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.