Introduction

It is time to name names, as they say.  The man who actually physically raped Sephora Davis at knife point on December 8, 2003 is named Eric Harder.  He was, and perhaps is, a police informant.  As far as I know he still lives in Mount Morris, New York.  About six weeks later he and a then Mount Morris police officer named Dana Carson, who remains a police officer in Geneseo, New York, conspired to fabricate evidence and commit perjury to implicate Sephora in an armed robbery and “kidnapping” that took place in the hours after Harder had raped her.  Other police officers were involved, though I can’t identify them specifically based on particular evidence.  Strong circumstantial evidence indicates that the Livingston County District Attorney, Tom Moran, knew about and participated in this conspiracy from the beginning, perhaps even orchestrating it.  In any case it is 100% certain that Moran at the very least became aware that the criminal charges against Sephora Davis were based on perjury and fabrication but continued prosecuting her anyway.  Moran is still the Livingston County District Attorney, but – of course – he is running for judge this year (although the Monroe County Bar Association seems less than enthusiastic about that) as a Republican and presumably will win.  He is just the kind of person who often becomes a New York State Supreme Court judge.  His election will be perversely appropriate.

Several individuals who were judges at the time are also implicated.  Ronald Cicoria, who retired as a Livingston County Court Judge at the end of 2005 – and tellingly thereafter became a “special assistant” in the Livingston County District Attorney’s office under Moran – “presided” over Sephora’s prosecution until his retirement and refused to stop it, issuing an opinion in September of 2005 in which he refused to mention the allegations that Harder had raped her.  He was replaced by Monroe County Family Court Judge Joan S. Kohout, who eventually sent Sephora Davis to prison even though she knew her to be innocent, a rape victim and that the evidence implicating her was fabrication and perjury.  Several justices of the state Supreme Court serving on the Appellate Division, Fourth Department are involved:  Nancy Smith – who is up for re-election this year but probably unopposed – and justices Hurlbut, Centra, Pine, and Kehoe.  These five judges at one time or another presided over a special proceeding to prohibit Sephora’s continued prosecution in Livingston County Court.  Despite the fact that they knew she was a rape victim and that the charges against her were based on perjury and fabrication, they repeatedly refused to stop the prosecution.  In their written memorandum opinion finally dismissing the special proceeding and clearing the way for her imprisonment they deliberately misrepresented the factual record, also somehow forgot to mention the evidence that she had been raped, and ignored the governing law.  And the ground given for their determination – “mootness” – was preposterous:  within two weeks of that determination (which occurred on December 22, 2006), Sephora Davis was delivered into the hands of the New York State Department of Corrections as a prisoner, which a contrary determination by that court would have prevented.

What a strange thing, then:  a criminal act fully documented in the public records by the criminals themselves, all of them public officials.  A new low, even by the increasingly meager standards of the American judicial system.

Many other government officials in New York bear a degree of responsibility for this crime, notably former Attorney General Elliot Spitzer and former Attorney General – now governor – Andrew Cuomo.  But I’ll get to that more specifically as we go along.

It is also important to note that while this has been mainly a disaster for me, I have had help along the way from very unlikely sources – people who, unlike the many public officials, had no official or personal obligation to do anything.  Chief among these are members of the Grammatico family in Rochester – Rosanne, Lou (yes, that Lou Grammatico) and especially Nick.  It is hard for me to imagine how I would have survived to this point without their support and friendship – and indeed protection – which was extended to me with full knowledge of what I was facing and no real expectation of return.  Even so, I hope some day to be able to express my gratitude to them in more tangible terms than words.

I am also grateful to a few members of the Rochester legal community.  I won’t name them all.  Lamentably, this is for their own protection.  But the involvement of a couple of them – Don Thompson and Catherine Cerulli – is already known.  Kate provided her very important expertise in dealing with sexual assault victims pro bono; Don Thompson took over from me in Livingston County Court in 2006, probably sparing me from being arrested, prosecuted or even killed.

Last along these lines, I want to emphasize what a privilege it has been to represent Sephora.  She is a very brave young lady of very high character, for which the world has for some inexplicable reason mercilessly tormented her.

The effects of all this on my personal life – my marriage and children – have been catastrophic.  When I took the Sephora Davis case in 2004 it was part of a plan to leave the Rochester area and move closer to my wife’s family in Sault Ste. Marie, Ontario.  I estimated – not unreasonably given what I knew of the case and my experience of such matters – that my role would be completed within six months or so and at that point I would be free to make the move, which my wife and daughter – then 4 years old – had already made.  Obviously, that never happened.  My wife, who had already endured the hardships of being a Navy officer’s wife, a law student’s wife, and a struggling lawyer’s wife, hung on through this extended and debilitating separation as long as anyone could, but finally was forced to move forward on her own, and then with another man.

I have nothing but respect and affection for my wife and, yes, her boyfriend.  We’re like family, which is making the best of a difficult situation for everyone, especially for my son and daughter. The situation approximates a Levirate marriage, I think, except that I am not yet dead.  Something like that.

I’m going to run through all the evidence, step by step, or at least as much as I need to in order to explain the situation.  The proof is primarily by documents, which I’ll upload so everyone can see for themselves.  It’s going to take a while, probably quite a few posts over days or even weeks.  I invite and deeply appreciate comments and criticisms from colleagues and others.  This is an exercise in preparation for the hearing, among other things.

In my view, the picture that unmistakably emerges from all this is of a judicial system exhibiting terminal and unrecoverable error.  It has self-destructively dismantled its protection circuitry – such as federal habeas corpus – but continues to mindlessly mal-process police and prosecutor input in fail mode, spitting out a distorted version of what gets put in, all mangled up with stray verbiage, but essentially unchanged.  It is now so bad that even when the system knows beforehand that it is committing an unspeakable depredation of an innocent human being, it just goes ahead and does it anyway, and then actually convicts itself – by neither disputing it nor speaking it.

Sometimes one case becomes a sort of universal parable.  Sephora’s chief persecutor, Tom Moran, is a creature of the New York state government:  he has suckled at the public tit nearly his entire adult life.  He has used his public position primarily to enrich himself:  he even put his own wife on the public payroll.  He has learned well the lessons the state government teaches, particularly to prosecutors:  you advance yourself by harming well chosen others.  Your wealth comes from the impoverishment of others.  Once you have sucked one area dry you move on to another, like a one man political plague of locusts.  A leisurely drive through the decaying backwater that is Livingston County, New York will confirm that it’s been Tom Moran’s domain for years.  That is, if you can complete the tour without being pulled over and fined by some overpaid opportunistic official looking for fresher meat to pillage.

When this all began Sephora Davis was a very pretty and sweet high school senior who had never had any criminal involvement.  Within a few years she had been raped at knife point, arrested at gun point, pilloried and vilified and imprisoned.  This is what happens to beautiful things in Tom Moran’s domain:  they are relentlessly defiled, or ravaged for his benefit until there is nothing left or until they are dead.

And if it’s not presuming too much regarding colleagues that I know are smart and talented and experienced in their own right, I would offer that there are a lot of lessons for practitioners here in the telling.  Beyond the obvious ones, that is, such as that the system is hopeless and a lot of the officials are, you know, unbelievably perfidious.  One involves the difficulties of dealing with sexual assault victims.  Another involves the rich complexity of the attorney client relationship and the importance of being a lawyer – not a judge or a prosecutor, but just a regular lawyer.  Yet another involves the ever present tension between a lawyer’s economic self-interest and professional obligations.  And maybe most important in practical terms, there is the issue of the lengths to which you might have to go to present your evidence and fight your battle with some reasonable hope of getting a fair hearing, which may at this point entail looking to other countries.  Lesson number one of litigating:  to the extent possible, you pick your battle – and your forum.

This is not some bullshit CLE gabfest.  This is the real thing, a real case.  The last stage of it is going to play out, at least in part, on this blog.

People from other parts of the world have in the past looked to the US for protection against tyrants.  The situation is now reversed, or at least in the process of reversing.  The Sephora Davis case is the beginning of a trend, unless something in the US changes.

Will anything change?  Maybe.  I don’t know why I care enough to do it, but the Sephora Davis case, in addition to being factually rich and complicated, also presents perfectly, in my opinion, a very important and timely issue of law for the US Supreme Court:  namely, whether a criminal prosecution – as opposed to a conviction – based on the knowing use of fabricated evidence or perjury by the state violates the defendant’s rights to due process.  The SCOTUS took up that issue in 2009 in a case entitled Pottawattamie County v. McGee but was unable to decide it because the parties settled the case.

Because of that development and because I thought the case I had otherwise met some very stringent criteria, I went to the SCOTUS with an “original” petition for a writ of habeas corpus as soon as I could after the dismissal of Pottawattamie in 2010.  The SCOTUS, for reasons known only to itself, did not agree that this was a case they should take up in a serious way.  But there is Supreme Court rule 17.2 and F.R.Civ. P 60(b)(6), and Sephora Davis is still on parole, which qualifies as being “in custody” for federal habeas corpus purposes.  And there have been a few intervening developments that might cause the SCOTUS to reconsider, as they should.  So there might be a motion to be brought there, too.  Probably next month.

Thus what I’m going to do here over the next little while, it turns out, after having identified myself warts and all, is to make this blog a contemporaneous public record, a running monologue and dialogue – assuming people comment occasionally – about the final stage of the Sephora Davis case, as it’s happening.  My role will be part lawyer, part witness, and part writer.  I’m confident in the first two roles, less confident in the last, but we’ll just have to see how this works.

24 Comments

Filed under financial crisis, Judicial lying/cheating, Striking lawyers, wrongful convictions

24 responses to “Introduction

  1. I look forward to reading the documents, which may answer some of the many questions your introductory posts have raised, such as: why did Sephora Davis take an Alford plea if there was clear evidence that her prosecution was based entirely on perjury, and especially while your petition for a writ of prohibition was pending? I’m not familiar with Canadian immigration law, but why would the outcome of your petition for refugee status in Canada depend upon the facts or proceedings in the Sephora Davis case? How did the judges who presided over Sephora’s case “know” she was a rape victim? Lastly, in Indiana an attorney can voluntarily resign from the bar so long is there is not a pending disciplinary proceeding, which is a different proposition from “resigning” in the face of a disciplinary proceeding (there are two different terms for the actions, but I don’t recall what they are). Did your battles in the Sephora Davis case result in disciplinary action being taken against you, and was this why your attempted resignation was unsuccessful? How did Don Thompson taking over for you probably spare you from being arrested, prosecuted or even killed?

    • Well. Such a lot of questions before I’ve really had a chance to go into anything.

      Let me just address the last two for now. First, I had no disciplinary proceedings pending at the time of my resignation and have never been disciplined.

      Second, you have to bear in mind that the stakes here are very high. The officials involved could have faced criminal liability under 18 U.S.C. 241 and 242. If they’re going to take the position that a brutal rape by one of their informants gets a pass, what are they not capable of?

      I was physically threatened by Moran at one point. I was threatened with arrest during a court appearance. I was threatened with prosecution, and that is on the record in a transcript of the appearance.

      Law enforcement in Livingston County is a pretty tight group, and the hostility from them, as a group, was palpable every time I went into that courthouse after I started making such a fuss.

      I wound up being the only witness who could really establish what had occurred. It would be somewhat imprudent not to take the situation seriously from the standpoint of risk to my personal safety. I’m not saying it was a high risk, but it was difficult to quantify and the downside was, you know, terminal, and difficult to counter so long as I remained in the jurisdiction.

      When Don Thompson took over in Livingston County Court I didn’t have to go there anymore and could prosecute the prohibition proceeding in Rochester.

      One last thing: the Appellate Division knew the whole thing was a frame up job because it wasn’t disputed in the prohibition proceeding. One thing I’ll give Moran some credit for is he never offered any evidence disputing that the girl was raped or that she had been framed. The opposition was rhetorical and formal only. Not enough, as they say, to create an issue of fact.

      The AD was bound by a record before them in which the rape and the frame up were established by uncontroverted proof, but they didn’t even mention the former and acted as if the latter was an issue, when it wasn’t

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  3. The Sephora Davis case is the beginning of a trend, unless something in the US changes.

    Who are you trying to kid, me or you? This case is hardly the beginning. I doubt that it will become a milestone or a watershed event in the discovery of our corrupt legal system. This is one example of many.

    I’m looking forward to reading the rest of the case.

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  5. MM8

    Write on Noble Attorney!
    You have my attention and my thanks for your sacrifices while righting this wrong. God Speed sir…

  6. Murc

    Holy BALLS.

    I got here from the link Sebastian Holsclaw posted over at Obsidian Wings, and this is frightening to me. I live in Monroe County. I have for three decades, all of my life. I know (not well, but to recognize in a crowd) two or three of the people mentioned in this post. And I’ve never heard about ANY of this. At all.

    I look… well, not ‘forward’ I guess, but I await the story in its entirety. What you’ve posted so far is sickening. Is there any chance at all of the D&C, filthy rag that it is, paying any attention at all to you?

  7. I can’t explain the D&C’s approach to this any more than I can explain the courts’ rulings, other than some things I’ve written on posts entitled “Note on the Press” and “Puff Piece”.

  8. Mary Sunshine

    Frightening. I can imagine the same thing happening in Canada.

    • Based on impressions and anecdotes only, I would say at present it is unlikely because the bench here is somewhat less in thrall to the police and their unions. That is not to say that there isn’t some cause for concern, because the police here share some of the same armed camp culture that exists among police in the US. But it’s not as far along the slippery slope or at the point where just about every judge is scared to death for his or her political future if they ever rule against the police. In the US, in most places, it’s very much like that.

      I have wondered whether there isn’t some residual devotion to the old British notion of fair play here that has been largely lost in the US.

      • Mary Sunshine

        I love(d) the British notion of fair play. But now it has also been largely lost in England. Sociopathic corporatism is the global order of the day everwhere. People are so caught up in it that they can’t remember what they have lost. Endgame.

  9. Gladiatrix

    Bravissimo! Attorneys like you ( also like due process & fundamental fairness) are becoming vanishingly rare. Once, this level of advocacy and commitment was common, if not expected, and courts generally recognized its value and rightness, however inconvenienced the system was by it. Now, it’s punished, as have you been. Thank you from this trench warrior for soldiering on, head unbowed. Happy to have a new hero.

    • Thank you for the comment and compliment, but it’s important to note that I did not set out to be anyone’s hero. I just wanted a $30K fee so I could ease my transition to a new place. But what I want is not all there is to it. I’m a lawyer, not an “investment banker”.

      And I agree that there was a time when not only the courts, but the profession generally had a much better appreciation that staging this kind of fight is necessary from time to time, and the lawyer it fell to would be supported and not ostracized – or worse.

      But you roll the dice and take what you get, I guess. That’s life.

  10. Roni B

    It’s sad to note that this is not the only case that Thomas Moran has prosecuted on false evidence. He has stolen other’s lives just to get a conviction. And now he’s a judge. What a system!

  11. Hey it's me!

    There is no system in Livingston County….the judges hang out with all the lawyers, Tom Moran is out on the weekends at the college bars trying to get with the young ones, than if something happens, he is the first one to procesute them. HE IS NOTHING BUT A DISGRACE to society! In the court room he is considered an “actor” the way he puts on a show is disgusting. Please someone tell me this….how is it possible that you can as a DA lie on the stand and have your witnesses lie and get away with it….Livingston County is ran by a bunch of idiots and personally I think a business law class in high school can run a court room with more justice…

  12. Hey it's me!

    I remember when that happened to Sephora :( it is a shame…its unconstitutional that a rape victim could end up in prison. I know Mr. Harder too and it was the talk of the town on how someone who committed such a crime was out and about walking the streets a free man, when his victim was basically doing his time!

    • It may have been the “talk of the town” but it never really made its way into press reports. Which tells you something.

      I have to emphasize that this is a bigger problem than Livingston County or Tom Moran. Take a look at any of the law-related blogs I link to on the left hand column. There are plenty of anecdotes from all around the country.

      Still, I think Sephora’s plight is horrifying and incredible, even by the lowest standards that have been breached elsewhere.

      Thanks for the comments.

  13. I hope you don’t mind that the only relevant comment I can make is to the personal part of the story. I’m not a lawyer, and I live in a quite different country where the legal system has a different way of malfunction/abuse. But I’m a child of divorced parents, so what you wrote about your family struck a chord with me. I want to say how much I respect and admire you and your ex-wife and her boyfriend for dealing with the separation in such a good way. My parents did that too, and are still very good friends, though both are in new and stable relationships. As children, I and my siblings never heard either of our parents badmouthing the other, and they were both very much a part of our upbringing. Many of my school friends whose parents were separated or divorced had quite a different experience, where the children were used as weapons by both parents against the other.

    It warms my heart to know that there are others out there who do their best to give their children the kind of love and security we had – where we always know that the fact that two adults may not be suited to live together, they can still treat one another with respect and kindness, and never stop working together to make their children’s life as good as possible.

    • I appreciate this comment very much. You are very insightful, I think. There comes a point in many different contexts where you have to accept what is and make the best of it. When a family breaks up, for whatever reason, and it seems to be irreparable, there is still room for love and kindness and patience and all the other qualities that caused the family to form in the first place. And this can only improve things from where they would otherwise be.

      One quibble, though. My wife and I were perfectly suited to live together in my opinion, and had done so under often difficult circumstances for many years. In our case – and I don’t want to draw any comparisons to anyone else’s I’m just offering my own perspective on my own life – circumstances combined to so undermine our marriage and family that eventually there was a rupture. Part of the circumstances – the major part – was the perfidy and sloth of the public officials who initiated, prosecuted and adjudicated Sephora Davis’ case: the police, the prosecutors and the judges involved. It would be fair to say that those officials, in addition to committing the despicable wrong of deliberately convicting an innocent person, and indeed a rape victim, of a serious crime and incarcerating her, destroyed my marriage and family as a natural and probable consequence of the same acts.

      I am often chided, by people whose thought process is something of a mystery to me, for “leaving my family”. I did no such thing. I had every right to expect that other public officials, all of whom had more power in the situation than I had, would do their jobs at least one-tenth as well as I had done mine. In many ways there was nothing left for them to do except concede what was not only obvious but largely admitted.

      But even this was too much for them. The police and prosecutors put themselves and their own interests above the law they were sworn to uphold and never openly admitted what they had done, although they had technically conceded it. Most astonishingly, in the face of this technical concession the judges involved simply refused to follow even the most basic legal principles for the most banal of reasons: it was the course that was easier for them. It is always easier for a judge to let the system\s institutional momentum continue on to its conclusion unimpeded. You don’t piss anyone off, or at least no one important.

      But the consequence of that is you harm people. And sometimes you harm innocent people. My wife and children were certainly innocent in all this, no one can even argue otherwise. I would submit that I was innocent as well, beyond cavil. Sephora, too, was innocent, although her innocence was at least formally at issue, but not really, because the criminal charges against her were entirely made up.

      Under the circumstances I was simply stuck. There was no way out for me without a fundamental betrayal, so fundamental that I could never have lived with myself – unless, that is, all those other officials had done their job. By refusing they left me no alternative, and that resulted in extreme economic harm to me and my family, putting all of us in an untenable position. My wife understands this, and so does the man she wound up with. And so for that I am grateful, that others who have no obligation to appreciate or understand do, while others whose very job it is to understand and appreciate do not. Or will not.

      Some day I hope they come face to face with what they have done and realize how devastating their irresponsibility is and has been. I still find it difficult to listen to some judge lecture a defendant they are sentencing about personal responsibility in other cases, which happens almost every time there is a sentencing. I know of no group of people who are as irresponsible, as a class, as judges.

  14. reader

    I was wondering if women’s activist groups like N.O.W. were ever contacted?

    Also, if a complaint was ever put in to the DOJ’ Criminal Division’s civil rights office in Washington.

    I know they do very few cases, but am curious..

    I am particularly interested in the response of organizations like N.O.W. and other NGOs because I know a little bit about how the attention of advocacy groups like that is won. Unfortunately, too often they become very uncomfortable if they don’t see the press covering it. It makes it less real to them somehow. I’ve noticed this in a few cases, not involving NOW, or other feminist groups but other NGOs, focusing on other issues.

    If they haven’t heard of the case before they are contacted the presumption is that it is perhaps fraudulent and they don’t want to offer their time to look at the evidence to determine otherwise.

    But a network of activists, if accessible, can be essential in a case like this, as power cares so little for reason, and so much about their public image and approval. Safety comes in numbers.

    I see you haven’t posted anything in a long time. I hope in time you will

    • Yes, went to women’s groups. Rape crisis people. Seemed like they were scared to take on law enforcement.

      Yes, wrote to criminal division of DOJ. No response. Went to the FBI too.

      I don’t know how these groups can presume that it’s fraudulent when the person contacting them is a lawyer. A lawyer’s status is below that of a journalist? Like those super careful and meticulous folks at the New York Post? Ugh.

      I had and have lots of evidence, and it only has one interpretation. The unwillingness of so many to even look astonished me. It’s as if power cares for reason not even a little. More like not at all.

      • reader

        Re status of lawyer — no actually most of the time a lawyer is enough for the press — a lot of journalists can’t handle judging the merits of things without a lawyer telling them unfortunately so yes, it should have been enough to get something rolling, but it is no reflection on you that it didn’t.

        The press is at its weakest point in US history

        People who have never needed advocacy, publicity, community involvement almost always express shock to me when they learn it is harder to get than they would have thought. It is really hard and at times a a surprisingly humiliating experience.

        It should have caused outrage and protests outside the courthouse.

        Re FBI — well, so much for their stated priorities.

        What action would you/she like to see now, if you/she had your druthers?

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