In the October 2, 2006 issue of Massachusetts Lawyers Weekly, David Yas, Editor and Publisher of MLW devoted his "From the Publisher's Corner" column to my "crime". It's a good piece that touches on a few of the frightening societal implications that the technology explosion exposes us to. It's also pretty funny unless you're the one person on earth who would possibly be offended by it, me.
Click on the image below to enlarge:
I was compelled to respond.
October 21, 2006
Dear Mr. Yas,
I read your 10/9/06 story “Dialed the wrong number? Sorry, you’re under arrest” with great interest, as I am the lead character in it. I was pleased to see that the ridiculousness of this prosecution was as obvious to you as it has been to me. In fact, I was chuckling and nodding in agreement as I read until I came to the line “Clearly, McKay is no angel”, and later to the notion: “Then again, maybe we’re giving too much credit to someone who, according to prosecutors, may indeed be a stalker.”
First and foremost, to my knowledge I have not ever been accused of being a stalker in any way, shape or form. So, unless you know something that both the Courts and I do not know, that statement is entirely false. Secondly, I was acquitted at trial on the Assault and Battery charge which was prosecuted without a single shred of evidence other than Ms. Whelahan’s word. I’d like to take this opportunity to both correct the record and to address the knee-jerk presumption of guilt that even the merest suggestion of violence casts upon men in the Commonwealth today. Here, as Paul Harvey would say, is the rest of the story.
In January of 2002, my then wife Susan and I agreed to divorce amicably approximately a year and a half after the death of our only child, Alannah. A few months later, in April ’02, I met Cynthia Whelahan and we soon found ourselves head over heels in love with each other. For quite some time, I was the happiest guy on the planet; having been through a very difficult period and then having met what I thought was the woman of my dreams. We became engaged, and in May of 2003 we began living together in a joint tenancy arrangement. It soon became apparent that there were going to be problems, largely related to Ms. Whelahan’s control issues and my unwillingness to submit to them. This situation ultimately lasted for a bit more than 6 weeks.
On the night in question (early morning, July 13, 2003) Ms. Whelahan woke me up shortly after midnight and proceeded to unleash a barrage of invective at me, tangentially related to a $100.00 attempted bank withdrawal she had been furious at me for making without her explicit permission, from our joint account. My response was to inform her that I’d had enough of her abuse and that I’d be moving out in the morning. Ms. Whelehan then insisted that I leave immediately and that I leave without my then 12 year old daughter Kristin, who was visiting from Georgia at the time. (While I did not identify them as such at the time, I later learned that these are all classic examples of controlling, abusive behavior as taught in the 80 hour State Certified Batterer’s Intervention Program that I was sentenced to upon my conviction for that misdialed number.)
I then attempted to sleep on the couch, but Ms. Whelahan was having none of that. She decided that she was going to move me out in the dead of night, and began stuffing my belongings into trash bags which she then threw down the stairs. I went upstairs and confronted her, demanded that she stop and suggested that she to go to bed. She then smacked me in the face repeatedly and renewed her demand that I leave, and leave without my child.
When she called 911, she told the dispatcher “My boyfriend won’t leave”. She did not suggest to them that there had been any sort of violence, only that she wanted them to take me away because she didn’t want me there. When she got off the phone, she went and got her then 11 year old daughter out of bed and we all sat down and waited for the police to arrive. Foxborough Police Officer Edward McDonald entered the house and asked what was going on. I told him that I’d been struck several times. He then instructed Ms. Whelahan’s daughter to go to her room and instructed me to go to the living room while his partner, Officer Foscaldo, remained in the kitchen with Ms. Whelahan. McDonald questioned me very briefly, and then went into the kitchen to speak to Whelahan and Foscaldo. He then returned and placed me under arrest. I estimate that this happened no more than 5 minutes after they arrived at the house. The 911 call was placed at 12:55 AM. I was in the police station being booked by Sgt. Noonan at 1:23 AM. During that time, I spent at least 10 minutes alone in the back of a cruiser, except for when McDonald came out to ask me whether I wanted to leave my daughter there or have DSS come get her. Later, while I was in a cell at the Foxborough Police Station, waiting to make bail, Ms. Whelehan, my daughter Kristin and her mother were deciding that Kristin wanted to return immediately to her mother’s home in Georgia, given that her father had been universally deemed to be a bad man, thereby suspending a visitation that was scheduled to last for the entire month of July.
I am quite certain that I was arrested because I was the male in the situation. I would have liked the opportunity to question Officer McDonald at trial as to whether that was his reasoning for arresting me and not Ms. Whelahan, but he was conveniently unavailable and did not appear. The following morning, when I was arraigned and when the temporary 209A order was extended for a year, I was shocked to hear the District Attorney tell the Court that I have an extensive criminal record in California mainly because it is absolutely not true. Ms. Whelahan told them that and it is patently false. Later, at another 209A hearing in Barnstable Family and Probate, Ms. Whelahan testified that I have a history of attacking police officers, and that she learned of this and had proof she forgot to bring that she had gotten from the Wrentham DA’s office. It seems those parties and the Court are entirely comfortable with pretending that this is true while knowing that it is not. Even Michael O’Keefe, the Cape and Islands District Attorney is fine with it, though he refuses to explain why. Eventually, I expect to meet Alice somewhere down this rabbit hole.
So, there I was being prosecuted on nothing but the word of a “victim” that the DA knew was lying to him. I later learned that Ms. Whelehan had claimed that I attempted to physically restrain her from throwing my things out of the house, which I did not do. I did briefly grab her hands to prevent them from continuing to impact my face, but apparently, this is also frowned upon male behavior. It is important to note that Ms. Whelehan did not mention this alleged act when talking to the 911 dispatcher, but only after I told McDonald that she had struck me.
Moving on to the fateful call and the events surrounding it, you seem to have a fairly good grasp of the facts surrounding it. I’ll add just a few points. On the morning of July 18, I met Attorney Deborah Mason and hired her to defend me on the A & B charge. I also complained to her about Ms. Whelahan’s refusal to arrange a time for me to go back to what had been my house and collect my things. (Keep in mind that I had little more than the clothes I had on my back when I was dragged out of my house in the middle of the night) She advised me to go back to the Foxboro Police Department and have them attempt to arrange this with Ms. Whelahan. I did so and when the police spoke with Whelahan, she informed them that she would be out of town for the next 5 days or so. I found this suspect as she had just returned from a Provincetown vacation with her children the week before.
I then drove to my close friend Cynthia Baumann’s (not Bowman) house in Revere. I was completely surprised to get the call from the Foxboro PD, as I had been expecting to spend another week separated from virtually everything I owned. I was not prepared to move out, but I really had little choice in the matter. After a nearly 3 hour drive through Boston traffic, I met with Officer Scott Hodson and proceeded to my former home. Ms Whelahan had decided to entitle herself to approximately $4000.00 worth of my personal property (including irreplaceable materials relating to a brain tumor project I was working on), and upon asking Officer Hodson how to proceed he told me I’d have to take it to court. When I later did just that, I was quite surprised to see Ms. Whelahan produce a police log entry stating that I had told Hodson I had gotten everything I wanted. When I filed a complaint with the Foxboro PD regarding this, I was told that no wrong had been done because Officer Hodson hadn’t made the untrue log entry, a dispatcher had made it. This is the same officer Hodson that filed the 209A violation report, and completely mischaracterized the message I had left and failed to preserve the evidence; the tape.
I complained about that as well, and according to the letter I have in my possession from Foxboro Police Chief Edward O’Leary, and this is a direct quote from a list of items identified as the FPD’s findings: “That recording was preserved by Ms. Whelahan and could be produced for court presentation if needed. That Officer Hodson did not make a false entry on any police log about regarding conversation about your property. That any and all entries onto the police log were done so by a police dispatcher and not by Officer Hodson.” (Emphasis mine.)
Ms. Whelehan testified at trial that she had NOT preserved the recording because Officer Hodson told her it was not necessary to do so. Furthermore, I may be mistaken but I have seen no indication that Ms. Whelehan placed a call to the FPD about the message on the machine, yet Officer Hodson either found his way back to the house or he had never left. I have no doubt that these two set me up and conspired to defraud the Court in order to cause me harm. (The Foxboro Police Department doesn’t care, and AG Tom Reilly’s office doesn’t care. They also don’t care that FPD Officer Scott Austin physically barred me from entering a probable cause hearing on A&B charges against Ms. Whelahan at which he was the police prosecutor and I was the victim. The Massachusetts Victim’s Bill of Rights does not apply to men, apparently.)
Someone, or presumably several someones, did not want that recording, which represents the entirety of the alleged crime, to be played at the trial where I was ultimately convicted for it. Justice Green of the Appeals Court wrote that he did not think the tape would be exculpatory. I disagree for two reasons. First, my tone of voice would indicate my intent. As you know, spoken language is more than just words. Tone, tenor and inflection relate significant information from the speaker to the listener. If you were to put yourself in my shoes for a moment and imagine how you might speak about a situation to newly former lover who is acting to make your life miserable versus how you might speak about it to a trusted friend and confidante of long standing, I think you can see that there would be an easily perceptible difference. Secondly, I was relating what had happened between us just minutes before and I referred to Whelahan in the third person, things I just wouldn’t do if I were talking to her.
This was an allegation of a serious crime. I understood the seriousness of it upon reading the 209A order. I also understood that the terms of my bail allowed for me to be incarcerated without bail for up to 60 days for such a violation, as did Ms. Whelehan. In order for the Commonwealth’s theory to be true, I would have had to have been either too stupid to understand the consequences, or too angry and out of control to care. Believe me when I tell you that had the latter been the case, there would have been no question about what I said and that that tape would have been played at a high volume during trial, assuming that it had not spontaneously combusted from the blistering invective I would have filled it with. In short, had I intended to call Ms. Whelahan, I would have gotten my money’s worth out of the violation. As it was, I had no idea I’d done it until the following morning when I received a call from my brother Mark who had received a call from the Foxboro police claiming to have a warrant for my arrest, which also turned out to be false.
I am not a stalker. I am not a batterer. I am not an abuser, and I have never been one. I am a victim of domestic violence, though Ms. Whelehan doesn’t pack much of a punch and the Commonwealth wouldn’t care if she did, so I know there’s little point in mentioning that particular fact. I am also a victim of blatant and malicious persecution by a "victim" and a “justice” system that held me beneath the law from the very instant the barest allegation was made, while raising Ms. Whelahan above the law. The Commonwealth’s ideological shields went up and they were impenetrable to logic, common sense and/or observable fact. (See former Patriot Ted Johnson’s case) Ms. Whelahan was given de facto encouragement as well as carte blanche to lie as much as she liked. Her dishonest statements are many, they are on the record, they are material, they are often contradictory and their falsity has been blessed by no less than 3 finders of fact sitting on Commonwealth benches, who have decided to simply ignore her committing felonies before the bench, affirming her apparent right to do so. The narrative was written as soon as the gender determination was done. Man bad, woman good, end of discussion. To this day, Ms. Whelahan still has an active 209A order against me despite the fact that I have not seen, spoken to, nor been in proximity of her outside of a courthouse since July 18, 2003. The last judge to extend it noted her obvious emotional problems and extended it anyway. So much for “reasonable fear.” That said, I actually consider myself somewhat lucky, as I’ve since met many fathers who have been torn from their homes and their children by similar poorly considered 209A orders that the Commonwealth issues at an astonishing rate.
This prosecution has turned my life upside down. My daughter Kristin, my only surviving child, has not spoken to me since this incident occurred. I am unable to obtain a security clearance which has been highly damaging to my career. I was also unable to travel for much of this time due to probation and batterer’s intervention program requirements which further damaged my ability to make a living. My finances are in a shambles. I was debt free when Ms Whelehan and I decided to live together. I am now several tens of thousands of dollars in debt, all of it legal fees and related costs. My nonprofit work has suffered tremendously, and my emotional and social well being haven’t fared much better as I’ve carried this millstone of idiocy around for the last three years. My reputation, as you know, has been seriously besmirched. This seems to me to be an absurd amount of damage to do to a guy who has done absolutely nothing wrong, save for a speed dial blunder.
I had the opportunity to agree to a Continuation Without Finding plea on both charges. I declined because I refused to take an oath and then admit to a set of untrue facts. I have maintained my innocence from the first second Officer McDonald told me to stand up, turn around and put my hands behind my back. I took these charges to trial because they’re nonsense and the Commonwealth had no case, and I was stunned at the refusal of a mistake instruction and my subsequent conviction on the 209A charge. I decided to appeal it because I want my name cleared and this smear removed from my reputation. Now that I’ve finally had that wrong righted, and have been cleared of all charges against me, I’m quite dismayed to read that I might be a stalker.
All in all, I liked the article. If it hadn’t been about me, I’d have thoroughly enjoyed it. I hope you can understand my somewhat visceral reaction to the factual inaccuracy that impugns my character, and I hope you’ll agree that you owe me a correction. I really do appreciate that you gave this story some ink, and I’d like just a little more to set the record straight, if you would be so kind.
Thanks in advance.
Paul P. McKay
President, Brain Tumor Action Network
P.S. You wouldn’t happen to know a good civil rights attorney, would you?
OK, so I'm a windbag with a vengence. I admit it. Thankfully, Dave Yas is a gentleman, and he did not let my wordiness deter him. On the contrary, he offered to print "an edited version" of my response, which is below.
While I might want to complain about what didn't make the cut, this is the second half page of Massachusetts Lawyers Weekly (Oct 30, 2006) that has been dedicated to this case, and I can't do anything other than thank them for that.