No. WR-81, IN THE TEXAS COURT OF CRIMINAL APPEALS EX PARTE BERNHARDT TIEDE II

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1 WR-81, COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 6/17/2014 3:58:07 PM Accepted 6/18/2014 2:15:42 PM ABEL ACOSTA CLERK No. WR-81, IN THE TEXAS COURT OF CRIMINAL APPEALS EX PARTE BERNHARDT TIEDE II On Application for Writ of Habeas Corpus from the 123rd Judicial District Court of Panola County, Texas Cause No C-103-A MOTION FOR LEAVE OF COURT TO FILE AMICUS CURIAE BRIEF Charles Chad Baruch Texas Bar Number LAW OFFICE OF CHAD BARUCH 3201 Main Street Rowlett, Texas Telephone: (972) Facsimile: (972) Counsel for Amicus Curiae Family of Marjorie Nugent

2 TO THE HONORABLE TEXAS COURT OF CRIMINAL APPEALS: Before an admitted murderer goes free, someone should speak for his elderly victim and the jury s verdict if the State will not. The family of Marjorie Nugent seeks leave to file an amicus curiae brief on the following grounds: 1. Bernhardt Tiede II murdered elderly widow Marjorie Nugent in Tiede shot Marjorie in the back, stuffed her body into a freezer, and sealed it with duct tape. He then spent several months living comfortably off her substantial assets before authorities discovered the body. 2. A San Augustine County jury convicted Tiede of murder and sentenced him to life in prison. The conviction and sentence ultimately were upheld on direct appeal. 3. In 2011, Richard Linklater directed the film Bernie, starring Jack Black, Matthew McConaughey, and Shirley MacLaine. The film is a dark comedy glorifying Tiede and vilifying his elderly victim Marjorie. Linklater also began advocating for Tiede s release. 4. Panola County District Attorney Danny Buck Davidson portrayed in the film by McConaughey prosecuted Tiede. A Google Photo 1

3 search of Davidson s name reveals several photographs of him socializing and attending events with Linklater and McConaughey. 5. In January 2014, Tiede sought state habeas relief. Davidson did not oppose the habeas petition instead, he agreed to it. 6. During the hearing on Tiede s petition, the trial court specifically asked Davidson if Marjorie s family conspicuously absent from the hearing had been notified. Davidson replied that the Nugent family had indeed been notified. That is untrue; the Nugents learned of the hearing from a reporter seeking comment on it and did not learn of the date and time until it was too late to attend (Exhibit A). The family has had no opportunity to provide its input on Tiede s request. 7. The trial court has recommended granting habeas relief and has released Tiede on bond. Tiede now is living in Linklater s home in Austin. He has served less than 20 years of his life sentence. 8. In his petition, Tiede asserts two grounds for relief: newly available evidence and presentation of false evidence at trial. Both grounds rest on Tiede s recent decision to reveal what he claims was (1) childhood sexual abuse, and (2) abuse by Marjorie. Tiede contends this evidence 2

4 would have provided additional support for his claim that he murdered Marjorie during a dissociative event. 9. The family believes that Tiede s petition is legally insufficient to entitle him to habeas relief for a variety of reasons. For example, Tiede advances his newly available evidence claim without any claim of actual innocence a basis for habeas relief not previously recognized by this Court. Moreover, this newly available evidence consists entirely of information known to Tiede at the time of trial. In other words, Tiede advances the novel proposition that a criminal defendant may conceal information known to him from his lawyers at trial, then rely on that same information as newly available evidence in seeking habeas relief. The family seeks leave to make these arguments, and others, through an amicus curiae brief. 10. At minimum, this Court should have the benefit of hearing both sides of the argument concerning Tiede s petition. No one can be harmed by permitting presentation of countervailing arguments. To the contrary, presentation of additional facts and legal authorities would serve the ends of justice. Marjorie Nugent and the citizens of Texas deserve better than to have a confessed murderer set free without anyone even articulating to this Court the reasons why that might not be appropriate. 3

5 11. The following members of Marjorie Nugent s family will join in this brief: Dr. Rod Nugent (Marjorie s only child), Alexandria Lynn Nugent (granddaughter), Susan Nugent Jenull (granddaughter), Shanna Nugent Cobbs (granddaughter), and Mathew Tod Nugent (grandson). The family has retained the undersigned counsel and is paying him to prepare the brief. 12. Neither counsel for the State nor Tiede responded to inquiry as to whether they opposed this motion. Based on the foregoing, the Nugent family seeks leave of this Court to file an amicus curiae brief regarding Tiede s request for habeas relief and asks that this Court set a due date for that brief around 20 days from the time it grants this motion. Respectfully submitted, /s/charles Chad Baruch THE LAW OFFICE OF CHAD BARUCH 3201 Main Street Rowlett, Texas Telephone: (972) Facsimile: (972) baruchesq@aol.com Counsel for Amicus Curiae Family of Marjorie Nugent 4

6 CERTIFICATE OF COMPLIANCE The undersigned certifies that that this motion was prepared using Microsoft Word for Mac, and that the software program word count tool indicates that this motion contains a total of 3,671 words exclusive of the cover, signature block, and certificates. /s/charles Chad Baruch CERTIFICATE OF CONFERENCE The undersigned certifies that he attempted to confer with Jodi Cole, attorney for Petitioner Bernhardt Tiede II, and Danny Buck Davidson, District Attorney for Panola County. Specifically, counsel ed Ms. Cole on June 14, 2014, and ed Panola County ADA Ken Hill on June 16, 2014, asking if they opposed this motion. As of 3:45 p.m. on June 17, Ms. Cole had not responded. Mr. Hill responded only to say he was inquiring about the matter, but did not subsequently provide any substantive response. CERTIFICATE OF SERVICE /s/charles Chad Baruch The undersigned certifies a true and correct copy of this instrument was served this 17th day of June, 2014, upon the following counsel of record: Jodi Callaway Cole Counsel for Bernhardt Tiede II By to jcole@jodicole.com Danny Buck Davidson Counsel for the State of Texas By to Assistant District Attorney Ken Hill at ken.hill@co.panola.tx.us /s/charles Chad Baruch 5

7 EXHIBIT A

8 AFFWAVIT OF RODERICK M. NUGENT, JR. THE STATE OF TEXAS COUNTY OF DALLAS Before me, the undersigned, on this day personally appeared Roderick M. Nugent, Jr., who is personally known to me and first duly sworn according law upon his oath deposed and said: I. "My name is RODERICK M. NUGENT, JR; I am over twenty-one (21) years of age. I have resided in Dallas Texas since 2006, I have never been convicted of a felony, and I am fully competent to make this affidavit. 2. I, Roderick M. Nugent, Jr. being duly sworn, upon oath state that to my knowledge and in good faith do hereby declare that on or before May 6, 2014, neither I nor my family was contacted and no attempt was made to contact me or my family, by District Attorney Danny Buck Davidson, or anyone in his office, or on his behalf regarding new information or developments in the criminal case against Bernhard Tiede, II, the man convicted of my mother's murder. I was informed of the hearing regarding the Writ of Habeas Corpus by my wife, who was called a couple of hours before the hearing by a cojleague, who was informed of the hearing by a reporter for the Texas Tribune. We found out the time of the hearing just a couple of hours before it was set to begin, without enough time to make the trip to attend. fit day of June, ~ STATE OF TEXAS DALLAS COUNTY ACKNOWLEDGEMENT SWORN TO AND SUBSCRIBED BEFORE ME by Roderick M. Nugent, Jr., who personally appeared before me on this day. Witness my hand and office seal or this the..j1l_ day of June, L-+-'~~="!'Ul.(~ -~(SEAL) fr rp/ } Notary Public for the State of Texas My Commission expires: S.Z k 11