I. PROCEDURAL HISTORY:

1. Petitioner was convicted of Capital murder in violation of ALABAMA

CODE SECTION 13A-5-40 (a) (7) in the Tuscaloosa County Circuit Court on March 3, 1993, following the granting of a change of venue motion filed in the court of original jurisdiction, Madison County Circuit Court.

2. A sentencing hearing was held on March 3, 1993
where Petitioner was sentenced to life without the possibility of parole.

3. Petitioner appealed to the Alabama Court of Criminal Appeals wherein the conviction was AFFIRMED, on January 13, 1995.

4. Petitioner appealed to the Supreme Court of Alabama wherein the writ of certiorari was DENIED on January 17, 1997.

5. Petitioner filed a petition for Habeas Corpus pursuant to 28 U. S. C. Section 2254 on May 14, 1997 the United Stated District Court for the Middle District of Alabama.

6. On August 24, 1998 United States District Judge Sam Pointer adopted the report and recommendation of the Federal Magistrate Judge denied Writ of Habeas Corpus.

7. Petitioner filed a notice of Appeal on her Federal habeas corpus petition

to the 11^th Circuit Court of Appeals on September 23, 1998.

8. On October 14, 1998 the district court granted a certificate of appealability regarding Petitioner’s Brady claim.

9. On March 23, 2000 the United States Court of Appeals issued an unpublished opinion affirming the judgment of the district court.

10. Application for Writ of Certiorari was filed with the Supreme Court of the United States on September 21, 2000 (Case #010869).

11. Writ of Certiorari was denied on March 19, 2001.

II GROUNDS SUPPORTING THE PETITION OF RELIEF

Newly discovered material facts exist which require that the conviction and sentence be vacated by the court, because; the facts relied upon were not known by the petitioner or petitioner’s counsel at the time of the trial or sentencing or in time to file a post-trial motion pursuant to Rule 24, or in time to be included in any previous collateral proceedings, and could not have been discovered by any of those times through the exercise of reasonable diligence; and the facts are not merely cumulative to other facts that were known; and the facts do not merely amount to impeachment evidence; and if the facts had been known at the time of trial or sentencing, the result would have been different; and the facts establish the petitioner is innocent of the crime for which she was convicted or should not have received the sentence that she did (ARCrP rule 32.1(e).

1. Good cause exists why the new ground or grounds were not known or could have been ascertained through due diligence during the investigative stages leading to this trial and conviction or during the trial, sentencing, or any time period including subsequent

appeals or petitions to date, and why the failure to entertain this petition will result in a miscarriage of justice. (ARCrP 32.2(b)) Failure to rule in favor of the Petitioner would circumvent substantive due process and a fair trial as guaranteed by Article I Section 6 and Section 12 of the Alabama Constitution (1901) and the Fifth, Sixth, and Fourteenth amendments of the United States Constitution.

2. Petitioner is being held under sentence of Life without Parole and is not guilty of the crime for which she was convicted. Newly discovered evidence shows the Petitioner could not have committed the crime for which she was convicted. The State of
Alabama’s prosecution and her eventual conviction was based for the most part on the testimony a man named James White. In order to secure his testimony at trial the State
had entered into an agreement with White to not only spare his life but to allow him to plead to “simple murder” provided he testified in a manner favorable to the State. {See Attachment D} From the first day White became a suspect until this day White has maintained he acted alone in the murder of Dr. Jack Wilson. The false presumption that James White acted alone was one relied upon by both Plaintiff and Defendant attorneys at the time of trial. Despite due diligence on both sides of this case not one shred
of evidence gathered contradicted White’s claim as to being the sole actor in the death of Dr. Jack Wilson.

3. (a) The newly discovered evidence proves that not only did White not act alone
in the murder of Dr. Wilson on May 22, 1992 but in fact there were at least two other individuals who were in the Wilson home that evening and participated in the act of

murdering Dr. Wilson (Attachment A, p.33-34)(Attachment C). (b) Upon first blush,
this may appear to be an impeachment issue. But based on the Courts’ ruling in Farris v. State, WL 22220357 (Ala. Crim. App. 2003), the appeals court remanded the petitioner’s case to the circuit court for further review. The Petitioner, who had been convicted of criminal manslaughter based on the testimony of eyewitnesses, sought to introduce new evidence of eyewitnesses willing to testify that she was not the reckless driver who
caused the fatal accident, and that she had actually arrived on the scene after the accident had occurred. The circuit court had held new eyewitness testimony merely
“impeachment” evidence within the meaning of Rule 32.1(e)(3) and thus not a sufficient basis for post-judgment remedy. The Court of Criminal Appeals disagreed, and held that evidence that “disputes the State’s witnesses’ findings and opinions, and not their credibility,” is not impeachment evidence, but may form a substantive basis for Rule 32 relief. Farris at 4 (emphasis in the original). The evidence was not for the purpose of impeachment because it “disputed (the state’s witnesses’) observations, recollections, opinions and conclusions….” Id at 4. The court further held that Rule 32 “requires the
trial court to weigh evidence other than what the jury had before them at trial, and it request the court to determine whether, based on evidence the jury did not hear, the petitioner is entitled to a new trial”. Id at 4 (emphasis in original), Once the trial court deems the newly discovered evidence to be substantive and not impeachment evidence, and after all of the other requirements of Rule 32.2 are satisfied, the court assesses the credibility of the new evidence. Id.

Had the jury heard this evidence presented at trial by the defense attorneys as rebuttal evidence to the State’s sole murderer theory, coupled with the fact that James

White was caught in at least 58 inconsistent statements in cross-examination by the defense attorneys, there is a reasonable probability that the Plaintiff would have been acquitted.

In Hamilton v. State, 677 So. 2d 1254 (Ala.Crim.App.1995), the new evidence was of perjury committed by the State’s key witness. At the Rule 32 hearing, the court allowed the fellow inmate of the state’s key witness to present testimony that proved the witness’s trial testimony to have been perjured. The court held that the testimony at the original trial was indeed perjured and granted the petitioner a new sentencing hearing on that basis. The court on appeal held that this trial court‘s determination was not clearly erroneous, but that a new trial was warranted for petitioner. “Clearly then the proper remedy, given the finding that the witness perjured himself during the guilt phase of the trial and that the perjured testimony was prejudicial to the defendant, is to remand the
case for a new trial.” Hamilton at 1259.

In Ex Parte Frazier, 562 So. 2d 560 (Ala 1989), the Alabama Supreme Court set out a standard for granting a motion for a new trial on the basis of alleged perjured testimony in a capital case: “ {T}he trial court must be a reasonably well satisfied that :
1) the testimony given by a witness at trial was false; 2) that there must be significant chance that had the jury heard the truth, it would have reached a different result; and 3)
that the movant is not relying on evidence of which he was aware at trial and which he consciously decided not to use to challenge the testimony of the perjured witness.” Frazier, at 570.We believe this instant case meets these standards.

III STATEMENT OF FACTS

Petitioner was arrested, tried and convicted of this crime because circumstantial evidence pointed to her guilt. However James White maintained he was the sole perpetrator of the murder of Dr. Jack Wilson. Based on the testimony of James White, a convicted felon, drug addict and army deserter supported by an agreement with the State
of Alabama District Attorneys Office not to charge him with capital murder if he testified favorably for the State. At the conclusion of the trial the State secured a guilty verdict
from a jury. Had this newly discovered evidence presented in this petition been known at the time of trial her defense attorneys could have prepared a very different defense for trial. Even had this evidence been available only at post conviction hearings then our courts would have been duly obligated in the name of justice itself to free the plaintiff or ordered a new trial, for it would have been evident from this evidence that she could not have committed the crime for which she was charged and convicted, and for which she
has now served 11 years.

A. CASE BACKGROUND

About 9:30 P.M. on May 22, 1992 Huntsville Police were called to the scene of a possible burglary in progress at 2700 Boulder Circle in Huntsville, Alabama.

Upon arriving at the scene police discovered the body of a white male identified
as Dr. Jack Wilson lying in the upstairs hallway dead from multiple blows to the head,
stab wounds and possible strangulation. Homicide detectives searched the house and grounds for clues and a police dog was brought in to sniff for evidence the police might have overlooked.

After talking with neighbors and reconstructing the events as well as possible the police determined that Dr. Wilson left his office around 4:00 PM. He changed clothes and went outside where he took a baseball bat and drove a Tim Morgan campaign sign up in his yard. At that same time some of the neighbors children were playing in a nearby area and saw Dr. Wilson driving the campaign sign up with the baseball bat. This was approximately 4:30 PM. Apparently, he then took a stepladder from the garage and
carried it upstairs and removed a smoke detector from the ceiling. The detector was later found on the bed disassembled.

At this point, police theorized (emphasis mine), that Dr. Wilson became aware of someone (White) already inside the house. The unknown assailant(s) grabbed the baseball bat and began beating the doctor. After the doctor collapsed to the floor, the assailant(s) stabbed him twice with a knife.

Police interviewed the widow, Mrs. Betty Wilson, who stated she had had lunch with her husband that day around noon. After he left to return to his office, she spent most of the afternoon shopping in preparation for a trip she and her husband planned for the next morning to Santa Fe, New Mexico. Later that evening after attending an Alcoholics Anonymous meeting she returned home around 9:30 PM where she discovered her husband’s body. She ran to her neighbor’s house and they called 911.

By using credit card receipts and eyewitness accounts, the police verified Mrs. Wilson’s whereabouts for the entire day, except for one 30-minute period at around 2:30 PM and another 30-minute period between 5 and 5:30 PM. Other family members were also investigated as to their activities that day and all appeared to have solid alibis.

The first break for police came when the Shelby County Sheriff’s Office passed on a tip they received a week before. A woman had called concerned about a friend of hers, James Dennison White, who had been talking about killing a doctor in Huntsville while he was drunk. Supposedly, White was infatuated with a lady by the name of Peggy Lowe (Betty White’s twin sister) who he claimed had recruited him to murder her twin sister’s husband in Huntsville.

James White was at the time a 42 year-old Viet Nam veteran who had a history of

mental disorders and antisocial personality behavior caused primarily by drug and alcohol abuse. He had been in a number of mental institutions as well as serving time in jail. On one occasion while serving time he escaped and was captured in Arkansas where he was involved in kidnapping a man and his wife. One of his last mental evaluations described him as suffering from delusions and unable to separate fact from fantasy.

Huntsville police questioned White regarding the murder of Dr. Wilson and after many hours of contradictions and lies White basically confessed to being hired by Peggy Lowe and Betty Wilson to kill Dr. Wilson. White claimed that Peggy Lowe approached him about her sister wanting to hire a “hit man”. He said after discussing the matter several times Peggy Lowe agreed to pay him $5,000.00 of which White claimed she gave him half, in small bills, in a plastic bag.

Gradually as his story evolved, it included the twins giving him a gun belonging to Betty Wilson, phone calls between him and the sisters, a trip to Huntsville to pick up

expense money inside a library book and meeting Mrs. Wilson in Huntsville to get more expense money. On the day of the murder White claimed Mrs. Wilson met him in the parking lot of a nearby shopping center and carried him to her home where he waited for two hours until Dr. Wilson arrived home. He was not armed at the time; he later stated that he had not liked guns ever since Viet Nam. Instead he carried a length of rope. White said that although he remembered struggling with Dr. Wilson over the baseball bat he did not remember killing the doctor. After the murder, Mrs. Wilson returned to the house picked up and carried him back to his truck at the shopping center. He then drove back to Vincent, Alabama and went out drinking that night with his brother. To prove his story he led police his house where a gun was found that was registered to Mrs. Betty Wilson and a book from the Huntsville Public Library signed out by Mrs. Wilson. It would take time to sort out the details but the Huntsville Police had enough evidence to arrest the twin sisters.

The murder for hire case against Mrs. Betty Wilson went to trial on February 22, 1993. In exchange for White’s testimony against Betty Wilson the District Attorney trying the case agreed to a controversial plea bargain for White, which would give him life, with parole possible in 7 years, in exchange for helping convict Mrs. Wilson (See Attachment D).

Based primary on the testimony of White the case went to the jury at 12:28 PM on Tuesday March 2, 1993. After deliberation the rest of the day and much of the following day the jury returned a guilty verdict. Betty Wilson was sentenced to life in prison

without the possibility of parole and is now incarcerated at Julia Tutwiler Correctional Institute in Wetumpka, Alabama.

B. SUFFICIENCY OF THE EVIDENCE

We have the difficult task of presenting this case of actual innocence before this honorable court with little successful case history regarding newly discovered evidence. All of us know that the law is continually being refined. In the interest of justice, all of us in the legal community work together to continue to fine-tune this system so that the foundation upon which our legal system was built serves the ends of justice.

We wish to be clear in this instant case that the Petitioner expounds upon the case background in order to show the new evidence presented to this honorable court by and through this petition is, in fact, in direct conflict with the evidence by James White. This information is further offered for the sake of clarity and in the interest of justice.

Petitioner has the burden of showing, by the preponderance of the evidence, and in a light most favorable to the State, that she is more likely innocent than guilty of this crime. The United States Court of Appeals for the 5^th Circuit defined sufficiency of evidence as: “ The appropriate test for reviewing the sufficiency of the evidence is whether a reasonable minded jury could conclude that the evidence inconsistent with every reasonable hypothesis of the defendant’s innocence.” United States v. Staller, 616 F2d 1284; 1980 U.S. App.

With the newly discovered evidence presented here, we are convinced that no reasonably minded jury would find the Petitioner guilty of this crime.

ARE Rule 401, defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence”. Martin v. State, CR-99-2249, 2003 Ala Crim. App., “In order to be admissible under Alabama law, evidence must merely have “any probative value, however slight, upon the matter in the case.”(quoting Charles W. Gamble, McElroy’s Alabama Evidence, Section 21.01(1) (5^th ed. 1996). The evidence we present here is relevant in that it shows that the Petitioner could not have committed the crime for which she was convicted.

C. DENNIS JOHNSON TESTIMONY

Dennis Johnson resides in Ocala, Florida where he is presently employed as a maintenance supervisor for a local motel. Prior to that Johnson served a ten-year stint in the U. S. Marine Corp from 1967 to 1977 when he received an honorable discharge. Johnson operated a garage on Huntsville, Alabama in the late 1980’s that was located next door to a mission on or near Governor’s Drive. James Dennison White was known to frequent the mission and often “hung out” at Johnson’s garage when he had nothing else to do as did many others who stayed at the mission from time to time. Johnson and White developed a casual friendship but seldom saw one another elsewhere unless it was at a local bar.

In 1991 Johnson gave up his garage business and moved to Tennessee. He left Tennessee in 1992 and until his move to Florida in 2001 he worked a number of jobs all in mid-west and western states. Johnson states that he first learned of James White’s imprisonment for the death of Dr. Jack Wilson and Betty Wilson’s conviction in

connection with his death by accident when he purchased a computer for the first time in 2003 and saw Betty Wilson’s web site on the Internet. He contacted the web master who put him in contact with her attorneys. On September 7, 2003, D. Brent Morrison, Esquire before a court reporter, deposed Dennis Johnson in Ocala, Florida.

1. MULTIPLE ACTORS EVIDENCE

From the first day James White was questioned by Huntsville Police Homicide Detectives about the death of Dr. Jack Wilson until this day White has maintained he was the sole actor in actual killing itself. (TR-508)

At the trial of Betty Wilson it was the testimony of James White that Betty Wilson picked him up at and transported him to her Boulder Circle home where he killed Dr. Wilson.

(TR-500) Jimmy Fry District Attorney representing the State of Alabama:

Q. All Right. What happened after you saw Mrs. Wilson in her flowery shoes?

A. She asked if I was ready and I told her yes, and I got over in her car and we

left.

Q. Where did you get in the car?

A. I got in the front seat and squashed down between the floorboard and the front

seat.

(TR-502) Jimmy Fry District Attorney representing the State of Alabama:

Q: And what happened then when you got to the house and in the garage?

A: I got out of the car, she opened the back door, she handed me $40 in cash

money.

Dennis Johnson states that James White told him the night of the murder that he had gone to the Wilson home with Charlie White (James White’s brother), and David Howell (James White’ 3^rd Cousin) for the purpose of stealing Dr. Wilson’s Mercedes and to burglarize the house. Johnson further states in his affidavit dated February 14, 2004 that the three were carried to a road behind the Wilson house and let out by one Cynthia Jackson, and the three (White, White and Howell) walked through the woods to the Wilson house. Johnson went on to say that Dr. Wilson came in and caught them in the act. Howell told Johnson that he grabbed Dr. Wilson by the throat and tried to restrain him. He went on to say they beat him with a piece of rebar shaped like a small cross that White had been carrying in his pick-up truck and a baseball bat. [THIS ENTIRE PARAGRAPH WAS TAKEN FROM THE PHONY/FORGED AFFIDAVIT. JOHNSON ONLY KNEW THESE PEOPLE BY THEIR STREET NAMES BUT KNEW THAT "DAVID" OR DEKE WAS NOT WHITE'S COUSIN. AND IF MORRISON HAD DONE HIS HOMEWORK, HE WOULD HAVE KNOWN THAT WHITE'S BROTHER'S NAME WAS THURMOND HOWELL NOT CHARLIE WHITE.]

Finally, White states everyone involved said they never intended going to the house to kill Dr. Wilson. They assumed no one would be at home. The plan was to steal what they could, take the Mercedes and turn it over to Johnson. Never did anyone say it was a planned murder. (Attachment C). [ATTACHMENT C - PHONY/FORGED AFFIDAVIT]

These three individuals came into the bar and met with Johnson after the murder and Johnson said White made the statement; they had to “shut him up,” speaking of Dr. Wilson. (Attachment A, page 32). [ATTACHMENT A - JOHNSON'S DEPOSITION]

While in the bar sirens were heard going up Governors Drive, Johnson says one of the three present at the Wilson house said, “ they probably found the old bastard” (Attachment A, page 36).

Turning once again to James White’s testimony in Wilson’s trial concerning his presence at the Wilson home on May 22, 1992, White had this to say:

(TR-508) Jimmy Fry, District Attorney, representing the State of Alabama:

Q. Was anyone else with you?

A. No, Sir.

Q. Was anyone else in the house?

A. No, Sir.

This new evidence proves beyond a reasonable doubt that James White was not acting alone when he killed Dr. Jack Wilson on the evening of May 22, 1992. Without a doubt the motive for the killing was not contract related as claimed by the State but a result of a struggle between Dr. Wilson and White and his partners in crime who were surprised by the Doctor while in the process of burglarizing his home and stealing his car. It is clear from Johnson’s deposition that White’s story concerning Betty Wilson transporting him from the shopping center to the house on Boulder Circle and back is no more than lies from the lips of a cold-hearted criminal mind. Obviously, if there were at least three people in the house at the time of the murder and probably another party who transported them to and from the scene then all of White’s already questionable testimony becomes even more suspect. There can be little question left in any rational mind that White committed perjury time and time again during the trial of Betty Wilson. We would submit to this honorable court that this evidence standing alone would warrant a new trial for the Petitioner.

2. CONTRACT KILLING EVIDENCE

Betty Wilson was tried and convicted under Section 13A-5-40 (a)(7) of the Code of Alabama, 1975 which reads as follows:

“ Murder done for a pecuniary or other valuable consideration or pursuant

to a contract or for hire.”

The basis for the charge was James White’s claim that Betty Wilson and her twin sister Peggy Lowe had conspired and then contracted with White to kill Betty Wilson’s Husband, Dr. Jack Wilson. James White claimed he had agreed to kill Dr. Wilson for the sum of $5,000.00 with one-half to be paid up front. White further claimed that Betty Wilson had agreed to the sum and he collected $2,500.00 in cash from Peggy around the middle or later part of April 1992.

(TR-434) Jimmy Fry representing the State of Alabama:

Q. Then what happened?

A. Around the end or the last part of April, middle part of April, later part of April, Mrs. Lowe called me and she told me, she said, “I have got it”. I said. “ you have got what?” She said, “I got half the money”. She says, “I went to Boaz, Betty was at Boaz, we met at my mother’s and Betty gave me half the money up front.”

Q. Okay. Now, when was that?

A. I’ll say the middle part of April or the last part of April.

Q. What happened after that?

A. I went to Mrs. Lowe’s house and Mrs. Lowe give me the money in a plastic bag, white with a black design on it.

Dennis Johnson after having moved back to Tennessee had made the acquaintance of a real estate agent in Atlanta who was involved in purchasing stolen high priced vehicles and reselling them. This agent recruited Johnson to find these cars and pay someone to steal them. Johnson, in turn, would transport them to Atlanta. This “business arrangement” between Johnson and the agent led Johnson to call upon his friend James White to be his car thief on occasion. In early May White approached Johnson and presented Johnson with a set of high gloss pictures of a Mercedes Benz Roadster. He said he planned a robbery of the home of Dr. Jack Wilson on Boulder Circle in Huntsville, Alabama. (See Attachment C) [PHONY/FORGED AFFIDAVIT]. White stated he was going to steal this car and Johnson agreed to take the car off of White’s hands. At this same meeting Johnson gave White $2,500.00 cash money as an advance toward delivery of the car because White stated to him (Johnson) that that he was broke.

(Attachment I pg.21) D. Brent Morrison, Enquire:

Q: Okay, So the $2,5- -- let me get this clear now.

The $2,500 that James White had came from this third party that was going to accept this vehicle once James White stole it and got it to you and you delivered it; is that correct?

A. Okay. The way this goes—okay. Actually, the money was my money. I get the money first. But James was broke so I let him have that, because there was no doubt I was going to make twice that much on it anyway……..

The date of this transaction between White and Johnson happens to be in the same time frame with that which White claims he received his contract money from Betty Wilson. Evidence of this is also revealed in Johnson’s deposition:

(Attachment A, page 22) D. Brent Morrison, Esquire:

Q. Well, how did he get the $2,500?

A. I gave him the $2,500.00

Q. When?

A. It was about – it was about two or three weeks before this. It was either—now I ain’t going to say exact. It was either two—it could have been three weeks before that.

Again, the credibility of James White’s testimony is shaken to its rotten core. Can we assume that it is a coincidence that James White would receive $2,500 from two totally unrelated sources at the same time? I think the obvious answer is a resounding no. Now for supposition sake what if White did receive $2,500 from Johnson and not Betty Wilson? Has the State not lost its main element of its charge under which Betty Wilson was tried and convicted? Where would be their contract to murder? After consideration of this newly discovered evidence and in the name of justice this honorable court should overturn Betty Wilson’s conviction and release her from custody.

3. BETTY WILSON’S PISTOL EVIDENCE

One crucial piece of evidence introduced by the State was the pistol registered to Betty Wilson found by investigators at James White’s home following his arrest for the

murder of Dr. Jack Wilson. According to James White, Peggy Lowe and Betty Wilson delivered this pistol to him on May 20, 1992 at Logan Martin Dam. After the alleged meeting he testified he carried the gun home and hid it under some loose boards in the floor of an old house located on his property in nearby Vincent, Alabama (TR-468-474). White went on to claim he came to Huntsville that night or in the early morning hours of May 21, 1992. He goes on to say this about the pistol:

(TR-479) Jimmy Fry District Attorney, representing the State of Alabama:

Q. You didn’t have the gun?

A. No, sir. I did not.

Q. Why didn’t you bring the gun?

A. Because guns make to much racket and I’m kind of shy, any way, from Viet Nam.

(TR-479) Fry Continuing:

Q: Did you have any tools with you to do the job?

A. I carried a rope in with me.

Once again, James White is able to bring an indictment against Betty Wilson and Peggy Lowe to which the defense can provide no creditable answer. How did Betty Wilson’s gun get into the hands of James White?

Now, with the deposition of Dennis Johnson a completely logical explanation comes to light as to how this pistol came to be in the possession of James White.

According to Johnson the pistol was taken the night of the murder of Dr. Wilson from the Wilson home. In fact, Johnson says he tried to sell the pistol to him in the bar where the two met in Huntsville that same night related by Johnson as follows:

(Attachment A, PAGES, 30-32), D. Brent Morrison, Esquire:

Q. Well, tell me about the pistol.

A. It was a .38 Pistol.

Q. What is the background on the pistol?

A. It was a .38 pistol. He had it wrapped in one of those mechanics rags, you know, the small – they use that little brown mechanics rags. That is what he had around it.

Q. Like you wipe your hands with?

A. Yeah, Yeah, yeah. Anyway, when I looked at it, it was – I mean, this thing looked new – a new one, he wanted to sell it to me. And it was kind of -- let me see. What was the deal he said on this? He wanted to know if I would take it back to Tennessee with me and sell it – I won’t say this—anyway, if I take it back to Tennessee and sell it to some nigger or something. This is what he told me. So they would get caught with it. And then I knew then that he done and – he done and went and stole that thing. There’s not much doubt about that.

And – but it was one that had not had a lot of use or nothing. It was the blue inn was real nice on it and everything. And – let’s see. We talked about –

Q. Did he say were the handgun came from?

A. It came from that house you know.

Q. Did he state that –

A. He said that, yeah.

Q. – he stole it?

A. Not only him, but the other guy did too.

Q. Stole it out of what house?

A. The one they had went to—when—

Q. Dr. Wilson’s house?

A. He didn’t say Dr Wilson by name, no.

Q. He just said that --

A. I don’t think the word Dr. Wilson was ever mentioned, that partic- -- any name like that, you know.

Q. He just said he stole it out of the house that he had just come from?

A. The – well –

Q. The one he burglarized or whatever? You tell me.

A. Well, he told me that the guy came in screaming and hollowing. They had to shut him up or knock him out, and you know, this was the house they were in, you know.

Q. Okay.

A. And then, you know that that car that -- the one he was supposed to have sold me was supposed to be came from this house. I would say that would be the same house, you know. I would say that.

White himself verifies to Johnson the night of the murder that the gun he tried to sell was stolen from the Wilson house. It was the same caliber as the gun found at White’s house by investigators. It is obvious that White was eager to get rid of this gun in a hurry. Others in the bar including a friend of Johnson and the bartender nicknamed “Tiny” saw the gun and can describe it. This evidence indicates that the gun was taken from the house during the burglary as Betty Wilson’s defense attorneys had contended all along. Furthermore, it provides us with a clear and believable alterative to how the gun got into the hands of James White and then to underneath his floor in Vincent, Alabama as part of his grand scheme to save himself from the electric chair at the expense of Betty Wilson.

D. CONCLUSION

We have presented conclusive evidence though the testimony of an individual witness that the Plaintiff could not have committed the crime of which she was convicted.

It is evident from the evidence presented herein that neither Betty Wilson nor her attorneys had any knowledge of Dennis Johnson at the trial or during any of the subsequent judicial procedures on her behalf. (Attachments A & B) [DEPOSITION AND WILSON AFFIDAVIT] Having no basis from which to infer that Dennis Johnson even existed, much less his involvement in the crime, no amount of diligence could have led Ms. Wilson or her counsel to him or White’s accomplices. White certainly did not divulge Johnson’s existence or involvement on the stand, and he is the only person in this case who could possibly have known him. Wilson and her lawyers simply were not prompted to Dennis Johnson as being a person in any way involved in this case.

The new and radical nature of this newly discovered evidence is not cumulative of any evidence presented at the original trial. It tells a completely different story and paints a vastly different portrait of the events of that night, and before, and brings in individuals who were, so far as anyone but White knew, non-existent and far removed from the story presented to the jury in the Wilson trial.

The new evidence is not impeachment evidence under the Farris standard. Had the testimony of Dennis Johnson been introduced at trial, it would have presented the jury a contrasting “finding and opinion” of the events leading up to and immediately after the murder. It would have presented to the jury Johnson’s observations and recollections of the night of the murder, and serve as a credible contrast to what they heard from the mouth of James White. It does much more than impeach the credibility of White—it presents the jury with an alternate, substantive, and plausible explanation of the arrangements surrounding the murder of Dr. Wilson.

The evidence would have changed the outcome because it would have been presented to the jury by at least three separate witnesses (Cynthia Jackson, Charlie White and David Howell) who, if consistent, would have demonstrated conclusively that Mrs. Wilson was neither involved with nor the motive behind James White’s activities that night. White, who was deemed believable by the jury only in the absence of no conflicting evidentiary testimony, would instead have had his story challenged by contrasting factual testimony provided by witnesses and not merely the impeaching questions of Betty Wilson’s attorneys.

Lastly, the evidence (if believable) would show Betty Wilson to be innocent of the crime. It absolves Wilson of any responsibility for transporting White to and from the

crime scene, providing White with the gun, and provide for a different motive behind White’s killing Dr. Wilson and an alternate explanation as to why he was in the residence in the first place. The new evidence harmonizes with the expert testimony in the Lowe trial, stating that more than one person killed Dr. Wilson and that some hard narrow object (rebar) was used to fracture Wilson’s head rather than a baseball bat.

It is evident that more than one actor was involved in the murder of Dr. Jack Wilson and the motive was burglary of the Wilson home not contract murder. The murder of Dr. Wilson was incidental to the burglary in that Dr. Wilson surprised those actors (including White) in the house and was killed as a result thereof.

Secondly, if Dr. Wilson’s death was a result of him happening upon a burglary in progress in his home and he was killed in the ensuing fight by the perpetrators committing the burglary as they tried to defend themselves from Dr. Wilson and his bat then the State’s premise that Betty Wilson is guilty of murder by contract (Section 13A-5-40(a)(7) is a wrongful charge and one from which my client is clearly not guilty and one for which she is being held unjustly.

Finally, It is clear that James White had possession of Betty Wilson’s .38 Pistol the night of the murder. Police reports show that gun was missing from Ms. Wilson’s bedroom following the murder. The pistol was seen at a local bar in Huntsville where White tried to sell it to Dennis Johnson to get it out of the area. White himself even stated to Johnson he stole the gun from the Wilson home. This discredits White’s testimony that he received the gun from Betty Wilson at Logan Martin Dam on May 20, 1992 and accounts for how the gun got into White’s hands and then under his floor in Vincent, Alabama, showing again that White perjured himself on the stand during the trial.

This evidence standing alone or collectively with all the evidence clearly shows that the Petitioner is not guilty of the crime for which she has been convicted.

E. PRAYER FOR RELIEF

Due to the weight of this new evidence, the appropriate action for this honorable court is to reverse the decision in this case and release the Petitioner from custody. The Petitioner has spent 11 years in prison and is not guilty of any crime. Had the newly discovered evidence outlined in this petition been known at the time of trial the jury would have not convicted the Petitioner of this crime for, the evidence clearly shows that the Petitioner did not contract with, pay or hire James White to kill her husband Dr. Jack Wilson. In fact, she never met James White before the murder.

This honorable court must correct a manifest injustice and a violation of substantive due process by overturning the original conviction and releasing the Petitioner from custody. (ARCrP 32.2(b))

We have presented the necessary information to invoke ARE 201, Judicial notice of adjudicative facts. These “facts are beyond reasonable controversy and possess a high degree of indisputability.” (ARE Rule 201(d)). Therefore, we request a timely adjudication of this matter by this honorable court.

Respectfully submitted,

__________________________

D. Brent Morrison, Attorney for

Petitioner Betty Wilson

OF COUNSEL:

D. BRENT MORRISON (mor106)

111 S. Main Street

Piedmont, Alabama 36272

256-447-0016, Fax 256-447-0019

E-Mail: brentm712@aol.com

CERTIFICATE OF SERVICE

I hereby certify that I have this date served a copy of this PETITION PURSUANT TO RULE 32 OF THE ALABAMA RULES OF CRIMINAL PROCEDURE FOR RELIEF FROM JUDGMENT upon the Honorable Timothy W. Morgan 100 Northside Square, Huntsville, Alabama 35801.

ATTORNEY’S VERIFICATION UNDER OATH SUBJECT TO
PENALTY FOR PEJURY

I swear under penalty of perjury that upon information and belief, the forgoing petition, including Attachments A, B, C, and D is true and correct to the best of my knowledge and belief.

_______________________

D. Brent Morrison

Attorney for Petitioner

111 S. Main Street

Piedmont, Alabama 36272

(256) 447-0016

SWORN AND SUBSCRIBED before me this ____ day of ____________, 2004.

________________________

Notary Public

My Commission Expires:

________________________

TWENTY THIRD JUDICIAL CIRCUIT

FOR RELIEF FROM JUDGMENT

D. CONCLUSION

E. PRAYER FOR RELIEF

CERTIFICATE OF SERVICE