It would appear that certain members of the Bexar County District Attorney’s Office are continuing their apparent “personal vendetta” against Dr. Calvin Day. The most recent attack took the
form of questionable, if not dubious legal motions against all three of Dr. Day’s attorneys. In one of the motions, (i.e., “TOSS DR. DAY’S ATTORNEYS MOTION”), the DA’s Office was successful in having attorneys Jay Norton and Alan
Brown barred from further representing Dr. Day. This motion smacks of retribution against Brown and Norton because their testimony against the District Attorney’s Office resulted in the granting of a new trial for Dr. Day. Moreover, the motion itself
appears to contain at least 10 (ten) significant false statements. Perhaps one or more of the following thinly veiled motives caused the DA’s Office to file this “TOSS DR. DAY’S ATTORNEYS MOTION”: 1) Cause Dr. Day additional significant
legal expense, 2) move the scheduled trial several months hence to avoid what was sure to be an embarrassing trial for the DA’s Office, 3) publish a legal document for public and media viewing that rewrites the history of the Dr. Calvin Day case
to show the DA’s office in a more favorable light, 4) shift the blame away from 1st Assistant DA Cliff Herberg’s apparent prosecutorial misconduct, and 5) intimidate Dr. Day’s attorneys by again threatening them with
a witness tampering investigation.
Herein are further details:
1) Because of the
“TOSS DR. DAY’S ATTORNEYS MOTION”, attorneys Jay Norton and Alan Brown were subsequently barred from further representing Dr. Day. This, in turn, caused Dr. Day significant additional legal expense because he had to retain new counsel
to represent him in this case. Dr. Day has gone through a bankruptcy and has been without employment for over two and one half years so this additional expense was hurtful. By comparison, the District Attorney’s Office apparently has unlimited
resources and personnel at their disposal to carry out what appears to be a “personal vendetta” against Dr. Calvin Day. Please consider the taxpayers money that has already been spent by the combined actions of police and the DA’S office
in their apparent hyperbolic pursuit of a doctor who
- had no criminal record,
- had practiced twenty-eight (28) years with no police
or Medical Board complaints,
- had approximately forty-thousand (40,000) patients,
- was seeing over two hundred (200) patients
per week,
- had a staff of twenty-eight (28) women, and
- during a twenty-eight (28) year time span had employed over four hundred (400)
women.
In spending an excess of a million dollars (estimated) of the taxpayers money, there was an initial nine month combined police/district attorney investigation leading to an indictment
in a
- he-said-she-said case with no witnesses,
- with no DNA evidence,
- with
a clean inspection by the police of the alleged location of the alleged event,
- with Dr. Day having tested negative for all sexually transmitted disease tests, and
- with Dr. Day having easily passing his polygraph.
Moreover, the initial event in the indictment process was an affidavit filed by a police detective who cited
resemblances between 1) a sketch drawn by the complainant of a penis in the erect (hard) state and 2) photos taken by the police of Dr. Day’s penis in the flaccid (soft) state??? Arresting Dr. Day based on such a fallacious comparison
would appear to be unsound; indeed, it would appear to be an act of malevolence. Then there was a month long trial with the expenditure of the time of not one but of three senior prosecutors’ time and effort, not to mention, the cost of their support
staff. Then there was a Hearing on the Motion for a new trial wherein the new trial was apparently granted based on the apparent prosecutorial misconduct of 1st Assistant DA Cliff Herberg. Now the DA’s Office is expending more resources in
filing motions and pushing the trial a few months hence. Yet the DA’ Office, after spending in excess of a million dollars plus of the taxpayers’ money (estimated), still has no legal conviction. Dr. Day, at the present time, still has the legal
status of presumed innocence and is awaiting trial that is scheduled for August 11, 2014. And contrary to news reports, Dr. Day is still a “doctor”, he still has his M.D. degree, and he still has an active (but temporarily suspended) medical license.
Nevertheless, the DA’s Office has inflicted pain and misery on presumed innocent Dr. Day and his family by, among other things, succeeding in having Dr. Day’s medical license suspended for two and a half years and by succeeding in being the apparent
primary contributor to the death of Dr. Day’s son, Zac Day. The question is, how much further and at what additional expense will the DA’s Office go in order to save face? Is there ever an instance where the DA’s Office admits or has admitted
that they have made a mistake? Apparently, saving face takes priority over all other considerations.
2) The DA’s Office filed this “TOSS DR. DAY’S
ATTORNEYS MOTION” only 9 (nine) business days before the scheduled trial date (after apparently sitting on this plan for five months). In what appears to be a malevolent tactical maneuver by the DA’s Office, they effectively avoided going forward
on 01/23/2014 with a trial was almost sure to be an embarrassment for them. One of the outcomes of the “TOSS DR. DAY’S ATTORNEYS MOTION” was to have the trial reset some seven months later on August 11, 2014, because, of course,
Dr. Day’s new attorney was not familiar with the case. And it would appear that in order to make sure that Dr. Day’s new attorney, Michael McCrum, would not be brought quickly up to speed on the case so that the trial could proceed
on schedule, that the District Attorney’s Office filed contempt of court charges against McCrum almost contemporaneously with the filing of their “TOSS DR. DAY’S ATTORNEYS MOTION”, thereby causing McCrum to focus his attention
on putting out what appears to be yet another malevolent fire started by the DA’s Office.
3) Inasmuch as the “TOSS DR. DAY’S ATTORNEYS MOTION”
contains at least ten (10) statements that appear to be false, it effectively rewrites history in the Dr. Calvin Day case in a manner that puts the DA’s Office in a more favorable light. The DA’s Office now has a public court document on file that
apparently will be used subsequently to attempt to wield public opinion in their favor.
4) The motion also attempts to shift the blame away from 1st Assistant
Cliff Herberg, who apparently lied in open court during Dr. Day’s trial. It would appear that Herberg’s apparent lie initiated a series of events that had a devastating effect on Dr. Day and his family. Herberg, if you will, apparently lit the
fire in the theatre that led to the trampling of Dr. Day and his family, as other theater attendees ran to the doors for safety. The “TOSS DR. DAY’S ATTORNEYS MOTION” attempts to shift the blame from the apparent fire starter (i.e., Herberg)
to the theatre attendees.
5) It would appear that as a means to have Dr. Day’s attorneys Jay Norton and Alan Brown barred from representing Dr. Day, that the DA’s
office inserted into their motion what appears to be intimidating language concerning yet another threat of a witness tampering investigation against Brown and Norton. And apparently, this “same song, second verse” witness tampering investigation
language threat in this motion by the DA’s Office was the primary reason for the removal of these attorneys from their representation of Dr. Day in this case.
The ten
statements captioned below in the DA’s “TOSS DR. DAY’S ATTORNEYS MOTION” appear to be false. Alongside these apparent falsities are written the facts accompanied by “connect the dots” explanations.
FIRST APPARENT FALSE STATEMENT MADE BY THE DA’S OFFICE IN THEIR “TOSS DR. DAY’S ATTORNEYS MOTION”
APPARENT FALSE STATEMENT MADE BY THE DA’S
OFFICE:
“Defendant Calvin Day is charged by indictment in this case with sexual assault.”
TRUTH:
Four
days after submitting their “TOSS DR. DAY’S ATTORNEYS MOTION” , the DA’s Office submitted an “Amended Indictment” wherein the charge against Dr. Day was reduced such that it is no longer a sexual assault charge. Surely
the DA knew, four days previously, that they were about to submit this reduced charge amended indictment. It would appear that had the DA been straightforward, they would have put the reduced charge language in their motion rather than the sexual assault language.
Moreover, Dr. Day should have never been indicted in this case in the first place because
- an eyewitness said that nothing happened during this office visit,
- telephone calls alleged by this complainant are non-existent, and
- the complainant cannot remember the date or even the year
of the allegation.
SECONDAPPARENT FALSE STATEMENT MADE BY THE DA’S OFFICE IN THEIR “TOSS DR. DAY’S ATTORNEYS MOTION”.
APPARENT
FALSE STATEMENT MADE BY THE DA’S OFFICE:
“However, a new trial was granted after Mr. Brown and Mr. Norton testified that they had provided ineffective assistance of counsel to Defendant because they had a conflict
of interest. “
TRUTH:
A new trial was granted according to court documents “in the interest of justice”. At no time was there any statement by the judge, either oral or written, that specified ineffective assistant of counsel as the primary reason for granting a new trial. In reading the entire transcript of the Hearing on the Motion for
a New Trial, it would appear that the primary reason for granting a new trial was the apparent prosecutorial misconduct by 1st Assistant DA Cliff Herberg. Herberg threatened Dr. Day’s attorneys in the middle of the trial by stating in open
court that they were the subjects of an ongoing witness tampering investigation; it was later determined by the judge at the Hearing on the Motion for a New Trial, that no such investigation ever existed. Apparently, Herberg lit the fire that led to the trampling
of Dr. Day and his family as everyone fled to the door for safety. As such, the person who apparently ignited the fire (i.e.,Herberg) has responsibility for the primary blame. Herberg’s apparent lie (i.e., apparent prosecutorial misconduct) changed the
course of the trial. Indeed, the “TOSS DR. DAY’S ATTORNEYS MOTION” by the DA’s Office appears to be a thinly veiled attempt to cover for Herberg’s apparent prosecutorial misconduct.
THIRDAPPARENT
FALSE STATEMENT MADE BY THE DA’S OFFICE IN THEIR “TOSS DR. DAY’S ATTORNEYS MOTION”
APPARENT FALSE STATEMENT MADE BY THE DA’S OFFICE:
“……they
were afraid of being accused of witness tampering….”
TRUTH:
“…….they were afraid of being accused…..” is
an apparent slight of hand because the DA’s office had already made the accusation. In other words Dr. Day’s attorneys could not have been afraid of being accused because, in fact, they had already been accused. As proof here are 1st
Assistant DA Cliff Herberg’s exact words taken from the trial transcript:
EXCERPTS FROM STATE OF TEXAS VS CALVIN LEE DAY JUNE 11, 2013
Page 10, lines
2-5
(BY CLIFF HERBERG)
“……….And we would represent to the Court that we believe that Ms. Newcomb is being manipulated by Mr. Del Cueto and Mr. Brown and Mr. Norton, that this constitutes
tampering with a witness.”
Page 24, lines 5-7
(BY CLIFF HERBERG) “If I may, Your Honor, let me make it clear. This matter, of course, is still under investigation.”
FOURTHAPPARENT FALSE STATEMENT MADE BY THE DA’S OFFICE IN THEIR “TOSS DR. DAY’S ATTORNEYS MOTION"
APPARENT FALSE STATEMENT MADE BY THE DA’S
OFFICE:
“In sworn testimony, they said the conflict arose ……because of multiple meetings and conversations they had with the complaining witness and her counsel,….”
TRUTH:
Clearly, the conflict of interest between Dr. Day and his attorneys arose because of Herberg’s threat stated in open court, wherein Herberg stated that there was an
ongoing witness tampering investigation against Dr. Day’s attorneys. It is illogical, even absurd, to reach the conclusion meetings and conversations between Dr. Day’s attorneys and the complaining witness’ attorney created a conflict of
interest between Dr. Day and his attorneys, because meetings and conversations between attorneys are routine during the course of their business. In contrast, it is readily apparent and logical that Dr. Day’s attorneys were put in a situation where they
would have to decide whether they would attempt to protect their own interests vs. Dr. Day’s interests when Herberg leveled his witness-tampering investigation threat against Dr. Day’s attorneys in open court.
FIFTH APPARENT FALSE STATEMENT MADE BY THE DA’S OFFICE IN THEIR “TOSS DR. DAY’S ATTORNEYS MOTION”
APPARENT FALSE STATEMENT MADE BY THE DA’S OFFICE:
“….in which she was offered release from civil liability in exchange for releasing any criminal charges she had against their client, Calvin Day."
TRUTH:
Sworn testimony at the Hearing for a Motion for a New Trial indicated that both the meetings and a written agreement were accomplished at the request of the complaining witness; Dr. Day’s attorneys did not initiate these
actions. As proof, herein are the applicable excerpts from the 08/26/2013 Motion for New Trial Hearing Transcript.
- Page 17, lines 17 &18 –- “The meeting was requested by Ms. Newcomb….”
- Page 19, lines 9 & 10 – “…. she had solicited for the meeting,…..”
- Page 26, lines 2 & 3 – “…..she asked for the meeting…..”
- Page
17, lines 24 & 25, and page 18, line 1 – “And when we were there, Ms. Newcomb was concerned about civil liability and Dr. Day suing her”.
- Page 19, lines 10 & 11 – “…..she was concerned
about civil liability…..”
- Page 24, lines 4 thru 7 – “It's very unusual for the complainant in a case to solicit a meeting with defense counsel - if you will, the opposition - to express a desire that she be
protected from civil liability”.
- Page 68, lines 1 thru 3 – “…..she wanted a release because she had made untruthful statements. That's what I understood her to say……”
- Page
51, lines 4, 9, & 13 thru 15 – “ ….. the mutual release… document….. was…. prepared….. in response to Ms. Newcomb's request”.
- Page 51, lines 19 & 20 – “A Ms.
Newcomb didn't want a mutual release. She only wanted a release initially where she was not going to get sued…..”
- Page 67, lines 18,19, & 22 – “And she said, Well, I know your client and I think he'll
sue me……. And then she wanted the release…..”
- Page 68, lines 1 thru 3 – “…..she wanted a release because she had made untruthful statements. That's what I understood her to say……”
SIXTH APPARENT FALSE STATEMENT MADE BY THE DA’S OFFICE IN THEIR “TOSS DR. DAY’S ATTORNEYS MOTION”
APPARENT
FALSE STATEMENT MADE BY THE DA’S OFFICE:
“The only evidence in the hearing was on the ineffective assistance of counsel based on the Mr. Brown's and Mr. Norton's conflict of interest.”
TRUTH:
“The only evidence…” statement by the DA’s office is not true because the judge who made the decision for a new trial also had as evidence,
the DA’s notes and files from the time of the trial. Thus even though this information was not presented to the public, it was nevertheless additional “evidence” that the judge considered in rendering his decision to grant a new trial. In
fact, the most important finding at the New Trial Hearing was the revelation by the judge (who examined the DA’s documents and notes at the time of the trial) that there was never a witness tampering investigation of Dr. Day’s attorneys (as had
been voiced by Herberg in open court during the trial). In other words the “evidence” examined by the judge showed that Herberg, apparently, had lied. Thus, “The only evidence…..” statement made by the DA’s office
in the “TOSS DR. DAY’S ATTORNEYS MOTION”is not true. As proof, herein are the applicable excerpts from the STATE OF TEXAS VS CALVIN DAY HEARING ON MOTION FOR NEW TRIAL, AUGUST 26, 2013
Page
5, lines 1 thru 3 & 10 thru 14
“THE COURT: ………..On the request of the Court, the State provided all of the documents in regards to this file to the Court for an in camera inspection…..”
“THE COURT: And so the Court reviewed all of those documents, reviewed the State's file and was confident that there was no investigation that was going on during the course
of the trial towards the defense attorneys or Ms. Newcomb's attorney.”
SEVENTH APPARENT FALSE STATEMENT MADE BY THE DA’S OFFICE IN THEIR “TOSS DR. DAY’S ATTORNEYS MOTION”.
APPARENT FALSE STATEMENT MADE BY THE DA’S OFFICE:
“The Court implicitly found that Mr. Brown and Mr. Norton had rendered ineffective assistance of counsel. and had failed to
notify their client of their conflict of interest.”
TRUTH:
The DA’s Office apparently hoped that readers would overlook the fact
that they used the term “implicitly found” instead of “found”. Indeed, the court never explicitly stated that ineffective assistance of counsel was the reason for granting the new trial. In truth, the two significant substantive verbalizations
made by the judge at the hearing were as follows:
One was the judge’s finding after reviewing the DA’s file, that there never was an investigation by the DA of Dr. Day’s Attorneys
“THE COURT: And so the Court reviewed all of those documents, reviewed the State's file and was confident that there was no investigation that was going on during the course of the trial towards the defense attorneys …...” . The obvious ”implicit finding” here is that apparently !st Assistant Cliff Herberg had lied during Dr. Day’s trial thereby causing a conflict of interest to wit:. “HERBERG……….And
we would represent to the Court that we believe that Ms. Newcomb is being manipulated by Mr. Del Cueto and Mr. Brown and Mr. Norton, that this constitutes tampering with a witness…….If I may, Your Honor, let me make it clear. This matter, of
course, is still under investigation.” In addition to the “implicit finding” that Herberg apparently had committed prosecutorial misconduct by lying in open court,
The other significant verbalization made by the judge was the judge’s statement at the conclusion of the proceedings “in the interest of justice the court will
grant the Defense motion for a new trial”. Note that in granting the motion for a new trial, that the judge made no mention of ineffective assistance of counsel, nor did the judge issue any findings of fact after the
hearing. The “implicit findings” statement infers that the DA’s office presumes that they are capable of reading the judge’s mind. Their presumption apparently caused the DA’s office to make
yet another apparent false statement in their “TOSS DR. DAY’S ATTORNEYS MOTION”.
EIGHTH APPARENT FALSE STATEMENT MADE BY THE DA’S OFFICE IN THEIR “TOSS DR. DAY’S
ATTORNEYS MOTION."
APPARENT FALSE STATEMENT MADE BY THE DA’S OFFICE:
“In the motion for new trial hearing in Cause No. 2011-CR-3682, this Court after reviewing
documents expressed its confidence that there was no investigation into witness tampering by Mr. Brown and Mr. Norton. At the time of the hearing that was accurate.”
TRUTH:
The DA’s office significantly altered one of the most important of the judge’s findings at the Hearing for the Motion for a New Trial to wit: the
DA’s Office substituted their word “hearing” in the place of the judge’s word “trial”. The Judge said “…….there was no
investigation that was going on during the course of the trial….” The DA’s Office changed what the judge had said, on page five of their “TOSS DR. DAY’S ATTORNEYS MOTION” to “At
the time of the hearing that was accurate.” In other words, the judge was referring to the activities of the DA at the time during the trial and the DA’s Office changed “trial” to “hearing” apparently to cover for 1st assistant DA Herberg’s apparent lie. Nevertheless, the Judge was clearly referring to the DA’s Activities during the trial and not two months
later, during the Hearing, as stated by the DA’s Office in their “TOSS DR. DAY’S ATTORNEYS MOTION”.
NINTH APPARENT FALSE STATEMENT MADE BY THE DA’S OFFICE IN THEIR “TOSS
DR. DAY’S ATTORNEYS MOTION”.
APPARENT FALSE STATEMENT MADE BY THE DA’S OFFICE:
“When the possibility of witness tampering arose during that
trial , this office engaged in a preliminary investigation to determine whether the statute against witness tampering or any other criminal statute was implicated, but then made the decision to take no further action, other than to notify the Court of the
possible criminal activity, while trial was pending."
TRUTH:
This statement by the DA’s Office is inconsistent with their representation,
via Herberg, during the trial that he matter was still under investigation. As proof, please contrast what the DA’s Office said above in their “TOSS DR. DAY’S ATTORNEYS MOTION” with what was said during the trial by Herberg to wit:
EXCERPTS FROM STATE OF TEXAS VS CALVIN LEE DAY JUNE 11, 2013
Page 10, lines 2-5
(BY CLIFF HERBERG)
“……….And we would represent
to the Court that we believe that Ms. Newcomb is being manipulated by Mr. Del Cueto and Mr. Brown and Mr. Norton, that this constitutes tampering with a witness.”
Page 24, lines 5-7
(BY
CLIFF HERBERG) “If I may, Your Honor, let me make it clear. This matter, of course, is still under investigation.”
TENTH APPARENT FALSE STATEMENT MADE BY THE DA’S OFFICE IN THEIR “TOSS
DR. DAY’S ATTORNEYS MOTION”.
APPARENT FALSE STATEMENT MADE BY THE DA’S OFFICE:
“However, since the granting of the motion for new trial an investigation
into whether anyone committed witness tampering in connection with Cause No. 2011-CR-3682 has commenced based, in part, on the evidence adduced during that hearing……….. This of course remains a possibility for Mr. Brown and Mr. Norton
as well."
TRUTH:
By including in their motion yet another apparent threat of a witness tampering investigation against Brown and Norton “……This
of course remains a possibility for Mr. Brown and Mr. Norton as well”, it would appear that the DA’s Office has again resorted to malevolent intimidation tactics to attempt to win their case at all costs. Apparently,
this intimidating “same song, second verse” witness tampering investigation threat language used by the DA’s Office was effective in obtaining the removal of Brown and Norton from representing Dr. Day in this case.
The District Attorney’s Office appears to be putting on an openly brazen show of their power apparently, to exercise retribution against Dr. Day for personal reasons and apparently, to intimidate others by showing what
happens when one challenges them. These unsettling and questionable actions by the DA’s Office in their apparent hyperbolic pursuit of Dr. Calvin Day should be of great concern to all Bexar County citizens. Indeed, all citizens of Bexar County should
be asking themselves the same question that Spanish citizens were asking during the Inquisition, that Jews living in Germany were asking prior to World War II, that Blacks living in the South were asking during the height of the Ku Klux Klan years, etc., --
namely, “Who’s next?”
Those who sit in silence are in effect enabling the DA’s office to continue these apparent malevolent tactics. As Martin
Luther King said, “In the end, we remember not the words of our enemies, but the silence of our friends”. The time has come for those who believe that they were mistreated by the DA’s Office and for those of you who know of fellow citizens
who were mistreated by the DA’s Office to speak up and speak out.
Dr. Day’s new trial is set for 08/11/2014. Please help Dr. Day by sharing this website your email
and social contacts. For those of you who know the details of the apparent clandestine activities of Dr. Day’s Accuser or the DA’s Office or who have other helpful information concerning Dr. Day’s Accuser or the DA’s Office, please
help by coming forward. Anonymous tips are also welcome. You may respond by sending an email to this website, send a letter to 1341 Nixon Drive, Boerne, TX 78006, call 210-859-3430, or blog at freedrday.wordpress.com.