This letter isn’t half as funny as Dec's original Appeal Brief, even though I love the way Mr. Dec is imitating the exact same style of writing as is present in the County Court's Respondent’s Brief, effectively replying to them and mocking them at the same time. Way to go, Francis! As per the other legal correspondence on this website, you can find the original scans of the brief towards the bottom of the page! Huge thanks go out to Ted Torbich for these!

    QUICK LINKS TO CONTENTS
      ●APPELLANT'S REPLY BRIEF TO RESPONDENT'S BRIEF
      ●CONCLUSION
      ●SCANS OF ORIGINAL BRIEF

COURT OF APPEALS
STATE OF NEW YORK
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THE PEOPLE OF THE STATE OF NEW YORK,
                                                    Respondent,

                               - against - 

FRANCIS E. DEC,
                                                       Appellant,
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                      APPELLANT’S REPLY BRIEF TO RESPONDENT’S BRIEF
     The respondent’s brief consists of 18 printed pages with subtitles. This brief is in answer to each of respondent’s contentions.

     The first page of respondent’s brief from pages 2 to 9 inclusively is under the title “The People’s Case” which purports to relate evidence of the trial, which in reality is composed of partial and extremely short excerpts given false significance or opinions of the evidence which in reality are either completely false or distorted to favor the respondent.

     The next item in respondent’s brief titled “Point I  Guilt was established beyond a reasonable doubt.” on page 10 and 11 is a brief recapitulation of respondent’s pages 2 to 9.

     The following item in respondent’s brief is titled “Point II Defendant received a fair trial” it extends from page 11 to 16. The respondent claims to attempt “to come squarely to grips with the errors which defendant claims” by commencing on page 11 a summary of 4 portion of the titles in defendant’s brief and thereafter the respondent devotes most of page 12 to informing this Court (in complete disregard of the specific statements of the Code of Criminal Procedure and relevant case law) that the respondent finds nothing wrong with the indictment therefore all of the pretrial motions of defendant were improper. Respondent further on page 12 informs this Court not to consider the portion of defendant’s brief  under the heading on page 15. Respondent bases his claim on Art, VI Sec. 7. N.Y. Const. by improperly quoting only a portion of defendant’s said heading in order to create respondent’s false conclusion. Actually, defendant’s complete heading also states “Judgment below standard of rebutting the presumption of innocence set forth in Sec. 389 C.C.P.  This question of law presented in detail in said portion of defendant’s brief is based upon the many cases cited supporting the views of the text Powers of the New York Court of Appeals (1952) by Cohen and Karger in section 198 titled: Scope of Review in Non Capital Cases (a) Review as Regards Findings of Fact Made Below.

     At the bottom of respondent’s page 12 and part of page 13 respondent cites one inappropriate case that in no way answers any of the many objected to matters stressed in that portion of defendant’s brief, which matters respondent refers to indefinitely as “matter of discretion for the trial judge”. In no way does the respondent answer even one of the important detailed objections in that portion of appellant’s brief, namely, for example, appellant’s objections to the systematic and often repeated impish stifling by judge and prosecutor of the appellant’s questions during cross examination; questions demanding that the perjurous chief witness, Mrs. Elizabeth Wirschning, answer defendant whether or not she signed her general release and settlement check. The repeated stifling was executed by the repeated objections of the Ass’t Dist. Att’y A. Nixon, “I object your Honor. That is the ultimate for this jury to decide [in] this case.” which objection the Court repeatedly sustained. There is no trial or cross examination if the defendant is prevented from questioning the chief complaining witness of the single definite item constituting the basis of the criminal charges by the repeated orders of the trial judge in collusion with the prosecutor.

     Further on page 13 of respondent’s brief respondent claims defendant discusses “Dr. Robbins with no apparent reason”. The respondent flatly denies the importance of the discussion of Dr. Milton Robbins, the self admitted perjurer and liar, in reference to defendant’s discussion of Dr. Robbins’ two contradictory sworn statements which original unpremeditated statements by Dr. Robbins unassisted by any lawyer defendant repeatedly demanded during the trial that the existent recorded first unpremeditated statement by Dr. Robbins to the District Attorney be produced by the District Attorney. The extant trial minutes produce defendant’s requests, namely, “Mr. Dec:  Your Honor; I now make a request to see the first statement made and recorded by the District Attorney, in that the District Attorney is here present in this Court.” (p391). The Court refused this request claiming that Dr. Robbins statement was not in evidence therefore the defendant could not see it. The defendant then repeated his request and the Court again refused to allow the defendant to see any part of the first unpremeditated statement of Dr. Robbins, the witness for the prosecution, first made to the District Attorney and which statement had a direct bearing on the subject matter of his testimony. Appellant took exception for the purpose of appeal on page 392 in the trial minutes. Appellant did not object to such vicious unconstitutional oppression for “no apparent reason” but instead relied upon established rules of criminal law which are confirmed in the recent decision of the Court of Appeals of New York in Peo. v. Luis Hemmel Rosario decided March 23, 1961.

     In respondent’s brief at the bottom of page 13 and on page 14, the respondent informs this Court of respondent’s incorrect version of the pertinent portions of the trial in a vain attempt to automatically [obscured] defendant’s several multiple detailed motions for mistrial. On page 15 in the respondent’s brief, the respondent in an incoherent short [obscured] chooses one of the many reversible errors committed by the prosecutor, A. Nixon, during his summation, which errors were stressed in appellant’s brief, and combines this error with the reversible error of the judge who like A. Nixon also implied that the “Nat Birchall” records constituted a confession. In the incoherent brief discussion the respondent admits that the extant trial records of the judge’s charge to the jury defines “Nat Birchall’s” records as “a statement of the defendant whether in the course of prejudicial proceedings or given to a private person can be introduced in evidence against him but that statement alone is not sufficient to warrant a defendant’s conviction without additional proof that the crime charged has been committed.” (p.949)  An inspection of appellant’s brief’s cited text Richardson on the Law of Evidence will reveal that the judge’s said definition of the evidentiary value of “Nat Birchall’s” records is identical to the evidentiary value given only to a complete confession of the crimes charged and also the judge’s statement is a verbatim excerpt of Sec. 395 of the Code of Criminal Procedure titled: Confession of defendant, when evidence, and its effect. with added affirmativeness on the judge’s part definitely defining “Nat Birchall’s fraudulently altered records as an all encompassing confession.

     Rest of page 16 of the respondent’s brief is devoted to a statement relying upon the theory that defendant was automatically guilty when indicted and therefore it was defendant’s duty to disprove the indictment.

     The respondent devotes the remainder of his brief, from the bottom of page 16 to page 18 to the title “The Charge”, “In answer to defendant’s brief pp. 36-43.” Apparently respondent overlooked [obscured] pages 42 to 45 inclusively of the appellant’s brief in reference to the appellant’s detailed presentation of the similarity of appellant’s case and Peo. v. Pitts Case (6 N.Y. 2^nd 288). Also the respondent apparently overlooked the appellant’s detailed presentation under the title “Judgment procured by Fraud and in Violation of Constitutional Rights” commencing on page 43.      On page 16 the respondent informs this Court that respondent contends that the judge’s charge was not improper. Further that although the extant trial record of appellant’s repeated direct and cross examination testimony extends from page 572 to 846 inclusively wherein defendant necessarily directly and indirectly repeatedly testifies as to his good character, education, good background and honorable position as a well-known practicing lawyer in his community, the respondent wantonly claims no such testimony is presented in the record and then in obvious contempt of the intelligence of this Court that defendant made “slanderous … outrageous charges” regarding the prosecution’s witnesses and in addition to these brazen falsehoods the respondent sums up compounding these falsehoods stating: “there is not one scintilla of evidence available to prove the bad character of the Wirschning’s or any other witness who testified against the accused.” The appeal brief in this Court and especially the lower court appeal brief, which I now incorporate as part of this reply, supply a plethora of excerpts from the trial minutes wherein the self admitted perjurer Mrs. Wirschning admitted she personally claimed only her original detailed claims of injuries as found in the Allstate Insurance Company records (Defendant’s Exhibit I in Evidence) which injuries are in complete contradiction to her new trial claim of a slight hurt wrist (pp. 77, 79, 80-81). Mrs. Wirschning also broke down and admitted she signed her general release and settlement check (pp. 222, 858-859). Even the Dist. Att’y’s N. Birchall fraudulent records produce admissions of her husband Fred Wirschning stating he live with negro prostitutes for immoral purposes, on page 19.  The trial record discloses that Dr. Robbins broke down and admitted he concocted a story about the matters being tried in collusion with two lawyers and that he was a perjurer and  liar (390-391)  Wantonly disregarding these felonious and immoral admissions of the prosecution’s witnesses the respondent claims that “the trial judge made no mistake in omitting to instruct the jury on the effect of character testimony”. These and other felonious and immoral bad character indications were testified to by the defendant in reference to the witnesses for the prosecution (pp. 572-846) which said testimony was never denied or impeached by the prosecution.
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                                                      Conclusion
     The judgment appealed from should be reversed and the indictment dismissed.

                                                                 Respectfully submitted,

                                                                 Francis E. Dec
                                                                 Appellant pro se.
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