CLAIM IX

Clerk-John O'Connor Caused a Biased Proceeding-Continued Failure by Aloise.

According to the S. J. C.'s rule 3:12 Canon 4E Clerk-Magistrate should disqualify himself from serving in an adjudicative capacity in a proceeding in which The Clerk-Magistrate's impartiality might reasonably be questioned. As defined by the S. J. C., a Clerk-magistrate is broadly defined to mean a position of clerk, register, recorder, etc., see S. J. C. rule 3: 12 Canon 1.

At the trial of this instant case, every day of trial, there was a clerk present in the courtroom named John O'Connor. His position was covered as defined above. His son was a prosecution witness, Dennis O'Connor. Dennis O'Connor also was a participant in the beating of the defendant, Michael Elbery, T. R. 756-22; 757-13. As many testimonies of this instant case would indicate Dennis O'Connor was a member of the " gang of six" who chased and beat Elbery on the street. Dennis O'Connor testified that he used physical force against Elbery, T. R. -756-22; 757-13.

Combined with the fact that there was no legal right for O'Connor and his gang to chase and beat Elbery (a crime) with the fact that Elbery claimed he was beaten by a gang on the street, O'Connor being a member of that gang, Clerk John O'Connor had a bias in the outcome of the proceedings against Elbery. Clerk and father, John O'Connor, was not impartial.

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As per law directed by the S. J. C. John O'Connor had no business being present at Elbery’s trial.

Elbery had a right to an impartial trial void of clerk John O'Connor's biased influence over the Judge and proceedings. O'Connor had an obvious bias toward his son who could have been prosecuted and found guilty of assault and assault and battery with a dangerous weapon, as Elbery testified at trial that O'Connor was one of the gang of seven that attacked Elbery on the street resulting in his hospitalization, T.R.- 1115-15.

Had all the evidence and truth of this case been presented, as the law requires, Dennis O'Connor would have been the object of both criminal and civil actions.

The presence of clerk, John O'Connor, was an additional injustice that the Court inflicted upon Michael Elbery at trial. Due Process under the Fourteenth Amendment requires that a trial be impartial and O’ Connor’s presence during Elbery’s trial violated that Constitutional Right, Ward v. Village of Monroeville 409 U.S. 57, 61, 34 L. Ed 2d. 267, 93 S. Ct. 80, 83-84. See aff. #25.

Aloise-further ineffective in his assistance of counsel

Prior to trial defense attorney Louis P. Aloise informed his client, Elbery, that John O'Connor was the father of one of his assailants or Dennis O'Connor, see affidavit #15. Elbery protested instinctively knowing this should not be in an American courtroom and demanded John O'Connor be removed/replaced as courtroom clerk. Attorney Aloise stated "there was nothing that could be done and clerk O'Connor must remain" see affidavit #15.

Attorney Aloise should have had O'Connor removed, instead, he knowingly allowed an approved of clerk John O'Connor being present during the entire trial causing the trial to be biased. This deficiency by Aloise caused prejudice to his client Elbery, as a verdict from a bias trial is not reliable, is untrustworthy, and there is a reasonable probability had the trial not been biased the verdict may have been different. This deficiency by Aloise in this claim IX resulted in a trial that was not fair. This is the definition of constitutional ineffective assistance of counsel. Strickland vs. Washington 466 U.S. 668, 684, & 694-696, 80 L. Ed 2d 674, 691, & 698-699 104 S. Ct.2052.