Diane Fleming Petition for Habeas Corpus; Judge's Decision for Evidentiary Hearing Could Take Six Months

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"Most cases don't get this far. I am optimistic, but anything can happen," says David Hargett, attorney for Diane Fleming.

There is great and growing interest in Diane Fleming’s wrongful imprisonment. The press release detailing Diane’s plight has attracted 150,000 readers on the Internet. The story has been picked up by many websites and online newspapers.

The following links are to the original press release and to the in-depth story, “How Did Diane Fleming Get Wrongly Convicted Of Murdering Her Husband?”

The Charles Fleming Murder Case http://www.prweb.com/releases/2005/12/prweb322296.htm

The motion hearing for an evidentiary hearing is the first step to freedom after the incarcerated petitioner's state appellate and supreme court appeal has been rejected.

Diane Fleming’s motion hearing to grant an evidentiary hearing was held on Friday, January 6, 2006. Eleven supporters came out to support Diane even though she was not in the courtroom. Inmates are not allowed to attend their motion hearing. The hearing started late in Judge Cleo E. Powell’s Chesterfield, Virginia courtroom.

Diane Fleming's attorney, David Hargett, of Richmond, Virginia, specializes in ‘habeas’ law. Mr. Hargett told Diane’s supporters that most judges are not familiar with habeas law because most cases don't get this far. Before a motion hearing is granted, the Commonwealth of Virginia’s Attorney General office is involved and must give a go-ahead.

Contrary to expectations, although the motion hearing has been approved and granted by the Attorney General’s office, at the motion hearing, the Attorney General’s office rebuts the very points it had to concede to approve and grant the hearing.

Here’s why. When a petition for a writ of habeas corpus is filed, the case almost becomes a civil suit. Diane Fleming v. Warden of the Fluvanna Correctional Center for Women. Guess who represents the Department of Corrections? The Commonwealth of Virginia’s Attorney General.

Hargett led Judge Cleo Powell through all 22 citations in Diane’s petition for a writ of habeas corpus. Although Judge Powell remained impassive and asked only a few questions, Hargett knew Judge Powell had read the habeas. Powell was also the trial judge, in 2002.

Included in the 22 counts of ‘deficient’ counsel and prosecutorial misconduct is the withholding of tests from the Virginia Forensic lab (to the defense) that there was no blue color found in the Gatorade. Diane was convicted to 30 years for murder and 20 for adulteration, to be served concurrently, for supposedly spiking her husband’s Gatorade with windshield washer fluid, containing methanol, wood alcohol, a poison.

In response to the accusation, Denise Anderson, the lawyer from the Attorney General’s office stumbled as she told the court that the test results couldn’t have been withheld because: ”They (the tests) were not done or were not done correctly.”

Hargett explained to Judge Powell that there was no clear cause of death in the autopsy. Cardiomegaly, enlarged heart, shown in Fleming’s autopsy, is a cause of death, in itself.

Hargett told Judge Powell that there is a test that can tell exactly where the methanol in the Gatorade originated. The NFT1 gas chromophotography test can solve the mystery of how methanol got into the bottles of Gatorade, still in evidence.    

Another test called the Raman Microscope test can further determine the identity of the source of methanol in the Gatorade.

Ms. Anderson, the attorney from the Virginia Attorney General’s office reportedly is new at the job, no match for the veteran Hargett who was professionally attired in a charcoal grey suit, white shirt, and blue striped tie.    

At one point in the hearing, Hargett emphatically brought his hand down on the table and addressed Anderson, the court and Diane’s supporters. “The state’s ‘computer expert’ who testified at trial was not qualified as an expert.”

A date from one of the computers in the Fleming home showed a methanol search by Diane one month before Charles became ill after playing basketball on a hot June Sunday, in 2000. An expert would have known to check with the web site supposedly searched to corroborate the alleged date.

The brutal fact is that the court was not allowed to hear the most probable cause for Charles Fleming’s death. According to Virginia law, no new evidence can be brought up in a habeas writ or at a motion hearing; evidence must have been presented at trial.    

As a researcher for nine years concerning aspartame (Equal, NutraSweet) poisoning, it is my opinion that Charles Fleming’s autopsy shows that he died from the cumulative methanol in aspartame (10% of the molecule) from drinking 10 diet Cokes a day and 2 diet-Sprites, plus the addition of packets of Equal to every thing he drank.

On the FDA list of symptoms from aspartame, released in 1993, under the Freedom of Information Act, Death is No. 77. Fleming also suffered from other neurotoxic symptoms on the FDA list.

Toxicologist Dr. Hildegard Staninger concurs that aspartame was the cause of death as does Dr. H.J. Roberts, M.D. (“Aspartame Disease: An Ignored Epidemic”) in affidavits written to help free Diane.

Many of Diane’s supporters are anxious about the outcome of the hearing. Judge Cleo E. Powell has the power to deny or grant Diane Fleming an evidentiary hearing, the second step in her road to freedom.

If the evidentiary hearing is granted it means, according to David Hargett’s legal assistant, Mary Beth Rider, “We’ll be able to gather evidence that will help prove Diane’s innocence. It does not mean Diane Fleming will be released from prison or granted a new trial.”

Judge Powell’s decision to grant Diane Fleming an evidentiary hearing could take six months.

Marilyn Bland, a good friend of Diane Fleming asked Diane's attorney, David Hargett, “Is this the end of the line?” Hargett answered, “Not the end of the line, but it gets tougher.” There is a state appeal and a federal appeal.

Betty Rickmond, Diane’s closest friend opines, “All Judge Powell has to do is be fair.”

Carol Guilford is an LA based writer and book author.

Guilford is a member of the Writer’s Guild of America and the Dramatist’s Guild.

Columnist David L. Dewey contributed to this article.


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Carol Guilford

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