google72e8d42b171b09c8.html
wrongful conviction, wrongfully convicted, false
conviction, miscarriage of justice, false
identification, kevin thornton, sex offender, rape,
San Diego, reasonable doubt, Fifth Amendment,
rape of an intoxicated person, lifetime sex offender
registration, jury nullification, attorney misconduct,
presumed innocent, justice for wrongly accused
conviction, miscarriage of justice, false
identification, kevin thornton, sex offender, rape,
San Diego, reasonable doubt, Fifth Amendment,
rape of an intoxicated person, lifetime sex offender
registration, jury nullification, attorney misconduct,
presumed innocent, justice for wrongly accused
Kevin's Legal Arguments
 | |  | |  | |  | |  | |  | |  |
1. No Indictment for Charge for which Petitioner was convicted
The prosecution did not prove beyond a reasonable doubt that Thornton committed rape. The jury based
its conviction of Kevin Thornton on an aiding and abetting clause it did not understand, and essentially
convicted Thornton of a crime for which he was never charged. Given any defendant’s constitutional right
to know the nature and cause of all accusations, Thornton’s rights were violated when he was unable to
defend himself against an aiding and abetting charge.
A. Kevin Thornton was never charged with aiding and abetting, but was essentially convicted of it,
according to the jury.
Every defendant has a constitutional right to know the nature of the charges against him. The grand jury
clause of the Fifth Amendment provides that a defendant may be tried only on the grand jury’s
indictment, which may not be broadened through an actual or a constructive amendment.
Kevin Thornton was simply never charged with aiding and abetting, yet was convicted of it.
A constructive amendment of a grand jury indictment occurs when the defendant is charged with one
crime but, in effect, is tried for another crime or when the crime charged is substantially changed at the
trial, so that it becomes impossible to know whether the grand jury would have indicted for the crime
actually proved or when the evidence at trial supports a crime other than the one charged in the
indictment.
The prosecution in this case did not bother to change the nature of the charges against Kevin Thornton,
but the jury made it clear that it was aiding and abetting, not rape, that they believed Kevin Thornton
had committed.
However, absent an actual charge or indictment of aiding and abetting rape, Kevin Thornton cannot and
could not then have been found guilty of such a crime.
This letter, written by the foreman of the jury, stated “it was even more frustrating to find Kevin Thornton
guilty of rape of an intoxicated person. Many of us agreed that there was reasonable doubt to question
whether he actually had sexual intercourse with Sara. However, we reached a guilty verdict due to the
aiding and abetting clause because of the verdict we had reached on Lofton Rigby.” (Emphasis added)
This statement could not be clearer. Again, Kevin Thornton was never accused of, nor indicted on a
charge of, aiding and abetting. Obviously, the jury believed there was reasonable doubt that Kevin
Thornton was a rapist.
No charge or contention whatsoever relating to aiding and abetting was ever mentioned to the jury or the
judge, or ever documented by the prosecuting district attorney.
B. Kevin Thornton was never charged with aiding and abetting, and therefore could not defend
himself against that charge.
If, in fact, the jury could have determined through other testimony and evidence that Thornton aided and
abetted Lofton Rigby in raping Sara, it could be argued that due to Thornton’s own state of extreme
intoxication, he did not do so voluntarily. If he had been charged with aiding and abetting, he would
have had the opportunity to present a defense – but he was not charged and did not have an opportunity
to defend himself against an aiding and abetting charge. This letter was a rare and clear statement that
the conviction that had just been handed down had been in error. It should have, at the least, qualified
the case for a new trial. Yet it was ignored and the life of an innocent man was ruined.
Habeas Corpus is proper in this case, and Kevin Thornton’s conviction is void, because he was never
presented or indicted on the charge which the jury he believed he had committed. Case law has held
that if the crime for which the defendant stands convicted is one for which he could be held to answer
only on the presentment of a grand jury, and he was not indicted or presented, his conviction is void and
he may be released on Habeas Corpus.
The Fifth Amendment guarantees a defendant the right to stand trial only on charges made by a grand
jury in its indictment. An indictment safeguards the defendant’s Fifth Amendment right to be prosecuted
only on charges considered and facts found by a grand jury. Thornton’s constitutional rights were violated.
C. The Court erred in improperly instructing the jury and refusing to grant a new trial when it knew the
jury was confused.
The Court erred in improperly instructing the jury before the start of the trial, particularly with regards to
the term “aiding and abetting,” disregarding a letter from the jury, and denying a motion for a new trial
after learning that the jury did not believe Thornton had committed rape.
The judge erred in failing to grant a new trial or enter a judgment despite the jury’s verdict. The jury
clearly convicted Kevin Thornton of a crime that a) he was not charged with; and b) that they did not
understand.
The Court erred in improperly instructing the jury before the start of the trial, particularly with regards to
the term “aiding and abetting.” Clearly from the inference of the letter written by the jury to the judge, a
most unusual step in itself, the jury convicted Kevin Thornton of aiding and abetting. Obviously they did
not understand the law. If they believed Thornton was unable to stop Rigby from raping Sara B., or even if
they falsely believed he encouraged Rigby to rape her, it was enough to think he aided and abetted
Rigby. But they clearly did not think he was a rapist, and the jury stated clearly they believed there was
reasonable doubt.
In some jurisdictions, a cautionary instruction that the accusation of rape is easy to make, but hard to
defend against, is applicable only if there is no corroborating evidence of the victim’s account of the
rape incident. There was no evidence of Kevin Thornton’s guilt other than the uncorroborated and shaky
testimony of the victim, yet no such instruction to the jury was offered by the court or requested by
Thornton’s ineffective counsel.
There was simply not enough evidence to convict Kevin Thornton of rape, and the law makes it clear that
Habeas Corpus is proper in this case – and applicable due to the circumstances.
The constitutional requirement prohibiting criminal conviction of any person except upon proof of guilt
beyond a reasonable doubt can be effectuated only if a Habeas Corpus court, in assessing the
sufficiency of evidence to support a state court conviction, inquires whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the beyond a reasonable doubt.
Even in a light most favorable to the prosecution, there was reasonable doubt about Kevin Thornton’s
guilt. Clearly, the triers of fact had been confused about the charges and did not believe the State had
proven beyond a reasonable doubt that Thornton was a rapist.
D. Kevin Thornton’s name was simply added to the crimes of the real rapist, who was also a violent
criminal.
The only evidence against Kevin Thornton in this case, other than the testimony of the real rapist, Lofton
Rigby, was the accusation of the victim, which she did not support later during the trial.
During her description of the rape, the victim described hearing voices and hearing the car door open,
and believing that Kevin Thornton had switched places with Lofton Rigby, so her head was now on Rigby’
s lap while Thornton raped her. In fact, she could not at any point positively identify Thornton as her
attacker, and while she was being raped by Rigby, her head was on Thornton’s lap, and the only time her
head was not on Thornton’s lap was when Thornton was trying to help her and put her clothes back on.
Sara B. identified Thornton as her rapist because he was the only person of the three men in the car
whom she knew, and because he was trying to put her pants back on when she woke up.
Petitioner believes that Sara B., due to her state of extreme intoxication, was mistaken in her
identification of Kevin Thornton, and that when the victim described being raped while her head was on
someone’s lap, it was Thornton’s lap because Thornton, too, was passed out – and Rigby was the sole
rapist.
Thornton has declared that her head was on his lap as they both were passed out, when Lofton Rigby was
raping Sara B. as they both drifted in and out of consciousness.
After the rape was committed, the victim had run away, and Rigby and Gilbert dropped Thornton off at
home, Rigby committed assault and armed robbery against an unarmed man).
Police believed that Rigby had gang affiliations, and still he was tried alongside an 18-year-old who had
never been in any trouble before.
Thornton was in the wrong place at the wrong time, and was a dumb kid – he is not a rapist or a criminal.
E. The Court erred in refusing to sever Kevin Thornton’s case from that of a violent predicate
criminal, who had admitted to the rape.
A motion was made to sever Lofton Rigby’s case from that of Kevin Thornton, and was denied. Kevin
Thornton’s name was thereafter attached to everything with which Lofton Rigby was associated, and
Rigby’s crime was attributed to Thornton.
The court erred in refusing to sever the two defendants, and that error led to a substantial prejudicial,
injurious effect in determining the jury’s verdict. According to case law, misjoinder requires reversal if it
results in actual prejudice by having a substantial and injurious effect or influence in determining the jury’
s verdict . In this case, the misjoinder clearly influenced the jury unfairly, as Kevin Thornton was
convicted solely because of his association with Rigby.
At the end of the trial, the jury clearly misunderstood its instructions, and convicted Kevin Thornton based
on a clause about aiding and abetting that they did not understand. The jury did not believe Thornton
had committed rape, yet he suffers every day with the modern-day scarlet letter of a rapist, and he will for
the rest of his life.
2. Denied the Full Benefit of Counsel
Thornton’s court-appointed counsel was inadequate and unable to defend Thornton properly against the
charges. Case law has held that where counsel appointed is so grossly lacking in appreciation of his
responsibility that the defendant has virtually no representation and is accordingly denied the full benefit
of his right to counsel, the defendant is entitled to release on habeas corpus.
A. Case law holds that when a defendant has no representation due to his attorney’s inadequacy, Habeas
Corpus is proper.
The State of California and the County of San Diego erred in the assignment of an incapable, overworked
and unconcerned public defense attorney. Thornton’s attorney forgot his client’s name or confused him
with his co-defendant (whom he did not represent) multiple times just in the course of the recorded trial
transcript.
This attorney also believed Thornton was guilty and tried to convince him to plead guilty, then
vehemently recommended that Thornton should not testify on his own behalf. The jury never heard a
defense for Thornton.
This failure of Edward J. Peckham was compounded by the perjury committed by Lofton Rigby (Kevin
Thornton’s co-defendant) and the nature of the crime. Proof was not needed, nor was it provided. As in
many rape cases, the suspect was presumed guilty and could not prove himself innocent.
Petitioner Kevin Thornton believes and is informed that Edward J. Peckham was grossly lacking in his
appreciation of his responsibility toward his client. He failed to convince a judge that the cases should
have been severed, and only called one completely ineffective character witness (who had never seen
Thornton intoxicated and was not present that night). He left Kevin Thornton with absolutely no defense
against the heinous felony charges.
B. Peckham pinned his client’s defense on the only other witness, who exercised his Fifth
Amendment rights and did not testify.
Before the trial, Thornton was assured by Pierre Gilbert, the only other person in the car other than the
defendants and the victim that night, that he would testify on Kevin Thornton’s behalf and tell the Court
that Thornton never touched Sara. Kevin Thornton’s mother, Theresa, was present for that conversation,
as detailed in her declaration.
Thornton was assured by his lawyer that Gilbert’s testimony, and the fact that there was no evidence other
than the eventual statements of a very drunk victim and his co-defendant, would secure his acquittal.
Thornton was advised strongly to not testify in his own defense.
Pierre Gilbert, the only witness to the rape who was not charged, exercised his Fifth Amendment right to
not testify and incriminate himself. The young men learned that the district attorney planned to charge
Pierre Gilbert for providing condoms and driving to the secluded area where Sara B. was raped – a
location he already knew about. He told the police he never saw either defendant rape the victim.
C. Only one witness was called in Kevin Thornton’s defense, a witness who was not present that
night and had never seen Thornton under the influence of alcohol.
The only witness called to testify on Thornton’s behalf was a single character witness, a high school
librarian who also had sons Kevin’s age and who knew him well. However, she was not present the night of
the rape and had never seen Thornton under the influence of alcohol. Her testimony was less than
productive.
That librarian, Dora Maher, was the only witness for Kevin Thornton, and effectively left Thornton without
a defense in court. Edward Peckham was late and unprepared for hearings, did not adequately prepare
the single witness he called, and seemed generally unconcerned with his client’s future. Given that
Maher was the only witness who actually testified for Kevin Thornton, her testimony effectively was
Thornton’s defense – and did nothing to help his case. The way her testimony was handled effectively left
Thornton without a defense.
No other character witnesses – even his mother, a devout Christian and single working mother who had
raised four children, or his twin sister, who could testify to any tenet of his personality – were called. This
was a blow to Kevin Thornton’s family, who was forced to sit and watch as their son and brother was
convicted of a crime he did not commit, and neither they nor Kevin could do anything to stop it.
No one other than Thornton, Gilbert, the actual rapist and the victim were in the car that night. Lofton
Rigby, the actual rapist, testified that Sara B. had consented to sex (although she was unresponsive), and
perjured himself further when he stated that Kevin Thornton had intercourse with Sara B. after Rigby was
done.
D. Peckham should have argued to exclude Thornton’s interrogation video as evidence and called
his client to the witness stand.
Thornton voluntarily came to the police station after the rape took place. He gave a full account of his
actions that evening, and did not refuse to answer any questions, although he was told that it would look
suspicious if he did. Obviously he was entitled to counsel, but was told that he was not under arrest and
that he didn’t need representation.
According to the law, two discrete inquiries are essential to the determination of whether a suspect was in
custody at the time of the interrogation: first, what were the circumstances surrounding the interrogation,
and second, given those circumstances, would a reasonable person have felt he or she was not at liberty
to terminate the interrogation and leave .
Kevin Thornton did not feel at any time that he was at liberty to terminate the interrogation and leave. He
did not even know that he had a constitutional right to do so. He voluntarily went to the police station,
thinking he could clear up the misunderstanding.
He also has turned 18 about two weeks before, and did not have a parent or an attorney present. Like most
18-year-olds, Kevin Thornton had no clue about the justice system or police practices. The police officer
interrogating him even commented on how young Thornton was at the time and that he was “barely 18."
Under the Miranda rule , the right to remain silent during a custodial interrogation and the right to the
presence of an attorney during custodial interrogation may be waived if the waiver is made knowingly,
voluntarily, and intelligently.
Kevin Thornton was not intelligently informed as to what the police officers planned to do, or of the fact
that he was entitled to an attorney before he was officially arrested. He may have waived his right to
counsel voluntarily, but it was not waived knowingly or intelligently.
Kevin Thornton also volunteered a sample of his DNA to compare to the findings from the victim. During
the course of this interview, the investigating officer convinced Thornton that the results were back from
the laboratory (less than 30 minutes later) and that his DNA was found in the victim’s vagina.
There was, in fact, no DNA found in Sara B.’s vagina. Once the test was complete (weeks later), Kevin
Thornton’s DNA, from his saliva, was found to be on the victim’s breasts. Thornton he had already
admitted to sucking and licking on her breasts earlier in the evening.
After another 10-15 minutes of threats and lies regarding the findings and what would happen to Thornton
if he was guilty of rape, he admitted to touching her vagina with his penis, which Thornton never did.
He thought, at 18 years old, that this admission was what the investigating detective wanted to hear, and
that if he never actually penetrated her, he would not be found guilty of rape.
Kevin Thornton had no idea what the law was or what the proper legal procedure was for a criminal
investigation. He even believed the detective when she told him that the DNA analysis was done in less
than 30 minutes.
This interrogation video was the main argument that Peckham provided to Thornton when he vehemently
recommended that Thornton not take the stand. Instead, he should have moved to exclude the video in
its entirety as evidence due to the Miranda violations, and removing all cause for charges against his
client.
At the least, he should have put Thornton on the stand and asked for an explanation from him about why
he lied to the police on the tape. The jury could have reasoned that Thornton was too naïve to know what
the police were doing.
Thornton’s voice has never been heard prior to this petition.
E. Peckham never took any time after the verdict to inquire about his client’s wishes, never filed an
appeal, and never informed Kevin Thornton of the statute of limitations to file an appeal.
After the verdict, Kevin Thornton was sentenced to serve a calendar year in jail, and was immediately
transferred to San Diego County jail. He never spoke to his attorney, Edward Peckham, after the verdict
and although he attempted contact, his calls were never returned.
Again, Thornton was very naïve – he was 18 years old and had no idea about statutes of limitations
regarding appeals. He assumed for years after his conviction that Peckham was appealing the rulings.
Peckham was not doing any post-conviction work on Kevin Thornton’s case and had not inquired as to his
client’s welfare or desires for an appeal. If Peckham had bothered to inquire about his client, Thornton
would have instructed him to file an appeal on his behalf immediately.
In October of 2005, Kevin Thornton discovered that no appeal had been filed – and worse, that there was
no possibility of an appeal due to time limitations. As Petitioner was preparing this document and
gathering supporting evidence, Peckham told Thornton that all he had to do was write a letter to his
lawyer while he was incarcerated and ask for an appeal.
The only appeal of this conviction was made by Lofton Rigby’s attorney, and was denied because Rigby
admitted to sexually penetrating the victim while she was too drunk to resist.
3. Reasonable Doubt of Guilt and Lack of Mens Rea
Thornton was too intoxicated to have the necessary Mens Rea to commit the act, and the court erred in
not providing cautionary instructions to the jury regarding an intoxication defense and the ease of
charging rape and the difficulty in defending oneself of the charge.
A. Thornton was too intoxicated to form the requisite specific intent.
All of the witnesses to the events of September 7, 2001, including the victim and the defendants, were
intoxicated. Witnesses testified that the victim was drinking enormous quantities of alcohol, and that she
was so intoxicated that she could not stand up straight, vomited profusely, and even vomited blood.
Witnesses also testified that Kevin Thornton was drinking heavily and smoking marijuana that night, and
that he passed out from the alcohol and drugs. He has also testified that he was too intoxicated to stop
Lofton Rigby from assaulting the victim.
Due to the intoxicating effect of the alcohol and drugs that he consumed that evening, Thornton lacked
the essential mens rea to commit forcible rape. Although his intoxication was voluntary, it prevented him
from forming the specific intent needed to rape an intoxicated and unconscious victim.
B. The State never proved beyond a reasonable doubt that Kevin Thornton had raped Sara B., nor did
it prove that he had specific intent.
Specific intent is defined as the accused’s particular purpose or specific intention in doing a prohibited
act, which must be alleged and proven by the state in a prosecution for a crime requiring specific intent.
Such intent was never shown or proven with regards to Kevin Thornton.
Specific intent is required for certain crimes, including rape (see State v. Mundry , 99 Ohio App. 3d 275,
650 N.E. 2d 502), and that the defendant is entitled to an instruction to the jury about intoxication as a
defense to the charges.
No such instruction was ever offered to the jury, but was proper and needed in this case. This petition is
proper, and review of this case and the jury’s intentions is allowable.
Recent case authority suggests that in Habeas Corpus proceedings the court may look to the sufficiency
of the evidence, but its review is a limited one, focusing not on whether the trier of fact made the correct
innocence or guilt determination, but rather on whether it made a rational decision to convict or acquit.
Given the insufficiency of the evidence against Kevin Thornton, reversal of the conviction and release
under Habeas Corpus is proper and just. In a Habeas Corpus proceeding in which a prisoner challenges
sufficiency of evidence supporting his conviction, the petitioner is entitled to a determination whether the
record evidence could support a finding of guilt beyond a reasonable doubt.
C. The State never proved beyond a reasonable doubt that Kevin Thornton was guilty.
The burden on the prosecution in order to establish the general criminal intent required for first-degree
sexual assault is to prove beyond a reasonable doubt that the accused subjected another person to sexual
penetration and overcame the victim by force, threat of force, coercion or deception.
The evidence against Kevin Thornton presented at trial amounted to the identification made by an
extremely inebriated victim and a predicate criminal who was trying to deflect the charges away from
himself. Petitioner believes that the victim, due to her state of extreme intoxication, was mistaken in her
identification of Thornton, and that when the victim described being raped while her head was on
someone’s lap, it was Thornton’s lap because Thornton, too, was passed out – and Rigby was the sole
rapist.
Kevin Thornton has declared that her head was on his lap as they both were passed out, when Lofton
Rigby was raping her as she and Thornton drifted in and out of consciousness.
4. Denied a New Trial after Triers of Fact Made Evidentiary Error
The court erred in denying a motion for a new trial after receiving a letter from the jury stating that the
members did not believe Kevin Thornton had committed rape. Reviewing the evidence and the process of
justice in this case is just and proper.
A. The Court had evidence through the letter that the jury believed its verdict was in error.
The judge erred in failing to grant a new trial or enter a judgment despite the jury’s verdict. The jury
clearly convicted Kevin Thornton of a crime that a) he was not charged with; and b) that they did not
understand.
Habeas Corpus is proper in this case, because recent case authority suggests that in Habeas Corpus
proceedings the court may look to the sufficiency of the evidence, but its review is a limited one,
focusing not on whether the trier of fact made the correct innocence or guilt determination, but rather on
whether it made a rational decision to convict or acquit.
This court may, therefore, examine the sufficiency of the state’s evidence to determine whether the jury’s
decision was rational. Clearly the jury’s decision was irrational and was changed soon after the verdict
through that letter, and clearly there was insufficient evidence to sustain a conviction.
B. The jury’s letter was unprecedented, and an excellent reason to grant a new trial.
Clearly from the inference of the letter written by the jury to the judge, a most unusual step in itself, the
jury convicted Kevin Thornton on aiding and abetting. Obviously they did not understand the law.
If they believed Thornton was unable to stop Rigby from raping Sara, or even if they falsely believed he
encouraged Rigby to rape her, it was enough to think he aided and abetted Rigby. But they clearly did
not think he was a rapist.
Now, especially for Kevin Thornton, a conviction of rape is a permanent and glaring scar.
As stated in the jury’s letter and reiterated in Lofton Rigby’s motion for a new trial, the jury did not follow
the law when they arrived at a verdict in this case. Re-examining the evidence and the jury’s post-verdict
change of heart in this case is proper and necessary.
5. The Stigma of a Registered Sex Offender is not Fair When Justice was Denied
Thornton has served hard time and probation for a crime that the State could not prove beyond a
reasonable doubt that he committed. This Petitioner only asks for his name to be cleared so that he can
enjoy a normal adult life and not carry the stigma of being labeled a sex offender.
A. Kevin Thornton made mistakes that night and during the investigation, but is not a rapist.
Kevin Thornton was in the wrong place at the wrong time, and was a dumb kid – he is not a rapist or a
criminal. He has taken responsibility for every mistake he made the night that Sara B. was raped, and has
more than paid for all of his transgressions. He simply is not a rapist and does not deserve the scarlet letter
of a sex offender to be branded on himself and his family for the rest of his life.
Thornton has served over a year of hard time and an additional four years of probation for a crime that
the State could not prove beyond a reasonable doubt that he committed. There was very clearly a
reasonable doubt of Thornton’s innocence. But people suspected of rape are very rarely presumed
innocent until proven guilty – and in this case, Kevin Thornton simply could not prove himself innocent.
At the time of the crime, he was barely an adult and had no knowledge whatsoever of the legal system or
the fate that awaited him in a felony criminal trial, and later in jail and on probation. Thornton has been
living under probation for the past four years, all the while believing that his attorney was pursuing an
appeal – not knowing the statute of limitations had long passed. All he wants is a fair chance to move on
with his life.
B. This false conviction has ruined the life of an innocent man and has not allowed him to move
forward as any other person his age.
As a result of this conviction, for which he should have never been convicted based on standard of proof,
Thornton has been unable to pursue any semblance of a normal adult life. He cannot attend a normal
college unless he lies on the application about being a felon and a sex offender, and cannot hold a job
long enough to afford college due to his record.
Kevin Thornton cannot get a good job – or any job that requires a college degree, and has been faced
with the utter desperation of not being able to fix the situation and even keep himself out of debt.
While he was standing trial for the rape charges, Kevin Thornton was waiting to be sent to basic training
for the United States Army. He had tested and taken an oath to serve immediately after graduation, and
had planned to serve his country even before the rape took place and he was falsely accused. Thornton
volunteered for a unit that was almost guaranteed to be sent to fight in Iraq – before the rape and before
the terrorist attacks just a few days later on September 11, 2001.
Five years after the rape took place, and almost six years since he was convicted, Kevin Thornton is in
debt and forced to register as a sex offender everywhere he goes. He cannot afford to live a normal life
with a regular job due to his record and is in debt because he cannot hold a job. He has no degrees or
qualifications for most careers, nor does he have the money to attend college classes. If he had not been
railroaded by the police, failed by his public defender and unjustly convicted, he would have served his
country and gone to college on the G.I. Bill.
C. This false conviction also led to Kevin Thornton being unjustly convicted of a Penal Code §290
violation.
In early 2006, after six months of being unemployed and being turned down for literally hundreds of jobs,
he lied on an application about his felony conviction and was a model employee by all accounts -- until
the background check came back and he was fired for lying on the application about his conviction. After
the loss of that income, he was unable to make his car payments and his car was repossessed by the
finance company.
He used his fiancée’s vehicle to get to his other part-time job, and Thornton and his fiancée planned to
move in together at the end of May, 2006. Because he occasionally stayed at her apartment and used
her car to get to work, he was arrested at her home on May 4, 2006, for failing to register her apartment as
a place of residence, although he did not live there.
He was charged with a felony §290 violation and held in San Diego County Jail for two and a half
months, losing thousands of dollars in wages and forcing his plans to live with his fiancée to be
postponed. The arrest also forced his fiancée to be homeless for nearly two months due to the financial
hardship caused by his arrest.
D. The District Attorney dropped a felony “strike” against Thornton after reviewing the merits of the
instant case, the original rape charge and conviction.
After writing letters for weeks to the District Attorney’s office about the problems with his original
conviction and the nature of the crime for which he was convicted, including the fact that the original
prosecutors recommended probation for a serious felony in this instant case, the district attorney agreed
to drop the “strike” and allow Thornton to be released with a probation modification.
The statements of North County Assistant District Attorney David Greenberg made to Honorable Judge
Michael Kirkman show that even Thornton’s biggest detractors did not believe he was dangerous.
On July 14, 2006, Greenberg told the court during Thornton’s change of plea hearing, in relevant part,
“… the reason the people are dismissing the strike offense is because the underlying crime itself is not the
most aggravated of charges as it can be in other situations.”
In light of other evidence – or lack thereof – and the testimony herein, this shows that upon review of this
instant case, any reasonable person even slightly knowledgeable in the law would know that the
conviction was false and unjust.
6. Habeas Corpus is proper in this case despite the delay in filing
The delay in making and filing this application is excusable. Habeas Corpus is proper because the
Petitioner can explain the delay and the delay is not prejudicial to the Respondent.
A. Kevin Thornton did not know that his lawyer had failed to file an appeal and that his time limit for
an appeal had expired while he was incarcerated.
A petition for writ of Habeas Corpus filed by a prisoner may be dismissed if it appears that the state of
which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in
its filing, unless the petitioner shows that it is based on the grounds of which he or she could not have had
knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state
occurred.
Petitioner will concede that this petition is untimely, but the petitioner was unable to know while he was
incarcerated that the clock was ticking and would soon run out with respect to his ability to appeal his
conviction. The exercise of reasonable diligence in this case was impossible for Kevin Thornton, as he
was incarcerated and his attorney was not communicating with him. He had no way to know that his
attorney had failed to appeal.
After the verdict, Kevin Thornton was immediately transferred to jail. He never spoke to his attorney and
his calls were never returned. Thornton had no idea about statutes of limitations regarding appeals, and
assumed for years after his conviction that Peckham was appealing the rulings.
In October of 2005, Kevin Thornton discovered that no appeal had been filed – and worse, that there was
no possibility of an appeal due to time limitations. This petition for writ of Habeas Corpus is the only
legal remedy that still exists for Kevin Thornton.
B. The State is not prejudiced in its ability to retry the petitioner due to the delay in filing this petition.
Prejudice to the state in its ability to retry the petitioner because of a delay in filing is not a valid ground
for dismissal of the petition; the District Court is limited to determining whether the state has been
prejudiced in its ability to address the issues raised in the petition.
The state has ample evidence regarding this case and the prosecution of Kevin Michael Thornton, much
of which was reopened when Thornton was arrested for a §290 violation in May of 2006. It was easy for
David Greenberg to locate the case file and come to the conclusion that a felony strike was not warranted
in Thornton’s §290 case. It was easy for Petitioner to locate the supporting documentation attached
herein from Edward Peckham and the San Diego Superior Court. If this court should deem it proper to set
a hearing to determine the merits of this petition, the State will not be prejudiced in its abilities to address
the issues raised herein.
C. Granting Habeas Corpus to Kevin Thornton is in the interests of justice and is proper.
Kevin Thornton has become the second victim in this case. He was tricked prior to arrest, he was failed by
his public defender, and he was convicted without any proof. There was very clearly a reasonable doubt
of Thornton’s innocence. But Kevin Thornton simply could not prove himself innocent.
American jurisprudence has held that it is better for one hundred guilty men to go free than for one
innocent man to be convicted of a crime he did not commit. There was clearly reasonable doubt, yet the
life of an innocent man was ruined almost beyond repair.
The prosecution did not prove beyond a reasonable doubt that Thornton committed rape. The jury based
its conviction of Kevin Thornton on an aiding and abetting clause it did not understand, and essentially
convicted Thornton of a crime for which he was never charged. Given any defendant’s constitutional right
to know the nature and cause of all accusations, Thornton’s rights were violated when he was unable to
defend himself against an aiding and abetting charge.
A. Kevin Thornton was never charged with aiding and abetting, but was essentially convicted of it,
according to the jury.
Every defendant has a constitutional right to know the nature of the charges against him. The grand jury
clause of the Fifth Amendment provides that a defendant may be tried only on the grand jury’s
indictment, which may not be broadened through an actual or a constructive amendment.
Kevin Thornton was simply never charged with aiding and abetting, yet was convicted of it.
A constructive amendment of a grand jury indictment occurs when the defendant is charged with one
crime but, in effect, is tried for another crime or when the crime charged is substantially changed at the
trial, so that it becomes impossible to know whether the grand jury would have indicted for the crime
actually proved or when the evidence at trial supports a crime other than the one charged in the
indictment.
The prosecution in this case did not bother to change the nature of the charges against Kevin Thornton,
but the jury made it clear that it was aiding and abetting, not rape, that they believed Kevin Thornton
had committed.
However, absent an actual charge or indictment of aiding and abetting rape, Kevin Thornton cannot and
could not then have been found guilty of such a crime.
This letter, written by the foreman of the jury, stated “it was even more frustrating to find Kevin Thornton
guilty of rape of an intoxicated person. Many of us agreed that there was reasonable doubt to question
whether he actually had sexual intercourse with Sara. However, we reached a guilty verdict due to the
aiding and abetting clause because of the verdict we had reached on Lofton Rigby.” (Emphasis added)
This statement could not be clearer. Again, Kevin Thornton was never accused of, nor indicted on a
charge of, aiding and abetting. Obviously, the jury believed there was reasonable doubt that Kevin
Thornton was a rapist.
No charge or contention whatsoever relating to aiding and abetting was ever mentioned to the jury or the
judge, or ever documented by the prosecuting district attorney.
B. Kevin Thornton was never charged with aiding and abetting, and therefore could not defend
himself against that charge.
If, in fact, the jury could have determined through other testimony and evidence that Thornton aided and
abetted Lofton Rigby in raping Sara, it could be argued that due to Thornton’s own state of extreme
intoxication, he did not do so voluntarily. If he had been charged with aiding and abetting, he would
have had the opportunity to present a defense – but he was not charged and did not have an opportunity
to defend himself against an aiding and abetting charge. This letter was a rare and clear statement that
the conviction that had just been handed down had been in error. It should have, at the least, qualified
the case for a new trial. Yet it was ignored and the life of an innocent man was ruined.
Habeas Corpus is proper in this case, and Kevin Thornton’s conviction is void, because he was never
presented or indicted on the charge which the jury he believed he had committed. Case law has held
that if the crime for which the defendant stands convicted is one for which he could be held to answer
only on the presentment of a grand jury, and he was not indicted or presented, his conviction is void and
he may be released on Habeas Corpus.
The Fifth Amendment guarantees a defendant the right to stand trial only on charges made by a grand
jury in its indictment. An indictment safeguards the defendant’s Fifth Amendment right to be prosecuted
only on charges considered and facts found by a grand jury. Thornton’s constitutional rights were violated.
C. The Court erred in improperly instructing the jury and refusing to grant a new trial when it knew the
jury was confused.
The Court erred in improperly instructing the jury before the start of the trial, particularly with regards to
the term “aiding and abetting,” disregarding a letter from the jury, and denying a motion for a new trial
after learning that the jury did not believe Thornton had committed rape.
The judge erred in failing to grant a new trial or enter a judgment despite the jury’s verdict. The jury
clearly convicted Kevin Thornton of a crime that a) he was not charged with; and b) that they did not
understand.
The Court erred in improperly instructing the jury before the start of the trial, particularly with regards to
the term “aiding and abetting.” Clearly from the inference of the letter written by the jury to the judge, a
most unusual step in itself, the jury convicted Kevin Thornton of aiding and abetting. Obviously they did
not understand the law. If they believed Thornton was unable to stop Rigby from raping Sara B., or even if
they falsely believed he encouraged Rigby to rape her, it was enough to think he aided and abetted
Rigby. But they clearly did not think he was a rapist, and the jury stated clearly they believed there was
reasonable doubt.
In some jurisdictions, a cautionary instruction that the accusation of rape is easy to make, but hard to
defend against, is applicable only if there is no corroborating evidence of the victim’s account of the
rape incident. There was no evidence of Kevin Thornton’s guilt other than the uncorroborated and shaky
testimony of the victim, yet no such instruction to the jury was offered by the court or requested by
Thornton’s ineffective counsel.
There was simply not enough evidence to convict Kevin Thornton of rape, and the law makes it clear that
Habeas Corpus is proper in this case – and applicable due to the circumstances.
The constitutional requirement prohibiting criminal conviction of any person except upon proof of guilt
beyond a reasonable doubt can be effectuated only if a Habeas Corpus court, in assessing the
sufficiency of evidence to support a state court conviction, inquires whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the beyond a reasonable doubt.
Even in a light most favorable to the prosecution, there was reasonable doubt about Kevin Thornton’s
guilt. Clearly, the triers of fact had been confused about the charges and did not believe the State had
proven beyond a reasonable doubt that Thornton was a rapist.
D. Kevin Thornton’s name was simply added to the crimes of the real rapist, who was also a violent
criminal.
The only evidence against Kevin Thornton in this case, other than the testimony of the real rapist, Lofton
Rigby, was the accusation of the victim, which she did not support later during the trial.
During her description of the rape, the victim described hearing voices and hearing the car door open,
and believing that Kevin Thornton had switched places with Lofton Rigby, so her head was now on Rigby’
s lap while Thornton raped her. In fact, she could not at any point positively identify Thornton as her
attacker, and while she was being raped by Rigby, her head was on Thornton’s lap, and the only time her
head was not on Thornton’s lap was when Thornton was trying to help her and put her clothes back on.
Sara B. identified Thornton as her rapist because he was the only person of the three men in the car
whom she knew, and because he was trying to put her pants back on when she woke up.
Petitioner believes that Sara B., due to her state of extreme intoxication, was mistaken in her
identification of Kevin Thornton, and that when the victim described being raped while her head was on
someone’s lap, it was Thornton’s lap because Thornton, too, was passed out – and Rigby was the sole
rapist.
Thornton has declared that her head was on his lap as they both were passed out, when Lofton Rigby was
raping Sara B. as they both drifted in and out of consciousness.
After the rape was committed, the victim had run away, and Rigby and Gilbert dropped Thornton off at
home, Rigby committed assault and armed robbery against an unarmed man).
Police believed that Rigby had gang affiliations, and still he was tried alongside an 18-year-old who had
never been in any trouble before.
Thornton was in the wrong place at the wrong time, and was a dumb kid – he is not a rapist or a criminal.
E. The Court erred in refusing to sever Kevin Thornton’s case from that of a violent predicate
criminal, who had admitted to the rape.
A motion was made to sever Lofton Rigby’s case from that of Kevin Thornton, and was denied. Kevin
Thornton’s name was thereafter attached to everything with which Lofton Rigby was associated, and
Rigby’s crime was attributed to Thornton.
The court erred in refusing to sever the two defendants, and that error led to a substantial prejudicial,
injurious effect in determining the jury’s verdict. According to case law, misjoinder requires reversal if it
results in actual prejudice by having a substantial and injurious effect or influence in determining the jury’
s verdict . In this case, the misjoinder clearly influenced the jury unfairly, as Kevin Thornton was
convicted solely because of his association with Rigby.
At the end of the trial, the jury clearly misunderstood its instructions, and convicted Kevin Thornton based
on a clause about aiding and abetting that they did not understand. The jury did not believe Thornton
had committed rape, yet he suffers every day with the modern-day scarlet letter of a rapist, and he will for
the rest of his life.
2. Denied the Full Benefit of Counsel
Thornton’s court-appointed counsel was inadequate and unable to defend Thornton properly against the
charges. Case law has held that where counsel appointed is so grossly lacking in appreciation of his
responsibility that the defendant has virtually no representation and is accordingly denied the full benefit
of his right to counsel, the defendant is entitled to release on habeas corpus.
A. Case law holds that when a defendant has no representation due to his attorney’s inadequacy, Habeas
Corpus is proper.
The State of California and the County of San Diego erred in the assignment of an incapable, overworked
and unconcerned public defense attorney. Thornton’s attorney forgot his client’s name or confused him
with his co-defendant (whom he did not represent) multiple times just in the course of the recorded trial
transcript.
This attorney also believed Thornton was guilty and tried to convince him to plead guilty, then
vehemently recommended that Thornton should not testify on his own behalf. The jury never heard a
defense for Thornton.
This failure of Edward J. Peckham was compounded by the perjury committed by Lofton Rigby (Kevin
Thornton’s co-defendant) and the nature of the crime. Proof was not needed, nor was it provided. As in
many rape cases, the suspect was presumed guilty and could not prove himself innocent.
Petitioner Kevin Thornton believes and is informed that Edward J. Peckham was grossly lacking in his
appreciation of his responsibility toward his client. He failed to convince a judge that the cases should
have been severed, and only called one completely ineffective character witness (who had never seen
Thornton intoxicated and was not present that night). He left Kevin Thornton with absolutely no defense
against the heinous felony charges.
B. Peckham pinned his client’s defense on the only other witness, who exercised his Fifth
Amendment rights and did not testify.
Before the trial, Thornton was assured by Pierre Gilbert, the only other person in the car other than the
defendants and the victim that night, that he would testify on Kevin Thornton’s behalf and tell the Court
that Thornton never touched Sara. Kevin Thornton’s mother, Theresa, was present for that conversation,
as detailed in her declaration.
Thornton was assured by his lawyer that Gilbert’s testimony, and the fact that there was no evidence other
than the eventual statements of a very drunk victim and his co-defendant, would secure his acquittal.
Thornton was advised strongly to not testify in his own defense.
Pierre Gilbert, the only witness to the rape who was not charged, exercised his Fifth Amendment right to
not testify and incriminate himself. The young men learned that the district attorney planned to charge
Pierre Gilbert for providing condoms and driving to the secluded area where Sara B. was raped – a
location he already knew about. He told the police he never saw either defendant rape the victim.
C. Only one witness was called in Kevin Thornton’s defense, a witness who was not present that
night and had never seen Thornton under the influence of alcohol.
The only witness called to testify on Thornton’s behalf was a single character witness, a high school
librarian who also had sons Kevin’s age and who knew him well. However, she was not present the night of
the rape and had never seen Thornton under the influence of alcohol. Her testimony was less than
productive.
That librarian, Dora Maher, was the only witness for Kevin Thornton, and effectively left Thornton without
a defense in court. Edward Peckham was late and unprepared for hearings, did not adequately prepare
the single witness he called, and seemed generally unconcerned with his client’s future. Given that
Maher was the only witness who actually testified for Kevin Thornton, her testimony effectively was
Thornton’s defense – and did nothing to help his case. The way her testimony was handled effectively left
Thornton without a defense.
No other character witnesses – even his mother, a devout Christian and single working mother who had
raised four children, or his twin sister, who could testify to any tenet of his personality – were called. This
was a blow to Kevin Thornton’s family, who was forced to sit and watch as their son and brother was
convicted of a crime he did not commit, and neither they nor Kevin could do anything to stop it.
No one other than Thornton, Gilbert, the actual rapist and the victim were in the car that night. Lofton
Rigby, the actual rapist, testified that Sara B. had consented to sex (although she was unresponsive), and
perjured himself further when he stated that Kevin Thornton had intercourse with Sara B. after Rigby was
done.
D. Peckham should have argued to exclude Thornton’s interrogation video as evidence and called
his client to the witness stand.
Thornton voluntarily came to the police station after the rape took place. He gave a full account of his
actions that evening, and did not refuse to answer any questions, although he was told that it would look
suspicious if he did. Obviously he was entitled to counsel, but was told that he was not under arrest and
that he didn’t need representation.
According to the law, two discrete inquiries are essential to the determination of whether a suspect was in
custody at the time of the interrogation: first, what were the circumstances surrounding the interrogation,
and second, given those circumstances, would a reasonable person have felt he or she was not at liberty
to terminate the interrogation and leave .
Kevin Thornton did not feel at any time that he was at liberty to terminate the interrogation and leave. He
did not even know that he had a constitutional right to do so. He voluntarily went to the police station,
thinking he could clear up the misunderstanding.
He also has turned 18 about two weeks before, and did not have a parent or an attorney present. Like most
18-year-olds, Kevin Thornton had no clue about the justice system or police practices. The police officer
interrogating him even commented on how young Thornton was at the time and that he was “barely 18."
Under the Miranda rule , the right to remain silent during a custodial interrogation and the right to the
presence of an attorney during custodial interrogation may be waived if the waiver is made knowingly,
voluntarily, and intelligently.
Kevin Thornton was not intelligently informed as to what the police officers planned to do, or of the fact
that he was entitled to an attorney before he was officially arrested. He may have waived his right to
counsel voluntarily, but it was not waived knowingly or intelligently.
Kevin Thornton also volunteered a sample of his DNA to compare to the findings from the victim. During
the course of this interview, the investigating officer convinced Thornton that the results were back from
the laboratory (less than 30 minutes later) and that his DNA was found in the victim’s vagina.
There was, in fact, no DNA found in Sara B.’s vagina. Once the test was complete (weeks later), Kevin
Thornton’s DNA, from his saliva, was found to be on the victim’s breasts. Thornton he had already
admitted to sucking and licking on her breasts earlier in the evening.
After another 10-15 minutes of threats and lies regarding the findings and what would happen to Thornton
if he was guilty of rape, he admitted to touching her vagina with his penis, which Thornton never did.
He thought, at 18 years old, that this admission was what the investigating detective wanted to hear, and
that if he never actually penetrated her, he would not be found guilty of rape.
Kevin Thornton had no idea what the law was or what the proper legal procedure was for a criminal
investigation. He even believed the detective when she told him that the DNA analysis was done in less
than 30 minutes.
This interrogation video was the main argument that Peckham provided to Thornton when he vehemently
recommended that Thornton not take the stand. Instead, he should have moved to exclude the video in
its entirety as evidence due to the Miranda violations, and removing all cause for charges against his
client.
At the least, he should have put Thornton on the stand and asked for an explanation from him about why
he lied to the police on the tape. The jury could have reasoned that Thornton was too naïve to know what
the police were doing.
Thornton’s voice has never been heard prior to this petition.
E. Peckham never took any time after the verdict to inquire about his client’s wishes, never filed an
appeal, and never informed Kevin Thornton of the statute of limitations to file an appeal.
After the verdict, Kevin Thornton was sentenced to serve a calendar year in jail, and was immediately
transferred to San Diego County jail. He never spoke to his attorney, Edward Peckham, after the verdict
and although he attempted contact, his calls were never returned.
Again, Thornton was very naïve – he was 18 years old and had no idea about statutes of limitations
regarding appeals. He assumed for years after his conviction that Peckham was appealing the rulings.
Peckham was not doing any post-conviction work on Kevin Thornton’s case and had not inquired as to his
client’s welfare or desires for an appeal. If Peckham had bothered to inquire about his client, Thornton
would have instructed him to file an appeal on his behalf immediately.
In October of 2005, Kevin Thornton discovered that no appeal had been filed – and worse, that there was
no possibility of an appeal due to time limitations. As Petitioner was preparing this document and
gathering supporting evidence, Peckham told Thornton that all he had to do was write a letter to his
lawyer while he was incarcerated and ask for an appeal.
The only appeal of this conviction was made by Lofton Rigby’s attorney, and was denied because Rigby
admitted to sexually penetrating the victim while she was too drunk to resist.
3. Reasonable Doubt of Guilt and Lack of Mens Rea
Thornton was too intoxicated to have the necessary Mens Rea to commit the act, and the court erred in
not providing cautionary instructions to the jury regarding an intoxication defense and the ease of
charging rape and the difficulty in defending oneself of the charge.
A. Thornton was too intoxicated to form the requisite specific intent.
All of the witnesses to the events of September 7, 2001, including the victim and the defendants, were
intoxicated. Witnesses testified that the victim was drinking enormous quantities of alcohol, and that she
was so intoxicated that she could not stand up straight, vomited profusely, and even vomited blood.
Witnesses also testified that Kevin Thornton was drinking heavily and smoking marijuana that night, and
that he passed out from the alcohol and drugs. He has also testified that he was too intoxicated to stop
Lofton Rigby from assaulting the victim.
Due to the intoxicating effect of the alcohol and drugs that he consumed that evening, Thornton lacked
the essential mens rea to commit forcible rape. Although his intoxication was voluntary, it prevented him
from forming the specific intent needed to rape an intoxicated and unconscious victim.
B. The State never proved beyond a reasonable doubt that Kevin Thornton had raped Sara B., nor did
it prove that he had specific intent.
Specific intent is defined as the accused’s particular purpose or specific intention in doing a prohibited
act, which must be alleged and proven by the state in a prosecution for a crime requiring specific intent.
Such intent was never shown or proven with regards to Kevin Thornton.
Specific intent is required for certain crimes, including rape (see State v. Mundry , 99 Ohio App. 3d 275,
650 N.E. 2d 502), and that the defendant is entitled to an instruction to the jury about intoxication as a
defense to the charges.
No such instruction was ever offered to the jury, but was proper and needed in this case. This petition is
proper, and review of this case and the jury’s intentions is allowable.
Recent case authority suggests that in Habeas Corpus proceedings the court may look to the sufficiency
of the evidence, but its review is a limited one, focusing not on whether the trier of fact made the correct
innocence or guilt determination, but rather on whether it made a rational decision to convict or acquit.
Given the insufficiency of the evidence against Kevin Thornton, reversal of the conviction and release
under Habeas Corpus is proper and just. In a Habeas Corpus proceeding in which a prisoner challenges
sufficiency of evidence supporting his conviction, the petitioner is entitled to a determination whether the
record evidence could support a finding of guilt beyond a reasonable doubt.
C. The State never proved beyond a reasonable doubt that Kevin Thornton was guilty.
The burden on the prosecution in order to establish the general criminal intent required for first-degree
sexual assault is to prove beyond a reasonable doubt that the accused subjected another person to sexual
penetration and overcame the victim by force, threat of force, coercion or deception.
The evidence against Kevin Thornton presented at trial amounted to the identification made by an
extremely inebriated victim and a predicate criminal who was trying to deflect the charges away from
himself. Petitioner believes that the victim, due to her state of extreme intoxication, was mistaken in her
identification of Thornton, and that when the victim described being raped while her head was on
someone’s lap, it was Thornton’s lap because Thornton, too, was passed out – and Rigby was the sole
rapist.
Kevin Thornton has declared that her head was on his lap as they both were passed out, when Lofton
Rigby was raping her as she and Thornton drifted in and out of consciousness.
4. Denied a New Trial after Triers of Fact Made Evidentiary Error
The court erred in denying a motion for a new trial after receiving a letter from the jury stating that the
members did not believe Kevin Thornton had committed rape. Reviewing the evidence and the process of
justice in this case is just and proper.
A. The Court had evidence through the letter that the jury believed its verdict was in error.
The judge erred in failing to grant a new trial or enter a judgment despite the jury’s verdict. The jury
clearly convicted Kevin Thornton of a crime that a) he was not charged with; and b) that they did not
understand.
Habeas Corpus is proper in this case, because recent case authority suggests that in Habeas Corpus
proceedings the court may look to the sufficiency of the evidence, but its review is a limited one,
focusing not on whether the trier of fact made the correct innocence or guilt determination, but rather on
whether it made a rational decision to convict or acquit.
This court may, therefore, examine the sufficiency of the state’s evidence to determine whether the jury’s
decision was rational. Clearly the jury’s decision was irrational and was changed soon after the verdict
through that letter, and clearly there was insufficient evidence to sustain a conviction.
B. The jury’s letter was unprecedented, and an excellent reason to grant a new trial.
Clearly from the inference of the letter written by the jury to the judge, a most unusual step in itself, the
jury convicted Kevin Thornton on aiding and abetting. Obviously they did not understand the law.
If they believed Thornton was unable to stop Rigby from raping Sara, or even if they falsely believed he
encouraged Rigby to rape her, it was enough to think he aided and abetted Rigby. But they clearly did
not think he was a rapist.
Now, especially for Kevin Thornton, a conviction of rape is a permanent and glaring scar.
As stated in the jury’s letter and reiterated in Lofton Rigby’s motion for a new trial, the jury did not follow
the law when they arrived at a verdict in this case. Re-examining the evidence and the jury’s post-verdict
change of heart in this case is proper and necessary.
5. The Stigma of a Registered Sex Offender is not Fair When Justice was Denied
Thornton has served hard time and probation for a crime that the State could not prove beyond a
reasonable doubt that he committed. This Petitioner only asks for his name to be cleared so that he can
enjoy a normal adult life and not carry the stigma of being labeled a sex offender.
A. Kevin Thornton made mistakes that night and during the investigation, but is not a rapist.
Kevin Thornton was in the wrong place at the wrong time, and was a dumb kid – he is not a rapist or a
criminal. He has taken responsibility for every mistake he made the night that Sara B. was raped, and has
more than paid for all of his transgressions. He simply is not a rapist and does not deserve the scarlet letter
of a sex offender to be branded on himself and his family for the rest of his life.
Thornton has served over a year of hard time and an additional four years of probation for a crime that
the State could not prove beyond a reasonable doubt that he committed. There was very clearly a
reasonable doubt of Thornton’s innocence. But people suspected of rape are very rarely presumed
innocent until proven guilty – and in this case, Kevin Thornton simply could not prove himself innocent.
At the time of the crime, he was barely an adult and had no knowledge whatsoever of the legal system or
the fate that awaited him in a felony criminal trial, and later in jail and on probation. Thornton has been
living under probation for the past four years, all the while believing that his attorney was pursuing an
appeal – not knowing the statute of limitations had long passed. All he wants is a fair chance to move on
with his life.
B. This false conviction has ruined the life of an innocent man and has not allowed him to move
forward as any other person his age.
As a result of this conviction, for which he should have never been convicted based on standard of proof,
Thornton has been unable to pursue any semblance of a normal adult life. He cannot attend a normal
college unless he lies on the application about being a felon and a sex offender, and cannot hold a job
long enough to afford college due to his record.
Kevin Thornton cannot get a good job – or any job that requires a college degree, and has been faced
with the utter desperation of not being able to fix the situation and even keep himself out of debt.
While he was standing trial for the rape charges, Kevin Thornton was waiting to be sent to basic training
for the United States Army. He had tested and taken an oath to serve immediately after graduation, and
had planned to serve his country even before the rape took place and he was falsely accused. Thornton
volunteered for a unit that was almost guaranteed to be sent to fight in Iraq – before the rape and before
the terrorist attacks just a few days later on September 11, 2001.
Five years after the rape took place, and almost six years since he was convicted, Kevin Thornton is in
debt and forced to register as a sex offender everywhere he goes. He cannot afford to live a normal life
with a regular job due to his record and is in debt because he cannot hold a job. He has no degrees or
qualifications for most careers, nor does he have the money to attend college classes. If he had not been
railroaded by the police, failed by his public defender and unjustly convicted, he would have served his
country and gone to college on the G.I. Bill.
C. This false conviction also led to Kevin Thornton being unjustly convicted of a Penal Code §290
violation.
In early 2006, after six months of being unemployed and being turned down for literally hundreds of jobs,
he lied on an application about his felony conviction and was a model employee by all accounts -- until
the background check came back and he was fired for lying on the application about his conviction. After
the loss of that income, he was unable to make his car payments and his car was repossessed by the
finance company.
He used his fiancée’s vehicle to get to his other part-time job, and Thornton and his fiancée planned to
move in together at the end of May, 2006. Because he occasionally stayed at her apartment and used
her car to get to work, he was arrested at her home on May 4, 2006, for failing to register her apartment as
a place of residence, although he did not live there.
He was charged with a felony §290 violation and held in San Diego County Jail for two and a half
months, losing thousands of dollars in wages and forcing his plans to live with his fiancée to be
postponed. The arrest also forced his fiancée to be homeless for nearly two months due to the financial
hardship caused by his arrest.
D. The District Attorney dropped a felony “strike” against Thornton after reviewing the merits of the
instant case, the original rape charge and conviction.
After writing letters for weeks to the District Attorney’s office about the problems with his original
conviction and the nature of the crime for which he was convicted, including the fact that the original
prosecutors recommended probation for a serious felony in this instant case, the district attorney agreed
to drop the “strike” and allow Thornton to be released with a probation modification.
The statements of North County Assistant District Attorney David Greenberg made to Honorable Judge
Michael Kirkman show that even Thornton’s biggest detractors did not believe he was dangerous.
On July 14, 2006, Greenberg told the court during Thornton’s change of plea hearing, in relevant part,
“… the reason the people are dismissing the strike offense is because the underlying crime itself is not the
most aggravated of charges as it can be in other situations.”
In light of other evidence – or lack thereof – and the testimony herein, this shows that upon review of this
instant case, any reasonable person even slightly knowledgeable in the law would know that the
conviction was false and unjust.
6. Habeas Corpus is proper in this case despite the delay in filing
The delay in making and filing this application is excusable. Habeas Corpus is proper because the
Petitioner can explain the delay and the delay is not prejudicial to the Respondent.
A. Kevin Thornton did not know that his lawyer had failed to file an appeal and that his time limit for
an appeal had expired while he was incarcerated.
A petition for writ of Habeas Corpus filed by a prisoner may be dismissed if it appears that the state of
which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in
its filing, unless the petitioner shows that it is based on the grounds of which he or she could not have had
knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state
occurred.
Petitioner will concede that this petition is untimely, but the petitioner was unable to know while he was
incarcerated that the clock was ticking and would soon run out with respect to his ability to appeal his
conviction. The exercise of reasonable diligence in this case was impossible for Kevin Thornton, as he
was incarcerated and his attorney was not communicating with him. He had no way to know that his
attorney had failed to appeal.
After the verdict, Kevin Thornton was immediately transferred to jail. He never spoke to his attorney and
his calls were never returned. Thornton had no idea about statutes of limitations regarding appeals, and
assumed for years after his conviction that Peckham was appealing the rulings.
In October of 2005, Kevin Thornton discovered that no appeal had been filed – and worse, that there was
no possibility of an appeal due to time limitations. This petition for writ of Habeas Corpus is the only
legal remedy that still exists for Kevin Thornton.
B. The State is not prejudiced in its ability to retry the petitioner due to the delay in filing this petition.
Prejudice to the state in its ability to retry the petitioner because of a delay in filing is not a valid ground
for dismissal of the petition; the District Court is limited to determining whether the state has been
prejudiced in its ability to address the issues raised in the petition.
The state has ample evidence regarding this case and the prosecution of Kevin Michael Thornton, much
of which was reopened when Thornton was arrested for a §290 violation in May of 2006. It was easy for
David Greenberg to locate the case file and come to the conclusion that a felony strike was not warranted
in Thornton’s §290 case. It was easy for Petitioner to locate the supporting documentation attached
herein from Edward Peckham and the San Diego Superior Court. If this court should deem it proper to set
a hearing to determine the merits of this petition, the State will not be prejudiced in its abilities to address
the issues raised herein.
C. Granting Habeas Corpus to Kevin Thornton is in the interests of justice and is proper.
Kevin Thornton has become the second victim in this case. He was tricked prior to arrest, he was failed by
his public defender, and he was convicted without any proof. There was very clearly a reasonable doubt
of Thornton’s innocence. But Kevin Thornton simply could not prove himself innocent.
American jurisprudence has held that it is better for one hundred guilty men to go free than for one
innocent man to be convicted of a crime he did not commit. There was clearly reasonable doubt, yet the
life of an innocent man was ruined almost beyond repair.
| The following is almost the exact legal argument submitted to the San Diego Superior Court and later, to the Appellate Court, in Kevin Thornton's Petition for Writ of Habeas Corpus. Some language has been changed for ease of internet reading, and the name of the victim has been edited out for her own protection. Otherwise, the following is posted in the hopes of assisting other wronfgully accused and wrongfully convicted persons to avoid Kevin Thornton's fate, or assist them in getting exonerated. Please feel free to use the following for an example. Was this helpful to you? |
| GROUNDS FOR RELIEF: Kevin Michael Thornton is appealing the court for release on the following grounds: (A) The prosecution did not prove beyond a reasonable doubt that Thornton committed rape. The jury based its conviction of Kevin Thornton on an aiding and abetting clause it did not understand, and essentially convicted Thornton of a crime for which he was never charged. Given any defendant’s constitutional right to know the nature and cause of all accusations, Thornton’s rights were violated when he was unable to defend himself against an aiding and abetting charge. (B) Thornton’s court-appointed counsel was inadequate and unable to defend Thornton properly against the charges. Case law has held that where counsel appointed is so grossly lacking in appreciation of his responsibility that the defendant has virtually no representation and is accordingly denied the full benefit of that right, the defendant is entitled to release on Habeas Corpus. (C) Thornton was too intoxicated to have the necessary mens rea (criminal intent) to commit the act, and the court erred in not providing cautionary instructions to the jury regarding an intoxication defense and the ease of charging rape. (D) The court erred in denying a motion for a new trial after receiving a letter from the jury stating that the members did not believe Kevin Thornton had committed rape. (E) Thornton has served hard time and probation for a crime that the State could not prove beyond a reasonable doubt that he committed. Even the prosecutors seeking to put away a rapist recommended probation for Kevin Thornton due to the circumstances of this crime. This Petitioner only asks for his name to be cleared so that he can enjoy a normal adult life and not carry the stigma of being labeled a sex offender. (F) Habeas Corpus is proper in this case. Although delayed, Petitioner could not have reasonably known that his attorney had failed him again and not filed an appeal. Further, the delay in filing this petition is not prejudicial to the respondent. |
| GROUNDS FOR RELIEF |