In the meantime I was indeed hard at work getting the prohibition proceeding prepared. The prosecutor and the judge are both respondents in the proceeding. I filed it on May 18th and served Kohout with the papers and she wasn’t happy but then neither was I. I also had Moran served about that time.
The State Attorney General appears in such proceedings for the Judge, and that’s what happened here. The drill is, the judge appears and neither admits nor contests. For those of you who are interested in such things, I think it’s New York Civil Practice Law and Rules 7804(i).
Moran? Well, he defaulted. At first I thought I had screwed up serving him and practically had a heart attack. I was beside myself, because I might have messed up my only chance to get the prosecution stopped before the trial. But turned out it was just a plain old default. He just didn’t answer in time.
But before that time, Judge Kohout had her way in Livingston County Court and I was relieved there as Sephora’s attorney on July 6th at my own request. As a parting shot the prosecutor threatened to prosecute me for witness tampering. He was dumb enough to have this appear in the record of the proceedings.
I had already talked to Kate Cerulli about who to send Sephora to and we managed to get Don Thompson, probably Rochester’s best criminal defense lawyer, to do it. I continued on with the prohibition proceeding in the Appellate Division. Don Thompson took over in Livingston County Court.
On my motion the AD granted a conditional judgment against Moran unless he answered the petition on or before September 5th. Which he did by his attorneys, Underberg & Kessler of Rochester.
The answer consisted of what is called a general denial, an affidavit from Moran and a transcript of the proceedings in Livingston County Court on July 6th. There was no affidavit from Eric Harder stating that he had not raped Sephora Davis. There was no affidavit from Dana Carson saying that he had not framed Sephora Davis. Moran’s affidavit didn’t dispute any facts, either, not even the fact that he knew the prosecution was based on fabricated evidence and perjury.
So based on this I moved for what is called a “summary determination” in our favor. The idea of a summary determination, like summary judgment, is that if there are no disputed facts the court simply decides the case without a trial or evidentiary hearing, since there’s nothing to have a trial or evidentiary hearing about. The motion was filed on or about September 20th, 2006 and made “returnable” on October 2nd. Moran’s attorneys filed opposition papers on or about September 26th. Again these papers contained no evidence. The position was that even if all the facts as alleged were true, the Appellate Division should decline to stop the prosecution in Livingston County Court.
In the meantime, Don Thompson was somehow successful in obtaining the entire prosecutor’s file from Livingston County. How he managed this remains a mystery to me to this day.