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 Govenor 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 and not be elligible to file a Federal Habeus Corpus. In December of 2001, 3 months before Elbery finished his 10 year state prison sentence, Judge Hillman found that there was absolutely nothing in Elbery's 114 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, perjury, and concealment of evidence did not exist.
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 in year 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 proceding down the street prior to any conduct that the prosecution claimed constituted an assault. Hillman states in his decision that the alleged victim witness, off-duty Worcester 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.
Hillman also had a difficult time white washing another overpowering and unescapable fact that permerated the trial evidence and is in the trial transcripts and that is that Elbery was pursured down the street by not just King, but at least 5 other men that were his friends. 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 but he did not act alone, but in a gang of six. So what did Hillman say in his decision? Hillman states that the jury could have reasonably found that King caught up with Elbery and an altercation ensued. Very good Judge Hillman, you probably would have been better not addressing those background facts in his decision, just as you did so many of the major claims and evidence Elbery presented in his 114 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).
Judge Hillman fills several of his first pages of his decision with the usually law and legal rules. A Motion for New Trial is filed/controlled by Rule 30b of the Massachusetts Rules of Criminal Procedure. The rule 30b and its related case law simply give you guidelines (law) when a criminal defendant 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 appeals and a Motion for New Trial. The trick for Hillman and the Judiciary is that if they give the give the usual legal razzle dazzle, as Hillman does concerning Elbery's right to appeal, 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 false evidence. Not even Stalin would claim 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 all other laws in 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 of lies he's entitled to a new trial. In Elbery's case, he exposes a lot of lies 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 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 finally gets around to pretending to address Elbery's grounds (reasons/facts and evidence why he got railroaded) for a New Trial on page 9 of his 17 page double space 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.
Specifics Judge Hillman Avoids Elbery's Best Documented Grounds for a New Trial
The Probable Cause Witnesses all Changed their Testimonies to Aid the Conti's Prosecution Convict Michael Elbery
One of Elbery's perfect grounds for a New Trial was Claim #5 of his Motion for New Trial which documented that the witnesses at the Probable Cause Hearing totally changed their testimony 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 claim is a comparison between the perfect documentation and that is the Probable Cause Hearing Transcript and the Trial Transcript which was produced by the Court Reporter. 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 he ignored it 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 bad guy and that Elbery was trying to avoid problems with this problem 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 his account of facts. Elbery did not testify at the Probable Cause Hearing.
That exculpatory evidence by the Probable Cause Hearing witnesses for Elbery contributed to Judge Milton Raphelson finding there was no Probable Cause to even arrest Michael Elbery for any of the charges he ended up getting covicted off and getting a 10 State Prison Sentence.
Who can blame Judge Hillman for avoided that claim #5 of Elbery's Motion for New Trial? It would have been an impossible chore requiring him and his staff far too expenditure of resources. Hey they couldn't ask Conti's D.A.'s Office for too much help fabricating Hillman's decision they kept getting caught lying. It's o.k. in their circle to lie it's getting caught that is the crime.
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
Elbery the first 4 claims of his Motion for New Trial showing that the jury never was allowed to know what was on King's medical record. King went to the hospital and U. Mass Hospital produced 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. The record was submitted at trial as an exhibit but that was it. No witness was asked what was on King's medical record and the jury never knew that all King's claims of gruemsome eye injuries at trial never happened according to the two medical people that produced his medical report.
Hillman had a duty under the law, assuming his objective was justice as per Rule 30b, to address and analyze Elbery's first four claims of his 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 writing was illegible and even if it was legible it contained medical terminology that a layman (non-physician) would understand. The best the jury would have done with this medical exhibit was to have been confused.
The King's medical report was deciphered by the office of the physician who wrote it and it disclosed, totally to King's trial testimony, irrefutable evidence that King admitted his injury was caused when a "chased a bar patron down the street and caught a finger in the eye". This issue/grounds is way more than enough to cause a new trial and show an 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/perjury that Elbery gouged his eye repeatedly and that his eye was bleeding, cut, lacerated and was leaking vitreous fluid. Th prosecutor would have had no case for any claim of "attempted mayhem" that caused Elbery 10 years.
All Judge Hillman says concerning the documented irrefutable evidence that shows via a medical record that King lied 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 Conti'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 Aloise and no where at trial is there evidence presented that King's injury was as it was, merely, a superficial abrasion. But Hillman does point out that Aloise knew that King's injury was only a "superficiall abrasion"; hence Hillman knows that Louis P. Aloise knew King was lying about his eye injury and that Aloise concealed it 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. Pretty good Hillman, you base your "decision" on Aloise's summary of evidence that did not exist be it ever so brief, "superficial abrasion".
Hillman refuses to Address The Girl's fabricated injury
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 Elbery was never charged with any crime concerning this fabridThated 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 Christianna Mann at the Probable Cause Heaing.
So Hillman used a convenient tactic and dismissed the issue, Count ?? of Elbery's Motion for New Trial, saying because there were no criminal charges against Elbery concerning the prosecutions evidence about Manns' injuries then he he did not have to address it. Wrong Again Hillman, Elbery's Motion for New Trial documents that all the cut face and blood etc., to this underage girl at the bar was more false or fabricated evidence that the prosecution dreamt up aftet the Probable Cause Hearing and it was highly prejudicial evidence that caused Elbery's trial to be nothing more than a shanghi job and yes Aloise and Ball the prosecutor both knew it was all lies and so conspired.
Hillman, craftily, (at least he thinks its crafty) claims that no citizen's arrest no intro his medical records clothes ...... says those are Elbery's claims for new trial - Wrong, Hillman read the Elbery's Motion for New Trial there is even a table of contents to help you out. Then he simply takes the easy way out and says there is no evidence of any any of these claims. Hillman you have done nothing. You are required to state why there is no evidence, but please explain why there is no evidence of the grounds in Elbery's Motion for New Trial not your hodge podge.
No Mention in Hillman's Decision of Elbery raising Prosecutorial Misconduct
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 instance 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.