Thursday, April 24, 2008
To Protect The Innocent - Part II
By Jeff Deskovic
In my last article I outlined the deficiencies in the State Court System in protecting the innocent. In this article, I will go into the Federal Court System. After a defendant has been denied by their state’s highest court, they are no longer entitled to a lawyer if they cannot afford one. The Problem With Not Having An Attorney In Federal Court Unlike State Court, where a defendant is assigned an attorney to represent
him if they cannot afford one, the defendant does not have a right to an attorney while challenging his conviction in Federal Court.
Although federal courts have the authority to assign a lawyer, most of the time they do not. This results in the logic defying sight of an innocent defendant, often, although not always, poorly educated, forced to represent him or herself against a seasoned prosecutor. If one
stops to consider for a moment, this is totally outrageous and inconsistent with any type of fundamental fairness from which we may have confidence in the accuracy of outcomes.
After all, although most wrongfully convicted prisoners familiarize themselves with the law, as I did, the fact of the matter is that to be an attorney requires three years of study including invaluable classroom training, and passage of a bar exam before they may represent other people. Learning law through going to the law library and reading cases is no way comparable to that, nor a substitute. If it was, lawyers would skip law school, read case law, and then take the bar exam. Often, wrongfully convicted prisoners are charged with serious crimes carrying heavy prison sentences, and they are somehow expected to use the little bit of learning that they have gained from the prison law library against a prosecutor who has been law school-trained, passed the bar, and then gained experience. The unfairness in this equation is obvious.
Somehow neither Congress nor the United States Supreme Court has seen this practice as violating our Sixth Amendment right to counsel. Additionally, the groundbreaking and justice-promoting decision in Gideon v Wainwright granting defendants the right to a court appointed attorney was somehow not seen as applying to prisoners filing habeas corpus proceedings, appeals to the Circuit Courts, or to the United States Supreme Court.
As I see it the situation, coupled with the frequent practice by appeals courts of not really addressing issues on the merits and ruling as the facts and/or the law requires, constitute the two most important reasons why miscarriages of justice are often not corrected at the federal level. All too often it is often found that the wrongfully convicted have long ago had all of their appeals exhausted at the time they are ultimately proven innocent. Compounding these problems is the fact that the instinct of most courts is to deny motions and appeals brought by defendants pro se, (representing themselves). In a sense, this is a kind of tacit admission that those representing themselves are usually incapable of bringing forward meritorious claims and/or arguing them correctly.
The arguments against appointed counsel by the state is essentially twofold. Firstly, they claim it would be too costly. My counter to that argument is that there is no price that should ever be put on an innocent person’s freedom. A competent attorney is essential to ensuring
that justice is done. Secondly, since the issues that may be raised in federal court have to have been raised in prior state court proceedings, these issues have already been mapped out for the defendant.
The refutation of this is that while the issues themselves have previously been argued, that fact does not take into account that one is allowed to supplement the record, citing additional cases as authority as to why a case should be overturned so long as it does not fundamentally
alter the claim, and that secondary persuasive sources may also be cited, such as scientific studies or treatise. In addition, an attorney is far more likely to be aware of recent decisions impacting, or related to, the issues raised in the case at bar. This additional material is important
to bring to the court’s attention in order to help it decide the case correctly, and essential to a defendant’s obtaining justice.
In addition, for several reasons, it is not enough for the defendant to simply submit a brief, essentially copied from the state appellate briefs, and then wait for an answer from the opposition, relying on that to obtain justice. As will be demonstrated, as I review various court
proceedings, a defendant must answer responses given by the prosecution and then must also draft applications. To ensure justice, these must be done by a competent attorney. Furthermore, since state court law is irrelevant in federal court, the state court cases and arguments need to be removed from the briefs.
A habeas corpus proceeding is different from an appeal in that federal courts do not entertain issues pertaining to state law. Instead, state prisoners who file a petition for a writ of habeas corpus are arguing their conviction is running contrary to the United States Constitution.
Therefore the issues that must be raised must be Constitutional issues, and must previously have been raised in state courts, in such a way as to put those courts on notice that the appellant was arguing his or her issues in a Constitutional context. If issues are raised for the first time in federal court then the court will dismiss the petition without ruling on it on the grounds that the issues were not exhausted.
The procedure is that a judge, referred to as a magistrate, is assigned to the case, and he makes a recommendation to another judge as to how he or she should rule. The defendant files legal papers, and then the prosecution submits legal documents. It is up to the defendant,
or his or her attorney, to then counter the answer of the prosecution in what is known as a traverse. Otherwise, it is presumed to be accurate.
This counter obviously is an original document, which must take into account the cases cited by the prosecution and show that they do not apply and that the cases the defendant has cited are controlling. Therefore, it must be drafted, and thus is not a mere copying of arguments
that were previously made. As stated above, in reality, it requires an attorney to do it properly.
Once the magistrate judge has made his or her recommendation, that is then forwarded to the presiding judge. It is up to the defendant to file objections to the recommendation and point out, through citing case law, how the recommendation is, incorrect if in fact, it is. Any unobjected to portions of the recommendation is presumed to be correct. Again, this requires an attorney with first-hand knowledge of the law who can work to make credible arguments in the objection, especially given the short time limit allotted for filing such objections. It is
especially critical when one considers that judges, although not mandated to follow the recommendations of the magistrate judge, frequently do. Therefore it is critical that a persuasive document be crafted.
Often the prosecution attempts to circumvent the court from even ruling on the merits of the issue that the defendant raises by attempting to get the court to dismiss the petition for one reason or another without even looking at the merits. Historically, many a case has fallen through the cracks this way. There are other problems inherent within habeas corpus proceedings. In Rose v Lundy, the court ruled that the previous practice of defendants filing a second petition in federal court if they had new issues, that they had no longer presented, would no longer be allowed and instead the petitions would be looked upon as “successive” and “abusive.”
The intent was to prevent defendants from having more than their day in court, and to reduce appeals. However, this law posed two obstacles to the innocent. Since lawyers often were not appointed, petitions were being filed by the defendants pro se. Then, later on, if they were able to somehow obtain an attorney, the attorney would be faced with the roadblock that the petition had been filed already in desperation by the wrongfully convicted. District Attorneys are quick to take advantage of this and urge the courts not even look at petitions. Additionally, new facts may not have been learned until after the first petition had been filed and ruled upon, and yet the waters are now murky as to whether the new issues will even be looked at under the law.
Another problem is that President Clinton signed the Anti Terrorism Effective Death Penalty Act into law. That law gave all state prisoners one year in which to file a habeas petition after being denied by their state’s highest court. Considering the fact that once a person is finished with state court, they are suddenly without a lawyer and often without money to hire one, out of desperation they find themselves in a scramble against the odds to somehow find a lawyer who will represent them pro bono (free). Meanwhile, the clock is running.
Additionally, that law presents other implications that impact habeas corpus, rendering it ineffective. Under the law, federal courts were directed to review issues “defferentially” to state courts, wherein they were no longer looking at things as critically, nor were they
necessarily looking to see if a state court ruling was correct. It merely became a question of whether the ruling was “reasonable.” If it appeared to be, even if it was wrong, then the federal court was to grant no relief.
In my own case, when I filed a Habeas Corpus Petition there was confusion in the courts regarding how the new one-year rule would apply to cases already in the system, and different courts were answering the question in different ways. My then-lawyer called the court clerk and asked if my petition could be postmarked on the due date, or whether it had to be physically filed and in the building. She was told that it was enough that it be postmarked. That information turned out to be false and, as a result, the petition arrived four days too late.
The then-Westchester District Attorney, Jeanine Pirro, took the position that those four days were somehow prejudicial to the government’s case, and that the Court should simply rule that I was late, and dismiss the petition. It did not matter to her that I was arguing my innocence as established by the DNA or that my Fifth Amendment Rights had been violated.
Apparently it did not bother the conscience of Assistant District Attorney John J. Sergi, who actually wrote the brief arguing that position. He similarly had no trouble arguing that the DNA Test which showed that the semen found in the victim did not match me somehow did not show my innocence. At several points in the brief he wrote, “To be sure, petitioner incorrectly asserts that DNA evidence is conclusive of innocence.” Elsewhere he argued that the fact that the test results came before I was convicted rather than post-conviction somehow impacted upon whether they proved that I was innocent. He argued, “ is is not a case in which an exculpatory result of a DNA analysis is
offered as new evidence after a trial comporting such reasonable doubt as to warrant a retrial at which that result can be considered by a jury
along with other evidence in the case. Rather, the full flower of the herein asserted exculpatory evidence was admitted at the trial and was considered and rejected by the jury as a sufficient basis to create reasonable doubt”. Unfortunately for me, the Court did, in fact, time bar me.
The Federal Court Of Appeals
The procedure is that a defendant must get permission from them before they will agree to hear the merits of his case. Often defendants are denied this permission, thereby leaving them with only one court file to go to, The United States Supreme Court, where the chances
that they will agree to hear a case are slimmer yet.
In my case, the court gave me permission to appeal to them. My lawyer advanced two arguments as to why they should reverse the ruling time barring me:
1) That to allow such a ruling to remain in place would be to allow a miscarriage of justice to continue.
2) That reversing the procedural ruling against me would open the door up to more sophisticated DNA Testing. Once again Pirro, through Sergi, opposed, and once again the court sided with them. My attorney moved to reargue the case in front of them, but this too was denied.
The United States Supreme Court
This is the highest court in the land. The procedure is that before the court agrees to rule on the merits of a case, they must first agree to hear the case. Defendants therefore file legal papers requesting that they agree to hear the case, and the prosecution usually automatically tries to persuade the Court not to agree, regardless of innocence issues being raised or the merits of the arguments being made.
Nationwide the Court agrees to hear only approximately five percent of the total number of cases that come before it. Often the United States Supreme Court ducks questions it does not want to answer and cases it does not wish to rule on by declining to hear the merits of
the case. The media frequently points out when the high court declines to agree to hear the merits of a case which presents an issue that they do not want to deal with that “the United States Supreme Court ducked the issue by declining to agree to hear the case.” As I see it, this
is a moral abdication of its responsibility: A) the Supreme Court is the ultimate arbiter of justice, and, B) they should ensure that injustice is not going on in the court system, and, C) they are charged with resolving questions of controversy by making final rulings.
Included in this general sweep of declining to hear cases it does not want to rule are serious allegations of innocence or errors that occurred in the course of a trial so serious as to cast doubt on the reliability of the verdict. There has not been one single case in which the primary issue was innocence that has been successfully raised as a basis for agreeing to hear the merits of the case, and then ruled on in favor of the
defendant. And, that includes not one of the current 215 DNA based exonerations, nor any of the non-DNA exonerations that have occurred.
Indeed, the sheer futility of it is so known to attorneys that they very rarely even raise it. Thus attorneys for the wrongfully convicted are often stuck raising issues of law as the more likely vehicle by which to gain relief for their clients, which is another reason why it is important that issues of law, often viewed as “technicalities”, be looked at, and ruled upon the right way, because an innocent defendant may be adversely affected. As I will highlight below, it is no wonder why they often do not bother to rule on it.
Most citizens do not realize that guilt and innocence are not, according to the United States Supreme Court, the bedrock of our justice system. Many would be shocked to discover that the Court wrote the following quotations in the case Herrera v Collins: “But this body of
our habeas jurisprudence makes clear that a claim of ‘actual innocence’ is not itself a Constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred Constitutional claim considered on the merits.” And, “But we have also observed that ‘due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.’ Patterson v New York, 432 U.S. 197, 208, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977). To conclude otherwise would all
but paralyze our system of enforcement of the criminal law.”
One final quote from the high court. “But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States,
the threshold showing for such an assumed right would necessarily be extraordinarily high.” Here the court is not even unequivocally saying that there is such a right. In another case, the court ruled, stating “Few rulings would be so disruptive to our system of justice as would be to
allow free standing claims of innocence.” By all of the above language, the court makes clear that points of law are more important than guilt or innocence, and this is why they don’t like to entertain issues involving guilt or innocence.
I certainly witnessed this first-hand in my case: My attorney raised the issue of my innocence, as established by the DNA. How much more clear cut does it get that a defendant is innocent? Yet the Court, nonetheless, declined to intervene in the injustice that was unfolding in my
case, and it would be approximately five more long years before I would be released from prison, when it could have, and should have, ended right there.
Catherine Wilson, Bureau Chief
The Coming Food Crisis
Robbing Peter To Pay Paul
If you feel lately that your wallet is hurting at the supermarket, you’re not alone. According to the United States Department of Agriculture
(USDA), food prices in the United States rose 4% in 2007, compared with an average 2.5%, per year, for the last 15 years. The USDA expects increases in 2008 to be far greater. The latest Consumer Price Index (CPI), issued in April shows expected increases in food prices for this year to be another 4.8%.
The dramatic increases in food prices, globally, are creating food shortages and causing riots worldwide. The Guardian investigated what is behind this mounting crisis. The reasons for these increases go far beyond global warming, changing weather patterns, and energy costs. For the past 25 years, the United States Department of Agriculture encouraged conservation by farmers to limit production of certain crops to stabilize food prices. Under the Conservation Reserve Program, farmers could earn more by not planting certain crops, and the government could keep the prices of those crops stable.
However, in recent years, the snack food and energy industries have been upsetting this delicate balance. A coalition of ethanol, baking, snack foods and other industry groups are now offering incentives to farmers to grow the desired crops for their industries. Crops such as soybeans, wheat, and corn are now in big demand for uses other than for domestic food consumption. These new markets have pushed up prices. The USDA incentives cannot compete with the industry payments, overriding the federal government’s longstanding methods of controlling the costs of our nation’s food supply. In addition, the demand for corn, specifically, in recent years to produce ethanol has swayed farmers away from other staples, such as wheat and soybeans. Thus, the rising costs of these staple crops are having a domino
effect across the farm industry itself as higher soybean prices mean higher feed costs for farm animals. The demand for ethanol has increased the cost of corn, ironically increasing the cost of energy for the production and transportation of crops. And, the high wheat costs are affecting our local bakeries and even our pizza shops.
Michael DiNardo, owner of Silvio’s restaurant in Thornwood, told The Guardian that his food costs have increased an average of 50% in the last year alone. “That’s an average increase”, DiNardo stressed. “Some items, such as dairy and fowl, have increased by as much as 200% over last year’s prices. Our tomato distributors have already warned me to expect another 50% increase, and our wheat distributors are warning me of a major wheat shortage come summer. That’s my livelihood – we can’t make pizza without flour,” DiNardo added.
Rising costs of ingredients are nothing new to the restaurant industry. DiNardo noted that he has usually been able to absorb temporary increases before. “Usually prices increase for a period, like the summer, but then come back down. We try to absorb a temporary increase where we can, but this is looking like it’s here for the long-term.”
With a long-term problem, the increase cannot be absorbed by restaurants and have to be passed along to consumers. “I’ve already had to raise my prices 2½ - 3½%, and I just did a major price increase about a month ago,” Di-Nardo said. “When I raised my prices, I was very upset. I live in the community and I see my customers every day.”
The rising costs have also placed greater emphasis on items that were once an after-thought. “Mozzarella used to be the most expensive item I purchased,” Di-Nardo noted. “But lately, wheat is almost as expensive. It used to only increase a penny or two at a time. But now it’s competing with mozzarella as the most expensive ingredient”.
Local supermarkets are also feeling the pinch of rising prices. Stew Leonard, Jr., President of Stew Leonard’s Supermarkets, spoke to The Guardian about how they are dealing with this issue. “We buy from local farmers so we speak to them on a constant basis. Our dairy farmer has over 3,000 cows on his farm. The cost to heat his barn for those cows has doubled in the last year. It cost him $1.50 a day to feed a cow in 2007, it now costs him $3.00. Since we deal with small local farmers, if they tell me they have to increase their price to me, I don’t want to
say no because that could but them out of business. But if we raise prices, sales drop. So we try to wait as long as we can while still being fair to our farmers. The idea for us is to respect our suppliers and to get the best quality for our customers. But our farmers can’t do that if they’re hurting financially. So we work with them to find solutions.”
Farm costs are not the only increases affecting our local supermarkets. Rising energy costs are taking a toll as well. According to Stew Leonard, rising energy costs are impacting the transportation of the products he is purchasing. It is also affecting non-farm products. Leonard told us, “I spoke to our fishing boat and he told me that it cost him $500 to fill up his tank 2½ years ago. Now it costs him $1,000 to fill the same tank to go out”.
Leonard’s solution is to work directly with his farmers, fishermen, and suppliers. “We try to work with our suppliers and give everybody the best bang for their buck. In an economy like the one we have, you have to keep your prices sharp”. Leonard notes that not every item on their shelves is affected by the food shortages and energy costs. Some items are actually doing well. “The high Euro is making wines more expensive, but other countries, including the United States, are looking at this as an opportunity to gain market share. So they are lowering their prices to compete. We are seeing the same trend with cheese. Plus, as food costs increase, and going out to dinner becomes more expensive, people eat at home more. So supermarket sales actually increase. We are already getting more requests for recipes. And interestingly, we are also seeing an increase in wine sales,” Leonard noted.
The rising cost of food is not only affecting our local restaurants and supermarkets, but it is also placing hundreds of thousands of county residents at risk. Christina Rohatynskyj, the Executive Director of Food Patch, told The Guardian that they have been seeing the impact of rising food costs first-hand. “We purchase a lot of food for distribution, so we see the changes in costs. Plus, many of our food pantries, and soup kitchens, and other organizations, are telling us that they are seeing more people come in for help. They tell us if they had more resources, they could give out more food because the demand is there. If our economy worsens, there are going to be more people who will need help to stretch their food dollars.”
The number of county residents who are already hungry or at risk of being hungry is dramatic. Rohatynskyj estimates that “there are approximately 200,000 people in this county who are hungry or at risk of being hungry – that’s one out of every five residents! According
to the 2006 Census, the median income in Westchester County was about $71,800. That means about 450,000 people, or half of our total population, fall below this income level. An average family of four or five cannot live in Westchester County on an income of $71,800, let alone less than that”.
The statistics of who the hungry in our midst are is equally dramatic. “Thirty-six percent of those who are hungry in Westchester County
are children under the age of 18” Rohatynskyj noted. “Almost 30% of our residents over the age of 50 fall into this risk area, along with 15%
of our seniors over 65. Over 83% of the individuals who come to us for help are United States citizens and only 5% are homeless. Most of the individuals we serve, about 50%, are the working poor. They have a job, but cannot afford to feed their families. For many people in our
area, they have to choose every day between paying rent, prescriptions or buying food”.
According to the United Nations Food and Agriculture Organization, increasing food prices, coupled with food shortages, are placing a strain
on already impoverished nations around the world. The President of the World Bank, Robert Zoellick, announced in mid-April that 33
nations are already at risk of social unrest because of the rising prices of food. In the United States, most households spend less than 16% of
their budget on food. But in developing nations, that number is closer to 50% or even 75% (Nigeria) of their income.
The World Bank has noted that the doubling of food prices in the past two years could push 100 million people into poverty. The United
Nations attributes this increase to poor weather for crops in many countries, increased demand by growing populations, and a substitution
of growing crops for food staples for the production of alternative fuels instead. Riots over the shortages of food in several impoverished
countries this month have already led to deaths leading President Bush to release $200 million in emergency aid last week.
The demand for alternative fuels led to the production of ethanol which siphoned away the corn production in our country and globally. Ironically, the solution for one of our nation’s problems has resulted in the creation of a greater problem in our midst. One short-term solution to the food crisis would be to increase production locally. Dr. Susan Rubin, founder of the Better School Food organization (profiled
by The Guardian in 2007), advocates a return to backyard gardens. “Not only will the food be healthier, but gardening has therapeutic
values – it helps relieve stress. Plus, it is a better environmental use of our land than drowning it in pesticides to keep our lawns weed-free,”
Dr. Rubin notes.
Westchester County government is even offering several workshops in April and May at Hilltop Hanover Farm in Yorktown Heights to assist local resi-dents in composting a backyard organic farm and other topics. In the meantime, middle class residents, however, are still faced with paying for their weekly grocery shopping bills.
Even limiting purchases to mere food basics, without adding cleaning supplies or toiletries or snacks, can mean a minimum $150 weekly bill for a family of four. Now that soda is far cheaper than milk, local families are already making unhealthy choices to keep their food costs down.The immediate impact of rising food costs is already evident with the food riots and the sticker shock at our supermarkets. But the long-term impact could be even greater. The threat to our health and our national security has yet to be acknowledged.
Northern Westchester Round-Up
Bedford: A Connecticut woman, Melanie Martinez, was arrested for driving over 100 miles per hour on Interstate 684 in Bedford. State troopers arrested Martinez for drunk driving and she is scheduled to appear in Bedford town court on May 1.
Buchanan: Indian Point cancelled their tests of the emergency sirens a day early last week after only two days of testing. Officials at Indian Point claimed they received all the data they needed from their tests within the two days.
White Plains: Pace University held public hearings regarding pay raises for the Westchester County Board of Legislators. The board has doubled its operating budget in the last five years.
Yorktown: Scoot Baia was charged in town court with telephoning in a bomb threat to the Yorktown High School. The school was evacuated as a result of this threat, which was traced to a local phone. Baia has been released on bail pending a hearing.
In Our Opinion...
They’ve Overplayed Their Hand
When it comes to arrogance and obtrusiveness, the inner circle, the key players, in Westchester County Government, are peerless. Who can compare with the likes of Andy Spano, Spano’s Svengali Larry Schwartz, his official liar, Susan Tolchin, the puppets Reggie LaFayette
and Ken Jenkins, and, of course, Chairman Of The Board Bill Ryan, when it comes to sheer chutzpah? Collectively, We are talking about LARRY SCHWARTZ & COMPANY.
Make no mistake, when 85% of those who responded to a NEWS12 poll, stated that they would abolish County Government, the clock began running. Westchester homeowners have had enough. When you are the most heavily taxed in the nation, and mortgage and tuition payments have you between ‘a rock and a hard place’, and the Chairman of the part-time rubber stamp County Board of Legislators continues to whine and kick because he is only getting $89,000, while all of Larry and Andy’s crony commissioners are pulling down $155,000, the time has come to pull the plug.
How can struggling homeowners not think, “What colossal nerve these critters display; what selfishness, grabbing for tremendous payraises at a time when we are already paying such high taxes, and working hard just to make ends meet?” It’s frighteningly apparent that Andy Spano’s, Larry Schwartz’, and Susan Tolchin’s feet no longer touch the ground. And, Bill Ryan is standing on another planet.
Perhaps this crew has so enriched themselves over the last 10 years that a public exposure of their personal worth is not only appropriate, but necessary. We haven’t forgotten the slick deal Larry Schwartz arm-twisted through the County Legislature’s Solid Waste Committee three years ago, refusing to renew a $70 million, five-year contract, with a satisfactory, competent hauler, preferring, instead, to replace him with a company the City of New York was forbidden to do business with, and paying $87 million for the same services.
By displaying such flagrant disregard for their constituents, the County Executive’s Office, and the County Legislators, have added insult to injury. They have made it clear that they believe they can get away with anything. When Andy ran for County Executive in 1997, he promised he would “serve only two terms”. In 2001 it was still “two terms”. But, in 2005, he ran for a third. And, now, he’s already declared for a fourth, in 2009. Why not? They’re fixed elections, anyway. That’s right, fixed, as in Judge Horowitz. Andy will admit that until Larry Schwartz came along, in eleven prior elections, he couldn’t even get elected dog catcher. But Larry “fixed” all that.
Reader Raises Serious Questions About Administration Of Mamaroneck Schools
It was not a “breakdown in oversight” at Mamaroneck Schools that allowed the awarding of a “private contract” to Mr. Bill Koulouris by Ms. Sarah Tate.
The School Board’s statement that they knew about the illegal contract and that it was an isolated incident (it was not) is as disingenuous as it is irrelevant.
Anyone interested in the legality of Sarah Tate’s hiring practices need only visit: http://www.westchestergov.com/ hr/adobe/CIVILSERVICERULES.pdf After downloading these “Civil Service Rules for Westchester County” (about 35 pages) it becomes irrefutable as to what was supposed to be done, when it was required to be done and by whom.
Any employment action involving Mr. Koulouris was also required to be monitored by the Westchester County Civil Service Department as described in Rule 22 of the County Rules. Every Civil Service Employee at Mamaroneck was required to go through the same process including semi-annual reports. This was not some special hiring for which the rules were unclear. Mamaroneck has an Assistant Superintendent for Personnel who files these reports. Where are the reports? If the reports were made, what action did the County take? If the County had knowledge of the illegal action they were required to demand the immediate removal of Koulouris. If they were not aware of the hiring, then Tate and the Personnel Director are culpable as described in Rule 22.
As an Assistant Superintendent of Buildings at Mamaroneck I often brought my concerns about the adverse hiring practices initiated by Tate. There were many. Complaints I filed with Westchester County resulted in cover-ups including their admittedly predating documents which can only be described as perjury and conspiracy. My complaints to the Westchester County District Attorney’s Office resulted
in their finding, “after checking with” Civil Service, that I was confused as to the law.
There exists, at the Human Resources Dept in the Westchester County Building, White Plains, descriptions for Bill Koulouris’ and Sarah Tate’s job titles which State Law requires be available at all times for viewing. Both titles are listed as “Competetive” and subject to State approved tests and County approval prior to appointment as demanded by Rule 22. Any person evading Rule 22 is required to reimburse
the employer for the employee’s salary and benefits.
During the 1990’s Larchmont resident Dr. Max Eaglefeld, and others, filed several complaints about Sarah Tate and the School Board’s illegal activity. Mr. Koulouris, like many others hired by Sarah Tate, was paid to stay out of the way. His activity is simply described as “out of title” and was illegal. If this seems unfair, read the paragraph titled “Duties” in the “Network Administrator” Classi ed Title at the County Civil Service Office.
Enforcing Federal Immigration
Laws Adds Burden To State And
Local Law Enforcement
The National Black Police Association has been in existence since 1972 nationally with chartered organizations in the United Kingdom, Canada and Bermuda. The principal concerns of the National Black Police Association are the promotion of justice, fairness, and effectiveness in law enforcement issues and the effect of those issues upon the total community.
The Westchester Chapter of the National Black Police Association is in full support of the Hudson Valley Community Coalition’s press conference against enlisting State and Local Law Enforcement to exercise and enforce Federal Immigration Laws. The press conference was held Saturday, April 19, 2008 at 12:00 p.m. at Mahopac Public Library, Mahopac, New York.
Immigration Enforcement should remain under federal guidelines and enforced by Federal Immigration Agencies such as the U.S. Immigration
and Customs Enforcement Agency and U.S. Citizenship and Immigration Services that are all under the umbrella of the Department of
Homeland Security. For State and Local Law Enforcement to enforce such federal laws will be an added burden to the already highly stressful job of protecting the communities we serve.
This will ultimately increase the existing poor relationship of Law Enforcement and the Immigrant and Minority communities. It will
also add to the institutional bias policies that already exist in Law Enforcement towards immigrants, the poor, and people of color.
Damon K. Jones, Executive Director, Westchester NBPA
Reader Critical Of Reproductive Health And Privacy Protection Act of 2008
Despite your publication being called by many people a “rag”, I have always read with interest, your criticism of various public officials,
judges, etc., especially in view of the fact that I served as an Assistant District Attorney for ten years, both in Bronx County and Westchester County, and can identify with many of the arguments made by your publication at various times.
I realize that advertising dollars might be hard to get, but the fact that you allowed to be published on page 7 of your April 10, 2008 paper,
a smiling picture of Andrea Stewart-Cousins, apparently proud that she and the other names that appear below, support the Reproductive
Health and Privacy Protection Act of 2008, is disheartening.
I do not know if your staff or yourself has read what the Reproductive Health and Privacy Protection Act of 2008 is, but it provides that high school girls who would not be allowed to be prescribed or given an aspirin by school staff members, can obtain abortions without their
parents’ knowing that they are pregnant or being notified of that fact, to allow them to love, nurture and counsel their daughters through
that difficult time. It also attempts to legalize what is not even permitted on a national level, that is the use of partial birth abortion, in which a perfectly healthy full term child’s head is crushed and the brains are removed to terminate its life.
The politicians’ attempts to package this bill, which not only threatens the mental and physical well-being of young high school girls who are
faced with the daunting proposition of being single, pregnant, and a teenager, but also provides a legislative imprimatur for the killing of healthy, innocent babies, as a noble and health-related bill is a masquerade. I invite you to read this legislation and see if my description of it is a fair one. If it is, then you and your paper should be ashamed that you allowed Ms. Stewart-Cousins and the other politicians who sponsor this Bill, to use your paper to foist it on an unsuspecting public.
Kevin J. Kitson, Esq., White Plains
Editor’s Note: Contrary to Mr. Kitson’s suggestion that the piece published on page 7 of our April 10th edition represented a paid advertisement, readers should be informed that that announcement was merely an unpaid joint press release from Sen. Andrea Stewart-Cousins and the State Democratic Senate Committee.
Regarding Westchester Medical Center
Regarding this hospital, I was a biller there in 1999. They brought absurd charges against me. I’m physically and mentally handicapped. These people had no compassion for me. I was humiliated due to office politics. My Civil Service was terminated with no regard to due process of law or medical compassion. Many people have had the same experience working there. See Karen Bendel v. Westchester County Healthcare Corporation 2000.
Just because it has the name Westchester doesn’t make it a quality place.
Bob Kampel, Mount Vernon
Tuckahoe School District Insider
Exposes Shocking Realities
I recently read the article written by Catherine Wilson Determining The Real Cost Of Our Local Schools in your 4/10/08 edition. As a member of the Tuckahoe School District Budget Oversight Committee I found it to be the most factual and enlighting article I have seen on this topic. As a taxpayer I believe (and know) that the cost of education in NY is out of control... period! How can taxpayers who pay 80-92% of the cost of education continue to pay for teachers pensions (defined benefit plan), health insurance (for teachers and family)
and provide “automatic raises” without performance criteria?
Currently the District contributes 94% to employee health care premiums (which are rising 10%/yr). Teachers only contribute 3% to their pension fund (defined benefit) for the first ten years and zero thereafter. Upon retirement they receive “FREE” health care for themselves
and their qualified family members receive a 75% discount....all paid through local real estate taxes. The District’s “ECR” Employee
Contribution Rate to the “TRS” Teachers Retirement System increased by 241% between 2003-2006 and according to KPMG, auditor
for “TRS” this trend will continue as there is a shift towards a grater portion of retirees to active members (Baby Boomers).
There is no wonder why my school tax bill has increased by over 150% from 1996-2007 while the student population has remained stable. This unsustainable rate is forcing older residents who raised their children here to move and is also pricing out younger folks from buying and raising a family.
Neighborhood Watch: Absolutely;
But How In A Community Fearful Of Police Brutality?
Last Wednesday night, at the Riverfront Library in Yonkers, Virginia Perez, sister of the late Martin Perez, who was senselessly slain December 17th of last year, shot to death while making a delivery from the Emerald Diner opposite Yonkers City Hall, attempted to launch a Neighborhood Watch Program intended to prevent further violent crime in the community. Virginia’s, and her parents’, lives, will never be the same. They are left with Martin’s infant daughter, and only memories of him.
There’s been one arrest in the senseless robbery gone bad shooting. There was no reason to kill him as he fled for his life; no reason to snuff out his 25-year-old life. Those who loved him are broken-hearted. His sister Virginia is determined to make something meaningful and caring come from her family’s tragedy, and ultimate sacrifice. Police reportedly know who the second perpetrator was, the cruel trigger-pulling bastard who took away a son, a brother, a father with one merciless act.
To his credit, Mayor Phil Amicone came out and spoke to the three dozen, or so, thoughtful residents who showed up. However, the Mayor’s words, in reality, were just so much political rhetoric, given his continued refusal and failure to deal with Yonkers’ legendary
police brutality, especially in the minority community. How do you get Latino and Black residents to work with police who have such a notorious reputation for beating them up without provocation? Council President Chuck Lesnick, whose Chief-Of-Staff Rocky Richard and Community Coordinator Carol Bengis were there in support, also spoke.
Councilwoman Pat McDow observed, probably rightly so, to this reporter, that the function would likely have been better attended had it been held shortly after the tragic killing, rather than four months later. But, Councilwoman McDow blew the opportunity to bring the minority community closer to the police when she sided with the Mayor more than two years ago and buried any attempt to create a Civilian Police Review Board to deal with multiple cases of police brutality. She sold out her constituents then, and stands by the Mayor and his
Police Commissioners in their denial and refusal to this day.
Perhaps Virginia was too optimistic believing that many people would be willing to devote some of their time to making their neighborhood, or even their building, a safer place. Perhaps she was unrealistic to believe that people would care enough, even about their own, and their family’, safety and well being, not only to give up some time but to risk their own safety in the process. Nevertheless, it was only a first attempt, and, although she had put out flyers, it was obvious that a more personal, a neighbor-to-neighbor networking, will be necessary if enough volunteers to set up an effective Neighborhood Watch are going to be signed up.
As with any campaign, a series of small gatherings, coffee klatches, from apartment to apartment, explaining the concept, the cooperation between neighborhood monitors and units of the Yonkers Police Department, might go a long way to ease apprehension and suspicion. The concept will take hold only when a sufficient number of caring neighbors personalize what happened to Martin Perez, realizing that it could have been them, or a member of their household. It will take hold when enough people get angry and say, “Enough is enough”, deciding they are no longer willing to live in fear.
Unfortunately, in his brief remarks, Mayor Amicone failed to include in his references to cooperation between citizens and the Yonkers Police, any acknowledgement that, given the Police Department’s reputation for brutality, particularly amongst communities of color, a mammoth effort would be necessary to establish rapport and trust. It is unrealistic to expect Blacks and Latinos to easily communicate
with police in Yonkers. It will take a reaching-out effort by Black and Latino police officers, to convince the majority of those living in the poorest, most crime-ridden areas of the City, to work with, and trust, the police.
Nevertheless, Virginia Perez has the right idea, even if she’s somewhat ahead of her time. With time and patience and, most importantly, persistence, an effective Neighborhood Watch will eventually be born, and her brother Martin’s death will not have been in vain.
The Court Report
By Richard Blassberg
Judge Walker Punts
DA Continues Harassment Of Harrison Police Officer
Westchester Supreme Court, White Plains
Judge Sam Walker Presiding
Last Wednesday, April 16, Harrison Police Officer Ralph Tancredi once again appeared in State Supreme Court, White Plains, before Judge
Sam Walker in a pre-trial hearing that should have ended the harassment that Officer Tancredi has been enduring from the District Attorney’s Office for many months. Tancredi, who is represented by Attorney Jonathan Lovett of Lovett & Gould, White Plains, and PBA Attorney Gustavo L. Vila, has been defending against a series of retaliatory charges levelled against him last year by Harrison Police Chief David
Hall and Captain Anthony Marraccini, who Tancredi and several PBA members had brought to the attention of Westchester District Attorney Janet DiFiore.
DA DiFiore had refused to act upon substantial information and evidence that Chief Hall had intercepted a $2500 check mailed to the PBA by a local country club following a fundraiser, forging it and depositing it to the account of a police chief’s organization of which he was a member; as well as charges that Hall and Marraccini had unlawfully installed audio and visual recording equipment in the locker room at Police Headquarters. Upon DiFiore’s refusal to investigate the charges, Tancredi and several PBA members filed a complaint against Hall and Marraccini in Federal District Court, White Plains. Whereupon, the allegedly bogus retaliatory charges were brought by Hall and Marraccini against Officer Tancredi and Officer Steven Heisler. Unwilling to investigate the charges against Chief Hall and Captain Marraccini, DA DiFiore has nonetheless put the full resources of her Office, including 27-year veteran Assistant DA Barbara Egenhauser to work prosecuting Tancredi.
Last Wednesday’s court appearance was expected to produce a decisive action from Judge Walker. At a previous appearance, several weeks
earlier, he had instructed Attorney Lovett, who was also representing So-fia Saenz, a key figure in the incident from which the retaliatory charges against Tancredi stem, and who, herself, has brought a federal suit against the DA’s Office, to be seen and advised by independent counsel from one of three Westchester women’s organizations that deal with domestic violence issues.
Ms. Saenz was, in fact, seen the day before coming to court, by Attorney Pamela Howard of My Sister’s Place.The court session opened with a statement by Judge Walker to Attorney Howard, “I assume you’ve had an opportunity to meet with Ms. Saenz.” Howard acknowledged that she had seen her the day before. ADA Egenhauser then broke in with, “We want to know if Ms. Saenz will accept a subpoena and will testify.” Howard, who began by saying, “Although she has not made up her mind,” then said, “She is inclined to
take the subpoena and take the Fifth Amendment.” She went on, “There are questions of whether this is a domestic violence case.” Judge Walker, then turning to ADA Egenhauser, asked, “Is that satisfactory to you?”
Egenhauser responded, “We would make an application to postpone for a week to look into our other witness.” At that point, Judge Walker then gave indications that he was going to set the next court appearance for a month off, prompting Attorney Lovett to remind the Judge that Egenhauser had indicated that she only needed a one-week postponement, and that it was not fair to his client, who has not been convicted
of any charges, but nevertheless has been made by the Court to attend programs.
Lovett persisted, “Your Honor, I spoke with Ms. Saenz today, and she is not equivocating, or fence-sitting.”
Attorney Vila added, “Your Honor, I oppose the postponement.” The Judge then said, “Let’s give the People an opportunity to contact their other witness.”
Lovett responded, “The only witness that they have is in Minnesota; a man whose tesimony relates only to a violation, a man who was reported by the DA’s Office as having had a bat in his hand.” Walker set the next appearance for May 20 at 9:30am.
Attorney Lovett told The Guardian that he will be making an application to Judge Walker to appoint independent counsel to represent the
DA’s only other witness because, on cross-examination, that witness may be compelled to self-incriminate with respect to having threatened to hit Ralph Tancredi on the head with his baseball bat.
Given the fact that the Westchester District Attorney’s Office has had many months to be in touch with their so-called “independent witness”, a man who reportedly threatened Of-ficer Tancredi with a baseball bat, a man whose testimony, at worst, relates only to a possible violation; and, given the fact that ADA Egenhauser has, on several occasions, declared that she was ready to go to trial, Judge Walker would’ve been well within his judicial discretion to dismiss the charges against Officer Tancredi. In light of Sofia Saenz’ indication that
she would be taking the Fifth Amendment. Instead, he chose to permit the sham and harassment to go on for another month, at least.
Jeffrey Deskovic Civil Action
In Pre-Trial Hearings
United States District Court, White Plains
Judge Kenneth M. Karas Presiding
On Thursday, April 10, Attorneys Barry Scheck, Nick Bruskin and Jennifer Loren appeared in United States District Court, White Plains, on behalf of their client, Plaintiff Jeffrey Deskovic, who is suing the Department of Corrections of the State of New York, the City of Peekskill, Police Chief Eugene Tumolo, and former Detectives McIntyre and Levine, the County of Putnam, and former Sheriff’s Deputy
Daniel Stephens, Westchester County, former Assistant District Attorney George Bolen, former Chief Assistant Medical Examiner Dr. Louis Roh, and others, for their intentional wrongful prosecution and conviction of him in violation of his civil rights, specifically his Constitutionally-guaranteed Right of Due Process.
Also present in Court were Assistant Attorney General John Knudson, representing the State of New York and the Department of Corrections, Attorney James A. Randazzo, representing the County of Putnam and former Sheriff’s Deputy Daniel Stephens, Attorney
Brian Sokolov, representing the City of Peekskill, Police Chief Eugene Tumolo and Detectives McIntyre and Levine, Attorney Stuart E. Kahan, representing the County of Westchester, former Assistant DA George Bolen, and former Chief Assistant Medical Examiner Dr. Louis Roh, and others.
Mr. Deskovic, who was exonerated and released from State Prison nearly 21 months ago, was wrongfully prosecuted and convicted in the Rape and Murder of a Peekskill High schoolmate, Angela Correa, age 15, despite the fact that police and prosecutors knew, more than eight months prior to trial, that his DNA did not match the DNA of the semen found in her vagina, and that his hair did not match the hair follicles
found on her body. The actual perpetrator was a Black man, Steven Cunningham, a Peekskill resident who, having been left free in the community, went on to kill another young woman, in similar fashion, some three and a half years after Jeffrey Deskovic was wrongfully convicted and imprisoned.
Deskovic would still be incarcerated were it not for The Innocence Project’s pursuit of a comparison of the DNA from the semen found within the victim with the New York State database, ultimately producing a match to inmate Steven Cunningham, already serving 25 Years To Life for the murder of Pat Morrison, the sister of his former girlfriend. The hearing before Judge Karas was the first of many to come, very preliminary in nature, with some posturing, mostly by Defense Attorneys, and several questions from the Judge, mostly for Plaintiff ’s Attorneys. Among numerous claims Plaintiff alleges, a RICO enterprise engaged in by former Medical Examiner Dr. Louis Roh in conspiracy with the Westchester District Attorney’s Office over a protracted period of time. Having apparently fully acquainted himself with Plaintiff ’s allegations, and the known facts, Karas, while not taking issue with the allegations, did, nevertheless, question Plaintiff ’s standing under the RICO Statute, and further, questioned the potential advantage, if any, to Mr. Deskovic, even if standing could be established.
Karas seemed fully mindful of the outrageousness of the conduct being alleged by Plaintiff Deskovic’s attorneys, the conspiracy to create false testimony long before the trial, allegedly engaged in by ADA George Bolen and Medical Examiner Louis Roh, pointed out by Attorney Nick Bruskin. Karas, perhaps testing the strength of Plaintiff ’s case, alluded to Bolen’s contacts with Roh as “possibly nothing more than the prepping of a witness.” To that notion, Barry Scheck quickly responded, “We can prove that there are specific instructions to Roh not
to further analyze the Negroid hairs,” (found on victim Correa’s body).
At one point, the judge noted, in the event anyone was unaware, that there was no court stenographer present, further emphasizing the informality of the hearing in that no transcript was being created. He then asked Defense counsel, “From 1981 to 2008, what does Dr.
Roh do that causes a RICO injury, and Article 3 standing?”
Attorney Loren responded, “We have created a closed-ended fact pattern.”
To which Karas came back with, “Other instances involving other defendants? How does Mr. Deskovic suffer a RICO injury?” The judge went on, “You can’t slice one instance into many different pieces.” Pausing momentarily, he then declared, “You are claiming there’s a serial perjurer here.”
At that point, Barry Scheck said, “Roh is involved in this continuing enterprise involving perjury, and constantly covering up his perjury.”
Karas came back with, “I don’t see how you have standing with regard to other defendants.”
Scheck responded, “He knew what he said in the first instance was untrue.”
Then Loren added, “We allege an aiding and abetting.”
The judge responded, “How did he aid and abet?” To which Loren responded, “Dr. Roh knew and understood that his false statements would be used.” She was implying a theory of forseeability and actual culpability. At that point, Karas backed up a bit, saying, “If you are right, what he did here was part of a pattern that he engaged in against other defendants.”
Then, making a specific reference to the RICO Statute’s requirements, he reminded Plaintiff ’s attorneys, “You have a 24-month barrier and a closed-end continuity to overcome.”
Scheck next gave out with, “The evidence against Roh is overwhelming as regards his testimony about scarring. It’s not in the autopsy.” What Scheck was indicating involved the fact that although Dr. Roh made no reference to scarring of the victim’s hymen, anywhere in his
original autopsy report, he later supplemented his findings with claims of evidence of such scarring in order to bolster what would have to be fictionalized by ADA Bolen, a claim that Angela Correa, 15, was engaging in consensual sex, in order to account for the fact that the DNA of the semen found in her vagina at the time of her murder, did not match Jeffrey Deskovic.
Judge Karas then said, “I’ve read the complaint, and if your allegations are true, they are mindboggling. If these allegations are true, a lot of people are going to be on the hot seat.” Karas then proceeded to set the next court date for Monday, June 2 at 2pm.
Thursday, April 17, 2008
By Jeff Deskovic
As many people are aware, I served 16 years in prison before being proven innocent by DNA. During that ordeal, in an effort to try to correct the injustice that was occurring to me, I was forced to gain an understanding of the processes involved in post-conviction court proceedings. My survival instinct would not allow me to simply sit back and permit lawyers to work on my behalf while doing nothing.
Instead I learned as much as I could.
I got familiar not only with the process, but also the case law that pertained to the issues I was litigating. This involved reading the opinions of courts in many cases. I also immersed myself in a lot of wrongful conviction literature, hoping, in my desperation, to find something,
anything, that others had done to help clear themselves, that I might emulate. I mention this so that readers will know that while I have my own firsthand experience with the court system, my perspectives are not based on that alone. Instead, they factor in many cases, of which my case was but one. Often what goes on outside of courtrooms is as much a factor in how cases turn out as the arguments that go on inside
of them. The press has the power to create an environment which may shift the tide of public opinion, which, in turn, often influences judges. When a case is sensationalized, the defendant’s presumption of innocence often flies out the window and articles are written not merely to report the facts or to give an analysis or opinion based upon an objective assessment, but rather, they frequently present
the prosecution and police versions of events as though they are gospel. At times this is exascerbated by defense attorneys who frequently decide not to counter prosecution and police statements.
This extra-judicial environment becomes a part of the feel of a case, and often remains with a case throughout the appeals process. Hence, sometimes defense attorneys in cases involving innocence and the exposure of injustice, call public attention to their case in an attempt to
turn the environment around, as well as to inform the public about what is going on in the courtroom. It is not unusual in such cases for prosecutors, to dig in their heels and protect a conviction at all costs; a mentality to counter defense press attention and throw the public off by rhetorical lines such as “This case has been in front of such and such number of courts”, or “This case has been reviewed by such and such number of judges”, implying that prior review and upholding of the conviction is somehow a sign that the verdict is accurate, that no further review is needed, and that the appellate process is enough to protect the innocent.
The purpose of this article is to illustrate that that is far from the case. Appellate courts, at both the state and federal level, have long been in the practice of ‘rubber stamp denying’ meritorious appeals of the innocent, no matter what facts are in the defendant’s argument or legal arguments that are made. Nationwide, there have been 215 DNA exposed wrongful convictions, and in New York there have been 25. In almost every single one of those cases, the appeals process had long since run out for the defendants although they had been proven to be incorrect.
Often, when viewed with the benefit of hindsight, there are many things which are objectively pointed out which should have sent up red flags that something was wrong with the conviction and, therefore, warranted reversal. For example, in a Nassau County case, John Kogut, Dennis Halstead, and John Restivo, co-defendants, served 17 and 16 years in prison before being cleared by DNA, based upon a confession obtained from Kogut under circumstances which should have been obvious to the courts was not admissible as it was obtained after nearly 18 hours of interrogation in which he produced five different versions before the police finally accepted the sixth version. It was so bizarre that
the prosecution actually argued that Kogut gave the different version of the confession because he was trying to set the stage for a future defense for himself that the confession was untrue and coerced.
Their appeals had ran their course and had long since been exhausted. State Courts Appellate Division, State Supreme Court This is the first court that an appellant must go to. It is a very important court in that it is the only state court on the appellate level that is empowered to review questions of fact and of law. Arguments regarding whether the proof showed guilt beyond a reasonable doubt, or whether a verdict was against the weight of the evidence are arguments that can only be entertained here. Despite its important function, the Appellate
Division routinely abdicates its responsibility by rubber stamp denying many meritorious claims, thus damning the wrongfully convicted to continued incarceration, and flushing the rights of everybody down the drain.
The Appellate Division has, for the longest time, been extremely biased against defendants, and pro-prosecution. Rather than being the neutral arbiter that it is supposed to be, it has long been in the business of denying defendants’ appeals, rather than looking at the issues raised on the merits and ruling whichever way the law and the facts require. Thus, for a defendant, whether innocent or guilty, an even more
important issue than the arguments that he or she raises is whether the courts will even objectively consider their arguments with an open mind or will simply automatically deny the appeal. Most o en, the sad result is unjustifiable denial. Even if they decide to mentally engage
the case, there often is a sub-conscious, or in some cases, a not-so-subconscious inclination to try to find a way to rule in favor of the prosecution, and uphold a conviction. This stems from two things: Many of the judges are themselves former prosecutors and tend to
look upon every defendant as guilty, and arguments as mere technicalities that are irrelevant to that issue. Therefore, they must find a way to brush aside, and not act as the neutral arbiter that they are supposed to be, but instead they see themselves as a kind of law enforcement
which is supposed to protect the public by not releasing “criminals.”
Both mindsets are wrong on their part. New York’s now 25 DNA proven exonerations, third in the nation in wrongful convictions, along with other exonerations in this state by means other than DNA, illustrate that the system is flawed and that not every defendant is guilty. Therefore, it is obvious that some innocent defendants will get caught up in the Court’s mentality. Issues of law are not mere technicalities,
but instead are built-in safeguards designed to ensure that trials are fair, thus lending themselves to reliable verdicts. A secondary, but important, function is that in a larger sense they ultimately protect the Constitutional rights and right to a fair trial of all law-abiding citizens.
If an individual defendant’s rights are trampled on and allowed to be by the Court, then this sets the stage for future defendants who are innocent to also have their rights trampled on.
Despite being entrusted with the all-important function of ruling on factual issues which go to the matter of innocence, in many cases, when their opinions are looked at, it is obvious that they were not looking. Often the defendant’s legal issues alone truly did warrant reversal so that it should not have had to come down to DNA or discovering some new evidence. Instead of finding a bulwark in the courts to uphold and vindicate rights, the Court has come to be a higher authority which signs off on their violation.
Often it is easy to spot when they have done the appeals version of a show trial. Some of the hallmarks include: The court not ruling and grappling with the issues raised in the brief but instead writing a perfunctory opinion; and the length of the opinion being short. The Nowicki Opinion, written about several issues ago, is a good example of this. Another sign by which this can be spotted is when, after reviewing the briefs from both sides, the Court makes it sound as though the defendant had no issue at all, that even if something is ruled against, that it was not a close call, and that it was almost frivolous for the defendant’s lawyer to have raised it at all. Yet another sign is when they “Affirm, without opinion.” This type of ruling, in effect, says that they uphold the verdict of guilty and all of the rulings in connection thereto, without finding it necessary to elaborate why. Since the defendant, in appealing to the next court, must demonstrate the prior ruling against him or her was wrong, and how the reasoning was flawed, by having no opinion to argue about this challenge is made even more difficult.
When I appealed to the Appellate Division, my primary issues were my innocence, as established by the DNA which did not match me, and that my Fifth Amendment rights had been violated. The Court found nothing wrong with the way that I had been interrogated despite the lengthy interrogations and the abusive, intimidating tactics employed. Despite the dearth of evidence against me save for the coerced, false confession, the Appellate Division found not only that there was legally sufficient evidence, but that there was “overwhelming evidence of
guilt.” Is there anyone, who now knows all about my case, who can look back at my case when it was at the Appellate Division stage and say that there was “overwhelming evidence of guilt”?
When a defendant loses an appeal in the Appellate Division, he or she has the option of filing a rearguement motion there, asking the Court to reconsider its decision and pointing out how its decision runs contrary to the facts and the law. Should the motion be granted, a new hearing is set and the Court reconsiders the merits of the case and then makes a ruling. Most of the time, these rearguement motions fail. My lawyer tried to reargue my case in front of them, but was denied. Of course, to permit rearguement is tantamount to admitting they erred.
New York State Court Of Appeals
This is New York’s highest court. This court is only allowed to decide issues of law, and not fact. The procedure is that before the Court will agree to hear the merits of a case, it must first decide whether it will agree to hear it. Thus, defendants must file what is known as a Certificate Of Appealability Application, or COA for short. The responsibility that this Court has in addition to correcting injustices, wrongful convictions, and keeping the light of Constitutional Rights; rights accorded through the New York State Constitution, and rights in general which go to the matter of a fair trial, the Court must also make sure that the law is streamlined in New York by resolving questions of law in which different jurisdictions have ruled differently, and to ensure that cases are resolved correctly under the law.
Instead of doing this, however, most of the time, regardless of the merits of a case, the Court sidesteps it and thereby denies justice to a defendant by declining to grant permission. Such denials are usually unceremoniously written by the Court in a short sentence.
In my case, in addition to having serious Fifth Amendment issues, I also had the issue of law in that the trial court, instead of giving the correct charge to the jury, telling them that custody is defined as “whether or not an innocent person would believe that they were free to go”, as required by the case People v Yukl, instead told the jury that it was “As if the police stopped the Defendant on the street, with guns drawn, and taking him against his will to the police station.” Since the issue of custody was related to whether the confession was voluntary,
this issue of law was very important.
Yet the Appellate Division did not overturn my conviction based upon this, instead, summarily dismissing it by ending its opinion, after ruling against me on the Fifth Amendment issue and my innocence issues, ducking all of my other issues, including this one, by saying “We
have examined Appellant’s remaining contentions and find them to be either without merit or unpreserved for Appellate review.” Instead of granting me permission to appeal to them, raising this issue along with the custody issue and other issues of law, they stated that there was no merit in law to justify reviewing my case.
Northern Westchester Bureau Chief
Spring Cleaning And Charitable Contributions
April is “Earth Month” in Westchester County, a time to focus on what the government, organizations, and individuals can do to preserve our planet. Nature Centers, such as the one in Rye, are hosting hikes and presentations to showcase the beauty of our environment. Our County and many local towns and organizations are hosting a variety of events from how to “green” your home, to compost-making, to alternate fuel sources and uses, to inspire local residents to do their part to preserve the environment around us.
The idea behind the original Earth Day was to take a day to clean up our surround-ings. Volunteers would use this day as their annual clean
up of local hiking trails, and to clean out trash and debris from parks and roadways. That idea has expanded to year-round efforts of community groups and organizations “adopting” parks, roads, and trails to maintain them.
Every Spring, local homeowners also do annual cleanups of their own, taking a day or more, to clear out accumulated items that are cluttering
the trails in their daily lives. But with the growing concerns of global warming, homeowners are now reluctant to toss their unwanted items in
the trash. Fortunately, there are a variety of organizations in Westchester where unwanted items can be recycled and put to good use elsewhere.
Churches throughout Westchester host annual “rummage sales” in April and May. Volunteers from these churches take in contributions from local residents, sort the items by type and value (distinguishing designer and “boutique” items), and price them for the sale. Usually, the day of the sale has a festive atmosphere. Seasoned rummage sale shoppers arrive well before opening time (usually 9am) to get “first dibs” on the best items. Experienced parents know they can find children’s clothing for less than $1 an item; homeowners can find furniture and tools for a fraction of their original cost. Shoppers help each other rummage through the items while volunteers serve up coffee and home-baked goods to keep them going. Afterwards, any unsold items are distributed by the churches to local charitable groups while the money raised is used to fund a variety of services in our communities and elsewhere.
One of the largest church rummage sales in Westchester is held at the First Presbyterian Church in Katonah every April/May (this year’s event is held from Monday, April 28, through Thursday, May 3). Deborah-Anne Ferguson, the office manager of the First Presbyterian
Church, spoke to The Guardian about their annual sale. “We start with literally mountains of stuff and volunteers sort for days,” Ferguson said. She remarked that contributions from the community are growing every year. The Katonah sale is so large, they have to split it into two types – an outdoor sale for large items and furniture, and an indoor sale for clothing, books, toys, and household items.
“The outside sale always begins on Monday morning and goes rain or shine,” Ferguson noted. “The whole church gets involved in this event. We have over 100 church members and friends helping us. We provide our workers with food and childcare during the week. I have been receiving calls for this year’s sale for a couple of weeks now. The community knows about our sale and they save their goods to donate to us.” According to Ferguson, their biggest issue for the past couple of years is that they have been getting too many donations and don’t have enough workers to deal with all the stuff. Over the last few years, they have shortened the donation period and still seem to have too much stuff.
Of course, the rummage sales do not end with the sale themselves. The moneys raised are just the beginning. Katonah’s sale last year raised over $29,000. And, according to Ferguson, the church distributed those funds to a host of organizations, among them:
Americares Homefront, a community based, volunteer-driven home repair program that provides home repairs to low-income homeowners;
Bridges to Community, a non-profit cultural exchange organization;
Brotherhood-Sister Sol, a mentoring and leadership group for Latino and African-American youth;
Midnight Run, a Dobbs-Ferry organization that provides essentials to local homeless poor;
Neighbors Link, a Mt. Kisco group that educates, empowers, and employs non-English speaking residents;
Westchester Habitat for Humanity, constructs homes for local poor residents.
Last year’s sale also provided funds for the church itself, local animal care groups, and battered women’s shelters, medical and rehabilitation organizations, and relief and humanitarian efforts in China, the Congo, and Zimbabwe. As was pointed out, their prices are very, very
reasonable which contributes to the success of their sale. There obviously is a great need if they can manage to sell things at 50 cents and $1 and still raise about $30,000 annually.
The need for contributions is growing in our local communities. In addition to local churches, other organizations, such as Goodwill, and the Salvation Army, are reaching out to local residents to contribute their unwanted items. The Salvation Army thrift stores are the mainstay for their Adult Rehabilitation centers and programs. According to the Salvation Army’s annual statement, the thrift stores provide quality clothing, furniture and other goods to the community at bargain prices 100% of the proceeds going directly to the operation of the Salvation Army Adult Rehabilitation Centers, allowing them to be self-sustaining. The men and women involved in rehabilitation work at the stores, allowing them to regain their self-esteem and learn vocational skills The donations offered, and the bargains found at the stores, help others
to reclaim their lives and heal families.
To address the growing needs of those families dependant upon them, Goodwill recently opened an additional store in Elmsford. Goodwill will accept unused or gently-used items such as clothing, appliances, and furniture for resale. According to their annual statement, “Every 56 seconds of every business day someone gets a job, and comes closer to achieving personal and financial independence, thanks to Goodwill Industries and you”.While the need for donated items continues to grow, not all items are eligible for recycling in this manner. Goodwill posts some “do’s and don’ts” for donations on its website. The organization recommends washing or dry-cleaning all clothing to be donated, and the testing of all electrical and battery-operated items to assure they are still functioning properly, as well as verifying that all pieces and parts to children’s games and toys are included. Only items that are reusable should be donated – no torn or ripped clothing. Goodwill also recommends against leaving items unattended outside collection centers and against donating broken, soiled or recalled items.
Before donating any items, one of the questions many local residents ask involves how much of the proceeds of their donations will actually go towards supporting the needy. Some thrift stores are for-profit organizations that may solicit donations in the name of a charity but only forward a small percentage of their actual profits to the charitable organization. In addition to local charitable thrift stores and churches, there are other ways for local residents to clear out their unused items without tossing them in the trash. Craig’s List, a website bulletin board, will post “curb alert” listings for items that residents have left on the street for their trash pickups. A local listing from a Yonkers resident clearly announced: “Attention - sectional couch outside at curb now!!! Home made slip covers, decent condition. Good for basement/game room ....especially if you have kids! Couch at curb now for the taking!!! Will be picked up tomorrow by city......”
The intention of the Craig’s List “curb alert” postings is to cut down on trash. Why have the town/city pick it up as trash if someone else can use it? Many of the Craig’s List posters are so eager to recycle their items they provide photographs and full details, like this current one from White Plains (which had two photos attached): “I’ve got a very nice 3-seat sofa to give away. I’m moving and won’t be
taking it with me. It measures roughly 33 inches wide by 89 inches long. It’s incredibly comfortable. There is a little bit of scuffing around some corners/ edges.
THE CATCH: The one catch is that you’ll need to move it yourself. I’m on the 3rd floor of an apartment building and when I moved it in, I
couldn’t quite get it to fit in the elevator (maybe you’ll have better luck than I.) It took a friend and me about 15 minutes to carry it up the two flights of stairs; not really that big of a deal. You will need a truck and two relatively strong guys.”
Not to be left out in the “trash to treasures” arena, Westchester County posts its own version of Craig’s List on its website http://www.westchestergov.com/ under “treasure hunt”. This week’s postings offered a variety of items from a desk to a baby stroller to a free hot tub! The point of Earth Day is to remind local residents of how we affect our environment and what changes we can make in our personal lives, like reducing trash. The County Government just passed a bill setting up bins at local supermarkets for shoppers to recycle their plastic bags, and has expanded the number of recycling days it offers for residents to turn in their hazardous materials.
Local dry cleaners will accept wire hangars, and garages will take our old engine oil and tires. But recycling our clothing and household items
not only reduces our local trash thereby helping our environment, but also has an economic multiplier effect upon our communities. The proceeds from the sale of that unused ice-cream maker or unmatched blouse can go towards funding a variety of charitable needs in our midst. Simply throwing that ugly purse and those ill-fitting clothes in the trash adds to our landfills, increases our town taxes, and wastes gasoline
adding to our individual carbon footprints. Donating them to our local organizations means those same unwanted items could help fund a rehab center, build affordable housing, or provide a home-repair for a senior citizen, a “win-win” for all involved. The homeowner gets a clean closet, the town gets fewer trash pickups, the local charities get funding, and those in need get the help they require. And, in case you were wondering, as for the hot tub on westchestergov.com – I think it may have already found a new home!
Northern Westchester Round-Up
Elmsford: Assault charges against a local resident, Sandra Calvi Muscente, an Elmsford High School principal, could potentially be dropped pending an agreement before Carmel Town Court. The charges stem from an altercation between Muscente and her husband and mother-in-law. Muscente has been on leave from the Elmsford school since February.
Greenburgh: The two-year-old son of local residents, Rohit and Roshni Karnani, suffered a brain hemorrhage after being shaken by his nanny, Bibi Zaman. Zaman was arraigned on a charge of reckless assault of a child and is being held without bail at the Westchester County jail.
Somers: Local residents voted against an expansion of the Town Library. The local referendum proposed a $9.5 million project to double
the size of the library and provide additional services, computers, and handicapped access.
Yorktown: Local resident, Deborah Lividini, faces charges of serving alcohol to underaged minors in her home. Lividini has been charged with a misdemeanor and will return to court in Yorktown on May 6.
Paul Feiner And Joan Gronowski Get The Ball Rolling
Last Monday’s joint press release from Greenburgh Town Supervisor Paul Feiner and Yonkers City Councilwoman Joan Gronowski informing the Westchester Community that they were putting together a “Citizen’s Committee To Look Into Abolishing County Government,” was music to the ears of nearly every County resident.
Gronowski and Feiner, citing the fact that some 75 percent of the $1.8 billion County Budget are mandates from the state and federal
governments, over which the County, by its own admission, has little, or no control, asked “Do we need to have this added level of bureaucracy?” We believe the answer is a resounding “No.”By recognizing the hardship that perpetuating County Government now poses
to many Westchester households, Gronowski and Feiner are demonstrating that they are truly public servants with courage and principle enough to do what’s right by their constituents. We are particularly pleased that they are two independent Democratic voices who are standing up to the likes of Larry Schwartz, Andy Spano, Bill Ryan, and the multitude of mutual back scratchers that inhabit
148 Martine Avenue, White Plains. Under the diabolical control of Deputy County Executive Larry Schwartz, County government has grown into an insatiable, greedy monster.
County government is, really all about Larry Schwartz & Company. Nothing significant happens without his approval. The County Legislature, for the most part, is merely his rubber stamp. That’s why we have been paying tens of millions of dollars more for garbage hauling, and dealing with a company that the City of New York refused to do business with. Most of the legislators are directly, or indirectly, indebted to Larry for financial aid to their campaigns, for employment of spouses and/or relatives, etc.
Nearly three months ago, the front page of the January 24th issue of The Guardian bore the headline, “Perhaps The Time Has Come,” an issue in which our editorial commentary, In Our Opinion, discussed the “quiet appointment of a $55,000-a-year lobbyist by the Westchester County Legislature.” We declared, “Once again, that not-so-august body of local politicians has effectively dared the hard-working, taxpaying citizens of Westchester to seriously consider the possibility of forcing a referendum to abolish County Government.”
We questioned why it was necessary for both the County Executive and the Board of Legislators to each be hiring their own lobbyists to work the halls of the State Legislature, asking, as were many County taxpayers, if “people who are handsomely paid for their full and part-time positions in County Government, are no longer capable of speaking to their legislators in the Assembly and Senate themselves?” We went on to point out that, in reality, the County Executive and the County Legislators were not lobbying on behalf of their constituents’
interests so much as they were lobbying for their own.
County Government is not particularly well-regarded. There’s a cumulative impression that both the County Executive’s Office,
with their multiple trips to China, and the Board of Legislators, greedily grabbing for all the money they can get, are really all just in it to line their pockets and build their pensions at taxpayers’ expense. The County Government is badly broken. The legislators are no check or balance on the dictates and the power-lust of a Larry Schwartz, particularly with a Democratic super-majority of 13 to 4, most of whose campaigns were heavily supported by an account fundraised for, and controlled by, Schwartz in the name of Andy Spano.
It’s hard to imagine a deputy county executive, anywhere in New York State, more passionately disliked by rank and file county employees than Larry Schwartz. It’s equally hard to imagine a county government that is more obtrusive in the daily lives of its residents, or more interfering in their right to meaningfully vote. At a time when most of the 275,000 households in the County are struggling to make ends meet, paying $3.50 for gasoline, attempting to make their mortgage payments and their kids’ tuition, our election commissioners, part-time employees, Reggie LaFayette and Carolee Sunderland, lobbied for, and got, $28,000 raises, bringing their salaries to more than $155,000 each; twice the salary of their counterparts in Nassau County. One thing we know, however, all that money didn’t insure honest election outcomes.
Paul Feiner and Joan Gronowski will be holding a meeting on April 30 at 7:30pm at the Grinton I. Will Library, 1500 Central Park Ave., Yonkers, to discuss strategy, and to locate people willing and able to research the steps taken by Connecticut residents to eliminate the burden of county government. We encourage concerned citizens from around the County who have had enough, to join the movement. We believe that those in public office will soon recognize the need to join Paul and Joan as their constituents will quickly realize that they are either part of the solution or part of the problem.
The Court Report
By Richard Blassberg
The Enforcement Of New York State’s Domestic Violence Laws By Westchester County And The Need For Legislative Reform - Part II
Editor’s Note: The Court Report presents the second in a two-part series by Attorney Matthew Kletter. Part I appeared in our April 3rd edition.
• • •
By Matthew L. Kletter, Esq.
After one year in the system, Stockholm syndrome begins to set in. The person who has been targeted by DSS (and the local violence shelter) is ordered by a Family Court Judge to participate in “supervised visitation”. That person begins to believe that he/she actually did something so wrong as to warrant being separated from their own children. The children, who are in their teens, begin to believe the same and to refuse to participate in supervised visitation. In the meantime, during the entire period in which “supervised visitation” is taking place, which can last years, the parent subjected to “supervised visitation” is not permitted to explain to their children much of anything about what
happened between their parents (a nominal amount is permitted provided it is unbiased). As a result, the parent who is not in supervised visitation gains a home court advantage, permitting them to brainwash the children even though this, in and of itself, constitutes a form of child abuse. The private agencies that assist with this process routinely write-up the person in supervision for having used poor judgment with his/her children in order to increase their take.
For those who successfully complete the plan prescribed for them, there is ultimate graduation out of the system and resumption of their daily routine, including unsupervised access to one’s children. This can take anywhere from 9-19 months. Those who do not follow the guidelines of DSS and the courts, and fall outside of the system, frequently do not see their children until they reach the age of majority.
The Big Picture
You might ask, what’s really happening here that has caused this? What’s happening is as follows:
The local women’s rights advocates have hijacked the Westchester County Family Court system; they literally have been given multiple offices within the Westchester Family Court building. Federal dollars, $400 million annually, are flooding into the State’s supporting domestic violence organizations of every shape and form, e.g., Legal Services of Hudson Valley, My Sister’s Place, Mental Health Associates
of Westchester, WJCS, the Northern Westchester Domestic Violence Shelter, etc. Such intensive funding of these entities has served to solidify the power base of the local and state women’s advocates.
Judges are issuing TOP’s like candy to avoid risking their own jobs, to protect the County from actions that may occur in the event someone accused of wrongdoing proves to have posed a threat to others. The Judges are not truly exercising independent judgment, deferring as many discretionary decisions as possible to outside professionals.
Professionals in the County are prospering from the Orders granted by the Judges and, as a result, are silently perpetuating the system for their own benefit. There is an inherent conflict of interest that prevents lawyers in the system from acting zealously on their client’s behalf, i.e., they do not benefit by challenging what is happening. There are even lawyers in the County who specialize in filing TOP’s for female spouses They are viewed as champions by their clients and colleagues due to the fact that they know how to play a game that is fixed, fixed in the sense that a woman is almost guaranteed to prevail if she simply strikes first.
The end result is a social service agency supported by a judicial system in such a way that the original intent of New York State’s Domestic Violence Laws has been largely subverted. Enforcement of the New York State Domestic Violence Laws is no longer simply about protecting individuals from imminent harm. It’s become a means for rogue spouses to gain leverage in financial matters that short circuit custody proceedings.
Reform of New York State’s Domestic Violence Laws
Essentially what needs to change is as follows:
• New York State needs to adopt “no fault” divorce laws. A tremendous amount of time and resources are being devoted by the system at large to attend to maneuvers by spouses that are not based in reality but are designed to gain leverage in custody and support proceedings. Apparently, adopting “no-fault” divorce laws in New York State is easier said than done;
• Non-binding mediation should be mandatory prior to all matrimonial “Trials”;
• Temporary Orders of Protection should not be upheld for more than 15 days without some form of “Preliminary Hearing” so that both
parties have an opportunity to state their position before a Judge;
• Temporary Orders of Protection need to automatically lapse in the event a formal “Hearing” does not occur within 120 days of the date they are issued;
• New York State’s perjury laws need to be reformed to provide for stiffer penalties for committing perjury in a Court proceeding and lawyers who are found to be advising their clients to lie in their affidavits should be subjected to disciplinary proceedings;
• A person should not be able to be “indicated” by a Department of Social Services case worker who does not hold at least an MSW;
• Supervised Visitation should not be Ordered unless a preliminary hearing has occurred and the Respondent’s attorney has had an opportunity to cross-examine the Petitioner before the presiding Judge; and
• All expungment hearings should take place within six (6) months of a person being “indicated” or such status should automatically be
modified to “unfounded”.
• Permanent custody proceedings should not be held until the expungment process has been exhausted.
These steps would go a long way in making the system more just.
Based on my experience with the “system”, I believe that most of the people who run the system are good people. It’s thanks to the fairness of the people who run the system that I am where I am today, seeing my children properly (unsupervised). However, I remain very concerned based upon what I experienced. The “system” here in Westchester County, in particular, the Child Protective Services Unit of the Westchester County Department of Social Services and the Northern Westchester Domestic Violence Shelter, each need to be investigated by State authorities to determine the extent to which they are collaborating in conducting gender-biased investigations of citizens here in Westchester County resulting in false “indications” of individuals at the New York State Office of Children and Family Services and
thereby resulting in the deprivation of those individuals Constitutionally protected access to their children and property. New York State’s Domestic Violence Laws need to be reformed so that they are less susceptible to abuse by people who seek to play the system to their advantage.
Westchester’s 2006 Businessperson Of The Year Released From County Jail After 17 Months
United States District Court, White Plains
Judge Stephen C. Robinson Presiding
The Westchester Guardian was pleased to learn, two weeks ago, that Terrence Chalk, Westchester 2006 Businessperson Of The Year, was released on bail from the Westchester County Jail where he had been detained on federal charges since October 31, 2006, some 17 months. Readers will recall that Mr. Chalk’s estranged twin brother Todd is an agent with the Federal Drug Enforcement Agency, with close connections in the FBI, who has come under investigative and judicial scrutiny for his seizure of the assets and estates of their father, their aunt and, most recently, their mother.
Terrence was interviewed over lunch in downtown White Plains several days ago. Asked how it felt to finally be out of jail, he exclaimed, “It
feels very good. It’s unbelievable.” When asked about what’s been happening with his parents’ and aunt’s assets, allegedly confiscated by his twin brother Todd, Terrence explained that their older brother, Al Chalk, apparently concerned with Todd’s activity, had hired a New York City Attorney, Joseph Gruner, who is now representing all three estates. Apparently there has been some concern by brother Todd, as Terrence explained, “Todd has transferred the title to her house back into mom’s estate.”
Additionally, he told The Guardian, “Todd was summoned to appear in Queens Supreme Court by Attorney Gruner to explain his disposition of dad’s estate, worth about $250,000.”
Contrary to previous information, Terrence told us he was not charged with identification theft. He explained, “My brother’s involvement in this case skewed the investigative team’s judgment.” Mr. Chalk explained that his case, “is now in the motions phase.” He went
on, “We are not seeking suppression. We are asking, where’s all the data?” He explained, “There were two databases, one of which recorded all of my and my employees’ activities. That database is nowhere to be found.”