|THE OFFICIAL FRANCIS E. DEC FANCLUB PRESENTS:|
- THE LOWER COURTS APPEAL BRIEF OF FRANCIS E. DEC
|- A LEGAL DOCUMENT WRITTEN BY FRANCIS E. DEC, ESQ. TRANSCRIBED BY zer0.|
There’s a certain word in Sweden (where I live) called rättshaverist. It signifies someone who’ll continually pursue a legal case in a court of law and go to extreme litigious extents in order to get the ruling overturned, even though it is obvious to any sane person that they should have given up long ago. Dec’s Appeal Brief - as presented below - places him firmly in the rättshaverist category. It consists of 45 GODDAMN PAGES of the same rambling style of writing present in his later rants, in which he in desperate anger tries to convince the Court that he was the victim of a big Conspiracy!
Dec’s appeal brief is long and for the most part quite dry (as it in legalese details his opinions that a mistrial took place), so I have made little effort to illustrate it. Parts of it do however contain definite humor, like the references to a giant conspiracy, Dec’s savage hatred against certain judges and the doctor threatening to commit suicide with a syringe! To make it easier for the reader I have highlighted the funny parts in bold to enhance the reading experience. Dec was given an extremely severe sentence (2½ - 5 years in prison at hard labor, maximum probation) for his crimes on top of losing his license to practice law, so it comes as no surprise that he would litigiously try to get the ruling overturned. However; the rambling, schizoid nature inherent in his writing probably must have pretty much doomed his attempts from the start. Before he sent in this appeal brief, an earlier application sent in by Dec to the US Supreme Court was a whopping 320 pages in length!
To see the original scans of this Appeal Brief, look towards the bottom of the page! After reading Dec's Appeal, I have actually come to doubt whether Dec was guilty or whether he really was the victim of some kind of mistrial or conspiracy. His sentence, at the very least, seems unusually severe for a crime of this nature, even if he did actually commit it. However, I’ll ultimately leave this up to each reader to decide. When viewing his Appeal Brief, however, you can definitely notice Dec’s slow and gradual descent into madness, as well as make out many of the same themes which would later come to be included in his rants. It's fascinating! Dig the brief's last part, too: "A facade for a dynamic labyrintical, omnipotent, judicial dictatorship!" Can you say "Proto-Worldwide Mad Deadly Gangster Computer God", boys and girls?
QUICK LINKS TO
Grand Larceny in the Second Degree (third count): Defendant took, [obscured]e, from Allstate Insurance Company a certain sight draft for $400 by [obscured]e and fraudulent representations and pretenses, namely, that Mrs. Elizabeth Wirschning received certain medical treatments from a Dr. Milton Robbins who treated Mrs. Wirschning for her complained injuries of Bursitis of her right shoulder and a bruised right thigh and that the general release of Mrs. Wirschning was a good and valid general release said claim.
Forgery in the Second Degree (first count): Defendant feloniously signed, uttered and disposed of a forged sight draft of Allstate Insurance Company made to the order of defendant and Mrs. Elizabeth Wirschning for the amount of $400.
Violation of Section 1820A Sub. 2 of the Penal Law (fourth
count): defendant deceitfully made a
certificate upon a general
release set forth [obscured]he first count of the indictment that
Elizabeth Wirschning acknowledged that she executed said
release, thereby committed a
Outline of the People’s Case from People’s
Defendant’s Pre-Trial Challenge of the
Motion To Dismiss The Indictment; in County Court, May 26, 1958. Decision: Judge C. Brown decided said motion to be a Demurrer and disallowed his Demurrer.
Motion To Resettle Erroneous Demurrer Order; in County Court, July 24, 1958. Judge C. Brown again ordered defendant’s Motion to Dismiss the Indictment to be a Demurrer and disallowed the Demurrer.
Motion To Dismiss the Indictment For Lack Of Prosecution; in County Court, October 8, 1958. Judge P. Widlitz dismissed motion on affidavit of District Attorney that the trial would commence shortly.
In said three motions defendant repeatedly stressed the statutory rights of section 250 of the Code of Criminal Procedure (formerly section 257 and so stated as section 257 in defendant’s original appeal brief). Defendant objected that although defendant appeared at the District Attorney’s office voluntarily and thereafter by illegal subpoena and on both occasions the District Attorney and his assistant agreed to notify the defendant of any preliminary hearing by a Grand Jury prior to indictment as set down in section 250 of the Code of Criminal Procedure titled “Grand Jury not bound to hear evidence for the defendant but may order explanatory evidence to be produced; defendant may appear in his own behalf under certain circumstances.”
The defendant not only relied on the promises of the District Attorney and his assistant, namely, to notify the defendant of a preliminary hearing by a grand jury, but also the defendant cooperated with the District Attorney and appeared voluntarily at the District Attorney’s office for such hearing and thereafter appeared at the District Attorney’s office under an illegal and void subpoena for a non-existent Grand Jury hearing. Thereafter the defendant had no knowledge nor did he suspect that there would be a Grand Jury hearing of the matter. The Grand Jury hearing was held in secret without notice eight months later. Thereby the defendant was unable to challenge the Grand Jury, nor the nature and substance of the Grand Jury hearing, nor the segregated witnesses; which challenges are statutory rights of any defendant present at a Grand Jury hearing.
Further, defendant’s two pretrial Motions to Dismiss the
Indictment were both not entertained. The
first Motion to Dismiss
the Indictment was not entertained by Justice Hogan but without
prejudice to a
renewal in the County Court. Defendant’s second
Motion to Dismiss the Indictment in County court
was ordered to be a
Demurrer by Judge C. Brown and Judge Brown disallowed his Demurrer.
Brown’s decision on defendant’s later Motion to Resettle the
Erroneous disallowed Demurrer order
was ordered resettled by Judge
Brown again as a disallowed Demurrer. The Basic concepts of a
Demurrer is that an Indictment is defective in form or in facts as
enumerated and defined in section
323, Code of Criminal Procedure.
Whereas a Motion to Dismiss the Indictment as defined through
judicial interpretation of section 313, Code of Criminal Procedure
is substantially an attack upon the
legality of the indictment.
Judgment Contrary to Weight of Evidence
Mrs. Elizabeth Wirschning testified that she and her husband knew the defendant who was an attorney, fairly well known by them and their friends and family. In direct contradiction to her original complaints she admits that defendant had undertaken other legal works for their family beside his legal works in reference to her injury claim case; which she admits she signed a written retainer with defendant for her injury claim case.(16) Mrs. Wirschning admits what “we made preparations to have an appointment set up to go to an insurance company doctor for an examination” as to Mrs. Wirschning’s injuries that she claimed as damages against Allstate Insurance Company. That on May 24, 1956, the defendant, she, her husband and her baby drove to the Allstate Insurance Company doctor, Joseph Rosenheck, as to her claims of doctor treated injuries received in auto accident. (77) That then on May 24, 1956, a few months after the accident when Mrs. Wirschning’s injuries and medical treatments were fresh in her mind; she, Mrs. Elizabeth Wirschning stated all her injuries and medical treatments for these injuries to Dr. Joseph Rosenheck, the Allstate Insurance Company doctor and Dr. Joseph Rosenheck examined her claimed injured portions of her body (80-81) and that she knew that Dr. Joseph Rosenheck made a typewritten report of her injury claim and evaluated her injury claim in this said report for the Allstate Insurance Company. Mrs. Wirschning breaks down and testifies in cross examination that the prosecution’s claims and her direct short answer testimony of not receiving any medical treatments for a slightly hurt right wrist (15-16, 36, 40) are in complete contradiction to her original detailed repeatedly stated claims, namely, her claims of eight treatments by a doctor for Bursitis of her right shoulder and bruises of her right thigh; which claims by her are recorded correctly in the typewritten report of Dr. Joseph Rosenheck based upon his personal examination of the portions of her body she claimed were injured and she received a doctor’s treatments for said injuries. (79) and defendant’s Exhibit I in Evidence)
The injuries and treatments claimed by Mrs. Wirschning and
recorded in Dr. Rosenheck’s typed
report as to his medical
examination of her for the Allstate Insurance Company (Defendant’s
in Evidence) are identical to Dr. Milton E. Robbins’
handwritten medical bill to Mrs. Wirschning
(Defendant’s Exhibit H
in Evidence) and both are identical to the doctor treated injuries
by the indictment. Confirming these admissions by Mrs.
Elizabeth Wirschning are the up to date of
trial records of the
Allstate Insurance Company file on Mrs. Elizabeth Wirschning, which
prosecution’s witness, Charles Martino, testified that all
records of the Allstate Insurance Company
indicate that Mrs.
Elizabeth Wirschning throughout the negotiations and settlement of
her injury claim
and during her later complaining signed statements
of 1957 claimed only the doctor treated injuries
listed on Dr.
Milton E. Robbins’ handwritten medical bill to her (Defendant’s
Exhibit H in Evidence)
which are identical to Dr. Joseph Rosenheck’s
typewritten evaluation report of Mrs. Wirschning’s
treated injuries she stated to Dr. Joseph Rosenheck (456) and also
identical to the
doctor treated injuries claimed false by the
indictment (440) and that Mrs. Wirschning never disclaimed any of
these injuries and further that Mrs. Elizabeth Wirschning never made
any claim of any
Mrs. Wirschning admits on direct examination that she consulted the defendant concerning a possible separation from her husband, (44-45) because of troubles at home, (64) and further that out of the various matrimonial legal actions Mrs. Wirschning admits that she called the defendant “about the separation case”. Further, that she, Mrs. Wirschning, at the time of the separation case, had no money and no employment and that her husband had a bank account only in his name. (68, 218) The copies of defendant’s detailed letters and statements of account mailed to Mrs. Wirschning during defendant’s works for her legal separation from her husband state in detail many of her trial court judicial admissions and said copies of defendant’s letters were submitted in evidence producing much evidence of defendant’s extended knowledge in reference to Mrs. Wirschning’s matrimonial troubles, her family life and background. (Defendant’s Exhibits D and E in Evidence)
Dr. Milton E. Robbins’ direct testimony confirms Mrs. Wirschning’s judicial admissions stating that Mr. Dec, “he was angry at Mrs. Wirschning. There was something to do with a separation or other and that he (Mr. Dec) decided to retain some money in this particular case.” (345) Charles Martino, the prosecution’s witness testified that the Allstate Insurance Company has a requirement that in all settlements of claims by married women the husband must join with the wife in a general release for his loss of services, unless the married woman is separated from her husband or is a widow. Mr. Martino further testified that only Mrs. Elizabeth Wirschning’s claim was settled therefore the Allstate Insurance Company must have been properly notified as to Mrs. Wirschning’s separation from her husband (481-482) Mr. Martino repeatedly admits that the defendant did not negotiate nor settle Mrs. Elizabeth Wirschning’s injury claim; (411) and that he, Charles Martino, was the Examiner, the supervising officer who only approved Mr. Urso’s suggested money settlement offer. (411, 470-471). Mr. Martino’s testimony confirms defendant’s contentions that because of Mrs. Wirschning’s retainer of defendant to represent her in an impending legal separation action from her husband, the defendant properly notified Mr. Urso that the defendant was withdrawing from Mrs. Wirschning’s husband’s loss of services claim and only prosecuting Mrs. Wirschning’s injury claim in that she was separating from her husband and had retained the defendant as her lawyer to represent her in an impending separation action. (411, 752, 812, 470-471)
The many admissions of the prosecution’s witnesses corroborate defendant’s detailed testimony as to his legal works and services in references to Mrs. Wirschning’s retaining defendant to represent her in a legal separation action and how finally defendant agreed and accepted Mrs. Wirschning’s $200 share of the settlement money from her injury claim based upon the agreement with Mrs. Wirschning that the $200 would be held in escrow (which escrow money and two files in titled file sized file envelope, one for Mrs. Wirschning’s separation action and the other for her injury claim case file Detective Becker inspected when he took the defendant in custody to defendant’s office in July of 1957 and Detective Becker purloined defendant’s written retainer with the Wirschning’s). The $200 would be held in escrow as part payment toward a legal separation action and also in order to guarantee defendant’s minimum fee of $150 for defendant’s completed legal works should Mrs. Wirschning decide not to go ahead with the legal separation action. The judge charges, as a matter of law, in his charge to the jury, that the defendant was entitled to some legal fee for such legal services performed with respect to a legal separation action. (970)
In reference to contradicting Mrs. Elizabeth Wirschning’s indefinite and short answer direct testimony in reference to her denial of signing her general release and $400 Allstate Insurance Company settlement check, the defendant commenced cross examination in reference to her indefinite and short answer direct testimony. Mrs. Wirschning not only disproved her original direct testimony by contradicting it but Mrs. Wirschning also further contradicted her original direct testimony in detailed statements during her cross examination. Repeatedly Mrs. Wirschning admitted the she misspelled her new married name for some period of time after being married and that she usually left out the letter c in her new married name and that upon her close examination of her general release she testified that the c is left out of her married name and that it is the usual mistake she made in signing her new married name. (222) While still examining her signature on her general release Mrs. Wirschning then further admits that although she does not remember leaving out the c in her last name when she signed her general release, “that far back”, it is her signature and she signed it as she usually signed her name at that time when she was first married. (222) Thereafter the defendant refers Mrs. Wirschning to her $400 settlement check from Allstate Insurance Company. The defendant points out items on said check in detail. While Mrs. Elizabeth Wirschning is still examining her $400 settlement check, the defendant points out in detail that the check is made out to Elizabeth Wirschning and it is endorsed on its rear Elizabeth A. Wirschning and what explanation can Mrs. Wirschning offer to this improper endorsement on the rear of the check, when all of defendant’s records and all of Allstate Insurance Company records do not include her middle initial, nor is her name misspelled in said records. Mrs. Elizabeth Wirschning admits that when she was first married for a period of time, during which period of time she signed her $400 settlement check, she always signed her name that way with her middle initial included. (218-226, 858-859 ) Defendant then attempts to further cross examine Mrs. Elizabeth Wirschning and have her completely confirm her signing of her $400 Allstate Insurance Company settlement check. The Court immediately interrupted the defendant and prevented Mrs. Wirschning from answering defendant; the Court stated: “Just a minute.” And the prosecutor quickly interrupts with his often repeated objection “A. Nixon: I object, your honor. That is the ultimate for this jury to decide (in) this case.” The Court sustains the objection and even the extant trial record indicates the defendant objecting and taking “exception for purposes of appeal.” (227) This is an example of the concerted efforts of judge and prosecutor which stifled defendant’s cross examination and prevented Mrs. Wirschning from making further repeated unrestrained detailed judicial admissions that she signed her $400 Allstate Insurance Company settlement check. Such repeated concerted efforts of judge and prosecutor illegally and wantonly stifling the judicial confessions of the prosecution’s chief witnesses evidence not only a prearranged simple worded format, used by judge and prosecutor to stifle the defendant’s cross examinations but also wantonly and intentionally repeatedly the judge and prosecutor concertedly override the basic concept of any fair trial, namely, cross examination, “universally recognized as the principal and most efficacious test for discovery of truth”. (Wigmore on Evidence, 3rd Ed., sec. 1367). “Cross examination of adverse witnesses is a matter of right in every trial of a disputed issue of fact.”(Matter of Friedel v. Board of Regents, 296 N.Y. 347, 252, 73 N. E. (2d) 545) If cross examination is prevented by accident or design, the direct examination is rendered incompetent. ([obscured]. v. Vole, 43 N. Y. 508) the Court of Appeals granted a new trial where through unusual accident the witness was not able to complete cross examination.
Dr. Milton E. Robbins testified on direct examination that Dr. Milton E. Robbins knew nothing until after the investigation of the matter was commenced by the District Attorney in July of 1957. During cross examination Dr. Milton E. Robbins admits that he is a perjurer and liar. During further cross examination Dr. Milton E. Robbins admits that his present story of knowing nothing is a story concocted during a two week period in July of 1957, while consulting with his lawyer, brother in law and also another lawyer from Nassau County, J. D. C. Murray. (390-391) Dr. Milton Robbins further admits that shortly prior to concocting his present story of knowing nothing with his lawyer, brother in law (so related for 25 years) (360-361) and lawyer J. D. C. Murray that he, Dr. Milton E. Robbins, went to the District Attorney’s office without consulting any lawyer and that he, Dr. Milton E. Robbins, gave an extemporaneous, unpremeditated statement as to his treatments to Mrs. Wirschning as indicated on his medical bill (390-391) that he gave to her husband to forward to defendant. Dr. Milton E. Robbins also admits that it was he, who, on Monday, July 8, 1957, telephoned the defendant and begged defendant to come to Dr. Robbins’ office in order to get back his hand written medical bill for his treatments to Mrs. Wirschning, which bill defendant sent to the Allstate Insurance Company when settling Mrs. Wirschning’s injury claim (344-345, 383) On direct examination Dr. Robbins also admits that at the time he, Dr. Robbins, was in hysterics and that the defendant said “he was angry at Mrs. Wirschning. There was something to do with a separation or other and that (defendant) he decided to retain some money in this particular case.” (345) After the defendant arrived at his office, Dr. Robbins admits that he gave defendant many hundreds of his X-Rays not related to the Wirschning case, to be destroyed. (383)
These are some of the important admissions of these chief
witnesses for the prosecution which
contradict the total claims of
the prosecution’s case and more important contradict the claims of
four count indictment and substantiate the defendant’s innocence
of the crimes convicted and in no
way prove guilt beyond a
reasonable doubt and the evidence falls below the standard of
presumption of innocence as set forth in section 389
of the Code of Criminal Procedure.
Motions for Mistrial
After completion of defendant’s above motion for Mistrial, the defendant petitioned the Court that the stenographer reread the trial minutes for the last few minutes of the trial to the approximately week long interruption, surprise adjournment ordered by the judge two days after the commencement of the trial and shortly after the Court ordered the defendant to alternate his partially completed cross examination of Mrs. Elizabeth Wirschning with Nathan Birchall. The Court denies defendant this request although the defendant stresses the lengthy one week surprise adjournment. The Court states that because of the fact that a different stenographer is recording the trial after the adjournment, the present stenographer cannot read back any part of the trial because he has no notes available. The defendant requests that a recess be called for the new stenographer to obtain the original stenographers stenographic notes from the Custodian of the Court who keeps such trial records while the trial is in session. The Court attempts to dissuade the defendant but finally orders the defendant to proceed with the trial without and read back of the trial minutes after refusing the requests of the defendant. (155-159) The defendant takes exception and makes a motion for mistrial. Defendant’s Motion for mistrial is disallowed and defendant takes exception.(159) The defendant is ordered to go ahead; defendant takes objection but the Court reorders the defendant to move ahead and defendant stresses that “under our law I am forced to proceed when your Honor denies me the right to object.” (159) The Court states: “The Court feels that everybody here is well advised of what we are contending with … proceed from that point.” (160) Substantially, the judge states that, he, the judge, the prosecution, and the jury are well advised and are agreed in their opinion of the defendant that defendant’s trial is but a required formality before convicting the defendant feloniously. What possible other interpretation of this dastardly, but revealing remark by the judge can be properly applied to the said remark? Under the circumstances created by the many other statements and remarks of the trial judge partially enumerated in defendant’s Motions for Mistrial, there can be no other interpretation of such highly prejudicial remarks by the trial judge. Each of the items mentioned in the defendant’s Motions for Mistrial are sufficient for reversible error. Comments by a judge during a trial or in his charge to the jury which assume the falsity of the testimony of a witness are not allowed. A judge should not by his attitude or comments force upon a jury his opinion as to the guilt or innocence of the defendant. To do so would be an error as matter of law. (Peo v. Chanian, 245 N.Y. 227. In the cited case the trial judge later instructed the jury to disregard his irregular remarks but still the Court of Appeals unanimously reversed the judgment of the trial court, saying,
“We cannot escape the conclusion that the
judge made himself
Defendant’s objection and exception to the admission of the
The final summation of Arthur Nixon, the prosecutor for the District Attorney, was an incoherent, muddled, simple language outline of non-existent evidence based upon people who were not witnesses and who the prosecution refused to call as witnesses. The Court Reporter’s record of said A. Nixon’s final outline is found conveniently on pages 901 to 935 and even this said record produces over 35 objections and exceptions by the defendant to the raving, incoherent, muddled, simple language outline of non-existent evidence based upon such people as, those listed in detail below:
“Yuh hear any proof” … “Now if Mrs. Wirschning told Dr. Rosenheck these things, *** why wasn’t he called by the defendant?” (906)
*** “these things” refers to “this copy of Dr. Rosenheck’s report” (905) the prosecutor was waving at the jurors during his summation and specifically “these things” are the detailed typewritten repeated listings if the personal injuries and doctor treatments Mrs. Wirschning stated to Dr. Rosenheck to be her total claim for damages against the Allstate Insurance Company typed on the typewritten report of Dr. Rosenheck in reference to Mrs. Wirschning’s physical examination By Dr. Rosenheck; who specifically examined the portions of her body she claimed were injured and that constituted her total claim for damages against Allstate Insurance Company, namely Bursitis of the right shoulder and bruises of the right thigh. (Defendant’s Exhibit I in Evidence)
Throughout the trial and especially during his final summation the prosecutor stated the defendant was guilty because the defendant did not produce any witnesses to disprove the indictment, which is ground for reversal (Peo. v. Carbonaro 301 N.Y. 39,42; Peo. v. Manning 278 N.Y. 40, 43).
Detective Alva Becker: was emphasized by the prosecution as an extremely important witness; who took part in all the important steps in the lengthy prosecution of the defendant. A. Nixon’s opening address stressed that for these reasons the important, key, witness, Alva Becker would be called by the prosecution as a witness. Alva Becker was the detective who was present at the above mentioned non-existent Grand Jury hearing wherein Frank Gulotta openly displayed his fanatic, frantic henchman efforts to prevent the prosecution’s tutored perjurous complaints from breaking down and confessing their perjuries under the questioning of them by the defendant. Alva Becker was the detective who immediately after defendant’s first visit to the District Attorney’s office took the defendant in custody to defendant’s office to disprove the defendant’s detailed statements that Mrs. Wirschning did retain defendant for her injury claim and that Mrs. Wirschning retained the defendant as her lawyer to represent her in an impending separation action and as part payment for her agreed fee for her separation Mrs. Wirschning deposited her $200 share of her settlement money with the defendant and in accordance with her agreement the defendant was holding the $200 in escrow as part payment toward her separation action fee and also to guarantee his minimum fee of $150 for defendant’s completed works should Mrs. Wirschning decide not to go ahead with the separation action. This is the Detective Becker who saw the two titled file sized envelopes in defendant’s filing cabinet; one file size envelope titled Mrs. Wirschning’s injury claim and the other file sized envelope titled for Mrs. Wirschning’s separation case. Even the fraudulently altered Nathan Birchall’s notes produce records of Alva Becker’s admissions that he, Alva Becker, opened the two said file envelopes and inspected the various papers and copies of the statements of account sent to Mrs. Wirschning in reference to her impending separation action; it is this Alva Becker, who also admitted that he opened the small letter sized envelope and saw the $200 Mrs. Wirschning deposited with defendant being held in escrow in said titled envelope as the defendant stated to the District Attorney; it was this Alva Becker, who, while inspecting the other file envelope on Mrs. Wirschning’s injury claim and reading the various papers in said file, he, Alva Becker purloined the written retainer of Mr. and Mrs. Wirschning. This is the Detective Becker who sat at the prosecution’s table through the trial but repeatedly the prosecution refused to call him as a witness. In final summation the prosecution repeatedly mentions the important works of this Detective Becker and warned the jury that the defendant should have called Detective Becker as a witness to disprove the charges against the defendant, the prosecutor even demanded to know why the defendant did not call so important a witness. (904-905) These promises by the prosecution to call the important witness Detective Alva Becker are unkept promises of proof of material facts, and constitute reversible error because the prosecutor is chargeable with knowledge that it is not available, or that it cannot be legally produced. (Peo. v. Wolf 183 N.Y. 464; Peo. v. Distefano 2nd D., 276 AD 852; Peo v. Simmins id., 125 A.D. 234).
Dr. Milton H. Robbins’ lawyer brother in law: the often mentioned unnamed lawyer brother in law of Dr. Milton E. Robbins, who Dr. Robbins admitted was his brother in law for over 25 years and that Dr. Robbins testified that he contacted his lawyer brother in law and concocted a new story of knowing nothing about everything during the two week period after Dr. Robbins voluntarily appeared at the District Attorney’s office and gave a detailed statement as to Mr. and Mrs. Wirschning and the Wirschning’s background and his treatments to her for the injuries stated in his hand written bill he gave to her husband. The prosecution did not call Dr. Robbins’ lawyer brother in law to impeach these admissions of Dr. Robbins and refused to call him to impeach the admissions of Dr. Robbins that he under threats of suicide made defendant remove hundreds of Dr. Robbins X-Ray records from Dr. Robbins’ office; which said admission tended to confirm defendant’s detailed testimony that Dr. Robbins ordered the defendant to destroy the many X-Rays in order to destroy the many year illegal activities with his lawyer brother in law. (918, 920-921)
J.D.C. Murray: an old Nassau County lawyer and friend of Frank Gulotta. The same lawyer that Dr. Robbins admitted assisted him and his brother in law in concocting a new story for him during a two week period after Dr. Robbins gave his first unpremeditated statement to the District Attorney without the assistance of any lawyer. This is the J.D.C Murray the prosecutor refused to call as a witness but emphasized J.D.C Murray’s important works in the case in his final summation stating that J.D.C. Murray did not state: “Look, go in tell a pack o’ lies … an’ I will come down there with yuh an’ yuh tell a pack o’ lies an’ then yuh get on the stand an’ yuh commit perjury.” (920) Although J.D.C Murray was not called as a witness, A. Nixon explains how J.D.C. Murray “comes in with Dr. Robbins and he tells the truth.” (919-920)
In spite of defendant’s repeated objections and exceptions A. Nixon outlined the entire prosecution’s case in his final summation upon the non-existent evidence of these seven above mentioned people who were never called as witnesses in the entire trial and who the prosecution repeatedly refused to call as witnesses during the trial. (901-935) This is in complete contradiction with the Code of Criminal Procedure; the statutory law governing criminal trials, namely:
Section 388 sub. 3: “The District Attorney, or other counsel for the
Section 389: “Defendant presumed innocent until contrary proved.”
14th Amendment, N.Y. Constitution Art, 1, Sec. 6.
Under due process of law an accused is not required to establish his
The judges charge to the jury.
“he gave her $200 in
The important contentions of the prosecution were that Mrs. Elizabeth Wirschning never retained defendant and never received any legal services in reference to a separation action and further that Mrs. Wirschning only visited the defendant’s office once. Finally the judge in a highly improper, prejudicial final remark in his charge to the jury implies automatic guilt to the defendant despite the fact the in law he, the judge, charges the jury that all of the above mentioned contentions of the prosecution have been proven false and that defendant’s proven contentions are true, namely,
further charge you that even though the defendant,
This was a trial lasting over two weeks with an extant trial record of 991 pages. Most of the judge’s charge, aside from the above mentioned nine pages of highly prejudicial recollections of the “important phases of the testimony” (951-959) was devoted to reading the indictment and solemnly rereading the indictment emphasizing the felonious nature of the crimes and the solemnity of the indictment. The record will disclose that it was a charge in name only, wholly failing to guide a layman on the essential elements of the defendant’s defense and in fact charging the defendant with guilt because of defendant’s defense and in fact charging the defendant with guilt because defendant’s defense was proven to be true. The charge was also wholly failing in guiding a layman on the essential elements of the crime and the specific theory of guilt. (Peo. v. Lupo 305 N.Y. 448) to assure a fair trial (Peo. v. Wallens, 297 N.Y. 57, 62, a right inherent in due process (14th Am’t N.Y. Const’n, Art. 1 sec. 6; cf. Peo. v. Leavitt, 301 N.Y. 113,117).
The charge completely ignored the good character of the defendant. The defendant took the stand and testified in detail as to his good background and character, and good reputation. Defendant emphasized his lengthy honorable volunteer service in World War II and his lengthy religious education in parochial school and university and defendant’s honorable service in the N.Y. State Police and Nassau County Police forces and his honorable position in his community as a practicing lawyer and the necessary good life history for these positions, especially his position as a lawyer. This is an important omission in the judge’s charge. This is reversible error even though no request was made to charge the jury. (Peo. v. Visicio 3rd Dept. 241 AD 499). In the judge’s charge to the jury there was no mention of the prosecution’s refusal to deny or impeach the defendant’s detailed repeated statements as to Fred Wirschning’s bad character, namely, that he is a known felonious car thief, a wayward husband who resided with negro prostitutes. These statements are confirmed even in the prosecutions Nathan Birchall records of Fred Wirschning’s admissions to defendant in the District Attorney’s office. The judge refused to charge the felonious admissions of Mrs. Elizabeth Wirschning who admitted she claimed two different sets of injuries and further that she signed her general release and $400 settlement check. The judge refused to charge the jury as to the confessed bad character of Dr. Milton E. Robbins, who in open Court confessed to the felonious crime of committing perjury, namely, in swearing to a false concocted story about this matter; and further Dr. Robbins’ felonious admission of writing a fraudulent medical bill.
The Court refused to charge the extremely extensive range
of interest of these self admitted
felonious chief witnesses of the
prosecution; who individually actually confessed in open Court to
the crimes charged against the defendant and also confessed to their
felonious perjurous complaints
against the defendant upon which the
indictment rests. This was of extreme importance to the jury.
v. Keboe 2nd Dept. 253 AD 762 aff’d 278 N.Y 518. The harm
was intensified in leaving out the
fact of the willfulness of the
nature of the perjurous testimony which preceded the judicial
during cross examinations. The defendant later takes
exception to the judges highly irregular charge
to the jury which
charge deviates from the requisites as set down in section 420 C.C.P.
but in each
instant the judge refuses to correct his charge.
“in reference to statements of Elizabeth
Wirschning that she
judge refused to so charge and the defendant took exception.
“I further request you to charge that in
reference to the statement
The Court refused to so charge and the defendant took exception. These two requested charges are based upon the trial testimony and defendant’s requests of the prosecution and the witnesses of the prosecution to produce the alleged real evidence. The terminology of the prepared requests to charge was abstracted directly from the text Richardson on the Law of Evidence 8th ed. Chap: Presumptions; sec. Presumptions Arising from Withholding Evidence.
The defendant further requested the
judge to charge; in reference
The judge refused to so charge the jury and
the defendant took exception. The
“I, as Elizabeth
Wirschning’s attorney acted as her agent
The Court refused to so charge and the defendant took exception.
The defendant’s requests for the judge to charge the jury were
based on the important evidenceproduced during the trial. The judge
is disallowing the defendant’s requests to charge the jury actually
prevented the jury from being “the exclusive judges of all questions
of fact” (Sec. 420, C.C.P. Charge
to the jury) in that he, the judge
in his original charge to the jury removed these facts from the
consideration by charging the jury that they could not
consider the facts later stressed in defendant’s
requests to charge
Defendant’s Post Trial and Appeal Motions:
“Where the defendant is convicted of a crime the clerk of the Court
Defendant devoted much of the 17 page motion to cogent reasons for said motion, based upon specific personal occurrences of injustice because of delays in the delivery of stenographic notes. The motion was specific and detailed in its repeated petitions for expeditious adjudication, in order to prevent or curtail possible intentional alteration of the defendant’s lengthy trial record. Due to the District Attorney’s failure to reply, the motion was put aside a week. Thereafter, a month and a half later, when one of the trial stenographers, Michael Wowk, delivered his record of the defendant’s trial, the said appellate court dismissed defendant’s motion as academic. Defendant’s said motion was later stressed in defendant’s appeal brief in reference to the somewhat similar situation in the later decided case in this Court of Peo. v. Chester Pitts. (6 N.Y. 2nd 288)
On October 5, 1959, the defendant made appication to the County Court to amend the trial record. Defendant submitted 794 Proposed Amendments, 320 typewritten pages in length to the County Court; said amendments substantially corrected the fraudulently altered trial minutes of defendant’s trial produced by Michael Wowk, one of the trial stenographers at the defendant’s trial. The defendant incorporated said 794 Amendments in his later motion to extend time to perfect his appeal in the Appellate Division of the Supreme Court. Defendant also incorporated said 794 Amendments by reference in his appeal brief in said Court. Defendant extracted several excerpts from the wantonly fraudulently altered trial minutes produced by Michael Wowk, the Nassau County Court stenographer and included said excerpts in defendant’s lower appeal court brief. Two of said excerpts were included in defendant’s earlier motion to extend the time in which to perfect the appeal. These two said excerpts are included below:
“And I say that Mr. and Mrs. Wirschning knew that
“The conversation in these records they claim
The above excerpts of the defendant’s trial record as produced by
Michael Wowk, the
County Court’s Reporter are examples of the wanton fraudulent
alteration of the defendant’s trial
records which said record is
substantially amended is defendant’s 794 Amendments to the
Judgment procured by fraud and in violation of Constitutional
Many excerpts of the trial judge William J. Sullivan and prosecutor, Arthur Nixon, trial statements and testimony for the completely faltering and breaking down perjurous chief witnesses were laboriously culled from the extant records of the trial minutes. Some of the almost continuous wanton, frantic, impish efforts of judge and prosecutor undertaken in concert are still extant in the said record of the extremely long trial. Substantial examples were abstracted from the trial minutes and the judge’s and prosecutor’s wanton, frantic, fanatic, kangaroo court style of stifling of the breaking down confessions of the completely faltering perjurous chief witnesses, namely, Mrs. Elizabeth Wirschning, Dr. Milton E. Robbins and especially the perverted notorious, felonious car thief, Fred Wirschning, wayward husband of Mrs. Wirschning, were incorporated in defendant’s appeal brief. Examples of these wanton actions by judge and prosecutor are included below; the first example is an excerpt from direct examination:
I will repeat the question. Up to May
of 1957 did you know
Such illegal, frantic, fanatic concerted efforts of judge and prosecutor continually stifle the defendant’s cross examinations of Fred Wirschning (pages 276 to 333). An example of the wanton efforts of judge and prosecutor in stifling the defendant’s cross examination is entered below:
Do you remember coming into my
The chief henchman of defendant’s persecution through illegal prosecution, such as Frank Gulotta, Edward Robinson, Jr. (presently both Supreme Court Judges) and Manual Levine, District Attorney of Nassau County, are above the law they so wantonly create and administer. The falseness of defendant’s indictment and the falseness of the prosecution’s witnesses’ complaining statements and perjurous testimony are not only known to these men such as Frank Gulotta, Edward Robinson Jr. and Manual Levine and other important members of the judiciary but in addition the said perjuries and falsehoods were frantically and fanatically, fraudulently created by and for these men. For me to overlook these wantonly impish lawless actions of these men and other men mentioned in my lower court appeal brief would not only be the undermining of my appeal rights but more important it would be a tacit resignation to the perpetuation of such wantonly impish lawless actions by important members of the judiciary.
The aforementioned setting aside of the processes of law and order by such men as Frank Gulotta, Edward Robinson, Jr. and Manual Levine in their gestapo like persecution of this defendant through illegal prosecution resolves our entire Constitutional form of democratic government into a façade for a dynamic labyrintical, omnipotent, lawless, judicial dictatorship.
Francis E. Dec
Defendant-Appellant pro se.
April 26, 1961 ▲ BACK TO TOP
SCANS OF ORIGINAL
COVER | PAGE 1 | PAGE 2 | PAGE 3 | PAGE 4 | PAGE 5 | PAGE 6 | PAGE 7 | PAGE 8 | PAGE 9 | PAGE 10 |
PAGE 11 | PAGE 12 | PAGE 13 | PAGE 14 | PAGE 15 | PAGE 16 | PAGE 17 | PAGE 18 | PAGE 19 | PAGE 20 |
PAGE 21 | PAGE 22 | PAGE 23 | PAGE 24 | PAGE 25 | PAGE 26 | PAGE 27 | PAGE 28 | PAGE 29 | PAGE 30 |
PAGE 31 | PAGE 32 | PAGE 33 | PAGE 34 | PAGE 35 | PAGE 36 | PAGE 37 | PAGE 38 | PAGE 39 | PAGE 40 |
PAGE 41 | PAGE 42 | PAGE 43 | PAGE 44 | PAGE 45
HUGE THANKS GO OUT TO TED TORBICH FOR PROCURING DEC'S APPEAL BRIEF!
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Original rants by Francis E. Dec, esq. Audio recorded by Boyd "Doc" Britton,1986
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- -THE OFFICIAL FRANCIS E DEC FANCLUB -- "An' then yuh get on the stand an' yuh commit perjury." - -