I haven't posted much about my case for a while because of the ongoing litigation and the tactical advantage of keeping things close to the vest. But enough of the litigation has concluded that I don't mind posting this chronology of the case that I prepared some time ago. So, without further ado, here's what's happened up until March of this year, after the jump.
Commonwealth v. McKay Chronology
Saturday, July 12, 2003 – Midnight After approximately 6 weeks of cohabitation under joint tenancy, and a days old ongoing disagreement, I was sleeping in bed when Cynthia Whelehan woke me and proceeded to scream at me. I quickly cut her off, stated that I would be moving out in the morning, went downstairs and attempted to sleep on the sofa. Whelehan followed me and began insisting that I leave immediately, and that I leave without my daughter Kristin, who was visiting from Georgia. She then proceeded stuffing my belongings into trash bags and upon my suggestion that she stop doing so and go to bed, smacked me in the face repeatedly. At no time did I make physical contact with her other than to grab her hands to stop her from striking me.
Sunday, July 13, 12:55 AM (Time according to police log) Whelehan placed a 911 call and stated that she wanted police assistance because “My boyfriend won’t leave.” Approx. 10 minutes later, Foxborough Police offices McDonald and Foscaldo arrived at our house and McDonald asked what was going on. I immediately informed him that Whelahan had struck me in the face repeatedly. McDonald instructed Whelahan’s daughter Jennifer to go to her room, me to go into the living room and Whelahan to remain in the kitchen/dining area. Foscaldo remained with Whelahan while McDonald followed me into the living room. He questioned me very briefly, including asking me if I’d tried to stop Whelehan from throwing my things out of the house, to which I replied that I had. He then went to the kitchen to confer with Foscaldo and Whelehan. Approximately 5-7 minutes after his arrival, McDonald instructed me to stand up and place my hands behind my back and handcuffed me. At about this time FPD Sgt. Noonan arrived and placed me in the back of his cruiser. I spent about 10 minutes there, parked in front of the house, during which time Noonan went back into the house, coming back out momentarily to ask whether I wanted DSS to pick up my daughter. When he next returned to the car, we proceeded to the Foxborough Police station. According to Noonan’s booking report, the booking process began at 1:23 AM.
7/13/03, 9:00 AM My parents arrived at the police station and posted $1000 bail for my release. Because I was told by the police that I could not return to my house, my parents proceeded there to collect my daughter, my car and some belongings. My father asked Whelahan specifically for my laptop, which she refused to give him.
7/13/03 11:17 AM Smithfield, RI police serve 209A (Abuse Prevention Order) per FPD’s request
Monday, 7/14/03 8:30 AM Arraignment on A&B charge and extension hearing on 209A issued ex-parte less than 24 hours prior. ADA John Healy informs the court that I have “an extensive criminal record in California”, which is simply not true. I objected to the extension of the 209A. Bail was maintained and the 209A was extended for a year.
Friday, 7/18/03, Apprx 10:00 AM I arrived at the FPD station to arrange a time and a police escort to retrieve my belongings from my former home. The dispatcher made telephone contact with Whelahan, who stated that she would be unavailable for 5 or more days. I then proceeded to Revere, MA to socialize with my longtime friend Cynthia Baumann and her family. At approx 1:00 PM, while we were at lunch, I received a phone call from the FPD dispatcher informing me that I could meet an escort to get my things at 4:00 PM that day. I proceeded to the station and Officer Scott Hodson arrived to escort me shortly after 5:00 PM. We proceeded to the house and I began removing my things. Several items were not where they were when I was arrested, and Whelehan claimed to not know where they were. These included my Palm Pilot, my cell phone charger and an office cassette recorder with a very important tape in it. Other items, including the bed I had just purchased and a number of my power tools, Whelehan claimed ownership of. I asked Hodson how this would be resolved and he told me to take it to court. At approximately 5:45, I left the residence. Shortly thereafter, the FPD dispatcher, Richard Parker, made an entry into the log that reads in part “Male subject stated he took everything that was his.” Presumably, Hodson related this to him.
7/18/03 Approx 6:00 PM After leaving the residence in Foxboro, I was on my way back to Smithfield, RI when I attempted to call Cindy Baumann to discuss what had just transpired with Whelahan. I inadvertently speed dialed Cindy Whelahan’s house. I left a message stating “Hi it’s Paul. I just called to amuse you. Hey, can you say Tessa? I went, I got most of my things, the majority of what I really and wanted. I got my laptop so that’s great. She’s decided she’s keeping a whole bunch of stuff and we’ll have to fight about that later. At any rate, just called to say, hey so hey.” Upon my arrival at home, I turned on my laptop and found a vicious email from Whelahan that was clearly intended to intimidate me.
Shortly thereafter, Hodson filed a report mischaracterizing the message I had left, and also filed a violation charge of the 209A order. At trial, he claimed not to remember having been at the house to escort me.
10/3/2003 On the advice of Atty Mason and ADA Mark Fabiano, I went to the FPD station to file an A&B complaint against Whelahan. Officer Azevedo is exteremly resistant to taking my complaint, but does so at my insistence and tells me to “check back in a month”
11/18/2003 Atty Mason writes to the FPD inquiring about a copy of Whelahan’s 911 call, and the status of my complaint against Whelahan
11/20/2003 Small Claims hearing on my suit against Whelahan for personal property. Wrentham Magistrate A. Ross Pini admonishes both parties regarding the penalty for perjury, and then sends us out of the courtroom to attempt a settlement. The clerk then begins to argue Whelahan’s case and expresses to Pini why he shouldn’t rule in my favor. Upon our return, the clerk states “Shhh..they’re back” and the hearing proceeds. Whelahan claims not to know where most of the property is, and claims ownership of other property. With the exception of the bed, which she admits to having, Pini claims that he cannot rule in my favor unless I prove that she has the property, which was impossible for me to do, and not the proper preponderance standard. Whelahan also presented the fraudulent Foxboro police log and a letter from Sgt. Eugene Bosquet further supporting the falsified evidence. (This leaves a question to which the answer is obvious: How did Whelahan know that she would get a document containing false information from the FPD? Why would she have sought it when what actually happened was very different?) Pini notes that he feels Whelehan is lying to him (as she claims that she owns my power tools because I sold them to her for cash), but then gives her a continuance that she didn’t ask for so she could file a counterclaim that he tells her she ought to file.
12/4/2003 Second small claims hearing with Magistrate Joseph Semensi presiding. Whelahan, through her new attorney, files a counterclaim stating that I owed her for 6 months of rent and utilities, that she had paid of this and I had paid none, also claiming that we had moved in together on Jan 1, 2003. However, she does admit that my paycheck was depositied into our joint account which she controlled. Aditionally, in her original 209A complaint, she notes that we had lived together for “7 wks”. Semensi takes the case under advisement and later that day denies both claims by mail, without specific findings.
Early January 2004, FPD Prosecutor Scott Austin contacts Atty Mason and (as it was related to me) explains that Officer Azevedo had “deep sixed” my complaint, but that he would have it scheduled for a Probable Cause hearing. I later learned, through Atyy Mason, that the hearing was to be held on 3/4/2004.
March 4, 2004 I arrived at Wrentham District Court to appear at Whelahan’s Probable Cause hearing. I introduced myself to Officer Austin and he instructed me to wait in the hallway until the case was called. Whelahan arrived with her attorney and we all waited through several other cases. Whelahan’s was the last case called, and when I rose to enter the courtroom, Austin stopped me and told me to sit down and wait. Approximately 15 minutes later, Whelahan and her attorney exited the courtroom. A couple of moments later, I entered and found the courtroom empty. I then went to the Clerk’s office on the first floor and found Austin. I asked him what had just happened, and he first told me that “I was looking for you” (despite the fact that I had been exactly where he’d left me, and that he’d snuck out the back door) and that the charges would not go forward as Whelahan had been found to be acting in self defense. I then went home and wrote a letter to FPD Chief Edward O’Leary asking him to explain why Austin had violated my right to attend the hearing as per the Massachusetts Victim’s Bill of Rights. (MGL 258b)
March 6, 2007 I received a letter from Sgt. Bosquet with FPD Internal Affairs inviting me to come in and file a complaint. On March 10, I wrote a letter in response indicating that Atty Mason insisted that I not meet with them pre-trial, and that I would do so after the trial.
August 3, 2004 Whelahan, having moved to Sandwich, MA, filed a complaint for another 209A order in Barnstable Probate and Family Court. The order was issued ex parte.
August 9, 2004 I sent a letter to Sgt Bosquet requesting that his department file an appeal of the probable cause hearing decision, as my right to attend was violated.
August 11, 2004 Extension hearing on 209A I appeared to oppose extension of the order. Whelahan’s complaint/affidavit included a plethora of ridiculous lies, most of which she repeated in testimony, and which I fully rebutted, including that of my “extensive criminal record” which she claimed to have learned of from the Wrentham DA, and which the Judge Susan Ricci knew full well did not exist, yet the order was extended. I then went directly to the Barnstable DA’s office and to the District Court Clerk, both of whom told me they could do nothing about the perjury Whelahan had just committed.
August 13, 2004 I received a letter from Sgt. Bosquet informing me that I would have to discuss an appeal with the prosecutor, Officer Scott Austin, who violated my right to attend the hearing in the first place.
Also 8/13/04, I ordered a copy of the tape of the 209A hearing from Barnstable P&F. I also sent notice of the tape order to Whelahan, as required by rule. I included a copy of the order form noting the mandatory nature of the notification, and cited the section of the 209A order that allows for such notifications.
August 14, 2004 I notified Whelahan of my intent to order a copy of the Wrentham Small Claims hearing tapes, and also cited the mandatory nature of the notification and the section of the 209A order that allows such communication.
August 16, 2004 Officer Bruce Lawrence of the Sandwich Police files an arrest report and a 209A violation charge for my mandatory, authorized notification. He attempts to secure a warrant and have me extradited, but the request is denied. A Probable Cause hearing on the charge is scheduled for 9/15/04.
August 17, 2004 I replied to Sgt. Bosquet expressing my distress at what appeared to be dishonest behavior emanating from the FPD, and noting my objection at being sent back to the very same officer who clearly violated my rights in order to correct the situation, and also noting the conflict of interest inherent in that situation
August 20, 2004 I receive a call at home from sandwich Officer Lawrence regarding my second notification to Whelahan. He tells me that I have violated the restraining order again, and after approximately 20 minutes of discussing the meaning of the words “Notification of court proceedings is permissible only by mail, or by sheriff or by other authorized officer when required by statute or rule” he informs me that he’ll look into it further.
August 24, 2004 I received a response from Sgt Bosquet suggesting that I have my attorney contact Officer Austin if I did not wish to speak with him myself about appealing the probable cause decision.
August 26, 27 Jury trial held at Wrentham District. I was acquitted on the A&B charge and convicted on the 209A violation after being denied a mistake instruction by Judge Emogene Johnson-Smith. I was sentenced to 1 year of supervised probation and 80 hours of Batterer’s Intervention Program, all of which I completed, paying all associated costs and fees. ( I have an electronic copy of the transcript, if you’d like it.) At the end of the trial, while exiting the courtroom, Whelahan’s friend Gretchen charged at me, screaming “You coward! You liar!” and swinging her right arm, causing Atty Mason to dive between the two of us before she got to me. Mason called out for the bailiff who was standing right across the room, and who did nothing. This also happened in full view of the judge and ADA Healey.
August 27, 2004 I wrote to FPD Chief O’Leary asking that an appeal be filed, and that it would be inappropriate for Officer Austin to prosecute it due to his prior actions and the conflict of interest they created. I also sent 4 sworn statements to Sgt. Bosquet along with a request that he commence investigation of the numerous misdeeds by officers in his department.
August 28, 2004 I sent a letter to Sandwich Police Chief Michael Miller and ask that he correct Officer Lawrence’s error, and see that I be relieved of having to show up for the 9/15/04 Probable Cause hearing. Several days later he calls me and informs me that he’s declining to do so because “there are question that need to be answered.” He refused to expand on what those questions were.
September 1, 2004 I sent a Civil Rights Complaint along with the statements I had sent to the FPD to the Massachusetts Attorney General’s office. I also attempted repeatedly to begin a complaint with the Trooper of the Day, but my calls were never returned.
September 8, 2004 I received a letter from Sgt Bosquet containing a Citizen Complaint Form and a request that I have my statements notarized. I completed the form, had the statements notarized and returned them to Sgt. Bosquet that same day.
September 13, 2004 I received acknowledgement of receipt of proper complaints from Sgt. Bosquet.
September 15, 2004 Probable cause hearing in Barnstable on 209A violation. The Magistrate Pro Tem immediately recognizes the police error and throws out the charge.
September 17, 2004 I received a letter from Sgt. Bosquet explaining that he had spoken to the Clerk of the Wrentham District Court and that because the complaint against Whelahan had been dismissed without prejudice, it could be refilled, and that the FPD would do so, with Sgt Chandler appearing for the prosecution and not Officer Hodson. He further offered some poor excuses for Austin’s actions at the prior hearing.
September 20, 2004 I replied to Sgt Bosquet thanking him for refilling to cause a second Probable cause hearing, and I completely dismantled his excuses on Austin’s behalf.
September 23, 2004 I received a response from Bosquet telling me that he couldn’t address his findings as the investigation was continuing, despite that he had been very eager to do just that in his previous letter.
September 27, 2004 I filed a Notice of Appeal for the Wrentham 209A conviction, and ordered the trial tapes for transcription.
October 14, 2004 Second probable cause hearing for Whelahan, Magistrate A. Ross Pini presiding. After my statement to the FPD was read into the record, and Whelahan’s Attorney offered his defense, Pini asked me why I was appealing the 209A conviction. I cited 2 relevant cases. Pini asked me if I had attended law school and then told me not to cite case law to him since I hadn’t. He explained that since I lived in RI and Whelahan on the Cape, he didn’t see any point in prosecuting her. I asked why exactly the same evidence that I was prosecuted on was insufficient cause to prosecute Whelahan and he told me “That’s not my problem” He then told me I’d have to prove Whelahan was lying, so I offered to play the tape of her performance in Barnstable Probate and Family Court where she claimed she had proof of my non-existent criminal record which the Wrentham DA also had. Pini declined to hear it and ended the hearing.
October 30, 2004 I received a letter from FPD Chief O’Leary stating that “I have found that no Officer of this agency violated any rule or regulation regarding the handling of each incident reported to this agency by you or Ms. Whelahan….You were not treated in any manner that did not follow the normal protocol of this agency…That you were afforded each of your rights allowed by law…” You have to read this thing to believe it. There are a couple of bombshells in it, one of which is the notion that officers relating false information to dispatchers is normal protocol, as is police prosecutors violating victim’s rights. Another is the disclosure that Whelahan has the tape of the message I left in her possession, and that it could be made available in court, despite her testimony that she had not kept it.
November 16, 2004 Ordered small claims hearing tape from Wrentham District.
January 7, 2005 I retained Atty John Siskopoulos to represent me in the 209A appeal. His immediate task was to prod the Wrentham Clerk’s office into assembling the record, and producing the trial tapes, which had not been done. The tapes I had ordered on 9/27/04 were not produced until 3-16-05. The small claims tape I ordered on 11/16/04 was not copied until 4/20/05. The Wrentham Clerk simply refused to process my tape requests until Mr. Siskopoulos insisted strongly and repeatedly. He indicated to me that he had learned through a contact in the central tape reproduction office that they had not received the originals for duplication many weeks after Wrentham had told him they’d been sent.
June 16, 2005. I received a letter from Michael Fleischer, a paralegal in the MA attorney General’s Civil Rights Division. He explained that they could not initiate an investigation on the civil rights side, but that he had forwarded a copy of my complaint to the Criminal Division for investigation. He also suggested that I follow up with the FPD with a request for an internal investigation. That was the last I heard from the AG’s office.
June 17, 2005 I wrote to the Cape and Islands DA Michael O’Keefe detailing Whelahan’s perjury in the Barnstable 209A proceedings and asked for prosecution.
July 19, 2005 I received a call from Trooper Finn of the Cape and Islands State Police. I explained the situation to him, and he requested the relevant materials.
July 20, 2005 I sent Trooper Finn a copy of the 209A hearing audio, a transcript, the order itself, Whelahan’s falsified Complaint and affidavit, and documents relating to the charges she’d gotten Officer Lawrence to file in Sandwich.
August 11, 2005 Annual extension hearing on the Barnstable 209A. Again, I objected, and again I detailed Whelahan’s perjury. I also noted that she had not met the statutory burden for issuance of a 209A and again the order was extended for a year, with Judge Randy Kaplan citing the 209A conviction, although that is not a sufficient legal basis for issuing an order. I also called Trooper Finn to make myself available to sign a complaint. He informed me that this would not be necessary and that he would proceed within two weeks.
December 17, 2005 Follow up letter to Trooper Finn and DA O’Keefe. Noting that I heard nothing from Trooper Finn as promised, I asked whether either of them thought no crime had been committed or whether they simply weren’t going to do anything about it. Both men simply ignored the letter, and I received no response from either.
Months of foot dragging and procedural delay finally resulted in a finding by Emogene Johnson-Smith, the trial judge, that I had indeed requested a mistake instruction (the request was written by Atty Mathers, second chair, and was in the file all along) and that she had denied it. Appellate briefs were filed by both sides and the case was set for oral argument on June 7, 2006.
June 26, 2006 – Appeals Court Order: “ORDER: "...The record in its present form is inadequate to permit us to consider the defendant's claim...The parties and the district court are...directed to supplement the record further...specifically addressing and clarifying the form of the instruction administered to the jury at the defendant's trial, and to cause such further supplemental record to be certified and transmitted to this court by or before July 21, 2006."
After more footdragging, the lower court finally complied with the Appeals Court order on August 9, 2006. A portion of the response noted that the trial judge didn’t give the required instruction because she didn’t think there was any credible evidence to support my theory of defense. Therefore, she took the jury’s job out of their hands by denying them the opportunity to assess credibility, thereby denying me the right to trial by jury on that charge.
August 11, 2006 Annual extension hearing on Barnstable 209A order. Again, I detail the perjury, I detail the legal standard and Whelahan’s failure to meet her statutory burden for issuance of an order. I present the appellate briefs and docket and explain that the Appeals Court may rule at any time on the Wrentham 209A appeal. Judge James V. Menno notes her obvious emotional problems, cites the 209A conviction and extends the order for another year.
September 15, 2006 The Appeals Court reversed the judgement, set aside the verdict and remanded the case to the District Court. The Appeals Court docket is here: http://ma-appellatecourts.org/display_docket.php?dno=2005-P-0506
In early December Atty Siskopoulos informed me that a status hearing had been set in Wrentham District for January 16, 2007.
January 3, 2007 I filed a motion to expunge the Wrentham 209A order from my record, and another to bring the crimes committed in this case to the court’s attention, and asking the court to direct the DA to investigate/prosecute.
January 16, 2007 Status hearing, Wrentham, Warren A. Powers presiding. Both of my motions were continued until March 12. ADA Jen Rowe offered a nolle prosse on the 209A violation, declining to retry me on the charge.
January 19, 2007 I wrote to Norfolk DA William Keating enclosing a copy of my motion to investigate/prosecute, suggesting that he need not wait for the Court to tell him to do what he should be doing anyway. I also requested two documents from his office and asked for a response within 10 days. That letter has been ignored.
March 12, 2007 Hearing on my motions in Wrentham, Warren A. Powers again presiding. My motion to direct the DA to investigate/prosecute was not heard based on the fact that the DA’s filing of the nolle prosse, at the same time this motion was continued, effectively ended the case. My motion to expunge the 209A from my record was continued again to May 17, 2007.
And here we are…..
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