Delaware County DA - now judge - Richard Northrup brought a felony indictment against my friend Barbara O'Sullivan in the fall of 2014 for allegedly having a dog (not her own) assault a police officer, Derek Bowie - which was dismissed on February 25, 2016, when even Judge Lambert and Acting Delaware County DA John Hubbard could not proceed to trial with the case as dirty, while Barbara refused to allow them an easy way out and plea to a misdemeanor.
The indictment was brought secretly, in violation of applicable law, and after the now-Acting DA Hubbard learnt through the felony hearing that the charges were unsustainable.
I have written about the circumstances preceding that occurrence when Derek Bowie assaulted Barbara O'Sullivan 2 weeks prior with a police vehicle and smashed a tablet in her hands with which she was videotaping his misconduct. When he read on this blog that the tablet and the recording on it still survived, he needed to get Barbara, Alecia and Alecia's dogs out of the house to get to the tablet. So he fabricated criminal charges of resisting arrest against Barbara and Alecia, and went to their property, at night, with the help of two other officers, Tahir Haqq and Eric Alexander.
I handled a felony hearing for Barbara on September 22, 2014.
I want to show that the charges against Barbara should have been dismissed as of September 22, 2014 by Gumo and should have never been brought into the grand jury by DA Northrup, employer of the alleged victim's uncle (please, also note that Northrup put the case through the grand jury without notifying Barbara or myself, as her counsel at the Delhi Town court level, which is a violation of Criminal Procedure law - Barbara made a motion to dismiss the indictment later, but Judge Lambert unlawfully denied the motion, saving the illegal indictment).
My opponent was John Hubbard, now the Acting District Attorney of Delaware County.
Here is what was established at that hearing:
1) Derek Bowie (who had a grudge against Barbara, was a suspect in an attempted murder/vehicular assault against Barbara 2 weeks prior and who should have been pulled from any investigations or arrests of Barbara) was the only witness of the alleged bite.
I will run a separate blog showing how Derek Bowie was trying to defraud the Workers' Compensation board about that alleged bite, and how the then DA and now-judge Richard Northrup was helping him do it, and create false evidence for trial (and, possibly, the grand jury) to make the case stick.
2) Officer Tahir Haqq did not see the dog bite Bowie because it was dark and because everything was "in a blur";
3) Officer Alexander did not see the dog bite Bowie either, because he was behind the house when the dog got out and did not see the door.
4) Officer Alexander saw Barbara secure the dogs, at the request of officers, into cages, before she went out to open the door. Officer Alexander did not exclude the possibility that a dog was first secured into his cage and then escaped.
5) Both officer Bowie and officer Haqq who saw how the dog came out of the door, describe it as "going around" Barbara, "pushing around" her or even "blowing around" her.
6) It was established on record that the dog did not belong to Barbara.
7) It was established on record that Barbara daughter Alecia, the owner of the dog, was not at home when the officers came.
8) It was established on record that the dog was large and heavy.
9) It was well known in the area that Barbara, a lifetime resident of Delhi, a small town where everybody knows everybody, is a disabled corrections officer with a broken wrist, so for three male officers to expect her to control an escaped dog, not her own, was somewhat unreasonable - and did not establish her intent to release the dog beyond the reasonable doubt, or by any standard at all.
10) It was established on record that Barbara did secure the dogs and that it was possible that one of the dogs simply escaped and went around her when she opened the door.
On this record, no criminal prosecution was possible. It was not possible to prove intent on this record even by preponderance of the evidence, much less beyond the reasonable doubt, as a criminal case required.
Prosecutors Northrup and Hubbard, if they want to feign neutrality and good faith - it was all in there, in the felony hearing transcript of September 22, 2014, it was clear that a criminal case against Barbara was unsustainable.
John Hubbard, the current Acting DA, was there. He heard that testimony. He knew the case sucked, even without any other legal issues, and that he cannot prove it at trial.
The only reason to put that case, secretly as they did it, through the grand jury, was to harass Barbara and cause her stress.
After all, it is highly unusual that a prosecutor offers a no-jail-time and no-probation plea offer, only to make the case not go to trial - that's what John Hubbard several days ago.
John Hubbard also intimidated Barbara by threatening to depose her as to contents of MY blog, an act of pure stupidity since Barbara does not direct what I say on my blog, I am not sure she even reads my blog and knows its contents, and whatever is in my blog is pure hearsay as far as Barbara is concerned, and thus inadmissible at trial.
So, Northrup and Hubbard relied on their "star witness" Derek Bowie against Barbara O'Sullivan, Derek Bowie's victim.
Hubbard was a law partner of Judge Becker whom Barbara sued.
Hubbard told Barbara in 2010 that she shouldn't have hired me for Alecia's custody case and that whatever Becker does is correct - as an explanation as to why he let go the criminal case of death threat against Barbara O'Sullivan and deceived Barbara O'Sullivan as to the time of the proceedings, so that she would not be able to come and protest in open court.
Hubbard knew - for a million reasons in this case - that the case should not have been filed and should have been dismissed long ago on legal insufficiency, jurisdictional deficiency, judicial and prosecutorial misconduct grounds, because of
- reasons explained in my motion to dismiss that I served upon him before the felony hearing started on September 22, 2014 and that Gumo dismissed without reading;
- reasons that Barbara explained in her pro se motion to dismiss for failure to notify her of the grand jury proceedings and her pro se omnibus motion filed and denied by Judge Lambert, until he realized, with the trial pending within days, that another reversal on appeal on the law, right after the embarrassing reversal on the law in Norman Michaels' case, will be too much for his judicial career;
- in her writ of prohibition filed with the Appellate Division 3rd Department and ignored by that court; as well as reasons that transpired from the felony hearing that I describe here, and reasons.
No self-respecting prosecutor would bring felony charges in good faith on the record such as this,
- when it is not clear whether there was a bite, a bruise, or nothing,
- where the only witness is severely compromised by a self-interest to lie and is a suspect in an attempted murder on the alleged criminal defendant, so the alleged victim rather sought to be the first at the door of the courthouse with the criminal charges against the victims of his misconduct to discredit them if they would sue him:
- where the intent to release the dog could not be established on record even by preponderance of the evidence, much less beyond the reasonable doubt, as required in criminal proceedings;
- and where the alleged victim's injury was, as the O'Connor Hospital diagnosed, a BRUISE, which is insufficient to bring the D felony charges, even if all other issues did not exist:
This was released to Barbara in discovery in March of 2015 by Northrup.
In June of 2015, Northrup released to Barbara Derek Bowie's worker's compensation claim stating that he had not only a bruise (as O'Connor diagnosed him and which was insufficient for charges), but also a puncture wound.
Northrup knew that when a medical document says, as a diagnose from neutral medical personnel, "bruise", and a workers comp claim filled out self-servingly by Bowie himself says "puncture wound and bruise", that is workers compensation fraud.
Yet, he unflinchingly proceeded to prosecute the case, obviously intending to introduce the "puncture wound" fraudulent and self-serving claim of Derek Bowie at trial. Grand Jury minutes are secret, but I bet that Derek Bowie's puncture-wound claim was submitted to the grand jury, too, with Northrup's blessing.
Neither Barbara's previous attorney Tyner who received this information initially, nor her current attorney Ermeti who got her file in October of 2015, made any efforts to move to eliminate fraudulent evidence and preclude Derek Bowie from testifying about his "puncture wound".
Ermeti did not move to preclude Bowie's testimony about his "injury" even when Hubbard added insult to injury by sending to him an uncertified and unauthenticated copy of pictures that Hubbard received, allegedly, from Delaware County K-9 officer John Demeo (who himself has a dark history albeit protected by Civil Rights Law 50-a blocking access to records of misconduct of police officers) who was not on the property when the alleged dog attack happened, but who somehow had the possession of the picture allegedly of Derek Bowie's "injury":
The picture shows a puncture wound and not a bruise.
I was at the felony hearing and saw Bowie wear a tiny band-aid on his arm, while being in uniform, with a taser and a pistol on his belt. So, Bowie was not off duty and was allowed to handle a police vehicle, a taser and a pistol, even though he complained under oath on September 22, 2014 that their fingers were allegedly numb - from a bruise, which was likely self-inflicted by his baton, based on the contents of the video CD from the dash cam of one of the police cars.
Bowie was very interested to lie in this case.
He was also very interested to have the dog killed.
That's why he nearly tasered the dog to death.
That's why the dog, with a taser barb sticking through his jaw, was left in the pound by the dog control officer who acted on directions of the police, FOR THREE DAYS, without permission to the shelter to remove the barb. The dog's owner's permission or requirement to treat the dog were ignored since the dog was officially in the custody of the dog control officer.
Bowie and his cronies definitely were waiting until the dog either rips himself apart from pain and bleeds to death, or infection will set in and kill him, or Judge Gumo will kill him (Bowie applied to have the dog killed) - but, at all costs, the dog should not have survived by the trial, so that dog experts would not be able to evaluate the dog and see that he is not dangerous (my 8-year-old son was around him many times, with never an issue to his safety).
By the way, Ermeti reportedly ignored Barbara's request to hire a dog expert for trial.
The hospital record of Derek Bowie indicates a bruise, not a puncture wound, so it is clear that Hubbard, to win the case, same as Northrup before him, was going to introduce fabricated evidence at trial, and Ermeti, Barbara's defense attorney who outright refused to confront Hubbard for any misconduct in the case, not only condoned it, but agreed to introduction of this evidence at the hearing for the validity of the warrant, with no hearsay objections or objections to certification, authenticity or clear inconsistency between this picture and the diagnosis in Bowie's medical records.
Moreover, the picture that does not show whether it is on an arm or leg, on a male or female, on Derek Bowie or on John Demeo bit by his K-9 companion, was sent in an uncertified format by Hubbard to Ermeti.
Ermeti did not question Hubbard's "integrity" on that and allowed introduction of this totally hearsay picture from an unknown source into evidence at the hearing before trial - a complete sell-out of Barbara as Ermeti's client, in my opinion. Ermeti also refused to file a motion to disqualify Hubbard for misconduct, to move to dismiss the indictment because of the presence of a disqualified prosecutor in the grand jury (disqualified as the employer of the alleged victim's uncle, investigator Jeff Bowie), or to recuse Lambert.
Ermeti actually lamented to Barbara that, because he "had" to challenge Gumo, he would not be able to work in Gumo's court any longer and that he will not make a motion to recuse Lambert, because he does not want to lose his business before Lambert.
Instead, Ermeti told Barbara that, if Lambert would rule against her as to the warrant (fortunately, that did not happen, but it is in hindsight now, yet Ermeti said that before the order was made), Ermeti would advise her to take the plea - but he STILL did not want to move to recuse, disqualify or dismiss, nor did he make the necessary motions for judicial subpoenas of records, from the Sheriff's department, from the Town court, from the Family Court, from the Worker's Compensation board where Bowie submitted his medical records, or from the hospital.
Why Ermeti steered Barbara into a plea? Because he knew the law very well. He was already paid an enormous sum by the family, which he likely already partially or fully spent on his trip to the Bahamas while Barbara was scrambling what to do before trial. Yet, New York law does not allow a criminal defendant to sue her attorney for malpractice, unless the conviction is overturned, even if the conviction was caused by that malpractice.
So, had Lambert ruled against Barbara on the warrant, and had Ermeti steered her into the plea bargain, Barbara would not have been able to sue Ermeti for malpractice and not making the necessary motions for her in the 4 months since he received a huge retainer from Barbara's family. In fact, Ermeti disclosed to Barbara right before trial that he did not know which motions were or were not made in the case and which hearings were or were not held in the case.
And, there is a reason to believe that Ermeti had a reporter on hold to report Barbara's plea bargain, so it was all planned and arranged. Only Barbara appeared stubborn and did not want to plea. Not when she was clearly framed by the prosecution.
Northrup and Hubbard should not be "serving" the public in their high positions of trust.
It is exceedingly clear that they do not deserve ANY trust whatsoever in how they handle criminal cases.
Whether they will be disciplined, is another question, but complaints against them for misconduct in this case will most assuredly be filed.
As to how those complaints will be resolved, stay tuned, I will report it here.
That's another excellent analysis exposing the questionable practices within the New York State legal system. It beggars belief how those in authority are able to get away with their shenanigans. You have written a lot about WHAT is going on but have you written anything about WHY and HOW the perpetrators get away with it. Doesn't the USA present itself to the rest of the world as the "land of the free"? In reality it seems more like the land of the privileged few.
Best regards, Pete
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Thank you, Pete. I write both about "what" and "why" and "how" :). "The land of the free" at this time is a carefully maintained illusion.ReplyDelete
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I'd be interested to know what you disliked about my original comment. Here's a revised version of the final paragraph.
After the disgraceful treatment that they have endured at the hands of the NYS police and courts during the past several years, Barbara and Acecia deserve our utmost respect for their determination to fight for their rights instead of capitulating under the enormous pressure to which they have been subjected.
Best regards, Pete