APPARENT PROSECUTORIAL MISCONDUCT IN THE DR. CALVIN DAY CASE
BY ASSISTANT DISTRICT ATTORNEY CLIFF HERBERG WAS APPARENTLY THE MAJOR CONTRIBUTING FACTOR IN THE DEATH OF DR. DAY’S SON,
ZAC DAY
EXHIBIT J
EXHIBIT LIST
- EXHIBIT A is a sketch drawn by Patient 1 of an erect penis that she alleged
was a depiction of Dr. Day’s penis.
- EXHIBIT B is a photo taken by the Sexual Assault Nurse Examiner (SANE) of Dr. Day’s flaccid penis showing “no-match” with EXHIBIT A. (The detective swore out a false affidavit
stating that the sketch in EXHIBIT A AND the photo in EXHIBIT B resembled each other when clearly they do not).
- EXHIBIT C contains specific rebuttals to the individual complainant allegations in the 07/25/2011 TMB Order concerning
Calvin Lee Day, Jr., M.D. #G1883.
- EXHIBIT D details the untrue and inaccurate defamatory language contained in the 07/25/2011 TMB Order concerning Calvin Lee Day, Jr., M.D. #G1883 .
- EXHIBIT E
details the online profile defamatory inaccuracies on the Texas Medical Board website concerning Calvin Lee Day, Jr., M.D. #G1883
- EXHIBIT F contains unfairly prejudicial actions by the staff of the Texas Medical Board concerning
Calvin Lee Day, Jr., M.D. #G1883.
- EXHIBIT G is Dr. Day’s polygraph showing his innocence.
- EXHIBIT H contains pages 12-13 of the 6/11/2013 trial on the merits transcript re: Patient 1 retaining an attorney
to represent her against the District Attorney because she did not want to continue and wanted to plead the Fifth
- EXHIBIT I is the entire transcript of the 08/26/2013 Motion For New Trial Hearing
- EXHIBIT
J references portions of Exhibits I and K regarding apparent prosecutorial Misconduct in the Dr. Calvin Day case
- EXHIBIT K contains pages 10 and 24 of the 6/11/2013 trial on the merits regarding threats made by the First Assistant
District Attorney against the attorneys for Dr. Day concerning an alleged witness tampering investigation, when in fact, it was later disclosed that there never was such an investigation (See Exhibits J and I)
Allegations of prosecutorial misconduct against First Assistant District Attorney Cliff Herberg during Dr. Calvin Day’s June 2013 trial have apparently been swept under the rug, even though the
apparent resultant collateral damage from Herberg’s apparent prosecutorial misconduct appears to include the death of Dr. Calvin Day’s son, Zac Day,. Apparently, being First Assistant DA has its privileges.
The evidence against Herberg and the apparent resultant collateral damage resulting therefrom are straightforward to wit:
1) On 06/11/2013, during Dr. Calvin Day’s trial
for allegations of sexual assault, and just prior to cross-examination of the State’s star witness, Herberg announced in open court that Dr. Day’s attorneys were under investigation for felony witness tampering.
2)
Dr. Day was convicted on 06/17/2013 but this conviction was subsequently vacated on 08/26/2013 because it was shown at the Hearing on the Motion for a New Trial that Herberg changed the course of the trial by deliberately heaping a heightened
fear of an investigation upon Dr. Day’s attorneys and that this fear resulting from the investigation threat created a conflict of interest between Dr. Day and his attorneys.
3) For
fear of being under investigation for allegedly tampering with Dr. Day’s Accuser, Dr. Day’s Attorneys held back in questioning Dr. Day’s Accuser concerning many areas that would have materially addressed issues of her credibility, reliability,
purported illegal misconduct, and motive to testify against Dr. Day. For the same reason, Dr. Day’s Attorneys decided to not call many witnesses they previously had planned to call in the defense of Dr. Day, nor did they call Dr. Day to testify,
despite having planned to do so.
4) However, the most shocking disclosure at the Hearing on the Motion for a New Trial was that there never was an investigation of Dr. Day’s attorneys;
Cliff Herberg apparently had made it up!! Herberg had apparently announced this apparent lie in open court for the expressed purpose of winning the case for the prosecution!
5) Dr. Day
was subsequently granted a new trial by Judge Ron Rangel “in the interest of justice.”
6) Dr. Day ultimately paid the ultimate price for Herberg’s apparent lie by losing
his son Zac. Following Dr. Day’s “unjust” and subsequently vacated conviction, Dr. Day’s son (Zac) committed suicide on 06/26/2013. Zac had a few days before his suicide told family members that he could take anything but a conviction.
Although, the “unjust” conviction was subsequently vacated “in the interest of justice”, the mistrial finding on 08/26/2013 was too late to save poor Zac, who could not withstand the humiliation brought on by the “unjust”
conviction.
7) Inasmuch as Dr. Day’s “unjust” and subsequently vacated conviction was apparently a direct consequence Herberg’s apparent lie, it follows that Herberg’s
apparent lie was apparently the primary contributing factor in Zac Day’s premature death.
The above statements are based on testimony found in trial and hearing transcripts to wit:
1)
“STATE OF TEXAS VS CALVIN LEE DAY”, JUNE 11, 2013 (Exhibit K), and
2) “STATE OF TEXAS VS CALVIN DAY HEARING ON MOTION FOR NEW TRIAL” (Exhibit I),
Below are printed applicable excerpts from these transcripts. Copies of the applicable pages from the JUNE 11, 2013 “STATE OF TEXAS VS CALVIN LEE DAY” (Exhibit K) transcript s are attached as is a
copy the entire manuscript of the AUGUST 26, 2013 “STATE OF TEXAS VS CALVIN DAY HEARING ON MOTION FOR NEW TRIAL” (Exhibit I).
EXCERPTS FROM STATE OF TEXAS VS
CALVIN LEE DAY
JUNE 11, 2013 (Exhibit K)
Page 10, lines 2-5
(BY CLIFF HERBERG)
“……….And we would
represent to the Court that we believe that Ms. Newcomb is
being manipulated by Mr. Del Cueto and Mr. Brown and
Mr. Norton, that this constitutes tampering with a witness.”
Page 24, lines 5-7
(BY CLIFF HERBERG) “If I may, Your Honor, let me make
it clear. This matter, of course, is still under
investigation.”
EXCERPTS FROM STATE OF TEXAS VS CALVIN DAY
HEARING ON MOTION FOR NEW TRIAL
AUGUST 26, 2013 (Exhibit I)
Page 5, lines 1 thru 3 & 10 thru 14
“THE COURT: ………..On the request of the Court,
the State provided all of the documents in regards to this file
to the Court for an in camera inspection…..”
“THE COURT: And so the Court reviewed all of
those documents, reviewed the State's file and was confident
that there was no investigation that was
going on during the
course of the trial towards the defense attorneys or
Ms. Newcomb's attorney.”
Page 6, lines 8-14
“THE COURT: Yes. And I reviewed several
different -- several prosecutors' notes of what was going on.
………………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.”
Page 6 lines 18-25
“MR.
MCCRUM:……………….. Mr. Herberg
falsely represented that there was an investigation……………
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.”
Page 7, lines 1-5
MR. MCCRUM: “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
……..that was a
false representation to the Court”
Page 16, Lines 1-12, & 17-21
(Q = MICHAEL MCCRUM, A = JAY NORTON)
“Q ………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…………….
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.”
Page
22, lines 12-16
(Q = MICHAEL MCCRUM, A = JAY NORTON)
“Q …………..did you feel that it” (i.e., Herberg’s investigation threat) “would
have
affected you in your representation of Dr. Day through the
remainder of the trial?
A Yes, I felt it would. In fact, I knew it would and
it did.”
Page 36, lines 7-13 (Q = MICHAEL MCCRUM, A = JAY NORTON)
“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.”
Page 42, lines 11-13
(BY MR. MCCRUM) “………………what
now appears to be a false representation by Mr. Herberg to this
Court of an investigation.”
Page 43, lines 17-21 & page 44, lines 5-7
(Q = MICHAEL MCCRUM, A = JAY NORTON)
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?............
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.
Page 63, lines 1-5
A (BY ALAN BROWN) ………“Cliff Herberg…..
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.”
Page 65, lines 11-12
A (BY ALAN BROWN)
……Andrew Del Cueto was gone, and so my opinion still is
the district attorney's office tricked him or lied to him.
Page 66, lines 4-16
(Q = MICHAEL MCCRUM, A = ALAN BROWN)
“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.”
Page 69, lines 18-20 & lines 24-25 & page 70, lines 1-3
(Q = MICHAEL
MCCRUM, A = ALAN BROWN)
Q………… how did that affect your
judgment in terms of Mr. Herberg's investigation of you for
witness tampering?.....
Q
And how did that affect your representation of
Mr. Day for the balance of the trial?
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.
Page 73, lines 11-14
A (By ALAN BROWN) “……Herberg…….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 –“
Page 73, lines 24-25 & page 74, line 1
A (By ALAN BROWN)
“….. Herberg……
…had tried…..
to -- he had conned me.”
Page 75, lines 14-19
& Page 76, lines 7-8, 21-23
& page 77, lines 3-5
(Q = MICHAEL
MCCRUM, A = ALAN BROWN)
“Q (BY MR. MCCRUM)
What about Mr.” (Jay) “Brandon's presence in
this situation? …………….
Q
Was he involved in this situation, sir?
A Yes, he was. Yes, he was.
………….he carried on a lie of
Mr. Herberg. As a matter of fact, I consider him a liar, too.
…………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
–
…….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.”
Page 80, lines 15-16
(A = ALAN BROWN)
“…………We did not
try the case right after that”
(i.e.,
Herberg’s investigation threat) “happened.”
Page 81, lines 12-14
(A = ALAN BROWN)
“……..Herberg ……
was playing some strategy to get my eye off the ball, …… I'm
ashamed to say it worked, okay?”
Page 82, lines 3-10
(A = ALAN
BROWN)
“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.”
Page 87, Lines 13-14 & Lines 18-19
(Q = JAY BRANDON,
A = ALAN BROWN)
“Q (BY MR. BRANDON) Okay. So you don't know what your
professional responsibility is.”
…………..I did better than y'all did. I
didn't lie to people and con people, okay?”
Page 89, Lines 6-11
(A = ALAN BROWN directed at ADA JAY BRANDON)
“………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.”
Page 91, line 18
(A
= ALAN BROWN directed at ADA JAY BRANDON)
“…y'all did it just to -- because you thought you were losing.”
Page 97, lines 2-14
(Q = MICHAEL
MCCRUM, A = ALAN BROWN)
“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.”
Page 104, Lines 21-22
“THE COURT: All right. In the interest of
justice, the Court will grant the Defense motion for new trial.”