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COURT OF APPEALS
STATE OF NEW YORK
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THE PEOPLE OF THE STATE OF NEW YORK,
Respondent,
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FRANCIS E. DEC,
Appellant,
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APPELLANT’S REPLY BRIEF TO
RESPONDENT’S BRIEF
The respondent’s brief consists of 18 printed pages with
subtitles. This brief is in answer to each
of respondent’s contentions.
The first page of respondent’s brief from pages 2 to 9
inclusively is under the title “The People’s
Case” which purports to relate evidence of the trial, which in
reality is composed of partial and
extremely short excerpts given false significance or opinions of the
evidence which in reality are
either completely false or distorted to favor the respondent.
The next item in respondent’s brief titled “Point I Guilt was
established beyond a reasonable
doubt.” on page 10 and 11 is a brief recapitulation of respondent’s
pages 2 to 9.
The following item in respondent’s brief is titled “Point II
Defendant received a fair trial” it extends
from page 11 to 16. The respondent claims to attempt “to come
squarely to grips with the errors which
defendant claims” by commencing on page 11 a summary of 4 portion of
the titles in defendant’s brief
and thereafter the respondent devotes most of page 12 to informing
this Court (in complete disregard
of the specific statements of the Code of Criminal Procedure and
relevant case law) that the
respondent finds nothing wrong with the indictment therefore all of
the pretrial motions of defendant
were improper. Respondent further on page 12 informs this Court not
to consider the portion of
defendant’s brief under the heading on page 15. Respondent bases
his claim on Art, VI Sec. 7. N.Y.
Const. by improperly quoting only a portion of defendant’s said
heading in order to create respondent’s
false conclusion. Actually, defendant’s complete heading also states
“Judgment below standard of
rebutting the presumption of innocence set forth in Sec. 389 C.C.P.
This question of law presented in
detail in said portion of defendant’s brief is based upon the many
cases cited supporting the views of
the text Powers of the New York Court of Appeals (1952) by
Cohen and Karger in section 198 titled:
Scope of Review in Non Capital Cases (a) Review as Regards
Findings of Fact Made Below.
At the bottom of respondent’s page 12 and part of page 13
respondent cites one inappropriate
case that in no way answers any of the many objected to matters
stressed in that portion of
defendant’s brief, which matters respondent refers to indefinitely
as “matter of discretion for the trial
judge”. In no way does the respondent answer even one of the
important detailed objections in that
portion of appellant’s brief, namely, for example, appellant’s
objections to the systematic and often
repeated impish stifling by judge and prosecutor of the appellant’s
questions during cross examination;
questions demanding that the perjurous chief witness, Mrs. Elizabeth
Wirschning, answer defendant
whether or not she signed her general release and settlement check.
The repeated stifling was
executed by the repeated objections of the Ass’t Dist. Att’y A.
Nixon, “I object your Honor. That is
the ultimate for this jury to decide [in] this case.” which
objection the Court repeatedly sustained.
There is no trial or cross examination if the defendant is prevented
from questioning the chief
complaining witness of the single definite item constituting the
basis of the criminal charges by
the repeated orders of the trial judge in collusion with the
prosecutor.
Further on page 13 of respondent’s brief respondent claims
defendant discusses “Dr. Robbins with
no apparent reason”. The respondent flatly denies the importance of
the discussion of Dr. Milton
Robbins, the self admitted perjurer and liar, in reference to
defendant’s discussion of Dr. Robbins’
two contradictory sworn statements which original unpremeditated
statements by Dr. Robbins
unassisted by any lawyer defendant repeatedly demanded during the
trial that the existent recorded
first unpremeditated statement by Dr. Robbins to the District
Attorney be produced by the District Attorney. The extant trial
minutes produce defendant’s requests, namely, “Mr. Dec: Your Honor;
I now make a request to see the first statement made and recorded by
the District Attorney, in that
the District Attorney is here present in this Court.” (p391). The
Court refused this request claiming
that Dr. Robbins statement was not in evidence therefore the
defendant could not see it. The
defendant then repeated his request and the Court again refused to
allow the defendant to see any
part of the first unpremeditated statement of Dr. Robbins, the
witness for the prosecution, first made
to the District Attorney and which statement had a direct bearing on
the subject matter of his
testimony. Appellant took exception for the purpose of appeal on
page 392 in the trial minutes.
Appellant did not object to such vicious unconstitutional oppression
for “no apparent reason” but
instead relied upon established rules of criminal law which are
confirmed in the recent decision of
the Court of Appeals of New York in Peo. v. Luis Hemmel Rosario
decided March 23, 1961.
In respondent’s brief at the bottom of page 13 and on page 14,
the respondent informs this Court
of respondent’s incorrect version of the pertinent portions of the
trial in a vain attempt to automatically
[obscured] defendant’s several multiple detailed motions for
mistrial. On page 15 in the respondent’s
brief, the respondent in an incoherent short [obscured] chooses one
of the many reversible errors
committed by the prosecutor, A. Nixon, during his summation, which
errors were stressed in
appellant’s brief, and combines this error with the reversible error
of the judge who like A. Nixon also
implied that the “Nat Birchall” records constituted a confession. In
the incoherent brief discussion the
respondent admits that the extant trial records of the judge’s
charge to the jury defines “Nat Birchall’s”
records as “a statement of the defendant whether in the course of
prejudicial proceedings or given to
a private person can be introduced in evidence against him but that
statement alone is not sufficient
to warrant a defendant’s conviction without additional proof that
the crime charged has been
committed.” (p.949) An inspection of appellant’s brief’s cited text
Richardson on the Law of Evidence
will reveal that the judge’s said definition of the evidentiary
value of “Nat Birchall’s” records is identical
to the evidentiary value given only to a complete confession of the
crimes charged and also the
judge’s statement is a verbatim excerpt of Sec. 395 of the Code
of Criminal Procedure titled:
Confession of defendant, when evidence, and its effect. with
added affirmativeness on the judge’s
part definitely defining “Nat Birchall’s fraudulently altered
records as an all encompassing confession.
Rest of page 16 of the respondent’s brief is devoted to a
statement relying upon the theory that
defendant was automatically guilty when indicted and therefore it
was defendant’s duty to disprove
the indictment.
The respondent devotes the remainder of his brief, from the
bottom of page 16 to page 18 to the
title “The Charge”, “In answer to defendant’s brief pp. 36-43.”
Apparently respondent overlooked
[obscured] pages 42 to 45 inclusively of the appellant’s brief in
reference to the appellant’s detailed
presentation of the similarity of appellant’s case and Peo. v.
Pitts Case (6 N.Y. 2nd 288). Also the
respondent apparently overlooked the appellant’s detailed
presentation under the title “Judgment
procured by Fraud and in Violation of Constitutional Rights”
commencing on page 43.
On page 16 the respondent informs this Court that respondent
contends that the judge’s charge
was not improper. Further that although the extant trial record of
appellant’s repeated direct and cross
examination testimony extends from page 572 to 846 inclusively
wherein defendant necessarily directly
and indirectly repeatedly testifies as to his good character,
education, good background and honorable
position as a well-known practicing lawyer in his community, the
respondent wantonly claims no such
testimony is presented in the record and then in obvious contempt of
the intelligence of this Court that
defendant made “slanderous … outrageous charges” regarding the
prosecution’s witnesses and in
addition to these brazen falsehoods the respondent sums up
compounding these falsehoods stating:
“there is not one scintilla of evidence available to prove the bad
character of the Wirschning’s or any
other witness who testified against the accused.” The appeal brief
in this Court and especially the
lower court appeal brief, which I now incorporate as part of this
reply, supply a plethora of excerpts
from the trial minutes wherein the self admitted perjurer Mrs.
Wirschning admitted she personally
claimed only her original detailed claims of injuries as found in
the Allstate Insurance Company
records (Defendant’s Exhibit I in Evidence) which injuries are in
complete contradiction to her new
trial claim of a slight hurt wrist (pp. 77, 79, 80-81). Mrs.
Wirschning also broke down and admitted
she signed her general release and settlement check (pp. 222,
858-859). Even the Dist. Att’y’s N.
Birchall fraudulent records produce admissions of her husband Fred
Wirschning stating he live with
negro prostitutes for immoral purposes, on page 19. The trial
record discloses that Dr. Robbins broke
down and admitted he concocted a story about the matters being tried
in collusion with two lawyers
and that he was a perjurer and liar (390-391) Wantonly
disregarding these felonious and immoral admissions of the
prosecution’s witnesses the respondent claims that “the trial judge
made no
mistake in omitting to instruct the jury on the effect of character
testimony”. These and other felonious
and immoral bad character indications were testified to by the
defendant in reference to the witnesses
for the prosecution (pp. 572-846) which said testimony was never
denied or impeached by
the prosecution.
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Conclusion
The judgment appealed from should be reversed and the
indictment dismissed.
Respectfully submitted,
Francis E. Dec
Appellant pro se.
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