Westchester Guardian/The Advocate.

Thursday, December 11, 2008

The Advocate
Richard Blassberg

It Is Time To Awaken And Re-Energize
The State Commission Of Investigation

Mention the State Commission Of Investigation to even a knowledgeable, voting resident of New York State, and he or she is most likely to respond with a blank stare or with, “What commission?” And, that, in part, involves the essence of our public integrity problem in New
York. The people we put into office, particularly legislators and judges, are essentially unaccountable to all but their peers, in reality.

The sad truth is that legislators, state Senators and Assembly members, as well as judges at every level, from local, town and village justices to the State Court of Appeals, are subject, unless under federal criminal investigation, to nothing more substantive than peer review. In the case of legislators, it’s the Legislative Ethics Commission, comprised mostly of legislators, and which simply does not publicly expose legislators’
wrongdoings.

Then there is the New York State Commission on Judicial Conduct, “overseer” of the Unified Court System, empowered by the State Constitution;
in fact, mandated under Judiciary Law Section 44.1 to investigate all complaints brought against judges. The statutory language that brought the Commission into existence was clear and unequivocal: Judiciary Law Section 44.1 requires the commission “to investigate each judicial misconduct
complaint it receives except where it determines that the complaint, on its face, lacks merit.” However, the Commission’s self-promulgated
operational rule 22 NYRR Section 7000.3 turned the Commission’s mandatory duty to investigate into a “discretionary option” unbridled by
any controls.

As the result, despite the highminded intent of the legislation and its memorialization within our State Constitution, both the Legislative and
Judicial branches of our State Government remain constructively without formal accountability. In the case of the courts, that which
was made mandatory by amendment to the State Constitution, that which was brought into being, proceeded to make, what they “shall”
do something “discretionary” under their rules of operation, in effect, turning what they “must do” into what they “may do” when presented
with a complaint about the conduct of a judge.

And, make no mistake, it is no mere collegiality we are speaking of. It is the wholesale abandonment of the public’s interest in the integrity and truthfulness of our courts. There is a reason our State Court System has degenerated to the level of corruption and dysfunction it has. There is a reason the Matrimonial Part of State Supreme Court is mostly money-determinative, a charade in which, “the best interests of the child” and “equitable distribution of marital assets” are espoused, but the outcomes are mainly in favor of the “monied spouse.”

In case after bloody case, it makes no difference what the facts may be, how wrong -headed and destructive the conduct of the monied spouse
might have been, and may continue to be, they will prevail. They will “grease” the law guardians and the forensic psychologists who are somehow connected to the law clerk who actually writes the decision the judge is all too indifferent to attach any more than his or her signature to.

There is a reason our Family Courts are often presided over by judges the likes of Sarah P. Schechter, who violated every relevant aspect of New York State Family Law in her evil separation of Jing Kelly from her son Tristram, soon to turn 8, for the last six years of their lives.

Schechter, an Ed Koch political appointment in 1982, conspicuously biased against Jing, a Chinese-American citizen, gave standing to the family of a deceased, addicted and abusive former spouse, contriving with them ex parte while keeping Jing Kelly’s only child falsely imprisoned 3,000 miles from her, in California. This, though there was never so much as an allegation that she had ever caused him any harm or neglected him at any time.

The power wielded, the grievous injustice dished up in far too many of our Family Courts has been of scandalous proportions for decades. So-called public and private child protective case workers, and Legal Aid attorneys, are little more than all-too-willing collaborators in such scenarios, as are court-appointed law guardians. Such judges are so out of control and unfearful of consequences that they will disobey the rulings of the Appellate Division, and even a mandamus from that court as well. That was precisely what Schechter got away with when directed by the Court above to “immediately commence visitation” three years ago.

The Criminal Courts are a problem of a different sort. For many decades, more than 95 percent of all criminal indictments in the downstate area have been disposed of by plea bargain, the notion of a “search for the truth,” a “protection of the innocent and prosecution of the guilty,” by prosecutors, is clearly strained and made a mockery in many counties, Westchester prominent amongst them.

Once installed, district attorneys tend to perpetuate their term in office, their hold on power, much of their decision-making is focused on self-promotion, and enhanced by various forms of prosecutorial misconduct demanded of their assistants. Concealment of exculpatory information, Brady and Rosario materials, subornation of perjury, coercion of witnesses, tampering with evidence, and confabulation of facts are but a few of the devices at their disposal. And, they have little to fear if caught and exposed.

There is a natural bias in favor of prosecutors seen day after day by trial judges as opposed to defense attorneys who may be seen only occasionally. Most judges in Westchester, and throughout the State Court system, were prosecutors earlier in their careers. Some never leave it behind, and come off, case after case, as the third prosecutor in the room. The judicial process in the Criminal Court is largely contrived to produce plea-bargaining, to reduce the work load of judges; a system clearly stacked against the innocent accused.

If convicted, the innocent face an appellate process far more concerned with preserving convictions than with bringing about justice and fundamental fairness. And, there is no question that defendants with money and/or the right political connections, receive far better treatment than those compelled to use Legal Aid, particularly in Westchester, but not because Legal Aid attorneys are inferior by any means, but rather, because of the system of attorney rotation from one court appearance to another.

Unfortunately, the overwhelming majority of legitimate complaints lodged with the New York State Commission on Judicial Conduct, fall on deaf ears. In the Jeffrey Deskovic case, where there wasn’t one shred of material evidence to connect a 16-year-old schoolboy to Angela Correa, a 15-year-old victim of rape and murder, and, in fact, it was established eight months before trial that his DNA and hair follicles did not match those found in and on his alleged victim, the judges of the Appellate Division, 2nd Department, repeatedly referred to the “overwhelming evidence of guilt.” The State Legislative Ethics Commission is essentially a peer review board, little different from, and no more motivated, to expose or bring
down fellow legislators, than the Commission on Judicial Conduct is, to deal with, a corrupt, wayward judge. What greater example of “Hear No Evil, See No Evil,” than the case of long-time Queens Assemblyman Anthony Seminario, who is alleged to have managed to “sell his office” to
any number of bidders for a total of a half-million dollars until finally indicted by the United States Attorney’s Office for the Eastern District of New York.One wonders how state legislators, the likes of Senator Vinnie Liebell become very wealthy while spending 20 or 30 years in State
Government. Clearly it doesn’t come from making full public disclosure of all of their other sources of income in addition to their legislative
salaries. On the other side of the aisle, State Sen. Ruth Hassell-Thomson, representing mostly working-class and poor families in the Bronx and lower Westchester, likewise displays a despicable and reprehensible attitude with respect to publicly revealing all of her additional sources of income, outside of her legislative duties.

One wonders what such state legislators have to conceal? The simple fact of the matter is that neither our judges nor legislators are presently, effectively under independent agency scrutiny; and, that is where the State Commission of Investigation must wake up from its long slumber and step in. The S.I.C., as it used to be known, back in the days when it actually was proactively involved in “investigations of corruption, fraud and mismanagement in New York State and local government”, as self-described at their website, was once an agency respected and feared by those holding public office.

In their online introductory statement, the State Commission of Investigation describes its functioning thusly: “The Commission’s purely
investigative character enables it to address problems and suggest legislative and administrative remedies beyond the jurisdiction of other agencies. When evidence of criminal behavior is developed during an investigation, it is referred to an appropriate prosecutor.” The Commission’s public statement continues, “Of equal importance is the Commission’s role as a sunshine agency. In an effort to focus public attention on particular
problems of local or statewide importance, the Commission has the authority to conduct public hearings and issue public reports. As a result, throughout its existence, the Commission’s recommendations have often been the catalyst for the passage of new laws and changes to existing laws. In investigations of a more local character, the Commission’s findings may be reported directly to complainants, subjects of investigations, and authorities with the power to remove or sanction the officials involved.”

The Commission’s statement also states, in relevant part, “The Commission’s statewide investigative powers extend to more than 80 state agencies, divisions, boards and authorities, as well as over 1600 political subdivisions of the State, including the State’s 62 counties and more than 500 villages, 900 towns, and 60 cities. Its broad investigative jurisdiction also includes thousands of school, water and sewer districts throughout the State. In most circumstances, outside of the local district attorney, the Commission is the only independent investigative body in the State with the power to review and investigate allegations of fraud, waste, corruption and malfeasance. Unlike a local prosecutor’s office, the Commission, through its “sunshine role”, has the authority to address these types of allegations outside the traditional criminal justice forum and highlight these governmental problems for the Governor, the Legislature, and the public.

The Commission is unique in that it is the only State agency with both investigative and sunshine mandates.” Given their own description of
their mandate and their mission, the State Commission of Investigation would appear to be that body of State government best equipped to deal with the corruption, malfeasance and failures within both the Legislative and Judicial arms of New York State government. And, we would hope that Governor Paterson will shortly arrive at that same conclusion and press that agency into action.