Yet, in the original trial, Dr. Bass, under cross, testified that the bones were his area of expertise and firearms were not.
Dr. Bass did a brilliant job of piecing together the bones, attributing them to the deceased individuals, and identified wounds in the ribs of the two deceased. But Rx had absolutely zero follow-up and the prosecution ran wild. A terminal ballistician was essential in order to complement Dr. Bass.
Detective “Sharpie” testified that an observer, “Nuts” gave him an M-39 Smith & Wesson, which Nuts said had been buried for 10 months. But wait, Nuts took the magazine out, saying that he owned a couple M-39’s and the magazine (a stamped sheet metal device which holds cartridges and is inserted into the weapon) was his. Sharpie did nothing. But as a firearms design expert, I knew that the M-39 has a magazine disconnector safety. This means that if the magazine is removed, the M-39 cannot be made to fire. If an M-39 was the death weapon, then multiple magazines had to be present at the death scene. However, there were no magazines present at the original trial.
Mr. Wobbly, a state “expert” testified that the recovered projectile (bullet) had the correct number of grooves and that the death bullet therefore came from the alleged S&W death pistol. But Wobbly sent the projectile out for a lead alloy test, which destroyed the projectile. Consequently, no one could say whether the projectile had actually passed through a human target (impact with the bones would have left distinct marks on the projectile, an issue that a terminal ballistician would have leaped on).
Another witness, Mr. Bullsxx, testified about the shooting but his description would have been destroyed by a terminal ballistician. The bones done by Dr. Bass showed that the shooting could not have happened the way Bullsxx described.
He and observer Nuts also testified that Tamme had a “…jam…” and switched magazines, which allowed him to keep firing. But the state entered testimony that Tamme’s handgun of choice was a Browning FN in .380 Auto caliber. That is a completely different cartridge from the 9mm Luger, it has different twist (left instead of right), and the cartridges are not interchangeable. Further, the magazines from the two pistols are not compatible and will not even fit in the other pistol. But, lacking a firearms design expert, Rx did nothing, and the State got away with it.
Evidence concealed by the prosecution, at the original trial, showed that the wife of one of the deceased was having a 3-way affair (yes, all three together, at the same time) with both Nuts and Bullsxx. But the state said, in the post trial hearing, that that fact did not matter because her handgun was a Ruger Blackhawk in .357 Magnum caliber. As a firearm design expert, I queried the Ruger factory and found that the subject revolver was shipped as a “convertible”; meaning that it had a second, interchangeable, cylinder chambered in 9mm Luger.
So now, there are 3 guns that could have been the death weapon, with three shooters who had a motive, and Tamme was not one of them. Nor did Tamme have any handgun that could have been the potential death weapon. And Rx remained inert throughout the original trial.
I could go further (yes, it actually gets worse), but the point is inescapable.
I wrote a 24 page report for the Judge and submitted it on 20 December, 1999. Kenyon Meyer argued it superbly in a subsequent hearing, and, just three days after that hearing, the Judge vacated the sentence and ordered a new trial.
Mr. Tamme was sickened with cancer. Despite his best efforts to hang on for the new trial, and his hope that he would be acquitted of murders which he truly did not commit, Mr. Eugene Frank Tamme succumbed to the disease. He now lies in a prison graveyard.
Mr. Meyer is now the Managing Partner in the Dinsmore & Shohl Louisville office. Well deserved by a superb attorney.