Thursday, January 15, 2009
The Court Report
By Richard Blassberg
Framed Former County Correction Officer
Remanded To Jail, Awaiting Sentencing
United States District Court, White Plains
Judge Kenneth M. Karas Presiding
Last Tuesday, January 6th, former 12-year veteran Westchester County Correction Officer Paul M. Cote, accompanied by some 35 friends and family, was present in Federal Court, White Plains, before Judge Kenneth M. Karas, responding to a motion by Assistant United States Attorney
Cynthia Dunne seeking to remand him to the Federal Detention Facility, awaiting sentencing, having been convicted by a federal jury for using excessive force against inmate Zoran Teodorovic, 46, thus violating his civil rights, in an incident at the Westchester County Jail, October 10, 2000.
Cote, who was convicted of second-degree assault by a jury in Westchester County Court, based on the same set of facts, serving three months in the Putnam County Jail and emerging November 27, 2001, had filed a civil rights lawsuit, claiming First Amendment retaliation on Wednesday, December 31, 2008. That complaint, naming now-Commissioner of Corrections for Westchester County Joseph Spano, numerous high-ranking
corrections officers as well as the Government’s chief Prosecution witness, Sergeant John Mark Reimer, and three jailhouse snitches, was gathered and assembled by civil rights attorney Jonathan Lovett.
Attorney Lovett was present on Tuesday, seated at a separate Defense table behind Cote and Attorneys Bennett Epstein and John Patton, who had represented Cote at the federal trial in 2006, and whose motion, seeking a Judgment of Acquittal, was granted by Trial Judge the late Charles L.
Brieant, April 4, 2007, but reversed by a three-judge panel of the Second Circuit Court of Appeals late last year.
Judge Karas began the proceeding, announcing, “I have read the letters from the Government and from Mr. Epstein.”
There then followed opening remarks by Attorney Epstein, addressing Assistant United States Attorney Cynthia Dunne’s application to incarcerate Paul Cote prior to sentencing, reviewing for the Court’s information, Defense submissions and a brief overview of the Defense position relative to the Government’s. Epstein then told the Court, “There’s one more submission by another attorney who is present in Court.”
Judge Karas responded, “I have sent his petition to the wheel. Mr. Lovett’s papers.” He went on, “With all due respect to Mr. Lovett; and
I love him, I do not believe that what Mr. Lovett has to say is relevant to what the Government is saying.”
There followed several minutes of discussion between Epstein and Karas with respect to the Federal Rules of Criminal Procedure, 18 U.S.C. Section 922, that sets the conditions which control the options available to a federal court in determining how it may handle persons in Cote’s situation
under Clauses One and Two. Epstein cited a specific case, telling the Court, “The Second Circuit view of 922 Crimes is out of step with most of the other Circuits.”
He then introduced a case off the Third Circuit blog which brought about some humorous remarks from the Judge about spending time on the blogosphere.
Judge Karas, turning more serious, engaged Epstein, suggesting, “Let’s assume the Second Circuit has just gone completely off the reservation. I have to go with them, don’t I?”
Epstein shot back, “But, Your Honor.”
Karas was still at it, saying, “Speaking of the Second Circuit, in the Acosta case the Second Circuit says...it breaks down 242...anyone who, under Color of Law.” He went on, “We express no opinion as to whether, if someone violates the second clause of 242, have they not committed a crime of violence?”
Epstein, not wanting to get boxed in, came back with, “My view is you can bifurcate the statute.”
Karas next cited two cases, and then said, “Something that results in bodily injury doesn’t necessarily imply a crime of violence.”
He then laid out a hypothetical that comported with Epstein’s argument and asked if it is “categorically a crime of violence.” He quickly added, “But that’s what the Supreme Court says I have to take out.” At that point lead Prosecutor Cynthia Dunne broke in with, “We’re looking at the right to be free from cruel and unusual punishment; but, we are talking about excessive force.”
Judge Karas came right back with, “But that’s based upon the facts of the case; which violation we’re looking at.” He then speci-fied, “Clause One: Bodily injury, Clause Two: Dangerous weapons.” Going back to a previously cited case, Acosta, he said, “Acosta deals with cops who robbed drug
dealers.” He went further, “You’re getting away again from the categorical approach.
That approach says you must look at what happened as defined by Congress.” He then laid out a DWI example. Dunne responded, indicating she
was not, “Up on DWI state law,” to which Karas joked, “Mr. Epstein’s up on Third Circuit bloggings. What are you doing in your spare time?”
Turning more serious, the Judge, continuing to address Dunne, said, “I understand that the way the case was charged and tried, and the jury verdict, that you view it as a crime of violence.
I don’t see it that way because we are not supposed to rely on the facts as alleged.” He continued further, “I agree with Mr. Epstein, that one does
not go through the transcripts or the trial looking for crimes of violence. The Second Circuit made it clear in Acosta that it was aligning itself with the Fifth Circuit, and, under Acosta, I don’t think I have any choice. It is appropriate to say he [Cote] was convicted under the Second Clause, and I must remaind Mr. Cote to jail.”
Up until that point, it seemed “Mr. Cote, I am sorry, but I am going to remand you until sentence.” to this observer, and probably to most of Paul Cote’s supporters in the Courtroom, that Judge Karas had been making a pretty fair argument for leaving Paul free in the community until his sentencing; which would explain the gasp heard from many as he uttered the words, “I must remand Mr. Cote to jail.”
Nevertheless, Mr. Epstein continued to argue, “This case is in a unique posture because of the passing of Judge Brieant. The Second Circuit didn’t resolve this case. It would be highly relevant to determine who caused the injury to Mr. Teodorovic.”
Judge Karas responded, “It seems to me you would want to. I am prepared to read the entire transcript of the trial. I am happy to read whatever
you want, including your Appellate briefs.”
Perhaps briefly reflecting upon what he had agreed to do, Karas then said, “This is all going to take a great deal of time.” He then proceeded to set
sentencing for May 8th at 2pm, telling Paul Cote, “Mr. Cote, I am sorry, but I’m going to remand you until sentence.”
Judge Karas is a very bright, sensitive and compassionate judge. Having not tried the case, but nonetheless being the one who must sentence Defendant Cote, he is temporarily operating at a disadvantage, not being fully familiar with the testimony or the circumstances that actually brought about the injury to, and ultimate death of, a homeless, belligerent, mentally-ill inmate of the County Jail, Zoran Teodorovic.
Neither is the Judge aware of the First Amendment retaliation and the behind-thescenes prosecutorial misconduct in both state and federal courts
that resulted in the charging, prosecution and conviction of a 12-year veteran correction offi-cer, Paul Cote, as detailed in the civil rights complaint filed with the District Court on December 31, 2008.
What Judge Karas does know, however, is that the late Judge Charles L. Brieant was nobody’s fool, and, that he had every good reason, having conducted the pretrial proceedings, and presided over the trial, to reverse the jury verdict as “inconsistent with the evidence,” as he did.