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 8th.  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 25th.

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11 Comments

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

11 responses to “The Stephanie Fox Affair

  1. But what was the evidence presented to the judge that the rape had occurred? An affidavit from you relating what your client told you? Can you post a copy of the motion and any supporting affidavits, and any papers filed in opposition? Also, regarding the claim that Dana Carson fabricated all this evidence: his motive rested solely on your client’s claim that he had propositioned her and she had rejected him, right? I get that you can personally know a person and know that they’re telling you the truth. But the judges ruling on these motions aren’t in that position.

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    • Sephora provided an affidavit for the prohibition proceeding, and then there was all the corroborating evidence included. Judge Kohout was personally served with those papers and was a party respondent beginning in May of ’06.

      Of course this was earlier – September of ’05. I expected Judge Cicoria to order a hearing if he had any doubts. There was no affidavit from Sephora in front of him, but there was all the corroborating evidence indicating that Harder had raped her. And there was a lot of it. You have to remember there was so much evidence about it that I was able to conclude that Harder had raped her before she ever mentioned anything about it.

      You’re asking for a lot of posting. I might post all that stuff, it was all publicly filed, but it would take a while.

      Dana Carson. Well, he had that history with her and that was part of it. But the whole law enforcement establishment of Livingston County was peeved at her for their own reasons. And they had their own ideas, more in the nature of gossip and surmise, about the type of person she was and the family she came from.

      In any case, while it is a 100% certainty that Carson participated in the frame up job and spearheaded it out in the field, it is not certain that he instigated it all by himself. There’s ample reason to believe that the prosecutor, Tom Moran, instigated it. But there’s no doubt whatever that the Ashley Baker statement is a knowing fabrication of evidence by Carson to the effect that “Sephora was the driver”, which means he knew she wasn’t the driver.

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      • I reread your post on Ashley Baker, and it’s still not clear to me what the basis is for saying there’s no doubt whatever that her statement was a knowing fabrication of evidence by Carson, other than the fact that Carson was the one who took the statement, and its arguable inconsistency with the Gaddy statement. But inconsistencies in witness statements don’t prove a fabrication, and the allegation that it was improper for Carson to take the statement is based on his alleged prior history with your client, which in turn is based entirely on the word of your client.

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        • All good, standard lawyer questions.

          First thing is, there is very little case law on just what amounts to evidence being “false as a matter of law”. I’ll try to find the case and cite for you, but Cardozo wrote an opinion many years ago – in a case out of Rochester, which is kind of eerie – in which he overturned a murder conviction because the defendant was a legless man who would have had to overcome a much larger and more powerful man in order to kill him.

          The Ashley Baker statement is inherently extremely unlikely. There are an almost infinite number of things that she could have overheard in a conversation in the pizza shop about the robbery – “It was dark out.”; “The kid screamed when I pointed the gun at him.”; “We used walkie talkies to communicate.” But she doesn’t overhear any of that. She overhears the single most controversial and provably false thing in the whole case, the very thing on which the guilt or innocence of Sephora Davis depends, and only that one thing, and discusses only that one thing with her boyfriend and doesn’t discuss anything else.

          It is not absolutely impossible. But like the legless man being guilty of overpowering the much larger intact man, it is false as a matter of law, even without taking other things into account. And there’s a lot more to take into account.

          There is more to the motive here, as well. The statement was taken on January 24, 2004. There were three individuals, other than Sephora herself, who could testify about who was driving the car. Harder was already onboard. But Adrian had not yet given them a statement and Theriault had left town and wasn’t apprehended until later. So they were worried that both Adrian and Shaun would contradict Harder and that would be a problem. With Ashley Baker’s statement, if Shaun told the truth and said that Sephora wasn’t driving and was passed out, they would have a prior inconsistent statement they could offer to undercut this claim, and ordinarily that’s enough so that a jury would resolve the conflict in “evidence” in favor of the prosecution and deliver the conviction.

          Which of course suggests a lawyer’s mind behind this, but that is another problem.

          Moving on, if you look at the Baker statement closely, you will see that she does not sign it in the place where she would be subject to prosecution for giving a false statement. But police officers are trained to make absolutely sure that witnesses sign their statements there. Carson’s failure to do that is either evidence of his consciousness of guilt, or a coincidence. Same with his own failure to sign as a witness.

          Combine that with the inherent and extreme unlikelihood that the statement is true in the first place.

          And that doesn’t even get into the conflict with Gaddy’s account, which was taken separately by two different police officers.

          Or the fact that Gaddy’s account is independently corroborated.

          There is no evidentiary thing I or you or anyone else has ever seen – ever – that is more assuredly false and fabricated evidence than Ashley Baker’s statement.

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        • John, that Cardozo case is People v. Galbo, 218 NY 283 (1916)

          It’s just really hard to find any law on the idea of what constitutes “false as a matter of law” because appellate courts in our country deal with questions of law and practically never analyze evidence.

          It’s an interesting contrast in Italy where that Amanda Fox thing is going on. Apparently over there the appeals courts conduct a whole new trial, taking new evidence and everything. We find this weird.

          One of the reasons I love Cardozo so much is that he would take up issues like that and discuss them. And his reasoning was so good.

          And he was a gentle soul.

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  2. Wouldn’t the account of Stephanie Cox be extremely problematic and undercut the basis for your motion to dismiss in the interests of justice and your subsequent petition for a writ of prohibition? I have to ask: Have you satisfactorily resolved the concerns raised by the attorneys whose opinions you said you respect, which you mentioned in a previous post? Have you cleared all this with the person whose opinion matters most?

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    • I had never not cleared all this. To me it wasn’t an issue. But when someone of substance – say, another attorney – expresses a concern I think it prudent to address the concern before proceeding, so that’s what I did.

      I think the Stephanie Fox affidavit confirms rather than undercuts. The scenario she describes has elements of classic post assault behavior – cleaning up and changing clothes, for example.

      It helps to know the family too. If Sephora had gone into the house and told her father what happened and said the guy who did it was outside in Mechal’s car, it would have taken Mr. Davis about 15 seconds to go out there and shoot him to death. I think she didn’t want that to happen. She was probably not thinking too clearly either, but then who would be? What are you supposed to do in that scenario? In any case, the facts are the facts, and I think a lot of this shows how interpretations of facts matter as much as the facts themselves.

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      • I have to concur with Norm Pattis: “Rarely a day goes by in which conspiracies of this sort are not alleged. Proving them is difficult.” That isn’t to deny that you personally might know as certainly as anyone can know anything that the evidence against your client was fabricated, but the rest of us on the outside aren’t in your shoes, don’t have the first-hand knowledge you have. That would seem to go also for the judges whom you’ve implied willfully disregarded what they knew to be true, and hence made themselves part of the conspiracy. (And you know I’m always ready to believe the worst about judges.) This is why the documents and affidavits actually filed in court, including the documents and affidavits filed in opposition, would be helpful. Your story, as I mentioned in a comment at the beginning, seems implausible on its face. That doesn’t mean it’s not true. It does mean you’ve got a high burden of proof to really persuade or convince. I hesitate to comment further on your account, because to properly test your account with the requisite skepticism, which you invited readers to do at the beginning, would seem to almost put one in the position of a prosecutor, and in a sense at odds with a real human being. I hope you can prove your case, here and in the Canadian immigration hearing.

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        • John, it’s perfectly okay if you’re not convinced yet. Part of what I am doing here is to try to get some feedback.

          The difficulty is compounded by the fact that this information is the product of years of investigation and effort and I have to condense it into something clear enough that anyone can see it. That’s what I’m going to have to do at the hearing on September 29th.

          My appraisal of my own writing skills is that they are not great, occasionally good but uneven. I’m hardly gifted.

          I’m working on a chronological summary post that will link back to the posts containing the relevant documents. I think that may help readers put two and two together here. The blog format may be a bit disjointed for this purpose, but I’m going to work with it.

          So just be patient. Keep an open mind. If you have questions you think are too involved for blog comments feel free to email me.

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            • John, what I recommend is that you read the chronological summary I’ve posted and make sure you understand it fully. Then for present purposes, forget about the Todd Gaddy statement. You should view the Ashely Baker statement by itself in context and see it as a patent fabrication, relating an incident that is impossible as a practical matter although not impossible in the absolute sense, as Cardozo would say.

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