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.
I brought a new round of motions for Judge Kohout to consider, but they couldn’t be argued until the whole competency thing was resolved. By the time we finally argued them in April of 2006, Judge Kohout had already commented from the bench that she couldn’t see anything unfair about Sephora going to prison since all the alleged accomplices had; and that the allegations she had been raped by Harder were “…not this case.”, implying that she thought them irrelevant. Nice.
So we argued these motions around April 19th and she messed up this whole thing I had brought up about the witness Stephanie Fox. It’s not really important how. But anyway she got mad at me for complaining about that and almost had me arrested for not sitting down fast enough when she told me to. Then she denied all the motions and scheduled the case for trial in May. I told her I had reason to believe that Dana Carson had engaged in a conspiracy to fabricate evidence that Sephora had been driving the car and she said she wouldn’t make that “leap” and wouldn’t give me a hearing on it.
But I also told her that Moran was withholding a lot of evidence from me, some of which I knew about and I wanted the whole prosecution file. He was there and said no, and I asked her to order him to turn it over and she said no. Then I said I had to get out of the case and I was going to have to bring a prohibition proceeding in the Appellate Division and she said she wasn’t going to let me out because I had been in too long and, basically, lots of luck with that prohibition thing because, you know, that’s another one of those things you might try on rare occasions but they never grant it.
Following this so far?
She said she’d be available for helping with plea negotiations. There were a couple of reasons why plea negotiations weren’t really possible at that point, but also this made no sense to me because she had just denied all the motions I had brought. Plea negotiations have a better chance of being fruitful before the motions are argued; once they are all denied what incentive does the prosecution have to budge? I had never had a judge deny all the defense motions in a criminal case and then say: okay guys, now let’s discuss a plea agreement.
A status appearance was scheduled for May 1st and things got even weirder, because by then Judge Kohout’s position and mine had reversed on the issue of whether I could get out. Now she wanted me out, but my client had indicated she wanted me to stay in.
Kohout moved the trial date back to July but made that a “date certain”, meaning it was going to go, basically. I’m sure she figured I was going to do the prohibition proceeding and she was going to press it to trial and head that off. Which isn’t really the reaction she should have had but then like I said, she could be vindictive.