The Long Trip To The Whole Truth Begins

I think I only saw Sephora once or twice over the next few months.  By the time I got back from my Canada trip later in November she had reverted to the “I don’t want to talk about it” mode and was making herself very scarce.  Her parents mostly didn’t know where she was or who she was with but her mother would occasionally track her down somewhere in rural western New York or in the Buffalo area with her boyfriend.  The thinking was that there was a lot of drug use involved.

I wanted to get an affidavit from her but she wouldn’t cooperate with that.  I talked with her psychologist a few times, prepared some motions with what I had and filed them in December seeking, among other things, dismissal of the indictment “in furtherance of justice” due to the fact that Sephora had be violently raped by one of her supposed accomplices in the hours before she allegedly aided and abetted him.  Such pre-trial relief is authorized by statute in New York in criminal cases as a matter of trial court discretion.  It is, as a practical matter, never granted.  On those few occasions when it is, appellate courts regularly reverse such decisions and reinstate the indictments.

Just how it is.

With the motions I included a letter to Tom Moran in which, again among other things, I expressed concern over the involvement of Mount Morris Police officer Dana Carson in the investigation leading up to Sephora’s arrest.  To be honest, I didn’t consider the Carson stuff that big a deal, but Sephora’s parents had complained about Carson’s involvement quite a bit.  I mentioned it in the letter to Moran more to mollify them than anything else.

When I didn’t hear back from Moran I followed up with a phone call to him a few days before Christmas.  I got him on the phone but he seemed very uninterested in talking and was basically antagonistic.  There were a few terse words between us and little else.  He indicated he was adamantly opposed to the motions I brought and I would have a response the next month.  I asked him how he could continue to prosecute under these circumstances and he responded “How can I not?”, said something about there being “…a lot of people involved.”, and that was pretty much that.  This became the pattern of our communications on the case.  In fact, despite many efforts on my part, Tom Moran and I have probably spoken less than 100 words to each other about the Sephora Davis matter in the seven years it has been going on.

When I got Moran’s response, he oddly included transcripts of the Grand Jury testimony of the three alleged accomplices – Adrian Paige, Shaun Theriault and Eric Harder.  All three had identified Sephora as being the driver during the robbery, although of course I knew that Paige had recanted while the Grand Jury was still considering the matter and had offered to come back to correct his testimony.  In any case, including those transcripts was odd because you generally don’t get that kind of discovery in criminal cases until the day of trial.

In retrospect, however, given what I discovered later, it’s a fair inference that providing those transcripts was an effort to intimidate me; showing me, in other words, that everyone had already fingered Sephora as “the driver”, and that claiming otherwise at trial would be hopeless.

Sephora missed the court appearance in January that was scheduled for the argument of the motions, but her bail wasn’t revoked on condition that she appear on February 1st.  In the wake of the missed appearance I supplemented with a motion that she be evaluated for her competency to proceed.

She made the appearance on February 1st, but kept everyone guessing until the last minute.  For the first time in my legal career, I had a sidebar conference with the judge and the prosecutor (Moran) where I told them both I thought she should be taken into custody.  Interestingly, Moran offered that I shouldn’t “hang myself up like that” and opined that she would wind up getting picked up for something else, which indeed she did later.

So after this appearance Sephora’s release and bail were continued.  She had a couple of emotional scenes with her parents and with me – spitting at me at one point – and wound up in the hospital later that day for psychological evaluation.  She couldn’t be kept against her will and they released her.  She pretty much disappeared again.

She was arrested a few weeks later, on February 25th, in Buffalo, on misdemeanor drug possession charges, winding up in the Erie County Jail.  A few days later her bail on the charges in Geneseo was revoked.

During her time in jail Sephora learned she was pregnant.

She was eventually moved from Erie County to Monroe County and then re-admitted to bail.  While she was in custody I visited her as often as I could.  That seemed helpful in terms of acclimating her to her legal situation, but yielded next to nothing in the form of hard information.  I still had little idea what had happened to Sephora between the time Harder raped her – roughly 5:30 – 7:00 PM on December 8th – to about midnight, when Adrian observed her passed out in the back of Mechal Fuoco’s car.

Kate Cerulli had some success, however, learning from Sephora that after Harder had raped her he remained with her for some time, keeping her close, and took her to Mechal’s place up the street in Mount Morris.  This was extremely helpful because it wasn’t disputed that Harder had gone to work in Leicester at 11 PM on December 8th.

So from what Kate had learned, together with other information from different sources, it appeared that in the immediate aftermath of rape Harder kept Sephora close, took her to Mechal’s and before leaving for work had drugged her by giving her some heroin, which essentially caused Sephora to pass out.

But there was more.  One focus of my investigation during this time was a witness named Stephanie Fox.  She was another friend of Sephora’s and her sister’s that had apparently given statements to police and perhaps had testified before the Grand Jury in October of 2004.  The substance of what she had to contribute, or why the police would be interested in talking to her, was a mystery to me.  From everything I knew she had appeared to have no involvement with the crime, but she was oddly identified as being present during the planning stage in a question Tom Moran asked Harder before the Grand Jury.



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

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