Westchester Guardian/The Court Report.

Thursday, September 25, 2008.

The Court Report
By Richard Blassberg

Back In Judge Karas’ Court
Unscheduled Pre-Trial Hearing For Deskovic
United States District Court, White Plains
Judge Kenneth M. Karas Presiding

Tuesday afternoon of last week, Jeffrey Deskovic, now 35, a free man having been exonerated after 16 years in state prison for a rape
and murder of a high school classmate that DNA testing eight months before trial had shown he was innocent of, was back in United States District Court with Judge Kenneth M. Karas for further pre-trial proceedings. Including an appearance two weeks earlier before Magistrate Judge George A. Yanthis, it was the fourth pre-trial session in open court in regard to the civil action brought in Mr. Deskovic’s behalf by the law firm of Cochran, Neufeld and Scheck of New York City.

This latest, unscheduled, appearance was necessitated by a communication to Judge Karas from Attorney Stuart Kahan, representing
County of Westchester former Deputy Chief Medical Examiner Luis Roh, and former Westchester Assistant District Attorney George
Bolen, apparently wishing to make a motion to the Court. Judge Karas opened the session in his usual informal, but measured, fashion, telling the several attorneys representing numerous co-defendants, “Mr. Kahan said pretty please.”

Kahan acknowledged that he had a fundamental issue with respect to George Bolen’s absolute immunity. Karas went on, “I thought we covered this before. Bolen understood that absent evidence of... I understand that there may be a difference between what was said and what was done. How can there be absolute immunity?”

Attorney Kahan replied, “One of the areas I have a problem with is Bolen’s discussions with Roh.”

At that point, Attorney Jennifer Loren, representing Mr. Deskovic, and accompanied by Attorney Barry Scheck, asked, “Why isn’t that investigation?” Kahan came right back insisting it was trial preparation. Loren then stated, “On that point, I would refer to paragraphs
124 and 125.”

Judge Karas responded, “It seems to me that by the very things alleged Bolen would say No, no, no, this isn’t investigation, this is trial prep. But that’s not what is alleged here, and, we have to live with what’s alleged.” Karas went on, “The purpose of these pre-trial conferences is not to deal with motions that haven’t been made, but to avoid the waste of clients’ and lawyers’ time and money. A plaintiff doesn’t get to just use labels to avoid...”

Mr. Kahan came back with, “I did not find any cases within the Second Circuit, but from the Ninth Circuit.” Karas then brought up Jenkins v
City of New York, 1999 in which the judge found absolute prosecutorial immunity, even for perjurous conduct. Attorney Loren offered, “Insofar as there is a concern, even at the pleading stage, it is certainly true that the acts did go beyond the labels. The most inopposite case we are aware of is Buckley.

Judge Karas, apparently feeling the need to reclarify, and set the record straight, in a manner of speaking, declared, “The purpose of these
conferences is not to prevent the filing of motions.”

Loren then said, “To be fair, we are not attempting to prejudice his client’s rights.” (Referring to former ADA George Bolen.) Karas came back with, “He hasn’t said Well you know, what Bolen was doing was just trial prep.”

Loren then responded with, “To the extent that Mr. Kahan was indicating that he was contemplating other discussions with Dr. Roh, it
appears to be the case that there was additional conversation with other witnesses. There was an attempt to regroup and find another theory of the case.”

Karas then attempted an analogy, saying, “If in preparing a bank trial case a prosecutor sits down with all of the tellers.” Attorney Loren then said, “Bolen was Okay, I’ve got this bad information; now what do I do with it?” Karas then declared, “I’m not unsympathetic,
the facts here do not...” At that point, Barry Scheck, addressing a case from the Second Circuit cited by Karas, Jenkins v City of
New York, 1999, which supposedly supports the notion of absolute immunity for prosecutors under most conditions, observed, “The gravamen in that case sounds as though it was Suborning Perjury before the grand jury. We’re not even pleading gross perjury before the jury trial.”

At that point, Judge Karas addressed Stuart Kahan with, “You and I have had many cases together, and, we will have many more together.
You want to file a motion that’s schlock?”

Kahan quickly replied, “I’m not saying I want to.”

Karas then asked, “So when can you get it in?” Kahan replied, “October 17th.”

Analysis:

Mr. Kahan is attempting to suggest that his client, former Westchester Assistant District Attorney George Bolen had absolute immunity
with respect to his conduct in the Deskovic case because his activities in which he was conspiring with Dr. Luis Roh to come up with a
theory and back up paperwork that would overcome the fact that Jeffrey Deskovic’s DNA did not match the DNA found in the victim’s vagina, were activities that he chooses to label “trial preparation”.

Sam Israel Guilty Plea
Postponed, Again

The mood in the courtroom prior to the proceedings seemed almost celebratory. Samuel Israel III, who had faked a suicide off the Bear
Mountain Bridge to avoid serving a 20-year sentence in connection with a $450 million investment fraud, was expected to plead guilty for having absconded on June 9. He had expressed his willingness a few weeks ago to plead guilty but was kept from doing so, when he expressed to District Court Judge Kenneth M. Karas, that he was functioning at 60 to 70 percent of his competence because of his methadone withdrawal treatment from narcotic pain killers. Israel’s attorney, Barry Bohrer, immediately asked for a sidebar upon the opening of the hearing. The bench conference, which lasted about eight minutes, was a dialogue entirely between Bohrer and Judge Karas, as Israel remained seated at the Defense table.

Returning to the Defense table, Bohrer said, for the record, “As we indicated at the bench, I would suggest that it would be better to adjourn
the proceedings to another day, at which point we could reassess the situation, and at which time we would plead guilty.”

Judge Karas then said, “If the Government has no objection.” To which Assistant United States Attorney Sarah Krissoff responded, “The
Government has no objection.”

Karas then instructed her, “Ms. Krissoff, if you could see to it that Mr. Israel is getting the medical treatment he requires.” Krissoff acknowledged the request affirmatively.

The Judge then said, “It is certainly in the interest of justice to permit Mr. Israel to recover completely.” Upon emerging from the Courthouse, Attorney Bohrer briefly faced reporters. The Guardian inquired, “The last time you were in court you announced a rather accelerated medication reduction schedule. Is it possible that schedule was too optimistic?”

Attorney Bohrer responded, “That’s a possibility.”