I. Dramatic Foreshadowing

This story really begins before I ever met Sephora Davis or her family.

Back in 1988 while I was waiting for the results of the New York Bar Exam, I pinch hit as a law clerk for then State Supreme Court Justice Richard Wesley – who now sits on the United States Court of Appeals for the Second Circuit.  Judge Wesley developed the charming practice of holding annual parties for all of his law clerks, past and present, until a couple of years ago when the numbers got too unwieldy.

One of the law clerks who followed me was Tiffany Lee, who is now an Assistant United States Attorney in Rochester.  She is married to Eric Schiener.  For as long as I have known him, and I believe to this day, Eric has been an assistant district attorney in Livingston County, working under none other than one of the anti-heroes of our story – Tom Moran.  I didn’t do much practicing in Livingston County, even though for a long time I lived there.  My office was always in the big city, Rochester.  So my contact with Eric was pretty much limited to these annual parties.

In the summer of 2004 I was attending one of these parties at Judge Wesley’s house.  They had by that time gotten to be quite large affairs, many of the former law clerks had spouses and children, which was really nice because Judge Wesley had a big house with large grounds and a swimming pool.  But on this occasion, in the midst of all this wholesome revelry with kids jumping in and out of the pool and otherwise running around I happened to notice that Eric was sitting at a picnic table off by himself staring into space.  So I approached him and asked if there was anything wrong.

“I’m seeing a lot of bad things at work.” he said.  “…a lot of bad things.”  Just like that.

I asked him, you know, what kind of things, and he wasn’t very specific but mentioned that his office was prosecuting people just so they could lay claim to federal “Homeland Security” money, and it was clear that this was not the only Bad Thing he was referring to.

I didn’t say much of anything meaningful in response that I can recall.  It didn’t seem like my problem, it seemed like Eric’s problem.  Like I said, I didn’t have much business in Livingston County.

Which brings us to point number one:  I was wrong about that at the time.  I am an attorney, I was senior to and more widely experienced than Eric, and I should have made it clear to him right then and there that I cared, and I didn’t do that.  In fact I should have done at least that; arguably, I should have done a lot more.  It probably wouldn’t have made any difference – after all, despite subsequent events that unquestionably involved me Eric has been nowhere to be seen – but there are no guarantees in this business.  You do your duty regardless.

I wrote an email the next day to someone about my encounter with Eric, someone who was always complaining about all the evil people in the world at the top who cause all the problems.  The gist of the email was that Eric and Tiffany had just had a baby and Eric had this big problem and Eric wasn’t going to do anything about it because he needed his job but he was bothered by it and I guessed would just continue to be bothered.  And that this had more to do with all the evil in the world than some asshole at the top.  And that you couldn’t say that Eric and Tiffany were evil people at all, in fact they were two very nice and intelligent people and I liked both of them immensely.

And so the origins of evil in the world were mysterious, and sort of partly our doing but also partly out of our control.

I kid you not.  I sent an email like that.  There might be a copy of it somewhere but I don’t have it right now.

And I hasten to add that I had a good 10 years on Eric and I didn’t do anything to help him or even give him encouragement, at least not right then.  The point being, if there was an asshole in that conversation it was me.

In any event, within a few weeks Eric’s problem became my problem in a very big way indeed.  And apparently, as far as Eric is concerned, not his problem anymore, because Eric is now Moran’s first assistant and is poised to take over as Livingston County District Attorney in the wake of Moran’s election to state supreme court this November.