Thursday, March 15, 2007

“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).

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