Witness Tampering By The Conspirators – Appellate Division Punts

The next step was to interview Todd Gaddy and Ashley Baker, who had by then become husband and wife and still lived in Mount Morris, where Todd still worked at the pizza shop.  After several attempts in October I did this early in November, 2006 with a private investigator named James Monroe, who was affiliated with Don Thompson’s office.  Without going into too much detail at this point, suffice it to say that the Livingston County law enforcement apparatus learned that we were on to this evidence and mercilessly tampered with and intimidated these witnesses, culminating in Todd Gaddy’s arrest within a few weeks:

As all this was going on in the fall of 2006, the Appellate Division came down with its “non-decision” decision on the motion for summary disposition:

Smoking Gun Part Two: Todd Gaddy

I wondered if there was a statement from Todd Gaddy, too.  So I went back to Don Thompson’s office, looked through the file and indeed there was:

 

According to Todd Gaddy’s statement, the subject of the robbery never came up in the pizza shop.  It didn’t come up until a later conversation that was outside his apartment.  There was no mention of  Shaun saying “Sephora was the driver.” at all.

In other words, according to Todd Gaddy’s statement the conversation described in Ashley Baker’s statement never happened, which of course only further confirms that it was a fabrication by Carson.

And if all this wasn’t enough – and it was – I had interviewed that witness two years earlier, remember?  The one who said he helped Shaun Theriault retrieve the shotgun from some bushes in Geneseo and brought him back to Mark’s Pizzeria in Mount Morris?  That corroborates Gaddy’s statement, which again if it is true means not only that Ashley Baker’s statement was false but a deliberate fabrication by Carson designed to implicate Sephora Davis as the driver for the robbery.

If things hadn’t been clinched yet, this clinched it.  There was now no room for doubt.  The entire narrative of Sephora Davis being the “wheelman” for the armed robbery and kidnapping was made up by the police, starting with Dana Carson.  And the evidence proving that was all in the prosecutor’s file, which had been withheld from me for two years.

Which implies quite strongly that the prosecutor knew all about it.  Perhaps he had even orchestrated it himself.

What a mess.

 

Smoking Gun Part One – Ashley Baker

There were several hundred pages of documents, almost none of which I had ever seen.  I went to Don’s office and reviewed them.  One thing that jumped out was a statement taken from Mechal Fuoco back in 2004:

Imagine that.  It was taken, and physically written out, by Dana Carson.  I knew from early on that this statement existed, but I didn’t know who had taken it.  In fact, I had specifically asked Moran for this statement in October of 2004, before we had even testified before the Grand Jury (review this post here), but he had refused to provide it to me.

I found out from Fuoco herself, right before I withdrew in Livingston County Court, however, that Dana Carson has physically written the statement out.

So for the first time I saw what Dana Carson’s handwriting looked like.

Note how peculiar it is, small printing with odd capitalizations.  Note that the statement is finished with a large “X” across the page.  None of the other statements were like that.  This is how Dana Carson writes out a statement for a witness or suspect and it’s peculiar to him.

Then came this:

This, ladies and gentlemen, is fabricated evidence.  And it is fabricated evidence precisely to implicate Sephora as “the driver” for the crime.

And it was quite obviously taken by Dana Carson, although he didn’t sign this one, which of course only makes matters worse because it indicates that he himself knew he was fabricating evidence and may have felt guilty about it.  Which in turn implies that maybe he was being directed to come up with some fabricated witness statements from people who could be successfully pressured to commit perjury at trial.

And – and this is critical – it also shows that at least Dana Carson knew that Sephora wasn’t driving the car, otherwise why fabricate a witness statement to say that she was?

But then how would he know she wasn’t driving?  He wasn’t there.

Recall, though, that Carson was the officer who “cracked” the case and introduced everyone to Eric Harder.  Carson had access to Harder first, before anyone else.

Thus it must have been Harder who had told him that Sephora was passed out and not driving the car, and Carson persuaded him to say that she was awake and driving.  In other words, Carson suborned perjury.  And so did anyone who knew what he was doing, then or subsequently.

The first question to investigate as a result of getting this statement was, who the hell is Ashley Baker?

Sephora’s sister had previously mentioned to me that she vaguely knew Dana Carson’s girlfriend, who I seemed to recall was named Baker.  At first I thought how stupid would that be, to use your own girlfriend to fabricate evidence?

Turned out Dana Carson’s girlfriend’s name was Leslie Baker, not Ashley, and there was no relation between the two.  I usually figure there are no coincidences, but this apparently was one.

It took about a week of digging around to confirm all that.  In the meantime something else occurred to me.  Ashley Baker’s statement refers to a conversation between Shaun Theriault and her boyfriend, Todd Gaddy, taking place in Mark’s Pizzeria in Mount Morris, during which she supposedly overhears Shaun say:  “Sephora was the driver.”

I wondered whether there was also a statement from Todd Gaddy.

Trying To Stop A Prosecution

In the meantime I was indeed hard at work getting the prohibition proceeding prepared.  The prosecutor and the judge are both respondents in the proceeding.  I filed it on May 18^th and served Kohout with the papers and she wasn’t happy but then neither was I.  I also had Moran served about that time.

The State Attorney General appears in such proceedings for the Judge, and that’s what happened here.  The drill is, the judge appears and neither admits nor contests.  For those of you who are interested in such things, I think it’s New York Civil Practice Law and Rules 7804(i).

Moran?  Well, he defaulted.  At first I thought I had screwed up serving him and practically had a heart attack.  I was beside myself, because I might have messed up my only chance to get the prosecution stopped before the trial.  But turned out it was just a plain old default.  He just didn’t answer in time.

Judge Kohout Appears

Having a conflict of evidence, which is the stuff of trials, is very different from having a concerted and coordinated effort by police and prosecutors to fabricate evidence and commit perjury.  And there was now reason to believe I was looking at the latter.  Such conduct by those officials makes a fair trial impossible.  At least, that’s my position.  But it’s not the law.  Not yet.

Both Livingston County Court Judges, Cicoria and Alonzo, were due to retire at the end of 2005 and the rumor was that two Family Court Judges from Monroe County would be assigned to take over while their replacements were trained:  Judge Joan Kohout and Judge Gail Donofrio.

We got Judge Kohout.

I had hoped that things would be different with Judge Kohout, and in a way they were:  they were worse.  Most attorneys thought she was good for a criminal defendant, but I heard reservations about how good she was when the criminal defendant was female.  My own limited experience with her over the years had not been good.  She would pick sides and wouldn’t give the disfavored side a fair trial if it came down to that, using her position in the usual duplicitous judge fashion.  She had a vindictive streak.  When she was first elected to Family Court she had been challenged by a lawyer named Ardeth Houde, that my office had represented in the usual litigious shenanigans that often surround contested elections in New York State.  Kohout prevailed and then “banned” Ardeth from appearing in her courtroom.  This was improper, and like I said vindictive, but she got away with it.  Judges are pretty pampered.  That’s one reason a lot of lawyers aspire to be judges.

It was during this time that the law enforcement types in the Livingston County courthouse became quite hostile to me.  Nothing overt.  No threats.  Just dirty looks, sneers, palpable animosity from everyone with a badge and a gun, and such people are all over the place in a courthouse.  It happens from time to time but it had never happened to me before:  I try to be a courteous and genial fellow.  It’s more than a little unnerving.

The Police Conspiracy Emerges

In the meantime, on October 16^th Sephora had her baby.  To give you the flavor of how things began to go seriously south in Livingston County Court, Sephora was late coming to court on the 25^th because on the way out the door the baby – who was 9 days old – pooped its diaper as babies will and she had to go back in to change her.  I was already in court and relayed all that to the judge and Moran while we were in the judge’s chambers  Moran starts having a fit, pacing back and forth all red in the face and threatening to send a sheriff’s deputy to arrest her.  I said something along the lines of “What the fuck is the matter with you?”  Then the judge said something I didn’t like, I can’t remember what it was, and I said something to him along the lines of:  “And I can’t believe you issued that opinion and didn’t say anything about her being raped.”  And, you know, that might have been a little out of line and the judge got mad and retorted “What, are you writing my opinions now?”  Which was kind of funny, I thought.  And I always liked Judge Cicoria.

But he should have listened to me on this.

So eventually Sephora arrives and the baby is there and I raise the issue of whether we should proceed at all because we still hadn’t had a ruling on her competency to proceed and we decide not to after Moran blathered on about something or other, including mentioning – and this was weird and totally out of the blue and after all, I hadn’t been the guy pacing and ranting and raving in the judge’s chambers – that he was concerned about my “mental health”, to which I responded quite pointedly that if he was seriously concerned about me and my representation of the defendant for some reason he should bring a motion before we did anything else.  Which he never did.

But before all that happened Moran points to a few papers in front of my spot at the defense table and blustered:  “There’s your Rosario material.” Which is a kind of discovery. There were just a few papers there, three or four.  Moran was being very stingy about providing discovery, but then he would sort of episodically provide something, like those Grand Jury transcripts, that you wouldn’t have expected at all.

As it happened, this particular sheet of paper, some police notes, caught my attention and it was another of those things that gives you the willies:

The Stephanie Fox Affair

I was finally able to arrange a meeting with Stephanie in September of 2005.  Her knowledge of the events in question was limited to this:  she had been at the Davis home in Avon on the evening of December 8^th.  She recalled that about 8:30-9:00 PM Sephora came in acting strangely, went upstairs to her room, changed her clothes and left.  She was in the company of her girlfriend Mechal, who stayed downstairs and chatted while Sephora had gone upstairs.  They had arrived in Mechal’s new car, a gold colored Dodge Neon, that remained parked in the driveway.

At first I was incredulous at this account.  This would mean that Sephora had returned home a couple of hours after Harder had raped her and then left again with Mechal.  I told Stephanie that she must have the wrong night, but she remembered that she had to go home early because she had a doctor’s appointment the next day, and she later confirmed this appointment with her doctor’s office.

Other members of the family who were there also remembered this event, once prompted.  And Sephora’s father remembered talking to Mechal outside on the front porch, noting her new car that was parked in the driveway.  He had thought he saw someone sitting in the car who did not come into the house and asked Mechal who it was.

She had replied:  “Oh, it’s just my friend Lard.”

“Lard” was Eric Harder’s nickname.

This explained Sephora’s statements to me on the phone almost a year earlier that Harder “knew where she lived.”  This was a characteristic difficulty:  for whatever reason, whether it was because she had been sexually assaulted or because she is female or both, or some other reason, Sephora’s memory about all this was diffuse and impressionistic.  She did not remember the fact of going home that night but she remembered what it meant to her.

Later in September of 2005 I received Judge Cicoria’s written decision on the motion for dismissal “in furtherance of justice”.  It was denied, which was not surprising, not because it shouldn’t have been but because they’re never granted.  It’s as if the statute authorizing them may as well not exist.  Even so, I was extremely miffed that in noting that no “compelling factor” existed warranting such a dismissal under the statute involved, he neglected to mention that Sephora had been violently raped by one of her supposed accomplices.  Just kind of forgot that part.

I don’t have that decision available.

Anyway, this cleared the way for a pretrial “Huntley” hearing to determine the admissibility of Sephora’s unsigned statement and it was scheduled for October 25^th.

The Long Trip To The Whole Truth Begins

I think I only saw Sephora once or twice over the next few months.  By the time I got back from my Canada trip later in November she had reverted to the “I don’t want to talk about it” mode and was making herself very scarce.  Her parents mostly didn’t know where she was or who she was with but her mother would occasionally track her down somewhere in rural western New York or in the Buffalo area with her boyfriend.  The thinking was that there was a lot of drug use involved.

I wanted to get an affidavit from her but she wouldn’t cooperate with that.  I talked with her psychologist a few times, prepared some motions with what I had and filed them in December seeking, among other things, dismissal of the indictment “in furtherance of justice” due to the fact that Sephora had be violently raped by one of her supposed accomplices in the hours before she allegedly aided and abetted him.  Such pre-trial relief is authorized by statute in New York in criminal cases as a matter of trial court discretion.  It is, as a practical matter, never granted.  On those few occasions when it is, appellate courts regularly reverse such decisions and reinstate the indictments.

Just how it is.

With the motions I included a letter to Tom Moran in which, again among other things, I expressed concern over the involvement of Mount Morris Police officer Dana Carson in the investigation leading up to Sephora’s arrest.  To be honest, I didn’t consider the Carson stuff that big a deal, but Sephora’s parents had complained about Carson’s involvement quite a bit.  I mentioned it in the letter to Moran more to mollify them than anything else.

When I didn’t hear back from Moran I followed up with a phone call to him a few days before Christmas.  I got him on the phone but he seemed very uninterested in talking and was basically antagonistic.  There were a few terse words between us and little else.  He indicated he was adamantly opposed to the motions I brought and I would have a response the next month.  I asked him how he could continue to prosecute under these circumstances and he responded “How can I not?”, said something about there being “…a lot of people involved.”, and that was pretty much that.  This became the pattern of our communications on the case.  In fact, despite many efforts on my part, Tom Moran and I have probably spoken less than 100 words to each other about the Sephora Davis matter in the seven years it has been going on.

Getting The Facts – The First Part

Moving on, then.

In the wake of concluding that Harder had raped Sephora, my first concern was for her personal safety.  It was difficult to imagine what she must have been going through inside, having been raped and then charged with crimes she knew nothing about carrying a potential life sentence.  The risk of self-harm was obviously high and confirmed by her somewhat erratic behavior, and in addition her inability or unwillingness to relate the facts, even to her own attorney, implied a serious psychological disconnect.  Or so I believed.  This was a matter for trained professionals, I figured, so I began scouring around for social workers and psychologists who could handle that aspect.

But the more immediate problem for me was the Grand Jury appearance less than two days away.  There was an entire statement I had prepared and reviewed with Sephora for that appearance which was now overtaken by events.  It had to be scrapped.  An adjournment was out of the question:  if I asked for another one Moran would have simply taken the position that we had waived the right to testify.

What I decided to do was to prepare a new and much shorter statement which basically indicated her ignorance of the facts and requested that the Grand Jury re-call Adrian Paige as a witness – and me.

None of this worked.  During a break in the testimony I told Moran I thought Sephora had been raped, but he ignored that, successfully discouraged the Grand Jury from re-calling Paige, or calling me, or getting the medical records that I had also requested, and simply called for them to vote an indictment, which they dutifully did.

Sephora remained out on bail, but she was understandably very upset at having been indicted and disappeared a lot.  Contacting her became difficult for me and her parents.  She did manage to make a few appointments with social workers and a psychiatrist but didn’t follow up and would then disappear again.  One rape counselor became convinced that she had been raped but Sephora provided no details and then failed to appear for her next appointment.  Then she missed several more with others.  She claimed not to like the social workers I sent her to, I tried two or three.  There was a male psychologist she liked, but she missed appointments with him and didn’t give him any details either.

Weeks of this went by. I had nothing I could really use, because although I had an idea who had raped her and some idea when, I didn’t know where or how.  Since Sephora had been seen driving with the rapist in the car, it could have been anywhere within driving distance.  I didn’t know who would have jurisdiction, or who to report it to if we decided to do so.

The sooner I knew the details the better, I thought.  It was impossible to proceed to do anything without knowing what the facts were, or at least knowing what she would say the facts were, even if in the end she said she didn’t remember or something.  If that was the case, better to know now.  Right now, I thought.

After the trouble of getting her to open up to anyone else, I began to gingerly broach the topic myself on those seemingly rare an unpredictable occasions I spoke with her during this time.  I greatly preferred that whatever information she had be provided to someone else in the first instance, fearing that I might become a witness if it was me.  But getting the information was the main thing.  And it was urgent.

Unassailable Corroboration

I was eventually able to fix about a 1-1/2 to two hour window in which the rape must have taken place:

The reason for this was the first call to Katrina Gerew had taken place at 7:14 PM.  The events Adrian described would have taken about three hours beginning at 2 PM.  That would mean Sephora left Adrian’s house in Geneseo about 5 PM, give or take, in the company of her girlfriend Mechal and Eric Harder.

At 7:14 PM – a little over two hours later – Sephora was worried that she was pregnant and called Katrina Gerew.  In fact, she called Katrina twice that night, and the rest of the phone records indicated that she rarely called Katrina.

Sephora was really worried that she was pregnant that evening.

But she had been in the hospital that morning and had been given a pregnancy test, which was negative.  She was discharged from the hospital at noon.  Why was she so worried that she was pregnant seven hours later?  This implies an act of sexual intercourse taking place in the seven hours between the time she was discharged from the hospital and the time of the call to Katrina Gerew.  The only males who were identified as having been in her company during that interval were Adrian Paige, and Eric Harder.  In her interactions with me she had no difficulty discussing Paige, but her reaction when the subject of Eric Harder came up was very strange, and her denials about ever having met him were not only false but otherwise inexplicably so.  Ergo…