 Dr. Calvin Day (San Antonio Express News) In May 2011, Dr. Calvin Day, a 60-year-old dermatologist in San Antonio, Texas, was indicted by a Bexar County grand jury on a charge of sexually assaulting one of his patients, a 46-year-old woman who was receiving Botox injections in August 2010.
After the media reported the indictment, another patient came forward claiming she was sexually assaulted in July 2009—nearly two years earlier—and another criminal charge was brought. Day denied the assaults and claimed that the second report was a copycat claim. The woman would later admit that she had returned to his office for a subsequent visit after the day of alleged assault.
In June 2011, the Texas Medical Board suspended his medical license, citing the allegations made by those two women, as well as other allegations of sexual misconduct by four other women, two of whom were patients, one a former employee and one a salesperson who visited the office.
That same month, defense lawyers for Day filed a motion under seal to recuse District Attorney Susan Reed because Reed and Day had a prior sexual encounter. In addition, the motion said that Reed and her husband—before his death—as well as family members of the lead prosecutor on the case had been patients of Day’s. The motion said that while in Las Vegas, Day had gone to Reed’s hotel room where they had sex. Day had taken a polygraph examination and the examiner said Day was being truthful.
Although the motion had been filed under seal, Reed personally appeared in Bexar County Criminal District Court the following day, June 4. She pointed at Day and declared, “I’ve never been sullied by that.” Reed denied having sex with Day and said to him, “Bring it on!”
The defense pointed out that Reed’s reaction was precisely the reason the motion had been filed under seal and demonstrated why her office should be recused from prosecuting Day, but the trial judge denied the motion.
Reed subsequently posted a comment on her Twitter account saying that polygraphs were “Toooo easy to fool.” Reed also filed affidavits from friends who said they were in the company of Day and Reed in Las Vegas on the day in question and Reed was never alone with Day.
A jury was selected and the trial began on June 6, 2013. The complainant, Laura Newcomb, took the witness stand on Friday, June 7. The prosecution barred her lawyer from the courtroom, saying he was a potential witness and therefore could not be present during Newcomb’s testimony.
Newcomb said that she had received numerous Botox injections over the prior several years and came to Day’s office on a weekend for a touch-up. During the visit, she said that Day took her to a secluded area of his office known as the “bat cave” under the pretense of looking at exercise equipment, then groped her chest, exposed himself and digitally penetrated her vagina.
The trial recessed for the weekend. On Monday, June 10, before Newcomb resumed the witness stand, her attorney asked the trial judge, Ron Rangel, that he be allowed to be present during Newcomb’s testimony. During his argument, he disclosed that a week before the trial, Newcomb had expressed concern that she couldn’t remember if she told Day to stop what he was doing or said “no” to his advances. Newcomb’s lawyer disclosed that she was worried she might be prosecuted for perjury because two years earlier, during her testimony during a disciplinary hearing before the Texas medical board, she said she told Day to stop and told him “no” when he began to touch her.
The defense asked for a mistrial, contending that that evidence was favorable to Day and should have been disclosed earlier by the prosecution. The defense argued that their jury selection, opening statement and cross-examination of the prosecution’s witnesses prior to Newcomb would have been different. However, the judge denied the motion and the trial resumed.
During cross-examination, Newcomb said that while she might have told Day to stop, it was also possible that she only was thinking of saying it. She testified that she did put her hands under Day’s in an attempt to stop him when he groped her chest.
The following day, June 11, after the news media reported that Newcomb couldn’t remember if she told Day to stop, Reed’s chief deputy, First Assistant District Attorney Cliff Herberg, came to the courtroom and announced that the District Attorney’s Office was investigating Newcomb’s attorney as well as Day’s two defense attorneys for witness tampering.
Another defense request for a mistrial was denied, as was a motion by the defense attorneys to withdraw from the case. Prior to the trial, Alan Brown, Day’s lead defense attorney, said that he a trial in federal court in another city approaching. After the mistrial was denied, Brown announced that he had to leave the trial because he was required to begin the federal trial.
On June 17, 2013, the jury convicted Day of sexually assaulting Newcomb.
At the sentencing hearing before the jury, the prosecution presented testimony from two women, one of them a patient and the salesperson, who also accused Day of sexual assault, although both conceded they had returned to see Day after the incidents. In addition, the former employee accused Day of sexual harassment. And five other women accused Day of sexual misconduct, although they also said they had returned to see Day on a date after the alleged misconduct.
Day’s lawyers presented the testimony of more than two dozen witnesses, including eight former employees, three colleagues and 15 others, all of whom attested to Day's good reputation as well as rebutting the claim by the former employee of sexual harassment.
The jury then sentenced Day to 10 years of probation with the first six months confined to house arrest, 300 hours of community service and a $10,000 fine. Less than an hour later, Day’s 29-year-old son committed suicide by walking in front of a truck on Interstate 10 in San Antonio.
Soon after, Day, represented by a different attorney, filed a motion for a new trial. The motion accused the prosecution of engaging in misconduct that had a chilling effect on Day’s defense attorneys.
“Defense counsel failed to aggressively cross-examine Ms. Newcomb as previously planned and failed to raise many facts in their questioning of her that would have demonstrated the unreliability of Ms. Newcomb’s testimony and her lack of credibility,” the motion said.
The facts the defense attorneys failed to mention at trial included evidence that Newcomb may have forged checks; that she received more than $500,000 from a man in his 80’s who later concluded that Newcomb had taken advantage of him; that Newcomb had filed about 20 different insurance claims including seven claiming bodily injury (three involving claims against restaurants, each of which stated that she broke a tooth on a rock in her food); and reports from a private investigator suggesting she had personal relationships with multiple married men, including physicians.
“Defense counsel’s failure to properly and adequately question her as to material matters was a direct result of their concern of the pending criminal investigation against them,” the motion said. “Defense counsel’s failure to present impeaching information extended to their failure to introduce documentary evidence and other witness’ testimony that would have materially impeached Ms. Newcomb, and caused doubt as to the reliability of her testimony, her credibility and her ulterior motives and bias.”
In addition, the motion said that because of the departure of defense attorney Brown during the trial, at least 15 witnesses that Brown intended to call to testify were never called to the witness stand. “Experts and others who were to be called as witnesses were not called. Documents were not subpoenaed. Exhibits and other information were not used at trial,” the motion said.
In August 2013, District Judge Ron Rangel granted the defense motion “in the interest of justice.” Rangel vacated Day’s conviction and ordered a new trial. Rangel also removed the Bexar County District Attorney’s Office from the case and ordered the appointment of a special prosecutor.
On December 18, 2015, special prosecutor Charles Bunk announced that the prosecution was dismissing the charge. Bunk subsequently said that Newcomb declined to testify at a second trial. The first trial was “very traumatizing to her,” Bunk told the news media. “She felt that the prosecutors at that time put their own personal vendetta against Dr. Day and his lawyers ahead of her concerns.”
In February 2016, prosecutors dismissed the separate criminal charge of sexually assaulting a different patient in his office.
– Maurice Possley
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