The Advocate
Richard Blassberg
Only The Legislature, Not The Courts, May Enact Law
“To convict a man for an act the law does not make criminal inherently results in a complete miscarriage of justice.”
Davis v. United States, 417 U.S. 333, 346 (1974)
Surely, the New York State legislature had little inkling what an enigma they were creating forty years ago when they installed the Depraved Indifference Murder Statute into the State Criminal Code. Undoubtedly, neither did they realize what a device, what an unfair, and unconstitutional ‘leg up’ that piece of legislation would be turned into over the next four decades by devious, and unscrupulous, prosecutors.
Nevertheless, a statute intended to criminalize a reckless act, one so reckless as to be performed by someone without regard for who, if anyone, or whether anyone, might possibly be killed as a result of that act,___a rare circumstance in the realm of homicide___ would become the crime for which increasingly large numbers of individuals would be prosecuted and convicted.
Most disturbingly, with regard to such prosecutions, prosecutors throughout the state, some more frequently than most, unlawfully, and unconstitutionally abused, and took advantage of the nebulousness and poorly-defined elements of the crime, more often than not, charging defendants with both Intentional Murder, and, in the alternative, Depraved Indifference Murder, sometimes referred to as Depraved Mind
Murder. It’s use as a ‘fall-back’ position by self-serving district attorneys, with little patience for individual’s Constitutional Rights, prosecutors such as Jeanine Pirro, became a scandal before the New York Court of Appeals finally agreed to look at the matter more pragmatically, if not more selflessly, in Gonzalez, in 2004.
Gonzalez, authored by Chief Judge Judith Kaye, a case from the City of Rochester, involved a defendant, who, having fired 8 rounds
into the head and back of his victim, most as that victim lay facedown on the floor of a barbershop, was nevertheless acquitted of Intentional
Murder, but convicted of Depraved Indifference Murder, each, incidentally, Murder in the Second Degree, punishable by up to 25-Years-to-Life in Prison. In Gonzalez, the state’s highest court finally decided to grapple with, what had become such a conspicuous problem. They had little choice. However, it was never their intention to deal with the statute in a comprehensive fashion, but rather to handle each problem that arose from its misapplication over nearly forty years, one appeal at a time, one issue at a time. In Gonzalez, the state’s High Court, in finding for the Defendant, made it clear that a killing in which numerous rounds were fired into the body of a victim at point-blank range, left little doubt that the shooter intended to kill his victim, and, therefore, could not be prosecuted, nor convicted under a theory of Depraved Indifference, as plainly there was no indifference as to the highly probable deadly result. Having already been found innocent of Intentional
Murder at trial, the Court of Appeals decision was Mr. Gonzalez’ ‘walking papers.’
Naturally, Gonzalez spawned a line of cases, already into the appeals process, perhaps the most significant of which, within a year, or so, was Payne. Unlike Gonzalez, the fact-pattern in the Payne case, which stemmed from a killing on Long Island, although involving a shooting, involved only one shot, that shot fired by an irate neighbor using a shotgun, again, at point-blank range, aimed at the victim’s abdomen had also produced a conviction for Depraved Indifference Murder, the trier of fact having rejected an alternate Intentional Murder charge.
In the decision, written by Justice Rosenblatt of the Court of Appeals, despite the fact that the killing involved the firing of just one
round, the nature of the weapon, a shotgun, and the injury certain to occur given the proximity and nature of the point of entry, left little likelihood that the victim would not die, thus negating any reasonable notion of indifference on the part of the shooter as to the deadly outcome. Rosenblatt, who for many years had been pushing the Court to begin dealing with the mounting Depraved Mind conviction appeals, took the time and effort to didactically spell out the notion, declaring, “Moreover, it should be obvious that the more the defendant shoots (or stabs, or bludgeons) the victim, the more clearly intentional is the homicide.” The Court further stated, “A one-on-one shooting
or knifing (or similar killing) can almost never qualify as Depraved Indifference Murder.”
Here in Westchester, where Jeanine Pirro, for twelve long years, insisted upon charging as many defendants as possible with both Intentional, and Depraved Indifference Murder, offering a kind of ‘smorgasbord option’ to jurors who might not feel that the facts presented justified
conviction of Intentional, two defendants, in particular, one exonerated following appeal, the other currently on appeal, illustrate not only the connivance of a misguided District Attorney, but also the failure of the State’s highest court to fully and fairly deal with the consequences of
their own procrastination, having not righted the wrongful manipulation of juries for many years. Those two defendants are Anthony DiSimone, unlawfully convicted of Depraved Indifference Murder, in the stabbing death of Louis Balancio in 1994, now exonerated by a mountain of withheld exculpatory evidence, and freed by the United States Second Circuit Court of Appeals, and Richard DiGuglielmo, a New York City Transit Police Officer who saved his father’s life from a bat-wielding attacker, with a long history of arrest for violent crime, Charles Campbell, killing him with “three shots to center mass,” as instructed in the Police Manual of Procedure.
Even if Officer DiGuglielmo was not under a sworn duty to deal with Mr. Campbell precisely as he did; even if he was a civilian, his killing of Campbell was a justifiable homicide under New York’s Statute of Self-defense, Defense of Others. Yet somehow, a jury that refused not only to convict him of Intentional Murder, but also Assault, was unlawfully instructed and tricked into convicting him of Depraved Indifference Murder. That conviction is presently on appeal in Westchester County Court on a 440.10 Motion not only claiming a failure
of the District Attorney’s Office to present sufficient evidence of Depraved Mind Murder, but also establishing both Brady and Rosario
violations by that Office, in their intentional concealment, once again, of exculpatory statements of witnesses.
The District Attorney’s Of-fice, smarting from the bloody nose they suffered with DiSimone, now, once again, confronted with evidence of similar indefensible prosecutorial misconduct, in a weak attempt to procedurally bar Mr. DiGuglielmo from availing himself of the State Court of Appeals’ recent decisions more precisely defining the elements of Depraved Indifference Murder, and grasping at the notion as expressed in Policano, a case out of Brooklyn, that decisions in Gonzalez and Payne do not apply retroactively, “as a matter of state law,” would like the reviewing Court to deny Mr. DiGuglielmo due process, by keeping him in prison for conduct that was not a crime under
the statute he was convicted of violating, in effect, punishing him for a crime the State Legislature never created.
Finally, despite the Westchester District Attorney’s Office’s position, and the reluctance of the New York State Court of Appeals to accept responsibility for permitting the injustices associated with Depraved Mind Murder to go on for nearly forty years, the simple truth remains that there is only one Depraved Indifference Murder Statute, enacted by the New York State Legislature, and put on the books in 1967. No matter how many interpretations and re-definings of that law the Court of Appeals may ultimately hand down, that Court, nor any other
court, can change or rewrite the Law. Only the Legislature may do that. It has to do with Separation Of Powers, a fundamental principle
of our Democracy.
Concerning Mr. DiGuglielmo and all other defendants currently, or in the future, appealing conviction under the Statute of Depraved Indifference Murder, the law is the law. Only the caselaw that has evolved over four decades may at one time be “good law” and over time, no longer be, depending upon the whim and disposition of the Court of Appeals. However, whatever the latest definition, and caselaw that
currently applies may happen to be, the benefit of that interpretation may not be denied those currently on appeal.
Thursday, March 29, 2007
The Court Report
By Richard Blassberg
D.W.I. Charge Produces Hung Jury
Westchester County Court, White Plains
Judge Jeffrey Cohen Presiding
Last Tuesday evening Defendant Jeffrey McKinlay, charged with five Vehicle and Traffic Law offenses, the top charge of which was
Driving While Intoxicated, an E-Felony, received a mixed verdict from a jury of three men and nine women that had deliberated for more
than two full days. McKinlay, who was represented by Attorney Rocco D’Agostino, was acquitted of two counts, convicted of two, Speeding and Possession of an Open Container of an Alcoholic Beverage, and reached a hung jury, on the first count, D.W.I., had been anxiously awaiting the verdict.
McKinlay, who had been stopped last Fall by Village of Ossining Police Officer Donohue, who boasts more than one hundred D.W.I. arrests
a year, had been coming from a fair with his 21-year-old son and his son’s friend, in a customized truck that had been inspected and approved as conforming to street operational regulations. Officer Donohue claimed that he had followed the vehicle for some distance
traveling at more than fifty-miles-per-hour in a thirty-mile-per-hour zone.
Donohue, who first claimed that the video taping camera in his patrol car was not functioning, and did not record the stop and arrest,
testified that upon giving the Defendant one of a series of routine field sobriety tests which required McKinlay to raise one leg and stand for
several seconds with his arms over his head, had to practically catch the Defendant to keep him from falling over. However, the video machine, that was, in fact, working, produced a tape that showed no such scenario, and tended to contradict the arresting officer’s account.
Early in the trial, on Thursday the 15th, Attorney D’Agostino had torn into Officer Donohue on cross-examination, attempting to impeach his testimony elicited by Assistant District Attorney Christina Dushaj. Despite repeated efforts by D’Agostino to pry acknowledgement of prior conflicting testimony in pre-trial proceedings ADA Dushaj, who re-ceived mostly favorable rulings from Judge Cohen on numerous objections to Defense inquiries under cross-examination, succeeded in preventing serious impeachment of her witness.
The jury, which had heard testimony all day on Thursday and Friday of the previous week, including closing arguments and the jury charge
Friday afternoon, had been sent home for the weekend and not sequestered after less than two hours deliberation. Returning on Monday, the
19th, they went to lunch, having sent out six notes seeking instructions and read-backs, but failing to reach a unanimous verdict on all counts. Returning from lunch at 2:15pm, the jury sent out still another note.
Judge Cohen, having brought the jurors back in, announced, “I have received a seventh note. I know that there may be frustration that you haven’t reached a verdict.” He then proceeded to remind the jurors of their promise, and their responsibility to work hard to reach a verdict. By 4:50pm Cohen entered the courtroom to advise the parties, “We’re going to let them go for the evening.”
When the jurors entered, the Judge quipped, “Ladies and gentlemen, it’s the only time you haven’t sent out a note to me,” producing some
laughter. He then turned them loose for the evening with the usual admonishment not to discuss the case with anyone.
Tuesday March 20th, moments before they would have been sent home, the jury sent out a note indicating that they had reached a unanimous verdict on all of the counts except the top count, D.W.I., and that they were hopelessly deadlocked, and would not come to a unanimous verdict no matter how much longer they deliberated.
ADA Dushaj expressed her Office’s position that they would continue to prosecute Mr. McKinlay on the D.W.I. charge, seeking a new trial
as soon as one could be arranged. In the interim, he will be sentenced for the Speeding and Open Bottle convictions in April.
By Richard Blassberg
D.W.I. Charge Produces Hung Jury
Westchester County Court, White Plains
Judge Jeffrey Cohen Presiding
Last Tuesday evening Defendant Jeffrey McKinlay, charged with five Vehicle and Traffic Law offenses, the top charge of which was
Driving While Intoxicated, an E-Felony, received a mixed verdict from a jury of three men and nine women that had deliberated for more
than two full days. McKinlay, who was represented by Attorney Rocco D’Agostino, was acquitted of two counts, convicted of two, Speeding and Possession of an Open Container of an Alcoholic Beverage, and reached a hung jury, on the first count, D.W.I., had been anxiously awaiting the verdict.
McKinlay, who had been stopped last Fall by Village of Ossining Police Officer Donohue, who boasts more than one hundred D.W.I. arrests
a year, had been coming from a fair with his 21-year-old son and his son’s friend, in a customized truck that had been inspected and approved as conforming to street operational regulations. Officer Donohue claimed that he had followed the vehicle for some distance
traveling at more than fifty-miles-per-hour in a thirty-mile-per-hour zone.
Donohue, who first claimed that the video taping camera in his patrol car was not functioning, and did not record the stop and arrest,
testified that upon giving the Defendant one of a series of routine field sobriety tests which required McKinlay to raise one leg and stand for
several seconds with his arms over his head, had to practically catch the Defendant to keep him from falling over. However, the video machine, that was, in fact, working, produced a tape that showed no such scenario, and tended to contradict the arresting officer’s account.
Early in the trial, on Thursday the 15th, Attorney D’Agostino had torn into Officer Donohue on cross-examination, attempting to impeach his testimony elicited by Assistant District Attorney Christina Dushaj. Despite repeated efforts by D’Agostino to pry acknowledgement of prior conflicting testimony in pre-trial proceedings ADA Dushaj, who re-ceived mostly favorable rulings from Judge Cohen on numerous objections to Defense inquiries under cross-examination, succeeded in preventing serious impeachment of her witness.
The jury, which had heard testimony all day on Thursday and Friday of the previous week, including closing arguments and the jury charge
Friday afternoon, had been sent home for the weekend and not sequestered after less than two hours deliberation. Returning on Monday, the
19th, they went to lunch, having sent out six notes seeking instructions and read-backs, but failing to reach a unanimous verdict on all counts. Returning from lunch at 2:15pm, the jury sent out still another note.
Judge Cohen, having brought the jurors back in, announced, “I have received a seventh note. I know that there may be frustration that you haven’t reached a verdict.” He then proceeded to remind the jurors of their promise, and their responsibility to work hard to reach a verdict. By 4:50pm Cohen entered the courtroom to advise the parties, “We’re going to let them go for the evening.”
When the jurors entered, the Judge quipped, “Ladies and gentlemen, it’s the only time you haven’t sent out a note to me,” producing some
laughter. He then turned them loose for the evening with the usual admonishment not to discuss the case with anyone.
Tuesday March 20th, moments before they would have been sent home, the jury sent out a note indicating that they had reached a unanimous verdict on all of the counts except the top count, D.W.I., and that they were hopelessly deadlocked, and would not come to a unanimous verdict no matter how much longer they deliberated.
ADA Dushaj expressed her Office’s position that they would continue to prosecute Mr. McKinlay on the D.W.I. charge, seeking a new trial
as soon as one could be arranged. In the interim, he will be sentenced for the Speeding and Open Bottle convictions in April.
Andrea Stewart-Cousins Introduces Ground-Breaking Voter Protection Legislation
Albany – State Senator Andrea Stewart-Cousins has introduced four voter protection bills seeking to stamp out voter intimidation. Senator Stewart-Cousins drafted these measures in response to her experiences during her campaigns of 2004 and 2006 for the 35th District
State Senate seat. It is believed, by most observers of the effort in 2004, that Stewart-Cousins actually won the election by more than 300 votes despite numerous instances of voter suppression and intimidation.
In 2006, suppression and intimidation took on a new dimension with a blanket challenge to thousands of registered voters just days before the election by her opponent. Fellow Democratic State Senator Liz Krueger, who is co-sponsoring the four bills, declared, “Electoral crimes are nothing new. We have all heard stories of elections being manipulated, and we know these instances are not just a thing of the past, but continue to happen in places all around the country.” She added, “But, here and now, we have the opportunity to show that New York is better than that, and that we have a higher standard for ourselves and our elections.”
State Senator Stewart-Cousins’ bills would:
• Create a new electoral crime of voter suppression, punishable as a misdemeanor. Article 17 of the Election Law contains several statutes addressing the issues of voter coercion and intimidation, but there is no specific statute that deals with the actual suppression of voters;
• Increase the penalties for violations of the electoral franchise statutes contained in Article 17 of the Election Law, with a sentence of up to one year of imprisonment. In the rare instances when investigations or criminal charges are brought forth against people who have attempted to obstruct the will of the voters, the local district attorney is currently constrained by lax penalties;
• Make investigations of a voter’s qualifications, including residency, less intimidating and require those challenging the registration of voters to affirm, under penalty of perjury, that the complaint is not frivolous;
• Ban “push-polling” unless said poll meets strict public reporting requirements and require that scripts used be led with election boards.
Senator Krueger declared, “The integrity of our electoral system has taken enough hits. If we don’t pass Senator Stewart-Cousins’ legislation, then you can bet that in the next round of elections, there will be voters who will show up to vote and are denied this legal right, or, worse yet, are afraid to show up to vote altogether.”
In 2004, Andrea Stewart-Cousins, challenging long-time incumbent Senator Nicholas Spano, became the victim of the longest post-election dispute in New York State history. Every conceivable voter suppression device, before, during, and certainly after Election Day, was employed to rob her of her hardfought, well-earned, victory. In the end, what appeared to be her win, by more than 300 votes, became a loss by 18. However, last year, under the watchful eyes of Federal monitors brought in by the United States Justice Department, and with more than 30 Democratic attorney/poll-watchers, in response to public demand, Andrea Stewart-Cousins defeated Mr. Spano by nearly 2,000 votes. The present legislative proposals are a direct outgrowth of her experiences in each of those election efforts.
Albany – State Senator Andrea Stewart-Cousins has introduced four voter protection bills seeking to stamp out voter intimidation. Senator Stewart-Cousins drafted these measures in response to her experiences during her campaigns of 2004 and 2006 for the 35th District
State Senate seat. It is believed, by most observers of the effort in 2004, that Stewart-Cousins actually won the election by more than 300 votes despite numerous instances of voter suppression and intimidation.
In 2006, suppression and intimidation took on a new dimension with a blanket challenge to thousands of registered voters just days before the election by her opponent. Fellow Democratic State Senator Liz Krueger, who is co-sponsoring the four bills, declared, “Electoral crimes are nothing new. We have all heard stories of elections being manipulated, and we know these instances are not just a thing of the past, but continue to happen in places all around the country.” She added, “But, here and now, we have the opportunity to show that New York is better than that, and that we have a higher standard for ourselves and our elections.”
State Senator Stewart-Cousins’ bills would:
• Create a new electoral crime of voter suppression, punishable as a misdemeanor. Article 17 of the Election Law contains several statutes addressing the issues of voter coercion and intimidation, but there is no specific statute that deals with the actual suppression of voters;
• Increase the penalties for violations of the electoral franchise statutes contained in Article 17 of the Election Law, with a sentence of up to one year of imprisonment. In the rare instances when investigations or criminal charges are brought forth against people who have attempted to obstruct the will of the voters, the local district attorney is currently constrained by lax penalties;
• Make investigations of a voter’s qualifications, including residency, less intimidating and require those challenging the registration of voters to affirm, under penalty of perjury, that the complaint is not frivolous;
• Ban “push-polling” unless said poll meets strict public reporting requirements and require that scripts used be led with election boards.
Senator Krueger declared, “The integrity of our electoral system has taken enough hits. If we don’t pass Senator Stewart-Cousins’ legislation, then you can bet that in the next round of elections, there will be voters who will show up to vote and are denied this legal right, or, worse yet, are afraid to show up to vote altogether.”
In 2004, Andrea Stewart-Cousins, challenging long-time incumbent Senator Nicholas Spano, became the victim of the longest post-election dispute in New York State history. Every conceivable voter suppression device, before, during, and certainly after Election Day, was employed to rob her of her hardfought, well-earned, victory. In the end, what appeared to be her win, by more than 300 votes, became a loss by 18. However, last year, under the watchful eyes of Federal monitors brought in by the United States Justice Department, and with more than 30 Democratic attorney/poll-watchers, in response to public demand, Andrea Stewart-Cousins defeated Mr. Spano by nearly 2,000 votes. The present legislative proposals are a direct outgrowth of her experiences in each of those election efforts.
$28,000 Raises? We Think Not! Westchester Taxpayers Have Had Enough.
In Our Opinion...
“It’s not a raise. In a sense we were underpaid.”
With those arrogant words, Democratic County Election Commissioner Reginald La- Fayette, who currently earns a total of $129,230, was quoted in The Journal News last week, attempting to justify a proposed $28,000 annual pay increase for himself and his Republican counterpart, Carolee Sunderland. Most taxpayers The Guardian spoke with expressed little sympathy for LaFayette’s position in light of the fact that Westchester homeowners are paying the highest property taxes in the nation.
We believe that there is something fundamentally unethical in the fact that LaFayette continues to occupy the office in the first place. There can be no denying that as Chairman of the Westchester County Democratic Committee, Mr. LaFayette’s continuance as a County Election Commissioner is a glaring conflict of interest. Clearly, one cannot reasonably be the advocate and the arbiter at the same time. That such a situation should continue unchallengedfor three years now, merely demonstrates the iron-fisted control Larry Schwartz exercises in County politics.
There have been Democratic candidates in Westchester who have definitely suffered under that circumstance, Andrea Stewart-Cousins, in the contest for the 35th District State Senate seat in 2004, most notable among them. That situation would have been bad enough if it had developed honestly and spontaneously.
However, most intelligent observers who have closely monitored elections in the County over the years, are well aware that the nomination process, and the conduct and outcome of many elections have been anything but honest and spontaneous. One need only examine the antics that surrounded three races in a row in that same 35th District to understand that there is nothing about the conduct of the Westchester County Board of Elections
under the present commissioners that recommends them for a $28,000 pay raise.
Consider, in 2000, Nick Spano was up against stiffer competition than he had previously faced, in the person of Tom Abinanti, County Legislator from the Town of Greenburgh. Abinanti, an independently-minded Democrat who has never been popular on the “Ninth Floor”, was certainly not Larry Schwartz’ choice. Nick’s campaign director, and legal ‘wunderkind’ Anthony Mangone, would forge 166 ballots in the Green Party Primary, and not only get away with it, but also would get immunity and a good position arranged by DA Jeanine Pirro for testifying against Democratic political operative Dennis Wedra, in a trial based on trumped-up charges. Did Democratic Commissioner LaFayette have one word to say about the unlawful activities of Nick Spano’s organization? Of course, not.
In 2002, when a Latino candidate named Ramos was challenged in the courts by Nick and tied up until two weeks before election, LaFayette was again unavailable. But the ultimate measure of Mr. LaFayette’s obedience to Larry Schwartz, and his corruption of the electoral process, would come two years later, in 2004, when County Legislator Andrea Stewart-Cousins opposed Big Nick. Andrea actually won that election by more than 300 votes. It would take three months to steal it from her, in what would become the longest disputed election outcome in New York State history, and Reginald LaFayette was an undeniable player, from the very beginning, in the conspiracy that ultimately involved Appellate Division Judge Robert Spolzino, DA Jeanine Pirro, Republican Nassau Supreme Court Judge Warshawsky, Joe Bruno, Anthony Mangone, the Westchester County Department of Public Safety, and a host of others invested in Nick Spano’s re-election.
We are mindful, also, of the countywide-fixed elections of 2001, in which LaFayette’s immediate boss, Larry Schwartz, together with Nick Spano, and David Hebert, Jeanine Pirro’s campaign director, conspired, and rigged, the outcome for County Executive, District Attorney and County Clerk. LaFayette was Larry’s puppet then, even as he is now. Carolee Sunderland, for her part, representing the party out of power, has been happy to go alongwith every scheme that has come down over many years.
No, there is nothing to recommend Westchester’s Election Commissioners’ receipt of a $28,000 annual increase, putting them $45,000 per year higher in salary than their counterparts in Nassau County, a jurisdiction of comparable population and complexity. More importantly, given the long history of the Office under the present occupants, The Westchester Guardian sees no justifiable reason to further burden our already overtaxed County residents by rewarding one of the more egregious components in the overall Machinery of Corruption, otherwise known as Westchester County Government, with a totally undeserved raise.
Never Again - Part 3
By Jeffrey Deskovic
Eyewitness Identification
Testimony Reform
Identification Procedures Must Be Improved To Increase their Reliability Misidentification has been the leading cause of wrongful convictions. We must improve the reliability of identifications.
‘Snitch Testimony’ Of those Who Have Been Offered Incentives To Testify Should Not Be Allowed One of the causes of wrongful convictions comes when people who are either facing prison, or, who are already in prison, for unrelated crimes, make deals to testify for the Prosecution against another person in order to either avoid prison, or to get time taken out of their sentences.
When lacking actual information, there have been many who have made up stories, or have gone along with Prosecutors’ stories, so they could make a deal. Nationwide, such lying snitches account for 15% of wrongful convictions. In 2005, Centurion Ministries, a legal group which works to free those wrongfully convicted, issued a report entitled, The Snitch System: How Incentivized Witnesses Put 38 Innocent
Americans On Death Row.
No witness who testifies should ever receive benefits in exchange for their testimony because the temptation for those who are in desperate circumstances, to lie is too great.
The case profile which the Innocence Project uses to illustrate this point is that of Larry Peterson, who served 17 years for a murder in New Jersey which DNA ultimately proved he was innocent of. After police officers threatened to prosecute three of Larry’s co-workers, in
order to avoid being charged, they falsely said, “he confessed to us on the way to work.” Work records showed that Peterson had not even been to work on the day in which the men claimed that he had confessed to them. Additionally, a man who was in jail with charges pending against him in three different counties also claimed that Larry had admitted guilt to him while in jail. A DNA test ultimately resulted in Larry being exonerated after 17 years. Importantly, the type of murder that Larry was convicted of was a capital murder. He was lucky that he had not been sentenced to death.
The Death Penalty Must Be Kept Out Of New York
The way that the statute is drawn, one aggravating circumstance that determines whether a murder is a capital case, or not, is a conviction for an underlying felony, often a rape. Therefore the type of crime I was wrongfully convicted of would have been death penalty-eligible. There was a lot of pretrial publicity, a lot of public fear, a lot of public pressure; it was a heinous crime. I would have received the death penalty.
My appeals ran out in 1999-2000. I was not cleared until 2006. Under the death penalty statute, there would have been no 2006 for Jeffrey Deskovic.
Death is final. There is no correcting errors once somebody is dead. At least with incarceration, the wrongfully convicted prisoner can be released to live out however much of his life remains. Not so once someone is dead. What would be the correction in that case? Posthumously
acknowledging that they were innocent, and apologize to the family? if the death penalty is reinstated, it is not a question of if innocent people will be executed, it is a question merely of how many.
Reforms Pertaining To the Parole Board
The Parole Board Must Consider, In Cases Where An Applicant Has a Colorable Claim Of Innocence, The Possibility that a Wrongful Conviction Has Occurred and Therefore Keep it in Mind, By Way Of Background, When Considering an Application Wrongful convictions occur, and not all of them are corrected. Parole Board considerations should reflect that reality, rather than their utter refusal to even consider the possibility.
In my case, when I went before the Parole Board, I tried repeatedly to raise the issue of my innocence based on the DNA, so that the Board could consider the possibility, just the possibility, that I was innocent, and then keep that fact in mind when considering the merits of my application for parole. Parole boards must consider matters that pertain to the background of a case under consideration rather than taking a cut-anddried position that an applicant is guilty.
In my case they utterly refused to do so despite several attempts on my part to raise the issue. On the other hand, I realized that they were definitely going to consider the crime for which I was convicted. There was an inherent injustice in that, and it did not bode well for me.
After praising me for my educational accomplishments, a good disciplinary record, some letters of support for my release, including a letter from the prison Islamic Chaplain, they then stated in their decision, “Despite all of this, you have been convicted of a brutal crime and we
are therefore declining to parole you.” An opportunity to remedy an injustice by at least ending my wrongful incarceration went by the boards because of their utter refusal to consider even the possibility that I had been innocent.
One year of my life could have been spared from imprisonment. There are others in addition to myself who had served additional years in prison unnecessarily because of the Parole Board’s refusal to consider innocence, cases where after DNA-proved innocence, in retrospect,
it should have been clear that misidentifications had occurred because of descriptions that did not match height, weight, and physical appearance despite conviction; cases where evidence showed innocence, and yet a conviction occurred; cases wherein the circumstances
in which a confession was obtained made its truthfulness highly questionable.
The Parole Board was in position to consider this when each applicant raised the issue in front of them, yet they refused and applications were denied, resulting in even more prison time having to be served. Mandating that the Board consider the possibility that a wrongful conviction has occurred in every case in which there is a basis to believe that is a possibility, is a common-sense remedy for this.
The Parole Board Should Not Be Allowed To Deny Applicants Based Upon the Nature Of the Crime
Denying applicants based on the nature of the crime is counterproductive in a variety of ways, and also is inconsistent with justice. Firstly, at the time that a prisoner is sentenced, the nature of the crime is already known. It will never change, no matter what a prisoner does. Therefore, to deny prisoners, based upon this element, is to discourage them from turning their lives around and becoming productive citizens. It is inherently unjust to those who have put in solid efforts by educating themselves and staying out of trouble, to, in effect, say to them, “Your efforts are in vain because we are not going to parole you because of the nature of your crime, despite the fact that it was known before you did your first day in prison.”
In addition to the inmates themselves, it wrecks families who are waiting for their fathers, brothers, spouses, friends, etc. to come home. With respect to the wrong done to the victims, that has already been taken into account in that those facts are why applicants were sentenced to prison in the first place. Additionally, it deprives society as a whole when this occurs because those who could add to society cannot do so,
but instead continue to be a tax burden. Other than those who are doing a life sentence, all who are in prison will eventually be released. Do we not want them to have educated themselves, turned their lives around so that they do not reoffend? Or, would we prefer them to have wasted their time in prison because they already know that no matter what they do they will not be paroled?
Lastly, there are innocent people in prison who will never get out by being cleared. Not every case has DNA in it to test, and not everyone will be able to get legal representation. The only way such people will be able to get out of prison will be through parole. Therefore, we need to remove the impediment of being denied based on the nature of the crime. Otherwise, much like trying to establish innocence without representation, it becomes virtually impossible in all but the most extremely rare and flukish circumstances.
Lest anyone think that this is an unfounded concern, consider that Colin Warner was denied parole three times before he got cleared. Remember that I was denied parole based on the nature of the crime despite the merits that I mentioned before. What would have happened had I not obtained legal representation, or if there was no DNA to test?
The Parole Board Should Not Be Allowed To Deny Parole Based Upon Applicants Not Expressing Remorse
The reason for this is that this is an obstacle for those who are actually innocent, because they cannot meet this criteria. There are many who are innocent who are parole-eligible who go to the Parole Board, and are then turned down because when asked if they feel remorse, state that they were innocent. This should not be required of them, especially since this is not even written into the statute regarding parole,
but rather is something that the Parole Board has taken upon itself to often insist upon. Do we really want to place those who are wrongfully in prison in the untenable position of either saying they are guilty, when they are not, in order to express remorse to have a chance at freedom or else being compelled to remain in prison as the price of maintaining innocence? What kind of choice is that? Remember that Betty Tyson and her co-defendant were denied parole numerous times before being cleared because of this.
Reforms Pertaining to Prison The Department of Corrections
Should Not Be Allowed to Require An Admission of Guilt as a Condition of Completing Sex Offender Classes. Prior to being cleared, I was in prison for murder and rape. That meant that in order to complete the programs that the Parole Board would want to see I had completed, I would have to take the Sex Offender Program. I was informed that in order to take and complete the course I would, as a condition of taking the class, be required to verbally admit guilt. Failure to do so would result in my being kicked out of the class and being deemed to have
refused. Not only would I have had to admit guilt of a crime for which I was totally innocent, but I would also have had to make up false details, and do all of this verbally and in writing, and in front of the other people in the class. I was thus presented with the choice of admitting guilt to something I did not do, and then being required to say I did rather sickening things, or else practically give up any
chance to regain my freedom.
My attempts to talk to the instructor during the pre-program interviews and explain that I was innocent, and that the DNA proved this, that I could not admit guilt to something that I did not do and yet that I needed somehow to complete this class so I had a chance to be released,
proved futile. I told him that I wanted to be able to interact with my mother in the free world and, that in light of all this, wasn’t there some way that I could take the class, do all that was required of me without admitting guilt? He flatly refused. I then wrote to the Superintendent of Programs, but got nowhere there either.
This policy must be changed because it punishes the innocent. There is no good reason why the program must be administered in that fashion.
The Measure of Civilly Committing to Mental Hospitals Those Who Are Imprisoned For Sex Offenses Must Be Seriously Considered to Avoid the “End Run” Approach Utilized by Former Governor Pataki.
The reason for this is that there will be some Innocents who get caught up in it. This measure, recently passed, indicates that after completion of their sentence, those who have been convicted of a sex offense might then be eligible for civil confinement based upon an assessment of their future danger to society. One of the bases of determining someone’s dangerousness is whether they have admitted guilt and can therefore be considered to have addressed their issue. Where does that leave the Innocent? Wouldn’t they have suffered enough having been wrongfully convicted and then been made to serve out a sentence because the system failed them? When I was a prisoner, I constantly worried that the measure then being debated by the State Legislature would be passed. e prospect of being civilly committed, even if I had somehow been able to overcome the odds of being paroled, weighed heavily on my mind, because I knew that I might not
be cleared.
As I think about it, it was wrong on so many levels:
• It is a fiction to believe that anybody, whether professional or not, can say what anybody will do in the future, including a jury of their peers;
• It is morally wrong to hold people once their sentence is up, regardless, even if the new place is a mental hospital. It is a very slippery slope we are going down, because allowing the state to do this, how long would it be before others seek to expand the program, extending
it to those who had been convicted of other crimes? Yet we believe, and rightfully so, in giving people a second chance.
College Education for Inmates Should Be Reinstated
I obtained an Associates Degree, and went on to work on obtaining my B.A. Yet I was not able to complete it because then-Gov. Pataki cut state financial aid for prisoners, and Senator Helms did the same for federal inmates. I could have been that much further along, educationally, when I was released. There are other Innocents who are in the same position. The recidivism rate is much lower for those with a college education than those without. One reason is that they are able to get meaningful employment upon release, thus lowering the odds that crime will be resorted to as a means of making money. Therefore, we can prevent the possibility of other victims, and reduce the tax burden of incarceration, by reinstating higher education in our state prison system.
Editor’s Note: Jeffrey Deskovic returns to the pages of The Westchester Guardian to explain in the final of a 3-part series the changes in police procedure and judicial handling that need to be legislated to prevent the kind of injustice and unconstitutional behavior that put him behind bars at age 16. Maliciously and knowingly charged and convicted of the crimes of rape and murder despite his innocence and the fact that his DNA and hair follicles did not match those found in and on his alleged victim, Mr.
Deskovic emerges neither bitter nor vindictive, but dedicated to doing all in his power to prevent what happened to him from happening to others.
– RB
By Jeffrey Deskovic
Eyewitness Identification
Testimony Reform
Identification Procedures Must Be Improved To Increase their Reliability Misidentification has been the leading cause of wrongful convictions. We must improve the reliability of identifications.
‘Snitch Testimony’ Of those Who Have Been Offered Incentives To Testify Should Not Be Allowed One of the causes of wrongful convictions comes when people who are either facing prison, or, who are already in prison, for unrelated crimes, make deals to testify for the Prosecution against another person in order to either avoid prison, or to get time taken out of their sentences.
When lacking actual information, there have been many who have made up stories, or have gone along with Prosecutors’ stories, so they could make a deal. Nationwide, such lying snitches account for 15% of wrongful convictions. In 2005, Centurion Ministries, a legal group which works to free those wrongfully convicted, issued a report entitled, The Snitch System: How Incentivized Witnesses Put 38 Innocent
Americans On Death Row.
No witness who testifies should ever receive benefits in exchange for their testimony because the temptation for those who are in desperate circumstances, to lie is too great.
The case profile which the Innocence Project uses to illustrate this point is that of Larry Peterson, who served 17 years for a murder in New Jersey which DNA ultimately proved he was innocent of. After police officers threatened to prosecute three of Larry’s co-workers, in
order to avoid being charged, they falsely said, “he confessed to us on the way to work.” Work records showed that Peterson had not even been to work on the day in which the men claimed that he had confessed to them. Additionally, a man who was in jail with charges pending against him in three different counties also claimed that Larry had admitted guilt to him while in jail. A DNA test ultimately resulted in Larry being exonerated after 17 years. Importantly, the type of murder that Larry was convicted of was a capital murder. He was lucky that he had not been sentenced to death.
The Death Penalty Must Be Kept Out Of New York
The way that the statute is drawn, one aggravating circumstance that determines whether a murder is a capital case, or not, is a conviction for an underlying felony, often a rape. Therefore the type of crime I was wrongfully convicted of would have been death penalty-eligible. There was a lot of pretrial publicity, a lot of public fear, a lot of public pressure; it was a heinous crime. I would have received the death penalty.
My appeals ran out in 1999-2000. I was not cleared until 2006. Under the death penalty statute, there would have been no 2006 for Jeffrey Deskovic.
Death is final. There is no correcting errors once somebody is dead. At least with incarceration, the wrongfully convicted prisoner can be released to live out however much of his life remains. Not so once someone is dead. What would be the correction in that case? Posthumously
acknowledging that they were innocent, and apologize to the family? if the death penalty is reinstated, it is not a question of if innocent people will be executed, it is a question merely of how many.
Reforms Pertaining To the Parole Board
The Parole Board Must Consider, In Cases Where An Applicant Has a Colorable Claim Of Innocence, The Possibility that a Wrongful Conviction Has Occurred and Therefore Keep it in Mind, By Way Of Background, When Considering an Application Wrongful convictions occur, and not all of them are corrected. Parole Board considerations should reflect that reality, rather than their utter refusal to even consider the possibility.
In my case, when I went before the Parole Board, I tried repeatedly to raise the issue of my innocence based on the DNA, so that the Board could consider the possibility, just the possibility, that I was innocent, and then keep that fact in mind when considering the merits of my application for parole. Parole boards must consider matters that pertain to the background of a case under consideration rather than taking a cut-anddried position that an applicant is guilty.
In my case they utterly refused to do so despite several attempts on my part to raise the issue. On the other hand, I realized that they were definitely going to consider the crime for which I was convicted. There was an inherent injustice in that, and it did not bode well for me.
After praising me for my educational accomplishments, a good disciplinary record, some letters of support for my release, including a letter from the prison Islamic Chaplain, they then stated in their decision, “Despite all of this, you have been convicted of a brutal crime and we
are therefore declining to parole you.” An opportunity to remedy an injustice by at least ending my wrongful incarceration went by the boards because of their utter refusal to consider even the possibility that I had been innocent.
One year of my life could have been spared from imprisonment. There are others in addition to myself who had served additional years in prison unnecessarily because of the Parole Board’s refusal to consider innocence, cases where after DNA-proved innocence, in retrospect,
it should have been clear that misidentifications had occurred because of descriptions that did not match height, weight, and physical appearance despite conviction; cases where evidence showed innocence, and yet a conviction occurred; cases wherein the circumstances
in which a confession was obtained made its truthfulness highly questionable.
The Parole Board was in position to consider this when each applicant raised the issue in front of them, yet they refused and applications were denied, resulting in even more prison time having to be served. Mandating that the Board consider the possibility that a wrongful conviction has occurred in every case in which there is a basis to believe that is a possibility, is a common-sense remedy for this.
The Parole Board Should Not Be Allowed To Deny Applicants Based Upon the Nature Of the Crime
Denying applicants based on the nature of the crime is counterproductive in a variety of ways, and also is inconsistent with justice. Firstly, at the time that a prisoner is sentenced, the nature of the crime is already known. It will never change, no matter what a prisoner does. Therefore, to deny prisoners, based upon this element, is to discourage them from turning their lives around and becoming productive citizens. It is inherently unjust to those who have put in solid efforts by educating themselves and staying out of trouble, to, in effect, say to them, “Your efforts are in vain because we are not going to parole you because of the nature of your crime, despite the fact that it was known before you did your first day in prison.”
In addition to the inmates themselves, it wrecks families who are waiting for their fathers, brothers, spouses, friends, etc. to come home. With respect to the wrong done to the victims, that has already been taken into account in that those facts are why applicants were sentenced to prison in the first place. Additionally, it deprives society as a whole when this occurs because those who could add to society cannot do so,
but instead continue to be a tax burden. Other than those who are doing a life sentence, all who are in prison will eventually be released. Do we not want them to have educated themselves, turned their lives around so that they do not reoffend? Or, would we prefer them to have wasted their time in prison because they already know that no matter what they do they will not be paroled?
Lastly, there are innocent people in prison who will never get out by being cleared. Not every case has DNA in it to test, and not everyone will be able to get legal representation. The only way such people will be able to get out of prison will be through parole. Therefore, we need to remove the impediment of being denied based on the nature of the crime. Otherwise, much like trying to establish innocence without representation, it becomes virtually impossible in all but the most extremely rare and flukish circumstances.
Lest anyone think that this is an unfounded concern, consider that Colin Warner was denied parole three times before he got cleared. Remember that I was denied parole based on the nature of the crime despite the merits that I mentioned before. What would have happened had I not obtained legal representation, or if there was no DNA to test?
The Parole Board Should Not Be Allowed To Deny Parole Based Upon Applicants Not Expressing Remorse
The reason for this is that this is an obstacle for those who are actually innocent, because they cannot meet this criteria. There are many who are innocent who are parole-eligible who go to the Parole Board, and are then turned down because when asked if they feel remorse, state that they were innocent. This should not be required of them, especially since this is not even written into the statute regarding parole,
but rather is something that the Parole Board has taken upon itself to often insist upon. Do we really want to place those who are wrongfully in prison in the untenable position of either saying they are guilty, when they are not, in order to express remorse to have a chance at freedom or else being compelled to remain in prison as the price of maintaining innocence? What kind of choice is that? Remember that Betty Tyson and her co-defendant were denied parole numerous times before being cleared because of this.
Reforms Pertaining to Prison The Department of Corrections
Should Not Be Allowed to Require An Admission of Guilt as a Condition of Completing Sex Offender Classes. Prior to being cleared, I was in prison for murder and rape. That meant that in order to complete the programs that the Parole Board would want to see I had completed, I would have to take the Sex Offender Program. I was informed that in order to take and complete the course I would, as a condition of taking the class, be required to verbally admit guilt. Failure to do so would result in my being kicked out of the class and being deemed to have
refused. Not only would I have had to admit guilt of a crime for which I was totally innocent, but I would also have had to make up false details, and do all of this verbally and in writing, and in front of the other people in the class. I was thus presented with the choice of admitting guilt to something I did not do, and then being required to say I did rather sickening things, or else practically give up any
chance to regain my freedom.
My attempts to talk to the instructor during the pre-program interviews and explain that I was innocent, and that the DNA proved this, that I could not admit guilt to something that I did not do and yet that I needed somehow to complete this class so I had a chance to be released,
proved futile. I told him that I wanted to be able to interact with my mother in the free world and, that in light of all this, wasn’t there some way that I could take the class, do all that was required of me without admitting guilt? He flatly refused. I then wrote to the Superintendent of Programs, but got nowhere there either.
This policy must be changed because it punishes the innocent. There is no good reason why the program must be administered in that fashion.
The Measure of Civilly Committing to Mental Hospitals Those Who Are Imprisoned For Sex Offenses Must Be Seriously Considered to Avoid the “End Run” Approach Utilized by Former Governor Pataki.
The reason for this is that there will be some Innocents who get caught up in it. This measure, recently passed, indicates that after completion of their sentence, those who have been convicted of a sex offense might then be eligible for civil confinement based upon an assessment of their future danger to society. One of the bases of determining someone’s dangerousness is whether they have admitted guilt and can therefore be considered to have addressed their issue. Where does that leave the Innocent? Wouldn’t they have suffered enough having been wrongfully convicted and then been made to serve out a sentence because the system failed them? When I was a prisoner, I constantly worried that the measure then being debated by the State Legislature would be passed. e prospect of being civilly committed, even if I had somehow been able to overcome the odds of being paroled, weighed heavily on my mind, because I knew that I might not
be cleared.
As I think about it, it was wrong on so many levels:
• It is a fiction to believe that anybody, whether professional or not, can say what anybody will do in the future, including a jury of their peers;
• It is morally wrong to hold people once their sentence is up, regardless, even if the new place is a mental hospital. It is a very slippery slope we are going down, because allowing the state to do this, how long would it be before others seek to expand the program, extending
it to those who had been convicted of other crimes? Yet we believe, and rightfully so, in giving people a second chance.
College Education for Inmates Should Be Reinstated
I obtained an Associates Degree, and went on to work on obtaining my B.A. Yet I was not able to complete it because then-Gov. Pataki cut state financial aid for prisoners, and Senator Helms did the same for federal inmates. I could have been that much further along, educationally, when I was released. There are other Innocents who are in the same position. The recidivism rate is much lower for those with a college education than those without. One reason is that they are able to get meaningful employment upon release, thus lowering the odds that crime will be resorted to as a means of making money. Therefore, we can prevent the possibility of other victims, and reduce the tax burden of incarceration, by reinstating higher education in our state prison system.
Editor’s Note: Jeffrey Deskovic returns to the pages of The Westchester Guardian to explain in the final of a 3-part series the changes in police procedure and judicial handling that need to be legislated to prevent the kind of injustice and unconstitutional behavior that put him behind bars at age 16. Maliciously and knowingly charged and convicted of the crimes of rape and murder despite his innocence and the fact that his DNA and hair follicles did not match those found in and on his alleged victim, Mr.
Deskovic emerges neither bitter nor vindictive, but dedicated to doing all in his power to prevent what happened to him from happening to others.
– RB
Our Readers Respond...
In Opposition to Raises For Election Commissioners
Dear Editor:
By law, Westchester County is required to have two Commissioners of Elections, one representing each of the two major parties. Although there is no reason to believe that the responsibilities of this office are too much for a single individual, they collectively pull down almost a quarter of a million plus per year plus benefits and pension (currently $127,125 a year each, plus longevity pay). Having been recommended by their respective parties, each commissioner is appointed to a two-year term by the County Executive and confirmed by the Board of Legislators. The Republican commissioner, Carolee Sunderland, was vice chair of the county Republican Party and ran its White Plains office for a decade. Her opposite number, Reginald LaFayette, is currently the chairman of the county Democratic Party. Neither appears to have had any obvious qualifications for the office of Commissioner of Elections, other than faithful party service, prior to having been appointed.
Now, “increased responsibilities” stemming from the federal Help America Vote Act (HAVA) is offered by the County Executive (and of course, the commissioners themselves) as justifi-cation for bringing their salaries “up to par” with other county commissioners, who get $155,245 for 2007. This means each will need $28,000 more per year, raising their collective pay to over $300,000. Among our elected officials none seems to question the need for such an increase. Nor has anyone questioned why two people should be paid a full salary for holding down what is essentially one job. (Of course, one reason might be that they spend half their time maneuvering against each other!)
“Parity,” it seems to me, would mean $77,622.50 apiece plus half the longevity pay, assuming the other commissioners receive this extra perk. I wonder just how far down the Board of Elections organization chart this duplication of office goes. The Board letterhead lists two Deputy Commissioners, each tucked neatly under his or her respective commissioner. As a poll worker I am aware that there must be at
least one representative from each party working in each election district. (I fill this role as a Democrat on election day.) In my experience I have never seen any action taken in regard to someone’s right to vote which in the slightest way reflects party bias. But what about in between these extremes? Doesn’t there come a point at which it is counterproductive to have rival sets of foxes minding the chicken coop?
That way it takes weeks to decide closely contested elections. That way it takes years to select foolproof voting machines. That way the arcane election laws are perennially interpreted so as to keep opposition candidates off the ballot in party primaries and general elections. According to the Journal News (March 18, p. 1A), only George Oros, the Republican Minority Leader in the County Legislature, has expressed concerns about the propriety of a party leader holding a “county policymaking post,” but he apparently takes no issue with the purely political nature of Board of Elections appointments. In my opinion the Board of Elections should be headed by a single non-partisan commissioner who takes advice, but certainly not direction, from a committee comprised of representatives from all the political parties that have received some minimum percentage of the vote in the previous gubernatorial election. This will take a change in the law at the state level but perhaps our elected representatives are not beyond redemption.
Joel Rudikoff
White Plains
Editor’s Note: While We endorse the spirit and the substance of Mr. Rudikoff’s comments, We would ask him, What makes you think that Reggie and Carolee spend any time maneuvering against each other? A closer examination will reveal that, for many years, they have spent all of their time maneuvering in mutual service of political power brokers such as Larry Schwartz, Giulio Cavallo, and all those candidates who
have been under their control.
Agrees We Can’t Ban Words
Dear Editor:
I am inclined to agree with your position regarding banning the word nigger. In a free society it is preposterous to suggest banning words, no matter how offensive they are to that society. I offer the supposition had society banned the word abolition in the early 1800’s the concept of abolitionists may have never took hold and slavery might still exist.
And the use of the word nigger with all of its hated, anger and hostility would still be as acceptable as it was when I was an early teen. And therefore this whole discussion would be rhetorical It is dangerous when governments control what people say and think. That government can then control the ideas and actions of the people thus enabling the government to suppress the people’s desire for human rights. I believe this to be true because I was taught this in school, in an America where freedom rang loudly especially on AUG. 28, 1963.
Martin Luther King, Jr., in one of the great speeches ever given by a human being, in a much more eloquent way than I stated, ” let freedom ring,” “let it ring from every tenement and every hamlet, from every state and every city,” please note he never suggested that George Wallace, Strom Thurmond or the Grand Wizard should not have the right to use the word nigger.
The irony is while the legislature was engaging in this monumentally absurd pretense ” banning the use of the word nigger” it would appear that according to the article submitted by the “White Sergeant.” Anyone in the employ of the county that actually uses the word nigger with all of its hated, anger and hostility is rewarded. Banning words and not actions is the conduct of tyrants and cowards it would not surprise me to find the county legislature is full of both. Even though the excerpts were from MLK’s I Have a Dream speech the legislature should realize “We are not asleep”!
Kevin L. McGrew
Father of Pirro Victim Speaks Out
Dear Editor:
I just read with great interest your edition of March 15, 2007. I have a personal interest in the article because I am Marci Stein’s father. I can’t tell you how frustrating it is to discover the evidence of what Pirro and Laura Murphy had done only to find out that there was nothing
that could be done to punish them. They are bigger criminals than most of the people they have prosecuted. I would like to help you in any
way I can to achieve what you are attempting to do. In contacting the state officials I wonder if there could be pardons granted to those individuals that had their lives turned upside down by Pirro and her staff. In reading further in the paper I saw that Judge Kenneth Lange has a column. He was the Judge that Marci’s case was first given to and he was removed and replaced by one of Pirro’s cronies.
We never knew why he was removed. Would it be appropiate to ask him why. We always suspected that Pirro was behind it but couldn’t prove it. I wish to thank you for what you are doing and again I would like to help you in any way.
Joseph Bilello
Editor’s Note: In speaking with Judge Lange, we have discovered that he had initial contact with Marci’s case in the pretrial hearings. It is not unusual for one judge to handle the pretrial hearings while another may actually preside over the trial. Frequently a judge who has handled the pretrial motions is already committed to another case in the same time frame, and must relinquish to an available judge.
It happens the editor attended Marci’s trial back in the summer of 2001, presided over by County Court Judge Barbara Zambelli. It was from that attendance, over several days, that the information that formed the basis of our comments in our March 15th edition were derived.
As regards your “frustration” with the fact that, having once discovered Pirro and Murphy’s malicious prosecutorial misconduct “there was nothing that could be done to punish them,” be assured that issue, as pertains to future prosecutions, is a matter currently under study and for which a legislative remedy may soon be in the offing.
In Opposition to Raises For Election Commissioners
Dear Editor:
By law, Westchester County is required to have two Commissioners of Elections, one representing each of the two major parties. Although there is no reason to believe that the responsibilities of this office are too much for a single individual, they collectively pull down almost a quarter of a million plus per year plus benefits and pension (currently $127,125 a year each, plus longevity pay). Having been recommended by their respective parties, each commissioner is appointed to a two-year term by the County Executive and confirmed by the Board of Legislators. The Republican commissioner, Carolee Sunderland, was vice chair of the county Republican Party and ran its White Plains office for a decade. Her opposite number, Reginald LaFayette, is currently the chairman of the county Democratic Party. Neither appears to have had any obvious qualifications for the office of Commissioner of Elections, other than faithful party service, prior to having been appointed.
Now, “increased responsibilities” stemming from the federal Help America Vote Act (HAVA) is offered by the County Executive (and of course, the commissioners themselves) as justifi-cation for bringing their salaries “up to par” with other county commissioners, who get $155,245 for 2007. This means each will need $28,000 more per year, raising their collective pay to over $300,000. Among our elected officials none seems to question the need for such an increase. Nor has anyone questioned why two people should be paid a full salary for holding down what is essentially one job. (Of course, one reason might be that they spend half their time maneuvering against each other!)
“Parity,” it seems to me, would mean $77,622.50 apiece plus half the longevity pay, assuming the other commissioners receive this extra perk. I wonder just how far down the Board of Elections organization chart this duplication of office goes. The Board letterhead lists two Deputy Commissioners, each tucked neatly under his or her respective commissioner. As a poll worker I am aware that there must be at
least one representative from each party working in each election district. (I fill this role as a Democrat on election day.) In my experience I have never seen any action taken in regard to someone’s right to vote which in the slightest way reflects party bias. But what about in between these extremes? Doesn’t there come a point at which it is counterproductive to have rival sets of foxes minding the chicken coop?
That way it takes weeks to decide closely contested elections. That way it takes years to select foolproof voting machines. That way the arcane election laws are perennially interpreted so as to keep opposition candidates off the ballot in party primaries and general elections. According to the Journal News (March 18, p. 1A), only George Oros, the Republican Minority Leader in the County Legislature, has expressed concerns about the propriety of a party leader holding a “county policymaking post,” but he apparently takes no issue with the purely political nature of Board of Elections appointments. In my opinion the Board of Elections should be headed by a single non-partisan commissioner who takes advice, but certainly not direction, from a committee comprised of representatives from all the political parties that have received some minimum percentage of the vote in the previous gubernatorial election. This will take a change in the law at the state level but perhaps our elected representatives are not beyond redemption.
Joel Rudikoff
White Plains
Editor’s Note: While We endorse the spirit and the substance of Mr. Rudikoff’s comments, We would ask him, What makes you think that Reggie and Carolee spend any time maneuvering against each other? A closer examination will reveal that, for many years, they have spent all of their time maneuvering in mutual service of political power brokers such as Larry Schwartz, Giulio Cavallo, and all those candidates who
have been under their control.
Agrees We Can’t Ban Words
Dear Editor:
I am inclined to agree with your position regarding banning the word nigger. In a free society it is preposterous to suggest banning words, no matter how offensive they are to that society. I offer the supposition had society banned the word abolition in the early 1800’s the concept of abolitionists may have never took hold and slavery might still exist.
And the use of the word nigger with all of its hated, anger and hostility would still be as acceptable as it was when I was an early teen. And therefore this whole discussion would be rhetorical It is dangerous when governments control what people say and think. That government can then control the ideas and actions of the people thus enabling the government to suppress the people’s desire for human rights. I believe this to be true because I was taught this in school, in an America where freedom rang loudly especially on AUG. 28, 1963.
Martin Luther King, Jr., in one of the great speeches ever given by a human being, in a much more eloquent way than I stated, ” let freedom ring,” “let it ring from every tenement and every hamlet, from every state and every city,” please note he never suggested that George Wallace, Strom Thurmond or the Grand Wizard should not have the right to use the word nigger.
The irony is while the legislature was engaging in this monumentally absurd pretense ” banning the use of the word nigger” it would appear that according to the article submitted by the “White Sergeant.” Anyone in the employ of the county that actually uses the word nigger with all of its hated, anger and hostility is rewarded. Banning words and not actions is the conduct of tyrants and cowards it would not surprise me to find the county legislature is full of both. Even though the excerpts were from MLK’s I Have a Dream speech the legislature should realize “We are not asleep”!
Kevin L. McGrew
Father of Pirro Victim Speaks Out
Dear Editor:
I just read with great interest your edition of March 15, 2007. I have a personal interest in the article because I am Marci Stein’s father. I can’t tell you how frustrating it is to discover the evidence of what Pirro and Laura Murphy had done only to find out that there was nothing
that could be done to punish them. They are bigger criminals than most of the people they have prosecuted. I would like to help you in any
way I can to achieve what you are attempting to do. In contacting the state officials I wonder if there could be pardons granted to those individuals that had their lives turned upside down by Pirro and her staff. In reading further in the paper I saw that Judge Kenneth Lange has a column. He was the Judge that Marci’s case was first given to and he was removed and replaced by one of Pirro’s cronies.
We never knew why he was removed. Would it be appropiate to ask him why. We always suspected that Pirro was behind it but couldn’t prove it. I wish to thank you for what you are doing and again I would like to help you in any way.
Joseph Bilello
Editor’s Note: In speaking with Judge Lange, we have discovered that he had initial contact with Marci’s case in the pretrial hearings. It is not unusual for one judge to handle the pretrial hearings while another may actually preside over the trial. Frequently a judge who has handled the pretrial motions is already committed to another case in the same time frame, and must relinquish to an available judge.
It happens the editor attended Marci’s trial back in the summer of 2001, presided over by County Court Judge Barbara Zambelli. It was from that attendance, over several days, that the information that formed the basis of our comments in our March 15th edition were derived.
As regards your “frustration” with the fact that, having once discovered Pirro and Murphy’s malicious prosecutorial misconduct “there was nothing that could be done to punish them,” be assured that issue, as pertains to future prosecutions, is a matter currently under study and for which a legislative remedy may soon be in the offing.
Thursday, March 22, 2007
Our Readers Respond...
Greenburgh Board of Ethics Member Resigns in Protest
Dear Editor:
After 15 years of service on the Board of Ethics of the Town of Greenburgh, I have resigned as a member and chairman. I no longer have confidence in the integrity of the present own Board which by inaction and attempts at political intimidation has rendered the Board of Ethics impotent. The Town Board has repeatedly failed to fill vacancies on the Board of Ethics, leaving it without a quorum and frustrating
its ability to conduct business. On March 1, I was notified that the Town Board had not reappointed Louis Schenkel as a member of the Ethics Board. Mr.Schenkel is Associate General Counsel for four major New York City hospitals and has the responsibility for overseeing all ethical and conflict of interest issues of more than 17,000 employees.
Since the Ethics Board was revived fifteen years ago, Mr.Schenkel has served with integrity and distinction and was unanimously reappointed by four previous Town Boards. It was not until Aug. 1, 2006, a month after Mr. Schenkel’s term expired, that he was scheduled to meet with the Town Board. After waiting for an hour, he was told that the Board could not see him and he would have to come back. On Aug. 8, after waiting for an hour and a half, Mr. Schenkel met with Town Board members and for an hour they didn’t discuss his credentials, but spent the time criticizing the Board of Ethics. At the end of the meeting, I asked the Town Board members to act expeditiously so that the Ethics Board would have a quorum. Without his appointment, there would be only two of the five-member Board of Ethics remaining,
Mrs.Robin J.Bauer, an attorney for over thirty years, a senior attorney with the Legal Aid Society and former counsel to the state Grievance Committee, and myself.
The Town Board later took a vote; Supervisor Paul Feiner and Councilwoman Eddie Mae Barnes voted to reappoint Mr. Schenkel; Councilmen Steven Bass and Francis Sheehan voted no, and Councilwoman Diana Juettner deferred her vote. It was not until eight months later that Mr.Schenkel was advised that he was not reappointed.
After repeated criticism in the media of the manner in which the Board of Ethics was handling a matter involving Mr.Feiner’s request for an Ethics opinion, I met with the Town Board on July 5, 2006. I advised them that finally, at my insistence, the District Attorney’s Office officially notified me only four days earlier that the complaints involving Mr.Feiner’s campaign contributions were not criminal in nature and the matter was closed in their office. I advised the Town Board that as soon as they reappointed Mr.Schenkel we would have a
quorum and the matter would be resolved within a week. That was eight months ago. As of March 1, 2007, the Board of Ethics
still did not have a quorum.
In its fifteen-year existence, no opinion of the Board of Ethics has ever been challenged or appealed but once. In 2003, the Town Board requested Councilman Bass to recuse himself from a pending matter due to a conflict of interest. Mr.Bass refused to do so and the Town Board referred the matter to the board of Ethics which then twice voted unanimously that he should recuse himself. I then received a telephone call at home from a county legislator and a letter from Mr.Bass’ attorney stating that he was advising him not to recuse himself. To my knowledge, Mr.Bass did not do so, despite the long standing position of the Town Board for over thirty years “its intention to abide by the opinions issued by the Board of Ethics”.
On July 11, 2006, the Board of Ethics and Town Board received a letter from a town resident alleging that Mr. Bass improperly received campaign contributions. The resident further requested a review of the campaign contributions of all council members. I advised him that under the Code of Ethics, our Board could only render advisory opinions at the request of the Town Board and that his request had been forwarded to them for appropriate action. It is now nine months later and nothing has been done.
Campaign contribution reform is long overdue. When Mr. Sheehan was a candidate for the Town Board he submitted lengthy proposals to the League of Women Voters calling for campaign contribution reform and the right of a Town resident to file a complaint directly to the Board of Ethics. He has been a Town Councilman for 15 months and no action has been taken on those issues other than to impede the Board of Ethics in its duties.
The Board of Ethics must vigorously defend its responsibility to be independently free from political and partisan pressure and influence. I am unable to do so under the present Town Board. I have served our Country, State, County and Town in the enforcement of the law for over 50 years, and in all those years I have not compromised my principles or duties. I will not now.
I have been advised that Robin J.Bauer,Esq. has joined me in resigning from the Board of Ethics.
Thomas A. Facelle
Justice (ret),
NYS Supreme Court
Brigadier General (ret),
USAF
Reader Apprciates The Guardian
The Editor:
I just want to congratulate you on such an informative paper. I look forward to reading it weekly. Your staff should be commended. The topics are relative and up to date, with old references for us to use as a guide to do research.
I especially enjoy reading The Advocate and Freedom isn’t Free articles. I have cut out issues & mailed to others, the topics were that good.
Please continue the great work you are doing, it is really appreciated. Please convey my thanks to your staff.
Gladys Ramsey
Reader Appalled by Treatment of Jing and Tristram Kelly
Dear Editor:
I am a stay-at-home mother of three and an American born and raised in NYC, who lives in Westchester. Not that this has any bearing, but I just wanted to make clear who I am. I am writing to you as I happened to be food shopping and came across a newspaper called the Westchester Guardian and saw your article on Jing Kelly who I first read about back when she and her son return to the United States to
clear her name, and was arrested.
I have to tell you that your article has made me extremely upset and that my whole day was anti-law, not to mention distorted. I’m a big advocate for the children and never really ever get involved especially in news articles as I don’t always get the full story. But the very first article on her I first thought she should have just been given a slap on the wrist even though she committed a crime of custodial interference.
She did it not for herself, but for her child and the fact that her husband no longer was living I felt the case should have been dismissed. Also,
the fact that the in-laws got custody is the BIGGEST joke of them all. Boy they must have some POWER and according to the way the Judge is behaving throughout this entire case what is her take? Or, rather how much are they paying her outside the court room?
I have personal friends who have had difficulty having children. So when they went to adopt an American child age didn’t matter, they were told that it is extremely difficult and that the government likes to keep the children with their natural parents whether the parents are in rehab or jail, didn’t matter. Yet, in Jing’s case her child was taken away and never returned! And her in-laws are doing their hardest to keep her from getting her own child.
I didn’t know that our government catered to people with a revengeful motive. The government and the power-hungry people in this
Country have been given wayyyyyy too much power. Jing’s only true crime was escaping her abusive husband who, by the way, no longer exists, and yet she cannot have custody of her only child.
What I couldn’t understand at first was considering that her husband had passed away and the abuse he had done to her, why she does not have her son. I understand that I am just a reader and don’t really know the gist of the entire story, but coming from the news it sounds like she had done her time living with the man she married and who abused her.
I know that there is always two sides, but I’ll say it again, her husband, the only true problem party in this case, no longer exist so why does she not have her son and why do the in-laws continue to badger her by fighting to keep her son away from her? Tristram is Jing’s son!!!!
If Jing was smart she should appeal to the American public and fight fire with fire, go to Warner Brothers or a famous celebrity and have the public make the decision as it will break their hearts to see what the courts are doing to this poor women.
Lisa Kenny
Editor’s Note:
Jing Kelly, who was voluntarily returning to the United States with her two-year-old infant son, Tristram, when she was arrested and her child was kidnapped by Gail Hiler, sister of Jing’s deceased, abusive husband, in Vancouver, British Columbia under arrangements made with Canadian authorities by then-DA Jeanine Pirro. Ms. Kelly, by definition, because of voluntarily returning, was never guilty of Custodial
Interference in the First Degree, a felony, as she was overcharged by Pirro. A jury of her peers recognized that fact and found her guilty merely of Misdemeanor Custodial Interference.
Ms. Kelly’s appeal of that conviction was recently heard by a panel of the State Supreme Court, Appellate Division, Second Department, sitting in White Plains. That appeal was essentially based upon the trial court’s refusal to permit Kelly’s attorneys to offer an affirmative defense.
Greenburgh Board of Ethics Member Resigns in Protest
Dear Editor:
After 15 years of service on the Board of Ethics of the Town of Greenburgh, I have resigned as a member and chairman. I no longer have confidence in the integrity of the present own Board which by inaction and attempts at political intimidation has rendered the Board of Ethics impotent. The Town Board has repeatedly failed to fill vacancies on the Board of Ethics, leaving it without a quorum and frustrating
its ability to conduct business. On March 1, I was notified that the Town Board had not reappointed Louis Schenkel as a member of the Ethics Board. Mr.Schenkel is Associate General Counsel for four major New York City hospitals and has the responsibility for overseeing all ethical and conflict of interest issues of more than 17,000 employees.
Since the Ethics Board was revived fifteen years ago, Mr.Schenkel has served with integrity and distinction and was unanimously reappointed by four previous Town Boards. It was not until Aug. 1, 2006, a month after Mr. Schenkel’s term expired, that he was scheduled to meet with the Town Board. After waiting for an hour, he was told that the Board could not see him and he would have to come back. On Aug. 8, after waiting for an hour and a half, Mr. Schenkel met with Town Board members and for an hour they didn’t discuss his credentials, but spent the time criticizing the Board of Ethics. At the end of the meeting, I asked the Town Board members to act expeditiously so that the Ethics Board would have a quorum. Without his appointment, there would be only two of the five-member Board of Ethics remaining,
Mrs.Robin J.Bauer, an attorney for over thirty years, a senior attorney with the Legal Aid Society and former counsel to the state Grievance Committee, and myself.
The Town Board later took a vote; Supervisor Paul Feiner and Councilwoman Eddie Mae Barnes voted to reappoint Mr. Schenkel; Councilmen Steven Bass and Francis Sheehan voted no, and Councilwoman Diana Juettner deferred her vote. It was not until eight months later that Mr.Schenkel was advised that he was not reappointed.
After repeated criticism in the media of the manner in which the Board of Ethics was handling a matter involving Mr.Feiner’s request for an Ethics opinion, I met with the Town Board on July 5, 2006. I advised them that finally, at my insistence, the District Attorney’s Office officially notified me only four days earlier that the complaints involving Mr.Feiner’s campaign contributions were not criminal in nature and the matter was closed in their office. I advised the Town Board that as soon as they reappointed Mr.Schenkel we would have a
quorum and the matter would be resolved within a week. That was eight months ago. As of March 1, 2007, the Board of Ethics
still did not have a quorum.
In its fifteen-year existence, no opinion of the Board of Ethics has ever been challenged or appealed but once. In 2003, the Town Board requested Councilman Bass to recuse himself from a pending matter due to a conflict of interest. Mr.Bass refused to do so and the Town Board referred the matter to the board of Ethics which then twice voted unanimously that he should recuse himself. I then received a telephone call at home from a county legislator and a letter from Mr.Bass’ attorney stating that he was advising him not to recuse himself. To my knowledge, Mr.Bass did not do so, despite the long standing position of the Town Board for over thirty years “its intention to abide by the opinions issued by the Board of Ethics”.
On July 11, 2006, the Board of Ethics and Town Board received a letter from a town resident alleging that Mr. Bass improperly received campaign contributions. The resident further requested a review of the campaign contributions of all council members. I advised him that under the Code of Ethics, our Board could only render advisory opinions at the request of the Town Board and that his request had been forwarded to them for appropriate action. It is now nine months later and nothing has been done.
Campaign contribution reform is long overdue. When Mr. Sheehan was a candidate for the Town Board he submitted lengthy proposals to the League of Women Voters calling for campaign contribution reform and the right of a Town resident to file a complaint directly to the Board of Ethics. He has been a Town Councilman for 15 months and no action has been taken on those issues other than to impede the Board of Ethics in its duties.
The Board of Ethics must vigorously defend its responsibility to be independently free from political and partisan pressure and influence. I am unable to do so under the present Town Board. I have served our Country, State, County and Town in the enforcement of the law for over 50 years, and in all those years I have not compromised my principles or duties. I will not now.
I have been advised that Robin J.Bauer,Esq. has joined me in resigning from the Board of Ethics.
Thomas A. Facelle
Justice (ret),
NYS Supreme Court
Brigadier General (ret),
USAF
Reader Apprciates The Guardian
The Editor:
I just want to congratulate you on such an informative paper. I look forward to reading it weekly. Your staff should be commended. The topics are relative and up to date, with old references for us to use as a guide to do research.
I especially enjoy reading The Advocate and Freedom isn’t Free articles. I have cut out issues & mailed to others, the topics were that good.
Please continue the great work you are doing, it is really appreciated. Please convey my thanks to your staff.
Gladys Ramsey
Reader Appalled by Treatment of Jing and Tristram Kelly
Dear Editor:
I am a stay-at-home mother of three and an American born and raised in NYC, who lives in Westchester. Not that this has any bearing, but I just wanted to make clear who I am. I am writing to you as I happened to be food shopping and came across a newspaper called the Westchester Guardian and saw your article on Jing Kelly who I first read about back when she and her son return to the United States to
clear her name, and was arrested.
I have to tell you that your article has made me extremely upset and that my whole day was anti-law, not to mention distorted. I’m a big advocate for the children and never really ever get involved especially in news articles as I don’t always get the full story. But the very first article on her I first thought she should have just been given a slap on the wrist even though she committed a crime of custodial interference.
She did it not for herself, but for her child and the fact that her husband no longer was living I felt the case should have been dismissed. Also,
the fact that the in-laws got custody is the BIGGEST joke of them all. Boy they must have some POWER and according to the way the Judge is behaving throughout this entire case what is her take? Or, rather how much are they paying her outside the court room?
I have personal friends who have had difficulty having children. So when they went to adopt an American child age didn’t matter, they were told that it is extremely difficult and that the government likes to keep the children with their natural parents whether the parents are in rehab or jail, didn’t matter. Yet, in Jing’s case her child was taken away and never returned! And her in-laws are doing their hardest to keep her from getting her own child.
I didn’t know that our government catered to people with a revengeful motive. The government and the power-hungry people in this
Country have been given wayyyyyy too much power. Jing’s only true crime was escaping her abusive husband who, by the way, no longer exists, and yet she cannot have custody of her only child.
What I couldn’t understand at first was considering that her husband had passed away and the abuse he had done to her, why she does not have her son. I understand that I am just a reader and don’t really know the gist of the entire story, but coming from the news it sounds like she had done her time living with the man she married and who abused her.
I know that there is always two sides, but I’ll say it again, her husband, the only true problem party in this case, no longer exist so why does she not have her son and why do the in-laws continue to badger her by fighting to keep her son away from her? Tristram is Jing’s son!!!!
If Jing was smart she should appeal to the American public and fight fire with fire, go to Warner Brothers or a famous celebrity and have the public make the decision as it will break their hearts to see what the courts are doing to this poor women.
Lisa Kenny
Editor’s Note:
Jing Kelly, who was voluntarily returning to the United States with her two-year-old infant son, Tristram, when she was arrested and her child was kidnapped by Gail Hiler, sister of Jing’s deceased, abusive husband, in Vancouver, British Columbia under arrangements made with Canadian authorities by then-DA Jeanine Pirro. Ms. Kelly, by definition, because of voluntarily returning, was never guilty of Custodial
Interference in the First Degree, a felony, as she was overcharged by Pirro. A jury of her peers recognized that fact and found her guilty merely of Misdemeanor Custodial Interference.
Ms. Kelly’s appeal of that conviction was recently heard by a panel of the State Supreme Court, Appellate Division, Second Department, sitting in White Plains. That appeal was essentially based upon the trial court’s refusal to permit Kelly’s attorneys to offer an affirmative defense.
The Advocate
Richard Blassberg
Chief Judge Judith Kaye Is Totally Out Of Touch
Last Monday afternoon, New York State’s Chief Judge, Judith Kaye appeared on National Public Radio’s Brian Lehrer Show. Mr. Lehrer, not generally known to be unprepared with subject matter, squandered an excellent opportunity to bring some meaningful dialogue regarding New York State’s failing court system to his listeners, unless, of course, it was his intention to give the Judge a ‘PR Freebee.’ For openers, his willingness to permit the Chief Judge of the State, while making reference to the enormous number of pro se litigants in the Matrimonial
Part of Supreme Court, to get away with, saying, “I never understand those Latin phrases,” as she was uncertain whether she meant to say pro se, or pro bono, without some expression of surprise, was both scary and disappointing. Her admission was scary, and his failure to recognize and pursue her ineptness was most disappointing. Lehrer’s ‘marshmallow treatment’ of her was reminiscent of Archie Bunker addressing his letter to Richard Nixon with “Dear Mister President, Your Honor, Sir:”
It was evident from the outset that Judith Kaye was not prepared to have a meaningful discussion of the dreadful condition of New York State’s Unified Court System, and Brian Lehrer was either unwilling, or unprepared, to hold her feet to the fire. Shame on them both! To listen to her reassurances one has to wonder where she has been for the last 14 years? Clearly, former Governor Cuomo’s decision to appoint Kaye, a woman with no prior judicial credentials, whose legal career had been spent in corporate law, was a badly failed experiment.
Kaye’s remarks, intended to convey the impression that the judiciary, particularly the Matrimonial and Criminal Parts of Supreme Court, are in essentially good shape could not be further from the truth, as many Westchester residents are well aware. It is common knowledge that numerous Supreme Court Justices purchased their nominations through political power-brokers. One such case recently exposed in Brooklyn, involved a complaint by a judge’s wife that she paid $200,000 to secure his nomination.
Here in Westchester, The Guardian has been exposing for several months the role of Giulio Cavallo, Larry Schwartz, and others, in the sale of judicial nominations, for as much as $15,000, and more. And, of course, the practice is not limited to judges. It’s well known in political circles that Giulio Cavallo is furious with DA Janet DiFiore’s spouse, attorney Dennis Glazer, for reneging on his promise to pay Cavallo $30,000 for the Independence Party’s cross-endorsement of Janet for DA against Tony Castro in 2005.
One wonders how Kaye can accept the fact that her Chief Administrative Judge, Jonathan Lippman, a Democrat, to ensure his election to State Supreme Court, a 14-year position, schemed with then-Westchester County Court Judge Joseph Alessandro, who had been found “Unqualified,” by the State Commission on Judicial Credentials, to cross-endorse each other, thus underhandedly guaranteeing their election two years ago? Judge Alessandro, when last seen in Westchester, was the subject of a suit by Barbara Battista, his former campaign treasurer, for having allegedly defrauded her out of more than $250,000.
Judge Kaye certainly cannot deny knowledge of the shameless enterprise that has been flourishing on her watch in the Matrimonial Part of Westchester Supreme Court, involving certain judges and matrimonial attorneys, and law guardians. The complaints were so numerous, many litigants having gone to federal authorities, that Kaye was compelled, in June of last year, to instruct Judge Francis Nicolai to remove the four sitting judges in the Matrimonial Part, and replace them with others, the so-called “Historic Rotation.” No, Judge Kaye, despite her remarks to Brian Lehrer, to the contrary, is only too well aware of the scandalous scheme by which the ‘monied spouse’ in divorce after divorce,
invariably gets control of the marital assets, and custody of the children, by employing the services of the unscrupulous clique of lawyers, law guardians, and mental health professionals, who use Temporary Orders of Protection, perjury, and outright fraud to achieve control.
Too many of the easy questions put to Kaye by Lehrer were answered with expressions such as ”I hope that.” She would prefer to appear unknowing, rather than engage in open discussion of the serious day-today realities citizens encounter in our State Courts. Her responses to questions regarding Family Court were most discouraging in light of what has been happening to Jing Kelly and her infant son Tristram for more than four years at the hands of New York County Family Court Judge Sara P. Schechter. Listening to Kaye’s uninformed responses, it is little wonder that a bigoted creature like Schechter has been able to keep this Chinese-American mother and her six-year-old son apart for four years, in total defiance of both the order and mandamus of the Appellate Division, First Department.
It doesn’t do the People of New York State one bit of good to have a politician the like of Judith Kaye as our Chief Judge. It’s one thing not to know pro se from pro bono, but it’s quite another to be totally out of touch with what is going on in our courts. And, furthermore, to speak in meaningless and irrelevant terms simply serves to further undermine public confidence in our judicial system. Worse yet, we must continue to labor under her lack of initiative and leadership for two more years thanks to Governor Spitzer’s reappointment of her.
Richard Blassberg
Chief Judge Judith Kaye Is Totally Out Of Touch
Last Monday afternoon, New York State’s Chief Judge, Judith Kaye appeared on National Public Radio’s Brian Lehrer Show. Mr. Lehrer, not generally known to be unprepared with subject matter, squandered an excellent opportunity to bring some meaningful dialogue regarding New York State’s failing court system to his listeners, unless, of course, it was his intention to give the Judge a ‘PR Freebee.’ For openers, his willingness to permit the Chief Judge of the State, while making reference to the enormous number of pro se litigants in the Matrimonial
Part of Supreme Court, to get away with, saying, “I never understand those Latin phrases,” as she was uncertain whether she meant to say pro se, or pro bono, without some expression of surprise, was both scary and disappointing. Her admission was scary, and his failure to recognize and pursue her ineptness was most disappointing. Lehrer’s ‘marshmallow treatment’ of her was reminiscent of Archie Bunker addressing his letter to Richard Nixon with “Dear Mister President, Your Honor, Sir:”
It was evident from the outset that Judith Kaye was not prepared to have a meaningful discussion of the dreadful condition of New York State’s Unified Court System, and Brian Lehrer was either unwilling, or unprepared, to hold her feet to the fire. Shame on them both! To listen to her reassurances one has to wonder where she has been for the last 14 years? Clearly, former Governor Cuomo’s decision to appoint Kaye, a woman with no prior judicial credentials, whose legal career had been spent in corporate law, was a badly failed experiment.
Kaye’s remarks, intended to convey the impression that the judiciary, particularly the Matrimonial and Criminal Parts of Supreme Court, are in essentially good shape could not be further from the truth, as many Westchester residents are well aware. It is common knowledge that numerous Supreme Court Justices purchased their nominations through political power-brokers. One such case recently exposed in Brooklyn, involved a complaint by a judge’s wife that she paid $200,000 to secure his nomination.
Here in Westchester, The Guardian has been exposing for several months the role of Giulio Cavallo, Larry Schwartz, and others, in the sale of judicial nominations, for as much as $15,000, and more. And, of course, the practice is not limited to judges. It’s well known in political circles that Giulio Cavallo is furious with DA Janet DiFiore’s spouse, attorney Dennis Glazer, for reneging on his promise to pay Cavallo $30,000 for the Independence Party’s cross-endorsement of Janet for DA against Tony Castro in 2005.
One wonders how Kaye can accept the fact that her Chief Administrative Judge, Jonathan Lippman, a Democrat, to ensure his election to State Supreme Court, a 14-year position, schemed with then-Westchester County Court Judge Joseph Alessandro, who had been found “Unqualified,” by the State Commission on Judicial Credentials, to cross-endorse each other, thus underhandedly guaranteeing their election two years ago? Judge Alessandro, when last seen in Westchester, was the subject of a suit by Barbara Battista, his former campaign treasurer, for having allegedly defrauded her out of more than $250,000.
Judge Kaye certainly cannot deny knowledge of the shameless enterprise that has been flourishing on her watch in the Matrimonial Part of Westchester Supreme Court, involving certain judges and matrimonial attorneys, and law guardians. The complaints were so numerous, many litigants having gone to federal authorities, that Kaye was compelled, in June of last year, to instruct Judge Francis Nicolai to remove the four sitting judges in the Matrimonial Part, and replace them with others, the so-called “Historic Rotation.” No, Judge Kaye, despite her remarks to Brian Lehrer, to the contrary, is only too well aware of the scandalous scheme by which the ‘monied spouse’ in divorce after divorce,
invariably gets control of the marital assets, and custody of the children, by employing the services of the unscrupulous clique of lawyers, law guardians, and mental health professionals, who use Temporary Orders of Protection, perjury, and outright fraud to achieve control.
Too many of the easy questions put to Kaye by Lehrer were answered with expressions such as ”I hope that.” She would prefer to appear unknowing, rather than engage in open discussion of the serious day-today realities citizens encounter in our State Courts. Her responses to questions regarding Family Court were most discouraging in light of what has been happening to Jing Kelly and her infant son Tristram for more than four years at the hands of New York County Family Court Judge Sara P. Schechter. Listening to Kaye’s uninformed responses, it is little wonder that a bigoted creature like Schechter has been able to keep this Chinese-American mother and her six-year-old son apart for four years, in total defiance of both the order and mandamus of the Appellate Division, First Department.
It doesn’t do the People of New York State one bit of good to have a politician the like of Judith Kaye as our Chief Judge. It’s one thing not to know pro se from pro bono, but it’s quite another to be totally out of touch with what is going on in our courts. And, furthermore, to speak in meaningless and irrelevant terms simply serves to further undermine public confidence in our judicial system. Worse yet, we must continue to labor under her lack of initiative and leadership for two more years thanks to Governor Spitzer’s reappointment of her.
The Court Report
By Richard Blassberg
Judge Speaks Out Against Politicizing of Pistol Permits
Last Thursday, in County Court Judge Rory Bellantoni, conducting a Pistol Permit Hearing, speaking to the Assistant County Attorney
Matthew Gallagher, and County Police Lieutenant Frank Donovan, demanded to know, “To what extent are the recommendations from the
County Department of Public Safety about public safety, and to what extent are they about political agendas?” The issue that brought James
Donaghy, 56, a Yonkers resident, and long-time holder of pistol permits for target practice, to court was his application for a permit for hunting.
Mr. Donaghy, had originally received approval by Sergeant Seaman of the Pistol Permit Unit of the Westchester County Department of Public Safety, and the approval of Judge Rory Bellantoni, only to have the Department’s approval retracted by County Police Inspector Roger Rokicki, without benefit of Due Process. Judge Bellantoni, turning to Gallagher and Donovan, asked, “A person who was granted a license for target shooting should be denied one for hunting? To what extent is a political agenda being advanced?”
Bellantoni then questioned why the County Police Department’s rejection was forwarded to Judge Susan Cacace, also a County Court Judge of equal judicial authority, and not back to him, suggesting that they might have been attempting an “end run” around his Court. Mr. Gallagher responded, “Your Honor, no one was trying to circumnavigate this Court. The fact that it went to Judge Cacace was just a random event.”
Bellantoni, obviously not convinced, came right back, “Even a random request to have it go to a different judge of concurrent jurisdiction
was wrong. And, that was why Judge Cacace brought it to me.”
The Judge, still troubled by the lack of Due Process, and the manner in which the County Department of Public Safety had attempted to
reverse a pistol permit for hunting that he had approved, declared, “We have a duly licensed applicant, with no evidence of any crime since his original license, and we are being asked to revoke his license. With no new arrests and no new crimes we are puzzled.”
Lieutenant Donovan addressed the Court with, “I’m very sorry that the Court feels slighted. We are basing our recommendations upon the
applicant’s history of aggressive behavior.” Donovan was making reference to a misdemeanor conviction in 1969 when the applicant was 18, and a violation in 1974 at 23.
Asked by the Court if he wished to speak in his own behalf, Mr. Donaghy explained that he had applied for a pistol permit for hunting so that he might hunt on the property of a friend in upstate New York. Interviewed after the hearing, he expressed his dismay with the way in which the County Department of Public Safety had gone about attempting to revoke his licenses without benefit of Due Process.
Analysis
Several weeks ago The Guardian brought to our readers’ attention the fact that Deputy County Executive Larry Schwartz was engaging in still another political power play, attempting to pass legislation through the County Board of Legislators, and, ultimately with the State Legislature’s approval, that would have taken the authority to review and approve pistol permits out of the hands of elected County Court Judges, placing that power solely under the authority of County Department of Public Safety Commissioner Tom Belfiore.
We explained why such an arrangement would be against the best interests of County residents, citing the fact that Commissioner Belfiore is under the total control of Larry Schwartz, and reminding our readers that Mr. Schwartz, and Mr. Belfiore, had conspired with former State Senator Nicholas Spano to criminally divert $100,000 from a State Grant, issued for the specific purpose of bolstering the efforts of the County’s Pistol Permit Unit in tracking down unregistered handguns, instead using the funds to provide an unnecessary chauffeur for the Senator’s father, former County Clerk Leonard Spano.
Additionally, The Guardian has on numerous occasions revealed the close relationship between Larry Schwartz and Guilio Cavallo, former Chairman of the Westchester Independence Party, currently under investigation for election fraud, and conspiracy. Mr. Cavallo who, in fact, sits on a citizen’s advisory board of the County Department of Public Safety, is known to have offered his services and influence, for payment by individuals seeking pistol permits.
By Richard Blassberg
Judge Speaks Out Against Politicizing of Pistol Permits
Last Thursday, in County Court Judge Rory Bellantoni, conducting a Pistol Permit Hearing, speaking to the Assistant County Attorney
Matthew Gallagher, and County Police Lieutenant Frank Donovan, demanded to know, “To what extent are the recommendations from the
County Department of Public Safety about public safety, and to what extent are they about political agendas?” The issue that brought James
Donaghy, 56, a Yonkers resident, and long-time holder of pistol permits for target practice, to court was his application for a permit for hunting.
Mr. Donaghy, had originally received approval by Sergeant Seaman of the Pistol Permit Unit of the Westchester County Department of Public Safety, and the approval of Judge Rory Bellantoni, only to have the Department’s approval retracted by County Police Inspector Roger Rokicki, without benefit of Due Process. Judge Bellantoni, turning to Gallagher and Donovan, asked, “A person who was granted a license for target shooting should be denied one for hunting? To what extent is a political agenda being advanced?”
Bellantoni then questioned why the County Police Department’s rejection was forwarded to Judge Susan Cacace, also a County Court Judge of equal judicial authority, and not back to him, suggesting that they might have been attempting an “end run” around his Court. Mr. Gallagher responded, “Your Honor, no one was trying to circumnavigate this Court. The fact that it went to Judge Cacace was just a random event.”
Bellantoni, obviously not convinced, came right back, “Even a random request to have it go to a different judge of concurrent jurisdiction
was wrong. And, that was why Judge Cacace brought it to me.”
The Judge, still troubled by the lack of Due Process, and the manner in which the County Department of Public Safety had attempted to
reverse a pistol permit for hunting that he had approved, declared, “We have a duly licensed applicant, with no evidence of any crime since his original license, and we are being asked to revoke his license. With no new arrests and no new crimes we are puzzled.”
Lieutenant Donovan addressed the Court with, “I’m very sorry that the Court feels slighted. We are basing our recommendations upon the
applicant’s history of aggressive behavior.” Donovan was making reference to a misdemeanor conviction in 1969 when the applicant was 18, and a violation in 1974 at 23.
Asked by the Court if he wished to speak in his own behalf, Mr. Donaghy explained that he had applied for a pistol permit for hunting so that he might hunt on the property of a friend in upstate New York. Interviewed after the hearing, he expressed his dismay with the way in which the County Department of Public Safety had gone about attempting to revoke his licenses without benefit of Due Process.
Analysis
Several weeks ago The Guardian brought to our readers’ attention the fact that Deputy County Executive Larry Schwartz was engaging in still another political power play, attempting to pass legislation through the County Board of Legislators, and, ultimately with the State Legislature’s approval, that would have taken the authority to review and approve pistol permits out of the hands of elected County Court Judges, placing that power solely under the authority of County Department of Public Safety Commissioner Tom Belfiore.
We explained why such an arrangement would be against the best interests of County residents, citing the fact that Commissioner Belfiore is under the total control of Larry Schwartz, and reminding our readers that Mr. Schwartz, and Mr. Belfiore, had conspired with former State Senator Nicholas Spano to criminally divert $100,000 from a State Grant, issued for the specific purpose of bolstering the efforts of the County’s Pistol Permit Unit in tracking down unregistered handguns, instead using the funds to provide an unnecessary chauffeur for the Senator’s father, former County Clerk Leonard Spano.
Additionally, The Guardian has on numerous occasions revealed the close relationship between Larry Schwartz and Guilio Cavallo, former Chairman of the Westchester Independence Party, currently under investigation for election fraud, and conspiracy. Mr. Cavallo who, in fact, sits on a citizen’s advisory board of the County Department of Public Safety, is known to have offered his services and influence, for payment by individuals seeking pistol permits.
We Ask The Westchester DA’s Office: How Many More Are You Concealing?
In Our Opinion...
The Westchester Guardian, having reviewed much of the 376 pages of Brady material, information tending to establish his innocence, unlawfully hidden from Anthony DiSimone for thirteen years, in the massive effort to perpetuate Jeanine Pirro’s confabulated lie, must now ask, when will the DA’s Office make a full and truthfulaccounting to the People of Westchester? Fifty-two boxes of exhibits, and 376 pages of exculpatory testimony and statements are not things that were likely to be lost, or missing, in the offices of any law-abiding District Attorney.
We were present several months ago when Assistant DA Valerie Livingston was compelled, at the very last moment, to tell Federal District Court Judge Charles L. Brieant that there would be no need to go forward with the scheduled evidentiary hearing because the District Attorney’s Office “was withdrawing opposition to the grantingof a writ of Habeas Corpus to Anthony DiSimone,” as they had found 376 pages and 52 boxes of Brady materials that they were turning over to DiSimone’s attorneys, “in the interest of justice.” Of course, having made that admission, the DA’s Office was opposed to an unconditional grant, petitioning the Court, instead, to keep DiSimone locked up, anyway. Livingston left Brieant’s Court literally in tears.
The truth is the Westchester County District Attorney’s Office had its back to the wall. Simply put, they could not allow the evidentiary hearing to go forward that would have lasted for weeks, exposing in minute detail all the evidence, including a confession that clearly pointed the finger of guilt at Nick Djonovic, an Albanian youth, whohad stabbed Louis Balancio to death at the Strike Zone Bar in 1994, and who Pirro had allowed to escape to Albania as she pursued the prosecution of someone more in keeping with her self-promotional agenda.
Pirro saw the tragic death of young Louis Balancio, reportedly a member of the Hell’s Kitchen Gang, as an opportunity to prove that, despite her husband Al’s known connections to the Mob, the Cosa Nostra, she could prosecute Organized Crime.
Pirro saw the tragic death of young Louis Balancio, reportedly a member of the Hell’s Kitchen Gang, as an opportunity to prove that, despite her husband Al’s known connections to the Mob, the Cosa Nostra, she could prosecute Organized Crime.
In light of all of the above, and further, in light of the fact that on February 27th, in New York City, at the United States Court of Appeals for the Second Circuit, ADA Livingston handed Mr. DiSimone’s attorneys a one-paragraph letter informing them that “additional material from 1997, which may, or may not, constitute Brady material,” had been found, We believe it is long past the time that District Attorney’s Office must come forward and level with the People of Westchester.
If the District Attorney’s Office was really intending to act “in the interest of justice,” upon Mrs. Pirro’s exit an inventory of all the outstanding cases on appeal, particularly homicides and other major crimes, should have been taken. And, all of the evidence, including all of the Brady material that had been intentionally withheld from those Defendants in each case, should have been turned over, thus separating the Office from the treachery and lies that had been employed by Jeanine Pirro.
Perhaps the Office did, in fact, review all of the major appeals, as they should have. In that case they were perfectly well aware that they were concealing a mountain of evidence that would have cast more than “reasonable doubt” upon the guilt of Anthony DiSimone, but chose nevertheless not to do the right thing! Any way one looks at it, the Office’s continuing pursuit and harassment of Mr. DiSimone perpetuates the unlawful conspiracy of Jeanine Pirro, Clement Patti, Steven Bender, and the entire supporting cast, whose prosecutorial misconduct sent an innocent man to prison.
We now ask two very important questions:
• How many more innocent individuals, sent away to prison by the prosecutorial misconduct of Jeanine Pirro, are you covering up? And,
• When will you stop protecting Mrs. Pirro and start protecting the People of Westchester?
Thursday, March 15, 2007
Never Again -
by Jeffrey Deskovic
Reforms pertaining to DNA Prosecutors should not be allowed to explain away DNA evidence by claiming that a victim had a consensual
sexual encounter, without first proving that such an encounter took place. In my case, the District Attorney made the argument to the jury, in an attempt to explain away the DNA, that the semen found in the victim came from a consensual encounter without bothering to prove this by conducting a DNA test on the person that they claimed had sex with her, nor did they identify him.
Prosecutors should not be allowed to explain away post conviction DNA Test Results which prove innocence by changing prosecution theories For example, in the Vincent Jenkins case, a victim who had been raped testified that one person raped her. When a DNA Test showed that the semen found did not match him, the prosecution then fought against Jenkins’ exoneration by suddenly claiming that she
had been raped by more than one person. This contradicted what the victim testified to, and the theory which the prosecution had argued at trial.
The current law states that post conviction DNA Tests should be allowed wherever it can be determined that such testing could have made
a difference in the verdict. The law should be that in each and every case where there is DNA-testable material it should be allowed
Simply put, DNA test results are always, and in every case, relevant because they go right to the matter of whether a defendant is the source of the testable material. DNA proves innocence, and it proves guilt. Defendants are cleared because of DNA, often with the prosecution
agreeing, and defendants are prosecuted and convicted based on DNA.
Therefore a DNA test is always relevant, and can get to the truth in every case where there is a sample to test. There should not be a door open for a district attorney to argue, or for a judge to rule, that a DNA test would not have made a difference, because such a ruling would
be absurd. Yet, one day an innocent defendant could be denied an opportunity to prove his or her innocence that way by a court ruling not allowing testing to go forward. History shows that courts everywhere do not necessarily always do what is right or fair. Why leave the door
open for an injustice to take place this way? Let’s close that door that permits a wrongful conviction to be preserved.
Reforms pertaining to Public Defenders
The Quality of Public Defenders Must Be Raised, Maintained, and Monitored. Those Lawyers Who Are Not Competent Must Be Removed As a society, we have decided that we want the quality of our public school teachers to be high, because of the ramifications of what would happen if they were not. Following a similar line of reasoning, we need to address public defenders, the same way because their work is as important as that of teachers, and the stakes are much higher in criminal cases.
There needs to be a limit on the amount of cases that Public Defenders are given at one time At present, public defenders are given too many cases to work on at the same time, whereas an assistant district attorney is not given anywhere near that amount of cases, and therefore
are able to focus more, and have more time to prepare. How much time does a public defender really have to spend on each case?
The Budgetary and Human Resource
Disparity that Exists Between Public Defenders and Prosecutors Needs To Be Eliminated. Both sides must be allotted adequate financial and personnel resources. At present, district attorneys have big budgets and a big staff to fully investigate, explore, and develop a case. They can get experts to perform various tests. Whereas public defenders have small budgets and small staffs. In order to get an expert witness they must first request it from the court, which o en denies their requests. It is only discretionary on the part of the courts. A district attorney need not rely on obtaining a discretionary ruling to get funds for an expert. On such an uneven playing field, how can any confidence be
placed in the outcome?
Mandatory Representation Should Be Provided To The Poor on 440 Motions To Set Aside A Verdict
Currently the poor are not accorded mandatory representation on post-conviction motions to set aside the verdict, which in legalese are called 440 motions. Those with money, who can afford it, are able to have paid lawyers represent them in such motions, put together arguments, have investigators reinvestigate to look for new evidence etc. in an effort to try to establish innocence. The poor, on the other hand, being unable to afford such legal services on their own or through family members or friends, are not provided them by the state. This essentially leaves the wrongfully convicted with no means to investigate and no lawyer to file the legal papers. Even when there are legal issues present to argue which do not require any investigation, not having a lawyer will result in a defendant who, not having been to law school, or having any paralegal training, and not a lot of formal education in general, will be going up against a trained and seasoned district attorney.
It is only with competent representation at every stage that reliability can begin to be ascribed to the criminal justice system.
Reforms pertaining to Review of Cases All Criminal Cases Which Are On Appeal Should Be Automatically Reviewed
By The Court Of Appeals.
The way the system is currently set up, criminal defendants only have a right to have their case reviewed by one State Court, the Appellate Division. In order to have his or her case reviewed by the Court Of Appeals, a prisoner must first obtain permission from that court. Often requests are turned down. In my case, I was denied permission even though I was arguing my innocence based on the DNA and Hair, and the horrendous conditions under which the “confession” was obtained.
The court said, “There was no merit in law to review the case.” In criminal cases, lives are on the line. Existing in prison can in no way be considered living. In such an important matter, there needs to be every possible layer of review to maximize chances that miscarriages of justice will be caught. My case was no isolated matter. - ere have been over 195 exonerations nationwide by The Innocence Project alone, and 5 in New York State in the last 10 months. That is not counting other non-DNA exonerations by other programs which strive to clear the wrongfully convicted.
It is no coincidence that many of the exonerated have served doubledigit years of wrongful imprisonment. What often happens is that they have go through the entire appeals process prior to being cleared. Along the way, many of the exonerees are denied permission to have their cases reviewed by the Court Of Appeals.
What is apparent is that more review is needed. Automatically having criminal cases reviewed by the Court is a way to do that without creating another court. To any cost-based opposition to this reform that may be voiced, my response is: Can you place any price on freedom? What is the alternative, to allow other innocent people to remain in prison for lack of being able to get their cases reviewed? Many people do not understand that procedurally, the wrongfully convicted only have two levels of review as a matter of right in both state and federal courts. Here is a explanation of the process, in the order in which cases travel, including what happened to me at each stage, for the purpose of illustrating the need for further review:
A) The Appellate Division. The first appeal. is is a state court. Appeals to this Court are as a matter of right. Rearguement motions can be made to this Court after losing a decision, but this is up to the Court to decide whether to grant the motion and reconsider the case or not. In my case they ruled 5-0 against me, claiming that evidence against me was “overwhelming” even though there was no evidence other than the coerced, false confession, with the DNA and hairs not matching. Then I filed a reaguement motion asking them to reconsider their decision,
arguing that it was at odds with the facts and the law. e court decided not to grant the motion.
B) The Court Of Appeals: New York’s highest court, and the last court for a state prisoner to take his or her case to at the state level. In order for a case to reviewed by this Court, a prisoner must first obtain permission from them. In my case, the Court declined.
C) Habeas Corpus: is is a federal issue, pursued in Federal District Court in which state prisoners argue that their convictions are in violation of the Constitution. Review by this court is as a matter of right. In my case because the court clerk gave my lawyer incorrect information regarding the due date for my petition, it was - led 4 days too late. At the District Attorney’s urging the court time-barred me.
D) The United States Court Of Appeals: this is the federal version of the Appellate Division. Permission must be obtained from this Court to before being allowed to appeal to it. In my case, I was granted permission to argue that the ruling to time bar me was wrong. When they decided my case, the court ruled that the Habeas court was correct to time bar me even though I had argued that to so rule would result in a
miscarriage of justice, and had requested more sophisticated DNA testing, of the type that would go on to clear me. A re-argument motion was filed in that court, asking it to reconsider its decision because of the miscarriage of justice that would result, but the court declined
to grant that motion.
E) The United States Supreme Court: this is the highest court in the land, therefore there is no other court to go to upon being turned down here. Permission must be obtained from this court before being allowed to appeal to them. is court historically accepts about 5% of all cases nationwide. In my case I was not able to overcome the odds. They declined to grant me permission to appeal to them.
What happened to me was that despite being seemingly involved in 7 court proceedings, in effect my case was reviewed on the merits by one
court. What is apparent from my judicial history and this layout is that more mandatory review is needed. Can anyone, considering what happened to me and the many others who went on to be cleared long after their appeals had run out, conclude any differently?
A Review Apparatus, Independent of the Appeals Process and The Executive Branch, Needs To Be Established To Look At Cases Wherein ere Is a Factual Dispute of Guilt or Innocence.
My case, along with so many others in New York, involving people who have been wrongfully convicted and yet whose appeals all failed them, demonstrates a need for an additional review mechanism wholly apart from the court system. As our cases show, the courts all failed to give us justice. The power of the pardon by the Governor is in no way a sufficient remedy since pardoning on the grounds of innocence is normally done only under the most extraordinary circumstances, and politically is a very risky act, especially for those who plan to run again.
We need a review mechanism made up of wrongful conviction experts. A listing of particular recent failures to correct injustice: and the years served, all in N.Y.: Scott Fapiano: served 21 years wrongfully; Alan Newton: served 21 years wrongfully; Doug Warney: served 10 Years wrongfully; Vincent Jenkins: served 17 years, wrongfully; John Kogut: served 17 years wrongfully; John Restivo: served 17 years wrongfully; Dennis Halstead: served 17 years wrongfully; Jeffrey Deskovic: served 16 years wrongfully.
Reforms pertaining to Evidence Withholding of Exculpatory Evidence Should Be A Crime
The withholding of information favorable to the defense is nothing new and is a major cause of wrongful conviction. Sami Leka served 13 years for a murder he was innocent of. An off-duty police officer observed the shooting from his apartment and saw that it was not Leka,
but this information was not turned over to the defense. More recently, on Feb. 7, 2006, Anthony DiSimone’s conviction was overturned by Federal District Judge Charles L. Brieant after DiSimone had served 7 years. Prosecutors had withheld 376 pages and 52 boxes of evidence.
Judge Brieant categorized the withheld evidence as having “raised very serious issues of actual innocence, clearly arising to the level of reasonable doubt.” Police and prosecutors sometimes withhold evidence which results in innocent people being wrongfully convicted and therefore serving prison time, often long sentences. There are laws against this, but there are no teeth in them, and there are no penalties
which personally affect those who commit such acts; they get away unpunished.
It should be a crime whenever police or prosecutors withhold evidence, punishable with heavy fines and prison time. This would give pause
to those who would sacrifice truth and fairness and make patsies of innocent men and women in order to simply solve a case and get a conviction.
There Needs To Be A Better Evidence Preservation System In New York; Failure to Preserve Evidence either Pre-Trial or Post Trial Should Be Automatic Grounds For Dismissal Of The Indictment.
The failure to preserve evidence is quite serious because it prevents innocent defendants from being able to use that evidence to establish their innocence, or at the very least argue it. In cases where evidence was sought after conviction in order to perform DNA testing, and the evidence has not been preserved, the accused remains in prison. Alan Newton served 21 years in the N.Y. Prison System for a rape which
DNA proved that he did not commit. Twelve of those 21 years were spent while police claimed that they could not locate the evidence which when tested would clear him. When it was located, it was right where the defense had been saying it was. If that evidence had
never been located, Alan would have remained in prison, because under the current law when evidence is lost and therefore can’t be tested for DNA, the wrongfully convicted remain in prison, thereby penalizing the innocent for the failure of law enforcement to do their job of evidence preservation.
The law should be changed so that in such cases the defendant is given the same results he or she could have obtained if the evidence had been preserved and a negative DNA test result obtained.
Six weeks ago The Guardian called for the ring of Peekskill Police Chief Eugene Tumolo by Mayor John Testa. We promised that we would not relent until the Mayor did the right thing by the People of Peekskill. Once again, we call upon Mayor Testa to place the interests and the well-being of all Peekskill residents above his personal and political concerns. Mr. Tumolo’s conduct with regard to Jeffrey Deskovic demands his ring. And, if the Mayor fails to perform his sworn duty to the People, the People will take matters into their own hands come Election Day.
-Editor
by Jeffrey Deskovic
Reforms pertaining to DNA Prosecutors should not be allowed to explain away DNA evidence by claiming that a victim had a consensual
sexual encounter, without first proving that such an encounter took place. In my case, the District Attorney made the argument to the jury, in an attempt to explain away the DNA, that the semen found in the victim came from a consensual encounter without bothering to prove this by conducting a DNA test on the person that they claimed had sex with her, nor did they identify him.
Prosecutors should not be allowed to explain away post conviction DNA Test Results which prove innocence by changing prosecution theories For example, in the Vincent Jenkins case, a victim who had been raped testified that one person raped her. When a DNA Test showed that the semen found did not match him, the prosecution then fought against Jenkins’ exoneration by suddenly claiming that she
had been raped by more than one person. This contradicted what the victim testified to, and the theory which the prosecution had argued at trial.
The current law states that post conviction DNA Tests should be allowed wherever it can be determined that such testing could have made
a difference in the verdict. The law should be that in each and every case where there is DNA-testable material it should be allowed
Simply put, DNA test results are always, and in every case, relevant because they go right to the matter of whether a defendant is the source of the testable material. DNA proves innocence, and it proves guilt. Defendants are cleared because of DNA, often with the prosecution
agreeing, and defendants are prosecuted and convicted based on DNA.
Therefore a DNA test is always relevant, and can get to the truth in every case where there is a sample to test. There should not be a door open for a district attorney to argue, or for a judge to rule, that a DNA test would not have made a difference, because such a ruling would
be absurd. Yet, one day an innocent defendant could be denied an opportunity to prove his or her innocence that way by a court ruling not allowing testing to go forward. History shows that courts everywhere do not necessarily always do what is right or fair. Why leave the door
open for an injustice to take place this way? Let’s close that door that permits a wrongful conviction to be preserved.
Reforms pertaining to Public Defenders
The Quality of Public Defenders Must Be Raised, Maintained, and Monitored. Those Lawyers Who Are Not Competent Must Be Removed As a society, we have decided that we want the quality of our public school teachers to be high, because of the ramifications of what would happen if they were not. Following a similar line of reasoning, we need to address public defenders, the same way because their work is as important as that of teachers, and the stakes are much higher in criminal cases.
There needs to be a limit on the amount of cases that Public Defenders are given at one time At present, public defenders are given too many cases to work on at the same time, whereas an assistant district attorney is not given anywhere near that amount of cases, and therefore
are able to focus more, and have more time to prepare. How much time does a public defender really have to spend on each case?
The Budgetary and Human Resource
Disparity that Exists Between Public Defenders and Prosecutors Needs To Be Eliminated. Both sides must be allotted adequate financial and personnel resources. At present, district attorneys have big budgets and a big staff to fully investigate, explore, and develop a case. They can get experts to perform various tests. Whereas public defenders have small budgets and small staffs. In order to get an expert witness they must first request it from the court, which o en denies their requests. It is only discretionary on the part of the courts. A district attorney need not rely on obtaining a discretionary ruling to get funds for an expert. On such an uneven playing field, how can any confidence be
placed in the outcome?
Mandatory Representation Should Be Provided To The Poor on 440 Motions To Set Aside A Verdict
Currently the poor are not accorded mandatory representation on post-conviction motions to set aside the verdict, which in legalese are called 440 motions. Those with money, who can afford it, are able to have paid lawyers represent them in such motions, put together arguments, have investigators reinvestigate to look for new evidence etc. in an effort to try to establish innocence. The poor, on the other hand, being unable to afford such legal services on their own or through family members or friends, are not provided them by the state. This essentially leaves the wrongfully convicted with no means to investigate and no lawyer to file the legal papers. Even when there are legal issues present to argue which do not require any investigation, not having a lawyer will result in a defendant who, not having been to law school, or having any paralegal training, and not a lot of formal education in general, will be going up against a trained and seasoned district attorney.
It is only with competent representation at every stage that reliability can begin to be ascribed to the criminal justice system.
Reforms pertaining to Review of Cases All Criminal Cases Which Are On Appeal Should Be Automatically Reviewed
By The Court Of Appeals.
The way the system is currently set up, criminal defendants only have a right to have their case reviewed by one State Court, the Appellate Division. In order to have his or her case reviewed by the Court Of Appeals, a prisoner must first obtain permission from that court. Often requests are turned down. In my case, I was denied permission even though I was arguing my innocence based on the DNA and Hair, and the horrendous conditions under which the “confession” was obtained.
The court said, “There was no merit in law to review the case.” In criminal cases, lives are on the line. Existing in prison can in no way be considered living. In such an important matter, there needs to be every possible layer of review to maximize chances that miscarriages of justice will be caught. My case was no isolated matter. - ere have been over 195 exonerations nationwide by The Innocence Project alone, and 5 in New York State in the last 10 months. That is not counting other non-DNA exonerations by other programs which strive to clear the wrongfully convicted.
It is no coincidence that many of the exonerated have served doubledigit years of wrongful imprisonment. What often happens is that they have go through the entire appeals process prior to being cleared. Along the way, many of the exonerees are denied permission to have their cases reviewed by the Court Of Appeals.
What is apparent is that more review is needed. Automatically having criminal cases reviewed by the Court is a way to do that without creating another court. To any cost-based opposition to this reform that may be voiced, my response is: Can you place any price on freedom? What is the alternative, to allow other innocent people to remain in prison for lack of being able to get their cases reviewed? Many people do not understand that procedurally, the wrongfully convicted only have two levels of review as a matter of right in both state and federal courts. Here is a explanation of the process, in the order in which cases travel, including what happened to me at each stage, for the purpose of illustrating the need for further review:
A) The Appellate Division. The first appeal. is is a state court. Appeals to this Court are as a matter of right. Rearguement motions can be made to this Court after losing a decision, but this is up to the Court to decide whether to grant the motion and reconsider the case or not. In my case they ruled 5-0 against me, claiming that evidence against me was “overwhelming” even though there was no evidence other than the coerced, false confession, with the DNA and hairs not matching. Then I filed a reaguement motion asking them to reconsider their decision,
arguing that it was at odds with the facts and the law. e court decided not to grant the motion.
B) The Court Of Appeals: New York’s highest court, and the last court for a state prisoner to take his or her case to at the state level. In order for a case to reviewed by this Court, a prisoner must first obtain permission from them. In my case, the Court declined.
C) Habeas Corpus: is is a federal issue, pursued in Federal District Court in which state prisoners argue that their convictions are in violation of the Constitution. Review by this court is as a matter of right. In my case because the court clerk gave my lawyer incorrect information regarding the due date for my petition, it was - led 4 days too late. At the District Attorney’s urging the court time-barred me.
D) The United States Court Of Appeals: this is the federal version of the Appellate Division. Permission must be obtained from this Court to before being allowed to appeal to it. In my case, I was granted permission to argue that the ruling to time bar me was wrong. When they decided my case, the court ruled that the Habeas court was correct to time bar me even though I had argued that to so rule would result in a
miscarriage of justice, and had requested more sophisticated DNA testing, of the type that would go on to clear me. A re-argument motion was filed in that court, asking it to reconsider its decision because of the miscarriage of justice that would result, but the court declined
to grant that motion.
E) The United States Supreme Court: this is the highest court in the land, therefore there is no other court to go to upon being turned down here. Permission must be obtained from this court before being allowed to appeal to them. is court historically accepts about 5% of all cases nationwide. In my case I was not able to overcome the odds. They declined to grant me permission to appeal to them.
What happened to me was that despite being seemingly involved in 7 court proceedings, in effect my case was reviewed on the merits by one
court. What is apparent from my judicial history and this layout is that more mandatory review is needed. Can anyone, considering what happened to me and the many others who went on to be cleared long after their appeals had run out, conclude any differently?
A Review Apparatus, Independent of the Appeals Process and The Executive Branch, Needs To Be Established To Look At Cases Wherein ere Is a Factual Dispute of Guilt or Innocence.
My case, along with so many others in New York, involving people who have been wrongfully convicted and yet whose appeals all failed them, demonstrates a need for an additional review mechanism wholly apart from the court system. As our cases show, the courts all failed to give us justice. The power of the pardon by the Governor is in no way a sufficient remedy since pardoning on the grounds of innocence is normally done only under the most extraordinary circumstances, and politically is a very risky act, especially for those who plan to run again.
We need a review mechanism made up of wrongful conviction experts. A listing of particular recent failures to correct injustice: and the years served, all in N.Y.: Scott Fapiano: served 21 years wrongfully; Alan Newton: served 21 years wrongfully; Doug Warney: served 10 Years wrongfully; Vincent Jenkins: served 17 years, wrongfully; John Kogut: served 17 years wrongfully; John Restivo: served 17 years wrongfully; Dennis Halstead: served 17 years wrongfully; Jeffrey Deskovic: served 16 years wrongfully.
Reforms pertaining to Evidence Withholding of Exculpatory Evidence Should Be A Crime
The withholding of information favorable to the defense is nothing new and is a major cause of wrongful conviction. Sami Leka served 13 years for a murder he was innocent of. An off-duty police officer observed the shooting from his apartment and saw that it was not Leka,
but this information was not turned over to the defense. More recently, on Feb. 7, 2006, Anthony DiSimone’s conviction was overturned by Federal District Judge Charles L. Brieant after DiSimone had served 7 years. Prosecutors had withheld 376 pages and 52 boxes of evidence.
Judge Brieant categorized the withheld evidence as having “raised very serious issues of actual innocence, clearly arising to the level of reasonable doubt.” Police and prosecutors sometimes withhold evidence which results in innocent people being wrongfully convicted and therefore serving prison time, often long sentences. There are laws against this, but there are no teeth in them, and there are no penalties
which personally affect those who commit such acts; they get away unpunished.
It should be a crime whenever police or prosecutors withhold evidence, punishable with heavy fines and prison time. This would give pause
to those who would sacrifice truth and fairness and make patsies of innocent men and women in order to simply solve a case and get a conviction.
There Needs To Be A Better Evidence Preservation System In New York; Failure to Preserve Evidence either Pre-Trial or Post Trial Should Be Automatic Grounds For Dismissal Of The Indictment.
The failure to preserve evidence is quite serious because it prevents innocent defendants from being able to use that evidence to establish their innocence, or at the very least argue it. In cases where evidence was sought after conviction in order to perform DNA testing, and the evidence has not been preserved, the accused remains in prison. Alan Newton served 21 years in the N.Y. Prison System for a rape which
DNA proved that he did not commit. Twelve of those 21 years were spent while police claimed that they could not locate the evidence which when tested would clear him. When it was located, it was right where the defense had been saying it was. If that evidence had
never been located, Alan would have remained in prison, because under the current law when evidence is lost and therefore can’t be tested for DNA, the wrongfully convicted remain in prison, thereby penalizing the innocent for the failure of law enforcement to do their job of evidence preservation.
The law should be changed so that in such cases the defendant is given the same results he or she could have obtained if the evidence had been preserved and a negative DNA test result obtained.
Six weeks ago The Guardian called for the ring of Peekskill Police Chief Eugene Tumolo by Mayor John Testa. We promised that we would not relent until the Mayor did the right thing by the People of Peekskill. Once again, we call upon Mayor Testa to place the interests and the well-being of all Peekskill residents above his personal and political concerns. Mr. Tumolo’s conduct with regard to Jeffrey Deskovic demands his ring. And, if the Mayor fails to perform his sworn duty to the People, the People will take matters into their own hands come Election Day.
-Editor
Our Readers Respond...
Do Not Re-License Indian Point
Dear Editor:
Many residents of Westchester County are aware of the many problems that have plagued Indian Point in recent years. Indian Point has been leaking radioactive water from many sources, which have created several lakes, or plumes, of contaminated groundwater under the plant. The notification system of Indian Point has had problems. The evacuation plans are inadequate. Recently, a worker discovered cracked nuclear fuel rods. Those are just a few of the known problems.
The Nuclear Regulatory Commission can impose fines of up to $110,000 per violation on Indian Point for leaks or other problems. For a number of years the NRC has waived the fines everytime Entergy has not complied with regulations. The NRC stopped fining nuclear power plants in the late 1990s. The time has come for the Congress to direct the NRC to issue the fines after violations occur. If Entergy is punished financially every time there is a problem maybe they will have an incentive to work harder to make Indian Point safer.
Eight percent of the United States population resides within 50 miles of Indian Point. I believe that the NRC should not re-license Indian Point and hope that our lawmakers will work to ensure a safe and orderly decommissioning of the nuclear power facility. The risks are too great.
Paul Feiner
Greenburgh Town Supervisor
Westchester Residents Also Entitled to Playland Jobs
Dear Editor:
I am writting to question why the Rye Playland jobs are only being offered in the Bronx offices. Here in Westchester County there is a high unemployment rate and over 65,000 people on Welfare, shouldn’t these jobs go to them? Seems to me the state and the county are conspiring to ensure work is NOT available to Westchester County residents. With the serious influx of illegal aliens and the state recruiting from the boroughs Westchester residents don’t have a chance at employment only WELFARE AND WORKFARE, which are modern
forms of slavery. I would like to know who made such a decision, their name and contact information.
Thank you.
Tracy King
Mount Vernon
Writer Responds to a Reader’s Response
Dear Editor:
George Imburgia (letter, March 1) is entitled to know that I have participated in anti-war demonstrations (specifically against the current war in Iraq), have written to publications to advocate civil rights (for everyone, including minorities and people our soldiers capture in war) and have written to publications to express opposition to abortion. In addition, I have given money to Feminists for Life, a consistent life organization that opposes not only abortion but also the death penalty, that advocates gender equality, and whose publications do not
alienate non-religious people.
My pacifism, belief in equality of all people, concern about the current erosion of civil liberties, and belief in protecting the lives of the pre-born are logical extensions of each other.
Jeanette Wolfberg
Mount Kisco
In Our Opinion....
“It Ain’t What Cha Say, It’s The Way How Cha Say It”
A few weeks ago the County Legislature was all stressed out, and passing legislation “banning the use of the word NIGGER.” Last week three high school girls, eleventh graders at the John Jay High School in the Katonah-Lewisboro School District were about to be punished for using the word VAGINA. What’s next? Will it be, “Move over, make room for the Thought Police?”
What gives our County Legislators, and school administrators the idea that the utterance of a particular word, any word, can be effectively handcuffed, or that such prohibition and restriction is desirable, or even productive, given the information-communication profusion we are surrounded by every day?
As regards the word NIGGER, said in the context of anger, racial or ethnic hostility, or mindless demeaning cruelty, it is a tool of hatred and division, no different than WOP, MICK, or KIKE, and a host of other antagonizing expressions seldom heard in a serious tone except in highly emotionally-charged situations. No resolution passed by any legislature will ever prevent what will come from the mouths of combatants in a socially tense encounter. But what about the youths, mostly, but not always, Black, who greet each other publicly with an embrace, or a meeting of hands, and a Hi Nigger?
Again, it’s all about context. For such individuals the so-called N-word has lost its potency, its power. The word has been de-clawed, if only in their limited, mutual company. We are not sure that is necessarily a bad thing. Only time will tell. We are more inclined to believe that attempting to legislate, and to censor speech is, however, offensive, and ultimately counter-productive in a free society. It is not the word, after all, that we ought to be seeking to eliminate, but rather the hateful, divisive motive that evokes its use. Experience dictates that what is made forbidden more often becomes the more attractive, particularly to youth.
The uproar and attention brought to their school district by three young women, aged 16, students at John Jay High School in Cross River, last week is another matter altogether. Irrespective of what their individual motives might have been, and yes, even withstanding whatever oral agreement they might have had with their principal Richard Leprine, We believe what occurred was a very positive outcome. Underlying the controversy, the lines that were quickly drawn, remains the inescapable issue of Free Speech, the right of individuals, citizens, and noncitizens alike, in these United States to freely express themselves in public, without prior constraint, or censorship.
The fact that the school administration felt the need to keep the girls from using the word VAGINA in front of, what they believed would be a mixed audience, possibly including young children, goes right to the heart of the matter. What, were they concerned about? What possible harm could have come from, say, a five-year-old asking his mother, or father, “What’s a vagina?’ As one parent observed, “This is 2007, not 1957.”
Persons in authority, particularly those dealing with youth, would do well not to instill notions of guilt, obscenity, or mystery to words such as VAGINA, PENIS, ANUS, etc.. And, while it is a wonderful and exciting period in our lives, adolescence is a difficult, and confusing-enough experience for most young people to navigate, without having to cope with unnecessary hypocracy.
Do Not Re-License Indian Point
Dear Editor:
Many residents of Westchester County are aware of the many problems that have plagued Indian Point in recent years. Indian Point has been leaking radioactive water from many sources, which have created several lakes, or plumes, of contaminated groundwater under the plant. The notification system of Indian Point has had problems. The evacuation plans are inadequate. Recently, a worker discovered cracked nuclear fuel rods. Those are just a few of the known problems.
The Nuclear Regulatory Commission can impose fines of up to $110,000 per violation on Indian Point for leaks or other problems. For a number of years the NRC has waived the fines everytime Entergy has not complied with regulations. The NRC stopped fining nuclear power plants in the late 1990s. The time has come for the Congress to direct the NRC to issue the fines after violations occur. If Entergy is punished financially every time there is a problem maybe they will have an incentive to work harder to make Indian Point safer.
Eight percent of the United States population resides within 50 miles of Indian Point. I believe that the NRC should not re-license Indian Point and hope that our lawmakers will work to ensure a safe and orderly decommissioning of the nuclear power facility. The risks are too great.
Paul Feiner
Greenburgh Town Supervisor
Westchester Residents Also Entitled to Playland Jobs
Dear Editor:
I am writting to question why the Rye Playland jobs are only being offered in the Bronx offices. Here in Westchester County there is a high unemployment rate and over 65,000 people on Welfare, shouldn’t these jobs go to them? Seems to me the state and the county are conspiring to ensure work is NOT available to Westchester County residents. With the serious influx of illegal aliens and the state recruiting from the boroughs Westchester residents don’t have a chance at employment only WELFARE AND WORKFARE, which are modern
forms of slavery. I would like to know who made such a decision, their name and contact information.
Thank you.
Tracy King
Mount Vernon
Writer Responds to a Reader’s Response
Dear Editor:
George Imburgia (letter, March 1) is entitled to know that I have participated in anti-war demonstrations (specifically against the current war in Iraq), have written to publications to advocate civil rights (for everyone, including minorities and people our soldiers capture in war) and have written to publications to express opposition to abortion. In addition, I have given money to Feminists for Life, a consistent life organization that opposes not only abortion but also the death penalty, that advocates gender equality, and whose publications do not
alienate non-religious people.
My pacifism, belief in equality of all people, concern about the current erosion of civil liberties, and belief in protecting the lives of the pre-born are logical extensions of each other.
Jeanette Wolfberg
Mount Kisco
In Our Opinion....
“It Ain’t What Cha Say, It’s The Way How Cha Say It”
A few weeks ago the County Legislature was all stressed out, and passing legislation “banning the use of the word NIGGER.” Last week three high school girls, eleventh graders at the John Jay High School in the Katonah-Lewisboro School District were about to be punished for using the word VAGINA. What’s next? Will it be, “Move over, make room for the Thought Police?”
What gives our County Legislators, and school administrators the idea that the utterance of a particular word, any word, can be effectively handcuffed, or that such prohibition and restriction is desirable, or even productive, given the information-communication profusion we are surrounded by every day?
As regards the word NIGGER, said in the context of anger, racial or ethnic hostility, or mindless demeaning cruelty, it is a tool of hatred and division, no different than WOP, MICK, or KIKE, and a host of other antagonizing expressions seldom heard in a serious tone except in highly emotionally-charged situations. No resolution passed by any legislature will ever prevent what will come from the mouths of combatants in a socially tense encounter. But what about the youths, mostly, but not always, Black, who greet each other publicly with an embrace, or a meeting of hands, and a Hi Nigger?
Again, it’s all about context. For such individuals the so-called N-word has lost its potency, its power. The word has been de-clawed, if only in their limited, mutual company. We are not sure that is necessarily a bad thing. Only time will tell. We are more inclined to believe that attempting to legislate, and to censor speech is, however, offensive, and ultimately counter-productive in a free society. It is not the word, after all, that we ought to be seeking to eliminate, but rather the hateful, divisive motive that evokes its use. Experience dictates that what is made forbidden more often becomes the more attractive, particularly to youth.
The uproar and attention brought to their school district by three young women, aged 16, students at John Jay High School in Cross River, last week is another matter altogether. Irrespective of what their individual motives might have been, and yes, even withstanding whatever oral agreement they might have had with their principal Richard Leprine, We believe what occurred was a very positive outcome. Underlying the controversy, the lines that were quickly drawn, remains the inescapable issue of Free Speech, the right of individuals, citizens, and noncitizens alike, in these United States to freely express themselves in public, without prior constraint, or censorship.
The fact that the school administration felt the need to keep the girls from using the word VAGINA in front of, what they believed would be a mixed audience, possibly including young children, goes right to the heart of the matter. What, were they concerned about? What possible harm could have come from, say, a five-year-old asking his mother, or father, “What’s a vagina?’ As one parent observed, “This is 2007, not 1957.”
Persons in authority, particularly those dealing with youth, would do well not to instill notions of guilt, obscenity, or mystery to words such as VAGINA, PENIS, ANUS, etc.. And, while it is a wonderful and exciting period in our lives, adolescence is a difficult, and confusing-enough experience for most young people to navigate, without having to cope with unnecessary hypocracy.
“Double Jeopardy Trick” Continue
United States District Court, White Plains, New York
Judge Charles L. Brieant Presiding
Last Tuesday former County Correction Officer Paul Cote appeared in United States District Court, White Plains, with his attorneys Bennett Epstein and John Patton, before Judge Charles L. Brieant for oral arguments with respect to a motion by Defense to vacate Cote’s conviction on September 20, 2006 for Violating the Civil Rights of Zoran Teodorovic, a deceased former homeless inmate of the Westchester County Jail. Specifically, Cote was charged with denying Teodorovic his liberty without benefit of Due Process, under Title 18, United States Code, Section 242. At the time of the federal trial the jury was unaware that Defendant Cote had been tried in 2001 under the same set of facts in County Court, and convicted of Assault, serving three months in the Putnam County Jail.
The case re-emphasizes the need for Congress to take a good long look at the unconstitutional Double Jeopardy such prosecutions represent, especially when federal prosecutors sit back allowing several years to pass, all the while having access to Defense strategy and arguments, holding Defendants and their loved ones in limbo and fear, just waiting for their opportune moment to “take a second bite of the apple.”
Tuesday’s arguments raised some previously unstated issues collateral to the argument that the jury’s findings had been against the weight of evidence presented at trial. One such issue, raised by Judge Brieant, prior to Defense argument, involved the Defendant’s waiving of the Statute of Limitations in 2005, because the United States Attorney’s Office, who had previously informed his former attorney, Bill
Aaronwald, himself, a former US Attorney, that they would not be seeking to prosecute Cote, abruptly reversed themselves and decided to seek an indictment beyond the five-year statutory limit. Brieant was specifically challenging whether, in fact, federal prosecutors, Cynthia Dunne, and Andrew Schilling, who tried the case, had ever made good on their promise to Cote that they would not try him in connection with Teodorovic’s death, if he would consent to waiving the Statute of Limitations.
Brieant, whose disdain for the case has been no secret, opened the proceedings with, “When this case was first presented, it was represented that the Defendant understood that if he would consent to waiving the Statute of Limitations, he would not be charged with the death. There is nothing to indicate that the Defendant ever enjoyed a benefit,” Challenged by a response from Assistant United Sates Attorney Dunne,
Brieant retorted, “We didn’t make that up out of whole cloth.”
Defense Attorney Epstein, standing at the lectern, broke in, “I’ll talk about the Double Jeopardy issue.” Judge Brieant came right back, “There’s two Double Jeopardy issues. There’s the issue raised by Court of Appeals Judge Calabresi, and the issue of monitoring.”
Epstein opened his remarks with, “One of the most ancient principles is that a person shall not be twice put in jeopardy.” He then went on to immediately point out that at the first trial, the state trial, Correction Officer John Reimer in describing his take-down of inmate Teodorovic, indicated that the inmate’s head had bounced on the concrete floor of the cellblock, but that in the federal trial, more than five years later, he spoke of a gentle take-down.
Judge Brieant volunteered, “That might be helpful in a motion for a new trial.”
Epstein then came back with, “The state trial verdict was an acquittal of Intentional Assault, a conviction of Reckless Assault.” He went on, “Four years go by, and he, (Cote) hears there will be no prosecution. But, not so fast!” Pausing momentarily he added, “To any reasonable observer Your Honor, this is the essence of Double Jeopardy. How compelling could the Government’s interest have been that they waited four years? There was no way that Mr. Cote should have been charged with the death of Mr. Teodorovic.
What conversations were held between Mr. Neary (Assistant DA under DA Pirro’s regime, who conducted the state trial against Paul Cote)
and federal prosecutors?”
Judge Brieant responded, “I’m somewhat disappointed that your papers do not contain anything from Mr. Neary or Mr. Aaronwald.”
Attorney Epstein, attempting to explain, offered, “Mr. Neary is now a member of the bench, and would take a great deal____.” Epstein was referring to the fact that Robert Neary, one of Mrs. Pirro’s favorite co-conspirators in prosecutions that involved fundamental unfairness and/or prosecutorial misconduct, as in the Matthew McKerrick case, was now an appointed Judge in the State Court of Claims, having twice failed to get elected off of prior appointments from George Pataki.
Judge Brieant, further prompting the Defense, then asked, “You don’t wish to discuss the sufficiency of the evidence, or the reliability of the testimony of the jailbirds?” Prosecutor Dunne followed, attempting to make an argument for Defendant Cote’s “propensity toward violent outbursts.” However, Judge Brieant had the last word, reminding her, “Propensity has no force at all in a criminal trial.”
Attorney Matthew Kletter, who has been going through the meatgrinder known as divorce in the Westchester County Courts for about a year now, and who, together with others, has founded a support group for men and women similarly situated, has been writing extensively with regard to the activities of Family Court, the Matrimonial Part of Westchester Supreme Court, the Department of Social Services, police, and other agencies typically involved in the injustices and wrongful handling individuals all too frequently encounter in divorce proceedings
in Westchester County.
We share the Court Report with Mr. Kletter this week in order that he may present “Abusive Power: The Plight of Men and Women in Westchester County.” The fact is that in every Precinct in Westchester County, police departments are sitting on literally dozens of Orders of Protection restricting individual’s rights to access their homes and children. It’s become part of the modern way of life here in Westchester County, the new norm.
I have posted on-line to get feedback from other men and women in the County who are being subjected to this. I have spoken to several of them in person. The story is generally the same in each case.
• A disgruntled spouse files a bogus petition for a TOP (Temporary Order of Protection) based on bald-faced allegations (often with the assistance of women’s rights attorneys or legal aid, e.g. Legal Services of the Hudson Valley);
• A TOP issued by a Family Court judge ex-parte without the respondent being present;
• Upon receipt of the TOP, the Respondent is generally ordered to leave his/her home. Often the Respondents to such actions move temporarily into a local Suites Hotel (e.g. Marriot Residence Suites);
• The Respondent appears in Court a few days later;
• At that hearing, the TOP is sustained by a judge in the Westchester Family Court system without the accuser being asked to take the stand to testify under oath or the Respondent being given an opportunity to cross-examine the Accuser;
• If the Respondent has children, the Respondent is then ordered to participate in a “supervised visitation” (irrespective of whether the allegations against this individual have been corroborated or whether the alleged conduct involved the children in any way whatsoever);
• A legal guardian is appointed for the children. The legal guardian rarely, if at all, speaks to the Respondent;
• Those Respondents who are affluent who want to see their children at home or a place of their choosing are required to pay $200-$400 per visit to see their children;
• Those Respondents who are middle class or lower class often see their children for a lesser fee at the local YWCA;
• The Respondent’s family is then sent to a forensic psychiatrist often at the Respondent’s expense, by court order;
• The Respondent often will not see the report until the date of the “hearing”. In most cases the Respondent will not see the report at all;
• In the meantime if the Respondent has been “indicated” by CPS (Child Protective Services), you can assume it will be months and months before the State conducts an administrative hearing of your matter (often a year). Of course that assumes that the Respondent’s representatives are smart and diligent enough to follow-up on this key aspect of the proceedings. I met one person recently that did not know until he met me that he had been “indicated” (even though he was “indicated” nine years ago);
• In the process, the typical Respondent finds himself/herself having forced out of their home and having to spend $50,000-$100,000 defending themselves in this process (irrespective of whether that person ever did anything wrong); and
• Along the way, social workers, the local YWCA, psychologists, psychiatrists, mental health clinics, high-paid lawyers, 18-B lawyers and legal aid lawyers, make their fees off the victims (and taxpayers) of this state and county-sponsored abuse of power. The facts are quite obvious. In Westchester County TOPs are being utilitized by rogue spouses to force innocent spouses out of their homes when one party has refused to voluntarily move out. In these same instances, the rogue spouse utilizes the judicial system to distance the couple’s children from the innocent spouse (even if the innocent spouse has done nothing to harm the couple’s children). The rogue spouse essentially turns the children into pawns and makes a land grab for them (under the pretense that the other spouse is deemed guilty due to the fact that he/
she is under a TOP).
United States District Court, White Plains, New York
Judge Charles L. Brieant Presiding
Last Tuesday former County Correction Officer Paul Cote appeared in United States District Court, White Plains, with his attorneys Bennett Epstein and John Patton, before Judge Charles L. Brieant for oral arguments with respect to a motion by Defense to vacate Cote’s conviction on September 20, 2006 for Violating the Civil Rights of Zoran Teodorovic, a deceased former homeless inmate of the Westchester County Jail. Specifically, Cote was charged with denying Teodorovic his liberty without benefit of Due Process, under Title 18, United States Code, Section 242. At the time of the federal trial the jury was unaware that Defendant Cote had been tried in 2001 under the same set of facts in County Court, and convicted of Assault, serving three months in the Putnam County Jail.
The case re-emphasizes the need for Congress to take a good long look at the unconstitutional Double Jeopardy such prosecutions represent, especially when federal prosecutors sit back allowing several years to pass, all the while having access to Defense strategy and arguments, holding Defendants and their loved ones in limbo and fear, just waiting for their opportune moment to “take a second bite of the apple.”
Tuesday’s arguments raised some previously unstated issues collateral to the argument that the jury’s findings had been against the weight of evidence presented at trial. One such issue, raised by Judge Brieant, prior to Defense argument, involved the Defendant’s waiving of the Statute of Limitations in 2005, because the United States Attorney’s Office, who had previously informed his former attorney, Bill
Aaronwald, himself, a former US Attorney, that they would not be seeking to prosecute Cote, abruptly reversed themselves and decided to seek an indictment beyond the five-year statutory limit. Brieant was specifically challenging whether, in fact, federal prosecutors, Cynthia Dunne, and Andrew Schilling, who tried the case, had ever made good on their promise to Cote that they would not try him in connection with Teodorovic’s death, if he would consent to waiving the Statute of Limitations.
Brieant, whose disdain for the case has been no secret, opened the proceedings with, “When this case was first presented, it was represented that the Defendant understood that if he would consent to waiving the Statute of Limitations, he would not be charged with the death. There is nothing to indicate that the Defendant ever enjoyed a benefit,” Challenged by a response from Assistant United Sates Attorney Dunne,
Brieant retorted, “We didn’t make that up out of whole cloth.”
Defense Attorney Epstein, standing at the lectern, broke in, “I’ll talk about the Double Jeopardy issue.” Judge Brieant came right back, “There’s two Double Jeopardy issues. There’s the issue raised by Court of Appeals Judge Calabresi, and the issue of monitoring.”
Epstein opened his remarks with, “One of the most ancient principles is that a person shall not be twice put in jeopardy.” He then went on to immediately point out that at the first trial, the state trial, Correction Officer John Reimer in describing his take-down of inmate Teodorovic, indicated that the inmate’s head had bounced on the concrete floor of the cellblock, but that in the federal trial, more than five years later, he spoke of a gentle take-down.
Judge Brieant volunteered, “That might be helpful in a motion for a new trial.”
Epstein then came back with, “The state trial verdict was an acquittal of Intentional Assault, a conviction of Reckless Assault.” He went on, “Four years go by, and he, (Cote) hears there will be no prosecution. But, not so fast!” Pausing momentarily he added, “To any reasonable observer Your Honor, this is the essence of Double Jeopardy. How compelling could the Government’s interest have been that they waited four years? There was no way that Mr. Cote should have been charged with the death of Mr. Teodorovic.
What conversations were held between Mr. Neary (Assistant DA under DA Pirro’s regime, who conducted the state trial against Paul Cote)
and federal prosecutors?”
Judge Brieant responded, “I’m somewhat disappointed that your papers do not contain anything from Mr. Neary or Mr. Aaronwald.”
Attorney Epstein, attempting to explain, offered, “Mr. Neary is now a member of the bench, and would take a great deal____.” Epstein was referring to the fact that Robert Neary, one of Mrs. Pirro’s favorite co-conspirators in prosecutions that involved fundamental unfairness and/or prosecutorial misconduct, as in the Matthew McKerrick case, was now an appointed Judge in the State Court of Claims, having twice failed to get elected off of prior appointments from George Pataki.
Judge Brieant, further prompting the Defense, then asked, “You don’t wish to discuss the sufficiency of the evidence, or the reliability of the testimony of the jailbirds?” Prosecutor Dunne followed, attempting to make an argument for Defendant Cote’s “propensity toward violent outbursts.” However, Judge Brieant had the last word, reminding her, “Propensity has no force at all in a criminal trial.”
Attorney Matthew Kletter, who has been going through the meatgrinder known as divorce in the Westchester County Courts for about a year now, and who, together with others, has founded a support group for men and women similarly situated, has been writing extensively with regard to the activities of Family Court, the Matrimonial Part of Westchester Supreme Court, the Department of Social Services, police, and other agencies typically involved in the injustices and wrongful handling individuals all too frequently encounter in divorce proceedings
in Westchester County.
We share the Court Report with Mr. Kletter this week in order that he may present “Abusive Power: The Plight of Men and Women in Westchester County.” The fact is that in every Precinct in Westchester County, police departments are sitting on literally dozens of Orders of Protection restricting individual’s rights to access their homes and children. It’s become part of the modern way of life here in Westchester County, the new norm.
I have posted on-line to get feedback from other men and women in the County who are being subjected to this. I have spoken to several of them in person. The story is generally the same in each case.
• A disgruntled spouse files a bogus petition for a TOP (Temporary Order of Protection) based on bald-faced allegations (often with the assistance of women’s rights attorneys or legal aid, e.g. Legal Services of the Hudson Valley);
• A TOP issued by a Family Court judge ex-parte without the respondent being present;
• Upon receipt of the TOP, the Respondent is generally ordered to leave his/her home. Often the Respondents to such actions move temporarily into a local Suites Hotel (e.g. Marriot Residence Suites);
• The Respondent appears in Court a few days later;
• At that hearing, the TOP is sustained by a judge in the Westchester Family Court system without the accuser being asked to take the stand to testify under oath or the Respondent being given an opportunity to cross-examine the Accuser;
• If the Respondent has children, the Respondent is then ordered to participate in a “supervised visitation” (irrespective of whether the allegations against this individual have been corroborated or whether the alleged conduct involved the children in any way whatsoever);
• A legal guardian is appointed for the children. The legal guardian rarely, if at all, speaks to the Respondent;
• Those Respondents who are affluent who want to see their children at home or a place of their choosing are required to pay $200-$400 per visit to see their children;
• Those Respondents who are middle class or lower class often see their children for a lesser fee at the local YWCA;
• The Respondent’s family is then sent to a forensic psychiatrist often at the Respondent’s expense, by court order;
• The Respondent often will not see the report until the date of the “hearing”. In most cases the Respondent will not see the report at all;
• In the meantime if the Respondent has been “indicated” by CPS (Child Protective Services), you can assume it will be months and months before the State conducts an administrative hearing of your matter (often a year). Of course that assumes that the Respondent’s representatives are smart and diligent enough to follow-up on this key aspect of the proceedings. I met one person recently that did not know until he met me that he had been “indicated” (even though he was “indicated” nine years ago);
• In the process, the typical Respondent finds himself/herself having forced out of their home and having to spend $50,000-$100,000 defending themselves in this process (irrespective of whether that person ever did anything wrong); and
• Along the way, social workers, the local YWCA, psychologists, psychiatrists, mental health clinics, high-paid lawyers, 18-B lawyers and legal aid lawyers, make their fees off the victims (and taxpayers) of this state and county-sponsored abuse of power. The facts are quite obvious. In Westchester County TOPs are being utilitized by rogue spouses to force innocent spouses out of their homes when one party has refused to voluntarily move out. In these same instances, the rogue spouse utilizes the judicial system to distance the couple’s children from the innocent spouse (even if the innocent spouse has done nothing to harm the couple’s children). The rogue spouse essentially turns the children into pawns and makes a land grab for them (under the pretense that the other spouse is deemed guilty due to the fact that he/
she is under a TOP).
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