Monday, April 6, 2015

Nerd Law and Legalese

The Jon Massey Case had a number of significant issues in its first iteration.

There was documented interference by the Jefferson County Sheriff's Department with several witnesses and evidence in the case. This documentation was provided in the case notes from CPS and included statements attributed to the DA and to a Sheriff's Deputy regarding suppressing of statements, among other things.

Then there was major irregularities at the Grand Jury. Similar issues at a Grand Jury in a neighboring county resulted in an indictment being thrown out. Copies of the Grand Jury transcript, as well as affidavits made by Jon Massey and his attorney verify that the ADA in charge at the time actively interfered with the Grand Jury listening to recorded evidence, and also used prejudicial techniques to interfere with the Grand Jury calling witnesses requested by Jon.

The next issue arose on the first day of the suppression hearing held in July 2013. In NYS at least, any hearing or court date is held in "open court" unless there is a hearing held in advance to close the courtroom.

No such hearing took place to close the courtroom for this suppression hearing.

When one of the attorneys who had previously been involved in the case showed up to listen to the proceedings, the judge had the bailiff remove not only the attorney, but also the civilian who had accompanied him.

On the second day of the hearing, the judge stated on the record that it was not a closed courtroom, but that he did not want that attorney present at any point in time.

There were also issues involving some of the witnesses. A number of them had a current or past relationship with the judge that went beyond casual, and potentially were familial. Under those circumstances a judge would normally recuse him/herself, to avoid potential conflict. The judge was aware of these relationships yet failed to do so.

Finally, there was the content of the hearing itself. Multiple prosecution controlled witnesses testified as to the nature and extent of their interviews with Ruby. Over and over irregularities were documented that collectively should have amounted to what is called "taint" - the lack of reliability on the part of Ruby. This was verified by a defense psychologist - who had never met with any of the principals involved with the case in order to avoid any prejudice. (The psychologist relied on third party records regarding this matter - the transcript of the first day's testimony, Ruby's pediatric and school records, the psychological reports prepared by the county's psychologist.)

(Note: Reliability doesn't reflect the "truthfulness" of a witness, it is about the ability of the witness to accurately present a situation consistently.)

Most telling about the testimony from the prosecution witnesses was two features:

  • Ruby had been subjected to extensive interviewing by multiple "experts" trained in verifying details - a police detective, two CPS investigators, two different therapists, a psychologist, and the ADA (who even had been documented in the local newspaper for his ability and training).
  • The county paid psychologist testified regarding the length and extent of his interviews with Ruby and how she had provided the specific "anchors" to document when the alleged abuse occurred. He pointed out her consistency in providing the same reference points with at least three other interviewers, made the statement that if she had "changed her story significantly" he would have serious doubts about it.
Yet in less than a week, Ruby's story 'miraculously' changed, accompanied by a statement from the new ADA that when "finally asked" about details, Ruby now claimed that the alleged abuse occurred a full year earlier, and that "nobody had ever asked her" when it happened. This statement directly contradicts paperwork that this same ADA filed with the court stating that her office had "narrowed down" the events and timeframes sufficiently. It also directly contradicts all of the testimony from prosecution witnesses at the suppression hearing.

Not only did the judge allow the DA's office to proceed with a superseding indictment after Ruby changed her story at the last minute, there are reasons that it was in the interest of the court to do so - a new indictment effectively would erase every one of the issues above. It is like wiping the slate clean and starting over. That meant that potentially any issues which could be raised on appeal as a result of the irregularities were theoretically no longer actionable.

To add insult to injury on this "do over", the judge also eventually ruled on the taint hearing. Despite Ruby's own changed story - which directly demonstrated the point the county psychologist made about what would make her testimony unreliable - the judge ruled that there was no taint.

Unfortunately, this request by the DA left the defense in the new position of being able to claim a 3030 violation - lack of timeliness in prosecution. The prosecution is allowed 6 months/180 days to bring a case to trial, but there a complicated rules about what is "chargeable" for time. 

However despite extensive documentation of the fact that there was well over 180 days that could be attributed to the DA's office (including the illusory claim of "readiness for trial" in December 2012 - with no trial being actually held until February 2014) and the case should be dismissed, the ultimate decision on timeliness was at the discretion of the judge. At this point, is there any surprise as to how the judge ruled on this matter? I'm sure you guessed correctly - he threw out the petition.

So for those of you interested in some of the legal aspects of this matter, this is just a sampling of events that occurred during the course of the Jon Massey case.

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