The short answer is that he was a party Respondent in the Prohibition proceeding begun in May of 2006 and dismissed as “moot” in December of 2006. The Ashley Baker statement was put in evidence in that proceeding on November 17th, 2006. After that, no sensible person familiar with the facts and circumstances could have doubted that convicting Sephora Davis and sending her to prison was wrongful, indeed criminal.
The same evidence – the Ashley Baker statement – leaves no doubt whatever that Dana Carson is guilty.
But there is more to it, having to do with Tom Moran’s role, and that also has to do with the Ashley Baker statement.
That statement was taken on January 24, 2004. What was the situation on that date? The robbery had occurred about six weeks earlier, at 4 AM on December 9, 2003. Nine days later, on December 18th, Sephora was questioned by police investigators and by December 22nd, four days after that, the Geneseo Police Department had prepared a statement for her to sign, but she never did. In the account of events that she was giving – which was false, but was probably the best information she had – she had been driving her car at the time in question at the place in question with two passengers.
Sometime after that – and it’s impossible to say exactly when but it was before January 23, 2004 – Dana Carson made contact with Eric Harder, who identified the actual persons involved in the robbery, including himself. He also falsely claimed in his January 23, 2004 statement that Sephora had been driving. Dana Carson knew that this information was false, because he fabricated the Ashley Baker statement the next day, the sole import of which was to corroborate the false claim that Sephora was driving the car. Since it is unnecessary to fabricate evidence regarding a fact you believe to be true based on other evidence, that means Carson believed that Sephora had not been driving, and the only basis for that belief he would have had at that time was information given to him by Harder.
Tom Moran had been personally involved in the investigation of the robbery from the beginning, having issued a subpoena on December 15th. The robbery took place on Court Street in Geneseo, a stone’s throw away from the Livingston County courthouse, the seat and center of local law enforcement, where Moran’s own office was located. It was an affront to the power and dignity of local law enforcement officials and to Moran personally. Sephora had been offered immunity in December. That offer had come from Moran himself.
When Sephora refused to cooperate Moran and the other police officers involved did what they do in that situation – they got mad. And they decided, as a group, that they were going to get Sephora Davis for crossing them.
To be fair, they did not know or suspect at that time that Sephora had been raped by Harder. They probably should have. With better training and much, much better character they might have figured it out, but that’s beside the point right now.
After they make contact with Harder they now know that the participants were Harder, Paige and Theriault; and they also know that Sephora was passed out in the car, but she herself had led them to believe that she had been driving. So they use that to begin building their case against her.
As of January 24, 2004 – when the Ashley Baker statement was taken – they had Sephora’s unsigned statement, and they had Harder onboard with his statement from the day before. But they also had a problem. There were two other participants – Theriault and Paige. Paige had not given them a statement – indeed Paige had given indications that he would not be cooperative – and Theriault had fled the area, so they hadn’t talked to him at all. In other words, they did not know at that time whether Paige and Theriault would go along with identifying Sephora as “the driver”.
Like most prosecutors, Tom Moran is an experienced and effective trial attorney, though I hasten to add that that’s a lot easier for prosecutors than it is for defense lawyers. Beyond that he’s a psychopath and compulsive liar. In any case, like a good trial attorney he is thinking ahead to the trial. When he thinks ahead to the trial of Sephora Davis on January 23 and 24, 2004 he has Sephora’s statement; he has Harder onboard. But what if both of the other participants, Paige and Theriault, tell the truth at trial and say that Sephora was passed out, not driving, and not a participant in the robbery? Even with the generous treatment of evidence by judges and juries normally accorded prosecutors, this would put a conviction in jeopardy.
Since there was no way at that point to nail down Theriault’s or Paige’s account, you have to deal with the worst case scenario: assume they will both contradict Harder, and tell the truth – that Sephora was passed out, not driving, and not a participant.
When Theriault testifies to that, there you are sitting at the prosecutor’s table and you produce for the first time the Ashley Baker statement.
“Isn’t it true, Mr. Theriault, that you told a different story the day after the robbery at Mark’s Pizzeria in Mount Morris?”
“What are you talking about, sir?”
“Do you deny that shortly after the robbery you told your good hunting buddy Todd Gaddy that Sephora had been the driver for the robbery?”
“Sir, I don’t know what you are talking about.”
“Your honor, the People ask that this be marked as People’s Exhibit Z.”
Moran then produces the Ashley Baker statement and shows it, for the first time, to Sephora’s trial counsel. It is marked as Exhibit “Z” or whatever. Then Moran says:
‘The People offer Exhibit “Z” as a prior inconsistent statement of this witness.”
Sephora’s trial counsel, if he is awake and alert at that point, says:
“Objection, your honor, hearsay.”
The judge then says:
“Overruled, People’s Exhibit Z is received into evidence.”
And from there the way things go, particularly in Livingston County, the conviction is a piece of cake. The jury will believe what they see in the Ashley Baker statement rather than the testimony from the witness stand of Shaun Theriault, who was already a convicted felon. They will reject the contrary account of Adrian Paige, because among other things Paige is black. Indeed there’s a lot more fun to be had with Adrian Paige at that point. You can imply that Paige is siding with Sephora because they were sexually involved, an inter-racial outrage for a typical Livingston County juror.
And so they will find Sephora guilty. It’s a lock. The Ashley Baker statement is the key.
This scenario points to a trial lawyer’s mind behind the Ashley Baker statement, not just a cop’s. And the relevant lawyer would be Tom Moran. And that would mean that Tom Moran not only knew about the perjury later; he actually orchestrated the entire conspiracy himself.
If that were all there was it would be very disturbing, but there would perhaps be room for doubt. But that is not all there is to it.
Two months later, in late March and early April of 2004 all three of the men involved have accepted plea bargains and they all plead guilty. Tom Moran personally conducts their plea colloquys, at which each of them in response to questioning from Moran identifies Sephora as “the driver”, although Paige tries to claim that Sephora was not a knowing and willing participant even though she was driving. Under the circumstances it is suspicious that Moran makes a point of eliciting that fact from each of the defendants, when it was irrelevant to their own guilt.
Fair inference: it was required as part of their plea agreement that they identify Sephora as the driver. The author of the plea offer was….Tom Moran. After he got the others on record, of course, he no longer needed the Ashley Baker statement. But it had been there in case he did.
Now in isolation this scenario may seem far-fetched. The pettiness, the meanness of it, the dishonesty, the conniving, the betrayal of trust. We do not like to think our public officials capable of such things.
But what about when you look at this not in isolation, but in context? Tom Moran’s assistant, Eric Schiener, is upset and afraid and says he is seeing “…a lot of bad things at work. A lot of bad things.” Patricia Marks, then the supervising judge for criminal courts in the seventh judicial district, catches Moran fabricating evidence in another case. I know another lawyer very familiar with Moran who I will not name, who described him as “underhanded, vindictive and dishonest”, which I wouldn’t otherwise run too far with except for everything else and the fact that this particular lawyer, who is very intelligent but also one of the most cordial and diplomatic individuals I know, has never been heard to say anything of comparable harshness about anyone, let alone another lawyer.
Yet Moran, like Dale Carnegie’s Al Capone, doesn’t see himself as having done anything wrong. Well, not anything really wrong. After all, the Supreme Court of the United States says that all the fabricated evidence and perjury in the world doesn’t mean a thing unless you introduce it at trial. If you can terrorize the defendant – after raping her, but that’s irrelevant, you know – into pleading guilty the problem doesn’t even come up.
Won’t Tom Moran fit right in as a New York State Supreme Court Judge? Tom is the creature of the judges going all the way up to the SCOTUS. He is their Frankenstein monster who wants to come over for dinner.