BEXAR COUNTY ADA PROSECUTORIAL MISCONDUCT?

REPORTER'S RECORD
TRIAL COURT CAUSE NO. 2011-CR-3682
STATE OF TEXAS VS. CALVIN DAY IN THE DISTRICT COURT
379TH JUDICIAL DISTRICT
BEXAR COUNTY, TEXAS
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HEARING ON MOTION FOR NEW TRIAL
AUGUST 26, 2013
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On the 26th day of August, 2013 the following
proceedings came on to be heard in the above-entitled and
numbered cause before the Honorable Ron Rangel, Judge
presiding, held in San Antonio, Texas:
Proceedings reported by machine shorthand.
APPEARANCES
MR. RICO VALDEZ
MR. JAY BRANDON
Bexar County District Attorney's Office
Paul Elizondo Tower, 5th Floor
101 West Nueva
San Antonio, Texas 78205
Phone: (210) 335-2311
ATTORNEYS FOR THE STATE
MR. MICHAEL MCCRUM
MCCRUM LAW OFFICE
One Riverwalk Place
700 N. St. Mary's Street, Suite 1900
San Antonio, Texas 78205
Phone: (210) 225-2285
MR. ALAN BROWN
MR. JAY NORTON
Law Office of Brown & Norton
222 Main Plaza
San Antonio, Texas 78205
Phone: (210) 227-5103
ATTORNEYS FOR THE DEFENDANT

HEARING ON MOTION FOR NEW TRIAL
August 26, 2013
Proceedings
WITNESSES
DEFENSE                 DIRECT                   CROSS                      VOIR DIRE
Jay Norton             12,52                        44
Alan Brown            60,96,104                 83,102
EXHIBITS
DEFENSE                             DESCRIPTION                 OFFERED            ADMITTED
1                                      Mutual Release                 25                          25
D                                         Affidavit                        54                          54
3                                        Witness List                    55                          55
Court's Ruling..................................... 104
Conclusion ........................................ 104
Court Reporter's Certificate....................... 105

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PROCEEDINGS
THE COURT: All right. This is 2011-CR-3682,
State of Texas versus Calvin Lee Day. If I could just have
announcements.
MR. VALDEZ: Rico Valdez and Jay Brandon for the
State of Texas. We're ready, Your Honor.
MR. MCCRUM: Michael McCrum, David Lorenz with
Mr. Day. We're ready to proceed.
THE COURT: All right. This is a defense motion
for new trial hearing. Defense, you can go ahead and call your
witnesses.
MR. MCCRUM: Judge, I believe the first matter
that the Court indicated we were going to take up is the --
whether or not the -- the subpoenas that had been served on the
district attorney's office for certain documents should be
quashed. We filed a response with the Court on Thursday. We
believe there's several overriding legal bases to grant or to
deny the motion by the State or at least deny it in part. And
so we would again urge, Judge, that the Court order production
of documents relative to this investigation against Mr. Norton
and Mr. Brown.
MR. VALDEZ: And, Your Honor, I can respond
point by point if you need argument on -- to their response.
Would you like that, Your Honor?
THE COURT: Well, I can tell you -- I can just
5
say this and see if there's need. 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; is that correct?
MR. VALDEZ: That is correct, Your Honor.
THE COURT: All right. And so -- and so, State,
you're representing that all the documents that you provided
are all related and there's no other documents out there?
MR. VALDEZ: Yes, sir. Absolutely, Your
Honor.
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. So I've conducted the in camera
inspection already.
All right. At that point, I would just say that
we'll continue on based on the order that the Court submitted
and filed August the 19th, 2013 in regards to whether or not
the defendant's attorneys labored under a conflict of interest
which resulted from a potential investigation by the
prosecution of witness tampering. So if you want to call those
witnesses, we'll just get started on that.
MR. MCCRUM: Just so that I understand the
Court's ruling, Judge, is the Court -- I understand the Court's
ruling is that there was no investigation. As the Court knows,
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the district attorney -- first assistant district attorney
indicated there was an investigation on June 11th. Is the
State conceding that Mr. Herberg falsely represented to the
Court that investigation was under way?
MR. VALDEZ: Your Honor, the record reflects
what it reflects. He said potential, possible. He qualified
it when he was discussing.
THE COURT: Yes. And I reviewed several
different -- several prosecutors' notes of what was going on.
They were relaying certain things and so, you know, I'll let
the State stay by that response at this point. The Court
saw -- the Court's confident that there was no investigation
that was going on, no ongoing, no active investigation that was
going on at any time.
MR. MCCRUM: All right, sir. I still -- for me
to decide whether or not I need to put on the State's DAs on
the stand, particularly Mr. Herberg, I need clarification for
the record whether the State's conceding that Mr. Herberg
falsely represented that there was an investigation. And I'll
quote from the transcript to Page 24. Mr. Herberg's statement
to the Court on June 11th was:
"If I may, Your Honor, let me make it clear.
This matter, of course, is still under investigation," which is
a pretty affirmative statement. I don't think it gets more
affirmative.
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And if we read it in context, he's talking about
the matter of witness tampering involving Mr. Del Cueto,
Mr. Norton, and Mr. Brown.
And so if the State will concede that that was a
false representation to the Court, then I'm ready to proceed
with witnesses, Judge. If they're not willing to concede, then
we need to explore that further.
MR. VALDEZ: Your Honor, my motion to quash the
subpoena goes to live testimony as well. That would be the
core work product that I discussed in the motion. That is
absolutely protected from disclosure under all circumstances to
the -- with the exception of Brady.
MR. MCCRUM: And this is Brady. I mean, if
there's evidence that the prosecution misrepresented its
investigation to the Court, which now obviously there is, then
that definitely is exculpatory to the defendant as to the
assailing issue before the Court.
MR. VALDEZ: Your Honor, in the defense's
response to my motion, they talk about why this might
constitute Brady. They argue it can constitute Brady because
it's material and would affect the outcome of the trial. What
they neglected to define for the Court was in order for it to
fall under Brady, it must be both favorable and material.
Favorable evidence is that evidence or
information which will -- may impact the outcome of whether the
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defendant is acquitted or convicted, not whether or not the
defendant would have been entitled to a mistrial.
MR. MCCRUM: That's certainly --
MR. VALDEZ: Also, Your Honor -- I'm sorry.
MR. MCCRUM: I'm sorry.
MR. VALDEZ: Also, thoughts and impressions of
an attorney can never be Brady. It's our opinions, Your Honor.
Our discussions are not Brady. Brady is substantive evidence
or information that can lead to that type of evidence. It
simply isn't Brady, Your Honor.
THE COURT: Okay. Here's what I want to do. I
want to -- I want to proceed with this motion and then if
there's a bridge we need to cross, we cross it and let's just
kind of see where we go. I mean, we pretty much have the issue
before us, so let's focus on that issue and kind of see where
it -- where we go from there.
MR. MCCRUM: I'm not sure how to approach that,
Judge, with all due respect because if the State is -- the
State's position on whether or not there was an investigation
in the mind of Mr. Herberg goes directly to whether or not
there was an actual conflict between the defendant and his
trial lawyers. And so if this thing ever goes up before the
appellate court, the appellate court is going to want to review
whether or not an actual conflict actually existed.
Part and parcel to that analysis is the position
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of the DA's office of whether or not the defense attorney was
truly under investigation. I guess if the Court's satisfied
that it has heard enough evidence for it to make a factual
finding based on the records before it that there was no
investigation, then I guess we can proceed with that and just
get into whether or not the performance of the defense
attorneys were affected there by the pronouncements of the
assistant district attorney.
THE COURT: Yeah. Let's get into that at this
point. The Court's confident that there was no investigation.
MR. MCCRUM: Okay.
THE COURT: And so let's go ahead and proceed
with the defense attorneys and then we'll kind of see where we
can go.
MR. MCCRUM: Is the Court prepared at this point
to make a finding, which we would ask the Court to do, as to
whether or not the statements by Mr. Herberg were false and
misleading?
THE COURT: Let me review the record on that and
I'll take that under advisement. I think there's a copy
somewhere, right, of that record?
MR. MCCRUM: Yes, Judge. We can actually give
the Court citation references to this several places where
Mr. Herberg made those representations.
THE COURT: Okay.
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MR. VALDEZ: And, Your Honor, I am prepared to
go in camera and answer any questions the Court might have.
I'm just not going to do it out here in public forum at the
risk of waiving the State's attorney work product privilege.
Also, just as to the issue of conflict, on Page
6 of the defense's response to the State's motion to quash,
they basically say, which -- and I agree with -- that it
doesn't matter if there was an ongoing investigation or not.
The critical issue is whether the defense attorneys believed
that they were subject to a criminal investigation. That goes
to the heart of the conflict. That evidence can be established
by Mr. Norton and/or Mr. Brown and this could be a very short,
quick hearing if we just stick to the issue. The good or bad
faith, what the DA was or wasn't doing has nothing to do with
the conflict of interest. Either it existed or it didn't.
MR. MCCRUM: That's certainly one issue before
the Court, but as the Court, I think, astutely would recognize
is that a collateral issue that's very important in this case
is whether or not there was an actual conflict regardless of
the mind set of the lawyers. And Mr. Valdez surely knows that.
Secondly, Judge, with respect to the in camera
presentation by the DAs, I'm going to object to that based on
my client's constitutional right to confront witnesses and his
right to due process and access to all information that would
affect the actions of his attorneys, based on Brady versus
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Maryland and exposure.
MR. VALDEZ: And just briefly, Your Honor. I
can tell you're getting tired of this argument. Preliminary
matters of admissibility are questions of law for the Court.
They don't implicate the due process or complication rights. I
don't have to do in camera divulging. I just said if the Court
wanted one.
THE COURT: Okay. Well, we still have an issue
before the Court in regards to the order, so let's proceed on
that.
MR. MCCRUM: All right. We'll call Jay Norton
to the stand.
MR. VALDEZ: And, Your Honor, if we could invoke
the rule.
THE COURT: All right. The rule's been
invoked.
MR. MCCRUM: I don't mind them invoking the
rule, but I ask that it not apply to Mr. Norton or Mr. Brown.
MR. BROWN: We're the lawyers.
MR. VALDEZ: On what basis, if I might --
MR. MCCRUM: They're lawyers in this case,
assisting me in this case.
MR. VALDEZ: So they have not withdrawn from the
case? They're still actively representing Calvin Day?
MR. MCCRUM: We have not filed a motion to
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withdraw.
MR. VALDEZ: Okay.
THE COURT: Okay. All right. I'm going to
swear you in.
(The witness was sworn and instructed)
THE COURT: All right. If you could just
introduce yourself for the record.
THE WITNESS: Jay Norton.
THE COURT: All right. Defense?
JAY NORTON,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. MCCRUM:
Q Mr. Norton, for the record, you're an attorney
licensed to practice in the State of Texas?
A Yes.
Q Licensed to practice law?
A Yes, sir.
Q And you were one of the trial attorneys for Mr. Day
in his trial in this case?
A Yes, sir.
Q I want to focus you first on a -- on a statement that
is in the record that Mr. Herberg made relative to a
conversation that took place before trial started, specifically
where Mr. Herberg indicated he notified the defense prior to
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the initiation of the trial that Laura Newcomb -- there was a
potential issue involving Laura Newcomb, complaining witness.
Do you recall that conversation?
A I recall the meeting, yes, sir, up in the district
attorney's office.
Q All right. What do you recall about that meeting,
sir?
A The main focus of that meeting was about the recusal
or the possibility of the recusal of the district attorney's
office as it relates to a prior sexual encounter between
Dr. Day --
MR. VALDEZ: Your Honor, I'm going to object.
How is this relevant to the issue of conflict of interest?
THE COURT: Response?
MR. MCCRUM: Judge, I'm going to follow it up
with questions. There were statements made during the course
of that meeting that relate specifically to Laura Newcomb and
her change in testimony, her change in position, whether or not
the lawyers felt threatened by that, whether or not
specifically, given Mr. Herberg's false statements of
investigation, and how it affected them.
MR. VALDEZ: Object to the characterization of
Mr. Herberg's statements, Your Honor.
THE COURT: Okay. I'll note that for the
record, that objection. I'll let you get into that, but kind
14
of keep it short and let's try to get to the point.
Q (BY MR. MCCRUM) Please finish your testimony.
A And as it related to the Las Vegas incident and the
physician-patient relationship between Susan Reed and Dr. Day.
It was an attempt to have them recuse themselves and appoint
perhaps the AG's office or things of that nature. Mr. Herberg
did not inform us anything about conflicts in testimony or any
of that kind of issue. The only thing that was referenced was
there was a brief discussion that Mr. Del Cueto had filed a
letter with the Court, and my memory was at that time I had not
seen the letter, but I had heard about the letter.
Q All right. Do you recall Mr. Herberg making any
statement to you with respect to whether or not Ms. Newcomb may
assert the Fifth Amendment at her testimony?
A My best memory is nobody really seemed to know what
the issue was and if Mr. Herberg knew, he wasn't telling us.
MR. VALDEZ: Objection, speculation, Your Honor.
THE COURT: I'll sustain that. I mean, you can
go ahead.
A He made no direct representations about the Fifth
Amendment and what Ms. Newcomb was or was not going to do as it
relates to the Fifth Amendment.
Q (BY MR. MCCRUM) At that time was there any indication
from the State that the -- of whether or not the State was
investigating you or Mr. Brown?
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A There was no indication that we were under any type
of investigation.
Q How about any indication as to whether or not Mr. Del
Cueto was under investigation?
A There was no indication that Mr. Del Cueto or any
member of his office was under investigation.
Q On June 11th of 2013, do you recall Mr. Herberg
entering the courtroom to urge a motion to the Court?
A Yes, sir.
Q All right. Describe to the Court -- so that the
record is clear, describe for the record the circumstances of
his entry and approach to the Court.
A It was a very full courtroom. Many people there to
observe. We believed we were going to start up with
questioning of Ms. Newcomb. As the Court was calling the case
to order and the court to order, Mr. Herberg basically said he
needed to bring some issues and things to the attention of the
Court and if the Court would indulge him and allow him to do
so.
Q All right. Do you recall him tendering to the Court
a certain two-page document that was styled a Mutual Release?
A Yes, sir.
Q All right. And I believe the record reflects that a
copy was tendered to you for review.
A Yes, sir.
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Q All right. Do you recall Mr. Herberg indicating that
his office had initiated an investigation?
A Yes, sir.
Q Do you recall what type of investigation Mr. Herberg
indicated he had initiated or his office had?
A Felony witness tampering.
Q All right. And do you recall whether or not you were
identified as a target of that investigation?
A Yes, sir, I was.
Q And what was your reaction when you heard
Mr. Herberg's statement?
A My initial reaction was, he's crazy. He's -- I have
no -- I couldn't fathom why he would be doing that initially,
and then I started thinking about historical things, Kathleen
Pierce, other incidences, prosecutions that I thought were
fairly baseless and thought he is -- I can't remember the exact
term that was in my mind, but he is capable of doing this for
all kinds of reasons.
Q Capable of doing what, sir?
A Investigating Mr. Brown, Mr. Del Cueto and myself
and -- with the eye towards perhaps charging us.
Q At that time, sir, did you have some knowledge
relative to the mutual release document that Mr. Herberg
tendered to the Court?
A Yes, sir.
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Q And were you aware whether or not Mr. Day had some
knowledge as to that document prior to Mr. Herberg introducing
it into court?
A As to that particular document? I don't recall. I
don't know that Dr. Day would have. He might -- he probably
was aware of some of the conversation about a document like
that, but as to actually seeing the document, I don't have a
memory if he ever saw that document prior -- prior to that day.
Q And prior to that day, sir, did you participate in a
meeting where Ms. Newcomb was present?
A Yes, sir.
Q And who else was present at that meeting?
A Mr. Brown, myself, and Mr. Del Cueto.
Q And was the subject of that document discussed at
that meeting?
A The subject of that -- well, can I answer it this
way? The meeting predated any document. The meeting was
requested by Ms. Newcomb. It was held over at Mr. Del Cueto's
office, kind of late in the afternoon one day. Mr. Brown and I
went over there in large part just to see Ms. Newcomb and see
how she talked and how she acted. The parameters that -- we
weren't -- when we went over there we weren't sure what the
meeting was for, but we were told the parameters were no
factual discussions about the case itself. And when we were
there, Ms. Newcomb was concerned about civil liability and
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Dr. Day suing her.
So that was the genesis, I guess, of that kind
of discussion. Mr. Brown and myself, but more so Mr. Brown
initially, Hey, if we're going to do any kind of settlement,
any kind of release, we need to include the district attorney's
office, made reference to having seen it been done in the past
several times. And I don't recall the name of it, but in
particular one that Tony Nicholas had previously done.
Q When Mr. Herberg indicated that an investigation was
under way against Del Cueto, against you, and against
Mr. Brown, did the circumstances of that meeting come to mind?
A Yes, sir.
Q Did the circumstances surrounding the preparation of
that two-page document, that mutual release, come to mind?
A Yes, sir.
Q And did -- you expressed already a concern that
Mr. Herberg may indeed be proceeding with an investigation.
How did that play into, if at all, in your motion for a
mistrial to the Court that you made that morning?
A Well, when Mr. Herberg -- amongst other things, but
when they said we were still under investigation, we didn't
have any idea when this investigation had started. We knew
that we were going to cross potentially a witness that was
involved in the prosecution potentially of us, that being
Mrs. Newcomb. We didn't know if she, so to speak, was friend
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or foe at that point. We -- and I'm sorry. I think I'm
running astray from -- can you --
Q No. Go ahead and complete your answer. You're
answering.
A It affected what we did. It affected what we
thought. It affected how we were -- would have normally
treated a witness. It affected directly how we treated
Ms. Newcomb. It -- we, for example, didn't even bring up the
circumstances of the meeting, the fact that she had solicited
for the meeting, the fact that she was concerned about civil
liability, the fact that she was concerned about different
issues and the inference being that she was concerned because
the only civil issue that we could come up with would be her
prior testimony in Austin and that perhaps she had perjured
herself and things of that nature. We didn't answer -- we
didn't ask questions directly about any of those things out of
concern for the -- for the possibility of prosecution or to
perhaps adversely affect her credibility. It put us in a very
awkward position where we thought we might need her to be
credible for us juxtaposed to Dr. Day's need for her to be
lacking credibility for his case.
Q When you say that she would need to be credible for
us, us being you and Mr. Brown?
A And Mr. Del Cueto. And I guess in -- to complete
that answer to some degree, while that all was going on, I
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looked back over where Ms. Newcomb was sitting and she was
sitting basically in the front row there behind defense counsel
table with Mr. LaHood and Mr. Del Cueto, and she looked at that
moment like she was still, for lack of a better term, attached
to them and the thought was, well, she would have to sort of
burn or hurt Mr. LaHood and Mr. Del Cueto to get to us as well
if there's a conspiracy since he's the one that - he being
Andrew - that Mr. Herberg was alleging was getting tainted
advice, I guess, at our request. We did not want to attack her
at that point. In fact, in somewhat an unusual thing again, I
think I made a couple or two or three representations about her
honesty and her credibility outside the presence of the jury
there.
Q Now, you're referring to those instances in the
record where you actually commented that she was honest?
A Yes, sir.
Q Why would you say that she's honest, her being the
primary complainant against your client, Mr. Day?
A I was saying she was being honest because she would
potentially be the primary complainant against Mr. Brown and
myself. And if at that moment my view was that she was still
attached to Mr. Del Cueto and Mr. LaHood, then I liked that
scenario much better than her being angry and hostile at
Mr. Brown and myself and potentially making up things that
would aid the State in any kind of prosecution of us.
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Q So, again, let me ask you why then did you move for
mistrial upon learning that -- from Mr. Herberg that an
investigation was pending against you?
A The self-interest of Mr. Brown and myself overruled
the interest of our client in the sense of we did not -- we
were definitely put at odds, our interest, to Dr. Day's odds --
excuse me, Dr. Day's interest in how someone should approach
this case and how someone should approach this complainant.
We -- when I say we, I'm referring to Mr. Brown
and myself, not Mr. Del Cueto, because he was not part of this
conversation. We believed that we did not want to be suspects.
We needed to stop what we were doing immediately, let someone
else handle this case who could properly handle it, giving
Mr. Day's Sixth Amendment rights and so forth, that he have
full and adequate representation free of the conflict of our
own self-interest of the possibility of prosecution of my
office out of incidences tied directly to his case.
Q And so that the record is clear, sir, was it your
concern that the representation that there was an investigation
for witness tampering, that that would include an investigation
into the circumstances of your meeting with Ms. Newcomb?
A Yes, sir.
Q Were you concerned that that investigation of witness
tampering would include the circumstances of your involvement
in the preparation of that mutual release agreement?
22
A Yes, sir. To clarify, I didn't prepare that
document, but I was aware of the document and the reason for
what, you know, for -- for its existence, yes. All that, the
entire thing all the way down to just the fact that Mr. Del
Cueto is a -- is a friend of mine and has been a friend of mine
for a long time and we've had many instances of -- you know,
that don't relate at all to this case or any other case, of
just being friends. Mr. Herberg used that as one of the bases
for just this so-called conspiracy with my relationship with
Mr. Del Cueto.
Q All right. Regardless of whether or not you felt you
were innocent of witness tampering, did you feel that it would
have affected you in your representation of Mr. Day through the
remainder of the trial?
A Yes, I felt it would. In fact, I knew it would and
it did.
Q Did you discuss with Mr. Day the potential conflict
that existed or actual conflict that existed and how that
potentially could affect his trial?
A Not at that time.
Q At any point did Mr. Day waive any potential conflict
after full notice of the effects or potential effects of that
conflict?
A No, sir, he did not.
Q Now --
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A Can I elaborate on that?
Q Yes, sir. Yes, sir.
A In fact, when Mr. Brown was able to return from his
trial in Del Rio, the first opportunity that I'll say we had in
the sense of us being back together, we were -- we raised this
issue once again before they brought the jury in. And
Mr. Brown, I think it was, who asked for Mr. -- for Dr. Day to
be interviewed so he could express that he was not waiving any
of those issues, and, in fact, did not waive and wanted to
exert at that point that he wanted conflict free
representation.
Q And to your credit, you actually notified the Court
that you recognized the conflict and therefore wanted a
mistrial so that Mr. Day could receive conflict free
representation.
A Yes, sir, as did Mr. Brown.
Q Having been denied that motion, sir, and proceeding
with the trial, you mentioned just a bit ago that you altered
your cross-examination of Ms. Newcomb in certain respects.
A Yes, sir.
Q If you had not been party to the meeting with
Ms. Newcomb but were aware that she had met with other people,
third parties not even related to you, and had expressed
concern over her change in testimony and her possible perjury
before a state licensing board, would that have been a subject
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that you would have cross-examined her?
A Absolutely, 100 percent.
Q Why is that?
A Well, it was so fertile with so many issues. 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. And,
again, without getting factual because we didn't know the
facts, yeah, it would be, absolutely. I mean, if a document
like that was -- had been used and brought up and so forth, we
absolutely would have crossed on that. We would have gone
through all of those issues. If -- it would be something that
you would want a jury to hear.
Q The document you're referring to is the mutual
release that was introduced by Mr. Herberg?
A Yes, sir.
Q All right. And just so that I'm -- we're clear,
we're talking about the same document --
MR. MCCRUM: May I approach, Judge?
THE COURT: Yes.
Q (BY MR. MCCRUM) Mr. Norton, I'm going to hand you
what's been marked as Defendant's Exhibit 1. Do you recognize
that, sir?
A Yes, sir. I believe -- if memory serves me correct,
that is the document that Mr. Herberg introduced or exhibited
25
at the hearing to disqualify Mr. Del Cueto.
Q This is the document or at least a copy of it that
you've been referring to in your testimony?
A Yes, sir.
Q All right, sir.
MR. MCCRUM: I'll move for the admission of
Defense 1, Judge.
MR. VALDEZ: It's already in the record. No
objection, Your Honor.
THE COURT: All right. It's admitted.
Q (BY MR. MCCRUM) You would have crossed Ms. Newcomb
about the circumstances surrounding her consideration of this
agreement?
A Yes, sir.
Q But you didn't cross her about that?
A Not a word.
Q And why didn't you cross her about the circumstances
surrounding the preparation of this document?
A Because we were concerned about any potential issue
or statement that she might make and if -- if they were angry
or hostile and started exaggerating or making things up, we
certainly did not want that in any record and we were not
trying to encourage the State to charge us.
Q Did it occur to you that she may have a different
version of the meeting that you attended with Mr. Del Cueto and
26
Mr. Brown?
A Absolutely. And part of the reason for that was she
asked for the meeting. At the point of have -- at the point of
Mr. Herberg doing his public accusation, we had already seen
the letter that Mr. Del Cueto had filed with the Court, and
putting it all together, we believed that Ms. Newcomb had hired
Mr. Del Cueto to run interference and protect her from the
district attorney's office. Yet when she was asked why she
hired Mr. Del Cueto, she said because of Dr. Day's people. And
I didn't believe that to be a truthful answer, and so I knew
she was already willing to cover for the DA's office, for lack
of a better term, and give a -- what I think would be not a
complete -- giving her at best credibility, not a complete
answer. And I had never heard this Dr. Day's people thing
before, so I was unaware of that. It occurred to me that I did
not want to encourage her to make more statements of that
nature.
Q Would you agree that by pointing out inconsistencies
in her statements and/or potential perjury that she committed
that that would have been beneficial to Mr. Day in his trial?
MR. VALDEZ: Objection, Your Honor, leading.
THE COURT: I'll sustain.
Q (BY MR. MCCRUM) Well, what is your position as to
whether or not it would have been good strategy on your part to
cover those areas if you had not been personally involved?
27

A It would have been good strategy. It would have been
obvious strategy. It would have been something that should
have been done in greater detail than was done.
Q Were there other matters that you did not go into
with Ms. Newcomb in cross-examination -- cross-examining her
that you decided not to do as a result of finding out that you
were under investigation?
A Yes, sir.
Q Describe those for the Court, please.
A Well, there were a few. One would be what we've
already discussed, the meeting and why she really hired Mr. Del
Cueto and if there was in her own mind the need for counsel
because of prior testimony and perjury.
There was an instance that we had become aware
of where it was our understanding that Mrs. Newcomb had gotten
an individual in Boerne - I can't recall his name, something
like Bueller or Ruler or something like that - to file a false
affidavit that her daughter was living with him and his family
so she could attend schools at the Boerne School District.
There was a place that she had previously been
employed at. I believe it was called Trinity Towers where she
was fired for falsifying time records, time cards, something to
that effect.
There was an instance or two at Fair Oaks Ranch
which led to her termination involving a golf pro, a member,
28
potentially a club member, if you will. And there was also
another trainer from there that we thought would have been a
good witness about her relation -- getting the circumstances of
her being fired and how she then accused sexual harassment out
of that as opposed to what her real conduct was.
There was an area that we had been looking at
and believing that had some good potential to it, and that was
that she was involved collaterally, if you will, with a --
illegal poker games and the taking of money out of the country.
There was a lady that we really toyed with using
prior to this named Elaine Levy who is the wife or ex-wife of
Dr. David Levy who was one of the people we believed that she
had had an ongoing relationship with and some of the conduct
that was involved and that we thought might be appropriate for
the jury and would assist Dr. Day, and we did none of those
things.
Q Why didn't you cross her about any of these things?
A Because of the possibility -- well, not the
possibility. Because we had been told that we were under
investigation and we believed that there was a conflict
there.
Q But why would it cause you not to question her about
these matters? Why would the fact of the investigation against
you cause you to not question her about these matters?
A Well, simplistically, I guess you could say we didn't
29
want to anger her and we didn't want to encourage her to make
false statements about us as we had believed she made some
other false statements and, you know, all the way down to the
actual allegation against Dr. Day.
Q Had you other -- had you planned to get into these
matters?
A Yes, sir.
Q Prior to Mr. Herberg notifying you that you were
under investigation?
A Yes, sir.
Q And so did you alter your strategy once you were
notified that you were under investigation?
A Yes, sir.
Q Was there also evidence of her mental instability
that you intended to go into on cross-examination that you did
not go into?
A Yes, sir.
Q Was that for the same reason?
A It was -- yes and no. Yes, because of the same
reason, but there were some additional reasons that -- but,
yes, that was a factor in it. We played it safe, if you will.
Q Were you aware or were there any facts or
inconsistencies in her testimony about the circumstances of her
visit to the office, Mr. Day's office?
A I'm sorry. I didn't quite understand the question.
30
Q I guess what I'm getting to without trying to lead
you is, were there inconsistencies in her testimony regarding
the events with Mr. Day that you did not get into on
cross-examination?
A Yes, sir.
Q And do you recall what those inconsistencies were?
A I can recall some of them. I don't know that I can
recall all of them. One would have to be just how it all
started with the 911 call and the initial officer who met her
at Starbucks out on I-10. There was conflicts there. There
was conflicts as it related to building layout and conflicts --
photographic, her descriptions of Dr. Day's anatomy. There
were a number of areas that could have been explored more
fully, yes, sir.
Q And what were the reasons for not exploring those
more fully?
A Same. Didn't -- I guess I shouldn't say same. For
clarity, we didn't want to anger her. We didn't want her to be
a better witness or a more positive witness or a more willing
witness against us.
Q What about something you said a little bit earlier
that you did not call certain witnesses to the stand? Do you
recall that?
A Yes, sir.
Q And that's, I guess, part of the defense case in
31
chief. Were there certain witnesses that you and Mr. Brown did
not call intentionally as a result of being notified that
you're under criminal investigation?
A Yes, sir.
Q Do you recall some of those witnesses or can you just
name them by --
A I can do it by category. Maybe some by name. One
would be Officer Justice. I remember her name just because of
the name. She was the officer that made the initial call. We
did not use the people on -- from the 911 call, the key card
folks. We did not use the Boerne -- the gentleman from Boerne.
We did not use anything from Fair Oaks. We did not use
anything from Trinity Towers. We did not use her ex-husband.
We did not use anything relevant to the potential criminal
violations involving the poker game and money laundering and
things of that nature, and we did not use the circumstances of
the meeting at Mr. Del Cueto's office.
Q With respect to the ex-husband, sir, what evidence
did you anticipate would have been elicited from him if you had
called him?
A Well, in a general sense her vindictive, manipulative
behavior, her need to have people believe in her. I don't
remember exactly how he described it, but the -- just sort of
their instances of -- instances of in their relationship and
his dealings with her involving their child and their divorce
32
and things that -- ongoing issues with them that we thought
would be relevant for the jury to hear.
Q Would it be relevant as to her credibility?
A Yes, sir.
Q Or lack thereof?
A Her credibility and her ability and desire to
manipulate, and for lack of a better term, to be an emotional
drama queen.
Q Was there also surveillance conducted of
Ms. Newcomb?
A Yes, sir.
Q Was that through a private investigator hired by the
defense?
A Yes, sir, it was. It was hired prior to our
involvement, but we had the work product of that.
Q Did that surveillance of Ms. Newcomb reveal certain
meetings with persons that if brought to light in the trial
would have proved advantageous to Mr. Day and his innocence?
A I believe so.
Q And did you present that evidence of -- the results
of that surveillance?
A No, sir.
Q Why didn't you present that nor the other things that
you spoke of, the witnesses that you didn't call?
A Well, in particular, it was our belief that any of
33
the surveillance evidence would have greatly upset Ms. Newcomb
and we didn't want that.
Q Did you call Mr. -- obviously Mr. Day did not
testify. Was it planned that he was going to testify?
A Yes, sir.
Q And did that decision not to testify, was that based,
in part at least, to your concern being under investigation?
A I would broaden your statement to yes, but it would
be our concern.
Q And what would be your concern? Describe what the
concern would be.
A Well, Dr. Day would have properly given his
recitation of what had occurred, which would have a lot of
conflict with Ms. Newcomb and which would have a lot of, if you
will, the need to show some of the things and call some of the
people that we did not call to corroborate his observations and
his feelings about what had occurred.
Q Would this --
A In how she acted and how she talked.
Q Would this include Dr. Day's knowing some
circumstances relative to either the meeting that you had with
Ms. Day and/or the preparation of the mutual release that's
been introduced as Defense 1?
A Yes, sir.
Q And so was there a concern on your part that by
34
putting Dr. Day on the stand that it would reveal facts that
could be used by the prosecution in that investigation?
MR. VALDEZ: Objection, leading, Your Honor.
THE COURT: Sustained.
Q (BY MR. MCCRUM) What was your concern?
A Dr. Day is a very direct person and it was our belief
that Dr. Day would make statements involving the -- Ms. Newcomb
that would lead to either our need to put on evidence or
highlight the fact that we were not putting on evidence, and
they would lead to potentially a stronger investigation, if you
will, if not -- we just didn't want it out there on the
record.
Q And yet the plan was to put him on the stand; wasn't
that correct?
A Yes, sir.
MR. MCCRUM: May I approach, Judge?
THE COURT: Yes.
Q (BY MR. MCCRUM) Mr. Norton, let me show you another
document. It's a three-page document marked Defense Exhibit 2.
Do you recognize the handwriting on that three-page document --
A Yes.
Q -- specifically on the first and the third pages?
A Yes, sir.
Q And whose handwriting is that?
A That is my handwriting.
35
Q All right. And I'll -- what do you recognize that
document to be?
A They -- it looks like redacted notes from a meeting
involving Dr. Day's case.
Q Would that -- would those have been notes made prior
to the commencement of trial?
A Yes, sir, they were.
MR. MCCRUM: I'll move for the admission of
Defense Exhibit 2.
MR. VALDEZ: Your Honor, we're going to object.
The document itself is hearsay. Mr. Norton can testify about
what his strategy was, but the document itself is hearsay. If
the document is admitted, then under the rule of optional
completeness, we would like the rest of its contents. The work
product privilege as far as it goes between the breach of a
duty to a client doesn't exist. So they're not privileged.
THE COURT: All right. What I'll do is I'll
sustain. If you desire to enter that as a court exhibit, you
certainly can. He can testify to whatever's on there.
MR. MCCRUM: Okay, Judge.
Q (BY MR. MCCRUM) Do you recall writing notes,
actually, that Day must testify?
A Yes, sir.
Q And why would you write notes prior to trial that Day
must testify?
36
A Well, in a -- fundamentally when you distilled this
case down, it was a two-witness case. You know, as the
expression goes, he said, she said. And with the circumstances
of how this allegation came about and with the lengthy 404(b)
involving other people, the only common denominator really who
could explain all of those things was Dr. Day.
Q And when did the strategy change in your mind as to
whether or not to call Dr. Day?
A When Cliff Herberg walked through the door just as
Mr. Rangel did at this moment (indicating).
Q And made the allegation that you were under
investigation.
A Yes, sir.
Q Now, you've heard the Court make findings prior to
the commencement of your testimony, that there was no
investigation of you or Mr. Brown by the district attorney's
office.
MR. VALDEZ: Objection, Your Honor, relevancy.
THE COURT: I'll overrule.
A Yes, sir, I heard the findings.
Q (BY MR. MCCRUM) All right. When was the -- well, let
me ask it this way. When Mr. Herberg indicated that his office
was conducting an investigation, what did you believe to be
true?
A I believe they were conducting an investigation.
37
Now, may I explain that a little further?
Q Yes.
A I didn't -- when I said investigation, I'm not saying
they were doing it in the traditional sense of calling SAPD and
making a report or something of that nature, but I believe they
were looking at every fact or circumstances they could to -- to
see if there was a case or will be a case against Mr. Brown,
myself, and Mr. Del Cueto.
Q And you used to be a prosecutor, right, Mr. Norton?
A Yes, sir.
Q And under either of those scenarios that you
described, isn't there an intent on the part of the prosecutor
and/or law enforcement agency in either of those situations to
take whatever action was necessary to determine whether or not
a crime had occurred?
MR. VALDEZ: Objection, Your Honor, calls for
him to speculate on others' state of minds.
THE COURT: Yes, I --
MR. MCCRUM: I'm limiting it to his testimony.
THE COURT: I'll sustain. I'll let you
rephrase.
Q (BY MR. MCCRUM) When you were a prosecutor, sir,
and -- did you participate in either of those situations?
MR. VALDEZ: Objection, Your Honor, to
relevancy.
38
MR. MCCRUM: It goes to his state of mind,
Judge. That's the whole issue.
THE COURT: Overruled.
A And I'm sorry. I'm not sure what you're asking.
Q (BY MR. MCCRUM) Well, you described two situations.
There's a traditional investigation in the sense that a police
report is initiated by --
A Yes.
Q -- law enforcement agency, and you described a second
situation where it may be an intent of the prosecutor to
initiate an investigation and start gathering information.
A Yes, sir.
Q I'm wondering is -- in your experience as a
prosecutor, when you were a prosecutor, did you engage in each
of those situations?
A Yes, but --
Q Or work with other prosecutors who did?
A Yes, sir. In clarity, when I was in the DA's office,
we didn't -- the DA's office did not initiate prosecutions, but
if we thought there was something that should be prosecuted, we
initiated the process, if you will, where we would refer it to
the appropriate agency. The prosecutor themselves did not
conduct an investigation or participate in the investigation,
but the referral was done.
Q For purposes of your state of mind, when you're
39
sitting as a defense lawyer representing Dr. Day, did it make a
difference to you whether or not a case number had been
generated by the San Antonio Police Department?
A No, sir. And we didn't know if that had occurred
already, was going to occur. We asked later on, again, if --
we wanted to know is there still an investigation of us and the
answer was, I don't know, I've been down here trying this case.
And at that -- well, I don't remember the exact words, but I
believe we said, Judge, you know, we're okay with a ten-minute
break; why don't they go upstairs and go find out that because
we were still laboring under the impression that there still
was and we wanted to know. We wanted affirmatively to know
what was going on.
Q Are you referring to late in the trial when you,
again, raised with the Court that question as to whether or not
you're still under investigation?
A Yes, sir.
Q All right, sir. And we see in the record that that
indeed happened. Why did it happen? Why did you at that stage
of the trial bring that topic up again as to whether or not you
were under investigation?
A Well, that was when Mr. Brown had returned from Del
Rio. It was his first opportunity really to see us in person
and talk about what had gone on in his absence to some degree.
And I think he was a little shocked or amazed that we still
40
didn't have an answer to that. And we discussed that we needed
to approach the bench, raise these issues one more time, which
was when Kirsta Melton's response was, Well, Judge, it doesn't
matter if there was a conflict, they waived it by not
objecting. And we were saying, No, we did object; we asked for
the mistrial; we didn't waive it, and it still -- if we are
still under investigation, it's still an ongoing conflict and
potentially would -- well, would continue to affect the trial
all the way down to what we put on in punishment, to how we
argued the punishment and so forth.
Q It could affect it or did it affect it?
A No, it did. In -- if we were no longer under
investigation or if there was no investigation, if they would
tell us, You were and you're not, then maybe we still had time
to put on some of those things that we hadn't done, even though
it was in punishment and should have been done in
guilt-innocence.
Q And to put this in context, Mr. Norton, in terms of
evaluating whether or not you would be concerned of an
investigation despite your feelings that you were innocent of
any wrongdoing, had you or your office ever experienced that
type of situation before? That is a situation where you or
your office is put under investigation despite you and your
office being innocent of criminal behavior?
A Yes, sir. Most definite.
41
Q Describe that for the record, sir, please.
A Well, it's hard to describe succinctly, but
basically - and I will have to apologize for how I'm going to
term it - based on a disgruntled employee and her relationship
with one of our clients that had been unknown to us, we spent
five years under investigation. Mr. Brown and his wife were
both indicted in federal court. There was a lengthy
three-month trial. You know, we lost literally millions in
business over a course of five years. We went from having the
largest federal practice in the western district by volume to
us just trying to keep the doors open. It created tremendous
conflicts. It created tremendous stress in people's personal
lives, employees' personal lives, families of the employees and
my people, Mr. Brown's family, his son, all over just - and,
again, I apologize - some bullshit that didn't exist. It
created prosecution and it was a horrible, devastating time for
everybody involved.
Q The result of that trial was an acquittal of
Mr. Brown.
A A very fast acquittal.
Q As well as a dismissal of the charges against
Mrs. Brown.
A Yes, sir.
Q As well as a settlement where Mr. Brown had sued the
federal government and had obtained a large amount from the
42
government for wrongful prosecution.
MR. VALDEZ: And, Your Honor, I'm going to go
ahead and object to this as relevant (sic). He's already
stated how it impacted their practice. What happened after
that is irrelevant.
THE COURT: I'll sustain at this point.
MR. MCCRUM: Judge, we would urge that this
relates specifically to the state of mind of Mr. Norton, that
despite his innocent outlook as to whether or not he had
committed a crime in this case with respect to Ms. Newcomb,
nevertheless, he would be significantly concerned by the what
now appears to be a false representation by Mr. Herberg to this
Court of an investigation.
MR. VALDEZ: Again, I'm going to object to the
characterization. Secondly, Your Honor, we're now getting into
a settlement that resulted from the charges. I think we're too
far afield and, again, I'll object to relevancy.
MR. MCCRUM: Settlement relates to the innocence
of the -- Mr. Norton and Mr. Brown in that investigation. It
enhances the fact that they were innocent, yet still suffered
significantly by a persecutive body wrongfully investigating
them.
THE COURT: All right. I'll overrule that one
question and then I'll ask defense that you just move on to
another topic as well.
43
Q (BY MR. MCCRUM) Was a large settlement obtained by
Mr. Brown in this lawsuit against the federal government?
A Not large enough.
Q Now, clearly, ultimately the -- as a result of the
verdict by the jury as well as the civil settlement that was
obtained, you and Mr. Brown and Mrs. Brown were innocent of any
of the accusations that that prosecutor had made against you.
A Yes, sir.
Q Nevertheless, did you and Mr. Brown suffer great
harm, as you've already described, just as a mere fact of the
investigation?
MR. VALDEZ: Your Honor, object. Asked and
answered.
THE COURT: I'll overrule that one. You may
answer.
A Yes, sir.
Q (BY MR. MCCRUM) How did that play in your mind when
Mr. Herberg is standing on the record in front of the cameras,
representing to the Court that there is an active
investigation, a criminal investigation, against you and
Mr. Brown?
A I never wanted myself or Mr. Brown or any of our
employees or any of our extended family to have to relive any
of those types of issues. We have a pretty big volume
business. It would create conflicts with not just Dr. Day, but
44
conflicts with hundreds of other cases over the course of who
knows how long. It would be -- it would just be a terrible
thing in our lives and we did not -- we didn't want any part of
that.
Q And as a result, sir, did that affect your strategy
and the remainder of the trial to the detriment of Dr. Day?
A Yes, sir.
MR. MCCRUM: Pass the witness.
CROSS-EXAMINATION
BY MR. VALDEZ:
Q Afternoon, Mr. Norton. You and I --
A Almost.
Q Oh, it's not quite. You and I have had no
substantive conversations about this matter, have we?
A About this hearing? No, sir.
Q Yes. You're aware of Rule 1.06 of the Texas Rules of
Professional Conduct, correct, sir?
A Not by memory. If you'd tell me what it is.
Q Okay. The conflict of interest, the general rule.
A I'm -- well, generally, yes. I mean, could I recite
the rule, no.
Q Yeah.
A But if you need me to, I'd be happy to read the
rule.
Q No. Just generally, you're aware that an attorney
45
should not advance an interest of his own over that of his
client?
A Yes, sir.
Q And there are mechanisms and procedures in place from
the rules and from case law that a lawyer should avail
himself -- avail himself of in those situations, correct?
A I'm not sure I know what you're asking, but I would
assume so, yes.
Q Okay. Well, you know one thing you can do is
certainly attain a waiver of the conflict from your client,
correct?
A Yes, sir.
Q And that is perfectly consistent in -- within the
ethical boundaries of an attorney.
A I would assume so, yes, sir.
Q And you said you did not have a conversation with
your client initially about the conflict?
A Yes, sir.
Q Potential conflict?
A That is correct.
Q Okay. But you did eventually have a conversation?
A Yes, sir.
Q What occurred during that conversation? What did you
tell Mr. Day?
A Basically we just laid out what the conflict was, how
46
it was created and what could result as a -- how that could
affect our conduct, if you will, our position.
Q And what -- and what was Mr. Day's response to
that?
A He wanted to address the Court. He wanted
conflict-free representation.
Q Did you then move to withdraw when he informed you he
wanted conflict-free representation?
A No. We did ask the Court to interview him with an
eye towards that occurring in the sense of he -- once the
client, Dr. Day, expressed his desire to the Court that he
wanted conflict-free representation and that we wanted out and
we were asking to get out as we had previously asked, that that
would occur, that he would be interviewed, and the trial at
that point would stop and new counsel would be appointed.
Q Now, when you say we wanted out, you're talking about
your request for mistrial.
A Yes, sir.
Q Did you -- did you actually tell the judge that you
intended to withdraw from the case?
A We told the judge that we -- and I could probably --
I can't give you the exact words, but I would believe in that
first -- when your boss, Mr. Herberg, was down here, we told
the judge and I think specifically Alan said -- Mr. Brown said,
I'm more worried about our own self-interest; we need to stop
47
this; we need to get out; he needs somebody else.
Q But you never moved on or you never took any further
action in attempting to withdraw from the case?
A Because we did not have the interview -- Dr. Day was
not -- no one talked to Dr. Day officially to say, What do you
want, Dr. Day, so he could tell them, I want conflict-free
representation.
Q But you and Mr. Brown had that conversation with him,
correct?
A Yes, sir.
Q And he told you he did not want -- he wanted
conflict -- he specifically told you he wanted conflict-free
representation, correct?
A He told -- he told us -- I don't know that he said
that exact words, but he told us he didn't want a lawyer with
our issues in this case.
Q Okay. And irrespective of what the Court did or
didn't do --
A Right.
Q -- you took no further action; Mr. Brown took no
further action to withdraw from the case?
A It was our belief that we needed to have Dr. Day
interviewed first or have his wishes put on the record and
brought forth. I don't know if we made a mistake in doing it
that way, but that was what we understood it to be.
48
Q Okay. And as you sit here now on the stand, you are
still an active attorney representing Mr. Day.
A He has a case involving Ms. Hathaway who testified in
punishment. We are still listed on that case as well. We have
yet to hear from the district attorney's office about whether
or not -- I heard the Court's finding, but no one from the DA's
office has ever told us there is no investigation or there was
no investigation or what the degree of that was. We are still
Dr. Day -- as we sit here, we are still Dr. Day's attorney on
Ms. Hathaway's case, and because of the need to assist
Mr. McCrum in this, we stayed on as attorney of record. We are
not going to present any evidence. We are not going to present
any witnesses. We are not going to -- this is Mr. McCrum's
hearing. We are here to assist him.
Q Okay. I believe during your direct testimony you
discussed several instances --
A That's more than four questions.
MR. VALDEZ: To be fair, that was a
representation I made to Mr. Norton, and like all attorneys, I
can never just ask direct questions.
(Laughter)
Q (BY MR. VALDEZ) Now, you talked about there was the
incident with you didn't call witnesses concerning the 911 call
or the key card.
A Yes, sir.
49
Q Under what legal theory did you believe that evidence
was going to be admissible at the trial?
A Her initial statement to 911 was, I felt like I have
been molested, or something to that effect. There was some
conflict. And, again, it's been awhile, but it -- there was a
conflict between how she later related the circumstances to her
initial calling. She didn't say she had been sexually
assaulted. She didn't say she had been -- anything about
penetration and so forth. She -- it was sort of an emotional,
I feel like maybe I've been assaulted or molested.
Q So the legal theory would be inconsistencies to
impeach the witness?
A Yes, sir.
Q Okay. What about this incident in Boerne you
testified about? What was your legal theory for its
admissibility?
A Again, impeachment credibility. She had -- that she
would manipulate situations. I think it was just relevant. I
believe we would -- I believe we would have gotten that in,
yeah.
Q Well, that -- is that fair to say your answer would
be to all of the instances? You thought you would be able to
get them in because they would go to --
A No. We would attempt to get all of them in. I can't
say that I -- as I sit here I know all these instances would
50
come in. For example, things about the illegal poker game and
the taking of money out of the country, upon her denial of it -
and I assume she would deny it - I don't know that we would
have had sufficient proof to put that in, but we were going to
attempt to put that in.
Q Now, you -- with regard to all of these instances,
when did you become aware, you know, for example, the Boerne
incident? Were you aware of it prior to trial?
A Yes, sir.
Q Same thing for her employment termination?
A Yes, sir.
Q Just to save time, were any of the incidents you just
testified to on direct matters you discovered after trial had
commenced or were these all matters you learned about prior to
trial?
A There -- I think there was an overlap involving her
ex-husband that had some idea of pretrial and some -- he was
interviewed by a private investigator right before the trial
started and then there was a follow-up, I think, while the
trial was still -- was going on. So he's probably an overlap
in both areas.
Q And the overlap there, would that have occurred
prior -- before or after the incident with Mr. Herberg?
A It was before. You know, excuse me. In fairness,
I -- I'm not sure. I believe it was before, but I'm really not
51
a hundred percent sure.
Q Okay. That's fair, sir. You testified you did not
prepare, which I believe is now Defense Exhibit 1 for the
purposes of this hearing, the mutual release; is that
correct?
A Yes, sir.
Q Who did prepare it, sir?
A I'm not a hundred percent because it was actually
more than one document that got bantered back and forth, but
there was somebody in Mr. Del Cueto's building and we had an
individual that we ran the concept by in our building named
Rick Sultucha, and I believe Rick is who -- I believe Rick
prepared that one as an example. It was never prepared per se
to be a final document, but in response to Ms. Newcomb's
request.
Q And --
A And --
Q Go ahead. I don't want to interrupt you.
A Ms. Newcomb didn't want a mutual release. She only
wanted a release initially where she was not going to get sued,
and when we asked Rick about that, he said, Well, that's kind
of silly, that you would want a two-way release. And that --
he just drew that up quickly as an idea to show whoever in the
other building what it was that he was discussing.
Q Does Rick -- he's an attorney?
52
A Yes, sir.
MR. VALDEZ: We'll pass the witness.
REDIRECT EXAMINATION
BY MR. MCCRUM:
Q Mr. Norton, this conversation with Mr. Day where the
topic of conflict of interest was discussed, do you recall
approximately when that happened?
A No. It all kind of -- it all kind of blurs together.
I think it was actually perhaps done in parts. I think it was
really more than one conversation. I think when we first
brought it up, I'm not so sure he understood what it was and
there was a follow-up conversation or two, but I couldn't tell
you exactly when. I know at least one of them -- the last one
that I can recall discussing was here in the courtroom and it
was after Alan was back, so it was probably -- probably the
morning that we approached the bench was the last time we had
that conversation.
Q You indicated that Dr. Day's response was basically
he wants conflict-free counsel.
A Right.
Q Mr. Valdez asked you whether or not you had moved to
withdraw. In your mind, when you move for mistrial --
A I thought the appropriate step was to ask for
mistrial, have -- conduct an inquiry upon the client's
non-waiver of the issue, that a mistrial should be granted and
53

the proceedings stopped and arrangements be made either for
Dr. Day to obtain his own counsel or to be interviewed for the
possibility of court appointed counsel.
Q In any event, if the motion for mistrial had been
granted, it was your intent to no longer represent Mr. Day in
his case?
MR. VALDEZ: Objection, leading, Your Honor.
THE COURT: I'll sustain.
Q (BY MR. MCCRUM) What was your intent with respect to
whether or not you were going to represent Dr. Day in his case
if the motion for mistrial had been granted?
A We were not going to represent Dr. Day. We felt that
we were, at that point, suspects and shouldn't -- should
properly not be attorneys at that point.
MR. MCCRUM: May I approach, Judge?
THE COURT: Yes.
Q (BY MR. MCCRUM) I'm going to show you a document
that's been marked Defense Exhibit 3 for purposes of this
hearing. Can you identify that document, sir?
A Yes. It looks like from a witness -- it's the
subpoena -- it's the list from the clerk's office of subpoenas
that were issued and I assume in this cause number because it's
defendant Day, Calvin Lee, and I think it's -- the 3682 is this
case.
Q All right, sir. And let me show you what's also been
54
marked as Exhibit D, which I can represent to the Court for
clarification is the Exhibit D to the amended motion for new
trial, the affidavit of Mr. Norton.
A Yes, sir.
MR. MCCRUM: All right. I move for the
admission of both those documents, Judge.
MR. VALDEZ: Your Honor, again, Defendant's
Exhibit 3 is hearsay. The affidavit Mr. Norton swore to or
whatever, affirmed, I don't remember -- I don't recall specific
language in there. It is certainly permissible under the rules
if the Court wants to accept the affidavits. However, we have
Mr. Norton here. He's providing live testimony. I don't see
why the affidavit is necessary.
THE COURT: The affidavit's already been
attached to the motion for the new trial. The Court has
reviewed it. The Court will admit it. In regards to Defense
Exhibit Number 3 -- now, the Court admitted Defense Exhibit D.
Defense Exhibit Number 3, counsel, how do you respond to the
hearsay?
MR. MCCRUM: It's a public record, Judge. It's
a copy of a public record of a subpoena list.
MR. VALDEZ: It's not under seal, Your Honor.
If the Court wants to judicially note what's in the clerk's
record...
THE COURT: Yes.
55
MR. VALDEZ: And if this appears in the clerk's
record, the State's fine with that.
THE COURT: All right. I'll admit it.
Q (BY MR. MCCRUM) With respect to the affidavit that
was submitted in support of the amended motion for new trial,
your affidavit, Mr. Norton, were all the facts in that
affidavit true?
A Yes, sir.
Q And when you signed it, sir, did you sign it under
oath that all of the facts were true?
A Yes, sir.
Q With respect to Defendant's Exhibit 3, the subpoena
list, sir, for the purposes of the record, based on your
knowledge of how these lists are set forth, there's a column
that says either the initial S or the initial D. Do you see
that on the exhibit?
A Yes, sir.
Q And do you know what those letters refer to?
A State and Defense.
Q Pardon me?
A State and Defense.
Q And what is it intended or at least your
understanding of what is intended by those designations?
A It's intended to show who requested the issuance of
that particular subpoena.
56
Q All right. In -- this particular list indicates --
and it's dated June 3rd of 2013. It indicates, just on glance,
well over 25 subpoenas were issued by the defense for the
appearance of certain witnesses.
A Yes, sir.
Q The -- and I'm not asking you to recall specific
names, but the witnesses that you referred to earlier that you
chose not to call, were some of those witnesses under subpoena
and named in this list?
A Yes, sir. I can tell you a couple of them.
Q All right, sir.
A And I'm not -- I believe Jerry Potter was the
investigator that did the surveillance. I believe Ingrid
Keiser related to one of those, either the Fair Oaks or the
Trinity Towers. I don't remember. But she -- her relationship
would be on one of those prior instances of either Fair Oaks or
Trinity Towers. I don't really remember, but I think James
Newcomb is the ex-husband that we referred to. Van Winkle
stands out in my mind for some reason. I don't recall what he
relates to. No, no. I apologize. I believe he's a doctor
that we didn't use. Officer Justice is on there. And I think
those are the only ones that I can -- without having the file
in front of -- those are the only ones that I can recall.
Q A document was also filed in this case on May 24th of
2013, a defense list of expert witnesses. Do you recall that
57
pleading being filed?
A Yes.
Q And were there certain experts that you and Mr. Brown
had planned to call as a witness in the Day trial?
A Yes, sir.
Q And we know now from reading the record that experts
were not called by the defense.
A Yes, sir.
Q Does that relate in any way to the accusation by Mr.
Herberg that you've committed a crime and that you were under
investigation?
A That might be Van Winkle. I believe Van Winkle is a
doctor here in town that the purpose of calling him was related
to Dr. Day's erectile dysfunction and that even if someone is
taking Cialis or Viagra, that under the circumstances as
related by Ms. Newcomb, that person should not have an erection
because it would -- there would be a need for manual
manipulation under his circumstances, and so then it would go
towards Ms. Newcomb's credibility, if you will.
Q And so did the decision to not call that particular
expert, was that motivated at least in part by --
A Yes, sir, it was.
Q -- you being under investigation?
A Yes, sir.
Q There were also records that were obtained through
58
the course of your preparation for this case, that is, certain
phone records. Do you recall those, sir?
A Yes, sir.
Q Would those be phone records of the complainant,
Ms. Newcomb?
A Yes, sir. And I believe phone records of Dr. Day as
well.
Q And what was you and Mr. Brown's intent prior to the
commencement of this trial with respect to using those phone
records as part of your defense strategy?
A Well, we thought that -- it's a multi-part answer, I
guess. As it relates to Dr. Day, that he -- no immediate call
back to Ms. Newcomb. Turns out the State had some of those
records that we wanted, a kind of bigger part.
As it relates to Ms. Newcomb, for example, she
had a lot of telephonic communications. She had a lot of
things that -- people that she called before, during, after,
after the call to the police. For example, she called a couple
different civil lawyers, and we thought some of that was
very -- was relevant to not only her credibility, but Dr. Day
had found an individual that we had talked with that believed
that he could make some inferences about her state of mind as
an expert based on her -- the multiple of her phone
conversations and text messages and telephonic contacts, things
of that nature.
59
Q Now, we see now on the record that Mrs. Newcomb --
Ms. Newcomb was not cross-examined about these records nor did
you or Mr. Brown try to introduce evidence through another
witness about these phone records. What was the reason for not
going into these matters?
A Well, let me change it a little bit. We did go into
a limited version of some of these. We did not do it as widely
as we -- as we had thought about and talked about doing. And
it would be, again, because we were -- because of the Cliff
Herberg and the allegation. There was one call that I do
recall us going into a little bit some, but it was -- it was
like calling USAA or something that was real unusual that if
you had been sexually assaulted, why would you do that. But we
didn't go into like the, you know, the different civil lawyers
and, you know, people she was having potentially a relationship
with and things of that nature.
Q Why not?
A The conflict.
Q For concern to not anger her?
A Yes, sir.
Q Your self-interest as opposed to Dr. Day's?
A Yes, sir.
MR. MCCRUM: Pass the witness.
MR. VALDEZ: No questions.
THE COURT: All right.
60
MR. MCCRUM: May I proceed, Judge, with the next
witness?
THE COURT: Yes.
MR. MCCRUM: Call Alan Brown to the stand.
(The witness was sworn)
THE COURT: Introduce yourself to the court
reporter, please.
THE WITNESS: My name is Alan Brown.
THE COURT: All right. Defense?
ALAN BROWN,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. MCCRUM:
Q Mr. Brown, just so the record is clear, you are one
of the attorneys representing Calvin Day in this case?
A Yes, sir.
Q And how long have you been practicing law, sir?
A Since 1969, March. Probably about 44 years.
Q All right, sir. Focusing first on the trial of Dr.
Day, you recall the morning in which Mr. Herberg came into the
courtroom and announced that his office was conducting an
investigation of you, Mr. Norton, and Mr. Del Cueto?
A Yes, sir.
Q And what did you think when that happened?
A It scared me really bad. It made me scared and angry
61
both.
Q What were you scared of?
A Being investigated and getting in trouble. I mean,
we hadn't done anything, but that -- I've been around the
system a long time and I believe that innocent -- you can get
indicted just because the district attorney wants to indict
you. There's an old saying you can indict a ham sandwich, but,
I mean, I thought that Mr. Herberg could do that and so could
the rest of the people with their office.
So I assumed -- and then one time, you know, as
we've heard from Mr. Norton, I was investigated for a really
long time and tried a case. And like the civil portion of it,
there's different burdens of proof, and before they -- like at
that time, Robert Ibarra, the editor said, You know, I just
thought Alan kind of got out of the case until I saw the
government pay him money. Then I knew he was really innocent
because, you know, they get to deposition you, so it's not just
easy to get them to give you over a million dollars. I mean,
they don't want to admit they're wrong no matter what, the
government, and the State to a great extent. I see them as the
same. They're the powers, the people of power.
Q So even though you may be innocent of criminal
wrongdoing, just the existence of an investigation has caused
you harm and could cause you harm again?
A It -- first of all, I've had a lot of other
62
investigations, and so I've been investigated numerous times
and it's always caused me great harm. I would -- there was one
time, Hipo Garcia said he was like allergic to heat, like I do
not want an investigation of myself for anything, okay?
Then the one time that they went all the way to
indict me, but I've had other investigations and they're no fun
at all. And you know how many clients we have. You have to
start warning your clients. You don't want to take any new
cases. I mean, it's just really, really a big mess.
Q On -- the record reflects that on June 11th after Mr.
Herberg made his statements, your quote is: "I promise you, we
care more about our own selves than getting in trouble for our
client, okay? And so we want a mistrial and they caused it by
doing that to us right now." What did you mean by that? What
were you thinking?
A Well, I was trying to tell the judge and tell the DA
and I was actually trying to tell Dr. Day because Dr. Day's
pretty smart and I'm sorry he didn't get it, but, I mean, I was
trying to warn him. I said it out, very loud.
Q Why would you want a mistrial?
A Well, I thought we needed to get to the bottom of the
investigation. Actually, I've been kicked off of cases because
I was a target, and I've never even had the district attorney's
office or the U.S. attorney's office wanting me to stay on a
case after they targeted me, so that baffled me some.
63
And I know Cliff Herberg and -- I don't know. I
mean, I know just my rules generally, but I wouldn't think he
would just walk in here and say a lie like that. That just
shocks me that he would do that, that anyone clothed in that
much power would stroll in here and make it up.
Q You heard the Court's findings this morning that
there was no investigation of you. Did you know that?
A No. I didn't know it till this morning. I just -- I
was kind of in that little room back there, and I was a little
bit late coming in and somebody told me.
Q So --
A That's the first time that I -- that I had thought
there wasn't or knew there wasn't. I guess -- you know, I
really call words close, like thinking, knowing, believing,
things like that. I mean, when Herberg said it, I believe what
he said.
Q And when you indicate we care more about our own
selves than getting in trouble for our client, what did you
mean by that?
A That we weren't going to represent him correctly.
That we were going to, you know, lose the case.
Q Since --
A I'm a conceptual person. I'm a little different
person than Mr. Norton. I mean, he was very articulate up
here. I mean, what happened to me, it took my intensity out of
64
everything.
Q In what way?
A Well, I didn't want to anger the witness. I didn't
want to anger the DA. I really -- we won a -- I think we won a
whole lot of sexual assault cases, a whole bunch in a row.
Especially ones with he said, she said, very similar to
Dr. Day's. I thought this case shouldn't even have been
indicted. I thought Dr. Day and still think he's innocent and
so I thought that, you know, they'd done it to him. He was
innocent. But, I mean, look, we won literally hundreds of not
guilties, so hundreds of times they indict people that are not
guilty or we wouldn't have those verdicts because obviously the
juries found them not guilty. So, I mean, that's -- that's
what I thought.
Q But when you say that you lost interest, I forget the
words that you --
A Well, my interest became higher to -- I mean, I
leaned over and I started kibitzing Jay and I told Jay --
Q Are you talking about during the trial?
A Yes.
Q Okay. Go ahead.
A I told him, Whatever you do, don't get the witness
mad. I don't want -- I wasn't sure what had happened. I mean,
I didn't think Jay or Andrew would do anything wrong. I
believe in both of them. I didn't know what had happened and
65
why Herberg would say such a crazy thing. I know that when
people had told me that before, I've gone through a lot of
trouble.
Q And so when you leaned over and told Mr. Norton,
Don't get the witness mad, which witness are you referring to?
A Laura Newcomb.
Q And did you tell him this while he was
cross-examining her?
A Yes, I did. And especially -- it got aggravated
because I turned around and there was other aggravating
factors. Andrew Del Cueto was gone, and so my opinion still is
the district attorney's office tricked him or lied to him. He
shouldn't have left. I'm a little bit upset at Andrew over
that. And so Jay Norton told me, Go find Andrew. And I went
out to find Andrew and he sounded real panicked on the phone.
And I know -- you know, like I said, I know Jay wouldn't do
something wrong or wouldn't want him talking to me with the
prosecutor. I didn't know what had happened, but I thought
that they -- they for real were investigating us. Maybe just
because they were so -- I mean, already this little incident
with Judge Reed and us going up and seeing Herberg and we tried
to talk to him -- one time Herberg told me in another case, on
Tony Reyes's case --
MR. BRANDON: I'm going to object to the
relevance of something that happened in another case. I'm also
66
going to object his answer has grown nonresponsive.
THE WITNESS: It's relevant.
THE COURT: Let's get the next question.
Q (BY MR. MCCRUM) Mr. Brown, I want to be clear as to
how do you think it would affect your trial strategy and what
has happened to you in the past that would affect how you think
about this, this being that you're being placed under
investigation.
A Well, just a huge thing. I thought if we lost, they
would quit.
Q You thought if --
A We lost the case --
Q That they would --
A Quit the investigation.
Q -- quit investigating?
A Yes.
Q So when you make a statement to Mr. Norton to not
make Ms. Newcomb mad on a case that is basically a he said, she
said situation --
A Well, you have to add that I knew she was a liar when
I heard her testify because I was sitting in the office when
she said that she was afraid of the DA's office and that's the
reason she got a lawyer, okay? And she even described it
exactly. So I knew she's capable of lying the second she said
"Day's people" because that was lie. And never do I remember a
67
witness talking to me under those circumstances and me not
using it in cross-examining the witness, but I didn't even want
to go into that situation because I didn't even want to be
placed in that room with the witness or Andrew or anything,
okay? I wanted to stay as far away from it as I could.
Q So let me break that down in pieces if we can.
A Okay.
Q So we can make sure we have accurately what you're
testifying about. Initially there was some point where you
heard Ms. Newcomb say that she felt threatened.
A Yes.
Q And did that happen in trial or prior to trial?
A First time she said it, I heard her -- that's the
reason she got a lawyer and then there in Andrew's office she
was scared of the district attorney's office. And then I never
had a witness -- I even -- the only thing I said to her -- I
didn't say much in this whole meeting -- Well, this is
ridiculous, why would you want a release? And she said, Well,
I know your client and I think he'll sue me. And I said, He's
not going to sue you, he can't get anywhere. You can -- just
believe it, that's ridiculous.
And then she wanted the release and I knew that
was going to be -- you know, I knew that that was silly and I
wanted just to leave the office. We couldn't talk to her about
facts. Factually about the only fact was that she was scared
68
of the district attorney's office and she wanted a release
because she had made untruthful statements. That's what I
understood her to say.
Q And these --
A And then here in court she said something --
Q Well, before we get to court, these conversations
that you're describing about the release and about being --
feeling threatened by the district attorney, these comments
were made during a meeting that you attended?
A Yes.
Q A meeting with you and Mr. Norton, Mr. Del Cueto, and
Ms. Newcomb?
A Yes.
Q Prior to trial?
A Yes, sir.
Q All right, sir. Then once she gets in trial and you
hear her testimony -- and I think you referred to it as
threatened by Day's people.
A First she said she was threatened. When she said
that, I thought, Okay, she's going to say Kirsta did it. I
wasn't sure -- I mean, I've -- once they have like a no trial
policy in these kind of cases when the -- when we have a
case -- I mean, I think I'm an expert in the whole area of
criminal law, okay, that they -- a wife wants to drop a case.
The district attorney's office gets them. They don't want them
69
to. They try to force the case. So what I thought is, the
case has a lot of publicity. Newcomb knew it wasn't true and
she was trying to dismiss the case and they were threatening
her by telling her, If you dismiss the case we're going to get
you and indict you for lying; it's either going to be you or
him. They were making it like that. They were forcing her to
lie. That's what I understood, okay? And that's the reason
she got away.
Q All right. So --
A And then in court she turned it around to Day's
people.
Q So in court you felt that her testimony was
inconsistent with what she had said in the meeting?
A That's a very -- you know, I kind of use hyperbole.
Inconsistent would be fine, but I thought it was a lie.
Anyways...
Q All right. And so once you recognized that she lied
under oath in court, how did that -- how did that affect your
judgment in terms of Mr. Herberg's investigation of you for
witness tampering?
A Well, I thought he had a willing person, a liar that
he could get to say whatever he wanted and that she would say
that we did something to her.
Q And how did that affect your representation of
Mr. Day for the balance of the trial?
70

A I mean, it affected the whole trial, the whole
balance. It affected me from that minute on. I never did -- I
never had my heart in the trial. A little bit I got back in
the trial in punishment, but I really didn't even -- you know,
I just wanted out of here, okay?
I tried to ask for a mistrial. I've never even
had a district attorney do what they did or a U.S. attorney.
Whenever they thought that I witness tampered, they always
wanted to kick me off the case. And they always wanted to warn
a client their own self with the judge because they don't want
convictions to go up and get reversed, so they have an interest
in justice. I couldn't even imagine that they weren't doing
it. It was shocking to me that no one was warning Day. It
shocked me that the trial kept going. It shocked me that the
district attorney wanted the trial to keep on going.
Q The transcript reflects that on June 24th you
indicated that all kinds of things were done differently in the
trial.
A Uh-huh.
Q Do you recall making that statement?
A Yes.
Q All right. What did you mean by that, sir?
A I mean, it's so many, I couldn't even name them to
you. Like we didn't cross-examine her like we always do
people, saying, Don't you remember when you were talking to us
71
and didn't you tell us this then and now you're saying this? I
mean, we should have pitted ourselves against her. We should
have reminded her what she told us and called her on a lie
right on the spot. That one thing alone is huge. That's huge,
okay?
Q Why is that huge, sir?
A Well, there's three of us sitting there. Jay Norton,
Andrew Del Cueto, and me. I mean, they're -- if someone would
think that the three of us would say something and she'd say
something different, I mean, that's insane. Yeah, yeah,
that -- I mean, I couldn't believe she told that lie. I was
shocked and that's when Jay turned to me and he said, Go get
Andrew. That's the first time we noticed Andrew wasn't here.
We thought Andrew was sitting out there. And when she said
that lie, then that's when Jay looked around, Where is Andrew?
And we realized that they didn't --
MR. BRANDON: Your Honor, I'm going to object to
the nonresponsive. We're going into narrative.
MR. MCCRUM: It's very responsive, Judge.
THE COURT: All right. Let's hear the next
question and then you can proceed.
Q (BY MR. MCCRUM) Why did Mr. Del Cueto's absence have
an affect on your strategy and how you were representing
Dr. Day?
A Well, one of them said that Del Cueto is a witness,
72
so I didn't know what the deal was. He and a witness were both
helping the DA put away -- well, how did -- I mean, it just
mixed me all up. I couldn't believe he wasn't here. He would
have known she was lying. He should have known. He should
have known it afterwards. Andrew has to know that Day's people
is not what she said in that office, okay? So Andrew has to
know she's a liar.
Q When you said one of them indicated that Mr. Del
Cueto was a witness, there's a reference in the transcript
where the prosecutor indicated that Del Cueto may be a witness.
MR. BRANDON: Objection to leading. This is
just defense counsel testifying.
MR. MCCRUM: I haven't even asked the question.
I'm referring him to --
MR. BRANDON: Exactly. You're just giving him
information.
THE COURT: All right. Let me hear the
question.
Q (BY MR. MCCRUM) The record reflects that there was an
indication by one of the prosecutors that Del Cueto may be a
witness.
A Uh-huh.
Q Do you recall that being --
A Yes, I recall that.
Q And you've just mentioned that you didn't know what
73
to think that that --
A I didn't know if Andrew and her were both lying about
it because everyone was. I knew we hadn't done anything wrong,
okay? I knew we had not witness tampered. I knew that. But
many a times I've been accused. Not just the one time that I
got indicted. The other times I've been falsely accused,
everything from Judge Woods' case to all kinds of stuff. And
so I knew governments and DA's offices falsely accuse people
and they can even take it really far and indict innocent
people, okay? And so I was worried. I started -- I could
not -- and, also, I knew Herberg and I could not believe he
walked in this courtroom and said something like that, okay, if
it wasn't true. Because to me, that's a huge -- if he is an
officer of the court, walked in here and told --
MR. BRANDON: Objection to narrative, Your
Honor.
THE COURT: All right. Let's get the next
question.
Q (BY MR. MCCRUM) What affect did the fact of Mr.
Herberg's position in the district attorney's office, that
being the first assistant district attorney, how did that
impact your thinking, sir?
A I mean, it did it a whole bunch of ways. First of
all, I know Mr. Herberg. I've talked to him before. I didn't
know the part of Mr. Herberg I saw that day. He had tried
74
to -- he had conned me. He had -- he had acted nicely. He
told me one time, he said, You not only tell the truth, you
tell the honest truth. So he's not a, like -- and one time on
the other Reyes case, he told me, Anytime there's a problem,
just come up and tell me.
MR. BRANDON: Your Honor, I object to
relevance when we're talking about other --
A Well, you're asking me.
MR. BRANDON: -- and it's nonresponsive to the
question.
MR. MCCRUM: Judge, he is responding to the
question. It's his perception of Mr. Herberg.
THE COURT: All right. All right. I'm going to
overrule and I'm going to let you continue.
MR. BRANDON: What is the relevance to that?
MR. MCCRUM: I believe the Court has ruled.
THE COURT: Yeah. Go ahead.
A Mr. Herberg told me on a -- he told me on the --
anytime there's problems, a lot of my prosecutors don't know
what they're doing and they've created this, and if you just
come and talk to me, we could have straightened this out. So I
thought when myself and Mr. Norton went to see him, even with
the affidavit, I didn't even think that the case should be
prosecuted just by that office because really my -- the -- he
had been -- Susan Reed and her husband had both been his
75
patients on very serious things, on melanomas and things. So I
couldn't even believe that she was prosecuting someone that she
had had a client -- I mean, a patient-doctor relationship with.
That surprised me. I mean, all I know is, you know, she
usually for -- to me, a lot less, had expunged cases out to
other people, so --
MR. BRANDON: Your Honor, I object to
nonresponsive. This is not at all responsive.
A Well, you asked me what I thought. All that went
through my head.
THE COURT: All right. Let's get the next
question.
A Okay.
Q (BY MR. MCCRUM) What about Mr. Brandon's presence in
this situation? Mr. Brandon, it's the same person who keeps
objecting here.
A Okay.
Q Was he involved in this situation, sir?
A Yes, he was. Yes, he was.
Q All right. How did that impact you, sir? What was
your thoughts with respect to his own personal involvement?
A Well, I knew -- I didn't know a lot about
Mr. Brandon. I respected him because he was a writer of
novels, so I knew he had some artistic ability to write and I
knew he worked in the DA's office. I never met him a lot, but
76
when he came down here and said -- he carried the message.
When I made the next motion, the one when I came back from Del
Rio, they sent him to carry water down here. He comes in and
says, Well, Mr. Brown's going to be -- they don't have to
worry; if they testify, it will be in another trial.
And so if you extrapolate the common sense of
that, it means in our own trial. And so he carried on a lie of
Mr. Herberg. As a matter of fact, I consider him a liar, too.
I consider him -- I don't have any opinion of Judge Reed.
She's been very nice. She has not said one word about me,
Mr. Norton or anybody, but -- but --
MR. BRANDON: Your Honor, this may seem
self-serving, but I'm going to object that this is
nonresponsive.
MR. MCCRUM: Judge, it is responsive to his
state of mind at the concern that he felt for his own selfinterest.
THE COURT: All right. So let's get that
question.
A I felt very concerned for my self interest and
Mr. Brandon caused it, some of it. He participated in it by
coming down here with that bunch of bull. He came down here
and made me believe the investigation was real --
MR. BRANDON: Objection, the question was the
effect it had on his state of mind. This is nonresponsive.
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A He further scared me, okay? He further caused me to
worry. He further caused me trouble. He further caused me --
he carried the theme forward that Mr. Herberg had started. He
did, okay? And I think Catherine Babbitt did it, too. Those
are the three that I think did it.
Q (BY MR. MCCRUM) And how did -- how did Mr. Brandon's
own statements affect your trial strategy from that point
forward?
A Well, I mean, I thought what he said down here made
me think there was an investigation. You know, and it made
me -- and everything I did, once I thought that, it was like --
they asked Mr. Norton a minute ago about putting Day on the
stand. I was going to put Day on the stand. I had practiced
with him for two years. Once they came in with that story
about us being -- being targeted for witness tamp -- we didn't
even lay the predicate to put him on.
When I'm going to put someone on the stand, I
set it up through all the witnesses on the case. It's even
worse than what Mr. Norton was saying. I mean, once that
happened, I knew then I'm not going to put Day on the trial. I
just want out of this thing as fast as I can get out of here
because I don't want no part of being a target in a case. And
I absolutely believed that we were targets.
Q So once you were notified that you were under
investigation on June 11th, did you not go forward in --
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with -- as you refer to, setting up the testimony of Mr. Day;
is -- is that right?
A That's right. I didn't --
Q And -- and to be more clear, sir, what is setting up
for the testimony of Mr. Day? What does that entail? Does
that entail asking witnesses certain questions that will lay a
groundwork for Mr. Day's testimony?
A That's correct.
Q You did not ask certain questions that should have
been asked?
A Lots of them. Like, first of all, we didn't break
down Laura Newcomb correctly because she should have been dealt
with very harshly and very personally for lying. And me and
Jay should have spoke up and said we knew she was a liar and we
should have talked about it to get her -- to get her down in
front of the jury. It -- she still looked good. To him it
made it look like, you know, it's just him against her. Had
she been cross-examined properly and we done everything right,
it would have been a lot easier to put Day on. We didn't --
there wasn't -- like we didn't lay the proper predicate because
of how we did all the other things. Everything started falling
in on top of us, so from the -- from the moment Herberg did
that, okay?
Q Did you not call certain witnesses that would also
help in laying the predicate for Mr. Day's testimony?
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A That's correct.
Q Do you recall any in particular?
A I'm a concept person. I don't have names.
Mr. Norton was better at names for you. There was a girl that
works now at the Hyatt Regency. Mr. Day -- I had about four or
five witnesses I interviewed that I didn't call.
Q Do you --
A We had about 30 witnesses down here in my office. I
had a whole bunch of them. I didn't call like any of mine.
Q Do you recall one of those witnesses being an
employee at Dr. Day's office that would have direct knowledge
of his meetings with Ms. Newcomb?
A Yes, I do recall that.
Q Do you recall whether or not that witness would have
been part of the predicate that you were laying for Dr. Day's
testimony?
A Yes. That would have been -- I mean, we would
have -- we would have tried it completely different. If we
had -- if we had tried the case correctly without the threats
and without them getting us in the fear of the investigation,
then we could have done it the way we wanted to do it, okay?
It could have moved along swiftly. Laura Newcomb would have
probably been on the stand one day. It would have gone faster.
We wouldn't have to wander around in circles and all the stuff
we did.
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Q By not -- in the decision to not call those witnesses
that would have laid that predicate, sir, was that because you
were now under investigation?
A Yes.
Q Was that the reason?
A That was the reason for lots of things I did after
that.
Q All right.
A I mean, I can't even -- they're so mixed up. All I
know is that once they said that, it was like a boxing match
where I was just going to carry someone and knock -- and I've
done that, playing at the gym with people and not try to fight
back and just let them survive and let them kind of, you know,
play like we're trying the case and just mess around. It's
like we didn't try to really try the case right. We did not
try the case right after that happened.
Q Did you and Mr. Norton discuss the fact that you were
now under investigation?
A Yes, I brought it up to him.
Q Did -- I know it came up on June 11th and the trial
went for some time after that.
A Uh-huh.
Q Did y'all discuss it again after June 11th? Did
y'all discuss it --
A We discussed it numerous times. I mean, I've
81
discussed it up until today. You know, I mean, I've discussed
it lots of times. I mean --
Q That's what I'm trying --
A -- being under investigation is a very serious
thing.
Q What I'm trying to get at -- and you tell me whether
or not or to what extent it occupied your mind on a daily basis
during the trial.
A Way too much.
Q Way too much in terms of what?
A Defending Dr. Day correctly. Okay, it got in the
way. It distracted me. It got my -- if what Herberg was doing
was playing some strategy to get my eye off the ball, then I'm
ashamed to say it worked, okay?
Q At the end of the trial, towards the end of the trial
there was a request again made as to whether or not you and
Mr. Norton were under investigation.
A Uh-huh.
Q Do you recall that?
A Yes.
Q Why did y'all again bring that up in your mind at
that point?
A Well, I wanted to see for sure, you know. I wanted
to know. I mean, everyone wants to know if they're under
investigation and also for the record, too. I wanted it in the
82
record because I could not believe that this trial was going.
I couldn't believe. And they can move to anyone else they
want. I couldn't believe the district attorney's office was
trying a case in which they thought that I had tampered with a
witness or that Jay Norton had or that anybody had. To me,
stop the trial, stop everything, get it straightened out. I
could not believe. They're supposed to be in the interest of
justice. It just shocks me that they do that. I've never
seen -- I don't think I've seen a U.S. attorney or a DA's
office do that before.
MR. BRANDON: Your Honor, I'm going to object to
the repetition. We've heard this already. It's also
nonresponsive.
THE COURT: All right. Next question.
Q (BY MR. MCCRUM) Mr. Brown, do you believe that
Mr. Day was adequately apprised of the problems inherent with
his attorneys being under investigation?
A No. Even after the trial was over -- and I've
explained to him what happened. I think he kind of likes us
and he didn't even want to believe it and I think he wasn't.
Q He wasn't adequately informed of the effect that this
investigation on his lawyers could have on his trial?
A I didn't think he didn't understand it. I know he
wasn't told. He for sure didn't understand it. He didn't
understand what was happening. He didn't get it. It's hard
83
for someone to understand that's not around the system. That's
what I think. Dr. Day is a doctor. He's very intelligent. He
went to, I think, Harvard, different schools, but understanding
how this game works down here, the system works to outsiders, I
mean, he didn't know that it was different than --
MR. BRANDON: Your Honor, objection to
speculation.
THE COURT: All right. Let's get the next
question.
MR. MCCRUM: I pass the witness.
CROSS-EXAMINATION
BY MR. BRANDON:
Q Mr. Brown, are you familiar with your obligations
under the Texas Rules of Professional Conduct?
A I mean, I've read them and try to do the best I can
to follow them.
Q You said that you've had to withdraw from many cases
because of this sort of conflict of interest, correct?
A Uh-huh. I fought with you on one going all the way
to the Fifth Circuit and the case -- and they -- wait --
MR. BRANDON: Objection, nonresponsive.
A It's not nonresponsive.
Q (BY MR. BRANDON) Have you -- yes, it is, and you're
not the one who rules on objections.
A Okay.
84
THE COURT: Let me overrule and let me hear the
question.
A What's the question again?
Q (BY MR. BRANDON) You said that you have withdrawn
from several cases because you had conflict such as this; is
that correct?
A I'm not sure about that. I've been kicked off the
cases. Every time the judge kicked me off of the ones I
remember right now, okay? I did not -- I did not go and
withdraw, okay? I got kicked off by the district attorney.
District attorney usually filed a motion to get me off or the
U.S. attorney. And then the judge ended up granting the motion
sometimes -- I think almost every time the judge granted the
motion when the DA filed it.
Q So you were disqualified from representing?
A That's right. That's right. And that gave me one
hint y'all's might not be real, that y'all were lying, okay.
MR. BRANDON: Objection, Your Honor,
nonresponsive. I haven't asked that question.
THE COURT: All right. Let's get the next
one.
Q (BY MR. BRANDON) So you should be familiar with the
rules about what you're supposed to do as a lawyer when you
determine that you have a potential conflict of interest with a
client, correct?
85
A Look, I didn't have any idea I had a conflict till we
were in the -- into the trial, pretty far into it, and that's
when Herberg walked in here. I believe whatever it shows
you --
MR. BRANDON: Objection, nonresponsive.
THE COURT: All right. Let's get an answer to
the question.
A Okay. I shouted out exactly what went -- right to
the Judge, to Dr. Day. Everyone could hear me.
MR. BRANDON: Objection, nonresponsive.
Q (BY MR. BRANDON) The question is, are you aware of
your responsibilities if you think that you have a potential
conflict of interest with your client?
A It wasn't potential. It was real, okay? I -- this
was not a potential conflict. This was a real conflict.
MR. BRANDON: Objection. Your Honor, he's never
asking the -- answering my question.
THE COURT: All right.
Q (BY MR. BRANDON) My question is --
A Well, your question has nothing to do with this
case.
Q My question is, are you aware of what you're supposed
to do ethically as a lawyer when you believe you have a
conflict or a potential conflict with a client?
A I don't know the answer to your question. I know
86
that I don't take a case if I should -- if I had a conflict. I
didn't have any idea I had a conflict with Dr. Day until
Herberg walked in here and did that, okay? And a conflict --
Q Now that --
A -- wasn't even real then.
MR. BRANDON: Objection to nonresponsive.
THE COURT: All right. Let's ask the question
and let's see if you can respond to his question.
A I'll listen.
Q (BY MR. BRANDON) I've asked it about four times. Are
you aware of your professional responsibilities as a lawyer of
what you are supposed to do if you believe you have a conflict
with a client -- with a client, even if that conflict of
interest arises during trial? Are you aware of your
professional responsibilities
A Only -- tell me what they are. Maybe I'm not. Tell
me. You tell me. I thought I did the right thing. I told --
I told the judge. I said it out loud. I said it where y'all
could hear it. I said it where the client could hear it. I
did everything I was supposed to do.
MR. BRANDON: Objection, nonresponsive now for
the fifth, sixth, eighth time.
MR. MCCRUM: Objection, Judge. Excuse me,
Mr. Brandon. Judge, he's answering the question. This witness
is -- this lawyer is being abusive to the witness. He's
87
answered it four times that he's not clear what the rule -- may
I finish, sir? That he's answered it four times that he's not
sure what the rule is, but this is what his thinking is as to
what his obligation was and how he fulfilled it. And that's a
direct response to the question posed six times now by the
prosecutor.
MR. BRANDON: Thank you. That's Mr. McCrum's
answer to the question.
THE WITNESS: That's my answer, too, Your
Honor.
THE COURT: All right. Let's get the next
question.
Q (BY MR. BRANDON) Okay. So you don't know what your
professional responsibility is.
A I thought I did what you were supposed to do. I did
the best I could.
Q Okay.
A Okay? To make the -- I did better than y'all did. I
didn't lie to people and con people, okay?
MR. BRANDON: Objection, nonresponsive.
THE COURT: All right. Let's get the question.
Q (BY MR. BRANDON) I'm referring specifically to Rule
1.06, which is about conflict of interest with a client. Have
you ever before withdrawn from a case because you thought you
had a conflict with a client?
88
A Yes, I have.
Q On the day that this happened when you and Mr. Norton
asked for mistrials, you never used the phrase "conflict of
interest" to the Court, did you?
A I mean, whatever the record shows. I think -- I said
there's -- I mean, I don't know what words I used. I said I
care more about ourselves, I want off. I think I said it was a
conflict. I shouted out whatever I thought to be true.
Q We'll let the record reflect --
A Okay. You're right. Whatever the record said.
Q Okay. You said in your affidavit that you didn't
call Dr. Day or 15 other witnesses you prepared because you had
to go to Del Rio. You gave a different reason in your
affidavit for not calling --
A They're really the same reason.
Q Which of those is accurate?
A You slowed -- the trial had plenty of time to try
this case correctly, but you put us wandering around with your
conflict deal and that caused it to back up into the other
trial. Jay has to spend five days doing what it should have
taken one day to do.
MR. BRANDON: Objection, Your Honor,
nonresponsive.
THE COURT: All right. Let's get the next
question.
89
A I went to Del Rio.
Q (BY MR. BRANDON) Which is accurate? Your affidavit
or your testimony here today for why you didn't call the
defendant as a witness?
A See, they can both be accurate. Do you understand
that? Because of the -- what y'all did in creating this
conflict, you messed up the trial, and that's what caused me
to -- that caused it and got it all off track, slowed it down
and messed it up and just -- you know, that caused all the
trouble. All the trouble caused here was by coming in this
courtroom and targeting me.
MR. BRANDON: Objection, nonresponsive.
THE COURT: All right. Let's get the next
question.
Q (BY MR. BRANDON) You said that you thought Dr. Day
wasn't properly apprised of the conflict problem, correct?
A I don't think he was.
Q Whose responsibility was that?
A Everybody's.
Q All right. Well, why didn't you explain the conflict
of interest?
A I thought I did. I thought screaming out at the top
of my lungs in front of a person, I care more about myself than
I do about them, and when the client hears that, I thought
he -- even -- anyone could figure that one out, okay? Wouldn't
90
you figure that out if I said that in front of you?
Q I'm not going to answer questions, Mr. --
A Okay. Anybody would, sir.
Q You're on the -- okay. Well, when he heard you say
that, didn't he ask you at the end of the day, Alan, what were
you talking about when you --
A No, he didn't.
Q -- you said you care more about me --
A He didn't ask me that. I remember. I don't remember
him asking me that.
Q All right. You didn't have any discussion with him
that day about this conflict?
A Oh, I was probably shouting and screaming about it
all over the place. I don't know if I had a discussion with
him. That's a different thing. I mean, I was talking with him
standing there, to Jay and everybody else. I mean, he -- I
don't talk in secret. I talk out loud. People can hear me. I
heard what I did here in the courtroom. Everybody did. The
news media did. Ed Bartolomei said they -- everybody did.
MR. BRANDON: Objection to nonresponsive.
I'll --
THE COURT: All right. I'll sustain. Let's get
the next question.
Q (BY MR. BRANDON) What conversation did you
specifically have with your client at the end of the day on
91
June 11th, which was the day Mr. Herberg came into court?
A What specific -- I mean, there's so many things in a
trial. I mean, I don't know. I stayed at the office and
worked on the trial. Probably talked about witnesses and went
on and just, you know, doing whatever. I mean, I don't have a
specific -- or take notes or nothing. I mean, I talked to
Dr. Day all during the trial.
Q You didn't tell him at that point, I don't think we
can represent you properly because we have a conflict of
interest?
A I don't know if I told him in those words. I mean, I
thought I had said it out loud. I thought I had made it clear
to everyone that would listen, to the DA's office, to everyone
that the trial should stop. It should be a mistrial. But, you
know, we were pretty invested in this trial by the time y'all
did that. It had gone a little ways. I thought y'all were
going to try and maybe -- it even crossed my mind later that
y'all did it just to -- because you thought you were losing.
MR. BRANDON: Objection, my question was about
the discussion that he had with his client.
THE COURT: Yes, I'll sustain.
A I don't remember discussing specifically anything --
I discussed all kinds of things with Dr. Day.
Q (BY MR. BRANDON) You didn't tell him, I don't think
we can represent you properly after this because we have a
92
conflict of interest?
A I possibly told him that. I don't know. I told him
whatever was the truth just as fast as I could think of it,
okay?
Q Have you --
A Just like stream of consciousness. I didn't even
think. I just told him what y'all were doing and what it -- it
was unbelievable what Herberg had done. I was just in shock.
MR. BRANDON: Objection.
A Well, that's what I told him. You asked me what I
told him.
Q (BY MR. BRANDON) That's not what I asked you. I
asked you about a specific topic that you raised with your
client or not.
A Well, I think that's raising the topic. You and me
think -- I think that it's raised.
Q Have you had cases before where you obtain waivers of
conflict of interest from clients?
A Yes, I have. Lots of times.
Q You said that on the day this happened you didn't
have a conversation with your client about having the conflict.
Did you have it at any other time?
A Well, I mean, I don't know what you call a
conversation with him. If I say something where Dr. Day can
93
mean, he pays attention and he heard what I was saying in the
courtroom. You mean sit him down? Yes, as the thing ended and
after the case, I -- more or less I apologized to him and said,
I'm sorry all this has happened to you; I can't believe it, you
know, because it shocks me what's happened and told him he
needed to get another lawyer and that he needed to get it
straightened out. You know, it needed to be flushed out, that
it needed to have hearings like we're having right now, that we
needed to get to the bottom of this, okay?
Q Okay.
A And see who is doing what.
Q Well, that day you came into court again and raised
this again was 13 days later, right?
A It was what now?
Q It was 13 days later when you brought this up to the
court.
A I mean, I don't know how many days it was. I was
probably gone away. The first opportunity I had -- because the
whole time I was in Del Rio I was furious about it and scared
and all those different emotions. I was scared. I was angry.
I was unhappy about what was happening over here, okay? And I
was thinking about it the whole time. And when I came back
and -- I called Mr. Norton on the phone, and when I came back
in I insisted that we come up here to the bench and put the
different things I was upset about, about y'all calling him a
94
rapist, about different things, a number of different things.
And I think the judge granted one of them and I -- Dr. Day had
been talking to me on the phone when I was in Del Rio and
telling me what was going on and I tried to come up here and
straighten it out.
MR. BRANDON: Your Honor, I object to narrative.
This is a simple yes or no question.
A They're not simple yes or nos.
THE COURT: All right. Let's get the next
question.
Q (BY MR. BRANDON) In this meeting that you had with
Laura Newcomb --
A Uh-huh.
Q -- another lawyer in your building had prepared this
document that was called mutual release, correct?
A I'm not sure who prepared that. I know the second I
saw the document -- I think -- at this time I believe Rick
Sultucha, as we sit here today, prepared that document. I
don't know when I came upon that knowledge. I didn't know
whether Andrew's office had prepared it. I know it's kind of
asking what she wanted in that conversation. And I know the
second I saw the document, I said, Ain't no way anybody's
signing this, you need to take it to Susan Reed. You need
to -- anytime you want to talk to a witness, you need to go to
the DA's office.
95
MR. BRANDON: Your Honor, I object to
nonresponsive.
A I don't know is the answer. I think it's Rick
Sultucha.
Q (BY MR. BRANDON) Do you know who presented the
document to Laura Newcomb?
A Not me.
Q That's not the answer to my question. Do you know
who --
A No, I don't.
Q Okay.
A I mean, I guess I -- do you want me to assume or
guess at it?
Q Were you there when Andrew Del Cueto, as we have
heard in court, advised her not to sign that release?
A I didn't even know he had been away and given it to
her. I guess it makes sense that y'all had it, that he gave it
to her and she gave it to y'all. But, I mean, I didn't even
know he had showed it to her.
Q Well, were you aware that Mr. Del Cueto told her this
could constitute witness tampering as soon as he saw that
document?
A Well, I said the same thing. The second I saw it, I
couldn't believe the stupidity that went into drawing it up and
I said -- and so did a couple of other people, lawyers around.
96
And they said, Yeah, you'd be crazy to sign that. I would have
no part of signing that document, okay?
Q Okay.
MR. BRANDON: I pass the witness, Your Honor.
REDIRECT EXAMINATION
BY MR. MCCRUM:
Q Mr. Brown, the fact that you knew that that document
could be interpreted as witness tampering, is that the same
thing as actually being told by a first assistant district
attorney that you're now under criminal investigation for your
involvement in that act?
MR. BRANDON: Objection to leading, Your
Honor.
MR. MCCRUM: It's not leading. That's --
A It's really easy to answer.
THE COURT: Yeah, I'll overrule.
A It's completely different, okay?
Q (BY MR. MCCRUM) How is it different, sir?
A Well, one, I did my -- it's like I go along with
everything. I did my best to do in -- one day at a time the
right thing. I saw the document and knew -- did know we
shouldn't use it without -- you have to go to the district
attorney's office with a document like that. I knew not to
sign it. And then being told by Herberg about that, I was --
that's a completely different thing to me. It's completely
97
different, okay?
Q Why? What happens when you're told by Mr. Herberg in
his position that you're under criminal investigation?
A I mean, I think it's serious to a first assistant
district attorney telling you something like that in a
courtroom with the press listening and the judge listening.
That's a very serious allegation. I think it's actually per se
libelous. It's probably against everything there is to tell me
a lie like that. And for an officer of the court to stroll in
here and say that to me and not be true? That's incredible to
me, okay?
Q Now --
A I mean, he shouldn't be first assistant, obviously,
okay? I feel sorry for the district attorney.
Q When Mr. Brandon's asking you whether or not you
filed a motion to withdraw or whether you know the mechanics of
filing a motion to withdraw when there's a conflict, what was
your intent when you moved for mistrial?
A I thought that was withdrawing us. I thought we'd go
back and get the mistrial and tell Day what happened and start
over and we'd get out of this trouble. But the one thing I can
say about it, there was a lot of time already invested in this
deal. The case has been put off a really long time and
everyone wants finality. So, I mean, it's like the timing when
the district attorney did it. They didn't tell us before the
98
case started. They didn't tell us back then. Even the way he
greeted -- he comes in and he says, Oh, there's possible Brady,
we know when we're being set up. Well, I even thought -- I
gave him the benefit of the doubt. He could have thought he
was set up along Brady. I don't know if he was or not, but he
could have thought that. That's legitimate. But to switch it
to me committing a crime and Mr. Norton and Del Cueto, that's a
big jump, okay? That's a big, big jump.
Q Did you think that you should continue to be
Mr. Day's lawyer in the case?
A No. I didn't think so, but I didn't know what to do
for him and he needed to -- he needed another lawyer. He paid
us a lot of money. We don't charge by the hour. He had
invested a lot into this trial. I had invested a lot into it.
We had all been together for a very long time and he was going
to have a very long time to find a quality lawyer to represent
him in this complicated case. He was going to have to go back
to ground zero. I felt really bad for Dr. Day because I think
there's only a few people that can try that case correctly.
Probably Mark Stevens sitting back there can and you can,
Mr. McCrum, but there's not a whole lot of people that can do
that case, okay?
Q Was there discussions with Mr. Stevens -- after you
were accused of being -- committing a crime and under
investigation, were there discussions with Mr. Stevens of
99
possibly taking over this case if you're allowed to withdraw
and the mistrial is granted?
A Yes.
Q Were those discussions --
A I mean, I wanted someone to take it over. You were
gone to -- you were in Oregon, I think, or some other place and
I couldn't -- I wanted to talk to you. You had been my lawyer
before and I always get -- like talking to -- I remember when I
called you and you were trying a case in some other place.
Q Did you and Mr. Norton both talk to Mr. Stevens, an
attorney here in town, about the possibility of taking this
case if a mistrial was granted?
A Yes.
Q Mr. Brandon asked you about whether or not you've
ever obtained a waiver of conflict of interest and you
indicated that you had. Are there certain --
A Dozens of times. Like the -- your Garcia hearings.
They admonish the client, they warn them about the conflict. I
think you represented myself and my wife, Jean Brown. She
waived the conflict or we both did. You know, I mean, lots of
times we do that. You know, I mean, that's a pretty -- I mean,
in my practice it's happened a lot of times.
Q Are there certain conflicts then that are waivable?
A There are.
Q Are there certain conflicts that are not waivable?
100
A Yes, that's correct. And the one is -- I think if
you're a target of that case with that witness, that's not
waivable. I actually -- Terry McDonald appealed one with me.
Went all the way to the Fifth Circuit. It was a jailhouse
murder case and the Fifth Circuit kicked me off the case, even
though the client waived -- everyone waived and the Fifth
Circuit would not allow me to stay on the case.
Q Why not?
A Because I had been accused. They said it was just --
it was too -- too bad for the appearance of justice and the
accused could not -- I mean, the absurdity of having me be a
lawyer in a case where I'm supposed to have tampered with the
very witness on the stand against me? That just seems absurd
to me. That's like just elementary that you don't do that.
(Moving head up and down)
Q So in your mind, sir, was this a situation, this
situation in Dr. Day's case, a non-waivable conflict of
interest?
A Yes, if it -- if I --
MR. BRANDON: Objection, that calls for a point
of law.
A Maybe -- the only way it was --
MR. BRANDON: Objection --
A In my --
MR. BRANDON: -- as to speculation on the part
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of this witness. He's already testified he's not --
THE COURT: Yeah, I'll sustain it. It is a
point of law. Let's continue.
MR. MCCRUM: Judge, I'm not asking him to get a
legal opinion for purposes of the Court's analysis. What it
goes to is his state of mind as to whether or not he would even
make an inquiry of waiver with his client, and if he did or if
he did not, the reasons therefore. His state of mind is
critical in this case.
THE COURT: He's testified regarding to his
state of mind. You can move on.
Q (BY MR. MCCRUM) Mr. Brown, do you feel that even
though you discussed the situation to some extent with Mr. Day,
do you feel that he understood adequately how this allegation
of investigation would affect cross-examination of
Ms. Newcomb?
MR. BRANDON: Objection, that's speculation.
He's calling for what's in someone else's mind.
THE WITNESS: I do think I'm an expert on it and
I would answer. Whatever you want to do.
MR. BRANDON: Objection.
THE COURT: Hold on a sec. I'll sustain and
that's been asked and answered.
MR. MCCRUM: Let me rephrase the question.
THE COURT: That's been asked and answered.
102
Let's move on.
Q (BY MR. MCCRUM) Was there any specific discussion
with Mr. Day about whether or not witnesses would be called and
the reasons why they would not be called?
A Specific things? No.
Q Yeah. I mean, did you or Mr. Norton -- you've heard
his testimony and you've also testified that certain witnesses
were not called by you both as -- because there was a pending
investigation against you.
A No. Day wanted them called, okay? Day wanted to go,
you know, full speed to the -- Day didn't -- wasn't pulling
back. We were.
Q Did you disclose to Mr. Day that you were not calling
witnesses because you were concerned of the investigation
against you? Were you that specific with Mr. Day?
A I was not that specific. I'm not sure he understands
still what's happening or happened.
MR. MCCRUM: Pass the witness.
RECROSS EXAMINATION
BY MR. BRANDON:
Q You said you had spent two years preparing your
client to testify. Are you saying when you told him you
weren't going to call him as a witness he didn't ask why?
A He pretty well just what I told him. You know, went
by what I told him. I just told him it wouldn't help, that he
103
did not -- you know, it was better he not be a witness. And,
really, I mean, one thing is, is y'all are happening here. If
this case is allowed to be tried again, you're going into all
the thought process we're having. I don't think that's right
for you to be able to do that. It may be right if it can never
be tried again.
MR. BRANDON: Objection, Your Honor.
THE COURT: All right. Let's get the next
question.
MR. BRANDON: It's not responsive to my
question.
THE COURT: Let's get the next question.
Q (BY MR. BRANDON) Were you concerned if you called
your client as a witness that you might be opening the door to
the many other extraneous witnesses who ended up testifying at
the punishment phase?
A No. I wanted to go full blast with all that stuff
right at the beginning. Myself and Mr. Norton, sometimes we
differ a little. We don't always sit around in agreement. We
talk about it, though, and we reach common ground between us.
I thought that all those people humanizing him, calling the
people he got melanomas off of, even if it meant getting the
404(b)s in, I thought it was better to do it right from the
beginning, okay? That's what I strategically thought.
MR. BRANDON: Pass the witness, Your Honor.
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FURTHER DIRECT EXAMINATION
BY MR. MCCRUM:
Q Was your decision to not call Dr. Day based in part
on your self-interest because of the investigation?
A That would be it.
MR. BRANDON: Objection, that's been asked and
answered, Your Honor.
MR. MCCRUM: I don't know that it has, Judge,
and that's why I'm asking to make sure the record's clear.
THE COURT: Okay. I'll let the one question
in.
A Yes.
MR. MCCRUM: I have no further questions.
THE COURT: All right. Anything else?
MR. BRANDON: Nor do I, Your Honor.
THE COURT: I'm sorry. I didn't catch --
MR. BRANDON: I don't have any.
THE COURT: All right, sir. Thank you. You can
have --
MR. BROWN: Thank you, Your Honor.
THE COURT: All right. In the interest of
justice, the Court will grant the Defense motion for new trial.
(Proceedings concluded)
105
STATE OF TEXAS )
COUNTY OF BEXAR )
I, AMY HINDS-ALVARADO, Official Court Reporter,
in and for the 379th Judicial District Court of Bexar County,
State of Texas, do hereby certify that the above and foregoing
contains a true and correct transcription of all portions of
evidence and other proceedings requested in writing by counsel
for the parties to be included in this volume of the Reporter's
Record, in the above-styled and numbered cause, all of which
occurred in open court or in chambers and were reported by me.
I further certify that the total cost for the
preparation of this Reporter's Record is $954.00 and will be
paid by Dr. Calvin Day.
WITNESS MY OFFICIAL HAND this the 27th day of August, 2013.
/s/ Amy Hinds-Alvarado
Texas CSR 6068
Expiration Date: 12/31/13
Official Court Reporter
379th Judicial District Court
Bexar County, Texas
Cadena Reeves Justice Center
300 Dolorosa, 4th Floor
San Antonio, Texas 78205
(210) 335-2911