Although Cliff Herberg’s misconduct in the Dr. Calvin Day case was first exposed in August 2013 at Dr. Day’s Hearing for a New Trial, it went largely unacknowledged by the media for some 28 months. In fact the Express News (EN), mystified that Herberg was not allowed to stay on the DA staff after Nico La Hood took office, wrote a couple of articles in support of Herberg. Now EN knows at least one of the reasons for LaHood’s decision.

What continues to fascinate those “in the know” is that even though the media has “rediscovered” prosecution misconduct that was made public over 2 years earlier, the media still does not understand or appreciate the impact of Herberg’s misconduct in denying Dr. Day a “not guilty” verdict. This fact continues to be unappreciated and unreported by the media largely because the media has read only the recent judge’s order that summarizes the prosecution misconduct without also having read the transcript of the 8/26/2013 Hearing for a New Trial on which the judge’s order is based (attached).

The transcript of the Hearing for a New Trial held on 8/26/2013 clearly illustrates that Herberg’s act of misconduct prevented in a big way the jury from seeing and hearing the entirety of the defense evidence; the jury was compelled to render a decision after being afforded a view of only a small portion of the defense materials. Had the jury been given the opportunity to review the entirety of the defense materials, they would have quickly realized that the width of the chasm between “she said he said” and “beyond a reasonable doubt” was far too great a distance to bridge, and would have rendered a “not guilty” verdict after a short deliberation.

Reading Judge Ron Rangel’s recent order that confirmed the prosecution misconduct, without reading the 8/26/2013 Hearing for a New Trial transcript on which the judge’s order was based, is analogous to reading the CliffsNotes on a novel without reading the novel itself.

The CliffsNotes in this instance don’t convey just how damaging Herberg’s threat was to the defense and how it kept most of the defense materials away from the jury. Thus reading only the CliffsNotes gives one the impression that the prosecution, in committing acts of misconduct, sank their own ship and missed their opportunity to convict Dr. Day.
Reading the novel on the other hand, gives one the opposite impression — that the acts of misconduct sank not the prosecution’s ship, but instead sank the defense’s ship by preventing much of the defense materials from getting to the jury, thereby depriving Dr. Day of a not guilty verdict, and depriving Dr. Day of his sixth amendment civil right to conflict free counsel.

Those who have reported and/or those who will continue to report on the Dr. Calvin Day case, as well as students of law and those who write laws, should consider reading the attached transcript of the 8/26/2013 Hearing for a New Trial. In addition to demonstrating that Dr. Day was denied a “not guilty” verdict, the hearing demonstrated the cunning of Dr. Day’s primary accuser in putting Day’s attorneys at a disadvantage. Indeed, whatever doubts Dr. Day’s attorneys may have had about Dr. Day’s truthfulness, those doubts were erased when they observed for themselves what they describe in testimony as a lie in which she told them one thing at the pretrial meeting and then testified otherwise in court.

Here is a summary of some of the more intriguing information that is found in the in the novel (i.e., the 2013 transcript from the Hearing for a New Trial) but that is not clearly delineated in the CliffsNotes (i.e., the judge’s recent order):

  • At the primary accuser’s request, she and her attorney met with Dr. Day’s attorneys in the weeks preceding the trial and during that meeting the primary accuser requested a signed document from Dr. Day stating that he would not sue her if she admitted that she lied at the medical board hearing. This meeting served as the reference for subsequent allegations of witness tampering. Although an agreement was drawn up as per the primary accuser’s request, the document itself was never executed because Dr. Day’s attorneys, on further consideration, believed that it was not an appropriate course of action. The primary accuser was not happy that she did not get her requested document and then according to Dr. Day’s attorneys testimony, later turned them by apparently participating in an attempt to make it appear as if they had tried to get her to change her testimony.
  • Herberg used this pretrial meeting between Dr. Day’s attorneys and the primary accuser to threaten Dr. Day’s attorneys with an ongoing witness tampering investigation when in fact no such investigation existed, and this threat was timed to occur just prior to cross examination of the State’s star witness.
  • The practical implication of Herberg’s threat meant that the star witness in the Dr. Calvin Day case who was about to be cross examined by Dr. Day’s attorneys was the same person who they perceived to be the key witness against them in the witness tampering investigation, thereby creating a conflict of interest between Dr. Day and his attorneys and depriving Dr. Day of his sixth amendment rights to conflict free counsel. And it was apparently no coincidence that the timing of Herberg’s threat came immediately prior to their cross examination.
  • Dr. Day’s attorneys filed for a mistrial but it was denied, ergo putting them in a position of representing Dr. Day while having to protect themselves. The conflict of interest created by Herberg’s threat had in effect of depriving Dr. Day of his sixth amendment civil right to conflict free counsel.
  • Testimony at the 8/26/2013 Hearing for a New Trial indicates that following Herberg’s threat, Dr. Day’s attorneys took protective measures to include the avoidance of anything that would anger Dr. Day’s primary accuser. Measures taken included

o   The avoidance of cross examining the primary accuser about her about her apparent history of being a scammer,
o   covering only a few of the more than 40 inconsistencies (i.e., changes in her story), making sure to skip over the ones that might anger her, and
o   handling the entire cross examination with “kid gloves”.

  • In addition to not presenting all of the evidence and questioning the primary accuser on only those inconsistencies that would be less likely to anger her, Dr. Day who was scheduled to testify, did not do so.
  • Other defense witnesses who were scheduled to testify were not called to the stand and in fact the defense called only three witnesses, whereas the witness list submitted by the defense to the court prior to trial contained more than 130 names.

The fact that prosecutors in the Day case resorted to acts of misconduct in an attempt to win the Dr. Day case is evidence in and of itself that prosecutors should have never brought the case to trial in the first place; this is confirmed by the following facts that were known at the outset:

  • this was a “she said he said case”,
  • almost exclusively based on hearsay by a woman

o   who had won acting awards and
o   who appears to have had a long history of running scams,

  • was without physical evidence or eyewitnesses, and
  • one where Dr. Day had voluntarily taken and easily passed a polygraph.

Although Judge Ron Rangel in his 12/16/2015 order determined that assistant DA’s Cliff Herberg and Catherine Babbitt engaged in misconduct that prevented a fair trial, denied Dr. Day of his not guilty verdict, and denied Dr. Day of his sixth amendment civil right to conflict free counsel, he admonished Susan Reed specifically only for her “she doth protests too much” in court behavior that many observers viewed as a confirmatory reaction to Dr. Day’s Las Vegas tryst allegation. Although the role of Susan Reed in the acts of misconduct by Herberg and Babbitt is uncertain, Reed nevertheless bears responsibility as captain of the ship for the actions of her underlings.

As confirmation, Reed appears to have condoned their actions, otherwise she would have dismissed both Herberg and Babbitt soon after their misconduct actions were exposed on 8/26/2013 in Dr. Day’s Hearing for a New Trial.

A “vendetta” type attitude against Dr. Day does appear to have existed as exemplified by the fact that Reed and her office insisted on prosecuting Dr. Day instead of turning the case over to a special prosecutor despite the fact that

  • Reed was a former Dr. Day patient,
  • multiple other members of her DA’s office were former or current patients, and
  • Dr. Day had a relationship with family members of Assistant DA Catherine Babbitt (Babbitt was the lead prosecutor in the Dr. Calvin Day case).

An even more compelling argument for a Venedetta is that even after Reed filed a successful motion to open the sealed motion for her recusal and learned firsthand that her alleged tryst in Vegas with Dr. Day was at the center of the motion to have her recused, the Reed DA Office nevertheless proceeded to pursue Dr. Day’s prosecution themselves despite now having this additional reason for recusal. How else can this peculiar behavior be explained other than Reed and/or member(s) of her staff having bad faith personal reasons (i.e., a personal vendetta) for doing so?

Whereas Susan Reed appears to deserve the recent bashing from the San Antonio Express News on all of the above issues, Reed does not deserve to have Dr. Calvin Day’s primary accuser blame Susan Reed for the primary accuser’s refusal to testify when it is clearly apparent that the primary accuser chose not to testify at Dr. Day’s new trial because she feared being exposed after she was shown the evidence that attorney Michael McCrum had accumulated against her. Blaming Susan Reed for her refusal to testify appears to be nothing more than poorly concealed face-saving gesture by the primary accuser.  Dr. Day’s primary accuser has a long history of apparent manipulative behavior episodes and this appears to be just another example of it. Nevertheless, Susan Reed having the personal experience of being maligned by Dr. Day’s primary accuser is karma at its best, especially considering how hard Reed and her staff fought on behalf of this primary accuser in their failed attempt to get a conviction. The primary accuser has now turned on Reed in the same fashion that she turned on Dr. Day’s attorneys after she failed in her attempt to obtain a written agreement from them stating that Dr. Day would not sue her for lying. Perhaps, now that Reed has seen a glimpse of what appears to be the primary accuser’s true colors, Reed might now consider re-examining the whole of the evidence that has been accumulated against Dr. Day’s primary accuser, and in so doing Reed may have an epiphany

  • that Dr. Day was “played”,
  • that the police detective was “played”,
  • that her assistant DA’s were “played”, and
  • that now Reed herself is being “played”
  • all by a person who appears to be a highly skilled psychopath who now appears to be pursuing a divide and conquer strategy.

It now appears that the discovery obtained in the evidence collecting process in preparation for trial, if turned over to authorities, could possibly result in a continuing investigation of Dr. Day’s primary accuser for multiple leads for possible crimes that include but are not limited to

  • forgery,
  • theft by check,
  • filing false affidavits with government agencies for financial gain,
  • violation of real estate laws,
  • income tax evasion,
  • insurance fraud,
  • and perjury in the Dr. Day case.

The following two formidable obstacles stand in the way of having authorities use the acquired discovery evidence to complete the remaining steps to investigate, officially charge, and prosecute the primary accuser for the crimes that may have possibly committed:
1)      Evidence indicates that the lead detective in Dr. Calvin Day’s case appears to have developed a personal relationship with the primary accuser and this detective is married to a police captain.

  • This is the same detective who filed the false arrest warrant against Dr. Day by claiming the sketch drawn by the accuser of a penis in the hard (erect) state matched police photos of Dr. Day’s penis in the soft (flaccid) state. That magic trick is so good that perhaps the detective should audition for Penn & Teller.
  • This is the same police detective who compelled Dr. Day to leave his office for a genitalia photoshoot while he was in the middle of performing multiple Mohs skin cancer surgeries and after a bleeding patient was escorted right past her.
  • This is the same police detective who had him arrested while he was in the middle of his afternoon clinic on 1/27/2011. Although the detective later stated that the arrest was made late in the day to minimize the impact to patients, Dr. Day’s clinic ran from 3 PM to 7 PM and thus at 4 PM he still had three hours of patients to see, some of whom had driven hundreds of miles to see him. Moreover, Dr. Day’s attorney had submitted a letter to authorities stating that if her were to be arrested that he be allowed for the sake of patient care to voluntarily surrender himself. If the detective were truly concerned about Dr. Day’s patients then she would have honored that letter from Dr. Day’s attorney.

Given these facts, it is apparent that any investigation would have to circumvent the detective, the police captain, and perhaps other police officers because Dr. Day’s primary accuser appears to have made approximately 60 calls to police including at least twenty-eight 911 calls and thus is likely to have other personal contacts within SAPD.
2)      Should any of the above concerns reach the level of the DA’s office, then there are additional obstacles to overcome. The current DA, Nico La Hood together with Andrew Del Cueto represented the primary accuser against the Susan Reed’s DA office in Dr. Day’s trial and representation by Del Cueto appears to be ongoing; thus prosecuting her will be difficult. DA La Hood would no doubt recuse himself and his office because he would have a conflict of interest. Nevertheless it would appear to be in La Hood’s best interest to make arrangements for an aggressive prosecution of Dr. Day’s primary accuser for any charges that reach his office because his failure to do so would undoubtedly result in accusations of exhibiting the same type of favoritism that haunted Reed during her tenure, as for example when Reed averted a Grand Jury from considering the case of one of her assistants, Catherine Babbitt, who ran over and killed a mom pushing a baby carriage on a school morning when the streets were dry and the skid marks were apparently found to occur after the impact.

After being indicted over four years ago Dr. Day has still not been brought to trial on a pending case involving a copycat allegation, an allegation that was made not at the time it is alleged to have occurred in 2009 but instead on the heels of the negative mega media event surrounding Dr. Day’s arrest on 1/27/2011.  His defense team has uncovered similar types of incriminating evidence against the person who filed this copycat allegation as they found against his primary accuser (i.e., birds of a feather).