Daily Archives: August 18, 2011

VIII. Glimpsing The Truth

At first, as if through a glass darkly.  But a lot of important things are like that.

Between the hospital record and Adrian, I could now account for much of Sephora’s time in the day leading up to the robbery, something Sephora was unable to do for reasons that were now obvious.  Specifically, I knew where she was and more or less what she was doing between roughly 9 AM until maybe 5 or 6 PM on December 8th.  From Adrian, I could also account for the period from roughly midnight on.  What I could not determine was how Sephora wound up passed out in the back of Mechal Fuoco’s car around midnight, and where she had been or what she had been doing for the roughly six hour period before that.

In theory, of course, it should be enough for my purposes to show that she was passed out and not involved in the robbery itself, but in reality that’s not all there is to it.  When you try a case – and as a trial lawyer you must always be thinking about the trial – your evidence has to support a coherent story that a jury can believe.  Because the criminal defendant is a disfavored litigant, you must overcome skepticism.  Consider that in this case, my own skepticism had to be overcome – and I was Sephora’s lawyer, predisposed to that.  A jury has the opposite predisposition.  So that six hour gap had to be filled in, somehow.

I got a bunch of Sephora’s medical records in the days leading up to the Grand Jury appearance.  I had done quite a bit of personal injury work.  I was used to reviewing medical records.

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VII. Adrian Paige Interview (Part 2)

One immediate emotional reaction I had was a feeling of guilt.  I had been skeptical and somewhat disbelieving of my own client who, as it was now turning out, was completely innocent.  Her seeming evasiveness, her false, or at least less than credible and incomplete accounts were not the result of dishonesty but genuine ignorance about what had occurred.  This was an innocent person.  And she was in a lot of trouble.

And now so was I.  Much more than I even knew at that point.

I began fumbling around looking in my traumatized and still reeling brain for questions to ask Adrian.  Eventually I regained my composure, but not before Adrian, in the midst of answering some question or other that I had put to him, noticed I was zoning out and pointedly asked if I was listening to him.  It was impossible for me to stop my mind from racing backwards, re-evaluating everything I had learned up to that point, even as I tried to continue the interview.

Adrian outlined a long and complicated itinerary of events leading up to the robbery at 4 AM on December 9th that began at about 2 PM on the previous afternoon, December 8th.  He also indicated that he had already been brought before the Grand Jury to testify, as it turned out on the originally scheduled date of October 6th, just a few days prior to our meeting.  He said I could disclose what he told me.  He said he would come back and testify before the Grand Jury again.

I returned two days later to write down his account as he told it to me, arranging beforehand to be permitted to bring in a pen and paper.  Adrian’s account was later embodied in an affidavit:

Learning the truth is one thing; proving it is another.  The statements of Adrian Paige to me, to a large degree inconsistent with other statements he had given, would not hold up well unless they could be corroborated.  On the Sunday between the two meetings with Adrian I contacted Sephora’s mother.  The first thing Adrian had said to me was that Sephora was “sick all day”.  I asked Sephora’s mother to find any records of Sephora having been treated in the previous year.  She produced a bill showing that Sephora had been treated at Noyes Memorial Hospital in Dansville on December 8th, 2003.

The very day this had all taken place.

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VI. The Interview Of Adrian Paige

The other thing that came up a lot during this time was that Adrian Paige was incarcerated nearby, just south of Mount Morris, and they all wanted me to go see him.  This was not a bad idea – Adrian had been the ringleader and when he pleaded guilty he made a clumsy effort to exonerate Sephora – but I couldn’t think of a way to approach him.  Such an interview would require a plan.  It was not a social visit.  I had to have a way to be assured that he might actually talk to me and tell me the truth, and perhaps even something useful.

As fate would have it, during that one week adjournment of the Grand Jury appearance I thought of something:  I would tell Adrian that I had determined that a second car and a second female were involved and that I suspected his girlfriend Angela, even though I really suspected it was Mechal.  Then I would threaten to implicate Angela if he didn’t tell me all the facts he knew and the whole truth.

I got permission from Adrian’s attorney to talk to him and arranged to see him on Saturday, October 9th.  It became the interview that changed my life forever, which sounds, you know, melodramatic but there it is.

There’s something about finding out you have been lied to in a major way, when you weren’t expecting it at all.  It provokes a temporary paralysis.  It’s as if the brain experiences a short circuit and shuts down to receiving new input while it figures out how to re-route your thought process away from what you now know is false.  But it takes a while to close off this wayward detour and direct your mental traffic properly.

I remember the first few minutes of my interview with Adrian Paige on October 9th, 2004 pretty much perfectly.  The rest is a blur.  I had to go back two days later, on the 11th, because the prison wouldn’t let me bring a paper and pen in with me the first time, and the details were important, as they usually are.

After clearing the security areas I was directed to the prison cafeteria, which is just like a school cafeteria – a big room with collapsible tables, vending machines and so on.  There were private rooms off to the side with big windows so that the guards could see in.  Mostly this is where inmates would have some private visiting time with children who came to see them.  The private rooms had toys and games for the kids to play with.

I took Adrian into one of these rooms and asked him if he wanted something to drink.  At first he said no but then agreed to a Pepsi.  I got one for him from one of the vending machines, brought it in, closed the door and sat down at the small table across from him.  As I slid the can of Pepsi over to him I identified myself as Sephora Davis’ attorney and told him I had gotten permission from his own attorney to talk to him.  From there it went like this:

“I’ve been investigating this case.  We’re going in to testify in front of the Grand Jury in a couple of days.  I’m sure that there was another car and another female involved in this robbery, and unless you can tell me otherwise and it’s the truth I’m going to have to assume that it was Angela and she will be implicated in front of the Grand Jury…”

Adrian reacted right away:  “Wait a minute, wait a minute….”  He was shaking his head and motioning with his hands, the sort of jerky, palms down gesture indicating he wants you to stop.  “You want the truth?  You want the TRUTH?” he asked twice.

“Yes,” I replied, “I need the truth, Adrian, and I need it right now.”

“Sephora was sick all day.  All day.”

“What do you mean, ‘sick’”?

“She was sick.  Passed out.  Out of it.”

“What are you talking about?  She was driving you guys around.”

“She wasn’t driving.  I was driving.”

Now, you may need to go back and review the documents I’ve already uploaded to appreciate just how shocked I was, absolutely shocked, at this statement.  Because of the circumstances of the interview there was no doubt in my mind, none whatsoever, that Adrian was telling me the truth as we sat there off the prison cafeteria.  But if Adrian was telling the truth, that meant that Eric Harder’s statement was false.  And Harder had lied when he pleaded guilty.  And so had Adrian.  And so had Shaun Theriault.  And William Annis’s statement was a lie.  And my own client’s statements, while perhaps not intentional lies, were nevertheless untrue.

In sum, everything I thought I knew or might know about what had happened was wrong.  Everything I had inferred from what I thought I knew was also wrong.  My second car theory was wrong.  Sephora had not been the “wheelman” at all; she hadn’t even been conscious for the crime.

 

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V. Grand Jury Prep

Tom Moran decided to present the case against Sephora to a Grand Jury seeking an indictment on the robbery and kidnapping charges in an effort to pressure her into accepting the plea deal that he had offered her previously.  He sent the mandatory notice that the matter would be presented to a Livingston County Grand Jury on October 6, 2004.  My office had a conversation with him in which we indicated that Sephora planned on testifying.  Moran’s response was characteristically belligerent:  “Make my day.”  He was channeling Clint Eastwood.

Around September of 2004 I began the process of trying to get Sephora ready to testify before the Grand Jury.  This was a tall order.  We were going to have to nail down a lot more details about what had happened, who was involved, and when.  It had been nine months since the actual events at issue, so that – her memory of the events – was one problem.  Another was that Sephora was behaviorally very difficult.  She did not like discussing the matter and frequently told me she “did not want to talk about it.”  She would miss appointments.  She accused me of being interested only in money because I had hit her parents up for $30,000, which seemed to her like a lot of money.

Still, I made some progress.  Between Sephora and her sister, who was less difficult, a number of witnesses were identified and I interviewed them.  I began to pick up bits of information here and there.  One item of information that seemed insignificant at the time but would turn out to be highly relevant about two years later was a witness who claimed to have bumped into Shaun Theriault the day after the robbery at a place called Mark’s Pizzeria in Mount Morris.  Shaun asked for a ride to Geneseo and the witness agreed.  When they got to Geneseo, Shaun got out of the car and retrieved a shotgun from some bushes.  Then the witness drove him back to Mount Morris and dropped him off where he found him – at Mark’s Pizzeria.

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IV. Deception And Perfidy

So, putting all this together it was being alleged, and it appeared, as if Sephora had driven these various individuals around at various points in time while they attempted to rob some marijuana dealers near the SUNY campus in Geneseo.

This was completely false and a deliberate deception of me, and all Sephora’s previous attorneys, by police and probably prosecutors, whose provision of document discovery was, shall we say, very selective.  But I didn’t know that for sure for more than two years, as a result of the deception itself.

But we’ll get to all that, God willing and assuming I don’t run into any technical difficulties.

When confronted with this evidence Sephora’s response was that what she knew had been described in her unsigned statement dated December 22nd, which was true except for the names of the two individuals she identified.  She had identified the wrong individuals, she maintained, because in the week or so after the event she and her younger sister had been contacted on a number of occasions by Adrian Paige and his girlfriend and told to give those names instead of the true ones.  The true individuals she drove around were Adrian Paige and Shaun Theriault.

What about Harder?  Harder, she said, had never been in her car.  She did not know him “…at all, whatsoever.”  The first and only time she had ever seen him was when their pictures appeared together in the newspaper after they had both been arrested on January 23, 2004.

Hmm.

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III. Getting The Case, Reviewing The File (cont’d.)

There was yet another handwritten statement from a guy named William Annis, dated the same day as Harder’s, and which appeared to corroborate Harder’s statement in several respects:

 

 

Now, I have to say that the Annis statement always bothered me on a gut level.  I didn’t really doubt the truth of it on what later turned out to be the main point, but I do remember thinking that you’d be hard pressed to find any 20 something American male who could not identify a Ford Mustang when they saw one, less likely still in rural western New York State.  But this seemingly unimportant aspect of the statement illustrates something very relevant:  we attorneys are story tellers, but so are the police.  And when they are fabricating witness statement “evidence”, it helps to have the chump witness equivocate on some insignificant detail, so that his more important unequivocal statements appear more solid.

Moving on, then.

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II. Getting The Case

A couple of weeks went by.  I had a few things going on but I was looking to make some money – not a lot, but more than, say just a few thousand – as fast as I could and leave town to join my wife and daughter who had already left for Canada.  A client referred the Davis family to me.  Their daughter, Sephora, was in a lot of trouble and they wanted to change attorneys.  As Tom Moran kept saying later, they had done a number of attorney change ups.  He found this very annoying for some reason.

I first met them in my office in Rochester.  The parents came in with Sephora.  They did most of the talking.  She had been charged with armed robbery and kidnapping stemming from an incident the previous December in Geneseo, Tom Moran’s jurisdiction.  Right up the road from his office and the courthouse, in fact.  Her current attorney, Steven Sessler from Livonia, had arranged a plea deal involving two years in state prison.

But Sephora was innocent, they said.  She didn’t know anything about an armed robbery.  Why should she go to prison for two years?

Sephora mostly sat there while her parents talked, looking sad and teary.  She was 19, pretty like a lot of 19 year old girls if a little overly made up.  She had been out on $25 thousand bail since her arrest in January.  She allegedly had three accomplices, all older men, who had already pleaded guilty and were serving their sentences.

And, you know, I’m looking at her and one of the first things that occurred to me, in a musing kind of way, is that this was a weird kind of gang.  Three relatively experienced criminals and…her?  Not impossible, of course.  Just not the kind of thing you usually see.  You remember that song from Sesame Street, “Which of these things is not like the other”?

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