BONAVITA - MASSA (Chamber Conference) | ||
| Vol XIV (#25) pp. 719 - 728 | Mon. - Wed. June 3,4,5, 1991 | Charles Rapp |
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Well, the plot both thickens, and unravels a bit here. Quite a bit. This is an In Chamber's hearing held on Monday, June 3, during the last day of testimony in the trial of Jay Buckley. This hearing concerns Barry Smith's examination of Michael Brown's "attorney", Thomas Bonavita, and District Attorney Joseph Massa concerning their knowledge of any evidence withheld or destroyed by the prosecution. You should read the transcripts of the previous In Chambers hearing conducted on Friday, May 31, 1991 if you have not yet done so, which concern essentially these same matters, i.e., the suppressed tapes. There is quite a background to this particular matter, which concerns the Holiday Inn interviews of June 13 and 14, of 1990. This was a two day interview at which Michael Brown recanted his entire story to PSP Trooper William Miles, and which (recantation) was withheld from Barry Smith. I believe it is safe to say that these transcripts here probably contain several perjuries by District Attorney Massa, if closely analyzed - but one in particular that is indisputable. Later revelations during Michael Brown's plea withdrawal proceedings (the "missing" transcripts) of September 4, 1991, illuminate the basis of such a claim. These revelations would also appear on their face to indicate perjury in the testimony of Michael's attorneys, John Aranyos, and Ross W. McKeirnan at the previous In Chambers session of May 31, 1991, and attorney Thomas Bonavita during this session (of June 3, 1991). See The Tapes for a more detailed examination of these tapes, and related matters. Here is an example of what appears to be a tampering with these transcripts themselves. |
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(Whereupon, Court recessed for lunch at 11:06 a.m.)
(In Chambers)
(Whereupon, Mr. Massa and Mr. Bonavita were sworn in.)
THE COURT: Let the record show at 11:10 in Chambers is Mr. Bonavita, Thomas Bonavita and Mr. Joseph Massa and Mr. Smith. The purpose of the Chamber interrogation is at the request of Defense Counsel, Mr. Smith, and Mr. Bonavita and Mr. Massa.
BY MR. SMITH:
Q Mr. Bonavita, during the course of your representation of Michael Brown, are you aware of any statements made by Michael Brown which have not been turned over to Defense Counsel, statements to the District Attorney or law enforcement personnel?
A I do not believe I can answer that based upon the fact that that's a violation of attorney-client privilege and Rule 1.6 of Professional Conduct.
Q I am not asking concerning any statements or discussion you have had with your client. I am asking you concerning statements that your client has given the police, District Attorney's office, or law enforcement personnel. Are you aware of any such statements that have not been turned over to Defense Counsel?
A No, I am not aware of any.
Q With regard to questionnaires, are you aware of any questionnaires which contain answers which were provided to your client, Mr. Brown, either by any law enforcement agency or the District Attorney and/or their staff?
A No, I am not.
Q
Are you aware of a meeting held between your client and - - Attorney Aranyos was representing him at that time.
Are you aware of any information with regard to the finding of any fingerprints on Kathy Wilson's van, i.e. the steering wheel?
A No, I am not.
Q Are you aware of any discoverable material in the possession of the Commonwealth or any law enforcement agency which has not been turned over to the Defense?
A
A No.
Q You were present for his testimony for the most part; is that correct?
A For the most part; that is correct.
MR. SMITH: I have no further questions of Mr. Bonavita.
THE COURT: Do you have any questions as District Attorney?
MR. MASSA: No, I do not.
THE COURT: Thank you Mr. Bonavita, you're excused.
MR. MASSA: Your Honor, before we begin I would like to place on the record that I will fully and totally answer any questions directed by the Court or by Counsel although I object to the nature of the proceedings or any unfair implications that have been drawn by the unusual steps of Counsel after - - of Defense Counsel calling the District Attorney, who is prosecuting the case against Jay William Buckley, to the stand as a Defense witness in front of and within the hearing of the jury after a conference on that very point was held in chambers before the Court and
discussed other than that I will be happy to answer any questions on the record.
THE COURT: In that regard the Court sustains the objection of the District Attorney to be called as a witness for the reason that, first, Defense has given no notice to the Commonwealth of Defendant's intention to do so and thereby negating the Commonwealth's opportunity to have substituted Counsel during the interrogation and, also for the reason depending upon the testimony of the proffered witness, the District Attorney, Mr. Massa, may be barred from further representing the Commonwealth and these matters were not disclosed to the Court prior to the call and the Court, therefore, considers - - well, the Court, therefore, denies Defense to call Mr. Massa as a Defense witness.
MR. MASSA: I would also ask for a proper instruction to the jury as to that the jury may not draw any unfair inference of wrongdoing as a result of the Court's ruling.
THE COURT: The Court will grant that. I will make a note of it, Mr. Massa, you trigger my memory if I forget it in the charge. I will instruct the jury after the Defense rests on that respect.
MR. SMITH: With regard to that, Your Honor, if I could place on the record my position with regard to Mr. Massa's testimony. Your Honor, I think the trial and evidence
presented at trial has clearly indicated that the District Attorney has injected himself in the case and went far above the role of District Attorney, just as a prosecutor, that he in fact, attending (sic) various meetings where Mr. Brown has been interrogated by law enforcement personnel, in fact he was aware of recantations by Mr. Brown and aware of other discoverable materials that were not provided to the Defense in this case from the District Attorney's Office, that in fact in addition to the meeting at the Holiday Inn that on 6/19/90 there was an additional meeting in the Office of the District Attorney with Mr. Brown, that we pointed out that the entire record of this case shows a history of refusal of the District Attorney to obey Court orders and to properly comply with discovery requests throughout the entire matter including halfway through the trial when this meeting disclosure was made by anonynous letter and that we feel that the District Attorney still has evidence that is discoverable that has not been presented to the Defense. That's the basis for Counsel calling Mr. Massa as a witness.
THE COURT: Well, the Court has resolved some of that issue before this date and I am not at this time going to go back into it, there fore, Mr. Smith, if you want to interrogate on the District Attorney's meeting on what date is that?
MR. SMITH: 6/19/90
THE COURT: You may proceed.
BY MR. SMITH:
Q Mr. Massa, on 6/19/90 did you have a meeting with Michael Brown?
A Yes, I did.
Q What was the substance of that meeting?
A The subject of the meeting was to prepare Mr. Brown as a Commonwealth witness pursuant to and under advice and consent of his attorney, John Aranyos, for his testimony at the Preliminary Hearing of Jay William Buckley held on or about July 25, 2990 (sic).
Q During that preparation of Mr. Brown for the Preliminary Hearing, did you discuss with Mr. Brown appropriate answers or responses to be given to Defense Counsel's questioning?
A I had a discussion with Mr. Brown in the presence of his attorney, yes, questions were asked and answered.
Q Did you subsequently provide a questionnaire with questions and answers on it to Mr. Brown or his Counsel?
A Never.
Q To your knowledge did any one from your staff or any law enforcement personnel provide such a questionaire?
A Absolutely not.
Q
Did Mr. Brown, on 6/19/90, make any recantations with regard to his previous statement?
A He recanted his - - the substance of his statement to Officer Miles and the duration of that interview, which was solely for the purpose of preparing him as a Commonwealth witness, was the statement that he gave was identical, not the statement - - well, the statement made during the interview was identical to that which he testified to at the Preliminary Hearing under oath.
Q Do you have any explanation as to why his previous statement prior to the meeting with you he had the victim in a black skirt and red blouse whereas his testimony right after the meeting with you at the Preliminary Hearing he testified that the victim was in a tan outfit; do you have any explanation?
A You have asked that question before of Mr. Brown and if the implication from your question is did I program Mr. Brown or suggest any answers of any kind, absolutely no. My sole and initial advice or request of Mr. Brown was to answer any questions under oath truthfully. At no time did I ever suggest testimony to Mr. Brown, program him or do anything of that nature.
Q Were you present in Court while Mr. Brown testified at this trial?
A Yes, sir.
Q Were you aware of perjuries committed at this trial by Mr. Brown?
A Not on direct examination when he was called as my witness.
Q Were you aware of perjuries committed by Mr. - -
A I was aware of it on twelve days' effort on behalf of Defense Counsel, yourself, to intimidate and confuse the witness.
Q Let's not - -
A The answer is no.
Q So the answer is no?
A At this time no.
Q So at the time both on direct and cross examination of Mr. Brown, you're not aware of any perjuries?
A I have answered that question.
Q Do you have any explanation to why Trooper Herzog testified that he was aware of perjuries committed at trial by Mr. Brown and he felt you were, too?
A No, sir.
Q Are you aware of any information in this case with regard to fingerprints being found on the victim's steering wheel?
A No, as a matter of fact, Mr. Smith, on numerous occasions you made that implication that in your opinion there was a fingerprint found on the steering wheel, but the record clearly indicates upon your thorough examination of Detective Timothy Johnson of the Jamestown Police
Department and investigator or I.D. Officer Moytka of the New York State Police they testified clearly and unequivocally that no such prints were found.
Q Are you aware of any other I.D. officers other than the two men you mentioned that processed the van?
A No, I am not.
Q
Are you aware of any other discoverable material other than the Holiday Inn material which has not been - - which you have not provided to the Defendant?
A
MR. SMITH: I have no further question of this witness.
THE COURT: That concludes the interview. Thank you, gentlemen.
MR MASSA: One-fifteen, Your Honor?
THE COURT: Yes.
MR. SMITH: The Defendant will rest at 1:15.
MR. MASSA: And we'll have rebuttal for the Commonwealth.
THE COURT: Very good.
(Whereupon, the Court recessed for lunch.)
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MR. SMITH: Your Honor, the Defendant would move for the admission of Defendant's Exhibit Number 188, which is already a part of the record, it's a deposition of Michael Reuben Brown taken by the Defendant on Tuesday, March 26,
1991.
MR. MASSA: No objection.
THE COURT: Admitted.
MR. SMITH: Defendant would rest, Your Honor.
THE COURT: Defendant rests. Mr. Massa, does the Commonwealth have rebuttal?
MR MASSA: Yes, Your Honor. Prior to the Commonwealth's rebuttal witnesses, the Commonwealth request (sic) the Court to instruct the jury relative to the Defense calling the District Attorney.
THE COURT: All right. Ladies and gentlemen, at this point the Defendant has rested its case in chief. Just prior to resting before lunch break Defense called as a proffered witness the District Attorney, Mr. Massa, to testify for the Defendant. The Court had a conference on that in Chambers and I've decided to instruct you accordingly. There is a certain procedure that must be followed under our rules of procedure and evidence that will permit one party to call Counsel representing another party. Here, I've decided that that procedure wasn't followed by the Defense so I did not permit the testimony of Mr. Massa, but nevertheless, and notwithstanding the fact that Mr. Massa was called as a witness does not infer anything, absolutely nothing. It's simply a procedural matter for the COurt to handle, it is nothing for the jury
to handle as a factual situation. It does not infer anybody did anything wrong, as a fact, it doesn't infer somebody did something right in determination of calling Mr. Massa. The Court just resolved under our rules of procedure that it was inappropriate at this point to have Mr. Massa testify so you are to disregard that entirely.
MR. MASSA: Thank you, Your Honor.
MR. SMITH: May we approach?
(Whereupon, there was a sidebar discussion off record.)
MR. MASSA: The Commonwealth calls Kim Spicer.
MR. SMITH: Approach the bench, Your Honor?
(Whereupon, there was a sidebar discussion off record.)
KIM SPICER, called as a witness was sworn and examined, testified as follows:
DIRECT EXAMINATION
BY MR. MASSA:
Q Would you speak up and identify yourself by stating your name and address?
A Kim Spicer, R.D. 3, Box 3304, Russell, Pennsylvania.
Q Do you live specifically at the southern extremity of Lindell Road?
A Yes.
Q With whom do you reside?
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