Calvin Harris - Perjury / False Accusation

Harris, Calvin; murder; NRE: perjury/false accusation, prosecutor misconduct, police officer misconduct, misconduct that is not withholding evidence, knowingly permitting perjury

[865:386]; 3rd Dept. 10/16/08; county court's grant of motion to vacate (not in Westlaw) (following first trial) affirmed

"Within hours after the verdict was rendered, Kevin Tubbs contacted defense counsel and indicated that he possessed information that he believed was relevant to the victim's disappearance. Specifically, Tubbs claimed that he had seen the victim and another male individual at the end of the Harris driveway at approximately 5:30 A.M. on September 12, 2001, which was several hours after the [prosecution] had theorized at trial that [Harris] had murdered the victim and disposed of her body." [Tubbs' parents also provided corroborating evidence.]

[928:114]; 3rd Dept. 7/28/11; conviction following second trial affirmed, but one dissent

"[W]e reject [Harris'] argument that his conviction is not supported by legally sufficient evidence and is against the weight of the evidence."

[from dissent :] "Although it is a fundamental tenet of our jurisprudence that all defendants are presumed innocent until proven guilty, after reviewing the entirety of the record in this case, it seems that, from September 12, 2001 forward, [Harris] was presumed guilty by the police, the [DA], and Harris' family and friends and that, at trial, the burden of proof was shifted to [Harris] to prove his innocence...Although I believe a proper remedy here would be a reversal and dismissal of the indictment due to the legal insufficiency of the evidence, considering both the many pretrial and trial errors that deprived [Harris] of his right to a fair trial, at the very least, [he] should receive a new trial."

[Virtually all of this was also true of Nickel's trial -- particularly the 'burden-shifting.']

[The above judge, Malone, Jr., was the very same lone dissenter in Riback (see Torncello section). As was true in that case, if not for Justice Malone, the NYS Court of Appeals might well have never heard Harris' appeal -- and then reversed his conviction. (See just below.)]

[954:777]; Court of Appeals 10/18/02; second conviction reversed, due to juror and jury instruction issues

2019 WL 3890994; N.D.N.Y. 8/19/19; civil suit

"Harris...filed this civil rights action seeking compensatory and punitive damages for injuries he sustained over the course of a fifteen-year period, beginning on September 11, 2001 when his estranged wife went missing.

"In September 2001, [Calvin] and his wife Michele Harris...were nearing resolution of divorce proceedings...Though separated, the two continued to share the family home to care for their four children...On September 11, 2001, Michele did not return home; her car was found parked on the street at the end of the long driveway that led to the family's home...She was never seen again.

"Police searched the family home as well as the extensive wooded property surrounding the home...A week later, police discovered droplets of blood on a door, several small bloodstains on a rug, and trace amounts in the garage, together constituting less than ten drops*...Over the next five years, police conducted numerous searches and interviews but found no evidence that implicated Harris in his wife's disappearance."

[* Such a small amount of blood would appear to be consistent with routine household accidents, such as sustaining a paper cut, wood splinter, or gash from a knife.]

"Despite a lack of evidence, in 2005 [civil suit] defendant [DA] Gerald Keene made the decision to indict Harris. [Civil] defendants thereafter fabricated and falsified evidence, falsely arrested, and maliciously prosecuted him...To accomplish this, [DA] Keene conspired with defendant law enforcement officers as well as defendant Barbara Thayer, who worked for the Harris family cleaning their home and caring for their children...Defendants also failed to investigate other individuals, including Michele's boyfriend at the time.

"The case, strung together with fabricated evidence and false testimony full of misconduct, was presented to a grand jury...The first indictment was dismissed by a court based upon the prosecutor's conduct of intentionally presenting inadmissible evidence to the grand jury...[The DA] re-presented the case to a different grand jury and the case proceeded to trial in May 2007.

"After a lengthy trial, Harris was found guilty of murder in the second degree...He appealed the conviction and...an apellate court affirmed the jury's verdict...Harris sought leave to appeal to the New York Court of Appeals which granted leave and on October 18, 2012, his conviction was reversed.

"The case was tried for a third time. This trial resulted in a mistrial on May 15, 2015.

"The case was tried four a fourth time [ bench (non-jury) trial this time]. At the conclusion...on May 24, 2016, Harris was acquitted..."

--- "Attorneys Leave Client's Case to Judge in Fourth Murder Trial," Joel Stashenko, New York Law Journal, 6/18/16.

"In remarks made immediately after his acquittal, Harris was angry and defiant.

"'It's hard for people to undersand if they haven't gone through it,' he said. 'But from my standpoint personally, I think one of the great hypocrises in our country is our criminal justice system. There is nothing fair about it. There is no rules and nothing matters in that courtroom.'"

[ Nickel feels very much the same.]

from Records and Briefs:

"[P]olice conducted numerous foot, canine, and helicopter searches involving sonar, radar, heat-sensing, and night-vision equipment...They followed and tracked [Harris'] children. They enlisted the help of all of Michele Harris's friends, family, and acquaintances to try to get incriminating information about [Harris]. And yet, during the years that passed, they obtained no evidence implicating [Harris] in Michele Harris's disappearance."

"Nevertheless, in 2005, [DA] Gerald Keene, whose wife had been one of Michele Harris's divorce attorneys in her matrimonial action against [Harris], made the decision to indict [him]."

[6] "[The authorities] found in Barbara Thayer ...a willing and able participant who was only too happy to join the ranks of law enforcement...Thayer had worked for the Harris family cleaning the home and caring for the children...The Investigator[s] and Prosecutor[s] ...used and groomed Thayer...She was the witness who could and would help them frame Cal Harris; she, in turn, willfully collaborated with law enforcement to create the tale of Cal Harris as the cold-blooded killer."

"When it became apparent that Thayer's initial and truthful statements to law enforcement were harmful to their case, the...Investigators and [DA] manipulated her to change her story. For instance, according to a journal Thayer kept, she had made an entry indicating that she began to clean out Michele's belongings from the family home while Cal was outside playing with the children...This statement was not particularly helpful, so Thayer's story was changed. Instead, she lied...and claimed that Cal, being heartless and showing no remorse, began disposing of Michele's belongings and discarding sentimental marital keepsakes... [7] Thayer even held a tag sale to publicly display all of the family keepsakes she claimed Cal was discarding...It was clear that the [authorities] were controlling her actions as [New York State Police Investigator Susan] Mulvey conveniently came to the tag sale and gained possession of a commemorative wedding plate. This plate became evidence used against Cal in an attempt to show that he lacked remorse and was carelessly discarding marital mementos."

"A significant piece of exculpatory evidence was the telephone record of a call made from the Harris home to Michele's cell phone on the morning she disappeared. Cal Harris had called Michele's cell phone looking for her because he had to get to work and she was not home, as she should have been to watch the children. Knowing that this was significant -- if Cal had truly killed Michele, he would know where she was and would not have been calling her or looking for her -- Thayer jumped in at [the authorities'] behest and lied -- stating that she made the call from the family home...Previously, Thayer had unequivocally denied ever making a telephone call from the Harris home that morning. And, she made this specific denial in a statement documented by law enforcement."

[8] "The...whole case against Cal Harris hinged on the blood. But to make that relevant, they had to prove that (1) the blood was deposited as a result of homicidal force; (2) the blood was recent; and (3) the blood was Michele's. They knew that they could not prove any of these things, and some were affirmatively contradicted by other proof available to [them]. So they concealed the exculpatory evidence from the defense, and fabricated evidence to support their theory."

"Months prior to Michele's disappearance, she had cut her hand outside the garage of the family home. The location and small quantity of blood was consistent with her walking through the garage and into the kitchen to clean and bandage her hand. This incident was reported to her divorce attorney, Betty Keene, the wife of [DA Gerald] Keene. It was incorporated into a family court petition that she prepared, which was filed with the Court. And it was known by...Gerald Keene, who was given the entire matrimonial file by Michele's divorce attorneys...Gerald Keene subsequently claimed this file was 'privileged' when subpoenaed by the defense."

"Moreover, during a meeting with blood spatter expert Henry Lee, [DA Gerald] Keene questioned Lee about whether the blood could have been deposited from a cut finger...Lee stated that it could... [9] Notably, throughout the litigation, [these civil] Defendants fought hard to prevent the defense from obtaining the matrimonial file, to prevent them from obtaining the exculpatory 48 Hours [CBS TV] outtakes, and to prevent the jury from learning of the cut hand...They proceeded on a theory that the blood must have been the product of Mr. Harris bludgeoning his wife, although this was contrary to the information imparted to them by their expert and by the very small quantity of blood, which was inconsistent with a bludgeoning."

from NRE synopsis (by Maurice Possley):

"On the morning of September 12, 2001, as the U.S. reeled in shock in the aftermath of the 911 terrorist attacks, 35-year-old Michele Harris was reported missing by her divorce attorney after she failed to return home from her waitressing job at Lefty's, a bar in Waverly..."

"Harris was in the midst of a bitter divorce proceeding with her wealthy 40-year-old husband, Calvin Harris -- trial was scheduled for October 2001 -- but they both were still living in the family home, in separate quarters, in Tioga County.

"Michele's van, with the keys still inside, was found parked at the end of the quarter-mile-long drive that led to the famly's home. Harris did not report his wife missing when he arose, but instead called the babysitter for their four children to come early so he could leave for work. When she arrived, she reported that Michele's van was parked at the end of the driveway. Harris said Michele had gone to visit a friend in New York City, even though virtually all access to the city had been shut down in the wake of the terrorist attacks. They moved the van up to the garage and Harris went to work at one of the car dealerships his family owned.

"Later that morning, the babysitter called a friend of Michele's, asking if he knew where Michele was. The friend, unaware that Michele had not come home, telephoned Michele's divorce attorney, Robert Miller, who called Lefty's and confirmed she had left the bar at the end of her shift sometime around 10 p.m.

"After a call to Michele's cellphone failed to locate her, Miller reported her missing to police. Michele's boyfriend, 23-year-old Kevin Earley, who had recently rented an apartment nearby and was hoping to marry Michele, would later tell police that she stopped by his residence for a short visit and then left for home before midnight.

"Michele's body was never found, despite aerial and ground searches of the nearly 300-acre estate where the family lived as well as searches by sonar and divers in Empire Lake, which abutted the Harris property.

"Calvin Harris consented to searches of the family home and blood spatter was found in the garage. Evidence technicians would later testify they found blood on the tile floor of a kitchen alcove as well as on door moldings and the wall of the garage.

"A tracking device was secretly installed on Harris's vehicle in the hope that he would lead them to Michele's body, but to no avail.

"In September 2005, four years after the disappearance, a Tioga County grand jury indicted Harris on a charge of second-degree murder.

"Prior to trial, defense lawyers filed a motion seeking to dismiss the indictment for insufficient evidence and to review the transcripts of the testimony before the grand jury. Judge Vincent Sgueglia denied that motion in June 2006.

"Trial was scheduled for September 11, 2006 -- the fifth anniversary of Michele's disappearance. On July 27, 2006, the prosecution turned over 12,000 pages of documents relating to the testimony of prospective prosecution witnesses and the transcript of the grand jury proceedings. About a month later -- after the trial had been postponed -- the defense filed a renewed motion to dismiss the indictment, the prosecution filed a response in opposition and both sides argued their positions in September 2006.

"On Friday, December 15, 2006, Judge Sgueglia summoned the defense and prosecution lawyers to his chambers and advised them he was going to grant the motion to dismiss the indictment. That meeting was never recorded by a court reporter, did not appear in the record and the lawyers eventually disputed what exactly was said. It was not disputed that Judge Sgueglia said he was dismissing the indictment, although no decision was signed or filed on that day.

"The following Monday, December 18, 2006, before any decision could be filed, the prosecution filed a motion to disqualify Judge Sgueglia from the case in an apparent effort to avoid the decision Sgueglia had telegraphed three days earlier. The motion said there was 'an appearance of impropriety' by Sgueglia.

"The judge denied the allegation, but recused himself and on December 19, 2006, Judge Martin Smith was assigned to take over the case. Five weeks later, in January 2007, Judge Smith, after reviewing the case and rehearing arguments, dismissed the indictment.

"'Twenty-seven witnesses testified before this grand jury,' the judge said. 'Most of those witnesses were permitted, improperly, to offer their opinions as to the state of defendant's marriage (and) Michele Harris' intent with regard to the divorce. They gave personal opinions concerning the defendant, his wife, his wife's boyfriend, the defendant's net worth, what type of employer the defendant was/is, his character, whether he had or did not have a propensity to commit the alleged crime, whether he was/is a 'good' father or a good husband, and in contrast, whether Michele Harris was a good mother, or a good wife. One witness gave what amounted to his opinion as to whether the defendant committed the crime charged.'

"The judge recited a laundry list of witnesses who testified to hearsay statements made by Michele Harris as well as hearsay statements about comments made by witnesses who did not testify before the grand jury.

"'The amount of hearsay evidence offered by itself was overwhelming,' the judge concluded.

"The judge also found that the prosecution made numerous improper comments to the grand jurors.

"For example, the judge noted that the prosecutor allowed one witness to testify that he had taken a polygraph test before appearing in the grand jury (and ostensibly passed or else would not have appeared to testify). Then, when a grand juror asked whether Harris had also taken a polygraph, the prosecutor said the witness could not properly answer that question but that there was a 'story' that the prosecutor would tell the jurors when the case was over.

"'This alone, in this Court's view, is an error of such proportion as to require dismissal of the indictment by itself, even if no other errors occurred in the presentation,' Judge Smith said. Moreover, at one point when the grand jury foreperson asked the prosecutor whether or not the grand jury was 'hearing the entire story' in the case, the prosecutor said, '[Y]ou are hearing what I think is a sufficient case to indict the defendant. Are there more witnesses? Yes, there are more witnesses.'

"The judge concluded, 'This error as well. . .warrants dismissal of the indictment by itself and without regard to the other errors in the record. The evidence presented to this grand jury was entirely circumstantial, both as to whether or not Michele Harris is in fact dead, and if so, whether or not this defendant intentionally caused her death.'

"Despite the dismissal, the judge allowed the prosecution to seek another indictment with a different grand jury, which is exactly what the prosecution did a month later.

"Harris went on trial in Tioga County...in May of 2007. Among the witnesses were Harris's sisters-in-law, whom Harris and his four children visited on the weekend after Michele disappeared. Francine and Mary Jo Harris testified that Michele told them in March 2001 that Harris threatened her, saying he would not need a gun to kill her, that police would never find her body and that he would never be arrested.

"The prosecution presented evidence of the discovery of the blood, which a forensic analyst said was 'medium-velocity blood spatter' in drops about the size of a pinhead. DNA tests showed the blood could have come from Michele or any of her biological relatives.

"The prosecution also presented testimony about the couple's bitter divorce proceeding and that Michele had rejected an offer to settle the divorce for $740,000. The divorce trial was scheduled for the month after the date of her disappearance.

"On June 6, 2007, the jury convicted Harris of second-degree murder. Before he was sentenced, however, a new witness came forward after learning about the guilty verdict in the news.

"Kevin Tubbs, a farmer, reported that between 5:30 a.m. and 6 a.m. on September 12, 2001 -- the morning Michele's van was found parked at the end of the family driveway -- he was pulling a hay trailer along the road in front of the Harris residence. He said he was moving slowly and noticed two vehicles at the end of the Harris driveway -- an SUV and a pickup truck. Tubbs said a man and a woman, whom he said resembled Michele, were arguing.

"Based on the testimony of Tubbs, Harris's conviction was vacated and he was granted a new trial. Harris remained free on bond while the prosecution appealed.

"The ruling was upheld and Harris went to trial a second time in July 2009. On August 25, 2009, a jury again convicted him of second-degree murder. He was sentenced to 25 years to life in prison.

"The...Appellate Division upheld the conviction, but in October 2012, the New York Court of Appeals set aside the conviction and ordered a new trial. The appeals court held that the trial judge had erred in denying a defense motion to dismiss a prospective juror who said she had a pre-existing opinion about Harris and did not unequivocally say she could set it aside and be fair to both sides. The appeals court also said the judge had failed to give a proper jury instruction regarding certain testimony about Michele's statements that she feared Harris would harm her. Harris was released on $500,000 bail pending a retrial.

"The third trial was moved to Schoharie County, about 150 miles from Tioga County, due to the extensive media attention to the case in Tioga County. Jury selection for the third trial began in January 2015. The trial lasted until May 2015, when a mistrial was declared after the jurors were unable to reach a unanimous verdict.

"For his fourth trial, which began March 31, 2016, Harris chose to have the case heard by a judge without a jury. Judge Richard Mott, who was assigned to the case, granted a defense request -- a request that had been denied at Harris's third trial -- to present evidence suggesting that Michele was killed by two steelworkers who frequented Lefty's, the bar where Michele worked.

"The defense claimed that both men went out for drinks with Michele after she left her boyfriend's apartment on the night she disappeared. A witness testified for the defense that one of the two steelworkers burned bloody clothing on September 12, 2001, the day Michele was reported missing. And one of the steelworkers, according to another witness, later said that Michele was 'buried in concrete.'

"Bruce Barket, Harris's lead defense attorney, presented evidence that had been discovered just months earlier, in January 2016, during an excavation of a burn pit on property previously owned by one of the two steelworkers. The property was about seven miles from the Harris home. The evidence recovered included a partial shoulder strap from a bra, a woman's halter top and other charred fabric that resembled the colors of her waitress unifiorm -- a navy blue gold shirt and khaki shorts.

"On May 24, 2016, Judge Mott acquitted Harris of second-degree murder. In August 2017, Harris fied a federal lawsuit seeking damages. He subsequently also filed a claim for compensation in the New York Court of Claims."

[All emphases added unless otherwise noted.]