And now a technical legal point. Sometimes these technical legal points are important. To courts and lawyers, anyway.
A guilty plea does not generate all by itself what we lawyers call a “judgment”. The “judgment of conviction” is not entered until the sentencing. There was no judgment of conviction in Sephora’s case in Livingston County Court until January 3rd, 2007.
So even though a guilty plea had been entered on October 20, 2006 the proceeding in the Appellate Division to put a stop to all this went on.
I brought another motion for summary disposition in the Appellate Division on November 17th, 2006 and we were scheduled to go argue the matter on November 24th. Of course the main features of this motion were the statements of Ashley Baker and Todd Gaddy, showing that the entire prosecution of Sephora Davis was a law enforcement sponsored frame up job. No evidence was offered in opposition. The opposing papers from Moran’s attorneys were purely rhetorical and formal. The frame up job was, in legal terms, conceded. None of the facts being contested, there was nothing to talk about other than “law” and “procedure”.
We had oral argument in the Appellate Division on November 24th and Judge Nancy Smith was clearly the “hot judge” on the four judge panel, meaning that she was the one who knew the most about this particular case on the calendar that day.
All she talked about was Sephora’s guilty plea, and how that gave the court a “real problem, procedurally.”
There was no procedural problem. You grant prohibition, the prosecution is stopped, everyone goes home. What was the problem? What was the alternative? We’re going to let police and prosecutors rape a girl and then frame her for something she didn’t do and send her to prison on an Alford plea because that’s easier?
The question I wanted to ask Judge Smith, and more or less did ask albeit more politely and formally was: “Are you out of your fucking mind?”
Judge Hurlbutt expressed misgivings about the plea deadline fiasco. But it didn’t bother him enough to really think about it or do anything about it.
In the end, the Appellate Division punted in the most disgraceful and truly disgusting display of judicial diffidence and cowardice I had yet seen:
Notice how the legally conceded facts about perjury are misrepresented. Notice how the little rape episode isn’t even mentioned.
So they took little Sephora Davis off to prison on January 3rd. Eric Harder had his way with her. Dana Carson had his way with her. Tom Moran had his way with her. Judge Kohout had her way with her.
For the next three years, the New York Department of Corrections would have their way with her. And then the Division of Parole gets her.
Now, when women in other countries that we call backward are raped by officials and higher officials sign off on it or ignore it, we grant them asylum.
In other words, it is the position of the United States government itself that what happened to Sephora Davis is a violation of international law. Like a war crime. Under the Nuremberg Principles, no country gets a pass on even one such violation.
No one contends, of course, that German judges and prosecutors destroyed as many lives as did the SS, Gestapo, or other agencies of the Nazi machine. Their victims number in the thousands, not the millions. A judge who knowingly sentenced even one innocent Jew or Pole to death was, however, guilty in the eyes of the prosecutors and judges at the Justice Trial in Nuremberg. There would be no “only a couple of atrocities” defense.
I had mentioned all this in my first motion for summary disposition in the Appellate Division in September of 2006. I was trying to put them on notice, even then, that if they did not do their job on this case they would be guilty. And unlike all the bullshit that goes on about how judges are immune for civil damages purposes, there is no immunity for criminal conduct. There is no immunity for judges when they violate very basic international standards of human rights through a state sanctioned rape.
I guess they weren’t taking me seriously or something. Actually they were, kind of, but they didn’t want to deal with it and handed it off to someone else.
That’s a story for maybe later.
Of course, after the Appellate Division punted I tried the next level to get a stay, at the New York Court of Appeals, New York’s “highest” court, but they didn’t do anything either. It required a trip over the Christmas holidays to Albany. I also had to visit my wife and daughter in Sault Ste. Marie over that period, though of course my marriage was falling apart by that time. My adult son helped with the driving for all this, which when all was said and done was a couple thousand miles. We had lunch at some restaurant in Albany after I got the stay application filed. My son got some bad chili and spent most of the night retching after we got back home to the Rochester area.
The stay application went to yet another Judge Smith. It was denied of course.
Remind me to avoid judges named Smith.
Now, after someone is taken away to prison there are a million things you can do. The beauty and bane of the system is that ultimately, nothing is ever finally decided, pretenses of the desire for finality notwithstanding. There are more state court procedures. There are federal court procedures.
The problem from the practitioner’s standpoint is that all of these procedures are more or less meaningless. They are held out in front of you like the rabbit in a greyhound race, with exactly the same effect: you scramble and chase it and never catch it. From the client’s perspective the whole thing is a monumentally twisted exercise in draining them of money while the system tortures them or their loved one, and you endure disappointment after disappointment until finally you throw in the towel.
The whole idea in this broken system, in other words, is to wear you down and break you. I could put it quite a bit more dramatically here, but you know why bother. The facts speak for themselves.
In any case, even knowing that this is how it is, I told Sephora we would do everything, that we would never stop until this wrong had been righted. And I went to work. And I am still working, albeit in very reduced circumstances and in another country.