Marion's Diaries
When we received the first batch of discovery material from the prosecution in September of 2003, I immediately noticed that a number of things were missing. I was particularly concerned that Marion's diaries were not there. I'd gone to her apartment (I had my own set of keys from the beginning) early on the morning after her death, June 4, 2003, and noted a number of items missing that had been taken by the police. Among the missing items were six 8 1/2 X 11 spiral-bound notebooks that Marion used as her diaries and wrote in practically every day. I knew that some of these diaries contained intimate details of our relationship. These were vitally important because, absurd as it sounds, a major part of the prosecution's case was the premise that there was no relationship between Marion and me other than our work.
During one pretrial hearing we made an issue of missing evidence. The judge ordered me and my lawyer to meet with the prosecutor and discuss this issue in the hopes that we could reach an agreement and avoid so much acrimonious courtroom confrontation. At this meeting the prosecutor telephoned the main detective on the case and had him join us. My lawyer and I sat across a conference table from the prosecutor and detective and attempted to work out our disagreements. The detective swore that the police had found no diaries and continued to maintain this after I had described them in detail. He professed surprise at not finding them and said that he had been told by Marion's mother that they should have found them, and that Marion wrote everything down (she did). I knew what was in the diaries because Marion had let me read them periodically.
I was astonished when these claims were made about not finding any diaries, because during the time that I was in jail I had been visited and interviewed by a profiler from the Virginia State Police and Dr. VanPatten from Radford University, who sometimes worked as a consultant to the Radford Police. During that interview Dr. VanPatten had produced one of the diaries from his briefcase and read passages from it to me. When I asked the prosecutor and detective about this they said that Dr. VanPatten had "faked me out" with a blank notebook. (If there had been no notebooks found, how would he have known what type to bring? Besides, this would have been a serious ethical violation by Dr. VanPatten.
Later, in the course of his investigation, a paralegal working for my attorney talked to Dr. VanPatten by telephone. At some point he mentioned the diaries and Dr. VanPatten told him that the police had let him read them!
We immediately set up a hearing and issued a subpoena for Dr. VanPatten to appear and testify. Before the start of this hearing the prosecutor came in and appeared surprised to see Dr. VanPatten sitting in the courtroom. He left for a few minutes and when he returned he put his briefcase. up on his table and began to pull Marion's diaries out. He pulled out four of them plus two smaller older notebooks that had been in the apartment. The prosecutor's explanation was that we had been asking for "diaries" or "journals" and they considered them notebooks. This after I had sat across the table from him and described them in detail.
This amazing bit of theater was typical of how our efforts to obtain discovery material went throughout the four years of pretrial motions and hearings. My lawyer described it as "like pulling teeth". The law clearly requires that all evidence be given to the defense in discovery, whether asked for or not.
But after all of this, the two most recent diaries, the ones important to my case, were never produced, and have not seen the light of day even now. Who knows what became of them after Dr. VanPatten read them?