COMMONWEALTH OF MASSACHUSETTS

Worcester Superior Court# 93 -0135

Commonwealth

Michael Elbery

DEFENDANT'S AFFIDAVITS IN SUPPORT OF MOTION FOR NEW TRIAL UNDER RULE 30 OF THE MASS RULES CRIMINAL PROCEDURE

I am the defendant/moveant Michael Elbery; I live at 168 Fairfield St., Needham, Mass.

1. On or about June of 1994 Attorney Louis P. Aloise told me over the phone that he never sort or had any medical experts review King's medical report of 9-29-92 pertaining to King's superficial eye injury.

2. I was never allowed to review King's medical records pertaining to his eye injury on 9-29-92 prior to my trial.

2a. I demanded prior to trial that Aloise interview and subpoena the medical people who treated King on 9-29-92 for his alleged injury. Aloise told me it was not necessary and that when you subpoena hospital employees no one shows up and there is nothing you can do about. At trial and at the first scheduled probable cause hearing of 11-30-92 there was absolutely nothing wrong with King's eye.

3. I saw Christina Mann at a very close distance of two or three feet on several occasions before trial. She had no marks or scares on her face or in particular around her eye.

4. I spoke to my defense attorney, Louis P. Aloise, after Mann testified at trial and Aloise agreed Mann had no marks on her face or scarring that should have occurred as a result of her testimony and others testimonies that her face was cut by glass.

5. I witnessed in the hallway of Worcester Superior Court Christina Mann, prosecution witness, state to ADA Mike Ball that she did not want testify and that she was going home. Whereupon, ADA Mike Ball threatened to arrest her if she left. I then saw alleged victim, Thomas King, take Mann aside and talk to her for about one hour.

6. Alleged victim-witness, Thomas King, boasted to me in the Worcester Superior Court hallway prior to trial that he was being paid regular police wages for testifying against me. King then mocked me because I had to pay an attorney to defend against his charges.

7. At lunch break, half way through Mann's testimony, I demanded that Louis P. Aloise obtain Mann's medical records that were allegedly at U Mass. hospital. Louis P. Aloise refused to obtain through subpoena or any other method Mann's medical records. I demanded two more times the same medical records during that conversation, while pointing out to Aloise that Mann should have scares on her face and that her testimony was a lie. Aloise replied "no" each time to my demand. We actually got into a loud verbal argument about this issue, but Aloise never obtained those records.

8. Attorney Louis P. Aloise told me prior to the first scheduled probable cause hearing regarding this case at 11-30-92, that ADA Michael Salloum informed him that Thomas King and Jeff Schlener admitted that I never used a bottle as a weapon and that I never assaulted anyone with a bottle.

9. I asked attorney Aloise how it was possible that I was indicted for assault with a deadly weapon (a broken beer bottle) when they admitted at that the probable cause hearing and prior to the probable cause hearing that I never did such a thing and that it never happened. I repeatedly urged attorney Aloise to dismiss that particular grand jury indictment due to the evidence at the probable cause hearing, via the prosecution witnesses' testimonies, that no such incident occurred with a broken beer bottle.

10. During trial I repeatedly demanded that attorney Aloise ask Tom King if in fact he admitted to ADA Michael Salloum prior to the probable cause hearing and again during probable cause testimony that there was no such incident as Elbery using a broken bottle to assault anyone in the bar.

11. Attorney Louis P. Aloise informed me after my conviction on the above docketed action, that in fact, Thomas King had been demoted from his job at the Westborough police department resulting in a rank of patrolman from a previous rank of detective.

12. Months prior to the trial attorney Aloise informed me that he heard rumors that King had been demoted as a result of the incident on 9-29-92 and resultant adverse publicity to King via the Worcester T&G article, exhibit G, after this plaintiff's probable cause hearing victory in Worcester District Court regarding the above docketed action. I called the Westborough police department shortly after that and they informed me that King was no longer a detective but was a patrolman.

13. I tried to obtain the documentation Aloise has on this case including subpoenaed documentation from the Westborough police department relating to King's demotion. Attorney Louis Aloise refused to cooperate and denied there was such documentation. Aloise would not produce the subpoena he sent to the Westborough Police Department relating to the above docketed action.

14. I urged attorney Aloise to motion to dismiss the grand jury indictments against me and in particular the indictment of assault with a deadly weapon (a broken beer bottle). Attorney Aloise assured me that he would motion to dismiss the charge of assault with a deadly weapon.

14a. I insisted that Aloise should motion to dismiss the indictments, as I knew they were obtained by perjury.

15. Attorney Aloise informed me just, before trial started, that the judge's clerk, John O'Connor, was father to prosecution witness Dennis O'Connor. I insisted that it was not fair that O'Connor should be clerk during the trial and demanded that he be removed. Attorney Aloise informed me that there was nothing that could be done and O'Connor must remain.

16. I badgered Aloise into cross examining Schlener about his exiting the bar, since Aloise and I had discussed Jeff Schlener's testimony about exiting the bar in time to see contact between King and myself as impossible. Aloise did not want to cross-examine Jeff Schlener about this issue.

17. I tried to force Aloise to get King to admit that he was drinking with two prison guards at the Winner's Circle and that he knew these prison guards. This is what King testified to at the probable cause hearing. Aloise and I had numerous conversations regarding the prison guards and Aloise knew that the prison guards drinking with King inside the bar also drove him to the hospital. Aloise allowed King to lie on this issue.

18. I requested that Aloise subpoena my booking video taken 9-29-92 at the Worcester Police Dept., he never did this. It would have revealed the amount of physical damage to me prior to any medical treatment and cleanup.

19. I asked Aloise to subpoena all my medical records as a result of various treatments I received to my neck and head over the three weeks following the incident on 9-29-92. Aloise declined.

20. On the first day of trial in front of at least two prosecution witnesses two court officers told the witnesses that I was going to sue everyone, including them, who had participated in beating me. Attorney Aloise was standing beside me and witnessed this event. The court officers were Brian (white, fat) and another officer who is known to me by face and has shot carrot colored red hair and a steroid induced physique. The witnesses hearing this were Traskiewicz, De Pasquale and O'Connor. I spoke to Aloise by phone about this on or about October of 1995 and he recalled the incident but declined to give me an affidavit. He did say, relating to this incident, that if put on the witness stand he would not lie.

21. During the last day of trial, after a juror excused himself, Judge Toomey asked the defense if it wanted a mistrial. I wanted a mistrial and told Aloise this repeatedly. Aloise replied, "no mistrial" each time. Finally, Aloise told me that if I took a mistrial he would charge me all over again, whereupon, I told him I could not afford to pay any more for justice.

22. After being convicted and released from jail on a stay of sentence pending appeal I had an appointment at Aloise's office on approximately 7-20-93. I spoke to Aloise's new secretary known to me as Sharon. Sharon let me know that her opinion was that I was the guilty party and deserved conviction for bothering Jeff Schlener. I inquired, to my shock, if she knew Jeff Schlener, the instigator of the bar room incident. Sharon replied, "you mean the blond haired bartender? He is married to my best friend Linda De Ricco". She revealed to me that she and Linda were best friends at Shrewsbury high and that Jeff and Linda Schlener were very nice people and her closest acquaintances. Sharon expressed great anger towards me.

23. On the last day of trial Aloise told me he would not call my witness, Dr. Stephen Sawyer, to the witness stand. Aloise said it was Friday before a three-day Fourth of July weekend and Sawyer's testimony would force the trial into the weekend. Aloise told me the jurors would be mad at me for causing this to happen. Aloise went to his newly purchased Beach home that weekend and into the next week as per subsequent conversation with Aloise. I demanded that Aloise call Sawyer as a witness.

24. After the first and during the second and third day of trial I questioned Aloise many times about his lack of cross-examination of prosecution witnesses. I insisted that the proof of my innocence was in our hands via the probable cause transcript. I argued that the witnesses who testified at the probable cause hearing were saying something totally different, and that their trial testimony was a lie, obviously coached and tailored, and inconsistent with what was said at the probable cause hearing. I insisted that Aloise, via his cross-examination, expose this.

25. Prosecution witness Dennis O'Connor's testimony under cross-examination was stopped and the jury was dismissed early at about 3 p.m. The next morning Aloise told me that O'Connor's father, the court clerk-John O'Connor, hates me because he feels I made a fool of his kid. Aloise was visibly upset by this situation. Aloise's cross-examination continued that next a.m. with a different character and O'Connor's son escaped further embarrassment, as he had looked totally unraveled and foolish the day before while under cross-examination.

26. My witness, Hayes, was not seen by me until last day of trial. I never saw him before including the preceding Thursday, as opposed to what ADA Moe Bergman said under oath at the trial voire dire.

27. After conviction Aloise told me that I should base my appeal on his ineffective assistance of counsel, that he would get me a "free lawyer" because he had a position with a state bureau that appoints attorney's for appeals in Massachusetts. I told him I wanted a Boston attorney and he replied, "no Boston attorneys".

28. In July of 1993 I contacted and hired attorney Richard Egbert of Boston for a related case of intimidation of the witness of this mayhem case. In December of 1993 Egbert was hostile towards me and returned a substantial fee to me in full, no longer wanting to represent me. Egbert told me that he spoke to Aloise. Egbert said that Aloise told him I caused trouble.

29. I was, in March of 1994, represented by a new attorney, who told me that he was relaying a message, "that my appeal on the mayhem case was very trying to the Worcester community and that if I dropped my appeal the jail time I was sentenced to would be dropped". I refused, stating that I was guilty of no crime and that I was framed and railroaded and this offer just reinforces what I already know and makes my crusade for justice all the more strong. Two days later the same attorney again contacted me asking if I would reconsider dropping my appeal of the mayhem conviction. I replied in the negative.

30. On 9-7-93 attorney Louis Aloise sent me a letter stating he would no longer represent me, yet it was not until March of 1994 that he took his name off my appeal thus still representing me per the record until March 1994. This was a conflict of interest and was harmful to me. My appellate lawyer could not prepare my appeal until Aloise removed his name from my case with the appeals court. Aloise only removed his name from my appeal after I contacted the Board of Bar Overseers and contacted judge Toomey.

31. At the sentencing hearing, regarding the above docketed case, Aloise advised me to "apologize to the court for what you had done". I refused to do this and told Aloise that I would never admit to a crime that I didn't commit. Even before the Massachusetts Parole Board I refused to admit to any guilt regarding the above docketed action. Aloise said if you don't this judge is going to give you 10 years in Prison.

32. During ADA Ball's opening statement at trial he walked up to where I was seated and within one foot of me pointed his finger in my face accusing made of waving a broken beer bottle at the entire bar and cutting very badly a girl. Aloise was sitting next to me in the court room and did nothing to stop this. This occurred in front of the jury and was highly prejudicial.

33. ADA Mike Ball, TR 356-15, slandered me by saying that witness Christina Mann left without him saying goodbye to her because she was afraid of the defendant. I never spoke to that girl and was inside the courtroom during and long after she left.

34. Attorney Aloise, in his office while speaking to me, said, "this is the police officer (Tom King) that protects my wife and children". Aloise said this after I said something should be done about this guy King and he should not be a cop anymore.

35. I saw Moe Bergman in the courtroom everyday during my trial and the sentencing hearing.

36. I brought my ripped and bloody clothes that I had on that 9-29-92 as evidence to present to the jury but Aloise refused to present that evidence, Aloise said the jury would not like that evidence.

37. Aloise wanted me to take a lie detector test so the Worcester D.A.'s Office could be sure I was telling the truth. Aloise said the test would be administered by the Mass. State Police and would cost over $1,000 to me. I responded that I would take a lie detector test regarding the incident on 9-29-92 if King took the test. Aloise responded King is a cop and would not have to take a lie detector. I also demanded that Schlener, the bartender, should take a lie detector because he was the one that initially gave the false police report to the cops, see Ex. D.

38. After I was convicted on 7-2-93 Aloise told me he wanted nothing to do with my case and that I was on my own for the sentencing hearing. I told Aloise I should not be in jail for trying to defend myself while escaping from a gang of drunks. I told Aloise he was paid through the sentencing hearing and that he'd better get me out of jail, as I was innocent.

39. After Aloise filed the 25-b-2 motion I called his office repeatedly for over a month and Aloise told me he was in contact with Judge-Toomey and that Toomey had not made a decision on the motion. After that I contacted the clerk's office at Worcester Superior Court on a monthly basis and the motion was not denied until March of 1994.

40. At the probable cause hearing regarding this case I examined the pictures King claimed were of his eye injury and I told Aloise that they looked phony. I told Aloise that the red color of the pictures depicting King's eye injury looked artificial or not natural. I demanded that tests should be done on those pictures before trial in order to insure that they were genuine. Aloise said there was no tests that he knew of that could be done and that the judge would not go along with it.

41. ADA Mike Ball, during his opening statement on the first day of trial stuck his finger within a few inches of my face while accusing me of various crimes including digging out and gouging out King's eye. This was the first few minutes of the trial and the jury was given this disrespectful image of me. I dropped my pen and squirmed in my chair as there was nothing I could do. I knew that the judge and the court personnel were waiting for any opportunity to make an issue out of nothing. I asked Louie Aloise why he did not do something to help me avoid such embarrassment in front of the jury. Aloise told me that Ball is allowed to stick his finger within a few inches of my face.

42. Aloise told me that Alice Arsenault was a girl who worked for him during the previous summer. Aloise said that Alice got caught selling drugs while she on duty working for his law firm but Aloise got her off with impunity. Aloise told me he could easily get in touch with her. Aloise said he knew her and he spoke fondly of her.

43. Aloise told me he did not contact either Wynne or Arsenault.

44. I told Aloise years prior to the trial of the mayhem charges that I could not stand the bar anymore and wanted to do something else for a living. I told Aloise the reason I bought the bar was of a lack of any other opportunity in the Worcester area and that I had to stay in the Worcester area because my wife had a job a public school teacher. She as a result could not leave or she would have lost her tenure and related pay.

Signed on this day, June 28 1999, under the pains and penalties of perjury.