PROSECUTION MISCONDUCT IN THE DR. CALVIN DAY CASE BY CLIFF HERBERG, SUSAN REED, & CATHERINE BABBITT 12/20/2015 Prosecutors Cliff Herberg, Susan Reed, and Catherine Babbitt committed prosecution misconduct in the Dr. Calvin Day case, according to “FINDINGS OF FACT AND CONCLUSIONS OF LAW” found in a December 16th order written by Judge Ron Rangel. On page 6, item 30 of this order Judge Rangel wrote “…….the prosecution's acts of misconduct….”  On page 7 item 33 the Judge Rangel wrote “……unprofessional and questionable conduct by the prosecutors……”  Thus, it is very clear that although the judge ordered a new trial for Dr. Calvin Day on 8/26/2013 “in the interest of justice” that the basis for his decision was prosecution misconduct. A copy of this order may be found at http://www.drcalvindayisinnocent.com

The four specific acts of misconduct cited in Judge Rangel’s order were as follows:

1.       Cliff Herberg “23. ………..This Court finds that Mr. Herberg's conduct in this regard was inappropriate.” In open court with the television cameras rolling, Cliff Herberg stated that there was an ongoing witness tampering investigation against Dr. Day’s attorneys, thereby depriving Dr. Day of his 6th amendment right to conflict free counsel because this threat created a conflict of interest between Dr. Day and his attorneys. It was later determined that Herberg had apparently made this up as a ruse. “…….Mr. Herberg' s June 11, 2013 claim of an ongoing criminal investigation was unsubstantiated.” In other words, the Judge’s order appears to indicate in polite politically correct terms that Herberg had lied just to improve the prosecution’s chances of winning the case. Judge Rangel cited serious concerns over Herberg’s motives of apparently fabricating the witness tampering threat against Dr. Day’s attorneys, because the timing of Herberg’s threat came on the heels of an Express News article that was injurious to the prosecution. “18. On the evening of June 10, 2013, the San Antonio Express News published an article that raised questions about Ms. Newcomb's recollection and alleged prior inconsistent statements, as well as the potential of her being prosecuted for perjury. The article questioned the credibility of the State's primary witness in the instant case, raising the possibility of a potential acquittal …….“24. The Court finds that the timing of Mr. Herberg' s pronouncement raises questions concerning his motive in light of the previous day's events and the article published by the Express News the evening before.”  Judge Rangel further questions Herberg’s motives for making the threat against Dr. Day’s attorneys by writing “It is notable to this Court that Mr. Herberg ……. did not request that the Defendant's lawyers be disqualified or that Defendant be admonished relative to the conflict of interest that now existed.” In other words, Judge Rangel appears to be saying that if Mr. Herberg had made the allegation in good faith that he would have made sure that Dr. Day was advised of the implications of his threat and that he also would have asked that Dr. Day’s attorneys be recused from the case. Because Mr. Herberg did neither of these, his motives for making the threat are called into question. It appears that Mr. Herberg’s actions were designed to be nothing more than an attempt to goad the defense attorneys into filing a mistrial because at the time it appeared that the prosecution would lose the case for reasons stated in the Express News article published the preceding day.

2.       Susan Reed –Susan Reed’s “the lady doth protest too much, methinks” reaction to allegations that she had a Las Vegas tryst with Dr. Day was cited by Judge Rangel as an “unprofessional response”. The Judge said “a more reasoned response from DA Reed would have been to recuse the office from the case“ (i.e. “……unprofessional and questionable conduct by the prosecutors referenced above……”). As the “commander in chief” over Cliff Herberg and Catherine Babbitt DA Reed had oversight responsibilities for their actions because it is presumed that that their actions were carried out either under her direction or with her blessing.

3.       Catherine Babbitt – Judge Ron Rangel’s order indicates that Catherine Babbitt withheld certain information from the defense in violation of procedural rules. The Judge stated that Ms. Babbitt’s failure to disclose certain information to the defense was an act of misconduct(i.e.“……unprofessional and questionable conduct by the prosecutors referenced above……”). The information withheld by Ms. Babbitt according to Judge Rangel, included the following: “(1) ……Ms. Newcomb's memory was not clear in certain respects concerning the alleged meeting she had with Defendant (i.e., the meeting made the basis of the criminal charge against Defendant), and (2) Ms. Newcomb and the DA's office had entered into an oral agreement that she would not be prosecuted for perjury if her testimony varied from her previous_ statements to the prosecutors” (i.e. “……unprofessional and questionable conduct by the prosecutors referenced above……”). Not only is the withholding of evidence by Babbitt a concern but why would a prosecutor Babbitt agree ahead of time to allow a witness to lie or to not prosecute someone who admitted that they lied.

4.       Catherine Babbitt – Catherine Babbitt according to Judge Ron Rangel’s order, unilaterally excluded from the courtroom without the courts permission an attorney who was representing a witness who was in the act of testifying, thereby depriving that witness of her right to counsel. “15. The Court finds that the prosecution's actions to order that this exclusion be conveyed to Mr. Del Cueto, was inappropriate given the fact that it interfered with the attorney-client relationship. 16. Mr. Del Cueto's exclusion from the courtroom, coupled with his express admonitions to Ms. Babbitt prior to trial that the inconsistency in Ms. Newcomb's statements should be disclosed to the defense as impeachment information, was of concern to the Court” (i.e. “……unprofessional and questionable conduct by the prosecutors referenced above……”).

The question now becomes whether society will allow these three prosecutors to get away with the prosecution misconduct in the Dr. Calvin Day case that contributed in a significant way to the ruination of Dr. Day’s life and the death of his son Zac Day. Justice calls for a public outcry for punitive measures against Cliff Herberg, Susan Reed, and Catherine Babbitt for their contribution to the damage done to Dr. Calvin Day and his family.

Just when it seems as though the courthouse is returning to a more harmonious state, Susan Reed was approved to be a visiting judge and will once again be back in the Bexar County Courthouse. Does anyone believe that Reed can come over there without stirring the pot? Is this in society’s best interest? Is this not time for a public outcry?