Pagano told the judge that Diaz, who works as a bartender in Florida, “did drive to Florida in an RV,” and that her Facebook postings reveal that “she believes that this whole Coronavirus thing is a hoax and it’s a sham.”
“She certainly is not holding herself out to be a person that is concerned at all about contracting the Coronavirus,” Pagano said.
The judge was miffed.
“This witness has made it clear with her own words that she doesn’t find it necessary to wear a mask and that’s willing to come out” to Philadelphia,” the judge said, about Diaz’s Facebook posts. “And so I don’t understand why we’re here not having her here if she’s willing to come out.”
For almost a full year, the D.A.’s office had been claiming that Diaz’s poor health was preventing her from appearing in Common Pleas Court.
At a March 12, 2020 preliminary hearing, the D.A.’s office had filed a motion saying that due to concerns over COVID, Diaz was unable to safely travel to Philadelphia.
When the hearing was continued until April 30, 2020, the D.A’s office stated in a motion that flights and hotels could not be booked for Diaz due to her medical condition and the growing threat of COVID.
In that motion, the D.A.’s office stated that Diaz was “simply unable to safely travel to Philadelphia.”
The D.A.’s office further disclosed that on Dec. 20, 2019, Diaz had relocated “temporarily” to Florida with her family. According to a response brief filed by Pagano on July 13, 2020, Diaz traveled from Philadelphia to Florida in a “fully-equipped RV, with a bed and mattress, full bathroom, kitchen couches and fireplace.”
When the preliminary hearing that had been delayed for a year was finally rescheduled for Jan. 7th, ADA Black committed another faux pas. At 12:25 p.m. on Jan. 6th, the night before the preliminary hearing, Black sent an email requesting a continuance. She neglected to mention that she had already told her witness, who was still down in Florida, not to bother appearing in court the next day.
That prompted Pagano to complain to the judge that the D.A.’s office “have been oblivious to their obligations and duties in the case” while they continue to “ignore the rights of Mr. Holmes” to a speedy trial.
In court, Black then attempted on the fly to redefine what she meant about the health risks associated with bringing Diaz up from Florida to appear in a Philadelphia courtroom.
“Florida seems to be being extremely irresponsible” when it comes to COVID, Black editorialized. In a burst of creativity, Black argued that “part of the decision of the Commonwealth is not bringing someone from Florida who may not believe that a mask is valid into our city that is doing a good job protecting its citizens.”
In other words, Black was no longer worried about protecting Diaz from COVID; now she was worried about protecting the citizens of Philadelphia from Diaz, because Diaz apparently doesn’t believe in wearing a face mask during a pandemic.
Black then apologized to the court, saying, “I should have sent the email earlier.” But she added, “I don’t think that should effect the legal outcome of the case.”
“Nonetheless, my point at the beginning is how I’d like to end, which is, regardless of my intent, if I left the court with the impression that I was not being forthright, I apologize.”
The judge wasn’t buying it.
“I am troubled,” the judge said. “We’re now a year later and the Commonwealth witness, Miss Diaz, never, from what I can see from the docket, has never been in a courtroom in Philadelphia.”
“And each time, the Commonwealth has stated that they were ready to get the case to a preliminary hearing room,” the judge said. “And each time we have been in a preliminary hearing room, the Commonwealth has not been ready.”
An angry Pagano asked that the case be dismissed by the judge with prejudice, which would have barred the D.A. from refiling the charges against Holmes. The judge set a Jan. 13th hearing date to address that motion.
Black told the judge she would be available on that date, but since the judge was challenging her credibility, she was going to have to bring in reinforcements.
“I would like to have a supervisor here that can argue this case now that I can no longer speak on the record because my license to practice law has been implicated,” Black said.
“Absolutely,” the judge said.
LYING IN COURT, ROUND TWO:
A week later, on Jan. 13th, Judge Simmons was back on the bench blasting ADA Black again, only this time in front of a couple of Black’s supervisors: First District Attorney Robert Listenbee and Assistant District Attorney Patricia Cummings.
[In case you want to get a firmer handle on what kind of prosecutors Krasner has recruited to go after cops, as Big Trial has previously reported
, Cummings, who’s the head of the D.A.’s Conviction Integrity Unit, and oversees Black’s work, is herself an ethical disaster. A five-part Showtime series portrayed Cummings as the villain in the jailing of a former high school football star who was falsely accused and sentenced to 25 years in jail without parole for sexually assaulting a four-year-old child.]
In her remarks from the bench, Judge Simmons said she believed Black’s “actions were intentional . . . to the point to be not candid and to mislead this court.”
Pagano told the judge the D.A.’s office deserved no special favors, and that’s why she should grant his motion to dismiss the case with prejudice.
“Make no mistake, they have played hardball with this man every step of the way,” Pagano said about the D.A.’s treatment of his client. “And now they’re looking for this court to play softball with them and it is intolerable.”
Pagano said that the case never would have been filed by the D.A.’s office if the defendant was not “Carl Holmes, Chief Inspector from the Philadelphia Police Department.” As far as Pagano was concerned, the D.A.’s Special Investigations Unit was pursuing a vendetta.
Cummings declined to address the court, saying “I don’t think it’s necessary.”
“I absolutely agree with you,” the judge said.
Judge Simmons told Black’s supervisors that as soon as she learned about Elisa Diaz’s Facebook posts, “as quick as I could snap my fingers” ADA Black “started making argument that, well, it’s really not about the complaining witness, Miss Diaz, it’s about the citizens of Philadelphia.”
As the judge recounted the story, she said that Black argued in court that she didn’t want to have Diaz “go through the airport and come through Philadelphia and put us all at risk.”
“And at that point,” the judge told Black’s supervisors, “I realized I had had enough because if I can’t trust Miss Black or anyone else from the District Attorney’s office who are prosecuting these cases . . . then I don’t know what to do with you, actually, I really don’t.”
“Because as a judge, I cannot, I will not, I do not go out and investigate every comment and statement that’s made from the attorneys that appear in front of me,” the judge said. “That I have to and I must rely on the authenticity and the honesty of the lawyers that appear in front of us. All of us judges must.”
The judge told Black’s supervisors that she had concluded “Miss Black’s actions were inappropriate, they were wrong, they were intentional.”
“They do rise to the level of prosecutorial misconduct,” the judge said, but it didn’t reach the level of misconduct required to dismiss the case with prejudice.
The judge then denied Pagano’s motion to dismiss the case against Holmes with prejudice. But she advised Black’s supervisors to “seriously take an honest, clean-slate view of what’s been going on [with this case] since October of 2019,” when it was first filed, before the D.A.’s office decided what to do next.
Against the backdrop of the pandemic, when the courts have basically been closed for a year, and the backlog of cases is overwhelming, the judge was asking the D.A.’s office to reconsider if they really needed to try Carl Holmes on allegations that not only were 13 years old, but had previously been investigated by both Internal Affairs and the D.A.’s office under a previous district attorney.
“I’d just like to thank the court for its careful consideration of the issues,” Listenbee told the judge. Then he assured her that the decision about what to do next with the case “will be decided at the highest level at the district attorney’s office.”
Anybody who knows Larry Krasner can guess what happened next.
On Feb. 5th, just like he did with Staff Inspector Joe Bologna after the charges against him were thrown out of court, the D.A. promptly refiled the charges against former Chief Inspector Carl Holmes.
When he did this, Krasner achieved Albert Einstein’s definition of insanity — doing the same thing over and over again and expecting a different result.
THE COMMONWEALTH V. CARL HOLMES
The charges against Holmes, a 6-foot-6 former offensive tackle at Temple University, were originally filed on Oct. 24, 2019, after he was indicted by a grand jury. A preliminary hearing was held on March 12, 2020, as to the allegations from two of the complainants, Christa Hayburn and Michele Vandegrift. The third complainant, Elisa Diaz, was unavailable, and so that preliminary hearing was postponed for nearly a year.
Holmes was charged with aggravated indecent assault, indecent assault by forcible compulsion, and indecent assault without consent. The grand jury accused Holmes of sexually assaulting three female police officers, by kissing them, fondling their breasts and digitally penetrating their vaginas.
Pagano, Holmes’s lawyer, insisted his client was innocent, and that when the case finally went to court, Holmes would be found not guilty on all the charges. Pagano also argued that the indictment of Holmes amounted to a witch hunt.
In a motion to dismiss the case filed on Sept. 25, 2020, Pagano argued that “the allegations in this case have received extensive local press coverage beginning approximately ten years ago. All of the complainants in this case have exhaustively litigated civil claims against the police department in the court system for approximately 10 years.”
“The police department’s internal affairs unit and the DAO investigated all of complainants’ allegations for approximately 10 years,” Pagano wrote. “No criminal charges were filed in any of the cases” and in one of the cases, the D.A.’s office decided not to pursue charges.
The dismissed case involved Hayburn, who told the Inquirer in 2017 that she had been fired by the police department after she was accused of lying about a medical issue.
In his motion to dismiss the case, Pagano said that ADA Black had failed to turn over grand jury transcripts, even though a motion to compel discovery production was filed five months earlier.
What records that were turned over Pagano said, revealed that “the presentment in this case is the product of prosecutorial misconduct — including but not limited to gross neglect and the investigation and in the presentation of evidence to the grand jury, including the presentation of perjured testimony, selective presentation of evidence to the grand jury and the omission of relevant facts and evidence to the grand jury.”
Hayburn, a former police offficer, alleged that on Jan. 6, 2006, Holmes, who at the time was her boss, dragged her into the passenger seat of his Dodge Durango, kissed her, grabbed her breasts and penetrated her vagina. And then, Hayburn charged, Holmes dropped his pants, grabbed her hand and made her jerk him off.
In the investigations of Hayburn’s allegations conducted by Internal Affairs and the DAO, 33 cops and 7 civilians were interviewed, Pagano wrote, and phone records were obtained by subpoena. Holmes’s police car was seized and searched for forensic evidence, as were Hayburn’s clothes.
Hayburn claimed that she had told another officer about being abused by Holmes. But when Police Officer Rollie Ramos was interviewed, he “did not corroborate what she says,” Pagano wrote.
“Due to glaring inconsistencies and lack of corroboration between Ms. Hayburn’s story and the evidence, the DAO declined to prosecute the case” in 2008, Pagano wrote.
Former police officer Vandegrift, who also claimed she was assaulted by Holmes, didn’t disclose the alleged incident to anyone for seven years, Pagano wrote.
The third alleged victim, Elisa Diaz, “did not disclose for almost 15 years,” Pagano wrote.
It was left to Pagano to tell the judge last year that in a case that was 12 years old at the time, it was the same identical cast of characters again, and the same identical allegations, with no new witnesses, and no new facts.
“Nothing has changed except politics and a new DAO administration whose campaign promise to the public was to charge and arrest police officers,” Pagano wrote to the judge on July 13, 2020.
THE D.A.’S DUE DILlIGENCE
As far as Pagano was concerned, the D.A.’s most recent investigation that preceded the indictment of Holmes was a complete farce.
When the D.A.’s office decided to file charges against Holmes in 2019, they didn’t even review their own file from 2008, Pagano wrote, because they couldn’t find it until June of 2020.
The district attorney’s office didn’t bother obtaining transcripts from previous legal proceedings, nor did they interview any witnesses, Pagano wrote. Instead, the district attorney merely interviewed the three complainants again, accepted their testimony as gospel, and indicted Holmes.
Had the D.A.’s office done a “reasonable investigation” before it indicted Holmes, Pagano argued, “it would have detected Ms. Hayburn’s lies to law enforcement and her perjury to the grand jury before the presentment and before charging.”
To make matters worse, in May of 2018, the District Attorney’s office appointed Hayburn to the D.A.’s Crime Victim Advisory Committee [CVAC]. Her official CVAC biography released by the D.A’s office stated she was a “survivor of sexual violence at the hands of a fellow police officer.”
She was appointed secretary and stayed on that committee until March 14, 2019. The D.A.’s office, however, didn’t see a conflict.
“Ms. Hayburn’s volunteer and peripheral role int he CVAC during the part of the DAO’s investigation into sexual assault allegations against Carl Holmes does not create a conflict of interest,” wrote Krasner and Black to the judge.
“Nor does that limited advisory poostiion ‘corrupt’ the case against the defendant in any way,” Krasner and Black wrote. “While the DAO should have disclosed Mrs. Hayburn’s role on the committee earlier, this oversight underscores the wall between the Special Victims Unit and the rest of the DAO meant to protect the integrity of secret investigations.”
In his motion to dismiss the charges against Holmes, Pagano argued that after the district attorney’s office and Internal Affairs investigations didn’t produce an indictment of Holmes back in 2008, “Hayburn turned to the press, and for 10 years, she was a persistent and public critic of Holmes and the police department.”
“The Philadelphia Inquirer and Philadelphia Daily News responded with alacrity and biased press coverage for more than seven years,” Pagano wrote. “Hayburn was interviewed, photographed and quoted in several front page articles by the Philadelphia Daily News and Philadelphia Inquirer.”
Pagano cited several stories that he claimed were biased, including:
— a 2012 Daily News story written by Barbara Laker, David Gambacorta and Dana DiFilippo, “Despite A Litany of Complaints & Lawsuits, Why is Carl Holmes Being Promoted Again?”
— A 2017 Inquirer story written by Chris Palmer, “Commander Cost City $1.25 Million For Sex-Harassment Claims.”
— a 2019 Inquirer story written by Laker, Gambacorta and William Bender, “How A Flawed System Hid A Philly Police Commander’s Sexual Misconduct for 15 years.”
Amazingly, none of those reporters were around last month when Judge Simmons tossed the case against Holmes.
As far as former police officer Christa Hayburn is concerned, in addition to her many media interviews, “Hayburn authored a book about her alleged experiences as a sexual assault victim, Silver Linings,” Pagan wrote. She has also “spoken at corporate and other public events and written extensively on the Internet about this case.”