Motion for a New Trial for Dr. Calvin Day

Motion for a New Trial

Attorney Michael McCrum filed a Motion For A New Trial on behalf of CALVIN LEE DAY on July19, 2013. Herein are quotations from this public filing.



“Cause No. 2011-CR-3682




































NOW COMES Defendant Calvin Lee Day and files this Motion for New Trial. In support of this motion, Dr. Day shows the Court as follows:




            Circumstances that occurred prior to and during the trial of the instant case make this a particularly harrowing and alarming situation. In a maneuver that could only be calculated for publicity, Bexar County’s First Assistant District Attorney marched with lawyers in tow into a crowded courtroom during the middle of highly publicized trial, and standing in front of the media, waving a sheet of paper, he blatantly and loudly proclaimed that both of the defendant’s attorneys and the attorney representing the State’s key witness were all targets of an ongoing investigation by the Bexar County District Attorney’s Office. The allegation: the three attorneys had illegally tampered with the State’s key witness, the complainant Laura Newcomb. As experienced lawyers, we know such a matter could have and should have been handled much differently. Reminiscent of the days of inquisitions and consistent with recent maneuvers in other cases, our current District Attorney chose a most alarming route.

The obvious conflict of interest hatched, a disturbing consequence of the prosecutor’s dramatic act was the chilling effect such action had on defense counsel’s cross-examination of the State’s key witness and others, as well as defense counsel’s subsequent decisions to not call witnesses or present evidence that would have impeached the State’s key witness and advanced previously-planned defensive themes. Such a consequence inevitably led to the defendant being deprived of his constitutional rights to due process and effective and conflict-free representation.

As Defendant and his defense attorneys labored under the conflict propagated by the prosecution, the situation became even more alarming when the Defendant’s lead attorney announced he was being forced to leave the instant trial to attend and participate in a different trial out of town, resulting in both defense attorneys failing to carry forward the planned defense by failing to call critical witnesses and introduce exhibits that would have impeached the State’s key witness and exonerated the Defendant. Over a week later, lead defense counsel returned. By then, however, the verdict had been returned and the sentencing hearing was near conclusion. The lead attorney’s sudden absence from trial surprised Defendant, as the possibility of concurrent trials and lead counsel’s absence had not been discussed with Defendant prior to trial nor was the option of requesting a continuance or an explanation of the devastating effect such absence would have on the planned trial strategy.

Add to this unfathomable and problematic mix the several acts by the prosecution that were unlawful, evidencing a biased, inappropriate and personal interest in getting Dr. Day convicted. First, there was a mid-trial accidental discovery that the State’s prosecutors had been withholding exculpatory Brady information relative to its key witness, who was in the middle of her testimony. Withholding such information prevented defense counsel from utilizing the information in voir dire, opening statement, cross-examination of Ms. Newcomb’s sister and daughter, and pretrial preparation, exactly the harm that Brady was intended to prevent.  Second, the prosecutor repeatedly referred to Dr. Day as a “rapist” in front of the jury, knowing such was inappropriate, unlawful and misleading. Third, the prosecutor inappropriately questioned its key witness in such a way to solicit an answer from her that she felt “threatened” by “Day’s people”, which cast an inappropriate and prejudicial shadow that was impossible to overcome.

Constitutional issues of due process and effective assistance of conflict-free counsel assume a rare yet heightened and compelling application under the facts of this case. Defendant Calvin Day respectfully submits that a careful analysis and application of these fundamental standards and legal principles is warranted in this unique and extreme situation. 




            It is the cumulative effect of the above-described events that cry out for a new trial. By virtue of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, Article I, §§ 10 and 19 of the Texas Constitution, Rule 21 of the Texas Rules of Appellate Procedure, and common law established within and followed by all courts of the State of Texas, this Motion for New Trial should be granted on any one or all of the following grounds:

       I.            Violation of Right to Conflict-Free Representation

    II.            Violation of Right to Effective Assistance of Counsel

 III.            Violation of Right to Due Process & Due Course of Law based on District Attorney & Prosecutor’s Conflicts of Interest Arising from Personal Relationships with Defendant

  IV.            Violation of Right to Due Process and Due Course of Law for Failure to Timely Disclose Exculpatory Information

     V.            Interest of Justice - A Distinct Basis for New Trial




            On June 3, 2013, Defendant filed a sealed motion to recuse District Attorney Susan Reed and her office due to a prior sexual encounter between Defendant and Ms. Reed. Despite the motion having been filed under seal, Ms. Reed showed up in court on June 4, 2013, physically pointing to the Defendant and loudly proclaiming, “I’ve never been sullied by that!”, called the allegation “trickery”, denied having sex with Dr. Day, and said to him directly, “Bring it on!” Defense counsel pointed out to the court the extremely emotional response by the District Attorney, stressing that the conniption was a perfect example of why the District Attorney and her office should be recused. Of course, the media reported the hyper-dramatic outburst. See Exhibit A, Craig Kapitan, DA Denies Accused Rapist’s One-Night Stand Claim, mySA (June 5, 2013, 2:02 AM), (website reports “angry statement” by Ms. Reed). Despite Defendant’s in-court testimony confirming his previous sexual encounter with Ms. Reed and the fact that he had successfully passed a lie detector test about the sexual encounter, the court denied the motion without placing Ms. Reed under oath or otherwise subjecting her to cross-examination. 

            Relevant to the analysis of whether Ms. Reed suffered an actual conflict of interest as the prosecuting District Attorney and was therefore too personally involved in the instant case, she and her office did several things in the following week that clearly demonstrate how personal the prosecution had become to her. First, on June 5th, a “tweet” was publically posted on Susan Reed’s political “Twitter” account, SusanReed@KeepReed, commenting as to why polygraphs should not be admitted into evidence by claiming they are “Toooo easy to fool”.  Obviously, this was a personal reaction made public by Ms. Reed upon Dr. Day’s assertion of their sexual liaison in Las Vegas. The “tweet” was reported and further publicized by a San Antonio Express News reporter on his Twitter account. Second, Ms. Reed’s office filed three affidavits five (5) days later of persons purportedly in the company of Ms. Reed and Dr. Day the evening the sexual encounter was said to have occurred in Las Vegas; the affidavits being filed apparently to support her assertion that she was in the company of several persons prior to going to her hotel room for the evening and did not leave with Dr. Day. Clearly, the filing of the affidavits was solely for publicity and the personal motivation of Ms. Reed, as the court had already denied the motion for recusal five days earlier and evidentiary submission was legally unnecessary.  The problematic nature of this conflict of interest was exacerbated by the fact that Ms. Reed was a patient of the Defendant, as was her husband prior to his death, and Dr. Day also had as his patients the mother, stepfather and sister of the lead prosecuting trial attorney in the instant case, Ms. Catherine Babbitt. As the record reflects, as a dermatologist, the physical examinations of all of these patients creates sensitive personal issues with these prosecutors where the nature of the instant case involves allegations of Dr. Day’s improper sexual advances with patients. The cumulative aspects of these different relationships with Dr. Day should have led to the recusal of the District Attorney’s office from the instant case.

On June 6, the trial began. On June 7, the complainant Laura Newcomb was called as a witness by the State. Prosecutors instructed her attorney, Andrew Del Cueto, that he could not enter the courtroom during her testimony, as he was a material witness in the case and thus his presence was excluded “under the rule.”

On Monday, June 10, Ms. Newcomb’s direct testimony continued. Through accident, and solely because Ms. Newcomb’s attorney eventually contested the prosecutor’s right to exclude him from the courtroom, Defendant learned for the first time that the State was in possession of exculpatory information relative to the reliability of Ms. Newcomb’s memory and the substance of her testimony. The prosecution had been in possession of this information for at least a week prior to trial. As expressed by defense counsel to this court, the State’s failure to disclose such exculpatory evidence materially affected defense counsel’s voir dire of potential jurors, opening statement, cross-examination of the State’s first two witnesses, and pretrial interviews with witnesses, including persons who had had close personal relationships with Ms. Newcomb. If disclosure had been made prior to trial, it would have materially changed each of those trial elements. The obvious nature of this exculpatory evidence coupled with the District Attorney’s office decision to withhold such information from the defense adds to the evidence of the conflict of interest the District Attorney and her office suffered.

In the late evening of June 10, the San Antonio Express News (the only major print media in the Bexar County area) posted on its website that the memory of Ms. Newcomb (the State’s primary witness) was faulty and that there was a danger she could be prosecuted for perjury. See Exhibit B, Craig Kapitan, Doctor’s Accuser Can’t Remember if She Said “No”, mySA (June 10, 2013, 11:56 PM), (website reports witness “angry statement” by Ms. Reed). Not surprisingly, and consistent with its pattern of conduct in other cases,[1] the District Attorney’s office reacted to the negative media attention by dispatching First Assistant District Attorney Herberg to the courtroom the next morning to interrupt the proceedings and go on the offensive against defense counsel and Ms. Newcomb’s attorney by accusing the three lawyers of engaging in a criminal conspiracy to commit witness tampering. Mr. Herberg marched into the crowded courtroom in front of the media, interrupted the proceedings, and publicly proclaimed that the District Attorney’s office was investigating all three attorneys for witness tampering relative to the State’s witness, Ms. Newcomb. This pattern of misuse of power and the obtuse and inappropriate manner of bringing this sensitive issue to the court’s attention is further evidence of the personal conflict of interest Ms. Reed and her office labored under. As noted above, there are other, more professional and legally prudent ways of handling this type of matter. Instead, the District Attorney and her First Assistant chose to dramatically publicize the accusation and investigation of attorneys in front of the media in order to respond to the previous night’s media report questioning the State’s primary witness.

Once the Brady information was disclosed, prosecutors made the situation even worse by asking Ms. Newcomb in front of the jury whether Ms. Newcomb felt “threatened by the District Attorney’s office”, to which she responded that she felt “threatened by Day’s people,” further delving into the allegation that Dr. Day’s counsel had engaged in witness tampering.[2] Obviously, at that point defense counsel was placed in a conflicting position to effectively cross-examine the witness on the subject that she felt threatened by “Day’s people.”  Defense counsel again moved for mistrial, but the court denied the motion.

Defense counsel immediately recognized the inherent conflict of interest that arose as a result of the prosecutor’s proclamation, indicated to the court that counsel could no longer represent Defendant in the instant case, and requested a mistrial based on them being targets of a criminal investigation as to whether they criminally tampered with the State’s primary witness.  Despite a suggestion to the trial court that a conflict hearing was necessary, the court did not conduct an evidentiary hearing nor did it conduct a conflict hearing. The court did not explain to the Defendant the issues relative to conflict of interest, nor did it inquire as to whether Defendant wanted to proceed with defense counsel as his attorneys. If the court had made the required inquiry of the defendant, Defendant would have requested a recess to retain other counsel to advise him, as he did not realize the legal or factual significance of what had happened to him. The court denied the motion for mistrial, and denied counsel’s request to withdraw. The trial proceeded with the cross-examination of Ms. Newcomb.

Defense counsel failed to aggressively cross-examine Ms. Newcomb as previously planned, and failed to raise many facts in their questioning of her that would have demonstrated the unreliability of Ms. Newcomb’s testimony and her lack of credibility. Defense counsel failed to question Ms. Newcomb about material admissions she had made prior to trial, which contradicted her in-court testimony. Defense counsel’s failure to properly and adequately question her as to material matters was a direct result of their concern of the pending criminal investigation against them. In short, they placed their self-interest above that of Defendant’s constitutional right to fully confront the witness against him.[3]  Defense counsel’s failure to present impeaching information extended to their failure to introduce documentary evidence and other witness’ testimony that would have materially impeached Ms. Newcomb and cause doubt as to the reliability of her testimony, her credibility, and her ulterior motive and bias.

In the middle of trial, Defendant learned that his lead defense attorney, Alan Brown, was being forced to leave Defendant’s trial in order to attend a different trial in Del Rio, Texas. Defendant was not apprised as to the effect this would have on his trial, the options he had in requesting a recess, nor the fact that Mr. Brown’s absence would dramatically and negatively affect the previously planned defensive case. Mr. Brown left trial in the instant case on July 14, and did not return until over a week later. Mr. Brown had announced on the first day of trial in the instant case that he was scheduled to begin a different trial in several weeks; yet this was the first time Defendant had learned of this. Defense counsel had not previously disclosed to Defendant the possibility that lead counsel would be called away in the middle of trial, even though defense counsel knew it was possible. Nor did defense counsel tell Defendant he had the option of deciding whether to file a motion for continuance of the instant case or seek alternative counsel. Defendant would have asked that a motion for continuance be filed, and, if such motion were denied, he would not have agreed to go forward with Messrs. Brown and Norton as his trial counsel knowing that Mr. Brown would leave in the middle of trial. Much preparation had occurred prior to trial anticipating Mr. Brown’s presence through the course of trial, including Mr. Brown interviewing 15 witnesses who he intended to call during trial, including the defendant. With Mr. Brown’s having to leave in the middle of trial, none of these witnesses were called to testify. Mr. Brown ultimately requested a mistrial based on his unavailability during trial. The court denied his motion. Once Mr. Brown returned, both defense counsel again inquired with the court and prosecution as to whether defense counsel were still under criminal investigation. The trial prosecutor said she did not know; defense counsel asked that they verify with their bosses, to which she responded she would check. Defense counsel’s continuing interest in the topic demonstrates the continuing divided interest.

Defendant also discovered after trial that his counsel failed to serve subpoenas on numerous witnesses that they had previously decided to call as witnesses, and otherwise failed to call available witnesses on his behalf.




B. Application of Law to Facts.

            At the moment First Assistant District Attorney Herberg publically announced Defendant’s two defense attorneys were under criminal investigation for tampering with the key witness in the instant case, the defense attorneys were under an actual conflict of interest. Both defense attorneys were then required to make a choice between advancing the Defendant’s interest in a fair trial and advancing their own interests to the detriment of their client's interest. The attorneys’ alleged criminal conduct was inextricably intertwined to the case charged against the Defendant. Defense counsel was significantly hindered in being able to cross-examine the State’s key witness because of the fear of delving into facts that may be the subject of the investigation or drawing answers from the witness that could implicate the attorneys. As a result, the Defendant was denied effective representation as a matter of law.

            Neither defense counsel nor the court conducted the conflict inquiry that is required under law. Defendant did not understand the effect of the prosecutor’s accusations against his counsel, nor the options he had. Defense counsel timely objected to their continued representation of Defendant and requested a mistrial and separate counsel for Defendant. The court not only denied the request, but also failed to conduct the form of hearing required by law. Defendant was deprived of his constitutional right to conflict-free counsel.




B. Application of Law to Facts.

            As described above, defense counsel failed to subpoena witnesses and documents, failed to adequately cross-examine State witnesses, failed to call necessary witnesses in the Defendant’s case in chief, failed to notify Defendant that lead counsel may have to leave in the middle of trial, failed to move for a continuance or provide notice to Defendant that he would have the option to move for continuance, left in the middle of trial, and thus failed to provide the service that had been promised, expected and planned. Experts and others who were to be called as witnesses were not called. Documents were not subpoenaed. Exhibits and other information were not used at trial.

            All of these events were not the result of a calculated strategy by defense counsel. Rather, counsel rendered ineffective assistance of counsel, which prejudiced Defendant. As a result, Defendant was deprived his constitutional right to effective assistance of counsel. .





B. Application of Law to Facts.

The materiality of the late disclosure of Brady material during trial must be considered in the context of the entire record, including the substantial evidence of personal bias and interest by the prosecution. During the course of trial, the prosecution provided defense counsel with information that Ms. Newcomb, the only substantive witness as to the alleged sexual contact, had told several people that she did not know whether she vocalized the words “no”, “stop” or “don’t” to the Defendant prior to or during the alleged sexual contact, and apparently had had difficulty verbally expressing her thoughts in other life situations. If consent was an element of this trial, clearly such evidence was material not only in the cross examination of Ms. Newcomb, but in the cross-examination of her relatives and pretrial interviews of those close to her. Moreover, such information was critical in defense counsel’s voir dire and opening statement.

Viewed cumulatively in the context of the entire record, Defendant was deprived of his constitutional right to due process by the District Attorney’s failure to timely provide exculpatory evidence, and its failure to recuse itself as it labored under significant conflicts of interest.  Making matters worse, the brazen conduct of the District Attorney and her First Assistant, designed solely for purposes of publicity, underscored the consequence of proceeding under inherent conflicts of interest. By accusing the Defendant publically of being a liar, the District Attorney’s scorned rant had the unfortunate constitutional effect of improperly vouching against the credibility of the Defendant.

The cumulative effect of the District Attorney’s acts and that of her office robbed Defendant of his constitutional right to a fundamentally fair trial.


New trial warranted in interest of justice


B. Combination of Factors Warrants New Trial in the Interest of Justice.

            The combination of the many factors set forth in this motion justifies a new trial in the interest of justice. While each of the factors set forth in this motion is, in itself, a justifiable ground for new trial, the combination of these factors occurred in such a confluence that a prejudicial event of unusual, unfortunate and constitutional magnitude resulted. In effect, it was a classic perfect prejudicial storm that capsized Defendant’s expectation and right to a fair trial. The manifestation of unbridled power and politics mixed with personal prejudice resulted in late disclosure of exculpatory evidence, threats of criminal investigation against defense lawyers, allegations of attorney misconduct from the witness stand and a devastating failure of effective representation of counsel and due process. Added gusts to the storm is the failure of anyone, court or defense counsel, to explain to Defendant the issues relative to conflict of interest held by the prosecution, conflict of interest held by his defense attorneys, potential consequences of his lead attorney leaving midtrial, and his options in responding to each of these situations. He did not have the experience or knowledge to understand and recognize the legal or factual significance of what was happening to him.


WHEREFORE, PREMISES CONSIDERED, we urge this Court to conduct a hearing on Defendant’s Motion for New Trial and issue an order granting said motion and for such other and further relief as Defendant may be entitled. 

Respectfully Submitted:


Michael McCrum

McCrum Law Office

700 N. St. Mary’s St., Suite 1900

San Antonio, TX 78205


210.225.7045  fax

State Bar No. 13493200

This motion was presented to the court on July 19, 2013.”


[1] As this court is aware, not long ago this same District Attorney’s office interrupted a criminal trial before this same court, armed with a search warrant to search defense counsel’s table in the courtroom, counsel’s briefcase, and all of his folders and boxes. After marching out of court with all of defense counsel’s documents, the trial proceeded. Ultimately, a motion for new trial was granted based on the loss of constitutional rights caused by the District Attorney’s brazen act, and the inherent conflict of interest that was created by the District Attorney’s office between the defendant and her attorney.

[2] Although a transcript of all pretrial hearings and trial was requested, the transcript was not yet ready as of the date of filing of the instant motion. Events described in this motion are reflected in public reporting, recordings, and/or written recollections, but will be supplemented and/or amended upon receipt of the transcripts.

[3] It is worthy to note for purposes of the issues raised in the instant case that both defense attorneys were acutely aware of the devastating consequence that would result from a criminal investigation, despite the absence of basis or proof of actual criminal conduct. Attorney Alan Brown was the subject of a 5-year criminal investigation and federal criminal prosecution. Although he was ultimately vindicated after trial with verdicts of acquittal, he, his family and office personnel, including co-counsel Jay Norton, experienced devastating economic and emotional consequences from the entire experience. It is not a big leap to conclude that First Assistant DA Herberg’s public proclamation of criminal investigation had a heightened effect on both of these attorneys, who would know how much damage is caused by such an investigation despite the lack of factual or legal basis. Unfortunately, it is Defendant Day who ultimately suffered from counsels’ heightened fear and understandable focus on self-interest.