Judicial Fecklessness; The Long Siege Begins; Hints Of Going International

And now a technical legal point.  Sometimes these technical legal points are important.  To courts and lawyers, anyway.

A guilty plea does not generate all by itself what we lawyers call a “judgment”.  The “judgment of conviction” is not entered until the sentencing.  There was no judgment of conviction in Sephora’s case in Livingston County Court until January 3rd, 2007.

So even though a guilty plea had been entered on October 20, 2006 the proceeding in the Appellate Division to put a stop to all this went on.

I brought another motion for summary disposition in the Appellate Division on November 17th, 2006 and we were scheduled to go argue the matter on November 24th.  Of course the main features of this motion were the statements of Ashley Baker and Todd Gaddy, showing that the entire prosecution of Sephora Davis was a law enforcement sponsored frame up job.  No evidence was offered in opposition.  The opposing papers from Moran’s attorneys were purely rhetorical and formal.  The frame up job was, in legal terms, conceded.  None of the facts being contested, there was nothing to talk about other than “law” and “procedure”.

We had oral argument in the Appellate Division on November 24th and Judge Nancy Smith was clearly the “hot judge” on the four judge panel, meaning that she was the one who knew the most about this particular case on the calendar that day.

All she talked about was Sephora’s guilty plea, and how that gave the court a “real problem, procedurally.”

There was no procedural problem.  You grant prohibition, the prosecution is stopped, everyone goes home.  What was the problem?  What was the alternative?  We’re going to let police and prosecutors rape a girl and then frame her for something she didn’t do and send her to prison on an Alford plea because that’s easier?

The question I wanted to ask Judge Smith, and more or less did ask albeit more politely and formally was:  “Are you out of your fucking mind?”

Judge Hurlbutt expressed misgivings about the plea deadline fiasco.  But it didn’t bother him enough to really think about it or do anything about it.

In the end, the Appellate Division punted in the most disgraceful and truly disgusting display of judicial diffidence and cowardice I had yet seen:

 

Notice how the legally conceded facts about perjury are misrepresented.  Notice how the little rape episode isn’t even mentioned.

So they took little Sephora Davis off to prison on January 3rd.  Eric Harder had his way with her.  Dana Carson had his way with her.  Tom Moran had his way with her.  Judge Kohout had her way with her.

For the next three years, the New York Department of Corrections would have their way with her.  And then the Division of Parole gets her.

Now, when women in other countries that we call backward are raped by officials and higher officials sign off on it or ignore it, we grant them asylum.

In other words, it is the position of the United States government itself that what happened to Sephora Davis is a violation of international law.  Like a war crime.  Under the Nuremberg Principles, no country gets a pass on even one such violation.

No one contends, of course, that German judges and prosecutors destroyed as many lives as did the SS, Gestapo, or other agencies of the Nazi machine.  Their victims number in the thousands, not the millions.  A judge who knowingly sentenced even one innocent Jew or Pole to death was, however, guilty in the eyes of the prosecutors and judges at the Justice Trial in Nuremberg.  There would be no “only a couple of atrocities” defense.

 

I had mentioned all this in my first motion for summary disposition in the Appellate Division in September of 2006.  I was trying to put them on notice, even then, that if they did not do their job on this case they would be guilty.  And unlike all the bullshit that goes on about how judges are immune for civil damages purposes, there is no immunity for criminal conduct.  There is no immunity for judges when they violate very basic international standards of human rights through a state sanctioned rape.

I guess they weren’t taking me seriously or something.  Actually they were, kind of, but they didn’t want to deal with it and handed it off to someone else.

That’s a story for maybe later.

Of course, after the Appellate Division punted I tried the next level to get a stay, at the New York Court of Appeals, New York’s “highest” court, but they didn’t do anything either.  It required a trip over the Christmas holidays to Albany.  I also had to visit my wife and daughter in Sault Ste. Marie over that period, though of course my marriage was falling apart by that time.  My adult son helped with the driving for all this, which when all was said and done was a couple thousand miles.  We had lunch at some restaurant in Albany after I got the stay application filed.  My son got some bad chili and spent most of the night retching after we got back home to the Rochester area.

The stay application went to yet another Judge Smith.  It was denied of course.

Remind me to avoid judges named Smith.

Now, after someone is taken away to prison there are a million things you can do.  The beauty and bane of the system is that ultimately, nothing is ever finally decided, pretenses of the desire for finality notwithstanding.  There are more state court procedures.  There are federal court procedures.

The problem from the practitioner’s standpoint is that all of these procedures are more or less meaningless.  They are held out in front of you like the rabbit in a greyhound race, with exactly the same effect:  you scramble and chase it and never catch it.  From the client’s perspective the whole thing is a monumentally twisted exercise in draining them of money while the system tortures them or their loved one, and you endure disappointment after disappointment until finally you throw in the towel.

The whole idea in this broken system, in other words, is to wear you down and break you.  I could put it quite a bit more dramatically here, but you know why bother.  The facts speak for themselves.

In any case, even knowing that this is how it is, I told Sephora we would do everything, that we would never stop until this wrong had been righted.  And I went to work.  And I am still working, albeit in very reduced circumstances and in another country.

 

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15 Comments

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

15 responses to “Judicial Fecklessness; The Long Siege Begins; Hints Of Going International

  1. TJR

    I just finished reading all of your August posts. This blog is like a beacon of truth in a sea of lies. No one wants to think the legal system could be capable of something like this – but deep down, we all know this kind of thing happens every day (maybe not to this extent) and no one does a god damned thing about it because they are too afraid of personal loss and hurting their career and/or personal reputation to stand up for something they know they should. That’s why the judges didn’t do anything about this, I’m sure. Too politically problematic to do the right thing…

    2 things really strike me the most about this story: 1) No one in the Court System in NY hedged the bet that the facts of the case would ever be heard inside or outside of the US Court System, which explains why they never disputed any of the facts and submitted general denials with no affidavits or any other supporting documentation assuming the whole thing would just go away. Really, it was actually a pretty good bet – I don’t know what the statistic is but the only way for you to present this within the U.S. Court System is via Habeas Corpus petition, yes? Well, we know how many of THOSE get heard every year…pretty much none! But even more importantly 2) They really didn’t account for someone like you. You were willing to actually pursue this entire thing to its end knowing the odds and damage to your own life and livelihood to throw a big wrench in the “broken system” by defying ALL statistics – and I mean ALL statistics. These people never imagined that there could be a man whose motivational structure and professional responsibility hinged on principle who would not be swayed by the normal concerns of career and self interest – someone who would not give up and let the system slowly win the war of attrition as it usually does.

    They lost both of those bets – in a HUGE way and it appears as if the day of reckoning has arrived – September 29th, 2011. I read the exhibits and have been as critical as possible while going through your story…but there is no denying at this point that you’ve really got something here now that Canada has granted you a refugee hearing on the basis of the undisputed facts of this case – its like you actually got a Habeas Corpus petition after all isn’t it? And if they grant you official entry as a refugee claimant based on this case? Good God you’d have such a powerful case in the Supreme Court that all of those people in the NY court system that had anything to do with this – the cops, the DA, even the judges… would go to prison! And justifiably so!

    Nothing would be sweeter karma than to see Moran, Carson, and all the rest of the officials that participated in this atrocity publicly go down in flames for their crimes against humanity…and as an added bonus, its at a time when they are up for re-election – a time when they are trying to advance their careers and continue doing the same things to other people.

    Good luck in your hearing – if you succeed in what you’re trying to do here and if it ever gets to the U.S. Supreme court, they might actually end up changing the law or even the constitution to say that a defendent has a RIGHT not to be prosecuted if the evidence used to convict them can be proven to have been falsified. But then, that right should have been there from the beginning. The fact that it wasn’t and still isn’t to this day probably has quite a bit to do with the very high number of wrongful convictions in the U.S. Legal system. Amending the law certianly wouldn’t fix everything, but it would be a damn good check to prevent others like Moran from doing this to an innocent plaintiff going forward in NY and other jurisdictions!

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  2. GK

    I don’t understand your position at all. The State’s position is that your client, of her free will, participated in a robbery. Your position is the State’s witness raped your client and then fabricated the allegations against her. So you have a dispute of fact. Disputes of fact are generally resolved at a jury trial. Your blog chronicles all kinds of wild procedural moves through all kinds of state and federal courts, but I don’t see that you ever held a jury trial on the case. Why didn’t you take your case to the approprate state criminal trial court and hold a jury trial?

    Why don’t you state what the state’s evidence is and state what your evidence is, and let the reader decide the strength of the case? If legal rules allow it, post the actual police reports.

    I have to question how much criminal experience you have. A good criminal defense lawyer considers both the state’s case and what his client tells him with a grain of salt. He determines the strength of the case objectively and then advises the client to either hold a trial, negotiate, or blind plea. If the state’s case is weak but, there is still a danger of losing, he uses the weakness of the case to get a good negotiation.

    You seem to have gotten emotionally attached to the point that you lost your objectivity. If there is evidence that your client was innocent, present it to the jury. If there was not such evidence, what is the basis for your belief: that she cried in your office and said that it was so?

    You completely loose credibility applying for assylum in Canada. Even if you pissed off the entire New York bench and bar with your antics, can’t you just drive 10 miles and practice law in New Jersey? This assylum nuttiness takes credibility from the points that you make in the Sephora Davis case and makes it seem like all of your wild procedural motions in that case are equivalent nuttiness.

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    • Very good summary of the LE party line.

      First, I’ve posted a lot of documents. You need to read them and understand them before you can comment intelligently. To skip over all that and start throwing around terms like “assylum (sic) nuttiness” bespeaks an inability or an unwillingness to reason and an inappropriately swift resort to personal invective. Same with terms like “wild” to describe perfectly legitimate and traditional procedures like prohibition and habeas corpus. There is no justification for such characterizations. Same with questioning whether I am “emotionally attached”. If you want to be rational you have to look at the evidence first. If something seems way off, it would be appropriate to start questioning me or my motives. But you haven’t done that.

      Second, it is not possible to get a fair trial where police and prosecutors are fabricating evidence and intimidating witnesses. This is a problem that has to be addressed outside the criminal case against the client. It is not a simple fact dispute. The issue is not only whether the defendant is a criminal, but whether those prosecuting her are criminals. But a trial of the defendant cannot result in a conviction of the police and prosecutors.

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  3. GK

    Assuming that every prosecutor,cop and judge in New York is involved in a conspiracy against you, what is the point in filing for assylum in Canada? You could just move yourself and your practice to another state. People file for assylum from authoritarian dictatorships or war torn anarchies like Burma or Somalia, not from the United States. Do you really expect Canada to offend the US by de facto finding that it is an authoritarian regime? If not, then what is the point?

    On every criminal case that I have ever handled, I could write a 1 page summary of what my witnesses would testify to. Do you have a simple 1 page (or so) summary somewhere that states what your witnesses would testify to? (ie what Sephora would say; what her corroborating witnesses would say; what documents would show). I don’t mean conclusory statements like “the state conspired to fabricate evidence”; I mean “on date X, witness 1 saw A, B and C”.

    If you already have this on the blog, a hyperlink or url would be greatly appreciated.

    Thank you.

    Thank you for responding.

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    • Assuming that every prosecutor,cop and judge in New York is involved in a conspiracy against you, what is the point in filing for assylum in Canada? You could just move yourself and your practice to another state. People file for assylum from authoritarian dictatorships or war torn anarchies like Burma or Somalia, not from the United States. Do you really expect Canada to offend the US by de facto finding that it is an authoritarian regime? If not, then what is the point?

      If you actually read the post you are commenting on, I’ve laid out pretty clearly why this situation has international ramifications. It is not my place to “expect” Canada to do anything. I have made a request. Where it stands right now is that the government of Canada has determined that my claim is “eligible”, meaning that if what I have told them is demonstrably true they may grant asylum. There is a hearing on September 29th to provide me an opportunity to present evidence. Notably, this hearing involves no downside risk to my client, but could result in considerable benefit. This is the kind of hearing that lawyers like to get.

      Moreover, if the United States permits its police to rape and frame its female citizens, and then disingenuously defends its actions by citing the women’s right to what amounts to a “show trial”, where any “witness” who deviates from the government script is arrested or otherwise threatened with punishment, then it is hardly a stretch to accuse the US of having become an “authoritarian regime”. Again, you should read the very post you are commenting on.

      Do you have a simple 1 page (or so) summary somewhere that states what your witnesses would testify to? (ie what Sephora would say; what her corroborating witnesses would say; what documents would show). I don’t mean conclusory statements like “the state conspired to fabricate evidence”; I mean “on date X, witness 1 saw A, B and C”.

      I am afraid that explaining all this is not “simple”, nor should one expect that. It requires mental effort and I should think at least average intelligence, and perhaps an ability to spell “asylum” (sorry, couldn’t resist). None of what I have put up here can be fairly characterized as “conclusory”. The key piece of evidence is the statement of Ashley Baker, which is a patent fabrication by a police officer named Dana Carson. But regrettably it does take some work and understanding to appreciate that. If you are willing to make that effort I am willing to help you where you need it.

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  4. GK

    “Of course the main features of this motion were the statements of Ashley Baker and Todd Gaddy, showing that the entire prosecution of Sephora Davis was a law enforcement sponsored frame up job.”

    The Ashley Baker and Todd Gaddy should testify in the criminal trial where the jury can determine their credibility.

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    • The Ashley Baker and Todd Gaddy should testify in the criminal trial where the jury can determine their credibility.

      Only if Ashley Baker’s statement is not an obvious fabrication by Dana Carson as a matter of law. If it is such a fabrication, there is nothing to have a trial over. At least, nothing to have a trial of Sephora Davis over.

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  5. GK

    Nevermind my next to last post:
    You wrote a very good summary here: https://strikelawyer.wordpress.com/2011/08/26/chronological-summary/#more-1632

    This is exactly the kind of case to take to a jury if you have an appetite for risk. Just tie the witnesses down with your own investigator first. Of course the prosecution will try to “flip” cooperating witnesses. When there are triable issues, the state will plea negotiate like they did in this case. Two years was not an unreasonable negotiation on these facts.

    Did you try to have her do a polygraph and then share those results with the state. (I know they don’t come in, but it would be a way to convince the prosecutor that she is telling the truth).

    This still seems like a run of the mill criminal case to me, with cooperating witnesses (“flippers”/”snitches”) and disputes of fact. Not a slam dunk, but not an easy defense win either.

    A lot of civil guys who take an occasional criminal case think it is like civil litigation where each side fights a scorched earth fight against an equal opponent in order to win; filing all kinds of motions where both sides get to bill their clients. It’s not like that. The state has a lot of discression and limited resources. The more you keep a cordial relationship with the prosecution while aggressively developing your facts, without seriously antagonizing the prosecution or wasting their time, the better the outcome will be.

    You probably could’ve shaved a year off the initial 2 year offer, instead of adding a year; though a 3 year offer, after all of this, was not that big a trial tax. (This fancy manouvering technically wan’t even a “trial”. I don’t know what to call it.)

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    • First, I want to say that I really appreciate this comment. It’s a perfect representation of what to me is an extremely – even dangerously – wrong headed view, but it might be common among practitioners (esp. prosecutors) and police whose perspectives have been warped by, oh, a lot of things, such as too much indulgence from the bench.

      This is exactly the kind of case to take to a jury if you have an appetite for risk.

      Think for a minute about what you are saying here. The downside risk is a life sentence for a high school girl with no criminal record. The upside is zero. From a risk management perspective taking that risk would be truly insane.

      Not to mention highly immoral under the circumstances, her having been raped at knife point and all. I don’t like “rape shield” laws, but that’s not because they don’t address a legitimate concern: that it’s peculiarly difficult for rape victims to testify about it at the rapist’s trial. But you propose a trial where the issue is not whether the rapist gets punished, but rather whether his victim does. The victim isn’t testifying against the rapist; the rapist is testifying against the victim. You don’t see that as being a ludicrous and mindlessly cruel reversal of reality? It’s just a “run-of-the-mill” criminal case? Happens every day?

      I don’t mean to get snarky, but you began by referring to my supposed “nuttiness”. You should look in the mirror. No lawyer worthy of the name would subject a client to that kind of risk under those circumstances unless there was no alternative.

      And throw in that the state put her in that position by making the whole thing up in the first place. Allowing them to get away with that is utterly intolerable.

      This still seems like a run of the mill criminal case to me, with cooperating witnesses (“flippers”/”snitches”) and disputes of fact.

      Then you haven’t studied the evidence enough. I think I know the difference between a run of the mill criminal case and an extraordinary one. Ordinarily you don’t catch the police red-handed fabricating evidence. Ordinarily the police are not this far off – confusing the biggest victim of the whole thing with a perpetrator. But that’s what happened here on both counts. And it was all proven beforehand. And not disputed.

      A lot of civil guys who take an occasional criminal case think it is like civil litigation where each side fights a scorched earth fight against an equal opponent in order to win; filing all kinds of motions where both sides get to bill their clients. It’s not like that.

      Excellent informal statement alluding to the real legal issue here, although you are under the mis-impression that your point of view is unarguable. It’s not. Habeas corpus is civil litigation. There is a point where prosecutors don’t get to press their advantage with the procedures they always use and which favor them, where the defendant gets to play offense. Or at least there should be such a point. It is clearly reached when the police and prosecutors are fabricating evidence and suborning perjury, in my opinion. But I’ll agree with you this much – this is not the “law”. Not yet.

      The more you keep a cordial relationship with the prosecution while aggressively developing your facts, without seriously antagonizing the prosecution or wasting their time, the better the outcome will be.

      At least in my own mind, I did everything I could to keep a cordial relationship with the prosecution. For 15 years or more up until this point, I had never had anything other than a cordial relationship with any prosecutor. I tried many, many times to have a serious conversation with Mr. Moran, but all he did in return was act like a bully. And talk about wasting time – what about wasting my time? Withholding evidence for more than two years when it was quite clear that the case had serious problems, and that’s even assuming that Moran himself wasn’t behind those problems. And the circumstantial evidence suggest strongly that he was, unfortunately.

      Even so, I didn’t really care about that. As I said in response to another commenter, if Moran had just come clean with me and said he wanted to bury the whole thing and was willing to leave her alone I would have said yes. I would have helped him. But it’s certainly too late for that now.

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  6. bluebird

    Sephora’s story is a lot like the Joseph Salvati case in MA where Mr. Salvati was imprisoned for 30 years for murder– due to a coverup that involved the judges, DA’s office, and the FBI district office — all to protect police informants. Earlier this year, I attented a conference to hear Attorney Victor J. Garo speak about his effort to get the man released. (You can find the coference on you tube under advocates for justice part 1 and there is a part 2) Attorney Garo was completely choked up when telling his story about this wrongful conviction and how this man lost his life and how much his family and children suffered. All because of the horrendous immoral actions of the “legal officials” in MA. Attorney Garo eventually won an award award of $30 million on behalf of Mr. Savati and some others who were wrongfully convicted in the same matter. I don’t think any amount of money can compensate for such an injustice against humanity where a man lost 30 years of his life…..with his kids….with his wife…….I do not know how anyone can recover from something like this.

    What a tragedy for Sephora.

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    • Unspeakable is the word I often use. Also, given the circumstances, it was attempted murder.

      Even so, Sephora has been incredibly strong through the whole thing. I can’t say enough about her, really. Very high character.

      Meanwhile, don’t miss the “Mozart and Vlad Horowitz” post. Unbelievable performance by 83 year old Horowitz. Superb job by the orchestra.

      Life isn’t all tragedy, unspeakable crimes and official perfidy. Some things, and people like Sephora, will always transcend.

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  7. reader

    I agree this case is horrific and probably unusual but I want to parse out one part of it that isn’t unusual. If you are under the impression that fabrications by police, including arrest of the victim, is unusual you are sadly mistaken. This is extremely common and absolutely rampant in misdemeanors.

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    • I know they “frame the guilty” with some frequency. I don’t know that I’d call it rampant. But in any case framing the innocent is over the line. Intolerable.

      What you had here is a really corrupt police department in a really corrupt place – Mount Morris, NY – with nothing to do. Like any group of young men with poor guidance and lots of time on their hands they’re going to cause trouble. Unchecked, they will inevitably commit crimes, and then eventually atrocities.

      The system doesn’t do its job checking the behavior. That’s the problem here, I think.

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  8. Chris

    I know I am late to this discussion, and I am trying to absorb all of this info quickly and in one read, and the summary helped put it into perspective, but i am not sure it is the right perspective: Off. Carson was attracted to a teenage girl, who rebuffed his advances. So, he finds out this girl is raped by a thug, protects the thug and punishes her for rejecting him by framing her for an armed robbery by getting several people to write/testify to false information including the thug. These people then take pleas and go to prison, while protecting Off. Carson. Granted, LE can lie, cheat, and steal but, aside from the fact that there may be an informant involved, why are people protecting the thug (maybe he is a big guy and potentially dangerous, but some of the witnesses don’t fear him), and,why are they protecting this cop, who, for all intents and purposes, risked everything to get back at a teenage girl who rebuffed his advances? What is accomplished by framing this girl? Protecting the real “driver”? Why? How important is she? Revenge for a spurned cop? Why is he risking evrything to see this girl go to prison for turning down his offer, whatever that was?

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    • Chris, thanks for asking some pretty good questions. I’m going to deal with some of them, not all of them. At least not all of them right now, right here.

      First off, Carson did not find out that the girl was raped. The first person that knew about that, other than her and Harder, was me. Second, Carson’s romantic interest is really a side issue, other than the fact that after having illegitimately placed her in jeopardy he tried to use that leverage to pressure her. Not good.

      The scenario really was that Sephora had given law enforcement inaccurate information, they were mad at her for that and framing her was an act of revenge, by the whole group not just Carson. I don’t believe they would have done that if they knew Harder had raped her, but they didn’t know that at the time and it was too late to back down from what they had already done when they actually learned about that. At least in their own minds it was too late.

      Beyond that, making charges, and then making them stick, is the paramount institutional concern of police and prosecutors. It is the source of their power, prestige and even whatever wealth and “career success” they have. They guard it jealously. Just look at the recent comments of commenter Martin Prieb, although other examples are legion. It shouldn’t be this way – in fact it’s perverse – but human frailty is not confined to the non-law enforcement segment of the species.

      Given that, it should not be hard to figure out how the risk-benefit analysis strongly favors all the cops and any prosecutors who were in on it doing exactly what they did here. I can’t spell that all out for you right now. If you’re really interested and can’t figure that out you can contact me privately and maybe I’ll go into it then.

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