Grounds for Appeal

03/21/11

An Explanation of Her Innocence

The following is an excerpted summary of the legal brief filed with the North Carolina Appellate Court, by Dr. Theer's appointed Appellate Defender attorney, Daniel R. Pollitt. We extend our appreciation to attorney Pollitt for his dedicated effort on behalf of Dr. Theer. Additional information and commentary has been added for clarification.

In the legal commentary section is an editorial by Chicago Psychotherapist and legal author, Laurence Smith, who discusses imaginative prosecution conspiracy theories used in North Carolina courts as nothing less than a legal ticket for lynching a defendant.

Dr. Theer's first-degree murder and conspiracy convictions must be vacated because there is absolutely no evidence she was a perpetrator. Specifically, there is not a modicum of evidence Dr. Theer knowingly advised, instigated, encouraged, procured or aided convicted former paramour John Diamond to commit first-degree murder or entered into an agreement with Mr. Diamond to commit first-degree murder against her husband Martin Theer.

At trial, there was no evidence Dr. Theer herself committed an act of first-degree murder, and the murder case was tried solely on an accessory-before-the-fact theory that Dr. Theer allegedly aided and abetted Mr. Diamond. At the close of hearing all presented evidence, the Trial Court denied Dr. Theer's motion to dismiss both counts despite there clearly being insufficient evidence to sustain any credible charge(s) against her.

An essential element of first-degree murder by aiding and/or abetting is that the defendant knowingly advised, instigated, encouraged, procured, or aided the [principle] who committed the crime. State vs. Borden 345 N.C. ,24,478 S. E. 2^nd 163, 173 (1996).

An element of conspiracy to commit murder is the defendant "entered" into an agreement with [another] to commit the crime. State vs Merrill, 138 N.C. App.125, 218, 530 S.E. 2d 608, 611 (2000).

In the instant case, there is no evidence Dr. Theer knowingly encouraged or entered into any agreement with Mr. Diamond to commit first-degree murder.

First: There was no direct or indirect evidence Dr. Theer aided or encouraged Diamond. Given the State's repeated searches of Dr. Theer's residence and office, along with the seizure of more than 15,000 computer documents, the State's failure to come up with any direct/indirect evidence, even in the form of 1 computer record is extremely telling, and speaks volumes as to her innocence.

Second: The State could not provide any evidence that Dr. Theer advised, aided, or encouraged Mr. Diamond to commit any act against her husband Marty Theer. The State chose not to call the already convicted Mr. Diamond to testify, though his legal interests were hostile to Dr. Theer's at the time of the trial.

Third: There was no physical evidence against Dr. Theer, including no evidence of Dr. Theer's fingerprints, DNA, or saliva on any physical evidence found at the scene. There were no incriminating shoeprints, and the State's tracking dogs did not uncover any incriminating evidence. (Tpp. 610, 646, 2100) Indeed, the physical evidence was exculpatory: Michelle's gunshot residue and blood spatter tests affirmatively showed she was not near the shooting.

Fourth: There was no forensic evidence against Dr. Theer. Police admitted they did not canvass the immediate neighborhood area adjacent to the crime scene. They failed to perform fingerprint, forensic or DNA testing of the cartridge cases, ink pen,cigarette butts, glove, staircase railing, or exterior doors. Additionally, police did not have any expert(s) examine blood at the scene; rather, merely testing blood samples to determine if they were human.

Moreover, evidence showed that the police investigation was slipshod, to wit: police did not fully secure the crime scene, log officers on and off the crime scene, preserve the notes they took, obtain a videotape showing Dr. Theer's demeanor in the video rental store, or tape record Dr. Theer's interviews. Fireman hosed down the crime scene 4 hours after the shooting, negating any opportunity for experts to obtain further forensic evidence. The State lost victim Marty Theer's clothing, that likely held DNA evidence.

Fifth: There was no medical evidence ascertained against Dr. Theer.

Sixth: There was no evidence Dr. Theer ever admitted to anyone that she had any pre-knowledge of a plot to kill her Husband. Rather, Dr. Theer consistently and affirmatively maintained her complete innocence. She appeared absolutely horrified and shocked upon finding her husband lying shot on the driveway outside her office, according to the statements of all witnesses that evening.

Seventh: No evidence was produced that Dr. Theer discussed her husband in a negative way with convicted John Diamond. Dr. Theer was a decorated Air Force veteran who served our country during 2 different wars, did not have any prior criminal record, worked to help support her husband, and had a long history of volunteer work for the disadvantaged. Furthermore, there was no evidence Dr. Theer met with Mr. Diamond at any time in the days immediately prior to the shooting or talked to him on the telephone at any time after 4:00 p.m. on December 17th, the time she arrived at her office with her husband. (Tpp. 1359, 2824)

Still further, Dr. Theer's behavior and demeanor was perfectly innocent and loving as observed by Dr. Harbin on December 17th , while at dinner with her husband and others, just hours before his shooting. Dr. Theer did not flee, but instead reported the shooting and stayed at the scene at the time of the shooting. She displayed shocked emotion and genuinely grieved as any other wife finding herself in a similar horrifying situation would. She continued to do so in the hours and days after her husbands murder.

During the investigation, Dr. Theer completely cooperated with police, giving voluntary and consistent statements, and consented to the searches of her office, home and car. (Tpp. 1374, 1899).

Police found Michelles' keys and books inside her office just like she said they would. (Tpp.1903-04) Furthermore, undisputed evidence at the crime scene clearly showed Dr. Theer was innocent and had no role whatsoever in any alleged plot or shooting of her husband.

There was evidence of a struggle having occurred on the hood of shooting victim Martin Theer's car, indicating that his shooting did not occur as the State hypothesized. Notwithstanding, suspicious cigarette butts were found at the scene despite the fact that neither Dr. Theer or husband Marty Theer smoked.

Mr. Diamond knew where Dr. Theer worked, and was well aware of the environment surrounding her office, that included shrubbery, hedges, and the parking lot where he could come to ambush Martin Theer. The obsessed Diamond had lurked in this area on another prior occasion when jealously suspecting Dr. Theer was seeing another man. Even the e-mails ascertained by the State showed Dr. Theer thrice related to Mr. Diamond her desire to break off relations with him, and her intent to repair the marriage with her husband, Martin Theer.

E-mails sent by Mr. Diamond to Dr. Theer clearly showed disappointment and angst when learning Dr. Theer wanted to terminate her brief affair with him. Thus his mental state clearly shows him capable of becoming violent, and with his military background, capable of conceiving and executing an ambush plan on his own to execute Dr. Theer's husband.

There is absolutely no moral or legal justification for Dr. Theer being held responsible in any way for the criminal actions perpetrated solely by Mr. Diamond, simply because of a brief sexual relationship with him.

Finally: There was no evidence of Martin Theer's life insurance being a credible motive for Dr. Theer wanting her husband dead. In point of fact, Dr. Theer would have an overriding motive for Marty to live, as she had just recently learned that in 6 months hence upon her marriage lasting 10 years she could divorce her husband, if so eventuated, and legally receive a spouse’s share of 50% of his military retirement benefits.

Moreover, despite Dr. Theer's marital problems and an extra marital affair, she believed as a psychologist and a woman that if a marriage could not be repaired, the solution was divorce, most certainly not the murdering of a spouse. Evidence showed that Martin and Dr. Theer valued their marriage and had successfully maintained a non-violent relationship for over 13 years, starting when they first met in High School and became inseparable.

In sum: The State’s evidence against Dr. Theer consisted of nothing more than a not-so-perfect marriage at the time, that had resulted in Dr. Theer finding temporary solace in an extra marital affair. Dr. Theer's first-degree murder and conspiracy convictions are clearly not supported by any evidence, and clearly violate her 5^th and 14^th amendment rights, and therefore must be vacated.