Bollyn Attorney Moves for Reversal of Verdict
July 19, 2007
On June 26, 2007, one day after Christopher Bollyn failed to appear for in court for sentencing before Associate Judge Hyman I. Riebman of the Cook County Circuit Court, his lead defense attorney Paul P. Moreschi filed two motions on Bollyn's behalf. (Both motions were filed with the clerk of the circuit court and are assumed to be documents in the public domain.)
Bollyn was charged with Aggravated Assault and Resisting a Police Officer after being assaulted and TASERed in front of his home, wife, and 8-year-old daughter on August 15, 2006, by three Hoffman Estates undercover cops who were unidentified, heavily-armed, and wearing only blue jeans and body armor. Bollyn had called 911 to report a suspicious vehicle with three armed men prowling around his house. The three-man undercover tactical unit improperly intervened in the 911 response and came to the Bollyn house with the clear purpose of committing a violent assault. This was clear from the fact that they had discussed "a fight in progress" minutes before they even arrived at the Bollyn house. This caused the 911 dispatch to send emergency medical vehicles, which arrived on the scene one second after the undercover tactical unit arrived.
Bollyn, claiming his innocence, went through a seriously flawed trial and was found guilty of both misdemeanors. Expert court observers described the trial as "a miscarriage of justice."
MOTION FOR NEW TRIAL
Moreschi's first motion was for a new trial and argues that "various errors" occurred prior to and during the trial "which all served to deprive the defendant [Bollyn] of fundamental constitutional rights guaranteed by the United States Constitution and the Illinois State Constitution of 1970..."
Moreschi argues that Bollyn was denied "effective assistance of counsel in that his [first] trial counsel [Jack C. Smeeton of Wilmette, Illinois] failed to promptly file with the court a Motion For Discovery on his behalf;"
Bollyn was also denied "effective assistance of counsel," Moreschi argues, because Smeeton "failed to promptly seek from the court on his behalf an order preserving all evidence in connection with this cause..."
Smeeton committed legal malpractice in the Bollyn case by intentionally failing to provide "effective assistance of counsel" by promptly serving subpoenas to preserve the evidence. Bollyn had even provided Smeeton with subpoena forms and a completed rider to be submitted to the Hoffman Estates Police Dept. to preserve the evidence, but Smeeton adamantly refused to submit either. When Smeeton repeatedly refused to serve a subpoena to the Hoffman Estates Police Dept., Bollyn demanded that he withdraw from the case.
Bollyn was denied "his fundamental constitution rights to due process of law and confrontation in that the Hoffman Estates Police Dept. failed, whether intentionally, negligently or inadvertently, to gather and/or preserve and/or produce all audio and video tape evidence in connection with this cause despite HEPD General Orders to so gather and preserve such evidence..."
The destruction of this video evidence deprived Bollyn of his fundamental rights to due process of law and confrontation, Moreschi argues in his first post-trial motion.
Judge Feccarotta erred when he entered an order, sua sponte, "effectively striking that portion of the defendant's subpoena duces tecum, served upon the Chief of the HEPD, commanding the production of the personnel files of Officers [Michael] Barber, [Timothy] Stoy, and [Darin] Felgenhauer."
Michael Barber served in a military-type function with the Dept. of Homeland Security in New Orleans after Hurricane Katrina and had previously spent more than 5 years serving as a Military Police in which he worked with prisoners. Because the police assault on Bollyn seemed to be more of a military operation than a police response, Bollyn's first question to Chief of Police Clint Herdegen on August 17 had been about the military background of the officers involved. Herdegen claimed to have no knowledge although both Barber and Felgenhauer had lengthy military careers before becoming police officers.
Judge Hyman I. Riebman erred, Moreschi continued, in denying Bollyn's two motions for sanctions based on the destruction of video tape evidence, which asked for the charges to be dismissed, or for an order limiting the introduction of evidence, or for jury instructions relative to the destruction of evidence.
Judge Riebman, who heard the Bollyn trial, also erred on many of his decisions, Moreschi argues in the motion, most notably by the following actions:
* not allowing the defendant to represent himself, while still being represented by counsel;
* not allowing the defendant to present and argue each of his pretrial motions filed pro se;
* in not considering and ruling on each of the aforesaid pretrial motions filed by the defendant pro se;
* in denying the defendant's oral Motion For Directed Verdict made at the close of the prosecution's case;
* in granting the prosecution's Motion In Limine, ordering that the defendant would not be allowed to present to the jury the testimony of defense expert, Gregory Johnson, relative to the area of his expertise, namely police procedures, the appropriate manner in which to de-escalate an escalating police encounter, and the appropriate use of police force...;
* in denying jury instructions that the jury would have to find, beyond a resonable doubt, that the defendant [Bollyn] committed the acts alleged;
* in denying the defendant's request that the jury be instructed relative to the law on defense of person, defense of others, defense of dwelling, and defense of property;
* in ordering that not all exhibits introduced into evidence at trial could be brought to the jury for review and consideration during deliberations;
The evidence admitted at trial was not tantamount to proof beyond a reasonable doubt of the defendant's [Bollyn] guilt with respect to either of the charges and was insufficient to support the verdict of the jury with respect to either charge, Moreschi argues in the motion.
The prosecution team of James Pontrelli and Stacy Cosseth, which was supervised by Steven Rosenblum, presented arguments to the jury that were improper and prejudicial, "including, but no limited to, argument that the defendant was intoxicated" and that Bollyn "intentionally created his contact with the police...in order to provide himself with material about which he could write article in the course of his career as a journalist."
Rosenblum mixed Bollyn's journalism into the prosecution of the journalist when he said, before the trial, that the prosecution of Bollyn should go ahead because of his "anti-Jewish" writing. Rosenblum's comment, and other comments made by Pontrelli suggest that Bollyn was being prosecuted and tried because of his writing, which is protected by the First Amendment. It also suggests that the Anti-Defamation League (ADL) was improperly involved in the case and was advising Rosenblum in the office of the prosecutor.
Cosseth and Pontrelli got the first and the last word in a seriously flawed legal process in which the defense was not given the last word or even allowed to rebut the prosecution's final presentation to the jury. Pontrelli, who addressed the jury last, committed a raft of violations. He was allowed to misrepresent to the jury the injurious effect of the 50,000 volt TASER shock Bollyn received as if it was nothing more than a tiny shock that affected an area of about one square inch. These false statements reflected the false testimony of Officer Barber who was allowed to misrepresent to the court the effects of the TASER although he is not an expert witness on effects of the TASER.
Pontrelli was also allowed to completely misrepresent to the serious injury to Bollyn's right elbow. Pontrelli claimed that Bollyn did not suffer "an occult fracture" in his right elbow and suggested that Bollyn had concocted this injury. Pontrelli was allowed to make these false claims to the jury despite the fact that he had no medical expertise or evidence upon which to base his claims.
James Pontrelli, Stacy Cosseth, and their supervisor Steven Rosenblum, will be certainly be remembered as the people who prosecuted this miscarriage of justice.
"There's frustration when we go through a jury trial and you think that the truth is heard," Pontrelli told the Daily Herald. "You want to see it finalized."
The only question is which truth does Pontrelli believe? Three of the four prosecution witnesses told completely contradictory accounts of what occurred at the Bollyn house. (It was very clear that the jury and the news reporters were not very diligent in taking notes during the four-day trial.)
Officer Michael Barber, for example, who delivered the "stun drive" TASER to Bollyn while he restrained by handcuffs and held down by himself and Officer Timothy Stoy, perjured himself when he told the court that Officer Stoy had shouted, "TASER, TASER, TASER," prior to the TASER shock being applied.
Officer Stoy, on the other hand, told the court that Barber had called out "TASER" before using the TASER weapon to torture and injure Bollyn. Stoy was kneeling on Bollyn's right temple when the 50,000 volt TASER shock was applied. Stoy knelt with his full body weight on Bollyn's head for at least two minutes, a non-police hold which is extremely dangerous and harmful.
Clearly either Barber or Stoy, or both, are lying about the verbal warning given before the TASER shock was applied. As the person who was TASERed, Bollyn has testified that no verbal warning was given prior to his being shocked. This means that either Barber or Stoy, or both, commited perjury when they testified about this verbal warning. This would be made clear by the video tape recordings that were destroyed by the HEPD.
Barber said that he smelled alcohol on Bollyn's breath and that Bollyn had stood two feet from the police officer's face. Stoy, on the other hand, said he had smelled alcohol on Bollyn's breath as he stood ten feet away. Because Barber, Stoy, and Felgenhauer had stood beside each other as they addressed Bollyn, the question is which is telling the truth - Barber or Stoy? Was Bollyn two feet or ten feet away? Despite the wild police claims of smelling alcohol from ten feet away, no normal police tests were done to determine if Bollyn had any alcohol in his system. Furthermore, the police denied Bollyn any medical attention and even sent the emergency personnel away after they had tackled and TASERed him.
The prosecution's only non-police witness, Debra Cabay, clearly told the court and demonstrated how Bollyn "took a swing" with his right arm at the police on his driveway although there is not even one word in the police report or in testimony from any of the three undercover officers that Bollyn ever "took a swing" at anyone.
So three of the four witnesses for the prosecution clearly lied on the stand and evidently perjured themselves. Yet Rosenblum, Pontrelli, and Cosseth (and perhaps even Judge Riebman) believe the police account and are quite willing to send an innocent man and father to jail. The only question is, which police account do you believe?
Moreschi's second motion was a Motion For Finding Of Not Guilty Notwithstanding Verdict of Jury, in which he requests the court to enter a finding of not guilty against Bollyn because "the evidence admitted at trial was not tantamount to proof beyond a reasonable doubt."
It is not known if these motions have been heard or argued in court. The next date for the Bollyn case to be heard before Judge Riebman is August 3 in the Rolling Meadows courthouse of the Cook County Circuit Court.
Photo: Christopher Bollyn at his home in Hoffman Estates shortly after the undercover police assault which resulted in his being TASERed and his right elbow being fractured. James Pontrelli of the prosecution told the jury, without any evidence to support his claims, that these injuries were fraudulent and concocted by Bollyn or not even worth considering.
Originally published as "Bollyn's Attorney Moves for New Trial or Reversal of Verdict"
Posted By: ChristopherBollyn <Send E-Mail>
Date: Thursday, 19-Jul-2007 10:41:01