COMMONWEALTH OF MASSACHUSETTS

 

 

Worcester ss                                                                                                                                              Worcester Superior Court

Commonwealth                                                                                                                                           Criminal Action

                                                                                                                                                                   93-0135

v.

Michael Elbery

AMENDED COUNT 1  TO ELBERY'S MOTION FOR NEW TRIAL

Amended Count No. 1. - Judicial Misconduct - Causing a Violation of Due Process and a Trial that was Unfair.

This count is in addition to the existing 18 counts in Elbery's Memo in Support of his Motion for New Trial regarding case 93-0135.

 

Judge Toomey's knowledge of the falsified eye injury evidence regarding off-duty police officer Tom King.

Elbery was sentenced to 10 years in state prison as a result an "attempted mayhem" conviction (no weapon involved) after a Mass. District Judge found No Probable Cause on that and 2 other charges. As indicated by the supporting Motion for New Trial and related trial transcripts, the evidence causing this conviction was that of the alleged victim's eye injury. As indicated by Factual Claims I, II, III of Elbery's Memo in support of his Motion for New Trial all the evidence presented at trial about the victim's eye injury was false and knowingly so, by both the defense attorney, Louis P. Aloise and the prosecutor, Mike Ball. However, Judge Toomey viewed and approved the victim's medical reports and allowed them into evidence as exhibits.

It should have been plain to Toomey that what was on those medical records (the portions that could be read) was entirely different from what the prosecution witnesses were testifying to at trial. It should have struck Toomey as odd that the alleged victim, off-duty police officer Tom King, was allowed to be the sole medical witness concerning claims as outrageous and serious as vitreous fluid and blood dripping from a human eyeball.

As to the portions of the medical records that could not be read, the law in Massachusetts requires that the medical person writing the record allow the jury to know what the medical report discloses in terms of the victims claimed injuries. Toomey knew that Arinella's report (Exhibit A-2 of the defendant's Motion for New Trial) was unreadable for the jury. Toomey had a duty to step in during trial and make sure that the law was obeyed (see Motion Count III for fact and law) and that Elbery received a fair trial, even if his defense attorney was helping to railroad him; Judge Dan Toomey was required by Massachusetts law to make sure the jury understood what Dr. Dennis Arinella's unreadable medical record indicated. There were no medical witnesses at trial and the jury never knew that Dr. Arinella's medical record disclosed that the prosecution's alleged victim, Tom King, had a blood shot eye from getting a bump in the eye, after King illegally chased the defendant, Michael Elbery, down Shrewsbury St. with his "gang of drunken 6". See also,  Dr. Hull's expert opinion on exactly what Dr. Arinella found were King's superficial inflamation from "catching a finger in the eye". And also Dr. Hull's Affidavit and supporting letter on King's injuries, as diagnosed by Dr. Arinella.

It should have been plain to Judge Dan Toomey, during that trial of 6-28-93 through 7-2-93 of defendant, Elbery, that something was fraudulent because King was fine at trial 9 months after claiming his eye was almost gouged out of his head and that there was no mention at trial of surgery or long term care for such a severe injury as King and his witness-friends testified to at trial.

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If all the above avoided any notice by Judge Dan Toomey, then he should have heard ADA Ball leading his own witnesses at trial to produce the desired, by Ball and conspirators, perjury, see Motion claim II of the Memo, concerning the victim's alleged eye injury.

Six years after that guilty verdict against Elbery, it is now documented, via the defendant's Motion for New Trial filed in July of 199, that King, Ball and Aloise and the prosecution witnesses conspired to perjure in order to convict Elbery using, in part, the falsified evidence of eye injuries to King. If Toomey had done his job by acting on what was obvious and before him, as summarized above, there would not have been a phony conviction against Elbery or a 10-year jail sentence.

Toomey was even reminded by defense Attorney, Aloise, on page 5 of Ex. R of the Memo that all the evidence of King's eye injury was fabricated. However, the jury was not allowed to know this because that 25b-2 motion was filed after the trial was over. How can Toomey possibly claim he had no knowledge that the eye injury evidence at trial used to frame Elbery was not false? For Toomey to claim a lack of knowledge about the falsification of King's eye injuries at trial is to plead total incompetence.

Toomey acknowledges he knew the King's eye injury evidence was false.

At trial sidebar, TR 851-20 through 852-8, Toomey confirms that he and Aloise understood what the alleged victim, King's, medical records disclosed. They confirm during this sidebar that the prosecution's evidence of mayhem at trial was entirely different from the alleged victim's medical records. Doesn't a Superior Court Judge have a duty to stop a defendant from being railroaded in his court? Toomey had a duty to make sure the jury knew what was on the medical records and that they were totally the opposite of the prosecution's evidence at trial.

 

Judge Toomey declines to enforce Massachusetts law concerning citizen's arrest.

All Massachusetts judges have a duty to know Massachusetts law. At Elbery's trial Toomey chose to ignore/malign the most important legal issue of the entire trial - Mass. law of citizen's arrest. See Memo Count V- page 39.

Toomey knew citizen's arrest was an issue at trial (see page 41-42 of Motion Count V), but he chose to do exactly the opposite of what Mass. law requires concerning the right of a citizen to make an arrest. As per Count V of the Memo, if Toomey had done as Mass. law requires he would have instructed the jury that there was no right to make a citizen's arrest by King. Further, instead of conspiring with Aloise and Ball and the prosecution witnesses, Toomey should have suppressed the prosecution's evidence of assault charges against Elbery, as per Mass. law not only did King have no right to pursue Elbery 100 yards down Shrewsbury St. but King was assaulting Elbery.

If Toomey had done his job concerning the Mass. law of citizen's arrest there would have been no trial of Elbery on 6-28-93, let alone a conviction and a 10-year prison sentence.

Toomey concerning this issue of citizen's arrest at Elbery's trial was either a knowing co-conspirator or a complete incompetent as a judge.

The Falsified justifications for King's citizen's arrest of Elbery.

At trial the prosecution used two falsified events to justify King's pursuit of Elbery 100 yards down Shrewsbury Street. First, was the alleged facial mutilation of a girl named Quintessa Mann. Secondly, an alleged broken beer bottle assault by Elbery upon the entire bar for 30 seconds. See Counts IV and VI respectively.

These two knowingly false events by the prosecution should have been obviously troubling to Toomey. It should have been clear to Toomey, as a well-seasoned judge, that there was something wrong about the prosecution's claim regarding these two events.

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Mann's Injury

The reasons given in Elbery's Motion for New Trial - Count IV of the Memo for the falsification of Mann's injury should not have escaped Toomey's attention at trial. Specifically, Toomey should  have been alerted there was something wrong going on in his court when Mann claimed to have glass cuts on her face requiring stitching and there were no scars on her face. The prosecution would have made a major issue out of these facial scares to this little girl's face, if there had been any. There was no medical evidence presented regarding this girl's alleged face cuts and stitching.

It may be to much to expect out of a judge to read exhibits at trial, but Ex. D of the Memo which is the Worcester Police Report of the underlying incident resulting in Elbery's arrest clearly indicates that the Worcester Police found no record of any girl going to any and all area hospitals for such injuries as Mann described.

Toomey should have questioned why Elbery did not get charged with a crime for this cutting of the girl's face. Instead, Toomey chose to ignore the obvious or participate in a conspiracy.

The 30 second bottle assault - Already and Admitted Lie by the Prosecution

Judge Dan Toomey will deny ever reading the probable cause hearing transcript of this case. He will probably deny knowing that there was No Probable Cause Found on the same charges at the District Court level (which is not believable or more incompetence). However, Toomey cannot deny that King was the only witness at trial that claimed Elbery used a broken beer bottle for 30 seconds while menacing an entire bar. Although defense attorney Aloise refused to cross-examine King on this point, or question the other witnesses regarding this beer bottle attack and highlight their discrepancies in testimonies, the absence of testimony by the other witnesses and friends of King's regarding the bottle assault should have alerted Toomey that a fraud was taking place in his court.

Instead of exposing and correcting the fraud committed by King at trial, regarding the falsified bottle assault, Toomey directed a verdict of not guilty on the assault charge with the broken beer bottle. Toomey simply told the jury to forget that charge, see p. 57-58 of Count VI. Toomey even while directing a not guilty verdict on that charge maintained the masquerade and dismissed it for all the wrong reasons, see TR 840 through 850. The alleged victim witness, Officer Tom King, and the bartender Jeffrey Schlener admitted before and at the Probable Cause Hearing that there was no bottle assault, it was one of the lies Schlener made up when the police arrived at the underlying incident to prevent him and his buddies from guilt, see Count VI of the motion.

Toomey knew King was drinking on duty and allowed King to lie about it.

Per motion Count VII of the Memo, p. 58, at a minimum Toomey knowingly conspired with Aloise and the prosecution to conceal the fact that King was drinking on duty before he got into controversy/fracas with Elbery on 9-29-92, see p. 60 of Count VII. To add insult to injury he gave jury instructions that compounded this Due Process violation by Toomey causing the jury to believe only Elbery had a motive in the outcome of the trial. See page 63 of Memo Count VII.

 

Toomey allowed his biased clerk- John O'Connor to officiate at trial.

As per Elbery's Motion, Count IX of the Memo, Toomey allowed reporting-clerk, John O' Connor, to officiate during Elbery's trial. O' Connor's son, Dennis O' Connor,,- a prosecution witness, testified that he was the one who single-handedly subdued Elbery on the street. This is an admission to assault and battery, by O' Connor.

This bias of Toomey's clerk may explain Toomey's conspiracy and unlawfulness at Elbery's trial. A judge's clerk has great influence over a judge.

Toomey witnesses Aloise confirm and adopt the prosecution's case.

Per Memo Count XI, Aloise at trial's length advocated the prosecution's story, also see Count X-A-4. If Toomey did not catch this at trial, he should not be a judge. Toomey let this happen knowing Elbery was receiving no defense. The law is that Toomey is supposed to see justice is done in his courtroom and stop injustices.

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The prosecutor's Opening and Closing Statements.

Per Count XVI, p. 106, of the Memo, the prosecutor performed with reckless abandon in order to get his conviction. Toomey heard all this and did nothing. Also see the statement made by the prosecutor, in his closing argument, that was raised as an issue in the Direct Appeal of this case, (the direct appeal included with attached documents). These statements were not just isolated but repeated and Toomey condoned them all.

Toomey's Instructions

Per Count XVII, p. 111, of the Memo, Judge Dan Toomey did a Co-conspirator's job instructing the jury including defining maiming as a "wound" and substituting a "consciousness of guilt" instruction for the required "citizen's arrest" instruction.

Toomey jails Elbery on the second day of trial because Defense Attorney Aloise was framing his client

During the second day of trial at lunch break Toomey jailed Elbery, although the record reveals Elbery had done absolutely nothing wrong. Toomey claimed, TR 363-10, I thought he was about to get out of hand. This type of tyrannical behavior at Elbery's trial only serves to underscore Toomey's conspiracy to falsely convict Elbery. See also p.97 of the Memo. The reason Judge Dan Toomey jailed Michael Elbery at lunch break of the second day of trial is because defense Attorney Louis P. Aloise wanted Elbery to stop protesting that Aloise was not presenting the evidence that had already been produced at the Probable Cause Hearing. Elbery was allowed out of jail when he agreed to let Aloise have total control over his defense and not question anything.

The A.D.A. Morris Bergman Incident.

Toomey chose to ignore Bergman's perjury at trial, see Count XII-p.95 of Memo. This illegal activity at Elbery's trial by Bergman was not just perjury, but was intended to scuttle the little defense Attorney Louis P. Aloise presented, via witness John Hayes. Moe Bergman got caught lying under oath during the voire dire of Elbery's trial and Toomey looked the other way.

Facial Grimaces - Toomey's main concern.

Instead of exposing the perjury, conspiracy and other mob activities at Elbery's trial, Judge Dan Toomey worried about Elbery's facial grimaces. See Memo Count XVI-p.110. For Toomey to direct his energy during Elbery's trial to facial grimaces that were caused by the prosecutor, Mike Ball, being allowed to stick his finger in Elbery's face while Toomey was watching can only lead to one conclusion, Toomey was a knowing co-conspirator to violate Elbery's Constitutional Rights and illegally convict him.

Major Discrepancies at Trial went unnoticed by Toomey?

The trial of Michael Elbery at Worcester Superior Court on 6-28-93 resulted from the activities of Elbery, King, and the other friends of King's, who exited the Winner's Circle Bar on to Shrewsbury St. causing a fight/chase scenario allegedly ending in King being seriously injured. This whole incident that took place on 9-29-92 resulting in Elbery serving a 10-year prison sentence, only took, at most, a little over a minute. This time element was acknowledged by all who testified.

Yet, nobody, the prosecution witnesses or defense witnesses (all friends of King's accept Elbery), testified to even a remotely close set of facts regarding the exiting of the bar and chase fight (p. 105 and p.39 of Memo) on Shrewsbury St. or about how King received what turned out to be a minor bump in the eye, p. 13 of the Memo.

no police investigation

Even Toomey was taken off guard in his conspiratorial role when the prosecutor, Ball, claimed there was no investigation, see p. 18 of the Memo, (of course there was an investigation, how else would Toomey and Aloise know what was written by Dr. Arinella via King's medical report Ex. A-2).

Isn't it reasonable that a Superior Court Judge would be alerted, as result of these trial discrepancies and claimed lack of investigation, that there was something wrong with the case before him and that he should be all the more circumspect regarding the conduct of the state actors and the evidence at trial. This all compounded by the fact that a few months prior to trial there was No Probable Cause Found on the same case by a District judge.

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LAW- The Judge's role during a trial according to the U.S. Constitution

A judge has the power and duty to exercise control over the proceedings of his court to the extent necessary to insure each litigant a Fair Trial, and to maintain the order and dignity of the Judicial Process. The trial Judge's power and duty extends to the regulation of order and behavior in the courtroom. He cannot permit the processes of the court to be grossly abused. C.J.S. Vol. 48A p. 643.

It is the function of the trial judge to see that justice is accomplished, and it is within the powers and duties of a judge to take proper action in order to enforce the law and to promote justice. id. at 642.

Judges "have an inherent power to do whatever may be done under the general principles of jurisprudence to insure to the citizen a fair trial. Crocker v. Justices of the Superior Court, 208 Mass. 162, 179, 94 N.E. 369 (1911), Beit v. Probate and Family Court 385 Mass. 854, 434 N.E. 2d. 642, 646. Further, "every judge must exercise his inherent powers as necessary to secure the full and effective administration of justice". id.

Rule 38 of the M.R.C.P. require a judge to ensure the integrity of the trial process. Com. v. Trapp 396 Mass. 202, 485 N.E. 2d. 162, 170.

Toomey's orchestration of conspiracy to frame Elbery, at trial, was one big violation of Due Process under the Fourteenth Amendment of the U.S. Constitution.

A trial before an unbiased and competent Judge is essential to Due Process under the U.S. Constitution's Fourteenth Amendment. Johnson v. Miss. ('71) 403 U.S. 212, 29 L Ed. 2d 423, 91 S.Ct. 1778.

 

Conclusion - Judge Dan Toomey was the pivot man in the conspiracy to falsely convict and imprison Elbery with perjury and falsified evidence.

The above highlights Judge Dan Toomey's conspiracy to maliciously prosecute defendant, Michael Elbery, at Worcester Superior Court on 6-28-93. The endless and detailed evidence of Toomey's conspiracy is contained in the initial Memo to Elbery's Motion for New Trial and the attached transcripts, as indicated. Without Judge DanToomey's key role in that conspiracy to violate Elbery's Constitutional Rights, it would have been impossible to accomplish.

As in the above law, Toomey did not do what he was, as a matter of law, required to do. Toomey's illegal conduct, as summarized and highlighted in this amended claim, violated Elbery's Constitutional Rights under the Fourteenth and Sixth Amendment. This would be Elbery's right to Due Process and a Fair Trial. As a result of Toomey's illegalities/conspiracy during the trial of 93-0135 at Worcester Superior Ct., a new trial is required.

 

 

Michael Elbery

168 Faifield St.

Needham, Mass. 02492

781-444-7324

7-24-99

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