Judge Timothy "hop along" Hillman's Decision (Avoidance) of Elbery's Motion for New Trial
Hillman Could Be Relied On - His Decision on Elbery's Motion for New Trial Gets him Promotions
Evidently, Judge Timothy Hillman had no idea his work would be exposed to the World Wide Internet. Here is Hillman's poor excuse for legal work via a decision on Michael Elbery's Motion for New Trial that got 3 prosecutors fired, 1 judge killed, and 7 Blackballings, and two heart attacks. Go to page 9 of Judge Hillman's 17 page Decision before he discusses any of the claims on Elbery's Motion for New Trial.
The trial judge reviews a criminal defendant's Motion for New Trial under Rule 30b of the M.R.C.P. and that would have been Judge Dan Toomey. But Toomey got upset when Michael Elbery presented Governor Celluccci irrefutable evidence that Judge Dan Toomey allowed his Worcester, Mass. Superior Court to be used to frame Elbery in 1993.Toomey recused himself and gave the job of reviewing Elbery's Motion for New Trial to Judge Timothy Hillman. Hillman is a well known "staunch advocate" and "old boy" who can be relied on to take up the cause when needed.
Judge Hillman sat on Elbery's Motion for New Trial for years in order that Elbery would be out of prison before exhausting all his state post-conviction remedies and not be eligible to file a Federal Habeas Corpus. In December of 2001, 3 months before Elbery finished a 10 year state prison sentence, Judge Hillman found that there was absolutely "no evidence" in Elbery's 115 page Motion for New Trial that would indicate anything but a fair trial. Judge Hillman found that Elbery's multitude of documented claims of conspiracy, prosecutorial perjury, concealment of evidence, and dozens of Violations of his U.S. Constitutional Rights did not exist.
Judge Hillman's Background Facts per p. 2-4 of his Decision
Judge Hillman begins his decision with his interpretation of the facts of the underlying incident that occurred at a barroom in Worcester, Mass. and which caused Elbery to be convicted of a crime called "attempted mayhem" and sentenced to 10 years in a State Prison. Even Hillman seems to have a hard time "white washing" the facts as are disclosed by a reading of the trial transcripts. Hillman had a difficult time getting around the undisputed fact at trial (per the trial transcripts) that Michael Elbery exited the barroom and was proceeding down the street prior to any conduct that the prosecution claimed constituted an assault charge, and then, their "victim", Tom King, pursued Elbery. Hillman's solution, p. 3 of his decision, to this problematic set of undisputed facts at the trial was to state in his decision that the alleged victim witness, off-duty Westboro police officer - Tom King, yelled "stop and wait for the police" and that, "King did not see Elbery put his hands in pocket to reach for his car keys". Sorry Hillman, this does not negate the fact that, as uncontested by any of the witnesses at trial, Elbery left the bar on his own free will and was on his way down the street before King pursued him and before any conduct of claimed assault and "attempted mayhem" by the Conte's Worcester D.A.'s Office. Hillman avoids the Probable Cause Transcript citing that Elbery raised/provided in his Motion for New Trial, Count X- Prior Inconsistent Statements p. 86, that disclosed King never testified that he said, "stop and wait for the police". Hillman could also have referred to the Probable Cause Hearing Transcript as provided by Michael Elbery with his Motion for New Trial and confirmed that King never said "stop wait for the police". And most importantly, there is no trial testimony of Tom King, per Trial Transcript, that he said, "stop and wait for the police".
Hillman also had a difficult time "white washing" another overpowering and inescapable fact that permeated the trial evidence, as per the trial transcripts, and that is that Elbery was pursued down the street by not just King, but at least 5 other men that were all "friends of King's". Hillman could not escape the fact that King not only pursued Elbery down the street prior to any of the claimed criminal assault took place that resulted in criminal charges against Michael Elbery, but King did not act alone, but in a "gang of six". Hillman per page 3 of his decision states that Michael Elbery was being pursued by King and five other men (2 bouncers and 3 other men), thus confirming Elbery's claim at trial that he was facing 6 men not just Big Fat King. Very good Judge Hillman, you confirm that King acted with his "gang of six" in pursuing Elbery down the street.
So what did Hillman find per his decision on page 3? Hillman concluded, after confirming that the trial transcripts disclosed irrefutable evidence that Michael Elbery left the bar and then was pursued by six men, that the jury could have reasonably found that "King caught up with Elbery and an altercation ensued". Hillman, you probably would have been better off not addressing those background facts in your decision, just as you avoided most of the major claims and evidentiary grounds Elbery presented in his 115 page Motion for New Trial. But Hillman had no idea he would be publicly scrutinized on the World Wide Free Internet. Hillman's decision was a "bag job" and the decision of denial was a result of prior agreement ( continuation of the conspiracy to maliciously prosecute).
Here the issue and irrefutable truth that Hillman wanted to avoid in his "Background Facts" was that King did not act alone; in fact at trial Michael Elbery testified that fat boy, Tom King, was at the back of the pack of 6 and piled on Elbery after he was defending himself against the gang. This after Michael Elbery had exited the bar on his own free will and prior to any conduct that John Conte's Worcester D.A.'s Office would claim constituted assault.
Law is a Tool Used to Confuse the American Citizens - The Citizenry Beg to Know the law that Governs their Society
Judge Hillman fills several of his first pages of his decision with the usual law and legal rules that pertain to a Motion for New Trial filed in Massachusetts. A Motion for New Trial is filed/controlled by Rule 30b of the Massachusetts Rules of Criminal Procedure. Rule 30b and its related case law simply give you guidelines (procedural and substantive law) to a criminal defendant who decides he has a right under the law to a new trial because the first trial which convicted him was, at minimum, unfair. Rule 30b is remote law and not understood by even most attorney's of the bar. Why? Because most attorneys don't do criminal law and even the small percentage that do practice criminal law don't do post-conviction remedies such as "Direct Appeals" and a "Motion for New Trial". The trick for Hillman and the Judiciary is that if they give the usual "legal razzle dazzle", as Hillman does, in pages 4-9 of his decision, concerning Elbery's right to a Motion for New Trial and the "waiver rule" he/they can escape the consequences for their biased decisions because the citizenry can't understand what Hillman is saying and assume the judge must be right. The citizenry sure as hell doesn't have the luxury of taking off a few years to learn their own laws.
But Hillman and the Judiciary can't escape simple concepts of justice which has been, and is officially the rules of all Western Civilizations; and that is the government can't convict a citizen on lies and fabricated and concealed evidence. Not even Stalin would have claimed he was convicting the citizenry on lies. The point is the citizen can avoid Judge Hillman's "legal razzle dazzle" and just keep in mind that Rule 30b is the same as laws in other societies on this Earth - the government can't convict a citizen with lies. And so, if a criminal defendant in any state in this here U.S.A. can show he was convicted by lies he's entitled to a new trial. In Elbery's case, he exposes a lot of lies, See Motion for New Trial, that caused his conviction for a crime called "attempted mayhem". Not only that, but what Elbery shows happened in Worcester Superior Court in 1993 is not supposed to happen in the U.S.A., but it did happen.
Michael Elbery has already shown via his Motion for New Trial that he got framed and that his defense attorney, Louis P. Aloise in conspiracy with Judge Dan Toomey and former prosecutor Mike Ball conspired to frame him, which is also termed a Conspiracy to Maliciously Prosecute, via his Motion for New Trial that was filed in the Worcester Superior Court. But Elbery will now show the World why Judge Hillman and his "decision" are just more of the same conspiracy and a Cover-up of that Conspiracy to Maliciously Prosecute Michael Elbery with a 10 year sentence for "attempted mayhem".
Judge Hillman Avoids Elbery's Best Documented Grounds for a New Trial
Judge Hillman finally gets around to pretending to address Elbery's grounds (reasons/facts and evidence why he got railroaded and as a matter of law is due a new trial) for a New Trial on page 9 of his 17 page double spaced decision. Hillman wanders off at about page 11 of his decision and fills the last 7 page with vagaries without even as much as giving the reader the source of what he is claiming are the grounds Elbery raised via his Motion for New Trial.
The Probable Cause Witnesses all Changed their Testimonies to Aid John Conte's Worcester D.A.'s Office in Convicting Michael Elbery - Judge Hillman refuses to Address Count #10 of Elbery's Motion for New Trial.
One of Elbery's perfect grounds for a New Trial was Claim #10 of his Motion for New Trial which documented that the witnesses at the Probable Cause Hearing totally changed their testimonies at the trial that condemned Elbery to 10 years in a prison. Hillman wanted nothing to do with that documented case of injustice. Can't blame him, because there is nothing he or any other Worcester Kangaroo can do about it. That motion claim #10 is a comparison between the perfect documentation that is the Probable Cause Hearing Transcript and the Trial Transcript which were produced by the Court Reporter's at those two respective legal proceedings. What is in those two sets of testimonies could not be changed by Hillman - there was nothing he could falsify or twist and malign, so Hillman ignored it. Hillman treated that motion Count #10, as if Elbery never went to all the work of disclosing all the changes in testimony by the witnesses, who testified favorably for Elbery at the Probable Cause Hearing, and then testified to the contrary at the trial. At the Probable Cause Hearing the witnesses, all "friends of King", gave testimonial evidence that showed King was the troublemaker and that Elbery was trying to avoid problems with this barroom loudmouth-King from the other side of the bar who couldn't mind his own business. The testimony at the Probable Cause Hearing was almost totally in Elbery's favor and coincided with Elbery's account of facts. Elbery did not testify at the Probable Cause Hearing.
Elbery's high paid defense counsel, Attorney Louis P. Aloise, refused to alert the jury that the witnesses where changing their testimonies and A.D.A. Mike Ball sure was not going to tell the jury his prosecution witnesses were lying. Under the law Ball had a duty to stop this perjury - Ball even admitted at trial that he read the Probable Cause transcripts.
That exculpatory evidence by the Probable Cause Hearing witnesses for Elbery contributed to Judge Milton Raphaelson finding there was "No Probable Cause" to even arrest Michael Elbery for any of the charges he ended up getting convicted of and getting a 10 year State Prison Sentence. Raphaelson would, per his decision at the Probable Cause Hearing, state, "that you had no right to pursue Michael Elbery down the street - he had left the bar and had committed no felony". Raphaelson stated, per his decision, "you can't chase someone down the street and then claim they committed a crime when they defended themselves".
Who can blame Judge Hillman for avoiding that claim #10 of Elbery's Motion for New Trial? It would have been an impossible chore requiring him and his staff an excessive expenditure of resources. Hey, they couldn't ask Conte's D.A.'s Office for too much help fabricating Hillman's decision because D.A. John Conte's lackeys kept getting caught lying. It's o.k. in their circle to lie, it's getting caught that is unforgivable.
Hillman handled Count #10 of Elbery's Motion for New Trial the smart way - Judge Hillman acted like motion claim #10 did not exist and he ignored it.
What caused the witnesses to change their testimony at trial and conceal the truth that was disclosed, via testimony at the Probable Cause Hearing? It was learned at trial that A.D.A. Mike Ball reviewed the Probable Cause testimonies with various witnesses and "prepared those same witnesses for trial testimony".
Hillman refuses to address King's medical record which discloses "he caught a finger in the eye" and his injury was no more than a "bloodshot eye"
The first 3 claims of Michael Elbery's Motion for New Trial documented that the jury never was allowed to know what was on alleged King's medical record. The prosecution's alleged victim-witness, Tom King, went to U. Mass Hospital after the incident on the street and that caused a medical record. That medical record would have killed the prosecution's case against Elbery, if Elbery had another defense attorney besides co-conspirator, Attorney Louis P. Aloise. King's medical record was submitted at trial as an exhibit after Aloise's alleged cross-examination of King, but that was it. No witness was asked what was on King's medical record and there was absolutely no testimony at trial regarding the content and real cause and injuries to alleged victim Tom King. The jury never knew that all King's claims of gruesome eye injuries at trial never happened according to the two medical people that produced/wrote his medical report. Strange, but true to form, King's medical record was not submitted as an exhibit by the prosecutor until after Aloise cross-examined King (see Vol. II of the trial transcripts p. 454). Before it was submitted the 3 lawyers had a side bar conference (not heard by the jury or witnesses) about the content of King medical report. When A.D.A. Mike Ball filed it as exhibit #18 at the end of that side bar conference, Judge Dan Toomey commented "for what it is worth, o.k.". Toomey knew exactly what was on the medical record and that it disclosed that the prosecution's trial testimony about King's cause and extent of injury was perjury.
Hillman had a duty under the law, assuming his objective was justice, as per Rule 30b, to address and analyze Elbery's first three claims of Michael Elbery's Motion for New Trial that showed that the trial that convicted him was illegal because the jury never knew what King's medical report said. As per Elbery's Motion for New Trial, the physician's writing was illegible and even if it was legible it contained medical terminology that a layman (non-physician) would not understand. The best the jury would have done with this medical exhibit was to have been confused.
The physician and registered nurse who looked at King for about 20 minutes at U. Mass. Hospital were never subpoenaed by Aloise or the prosecution. There were absolutely no medical witnesses at trial. There was no witness testimony regarding the content of King's medical record.
After the trial, Elbery hired an appellate attorney who had King's medical record deciphered by the authoring physician's office. And then a physician was hired to analyze the same medical record which, according to Dr. Hull, simply disclosed that King's injury was a "red eye" or "blood shot eye" from "catching a finger in the eye".
King's medical report disclosed, via instant interview with the two treating medical people (physician and nurse) that King admitted his injury was caused when he "chased a bar patron down the street and caught a finger in the eye" (see page 3 of the investigators report @ arrow). This issue/grounds is way more than enough to cause a new trial and show a miscarriage of justice in any Western Society. Hey, what if the prosecutor made King tell the jury the truth and admit he "caught a finger in the eye" and that the treating physician documented per King's medical report that King had "red eye ball"! Instead of allowing King to testify/perjure that Elbery thumb gouged his eye repeatedly and that his eye was bleeding, cut, lacerated and was leaking vitreous fluid and needed stitches (King used the term "sutures" for stitches"). The prosecutor would have had no case for any claim of "attempted mayhem" that caused Elbery 10 years.
But if you don't believe it, then here is the testimony that Michael Elbery got out of alleged victim, King's, treating physician-Dr. Dennis Arinella. This testimony was obtained during trial of Elbery's famous Sklut federal case in May of 2002. The same case that caused Chief Justice Wolf to resign from that post. The Sklut trial and related transcript was not produced until after Hillman's decision in December of 2001, but the information/evidence is the same, per Arinella's Federal testimony in May of 2002, as the evidence that is contained in the first 3 counts of Elbery's Motion for New Trial, concerning Dr. Arinella's treatment of King and King's real injury and cause of injury.
All Judge Hillman says concerning the documented irrefutable evidence that shows, via a medical record, that King lied at trial about his eye injury and what caused it, is that Attorney Louis P. Aloise, in his closing statement, noted King's injury was a "superficial abrasion". Sorry again Hillman, not only did the evidence on King's medical record get concealed from the jury by both Aloise and D.A. John Conte's former prosecutor, Michael Ball, knowingly with trial Judge's knowledge, but that statement ("superficial abrasion") by Aloise would do, at best, confuse the jury because nowhere at trial is there evidence presented that King's injury was merely a "superficial abrasion". But Hillman, consequently, does a "good job" pointing out that Aloise knew that King's injury was only a "superficial abrasion"; hence Hillman knows that Louis P. Aloise was aware that King was lying about his eye injury and that Aloise helped the prosecution conceal this exculpatory evidence from the jury. As Hillman knows, an attorney's closing statement is not evidence at trial; it is a summary of the evidence at trial. Not very good Hillman, you base your "decision" on Aloise's summary of evidence at trial that did not exist.
Hillman refuses to Address "The Girl's" fabricated injury - Count IV of the Motion for New Trial
Hillman did a quick side step in order to avoid a pile of well crafted prosecutorial lies that Aloise advocated at trial surrounding an underage "girl" the prosecution needed to fabricate in order to create an alleged reason for King and his gang pursing Elbery down the street. The problem for Hillman was that Elbery was never charged with any crime concerning this fabrication of a "girl" being cut by glass. This makes it tuff enough for poor old Hillman, but to make things worse there was none of this evidence about gory facial cutting of Christiana Mann at the Probable Cause Hearing.
So Hillman conveniently skipped the issue, Count IV of Elbery's Motion for New Trial, saying, per p. 11 of his decision, because there were no criminal charges against Elbery concerning the prosecutions evidence about Mann's' injuries, then he did not have to address it. Wrong Again Hillman, Elbery's Motion for New Trial documents that all the trial testimony about a cut face and blood etc., to this underage girl at the bar was more false or fabricated evidence that the prosecution dreamt up after the Probable Cause Hearing and it was highly prejudicial evidence that caused Elbery's trial to be nothing more than Fraud, and yes Aloise, and Ball the prosecutor, both knew it was all lies and so conspired.
Worcester County D.A. John Conte's prosecutor - A.D.A. Mike Ball used those fabricated Mann injuries, as newly fabricated reason for King and his "gang of six" pursuing Elbery down the street and assaulting him, after Ball's fabricated Bottle Assault Charge failed him because it was dismissed at trial
No Mention in Hillman's Decision of Elbery raising Prosecutorial Misconduct - Protects D.A. John Conte
Nowhere does Hillman mention that Elbery's Motion for New Trial is saturated with documented claims of Prosecutorial Misconduct ( the prosecution knowingly presented false evidence to the jury). It was not a few isolated instances of fabricated evidence and Hillman wants to, via his "decision," hide even a mention of this criminal conduct by Co-conspirator former A.D.A. Michael Ball hoping it will not be resurrected and further shame the Worcester D.A.'s Office of John Conte.
Admitted Fictional "Assault Dangerous Weapon" Charge (Broken Beer Bottle) - Resurrected by Judge Hillman.
On page 10 of his decision, Hillman decides to resurrect the the "Assault with a Dangerous Weapon" charge that was dismissed at trial. In Count VI of his Motion for New Trial, Elbery points out that the alleged victim-witness, Tom King, and his buddy the bartender, Schlener, admitted that Elbery never assaulted anyone, including them, with a beer bottle or any weapon. At the Probable Cause Hearing Schlener admits he lied to the cops about Elbery using a beer bottle as a weapon. Per Count VI of the motion, when Elbery got indicted on that same charge he complained to his big money attorney, Louis P. Aloise. Aloise agreed there should be no indictment for the "Assault Dangerous Weapon" because the alleged victims already testified they made it up (fabricated the alleged criminal activity). But Aloise made no attempt to get that indictment for "Assault Dangerous Weapon" dismissed - Lou did more high priced lying.
In Count VI of his Motion for New Trial, Elbery shows that this knowingly false evidence presented at trial by the prosecution and with the cooperation of Elbery's defense attorney, Aloise, caused the trial to be infected with prejudicial perjury requiring the need for a new trial. Even though the charge was finally dismissed at trial, the jury was contaminated by lying witness, Tom King, initially claiming that Elbery assaulted him with a broken beer bottle. No other trial witness, but King, testified that Elbery used any weapon, including a broken beer bottle.
Hillman's answer to this legal abomination is to cutely state in his decision that "King did testify that Elbery used a broken beer bottle" (see page 10 - line 6 ). And then, in the next sentence, Hillman goes on to quote King's response/testimony to A.D.A. Todd Mathieson's questions at the Probable Cause Hearing concerning the fabricated bottle assault. This judge doesn't even know what judicial proceeding he is reviewing! What a dope. Reading Judge Hillman's decision you would never know that charge was dismissed, but rather Judge Hillman's one paragraph that addresses Count VI would leave you believing there was valid testimony at trial by the prosecution's victim, King, to support that fabricated charge that was dismissed at trial.
Hillman was right about Lou Aloise highlighting the phony evidence about the "Bottle Assault" in his Closing Statement that had already been dismissed by the trial judge, see page 10 end of 2cnd paragraph of Hillman decision.
Judge Hillman does the hop - a jumpy decision
In pages 11 through 16 of his decision, Judge Timothy Hillman hops through the 115 pages of Elbery's Motion for New Trial and takes the liberty of collecting "words" and a few "phrases" from the various 18 counts in the motion. Hillman then addresses these words and phrases as if they were each entire grounds for claims in Elbery's eighteen count Motion for New Trial. The result of Hillman's hopping while collecting "words" and "phases" is in Hillman's decision as follows:
p. 10 Aloise failed to admit Elbery's medical records regarding his injuries
p.11 Elbery alleges that Aloise failed to object to certain pieces of evidence
p. 12 Elbery alleges Aloise failed to object to prosecutor Mike Ball expressing his own opinion and misstating facts and testimony in his Opening and Closing Statements
p. 12 Elbery states Aloise failed to object to inappropriate instructions or to absent instructions
p. 13 - Aloise's secretary is best friends with prosecution witness - Jeff Schlener the bartender and that Aloise should have stopped his secretary from passing confidential information to the prosecution through Schlener's wife.
p.13 - Aloise wanted Elbery to take a lie detector test
p.13 - Aloise kept reinforcing the prosecution's argument ( theory of case and account of facts)
p. 13 Elbery contends Aloise used certain incorrect terms which confused the jury to believe Aloise was adopting the prosecution's case such as "Am I right"
After each of these "words" and "phases" that Hillman and his clerks picked out of Elbery's Motion for New Trial, they fill up the paper with law that they misapplied.
Then without wasting any time with legal analysis, Hillman just keeps repeating that there in "no evidence" of any of these collection of "words" and "phrases" that Hillman picks out of Elbery's 115 page Motion for New Trial.
All Hillman does on page 13 (see 2d paragraph) of his decision regarding his cursory collection of terms, words and phrases (not the claims raised by Michael Elbery in his Motion for New Trial) Hillman picked out from Elbery' Motion for New Trial is to say that statements Aloise made in his "closing argument" countered the prosecution's version of facts. Hey, Hillman, the defense attorney is supposed to present evidence at trial; Aloise did nothing at trial to prove to the jury that Michael Elbery acted in self-defense, that the prosecution was lying about the cause and extent of King's eye injury and that as per Elbery's 18 motion claims the whole trial was a lying railroad job that could not have happened without Attorney Louis P. Aloise's knowing participation and planned agreement with prosecutor Mike Ball and Judge Dan Toomey. Judge Hillman does not want you to know that the "Closing Argument" is not evidence at trial and that the statements Hillman points out that Aloise made at "closing" were worthless because he was commenting on evidence that he never presented to the jury in the defense of his client.
Hillman, there are over a Eighteen valid counts of Unconstitutional Violations that would, each, cause a new trial that you passed on/avoided. Instead, Judge Hillman wants to highlight isolated facts like "Schlener's wife was best friends with Aloise's secretary" and that "Aloise wanted Michael Elbery to pay for a police lie detector test", as if these were by themselves claims Elbery raised for a New Trial. No Hillman avoided all Elbery's Motion claims and threw together a "hodge podge" of terms from Elbery's 115 page motion to feebly attempt to avoid the truth and Cover - Up the Conspiracy to Maliciously Prosecute.
Judge Hillman finds it Embarrassing that District Attorney - John Conte lied to the Grand Jury
Hillman would have better served the taxpayers (the same taxpayers that he thinks work for him) by reviewing the Count VIII - Grand Jury in Elbery's Motion for New Trial and confirming that D.A. John Conte's Office deliberately lied to the Grand Jury in order to get the indictments against Michael Elbery. Worcester D.A. John Conte got the indictments against Michael Elbery by concealing all the witnesses and exculpatory evidence that Conte knew was presented at the Probable Cause Hearing.
Judge Timothy Hillman had over a dozen incidents of the Prosecution, via D.A. John Conte's acting trial prosecutor - A.D.A. Mike Ball, falsifying evidence, sponsoring perjury, concealing evidence, and knowingly using false evidence presented to him in Michael Elbery's Motion for New Trial. Each occurrence of prosecutorial illegal conduct, by itself, per Elbery's Motion for New Trial requires, under U.S. Constitutional Law, a new trial. But Judge Timothy Hillman refused, in his decision, to even acknowledge that Michael Elbery raised over a dozen instances of Prosecutorial Misconduct in his Motion for New Trial, let alone discuss and analyze the merits of the undisputable documented claims of the Prosecution's illegalities.