Political Undertones

Many times I have referred to myself as a political prisoner.  That is an odd distinction for me as I have never been considered a political person.  My interests have always swayed toward economic theory and psychology...and the next Sudoku puzzle.  My case brought to light the politics of the Texas justice system and what is going on inside the Legislature, of course.  But even that is not what I am talking about here.

Today I spent time on the blog called Grits For Breakfast as I do everyday to get my fill of what is going on in the Texas justice system and to make comments when something sparks a nerve or an idea.  The "Grits" blog has been recognized by many, including The New York Times:  On criminal justice, Grissom wrote, "WHO TO WATCH Scott Henson, a very knowledgeable blogger, who writes about all things criminal justice at gritsforbreakfast.blogspot.com."   In reading this blog, participating in the very active discussions via comments and in general enjoying how Scott Henson seems to have no fear...just puts it out there...he has the John Wayne version of "true grit", I decided this morning to just get more brave. 

It is time to put a piece of my case out there that I have been keeping to myself (and my attorneys and my husband and my mom....).  I suppose you might be saying: but haven't you said it all by now?  Well, far from it...after all I have to leave something for the book, RIGHT?  Okay...here's another piece to this case of mine, although there was some mention of it in my post called A DEAD BATTERY? I did not really explain and give you the timeline so you could see the significance.  This may also explain more of the reason the Contributor's business partner is so involved.  For those of you who are new to my blog, in my case the "Contributor" made the false allegations and his "business partner" masterminded the scheme against me and conspired in the fabrication. It has his signature all over it.  I am just introducing David McCall in this post.  I give this to you in the form of a timeline:

July 1, 1992  The business partner loans $200,000 to an insurance man's corporation who was buying an existing insurance company.  The loan was made because he could not have ownership in an insurance agency in the state of Texas without having an insurance license.  The rate of the loan is 18%.  Its considered a "sweetheart" loan as no lender would have done this or accepted the terms of repayment (cash flow).

October 28, 1992  The business partner loans an additional $100,000 at a rate of 12% to same corporation for initial operating expenses.  Another "sweetheart" loan.

Throughout 1993 and 1994  Interest on loans is paid as cash flow allows.  Not something a typical lender would accept, but it is how someone having ownership in the business would be distributed cash.  Further, the business partner and the insurance man have monthly meetings to go over the operations of the company.

October 1994  The insurance business is sold.  The loans and any remaining unpaid interest are paid off as well as a "back-end fee", called a "consulting fee" amounting to $185,910, in effect the business partner's share of the profits from the sale.  He couldn't own a percentage of the business so he accomplished the same thing through the guise of a series of loans and a consulting fee.

October 1996  David McCall, an ex-mayor of Plano, pleaded guilty to bank fraud (after another ex-mayor of Plano, Jack Harvard, pleaded guilty to related charges and agreed to be a government witness against McCall).  McCall is a new character in the story and his charges relate to the S&L scams of the 1980's.  So McCall is now a felon and owns his own insurance company.

August 13, 1998  Date of stock issuance for TCT Holdings, Inc. and the date newspapers say TCT was formed (by the insurance man from 1992 above) through the merging of three agencies which includes "The McCall Insurance Agency".  I have copies of the stock issued to the Contributor and his business partner.  The business partner bragged that once again they had ownership in an insurance agency without being licensed.  So not only was that illegal but McCall 's continued ownership, once a felon, is illegal.  Felons are not allowed to have ownership in insurance agencies in the state of Texas.  I checked, there is no grandfather clause to that.  Apparently David changed his name to Bruce McCall for the insurance company purposes.  David's middle name started with "B", but was Benjamin, not Bruce, which is what he was using. 

1998- 2003  The business partner continues to require the insurance man to have monthly meetings with him to go over the operations and financials of the business.  Micromanaging as usual.  Once I started NOAH we used their agency for our policies.  (Uh, would I use their agency if I was stealing from them?  That would be bold!)

October 30, 2003  I received a call from Betsy of TCT telling me to extend the Directors & Officers insurance policy to cover end-of-business contingencies. The policy had lapsed a couple weeks earlier.  Her example was ...what if a parent decided to sue us.  I told her "No, we did not have the wherewithal to pay and I was not going to extend it."  TCT went on and paid it anyway, extending without my permission.  Remember the Contributor and his business partner have ownership in TCT!!

November 2003  False police report and false insurance claims filed with regard to alleged theft for the funding of The NOAH Project school.

Thursday, February 12, 2004  McCall goes into a coma as a result of cancer.

Saturday, February 14, 2004  President Bush approves pardon of McCall. Alberto Gonzalez, then the General Counsel to the White House, drew up the pardon papers.

Monday, February 16, 2004  Presidential pardon of McCall is announced.

Tuesday, February 17, 2004  McCall dies, never came out of coma so doesn't even know he was pardoned.

Monday,  February 23, 2004  Temple-Inland purchases TCT and renames it Guaranty Insurance Services.

The pardon accomplished several things.  It caused the continuing Federal investigation on McCall and subsequently his estate to cease.  It cleared the way for the sale of TCT to an SEC regulated company.  It also made the paper trail of the fraudulent claims and the extension of the policy related to my case impossible to follow.  And, outside of the McCall pardon, the Contributor and business partner, once again get away with owning and profiting from an insurance agency that is not allowed under Texas law.

Don't you wonder, given the false allegations on me and false insurance claims, how many more false claims there might have been?  All of the Contributor's and business partner's development deals and existing finished properties and business operations were insured through this agency.  Don't you wonder when someone changes their name to do business and was a felon as a result of the S&L insurance scams of the 80's  what kind of business they were doing in this group of insurance companies that merged in the late 90's?  There was a big question when Bush pardoned McCall....it was so out of pattern from all prior pardons of Bush.  Much was written about that, in newspapers and blogs with many people speculating.  It's far from a coincidence that a week after the pardon TCT was sold to Temple-Inland (a Texas based SEC regulated company).  You know Temple-Inland would have done a fair amount of due diligence before buying TCT.  But, not one word was ever spoken to me about this before I left at the end of October (just three months prior) and I was always placed in the middle of these types of transactions for my ex-clients....as a sort of watch dog.  (No, I'm not a dog.)

I handed this information to the prosecutors and what I was given in return was a Motion in Limine saying we could not bring up past "bad acts" of the Contributor or his business partner.  That would include the false insurance claims made from the false allegations of me and the unlawful extension of NOAH's Directors and Officers policy....which was quite relevant to my defense.

Further we subpoenaed all the insurance records from TCT (then Guaranty).  They were not required to bring them to court.  Instead my attorney and I went to their offices, after being told on the phone we would have to sort through about 15 to 20 boxes.  When we arrived, we were ushered into a conference room and given two small stacks of paper with two of the previous TCT employees watching us and answering questions.  Of course what we were looking for was not there.  They were never made to render the documents as outlined in the subpoena.  Nor did my attorney bring any of the people from TCT into the trial to be questioned.  There were three people I specifically requested: the insurance man heading up all the deals and operations, and the two women who sat at that table the day we went to their offices, the three key personnel of TCT.

Perhaps you see the political overtones I first spoke of in this blog.  There is more and it relates to Harlan Crow, business partner to my two ex-clients and trustee to Bush's campaign funds. I was specifically told in the fall of 2004 to take nothing of what I knew regarding other issues to the media because this country could not afford to have John Kerry as President.  At the same time my attorney asked for another $50,000 to continue on my case, of which everyone involved knew I could not afford, thus precipitating the recategorization of me to "indigent" and throwing me to the public defenders.

For being a-political I managed to get right in the middle of things, wouldn't you say?

ALWAYS....Follow the Money!

By now you are probably asking "What's all this hub-bub about a Separate Property Partition?  Why is it such a hot issue in this case?"  Now listen up you men who are always thinking of ways to protect assets and especially listen up you women who may need to understand this someday or add this protection to your own portfolio.

Many of you know about Separate Property coming into a marriage, and how it can be maintained as separate in a community property state as Texas.  This is about creating Separate Property once you are already married.  In the case I am familiar with it is done frequently with real estate developers where the banks and other lenders are requiring personal guarantees during the construction phase.  By doing a Separate Property Partition it allows the guarantor to carve a piece of community property out and split it with their spouse equally thus creating two equal Separate Properties, one for themselves and one for their spouse.  That way if real estate development deals go belly-up and the guarantee is called by the lender(s), they can take the community property and the separate property of the guarantor but the separate property of the guarantor's spouse is still in tact and can be used to support the family.  Pretty good risk management, you say?  Yes, it is.  There was another purpose though, in the instance in which I am familiar.

The above reason for this partition is the one the spouse hears.  The real reason I saw this instigated was once these partners get wealthy, quite often they go looking for the trophy...thus facilitating a divorce.  Guess what divorces do?  Tie up the partnership when the partner is living in a community property state.  A divorce can prevent a real estate deal from being sold, by tieing it up for years, thus keeping all the partners of a deal from realizing millions in profits.  All it takes is one partner going through a nasty divorce (these divorces literally take years)....and where there is a trophy involved I guarantee you there is some nastiness.  So, to prevent this, once there is a property separation, all new real estate development deals are done in the guarantor's separate property.  Over time the old deals are either sold or go back to lender.  As a consequence, it is usually a surprise when the spouse files for a divorce and finds out most the deals have been in the other's separate property and all along they believed the corpus of their community property was growing by millions from the investment profits in these development deals.  The deals were not happening in community property after all so it happens there is really nothing to get other than their own separate property and perhaps the old homestead.  You see, it seems everything comes down to money, right?  If there are no child custody issues, divorce at this level of wealth is just about money.

That's why it surprises me in the statement to the police, it was said that the false accuser was not watching his accounts as he was "distracted by his divorce".  What was his divorce about, where custody was not an issue, if not about money?  Correct, it was entirely about money so if he was distracted with his divorce, wouldn't he be distracted TOWARD his money?  Of course he was, he was already a micro manager of his money, the divorce process only amplified his focus.

What makes this particular situation even more precarious, you ask?  My client's wife called me in January 2003 (see timeline) to tell me she was going to bust his separate property because in the second partition, which she said she never agreed to, he pulled all real estate investments into his separate property, giving them a nominal value and taking his equal share of cash out of the community property, leaving practically nothing in the community property.  Some of these deals went on to see significant profits very soon after (or before) the transfer....if we only knew the actual date of the agreement.  Yet in her testimony at my trial she agrees we had that conversation and she said those things to me but then five minutes later goes on to say she would sign anything to save her marriage.  Hmmm, well, which is it?  She did not agree to it or she did?  She was not questioned further.  The jury was left to wonder what all that was about since no one explained to them the significance of the 2nd Separate Property Partition and how I was placed smack in the middle of it.

As you may recall in the previous timeline blog I talk about how I was questioned on exposure items to client's divorce during a transition meeting on October 15, 2003.  Now that you understand everything about Separate Property Partitions, in particular the intent behind them, I think you'll agree with my stated concern of these three items:

1. Client's wife had no legal representation in the 2nd property separation and was now questioning all the real estate deals taken out of the community property causing an enormous disparity (years later) in the values of their once equal separate properties.
2. All the partnership and corporate interests were listed as a nominal value on his transfer of these assets to his separate property when in fact there were on-going sales supporting a much greater value.
3. My client's unwillingness to provide me with the executed document so I could complete the schedules required by the divorce attorneys - proper allocation of sale proceeds based on effective date was in question.

To further clarify the issues related to this partition, just a couple weeks before the trial (now 2007) I searched for the document as my understanding is it had to be filed with the county and I figured out my trial attorney was doing no investigative work.  Going through the records in downtown Dallas I found both partitions, the first partition filed in the late 80's and the 2nd partition filed in the late 90's.  When comparing the two I found many differences.  The first partition was prepared by an estate/family attorney.  Whereas the second one had been hacked up, I presume by my client, having his secretary cut, paste and type and I came to wonder if it was even a legal document...because it was reciting family law codes which I doubted were even applicable, given the deletions and additions.  It became clear to me why he would never give me the document to support this 2nd partition.  My attorney touched on the authenticity of her signature and the nominal values but the significance of all this was not driven home to the Jury.  Further, when she volunteered she was paid plenty in the divorce, that was not the issue...the issue was the motive of my client when the divorce started and as it became heated up.

All this leads into the significance of the Motion in Limine filed 10 days before my trial and how it is the prosecution was able to keep motive for the false accusations out of my trial.  Following is that Motion:

This document did not come to my attention until about 2 months ago when a friend of my husband's was researching my case.  He also found that all of the testimony from my trial and pre-trial hearings has been taken out of the public records and is being help in the DA's office so he was unable to review that.  My own trial attorney never told me of this Motion.  So, during my testimony I was constantly interrupted by prosecution and not allowed to tell what happened.  It sure did not lend to my credibility in the eyes of the Jury.

At least all of this is coming to light now....for that I am grateful.  What is interesting is that I, the defendant, wanted everything out in the open, nothing to hide and begged for the involvement of the Feds.  Typically it is the defendant who is trying to get Motions in Limine and it is typically the defendant who is fighting like crazy during the pretrial hearings to keep prior actions out of the trial.  In my case it was the false accusers who were spending large sums of money and energy doing that, as if they were the defendants.  I am told my case has been very atypical....I don't know.  What I do know is there were three of us who knew the details of these transactions...my client, his business partner and me.  And, it took awhile for me to figure it out, I was just trying to correct the allocations, thinking that is what everybody wanted.  Apparently, that is where I made my mistake!

A DEAD BATTERY?

August 2005 my trial attorney asked me to provide a list of what needed to be subpoenaed.  Within two days I faxed him a list...which was over two pages long.  The list included (but was not limited to) the contributor's 2001, 2002 and 2003 Separate Property bank statements, financial statements, support for all transactions, individual income tax returns and the computer.   He subpoenaed part of the things on the list that Fall, the computer was included in his subpoenas.  We were told everything would come to us before Thanksgiving 2005.  It did not.  Then I was told to show up a couple times to review the documents prior to Christmas, again they did not show up. 

Finally I was called in the second week of February 2006 to review what they did bring in, which was less than what was subpoenaed and did not include the computer.  My attorney called their civil attorneys asking about the computer.  He was given the run around and for a few weeks nobody knew where the computer was.  It had disappeared!  Then they miraculously found it, kept promising to bring it in, but did not.  This behavior continued until the Discovery hearing on May 26, 2006, when they started their arguments of relevance and privilege.  Privilege is unheard of in criminal cases but guess what?  They continued to argue through out the summer.  I started requesting forensics when I received a list of files and realized much of what I needed was gone plus there were several other peculiarities in the list of files.  In the May hearing I started asking for FBI involvement.  The Judge kept saying her budget wouldn't allow for forensics.  Okay, so I am innocent, want to prove it, but its not within the Judge's budget?  It appears that the DA's office did not take the computer into evidence because then my defense would have a right to all its contents.  Don't ever let anybody tell you prosecution is about truth, it is about winning...plain and simple. 

With regard to forensics I decided the only chance I would have is to get the media involved so I sent an email entitled "Forensics PLEASE", dated August 25, 2006 to my attorney (Birdsall), the prosecutor (Moss, ADA), Judge Faith Johnson, and two investigative reporters, Becky Oliver and Byron Harris, with a followup on August 28, 2006.  The name of the followup email was "Deleted Files".  I have both emails imaged below (you may have to increase your "zoom" level to 125% to read the documents):

As a result of these two emails my attorney told me the Judge was angry and was talking about pulling my PR (personal recognizance) Bond so I would have to sit in jail until my trial.  She said she had never seen anything like it in her 16 years as Judge.  I did these emails because there seemed no other way to get what I needed to prove my innocence and I was not in violation of the terms of my PR Bond.  Although, she could have remanded me for Contempt of Court, but that would have brought attention to my case and that is what nobody seemed to want.

On September 25, 2006 the Judge begrudgingly approved the computer forensics, complaining about what it would do to her budget.  Upon her decision at the Hearing the contributor (my false accuser) stormed out of the Courtroom.

October 8, 2006 I provided a detailed letter of everything I needed the forensics expert to look at based on a revised and complete listing of all files on the hard drive which he had provided.  The computer files were fragmented (files in pieces intermingled with code), they said as a result of a dead battery.  But prior to them allowing the battery to die there was evidence that someone had laid thousands of files on top of mine, crowding my files and causing a complete deletion for many files from the system.  I wanted to see all files then I could determine what they had used to tamper with the evidence.  I was told by the Judge that I would meet with her and  review ("in camera" - meaning outside the Courtroom) all the files so I could explain how the various files related to my defense.  When she lost the election, she postponed my trial due to on-going forensics, and she said, in Court, there was some advantages to losing the election because she sure didn't want to review thousands of files from my computer.

The forensics expert was able to "defragment" many of the files but the date stamps were destroyed.  There were approximately twenty banker's boxes full of recovered files.  I was allowed about one inch of those files, most of which were totally useless.  Even the files that did have information that may have been helpful and raised questions were not used by my trial attorney.  When the new Judge took the bench I was not allowed to view anything "in camera".  The times I mentioned this to my attorney he would just shake his head....he would not bring it up in our Hearings.

To this day I believe there are things in that computer that could have helped my defense even with so much deleted, plus I feel certain I could have figured out how they tampered with those files.  I believe there is a pattern both to what was overlaid and to the date stamps...I am not believing there was a random malfunction causing ALL the problems.  The Court allowed itself to be led by the contributor's civil attorneys.  As a consequence, it was the men who falsely accused me who determined what computer files I was allowed to see and use in my defense.  They expended so much energy and legal fees keeping the computer's contents away from me that I am certain there are things they know I would recognize and be able to use in my defense and definitely information toward the impeachment of their characters. 

TOP QUESTIONS - NEVER ASKED

All that ever had to happen in my trial was for there to be reasonable doubt.  Reasonable doubt was abounding had the appropriate questions been asked.  Following are a few of the top questions - never asked:

1. If I had something to hide - why would I pursue and even go to Washington DC to meet with NIH (National Institute of Health) regarding a multi-million dollar research grant?  With my accounting and audit background I knew full well that NIH, as part of their due diligence, would require audited financial statements with full disclosure from inception since we were a start-up entity.  Part of an audit of a non-profit includes an independent confirmation of material charitable contributions directly from the contributor. Of course, NOAH was auditable.
2. Why didn't my ex-client call the police immediately?  In the depositions he said he discovered the theft in July or August 2003.  In the trial testimony he said he discovered it on October 7, 2003.  With whatever lie you go with, the police did not get a call until mid-November.  Why is that?
3. Why didn't they have NOAH's bank accounts frozen immediately?  There was approximately $100,000 in checking and money market, with another $100,000 in restricted Certificates of Deposit.  The accounts of NOAH were never frozen.
4. Why did they give me a prioritized list of things to do for them in the 3 to 4 week transition period when it was decided I would stay with NOAH (October1).  Why would they allow a "thief" to continue to handle their financial information?  The amount he contributed to The NOAH Project was $3,775,000 over three years....I don't believe I mentioned that thus far.  If you decided to call that stolen...would you continue to work with me and NOT call the police?  Here are the specific priorities I was given for the month of October (the transition period): (1)  2002 Individual Tax Returns (done by CPA firm...I only had review function), (2)   their personal financial statements, and (3) divorce workpapers and schedules.
5. Why did I have several transition meetings with the contributor's business partner throughout the entire month of October during which I discussed and transferred completed work assignments and boxes of files.  Would you give a thief transition time?
6. At one of those transition meetings with his business partner on October 15, at the Whataburger on Coit Rd. in Plano, TX, I was asked what I saw as my ex-client's/contributor's exposure items in his divorce.  I named three major areas and was questioned further as to the details.  Why wasn't that brought up in the trial?  Isn't that a key to the motive?
7. The business partner of the contributor came to my house to get the remaining file boxes and the computer on October 28th.  If I was a thief, why didn't he bring the police or have the police handle it entirely?
8. On October 30th, after we determined we could not get emergency funding fast enough to keep the school open, the business partner came to the school with four large commercial moving vans to take the assets of NOAH saying they "would store them for us".  As it was explained, while we tried to reorganize NOAH, they would store these assets for three reasons (1) to prevent vandalism of said assets, (2) protect against claims from Landlord and (3) protect from claims of other creditors.  He asked me to sign what he called a "receipt" so if the police showed up and I was not present, then they would not be arrested for stealing NOAH's assets.  Why, if I had stolen the money, didn't they have the police confiscate these assets?
9. Why did they get away with saying the value of these assets was only $20,000 when the accounting books and support indicated it was worth well over $250,000?  What did they fill four large commercial moving vans with that only totaled up to $20,000?  If the assets only had a value of $20,000 why bother to go to so much effort?  Because $20,000 is all he recognized on his tax return as recovering.  Hmmm....a slight understatement.
10. The Directors and Officers insurance policy for NOAH expired the first week in October. Remember from the prior blog the contributor and his business partner had ownership in the insurance agency.  Why did someone from their insurance agency call me on the night of October 30th and try to convince me I had to extend NOAH's Director and Officer's policy to cover the end-days and protect the Board from any claims the parents or creditors might make?  When I told her we did not have the wherewithal to pay, she said they would pay it and I told her "NO, do not extend, do not pay that additional premium."  Their insurance agency went on to pay for that extension anyway.  They did not have my permission or NOAH's money.  Where are the papers for this?  It happened but nobody can come up with any signed papers for the extension.  Why not?  Because they do not exist, but the extension was put into place to cover the claim made by my ex-client.
11. Why did the DPD detective testify that it took three months to find me?  Mid-November to December 9th (1st conversation with detective) is only about 3 weeks - why wasn't he questioned about the timing?
12. Why did the detective get away with testifying that my mailbox at home in Plano was stuffed full like I had fled.  I moved out on the Saturday evening of December 6th and he first contacted me on December 9th.  I am certain my mailbox did not get stuffed to overflowing on Monday, December 8th....only one day of mail.  Why wasn't he further questioned?
13. Where are the audio tapes of the telephone conversations I had with the detective throughout December?  He testified I confessed several times.  That was an outright lie that was allowed to stay in. (1) I hadn't been mirandized and (2) it never happened.  How was that allowed to stay in the court records?  If the audio tapes had been entered into evidence, they would tell a very different story.
14. Why was the jury asked to decide if it was my signature on the contrived confession and NOT told that two forensics experts (Dallas County and Denton County) said the authenticity could not be determined?  Further, why wasn't the jury told that I repeatedly requested (in pretrial hearings) that the FBI do forensics on the contrived confession and the computer and was denied.
15. Why were most all my computer files withheld from my defense - claiming irrelevance and /or privilege?  I was not given an opportunity to review (in camera) with the judge those files and an opportunity to explain how they were needed in my defense.  Judge Faith Johnson said that is what would happen but never did.  Why was the computer never taken into evidence by the DA's office?  It had 15 years of files on it....a wealth of evidence for my defense.