Here’s what can happen to you at any time/anyplace when you cross paths with a troublemaker in a jurisdiction that’s corrupt (I know – are there any that aren’t?).

It’s July 2010 and a colleague in the petition-gathering industry, veteran circulator Bob Ellis, and I had wrapped up a statewide gig in Colorado and had been travelling to Mississippi to work next when we got diverted to go to New York to attempt to collect the 15,000 signatures to get our client, James Germalic, on the ballot to run for U.S. Senate.  Even though we’d planned to work New York City – and no other part of the state – we were told we had to meet our client beforehand in person to get oriented.  Since we were coming into the state from the south, and our client was coming into the state from the west, we agreed to meet in Binghamton.  After the first meeting with them in Binghamton, our client still hadn’t cleared us to continue and go to NYC, but instead wanted us to hang around and get signatures in that local area that was some 200 miles northwest of NYC.

That’s what we were doing on July 28, 2010, as we waited on our green light from candidate Germalic.  We found a busy Wal Mart to get signatures in the nearby village of Vestal (basically a suburb of Binghamton).

Here's me set up at the Wal Mart in Vestal, New York around the time of the incident

New York voter signs my petition at the EXACT SAME SPOT where the incident occurred

Bob collect signatures just a few feet away

I’d bent down to grab something out of my plastic tote that I’d slid underneath the mail box (see photo above) when out of the corner of my eye, I spot what I think is a woman signing the petition without my having invited her to do so.  I normally make it a policy to inform the voter what he or she is signing before or as they are signing.  I’m just about to pipe up when I notice that the woman isn’t signing, but rather is taking my pen and making a big, ugly mark on my paper (crossing out her name – she’d apparently signed earlier, and had returned).  I have another longstanding policy to never let anyone tamper with the petition once they’ve signed, sort of like a “no refunds, no exchanges” policy.  There are several reasons for this, one of them being that I have learned not to trust people that they are going to cross out only their name.  (Actually, they usually tell me that they are only “removing” their name off the petition, but do I look stupid?  Unless it’s totally erasable ink, that’s technically not even possible.)
In any event, I interrupted her suddenly and firmly by telling her, “No, you can’t do that!” and I casually took the clipboard & pen away from where she’d been doodling.  She got fierce with me, and said something to the effect of , “Yes, I will!” and not only grabbed it from me, but started to take off, board, pen and all.  I informed her that defacing a petition is illegal (many states this is exactly what the law states, including nearby Massachusetts, where it’s actually stated in a warning on the petition form itself) and that she could get in trouble if she didn’t cease and desist.  I actually had to take a few quick steps and chase her down and grab my clipboard and pen back from her, this time holding the board down firmly on the table with my hands so that she could not acquire it.  (Geez, she acts like she’d just signed her first-born child over to me, rather than allow a candidate a right to run for an office!)
At this point, she storms off fuming, loudly saying, “I’m going to have my husband, who’s a police officer, come back and do something to you!”
My reaction to that was to say, “Yeah right!” (the sarcastic version).
People who had been signing the petition moments prior to her wigging out on me, and who had also witnessed the argument, made a point to come up to me and say things like, “Wow, what was her problem?” and, “Damn, you sure have a tough job [to have to put up with and deal with people like her]”.  Everyone there was supportive of me.  But who knew I’d regret not nabbing them as witnesses when I had the chance?
In the back of my mind I figured that the worse that could happen is that someone advocating for her (store manager? cop?) would approach me and browbeat me into handing over the petition page she’d signed (there were other voters’ signatures on it as well) to her, so I wanted “plausible deniability” and simply walked over to Bob and gave him that petition sheet.
About a half hour later, as I’m working away getting signatures, I find myself surrounded by 4-5 cops in uniform.  One of them approaches me and tells me he wants to talk to me around the corner of the building.  I go with him, and he starts out by telling me that a woman had just registered a complaint with them.  I interrupted by saying, “Yeah, I think I know which woman you’re talking about, but it’s ok – I’m not going to go through with filing charges on her for defacing the petition. It’s fine, really.”
That’s when the cop surprises me with some very bad news:  “No, that’s not what this is about.  She says that you assaulted her.”
Astonished, I turn around to look over at Bob, who is still collecting signatures just a few feet away from my table – and point to him and tell them, “No way – in fact, he saw the whole thing.  He can tell you.”
But the cop is unmoved, and tells me, “Well, she made the complaint, so we have to accept her word that you assaulted her, and we’re going to have to arrest you.”  (Note:  about 3 months earlier, I’d been viciously attacked, physically, in a barrage of punches to my face, head and body that lasted for several minutes, at a California hotel, and police there refused to take any action against my assailant.)
This was stunning, and though I surely didn’t want to have to deal with the woman’s drama, I was drama-bound against my will, unfortunately.  The only silver lining – if there was any at all – was that what the officer meant by “arrest” was that I was being handed a citation for committing “harassment” (NY Penal Code 240.26, a ‘Violation’ class of infraction) and summons to appear in court in one week (despite the fact that Bob and I had planned to work in NYC for the remainder of the project.)  At first, the officer didn’t seem interested at all in talking to Bob (or any of my witnesses, for that matter) but after taking down my information on the citation, he finally did get a statement from Bob, before all of the officers took off.
 
After making our trip down to NYC and returning a week later for my arraignment, something had occurred to me in the interim:  this woman (Melissa Clapp) actually made this complaint to police alleging I did something to her – when the entire exchange was right in front of Wal Mart’s video surveillance cameras!  At this point of realization, I figured I had a “slam dunk” defense (but oh the most jaded of us can be so naive at times – read on!).
In fact, the very first thing I did when I waltzed into the courtroom and stood in front of the judge (Judge Meagher) at the Vestal Town Court was to alert him of the most-assured presence of video surveillance captured on tape by Wal Mart’s cameras, if only someone would just acquire the footage and view it.  The judge, however, said that it wasn’t his job and that his job was simply to ask me if I understood the charges against me and would I enter a plea.  He took my “not guilty” plea, but added that the police department is next door to him and I could feel free to talk to them about Wal Mart’s surveillance.  He also told me to call the public defender’s office the very next day, presumably to get word back to the court so that the next court hearing date could be set.
Bob and I walked next door to the police department and tried to talk to them about the tape, and also about the possibility of filing criminal charges against Ms. Clapp (for defacing my petition).  The officer didn’t know anything about the video surveillance but when digging into a possible stance regarding taking a criminal complaint against Ms. Clapp, he ridiculously asked me how much the paper was worth that I was claiming damages on.  This absurdity led to some awkwardness, which led to my fumbling my explanation (wasn’t sure what to say to the ridiculous question).  It also led to his calling his supervisor into his office and asking him what he should do about a criminal complaint that involved something to do with elections.  To my chagrin, his supervisor advised him that that’s the domain of the New York State Elections Board, not the local police (well, then how come she didn’t get diverted to them too??).  At one point the officer said that my desire to prosecute her was “tit for tat”.  Huh?  Come again?  He clarified his meaning by saying that “tit for tat” means that she arrested me so now I want to arrest her.  And let me get this straight:  threatening to have her police officer husband “do something to me” because she didn’t get her way in the Crossoff Chronicles is not “tit for tat”?
Before leaving town, I did get a copy of the false and egregious statement – sworn to under penalty of misdemeanor perjury – by Ms. Clapp.
Note that Ms. Clapp SIGNED the accusation under PENALTY OF PERJURY:
I was feeling so overconfident about her miscalculation about the argument being taped under surveillance, that I even wrote a letter to Ms. Clapp, a short-and-sweet one, saying, “Did you forget about Wal Mart’s video surveillance?  I hope you have a really, really, REALLY good lawyer,” and I included for good measure a copy of the illustration immediately above (emphasizing jail time) in with the letter.
I called Wal Mart and talked to a woman  named Tonya who’s in charge of security, asking about the video surveillance.  Tonya told me that she did remember that incident, and that there was surveillance, and that she had already handed it over to police.  She said that she could not release the tape to individuals, but only to an attorney or police, the latter of which already had been done.
The video surveillance was a cornerstone of my defense (notice that Ms. Clapp had not a single witness on her side, but yet still was able to prosecute?) but I figured I needed an attorney of my own, not just the police, to have access to the tape.  In this vein, I called up the public defender’s office, who told me that I needed to make the first of what should be four separate trips to deal with this case, the first one being to come in to the public defender’s office in downtown Binghamton just to see if I qualify for a public defender (being able to talk to a public defender will be the content of the second and separate trip).  I was also told that the next opening they had for this would be September 23, well more than a month after I planned to leave the state for good (work project finished & no more work).   I casually told the lady that I would like to do this by phone, because I likely wouldn’t be there by then, but she would not budge:  it had to be done in person, and not until Sept. 23.  This was unacceptable to me, especially since I figured to be in a completely different part of the country by that time, and four trips (qualifying for p.d., seeing public defender, pre-trial conference, trial).  This basically denies me a lawyer, for all intents and purposes.
I combed through my petition sheets trying to see if I could reach potential witnesses who’d seen the argument.  Mostly I either could not find a phone number for them, or the phone number I found searching on the internet didn’t work, or I got no answer when attempting to call.  However, I did manage to get one lead that was seemingly good.  In that case, a woman told me that she hadn’t seen the argument but that her aunt (who lives with her mom) had apparently witnessed something, and had related it to her.  The woman gave me the phone number of her mom.  I called the woman’s mom and asked her to talk to the aunt.  I could hear the mom yelling to another part of the house, asking the aunt if she’d witnessed an argument.  I heard a woman in the background yell back, “Yeah”.  The mom then yelled back, “The guy is one the phone and he wants to talk to you about it.”  I then hear softer talking that I can’t make out, followed by the mom getting back to me with, “No, she didn’t see anything,” and click…the call went dead.
I switched to the strategy of contacting the D.A. directly, to get them to drop the case.  I wrote a letter to them highlighting the need for them to please look at the video surveillance that the police have in their possession.  I wrote a version of the letter in August, and another one in November.  The one in November I sent “Certified Mail, Return Receipt Requested”:

November 16, 2010

Mr. Tom Jackson, Broome County District Attorney

George R. Harvey Justice Bldg., 4th Fl

45 Hawley St.

P O Box 1766

Binghamton, NY 13902

Re:  Defendant Gary Fincher, DOB 11-30-61, Case #10-6043, on the charge of Harassment (Penal Code Sec. 240.26)

Dear Mr. Jackson:

I am directly writing you due to the extreme hardship this case is providing for me, namely the fact that I was only living in New York for a very short temporary time, and, after being able to make the arraignment, have since moved out of the area.  Thus I was not able to physically meet with the public defender on September 23 (I was in Tennessee on that date), nor can I afford a private practice attorney.  Obviously, I cannot afford a trip up to New York, let alone several trips, either.

However, this should be a very easy case for you to dispose of, given the evidence and my witnesses, as I’m about to explain.

In fact, my accuser, Ms. Melissa Clapp, was the one who violated the law by mutilating nominating petitions held by me, and by attempting to obstruct the election process.  (A criminal complaint against her has been filed with the New York State Board of Elections.)

But Ms. Clapp signed a sworn statement that I grabbed her by the arm and would not let go.  Wal Mart’s surveillance video from that time – 5:21 pm on Wednesday, July 28, 2010 – will show that this did not happen.  In addition, there were a handful of witnesses who also signed the petition I had at my table – I am providing their names and addresses via copies of those petitions for your perusal – who will be able to attest that this did not happen.  One witness has already made a statement to police that the event alleged did not happen.  His name is Robert Ellis.

After viewing the video surveillance footage provided by Wal Mart, and consulting with the witnesses who observed the exchange between Ms. Clapp and myself, would you please kindly drop the charges so that I may continue on with my life?

Feel free to call me on my cell, at 207 450 5117, or to send me mail at the above Tennessee address.  I do not wish to cause any trouble, either for myself or for another.  (However, I have to point out that Ms. Clapp signed a false affidavit in violation of NY Penal Code Sec. 210.45.)

Thank you for your conscientious attention and concern to this very important matter.

Sincerely,

Gary Fincher

In late October, I got a call from Linda Vail, clerk of Judge Meagher, telling  me that I “missed my Pre-Trial Conference” (the public defender had notified them that I was denied a lawyer and would be “representing myself”; I was given a court date based on that, but never received the notice).  In my conversation with Ms. Vail, I told her about the video surveillance, and my inability to get anyone – so far anyway – to look at it.  She asked me if I still had the letter I’d sent to the D.A., and I told her that yes, I had.  She asked me to email it to her, which I promptly did.  Ms. Vail indicated that she would try to arrange a visit with the D.A. to discuss the matter.

By that point in time, I was in Texas working on a petition drive.  Curiously, Ms. Vail called me a few days after that, and asked where exactly I was.  I told her, and she said it was because Ms. Clapp had filed a restraining order against me and that it needed to be served.  WTF?  In a few days, a Sheriff’s deputy came by my motel room and gave me a copy of the bizarre restraining order.

A few days after that, Ms. Vail called me to tell me that she had talked to the D.A. and that he had said that “Wal Mart’s video surveillance wasn’t working that day” and so this would now need to proceed to trial (Can’t prove your innocence in America? That’s code for “guilty” and so let us now proceed with your railroading.  Never mind that you also have eyewitnesses – technicality.)

But for one thing, Wal Mart’s head of security told me in no uncertain terms that not only were the cameras working (since when does Wal Mart put up with nonworking cameras as a way to combat shoplifting?) that day, but that there was tape that existed (she remembered it, even!) but that it was turned over to police!  The D.A. has to be mistaken at best, lying at worst.   I needed to get to the bottom of it, but can’t without an attorney.

The D.A. called me in January, I thought because he’d received one of my letters, and was going to be dropping the case.  Sanity.  But no.  Assistant D.A. Doug Squires was calling me trying to urge me to just cave in and pay them a certain sum of money to have it “be over” (a conviction via guilty plea on my record).  I asked him why they don’t just drop the ridiculous case, and he replied by saying “She doesn’t want to.”

He also was calling me to tell me that the D.A.’ s office had “never received” either of my letters, even though I had proof that the last one was signed for:

Mr. Squires also had the nerve to tell me that having a witness won’t do me any good.  When I asked him about the video surveillance tape, he responded, “There is no tape.”

At this point, I could clearly see that something fishy is going on (after all, if Ms. Clapp’s husband is a police officer and has access to the tape, he realizes that if the tape gets shown she could end up getting in trouble).  So I ended the conversation by telling him that I believe he is participating in corruption and that I do not need to be involved in that; I wouldn’t be coming to New York.

Shortly thereafter, Ms. Vail emailed me to tell me that Judge Meagher had granted me a continuance of my case to help me prepare for acquiring legal representation.  By then, it’s January – too cold to make a trip to New York and be able to try to work.  So I was heads-up enough to call the public defender’s office and get myself a May 2 appointment to go into their office to see if I qualify (Yes, I really did make a several-hundreds-mile trip to New York just to go into their office and sit across from an intake worker asking me questions for approximately ten minutes!)

At press time (Memorial Day Weekend) I have no word of when my next court date will be.

But there is one other major problem:  I seemed to have lost my witness.  Now, this wouldn’t be a problem in an innocent-till-proven guilty type of legal climate, as Ms. Clapp’s lack of any witnesses would present more of an obstacle than my loss of a witness.  But that’s not what we’re dealing with here, for if that legal climate were present, Ms. Clapp would not have been able to get as far as she’s gotten in prosecuting me.  So losing a witness – along with all the other screwy things that have gone awry for me – is huge.

Truth is indeed stranger than fiction, and the way I’ve lost my witness is indeed bizarre.  The witness I’m referring to is Bob, who had been standing right there a few feet away when the argument occurred, and watched the whole thing.  Bob owns no vehicle, but since he’s a work colleague of mine, I’ve lately been not only keeping close tabs on his whereabouts around the country, but also been working with him – he as my passenger in my own car – through stretches of time.  To help facilitate his being able to appear in New York when the time comes, I agreed to a rental car arrangement he had suggested to me.  He would pay me cash up front if I – the only one of us with a charge card in our possession – would rent a car from Hertz, adding him as the “second driver”, and releasing the car to him to turn in on his own a few weeks later.  The reason for this was due to our having to be in separate parts of the country in the weeks leading up to my May 2 appearance in New York, the expectation being that by early May, he’d have earned enough money to purchase a vehicle and make the trip to New York to meet me there and do his part of testifying.  Hertz offered us a rate of $275 per week to rent the vehicle, a rate Bob cheerfully and willingly agreed to.  I gave Hertz my charge card and Bob gave me $550 to cover the first two weeks.  Bob kept asking me to renew each week, accompanied by his depositing $275 into my bank account for each week of rental.  After four weeks, he asked me to extend the rental for two more days (thus hitting the maximum rental period standard for rental cars of 30 days), at Hertz’ stated rate of $50 per day.  When the car was turned in, Hertz had not yet charged my card for any of the rental period.  However, I was expecting a $1200 charge to appear on my card at any moment.  The first charge that hit my card was in the amount of $836, not $1200, leaving me puzzled.  Unbeknownst to me, however, Bob gets a receipt from Hertz noting a monthly charge of $836.  (Hertz had never mentioned the existence of a monthly rate.)

Before I could even get a chance to call Hertz to find out why the other $364 isn’t being charged, Bob flips out and goes on the attack, and it’s an unfair and vicious one.  Bob accuses me of “knowing all along” that the total charge was $836 (he was standing there with me when Hertz declared the rate of $275/wk) and, incredibly, of “making up the $275” so that I could pocket an overage, the accusation goes.  Bob gets it in his mind that I’m “ripping him off” and vows to “punish” me for it.  Keep in mind that I had no clue whatsoever that Hertz was only charging me $836, and even if I had, so what?  The fact of the matter is, he agreed to that rate!

Bob’s anger escalates before I even know what hit me, and he leaves me messages saying that he isn’t going to New York to testify for me, and even if he were in New York, “Hello – it won’t be on your team,” a veiled threat that he plans on committing perjury just to “get me”.  He sends me a text message saying that he contacted the public defender and that he also retracted his statement to police, on the grounds, as he put it, that I paid him to make the statement. (The interesting part of that is that, for one thing, I had no idea what he said to police when he talked to them, and for another, the police were right there as their interrogation segued from talking with me to talking with Bob, and had they witnessed an exchange of money during the transition, I’m guessing it would not have been pretty.)

Even if there were a way to subpoena Bob, at this point I figure he’s a wild card and can’t be trusted; so he’s useless to me.

Common sense doesn’t seem to be in ample supply these days, but if it were, wouldn’t two things be abundantly clear?

One, Ms. Clapp, with zero witness on her behalf, should have been viewed all along with raised eyebrows by the local legal community, while the discovery by investigators that all the witnesses were siding with me, should have raised certain red flags and halted my prosecution dead in its tracks.  Lack of evidence, lack of witnesses = no case, and burden being on the prosecution, not on the defense.

And two, what guilty person in their right mind would be begging anyone who would listen to please view the video surveillance footage?  If I were guilty of grabbing Ms. Clapp’s arm for even a split second, would I tell the police, the D.A., the judge and the judge’s clerk that there’s video surveillance and it needs to be acquired and looked at?

Yeah, that common sense.

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2 Responses to “When troublemakers and corruption mix in New York State”

  1. M.P Says:

    I can find out if she is related to, or if she knows any cops. If you do let me know.

  2. M.P Says:

    Well I just sent you that message, but here’s some information for you. Her husband’s name is Michael Clapp. He is a Broome county sheriff detective. They resided in vestal NY at that time, and still do. This is definitely police corruption at it’s very best. If you want to send this information or want to discuss this with higher authority let me know. Police corruption needs to stop. I just wish I read this sooner to stop cops that abuse the laws. Please remember keep my information confidential if we speak, because their still is good cops out in the world, and I want to remain anonymous.

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