Only in Worcester, Massachusetts Does "No Probable Cause" Result in 10 years in Prison.
Michael Elbery was originally charged on 9-29-92 with being a disorderly person, a 6 month maximum charge. The evidence according to one of the reporting Worcester Police Officers - Perma was that Elbery was making noise under the weight of several men who had Elbery pinned down on Shrewsbury St. outside the Winner's Circle Bar.
Those charges were quickly changed by the next morning when Elbery was arraigned on 4 charges totaling a potential of 40 years of prison time. The most serious charge was "mayhem" (taking out King's eye) which carries 20 years in state prison.
Elbery was arraigned at about 9:00am that 9-29-92 before Superior Court Judge Herbert Travers. Travers read the amended police report and asked his clerk in open court, "Bob is this true, a police officer losing his eye?" The clerk quickly responded, "No Judge". Travers set bail at a ridiculous $500.00 for charges that could put a man in jail for most of his adult life. Elbery asked Travers in open court, why if there was no evidence of mayhem was he being charged with the crime. Elbery was quickly silenced and told to grateful for bail.
The barroom scuffle (actually 100 yards up the street from the bar) case against Michael Elbery went to a Probable Cause hearing at Worcester District Court on 1-20-1993. Initially, "off the record", at that probable Cause Hearing of 1-20-92, before the stenographer was allowed to type, Judge Milton Raphaelson asked the Assistant D.A., Todd Mathieson, where the police officer with the missing eye was to justify the count of "mayhem". Mathieson sheepishly responded that the charge of mayhem was being reduced to "attempted mayhem". Judge Raphaelson asked what the weapon was and Mathieson responded Elbery' s thumb. Raphelson stated that there were only 2 convictions of record for "attempted mayhem" in Massachusetts Judicial history and both involved weapons. Judge Raphaelson pointed out that this case against Elbery was unusual because there was no weapon involved.
The finding at that the Probable Cause Hearing by District Judge Milton Raphaelson, after a 5 hour hearing and no testimony by Elbery, was that there was No Probable Cause to even arrest Michael Elbery, or "No Probable Cause". Also see Probable Cause Disposition/Docket.
SEE PROBABLE CAUSE HEARING TRANSCRIPT.
The evidence at the Probable Cause Hearing was outstanding because all the prosecution witnesses testified that Elbery wasn't the cause of the barroom scuffle, but that it was the bartender, Jeff Schlener, who started calling Michael Elbery names and insulting Elbery. They testified it was off-duty and out-of-jurisdiction Westboro police detective, Tom King, that started the fight with Elbery in the bar. There was no "girl" to testify that her face was cut and lacerated and stitched by a physician. Why would there be? there never were any charges bought against Elbery for such allegations as cutting the face of a girl in the bar that night. The prosecution fabricated the "girl" getting her face cut after the Probable Cause Hearing resulted in Elbery being vindicated of the their lies.
See Motion for New Trial Count IV for the newly produced, at trial, cut girl.
Judge Milton Raphaelson's decision made headlines in the Worcester T & G the next day, 1-21-93. The headlines read, "Judge Raps Cop" and for good reason, as Raphelson told King never to come in his courtroom again "with those kind of lies". Raphaelson had the stenographer stop recording, so his admonishment to Westboro Police Officer - Tom King was never recorded, however there was the T & G reporter in the courtroom, hence the headlines. The newspaper reporter was present because the charge initially against Elbery included a count of "mayhem" (not "attempted mayhem") by taking out King's eyeball (King being an off-duty police officer from the fair town of Westboro) on the street outside the bar. Of course, King admitted to his physician that he only caught a finger in the eye, causing, per medical record, a "red eye". See also Dr. Hull's letter.
King would be demoted shortly after that Probable Cause Hearing and be condemned to the status of entry level police patrolman on the Westboro Police Dept. King had been on the Westboro Police Dept. for 20 years. King would be the first of the Co-conspirators to have a heart attack about a year after the trial of 1993 and get a full pension retirement. Judge Dan Toomey would suffer a heart attach on 9-29-99 from which he would never recover. Jeff Schlener, the bartender, who would years later own "Jeff's Place" a bar in Worcester, Mass. on Shrewsbury St., would have a massive heart attack but live to suffer his living days. Jeff, a well known and confessed life long drug addict and alcoholic, biggest suffering is that he can no longer imbibe his chemicals or face certain death. Such a dilemma is almost as bad as Aloise's who must now work for a living as a local yokel attorney and never enjoy the power, perks and privileges of a judge. Jeff Schlener, a Harvard University grad of 1971, is a well liked individual in Worcester, Mass., wouldn't you know it.
The Worcester D.A.'s Office had an answer to the "No Probable Cause" problem. They simply rid themselves of all those pesty prosecution witnesses that testified at the Probable Cause Hearing that Elbery was not the trouble and cause of problems in the Winner's Circle Bar that 9-29-92 and indicted Michael Elbery on 4 criminal charges on the sole testimony of the Westboro Detective - Tom King. This is an impairment of the Grand Jury. See Motion New Trial - Count VIII-p.64.
SEE GRAND JURY TRANSCRIPT/MINUTES
Yes, in Massachusetts it is legally possible for the D.A.'s Office to circumvent a judge's "No Probable Cause Decision" by moving the criminal charges up to Superior Court Jurisdiction. Only in Massachusetts. But that had only been done once before according to Massachusetts case law and that was because years later the police found new evidence in the case. Only in Worcester, Mass. do they have their own courthouse to deliberately lie to the Grand Jury.
Judge Raphaelson asked Attorney Aloise at the end of the Probable Cause Hearing if he wanted him (Raphaelson) to take jurisdiction of the charges at the district court level causing the probable cause hearing to be a trial on the charges and resulting in the charges being a verdict of not guilty. Aloise, representing Elbery, declined Judge Raphaelson's offer. Instead, Elbery would, with the help of Aloise, be illegally indicted, railroaded at a Kangaroo Trial and do a ten year prison sentence.
Elbery would later get convicted on the "attempted mayhem" charge, via lies and fabricated evidence. At the sentencing hearing, his defense attorney - Louis P. Aloise would advise Elbery to "say your sorry and Judge Toomey will give you less prison time, otherwise Toomey is going to give you the maximum prison sentence of 10 years." Elbery refused saying, "he had done nothing illegal that 9-29-92 and would not admit to such by apologizing to anyone". Aloise's plan was simple, if Elbery apologized to get a smaller sentence then that would be an "admission of guilt" and Attorney Louis P. Aloise and his co-conspirators could rest easy.
Yet, Michael Elbery would end up doing a 10 year prison sentence for the same charges that a Mass. Judge found there to be No Probable Cause. Only in Worcester, Mass. can you get railroaded in a Kangaroo Court like Elbery got.