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COUNTY COURT OF THE STATE OF NEW YORK

COUNTY OF SCHOHARIE
--------------------------------------------------------------X
THE PEOPLE OF THE STATE OF NEW YORK,

NOTICE OF MOTION

-againstCALVIN HARRIS,
Defendant.
---------------------------------------------------------------------X

Tioga County Indictment


No.: 28-2007

PLEASE TAKE NOTICE that upon the annexed affirmation of DONNA


ALDEA of Barket Marion Epstein & Kearon, LLP, counsel for defendant, Calvin
Harris, the undersigned will move before this Court, located at Schoharie County
Courthouse, Schoharie, New York, at a date and time to be determined by this Court, for
an order barring the fourth trial of Calvin Harris as a violation of his Constitutional and
Statutory rights against Double Jeopardy and dismissing the indictment.

Dated: August 25, 2015


Garden City, New York
BARKET MARION EPSTEIN & KEARON, LLP
By:
Donna Aldea, Esq.
666 Old Country Road, Suite 700
Garden City, New York 11530
(516) 745-1500
To:

Kirk Martin
Tioga County District Attorney
20 Court Street
PO Box 300
Owego, New York 13827

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF SCHOHARIE
-------------------------------------------------------------X AFFIRMATION IN SUPPORT
THE PEOPLE OF THE STATE OF NEW YORK,
OF MOTION TO BAR
FOURTH TRIAL AND
DISMISS INDICTMENT
ON DOUBLE JEOPARDY
GROUNDS
CALVIN HARRIS,
Defendant.
-------------------------------------------------------------X

Tioga Co. Ind. No.: 28-2007

DONNA ALDEA, an attorney duly admitted to practice law in the State of New
York, affirms under penalty of perjury that:
1.

I am a partner with the firm Barket, Marion, Epstein, & Kearon, LLP, the

attorney of record for the defendant, Calvin Harris. I am familiar with the facts of this
case and I make this affirmation, upon information and belief, and based on my review
of the prior pleadings, transcripts, and decisions contained in the case file, and my
research of the applicable law.
2.

This affirmation is submitted in support of defendants motion to bar the

prosecution from retrying Mr. Harris for a fourth time and to dismiss the indictment on
the grounds that a retrial would violate Mr. Harriss constitutional and statutory double
jeopardy rights.
3.

After a four month trial, which ended in a mistrial due to an evenly-split

and hopelessly-deadlocked jury that had deliberated for ten days, Mr. Harris is before this
court again, facing his fourth trial for the alleged murder of his wife, who disappeared
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fourteen years ago on September 11, 2001.


4.

From the outset, and through a decade and a half of intense investigation

focused on Mr. Harris and repeated searches of his property, the prosecutions case has
been wholly circumstantial, with no weapon, no body, and no cause of death ever
determined. So weak was the Peoples case, that, upon review, judges from every level
of the state judicial system have voted to dismiss it or voiced their concerns that the case
was legally insufficient. See, e.g., Decisions of Judge Sgueglia and Judge Smith (in court
file); People v. Harris, 88 A.D.3d 83, opinion of Malone, J. (3d Dept. 2011); People v.
Harris, 19 N.Y.3d 679, opinion of Read, J. (2012). And although the People managed to
narrowly avoid dismissal at the first trial by forcing the recusal of two trial judges, and
after the second trial by suffering a reversal on appeal based on a deprivation of Mr.
Harriss right to a fair trial rather than legal insufficiency, their case has become
increasingly weaker with the passage of time as a result of scientific and forensic
advances, developments in the case law, continued defense investigation, mounting
inconsistencies in the testimony of the Peoples witnesses, and the discovery of new
witnesses; so much so that their case at Mr. Harriss third trial was legally insufficient as
a matter of law.
5.

Specifically, and as argued in defendants motion for a trial order of

dismissal, while the People presented a thin circumstantial case at the first two trials, with
no body, weapon, or cause of death, the Peoples proof during the third trial was in

several respects different and weaker than the case they had previously presented.1
During this third trial, the People elicited no testimony that Michele drove home
immediately after leaving Brian Earlys house a change from the testimony at the
second trial.2 They offered no evidence whatsoever that she ever entered the Harris home
on the night of September 11th or the early morning of the 12th. They could not establish
that the minute quantity of blood found in the Harris kitchen and garage was deposited on
the 11th, that it was recent, or that it could be dated it in any way another significant
change from the testimony at the prior trials. Worse, still, their own renowned expert, Dr.
Henry Lee, admitted that the blood spatter could have come from a cut on Micheles
finger or hand, which the prosecution well knew, and the evidence showed, she had, in
fact, sustained in the months prior to her disappearance a very significant detail that
was not elicited during the first two trials. And, even more problematically, having failed
to conduct proper species tests, DNA tests, and controls, the People could not even prove
that the stains were Micheles blood their own experts acknowledged that even the few
spots that tested positive for Micheles DNA could have been consistent with dog blood
(which would test presumptively positive for blood, but would not register on a human
DNA test), on a surface containing Micheles skin cells or other biological material
(which would provide a positive DNA test, that is not specific to blood and does not
differentiate the source material). None of this testimony was before the jury at the prior
1

As this court is intimately familiar with the evidence and arguments surrounding the motion for a trial order of
dismissal, they are only briefly summarized here. The full arguments, incorporated by reference and contained
in the trial transcript, are attached hereto for the courts convenience (see Exhibit A).

And the defense proffered testimony, which the courts evidentiary rulings did not permit the defense to elicit,
strongly suggesting that Michele had gone out to a club with Stacy Stewart and Chris Thomason after she left
Earlys house.

trials. And these differences were key; for they completely undermined the evidentiary
foundations furnishing support for the appellate courts determination that, viewed in the
light most favorable to the People, the proof at the second trial could circumstantially
support a murder conviction.
6.

Because the Peoples case was facially insufficient, failing as a matter of

law to prove either that Mr. Harris killed Michele, or that he did so intentionally, as
required for a second degree murder conviction (see, generally, CPL 290.10[1]; Jackson
v. Virginia, 443 U.S. 307, 319 [1979]; People v. Contes, 60 N.Y.2d 620, 621 [1983];
People v. Andersen, 118 A.D.2d 716, 717 [2d Dept. 1986]), the defense motion for a trial
order of dismissal should have been granted. And, as a result, Mr. Harriss retrial should
be barred by double jeopardy.
7.

Both the federal and state constitutions guarantee that no person shall be

Atwice put in jeopardy@ for the same offense. U.S. Const. amend. V; N.Y. Const. Art. I,
'6; see also C.P.L. '40.20; North Carolina v. Pearce, 395 U.S. 711, 717 (1969),
overruled in part on other grounds, Alabama v. Smith, 490 U.S.794 (1989); People v.
Biggs, 1 N.Y.3d 225, 229 (2003). The underlying idea, one that is deeply ingrained in at
least the Anglo-American system of jurisprudence, is that the State with all its resources
and power should not be allowed to make repeated attempts to convict an individual for
an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and
compelling him to live in a continuing state of anxiety and insecurity, as well as
enhancing the possibility that even though innocent he may be found guilty. United
States v. Scott, 437 U.S. 82, 87 (U.S. 1978). Thus, when a prosecution is terminated, or a
5

conviction reversed, by reason of legally insufficient evidence, this is equivalent to an


acquittal and, thus, constitutes a categorical bar to subsequent prosecution on the same
charges. Burks v. U.S., 437 U.S. 1 (1978).
8.

Under a parity of reasoning, when a trial order of dismissal should have

been granted by a trial court, but is erroneously denied, and when the trial thereafter
terminates prior to verdict, a retrial should not occur, as it would violate defendants
rights against double jeopardy. See People v. Hart, 300 A.D.2d 987 (2002), affirmed 100
N.Y.2d 550 (2003); People v. Tingue, 91 A.D.2d 166 (4th Dept. 1983); see also People v.
Dann, 100 A.D.2d 909 (2d Dept. 1984) (Awhere Appellant=s motion for trial order of
dismissal in first trial should have been granted on ground of insufficiency of evidence in
that case against him, retrial after mistrial violated his rights under double jeopardy
clause@).
9.

Therefore, on this record, the defense urges this court to reconsider its

decision denying the motion for a trial order of dismissal, to find that the evidence was
legally insufficient at the third trial, and to thereby find that defendants retrial is barred
by double jeopardy.

WHEREFORE, this Court should grant defendants motion to bar the retrial as
a violation of double jeopardy and to dismiss the indictment.

Dated:

August 24, 2015


Garden City, New York
BARKET MARION EPSTEIN & KEARON, LLP

By:
Donna Aldea, Esq.
Counsel for Mr. Harris

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