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COUNTY COURT OF THE STATE OF NEW YORK

COUNTY OF SCHOHARIE

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THE PEOPLE OF THE STATE OF NEW YORK, NOTICE OF MOTION

-against-

CALVIN HARRIS, Tioga County Indictment

Defendant. No.: 28-2007

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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

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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. Tioga Co. Ind. No.: 28-2007

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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 defendant’s 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. Harris’s 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 prosecution’s case has

been wholly circumstantial, with no weapon, no body, and no cause of death ever

determined. So weak was the People’s 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.

Harris’s 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 People’s witnesses, and the discovery of new

witnesses; so much so that their case at Mr. Harris’s third trial was legally insufficient as

a matter of law.

5. Specifically, and as argued in defendant’s 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 People’s proof during the third trial was in

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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 Early’s 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 Michele’s

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 Michele’s blood – their own experts acknowledged that even the few

spots that tested positive for Michele’s 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 Michele’s 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 court’s convenience (see Exhibit A).

2 And the defense proffered testimony, which the court’s 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

Early’s house.

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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 People’s 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. Harris’s 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

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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 defendant’s

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 defendant’s retrial is barred

by double jeopardy.

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WHEREFORE, this Court should grant defendant’s 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