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
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:
– “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.
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.
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.
– 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?