Judge slams former DA

A judge on Wednesday issued a scathing appraisal of the previous Bexar County district attorney and her top lieutenant in their prosecution of a once-prominent local dermatologist accused of sexual assault.

State District Judge Ron Rangel signed an order on Wednesday slamming “the prosecution’s acts of misconduct,” aiming his ire at former Bexar County District Attorney Susan Reed and former First Assistant District Attorney Cliff Herberg in their prosecution of Calvin Day.

In 2013, Day was convicted of the sexual assault of a Botox patient. Jurors heard testimony that he had lured the patient into a secluded area of his office called the “bat cave” and groped her and exposed himself.

In the trial’s punishment phase, seven other women accused Day of bizarre acts of sexual harassment and assault. One testified he had persuaded a nurse practitioner to conduct a laser hair removal on his genital area. Day was sentenced to 10 years community supervision.

Day denied the allegations on Wednesday.

“Fewer women came forward than what you might expect under the circumstances,” he told me. “You’d think there’d be more than there were, if I were really doing those things.”

Day might not have to deny the allegations much longer.

Two months after Day’s conviction, Rangel granted him a new trial based on allegations leveled not against the disgraced dermatologist, but against his own attorneys and the attorney of his accuser.

“The basis for granting the new trial was that the defendant’s attorneys labored under a conflict of interest stemming from an ‘investigation’ into witness tampering by the District Attorney’s office during the defendant’s trial,” the judge wrote in his order.

Note Rangel’s skeptical use of quote marks when referring to Reed’s “investigation,” as if it never existed.

Reed said an investigation was under way when voters removed her from office last year, and that Charles Bunk, an attorney whom Rangel appointed to the case as a special prosecutor, never called her to confirm this.

“He didn’t pick up the phone,” she said.

Day’s new trial is slated for this week. But Rangel’s trashing of Reed and Herberg could give Bunk enough cover to dismiss the charges against Day entirely.

“It’s a travesty of justice if this case doesn’t go back to trial,” Herberg told me. “Let the jury decide. They’ve already found him guilty once.”

Before the first trial began, Day pointed a finger at Reed, calling her a “jilted lover” who should recuse herself from his case. Day testified in a pretrial hearing that he’d had a drunken one-night stand with her years earlier in Las Vegas.

This infuriated Reed, who marched into court, pointed at Day and said, “I’ve never been sullied by that!”

In his order, Rangel wrote: “Without commenting on the veracity of these assertions, the Court would note the unprofessional response from DA Reed when confronted with the allegation … (she) was agitated and highly emotional in the courtroom.”

On Wednesday, Reed said, “I’ve got the balls to stand up to (Day)…Albeit, I was mad. I was offended as a district attorney, and I was really offended as a woman for the position he was putting me in.”

The case got even messier when a spat broke out between Reed’s office and three attorneys: Andrew Del Cueto, an attorney for Day’s accuser, and Day’s two defense attorneys, Jay Norton and Alan Brown.

In a crowded courtroom, Herberg accused the three attorneys of “witness tampering” by meeting secretly with Day’s accuser to settle the case. Herberg showed the judge an undated legal document that stated the accuser would waive prosecution in exchange for Day’s agreement not to file a civil case against her.

This upset the judge — not the waiver (Rangel doesn’t even mention it in his order), but rather Herberg’s accusation.

Herberg “surely understood that an allegation of an ongoing criminal investigation against defense counsel for acts committed directly in connection with the instant case, would constitute a conflict of interest by defense counsel and their ability to continue to effectively represent the defendant free of any fear of repercussions from the DA’s office,” Rangel wrote in the order. “This Court finds that Mr. Herberg’s conduct in this regard was inappropriate.”

[email protected]