Westchester Guardian/Sam Zherka/The Court Report.

Thursday, October 23, 2008

The Court Report

By Richard Blassberg

Building At 450 Saw Mill River Road, Ardsley,Purchased By County Government And Subject Of Taxpayer Lawsuit

Zherka Brings Taxpayer Suit In Federal Court Against 11 County Legislators

Last Wednesday afternoon, Oct. 15th, Guardian publisher Sam Zherka, accompanied by Attorney Jonathan Lovett and Greenburgh Supervisor
Paul Feiner, as well as several supporters, held a press conference in front of the County Office Building at 148 Martine Ave., White Plains to announce a federal lawsuit brought by Zherka, against 11 County Legislators who had passed legislation and signed off on the purchase
of the building and property at 450 Saw Mill River Road, Ardsley, in the Town of Greenburgh. The 85,000-square-foot leaky, moldy, old building, had stood vacant and unsaleable for more than five years, and its purchase was seen by most observers, as a reward to owner Jon Halpern, a friend and generous campaign contributor to Andy Spano.

Back on July 8th Zherka, one of ten speakers who addressed the Board of Legislators prior to their vote, had told them, “I want to know the urgency of spending $13 million.” He warned them that he would challenge their action in court if they proceeded to pass the necessary enabling legislation. Wednesday’s press conference was by way of informing County residents that he had made good on his warning and,
in fact, had filed a Taxpayer’s Lawsuit in United States District Court the previous Friday.

Asked why he had filed the suit, Zherka told reporters, “If we don’t step up to the plate, we will all be driven from our homes. We are talking about the economic crisis and problems with banks. But, no one is discussing predatory government.”

Attorney Jonathan Lovett told reporters , “The Legislators, taking their orders from the County Executive, split the bond issue,
more than $13 million in total, so as to sneak under the referendum law.” Under County law, any proposed capital expenditure that exceeds
$10 million must be put to a referendum. Lovett described the Legislators’ actions as “a calculated waste of taxpayers’ money.”

Responding to another reporter’s question as to how he knew what was on Legislators’ minds, Lovett declared, “If the County Legislators had used their brains, this lawsuit would not have been necessary.”

Greenburgh Town Supervisor Paul Feiner, a leader in the movement to eliminate County Government, stated, “This purchase was a blow to the Town of Greenburgh because it took the property off the tax rolls. The County Legislature abused their authority in voting to approve a sweetheart deal.”

Westchester Guardian/Jeffrey Deskovic.

Jeff Deskovic

Misidentification: The Leading Cause
Of Wrongful Convictions

Misidentification is the leading cause of wrongful convictions. Many people would instinctively think that evidence in the form of a victim who got a look at the perpetrator would be a most reliable form of evidence. After all, wouldn’t they want the person who committed the crime against them to be apprehended? Yet DNA has shown that eyewitness identification is the least reliable of all evidence.

Out of the now 220 DNA-based exonerations, misidentification was the cause of wrongful conviction in 75% of the cases. In New York’s 23 DNA-proven wrongful convictions, 13 of them were caused by misidentification. Factors such as the amount of time that a victim views the perpetrator, lighting, fear, and trauma, all may contribute to the unreliability of an identification. A short viewing period under stressful conditions, coupled with trauma, obviously is less reliable than a more prolonged viewing. Yet, a lengthy viewing offers no guarantee of
accuracy. In the case of Ronald Cotton, who served 10½ years in prison in North Carolina before being proven innocent by DNA, the victim, Jennifer Thompson Canino, viewed her rapist for quite a long time as she was being raped. Still, she misidentified Cotton, and did not even recognize her actual rapist, Bobby Poole, when she saw him, though he was proven such by DNA.

Psychological dynamics may also come into play. There is a concept in psychology known as schema, the theory that each of us has a notion about how things work. When confronted with a situation in which all of the details are not necessarily clear, the mind tends to draw deductions and conclusions to fill in the gaps, to complete the gestalt. This phenomenon is believed to take place frequently during attempts
to recall what a perpetrator looked like when only sketchy details are available.

It is not that victims are lying; it can be difficult even to distinguish what they actually remember from memory as opposed to the filling in of missing details supplied by the mind. Misidentification not only takes place in a police lineups, but through a variety of other media, such as through photo arrays, ‘show ups’, and courtroom identifications.

The Innocence Project has reported working on cases involving misidenti-fication, in which: A witness made an identification in a “show-up” procedure from the back of a police car hundreds of feet away from the suspect in a poorly lit parking lot in the middle of the night; A witness in a rape case was shown a photo array where only one photo – of the person police suspected was the perpetrator – was marked with an “R.”; witnesses substantially changed their description of a perpetrator (including key information such as height, weight and presence of facial hair) after they learned more about a particular suspect; Witnesses only made an identification after multiple photo arrays
or lineups – and then made hesitant identifications (saying they “thought” the person “might be” the perpetrator, for example), but at trial the jury was told the witnesses did not waver in identifying the suspect.

A ‘show up’ is defined as when a victim is brought to view a suspect who is being detained by the police by himself. This is one of the least reliable methods of identification, because a natural thought that most people will automatically have is that “Obviously, this is the person who the police believe committed the crime; otherwise they wouldn’t have him in custody.” It lends credibility and confidence to the
identification, if only in the mind of the victim.

One of the more theatrical trial tactics that prosecutors use are in court identifications. The prosecutors typically asks the witness, “And do you recognize the person in court today?” And, the victim invariably points to, and indicates, the defendant. Were the stakes not so high, it would be laughable. Everybody knows from television and the movies that the defendant sits at the table with the attorney who is not
talking to the witness. Therefore, what is the probative value of such an identification in an attempt to determine guilt or innocence?

One of the most egregious cases of misidentification is the case of Anthony Capozzi, who served 20 years in New York for two counts each of Rape, Sodomy, and Sexual Abuse. He was misidentified by three people. The facts of his case are taken from The Innocence Project’s website: Biological evidence stored for two decades in a hospital drawer was the key to the 2007 exoneration of Anthony Capozzi, a Buffalo,
New York, man who spent 20 years in prison for two rapes he didn’t commit.

DNA tests in March 2007 showed that another man, Altemio Sanchez, actually committed the attacks for which Capozzi was convicted. Sanchez was convicted in 2007 of three other murders and is currently serving life in prison. Capozzi was charged with three similar rapes and went to trial in 1987. The rape victims told police their attacker was about 160 pounds – Capozzi weighed 200 to 220 pounds. None of the victims mentioned a prominent three-inch scar on Capozzi’s face. All three victims identified Capozzi in court as the attacker. He was convicted by a jury of two rapes and acquitted of the third. He was sentenced to 35 years. Biological evidence was collected from two victims in 1985 and stored in a hospital drawer. When the evidence was tested in 2007 at the request of Capozzi and his attorney, sperm collected during the rape examinations of both victims matched the profile of Sancehz – and proved that Capozzi could not be the rapist.

Capozzi was exonerated and released from state custody in April 2007. Clearly, there is a dire need for a variety of reforms in the area of identification. Those reforms include, but are clearly not limited to, the following Sequential Lineups and Photo Arrays: Allowing victims to view suspects either in a lineup or photo array one at a time rather than all at once, would allow them to focus more on each person. In
addition, when a person views multiple individuals simultaneously, they often try to identify the person who most closely resembles the perpetrator rather than trying solely to recall from their memory.

Resemblance of choices: In some of the wrongful conviction cases the defendant was misidentified because he stood out in some way or another. Perhaps he was significantly taller than the other people, or was the only one of a different race. When a person really
stands out, it makes the lineup or photo array unduly suggestive and renders the identification virtually worthless. Victims must be told that an investigation will continue whether or not they make an identification. This way victims won’t feel pressured to make an identification out of fear that the perpetrator will escape justice.

Victims must be informed that the perpetrator may not be in the lineup or photo array: This will prevent the victim from having undue confidence that their assailant is present. It will make them relax more, and will drive home the idea that the pool of potential suspects is larger than that which is gathered together, rather than causing them to focus only on those few. The Double Blind Method: The officer, or
officers, conducting the photo array or lineup should themselves be in the blind as to who is suspected, so as to prevent inadvertent cues or clues from being given to the victim. Videotaping the lineup or photo array: This would help ensure the integrity of each process and would facilitate the review process rather than its being determined by what the officers present are able to recall and testify to. It would also prevent important details from being left out.

Victim Confidence Statements: Victims identifiers should be asked, following an identification, “On a scale of one to ten, how confident are you in your identification?” Hopefully, this will help put courts and juries in a better position to evaluate the accuracy and reliability of an identification. In conclusion, misidentification has been the cause of many wrongful convictions and, as such, demands urgent legislation. In addition to the above suggested reforms, there are other considerations which legislators might think about.

Police officers who are dedicated to the truth and who want to do their job to the fullest, should refrain from congratulating a victim upon picking out a perpetrator, or, for that matter, making any comment on his or her perceived accuracy in selection. Such congratulation
can only serve to reinforce a victim’s confidence in what, in fact, may be a misidentification.

At trials in which the principle issue that is being litigated involves whether or not an identification is accurate, it can be extremely difficult for a defense attorney, during cross examination, to elicit from the victim their actual thoughts on the accuracy of their identification if, in fact, they have been bolstered by post-identification comments.

‘Show-ups’ should be banned, because a victim seeing a suspect in handcuffs and/or in a police car is clearly an unduly suggestive circumstance. Additionally, the practice of in-court identification should likewise be banned, because it is much ado about nothing, since everybody knows who the defendant is in a courtroom.

It would be easy for a witness to embark upon a similar line of thinking that all defense attorney’s must overcome with juries; essentially, the “common sense” thought; “Obviously, if he didn’t do it, they wouldn’t have arrested him for it.” In addition, by the time that a trial takes place, the defendant’s picture would have appeared on the news and in newspapers, further reinforcing the witness’s confidence in the identifi-cation that he has made.

According to The Innocence Project, the following jurisdictions have implemented the “Sequential Double Blind” as standard operating procedure: the State of New Jersey; Suffolk County, Massachusetts; Northhampton, Mass.; Madison, Wisconsin; Winston-Salem, North Carolina; Hennepin County, and Ramsey County, Minnesota; Santa Clara County, California; Virginia Beach, Virginia. Additionally, the states of North Carolina and Wisconsin have implemented the Sequential Double Blind method statewide.

While these jurisdictions are to be commended, the public-at-large should not have to rely upon voluntary adoption in order to have a more accurate criminal justice system. There will always be places refusing to implement them, just as right now there is only a handful of places that do voluntarily implement some of them.

Instead, we need lawmakers to take a strong leadership positions and to pass the necessary legislation. Until such reforms have been written into law, each and every citizen remains at risk of being misidentified, and thus wrongfully convicted.

Westchester Guardian/Catherine Wilson.

Thursday, October 16, 2008

Catherine Wilson, Bureau Chief
Northern Westchester

Main Street Americans Had A Hand
In The Current Economic Crisis

As Congressman Eliot Engel noted last week, “New York is affected by the recent economic crises the most”. Local residents are stunned by recent events; worried about their jobs, their investments, and their pensions.

So far the $700 billion bailout is having minimal effect; stocks are still tumbling, falling at rates rivaling those of the Great Depression. Individuals already feeling the pinch from rising food prices, skyrocketing energy costs, increasing taxes, and lower home values, are now watching their life savings evaporate on Wall Street.

Many Westchester residents are being squeezed at both ends. In addition to higher living expenses and falling investments, they also face job and salary cutbacks. Amongst the local residents lucky enough to anticipate any raises in income in the next few years are those with a County CSEA contract. However, with less money to go around, even those government contracts may be subject to renegotiation.

Taxpayers are unlikely to vote for politicians who support ‘lavish union benefits’ when they, themselves, no longer enjoy the same. A voter backlash against corporate greed is already in progress on the national level as Barack Obama rises in the polls and John McCain declines. Closer to home, as Westchester now has the dubious distinction of having the highest property tax rates in the Nation, a backlash of equal magnitude in local elections is, likewise, developing.

But who should the backlash be aimed at? Is the current economic crisis solely the fault of corporate executives and politicians? Or did they have help? Apparently they did, from many of our neighbors. Listening to Lehman Brothers Chief Executive Officer, Richard Fuld, testifying before the
House last week on the exorbitant compensation packages given to the company’s executives, even as the firm was failing and filing for bankruptcy, local residents could be forgiven for assuming that the fault for the current economic debacle lies with the Villains on Wall Street.

But that is only one side of the equation. Missing from the political debates and media reports on this issue is the role the American public has played in this crisis. As The Guardian noted last week, the crisis stemmed from the deregulation of the banking industry allowing it to offer risky sub-prime mortgages. The ‘No-Money Down’, ‘Low Introductory Rates’, and ‘Variable Rate’ mortgages, as it turns out, were all junk products. But greedy Wall Street and banking executives would not have profited from offering these mortgages if no one was willing to buy them.

Why, then, did Americans ignore practical money management guidelines and purchase mortgages that allowed them to overextend themselves
and their budgets? What part of never live above your means did so many of our neighbors not understand? The answer is, sadly, many individuals
do not have basic money management skills. Families who were only budgeting for a 10% down-payment for a home, were part of the credit problem that has destroyed our economy. Professionals who were blissfully unaware that a mere 10% down payment would still require them to mortgage 90% of the cost of their home were engaging in financial planning that was a recipe for disaster.

As we’ve seen in the past few years, individuals who overextend themselves on mortgages face foreclosures when their finances take a turn for the worse often due to normal life circumstances such as job loss, extended illness, or premature death. The proper way to purchase a home is to put down at least a 20%, and to have an additional six month’s salary left over in reserve savings.

As an accountant, I find it disturbing that two educated young people, working in decent jobs, typically cannot save money. The excuse many couples offer that saving and renting, at the same time, is impossible, does not hold water with me.

After all, when one has been working for five or six years in a well paying job, and has had five years living at home and saving money, the
numbers don’t add up. At $50,000 a year, assuming $15,000 in taxes and deductions, an individual should have saved half of his/her net take home
($15,000) and lived on the rest ($15,000). Between two people, they should already have $200,000, or enough for a 20% down payment
and a year’s salary in reserve, on a $400,000 purchase.

So why don’t they? Part of the reason may be that they rented an apartment for the past five years instead of living at home until they
‘got on their feet’. However, even with $20,000 a year in rent, they still should be worth $80,000. So why couldn’t two young people, earning
decent salaries, save this money? Probably because no one ever taught them how. Most Americans do not know how to save. Neither do they know how to spend. Many of the junk mortgages were sold and, indeed, still being offered, to individuals whose net worth is tied up in video
games, SUV’s, wide-screen televisions, designer clothes, mojitos, cigarette habits, and beer bellies. Even when such individuals try to get out of their spending morass, they tend to dig themselves into a deeper hole. I am currently advising some local residents who are having difficulty paying their bills. One woman, who we shall call ‘Joan’, is in her late 40’s and has lived in her house for over 25 years. Yet, has zero equity. She can no longer
afford the payments on her mortgages, home equity line, car loans, 401K loan, bank credit line, and multiple credit cards; 17 in all; almost $4,000
a month in debt service.

Joan had been offered two choices for refinancing to consolidate her debt; one from Wells Fargo, and the other from a local credit union.
I sat down with Joan and worked out a budget for each scenario for the next five years. What I uncovered horrified me. Examining the Wells
Fargo loan, I saw that it consolidated all of her debt for $700 a month less than the credit union loan; but only for the first two years. After
that, the interest rate would skyrocket, meaning Joan would end up paying even more each month than what she is paying now. Worse, the
Wells Fargo loan was for 40 years.

Since Joan is already 48, realistically she will only be working for perhaps another 17 years assuming her company doesn’t force her out before
then. At that point, she will not have enough income to pay a mortgage, and she will be compelled to cash in the equity on her home in
order to ‘trade down’. However, with a 40-year mortgage, she will have accumulated very little equity after 17 years, since most of her payments would have gone toward interest owed. She would be left with virtually nothing to buy a retirement home. And, since Wells Fargo would have her
paying out more in two years, Joan will likely not be able to save for her retirement either. In contrast, the credit union loan meant Joan would have to pay $700 more a month up front. However, it would be a fixed-rate loan so that she would not face any increases in her payments over the life of the loan. Additionally, it would be a 30-year mortgage, leaving her more equity in 17 years, when she will likely face retirement.

How, in the middle of an unprecedented bailout, could our local banks still be offering such ridiculous mortgages? It took me only a few minutes to calculate that Joan would not be able to make the monthly payments on the Wells Fargo loan when the rate increased in two years. Why didn’t anyone at Wells Fargo bother to take that into consideration before offering her the loan? What kind of checks and calculations do the banks perform before making these offers?

I wondered, “Had anyone bothered to check Joan’s financial history?” If they had, they would have seen that she is in debt primarily due
to poor money management. She has consistently traded in her cars every three years; her kids’ rooms are jammed with toys, clothes, televisions,
and video games, and every family event has been marked with lavish celebrations.

Ironically, she has nothing to show for all this spending apart from items that will quickly be obsolete; no fancy kitchen, no expensive furniture, no lavish bathrooms, nothing of lasting value. Most of Joan’s money went on pizza dinners, convenience foods, bottled water, designer coffee, gadgets, and impulse purchases.

Sadly, Joan is not alone in her lifestyle. Millions of Americans cashed in the equity on the homes to pay off their credit cards. This year’s
Wii Fit will be paid for by Mom and Dad for the next 15 years with their new home equity line, long after anyone in the family remembers
how to play the game.

While Congress may be bailing out the banking system to save the economy, no safeguards are being put into place to save Americans from themselves. The credit offers are still flowing. And for individuals like Joan, who never saw a ‘bargain’ they could resist, those offers are financially fatal. In the past week alone, while Congress was deliberating the bailout, I received over one dozen offers for credit cards, bank loans, and zero-financing for a car. My 15-year-old daughter also received a credit card offer, despite having no job, and my 80-year-old mother received offers for a bank loan and credit cards. For anyone who cannot manage money, those offers are very tempting.

So what basic money management steps should local residents be taking? First and foremost, cut out all bad habits. With the high price of gasoline and heating oil, only the rich can afford to smoke any longer. In most cases they don’t; that’s one of the reasons they’re rich! Most fi-nancial analysts recommend keeping a book of all spending for a month to see where your money goes. But, I believe that’s too burdensome for most people. A simpler approach is to go through all your bills for the past month to see where you can cut back.

Some recommendations include: Heating: Install timers to turn down heat when not needed; seal doors and windows to block drafts; check home foundations and insulation for gaps and cracks; buy heavy drapes and comforters for warmth at night, and invest in sweaters! Transportation: Use the Westchester County Bee Line bus system when possible. Residents can go all over the County for $2 a ride. Stop driving the kids to school; your taxes pay for the school bus so using your car to take them to school means you are paying this expense twice. And yes, they can walk to the
bus stop, the exercise will do them good. It may be the only exercise they’ll get all day!

Don’t buy a new car to get better gas mileage, the savings take years to be worthwhile. A better solution is to drive the speed limits and keep
your car properly serviced to conserve fuel.

Entertainment: Cut back or eliminate magazine subscriptions, cable channels, book and music purchases, DVD rentals, etc. All of this can be had for free at any of our County libraries, including DVD’s of television series. I’ve downloaded hundreds of popular tunes to my iPod for free from my library’s extensive collection. The library system also allows residents to place a hold on items and transfer items from other branches.

Cablevision offers free movie nights to subscribers every Tuesday at all Clearview Cinemas. High- five.org offers $5 theater tickets and $2.50 museum passes to area teenagers, plus one accompanying adult each. I saw Patti LuPone in ‘Gypsy’ with my goddaughter for $5 each last year! Seniors can get reduced Broadway tickets from tdf.org; orchestra seats for Young Frankenstein are going for $32 this week, as opposed to $120 at the box office. Taxes: Check what similar homes are paying in your town to determine that you are being assessed fairly; the local tax assessor’s
office can provide this information.

Report any residents who are renting illegal apartments. Your tax dollars are subsidizing services for their tenants for free while the landlord gets to keep the 100% of the rent. Get professional advice when preparing your income taxes. The library system and local senior centers ask accountants to help local residents each Spring. Many individuals do not take deductions they are entitled to because they are simply not aware of them.
Food: Eliminate fake-food purchases. Soda and Cheese-Doodles are not food no matter what your kids say. I tell the individuals I advise to think of your body as an investment that needs regular maintenance to keep its value. If you put garbage in, you’ll get garbage out. With the skyrocketing cost of health care lately, few individuals can afford to get sick.

Last month The Guardian reported on the risk of antibiotic-resistant bacteria in our area. Going to a hospital these days can prove to be deadly. Therefore, cutting chemically-processed junk food out of your diet will not only save money, it will maintain your health. Substitute bananas for the fruit roll-ups, oatmeal instead of sugared cereals, chicken instead of red meat, tea instead of coffee, and water from the tap instead of soda and sports drinks, and an average family can easily save over $50 a week or $2,500 a year by eating healthier.

Insurance: Do not cut back on coverage. Save money by increasing deductibles instead. You do not need life insurance if you are not supporting
a spouse or children; all you need is enough savings to bury you! Likewise, you do not need life insurance for children. But all employed individuals
need disability insurance. A job loss due to a severe disability could trigger a foreclosure on your home. Combine insurances with one company to maximize credits and take the driver’s education classes offered by most towns to get the discount against your car insurance. Credit: Have only one credit card to make tracking the bill easier.

For individuals with more than one card, pay the one with the highest interest rate first. Do not consolidate credit card debts into home equity loans or mortgages, you’ll be paying for last year’s DVD rentals for the next 15 to 30 years! Shopping: Shop locally or online and avoid the malls. For one, you’ll save gasoline, tolls, and parking fees. Also, shopping in a store increases the chance of an impulse buy. It’s cheaper to pay PeaPod a $9 delivery fee for your groceries if it means you won’t stock up on junk food or the bulk items on sale that you’ll end up tossing out.

Online shopping also limits you to one store at a time, while a mall has hundreds of stores for hundreds of temptations. And any sales taxes you
‘save’ by driving to Paramus, you’ll spend at the food court on junk food. Many local groups are teaming up to help their members weather
the latest economic storm. Kim Lurie, the President of the Alliance to Restore Integrity in Divorce, offered to share these tips to her members,
many of whom are facing severe economic crises:

While the rest of the world feels the pinch that many of you have been feeling and living with during your nightmare within the Court system,
I’m sending ways that have been utilized throughout the years by our membership to conserve money. Thrift shops.....there are many and your purchases, dirt cheap, also are “green”..recycle and the money goes usually to a charity. Garage/Tag sales $.99 Stores..this is obvious Soup Kitchens/Churches daily... hot meals Freecycle.org....ridiculous amount of free things given away sometimes even unopened food. Ebay to sell things Craigs list to buy inexpensively or to sell Churches usually have “outreach” centers where you might pick up canned goods, coupons for food,
toilietires..these are not limited to your neighborhood. They are to any people in need.

Social services. Do not be ashamed of this. Remember this: You did not create this chaos. Food stamps.... Section 8 Housing Medicaid Child Health Care Plus for children’s insurance Wal mart has special on prescription medication $4.00 There is a government program for free prescriptions if you quality Health Care Plus: Low cost health insurance for those with some income but limited.

Free education, non credit for certain population, unemployed etc. Grants/scholarship for college students in certain population, degree studies.
Look for city/state/county lottery for housing. Police/State/Federal/Tax Auctions on stolen merchandise. Apply for Social Security disability if you are disabled. Unsecured credit is the last thing you pay!!! That means mortgages, food, gas etc. come before credit cards.”

Hopefully most local residents will not have to resort to most of the above measures. But for all of us, now is the time to implement basic money management skills of thrift and savings. If we don’t cut back on our excessive consumption as a society, we are doomed to repeat the economic failures of the past year. The banks and credit card companies are not heeding the warnings – they are still soliciting new victims. Our government has not passed new regulations to reel them in or stem the bad practices. It’s up to us to weather this storm.

Westchester Guardian/The Advocate.

Thursday, October 16, 2008

The Advocate
Richard Blassberg

Pleasantville Police Detective Sergeant
Stephen Bonura Remains Suspended
For Exercising His Right Of Free Speech

It’s been nearly five months since a highly regarded police offi-cer with 27 years of experience was suspended from duty, with pay,
for voicing his opinion regarding the actions of the Westchester District Attorney’s Office with respect to a persistent felon with a long record of arrests and several convictions, in some instances involving guns and acts of violence. Officer Stephen Bonura’s observations involving the handling of convicted felon Kahill Gonzalez were clearly justi-fied in light of the persistent nature of his offenses and arrests in, and around, the Village of Pleasantville, and the fact that, once again, he and his attorney had managed to negotiate yet another soft plea bargain ostensibly in exchange for information.

Last Monday night, some 60 Pleasantville residents came out to the work session of the Pleasantville Village Board to demonstrate, and voice their dissatisfaction with the state of affairs that continued to keep Police Officer Bonura out of action, off the streets, and out of contact with the adolescents of the community. Several residents came up to address Mayor Bernard Gordon and the Village Trustees.

The Mayor opened up by stating, “Westchester County operates under a special statute.” He went on, “We, the Village Board, are also the Board of Police Commissioners.” Attempting to commiserate with the frustration of those who filled the meeting room to capacity, he said, “The investigation obviously has taken a long time. We will not be commenting at this time.” He then invited anyone who wished to speak to come up to the podium.

The first of several persons to come forward was Bill Lucia who, together with his wife Michelle, had circulated a flyer encouraging local citizens to attend the meeting and express their views to the Board.

The Guardian met very briefly with Lucia just prior to his entering the session, and was told that he “wanted to keep the expression of support for Officer Bonura from residents rather than the PBA.”

Lucia began his remarks, “When you lose two detectives and two youth officers, for something like this to go on for nearly five months is outrageous.”

He continued, “What I don’t understand is how this process can go forward. Most police officers feel that this should have been resolved in a week. My understanding is that the penalty can run from 20 days to suspension.”

Pausing briefly, he opined, “This is our community; this is out of the norm. We all know that we don’t want this to go to a public hearing which will only bring out more dirty laundry.”

Following approval from the crowd, Lucia went on, “We’re going to end up in a public hearing, and, after 28 years, this isn’t where we should be.” At that point, Mayor Gordon indicated he couldn’t speak.

Trustee Peter Sherer stated, “Things are not at the same place they were.”

Lucia retorted, “When you lose two youth officers in a month, you have a problem. You lose the trust of the kids.” Lucia was making reference to the fact that, in addition to Bonura’s suspension, fellow detective and youth officer Michael DeMaio, who was demoted, also in connection with the probe of Bonura’s remarks, had resigned from the Pleasantville Department and gone to work with the Ossining Police.

Trustee Mindy Berard spoke about a bonfire event, over the previous weekend, attended by two newly-appointed youth officers that had gone without incident, declaring, “We are not compromising the safety of the kids with those new youth officers.”

In the course of an hour several other residents, perhaps six or seven, came to the podium to address the Village Board. Each expressed their concern that the community was having to “make due” without the services of Detective Sergeant Bonura, and that the process of investigation, by the Police Department, was taking entirely too long.

While it was obvious that the 60 or so residents who turned out were supportive of Officer Bonura and disappointed with the loss of Officer DiMaio, surprisingly not one speaker dealt directly with the question of how and why it was that Pleasantville Police Chief Anthony Chiarlitti saw fit, upon the comments of a 27-year decorated, and highly regarded officer of his department, expressing disappointment with the District Attorney’s Office’s handling of a career, repeat offender, to immediately suspend him from active duty.

That fact is deeply rooted in much that is wrong with law enforcement, and its relationship to the District Attorney’s Office
in Westchester County.

For the most part, the 43 police departments in Westchester are terrified by the DA’s Office, and the sitting District Attorney, in particular.
Beginning with Carl Vergari, who came along in 1968, and held on to the office for 26 years, with an ever-tightening grip, followed
by 12 years of Jeanine Pirro, who believed the truth was whatever she said it was; to the installation of Janet Di-Fiore, who had given Pirro an “A+” rating, but has driven the morale and the moral authority of the Of-fice to all-time lows by her incompetence and untruthfulness, the seeds of wrongful convictions were sown and countless innocent individuals were railroaded into prison.

There is something very seriously wrong, and totally unhealthy, for the well-being of Westchester’s families, when an exemplary police offi-cer, with nearly three decades on the job, must be afraid to speak honestly about the handling of a career criminal, a public menace to the community that officer serves, by the District Attorney’s Office, for fear of reprisal from his Chief of Police. The citizens and taxpayers of Pleasantville ought to be asking Chief Chiarlitti just what he was so fearful of in the exposure of the truth by Officer Bonura.

And, while they are at it, they might ask him if he thought Gonzalez was appropriately dealt with in light of his record.
There was no insubordination, no failure on Bonura’s part. His comments posed no threat to, or breach of, public safety. On the contrary, his remarks were made with sincere regard for the men, women, and children for whom the repeat offender’s presence posed a real threat.

As far back as early June, within three weeks of his suspension, the Westchester Detectives Association, the Police Columbia Association of
Westchester, and other organizations, were writing to Chief Chiarlitti in support of Bonura.

To his credit, the Chief returned a call from The Guardian. When asked why a valuable officer such as Detective Bonura was suspended,
the Chief replied, “There were two parts to his statement to the Journal News: The first involved the actions of the District Attorney’s Office, and the second involved Gonzalez’ use as an informant.”

When we asked, “Was his statement an embarrassment to your Of-fice?”, Chiarlitti responded, “Right now, it’s a personnel matter, and I’m not going to discuss it any further.”

Officer Stephen Bonura must be restored to full service immediately.

Westchester Guardian/In Our Opinion/Our Readers Respond.

Thursday, October 16, 2008

In Our Opinion...

Breathes There A Public Servant

We believe Errol Lewis, writing in the October 5th issue of the Daily News, got it right when he described New York City Mayor Michael Bloomberg’s plan to overturn the two referendums limiting the terms of elected City officials as a “breathtaking act of fraud on the public.” Billionaire, self-made successful mogul of the information industry as he is regarded, Bloomberg is, nevertheless, really all about himself.

No different than his predecessor, Rudolph Giuliani, who attempted to stretch his tenure right into Bloomberg’s term, using recovery from 9/11 as his excuse, Bloomberg now would like New Yorkers to give him a third bite of the Big Apple based on the current financial woes of the Nation, and New York, in particular. Funny how Rudy and Mike each grew to believe that they were indespensible.

Truth is, they just can’t give up the headlines, the power, the ego-satisfying lifestyle; each fully prepared to step on the twice-clearly-expressed Will of the People by referendum.

Bloomberg is without shame; unabashedly unwilling to move on and permit a new occupant of Gracie Mansion to guide the Capital City of the World. He’s willing to cut a deal with the City Council, no less. Whatever became of checks and balances, and governmental integrity? What the People have set in stone, twice to be sure, must not be cast aside to gratify any politician’s ego. Here in Westchester, we have seen our share of such self-centered, public-bedamned, temperamental power-play antics. Half a dozen years ago, it was John Spencer trying any and every ploy to grab a third term as Mayor of Yonkers.

And, how about Andy Spano, who swore that he would be a two-term County Executive, now in his third go-round, and announcing for a fourth? Why not? He’s got all the money from every Democratic fundraiser tucked away in his account, and most Democrats and their uncles beholden to him under Larry Schwartz’ thumb; judges included, should it ever come to that.

Then there’s Janet DiFiore. She switched parties, didn’t she? When asked what great epiphany had occurred to make her turn her back on the Republican Party and all those who had worked so hard for her in three elections, she could offer nothing. Having twice gotten her elected Judge, and having installed her as DA in 2005, she clearly owed her Republican supporters an explanation.

Of course, Janet had Tony Castro to thank for the opportunity to run because Jeanine Pirro’s expensive telephone polling in the spring of 2005 convinced her, and correctly so, that she could not beat Castro. Neither could Janet, but the Spano Tag Team, Andy and Nick, with a little help from their underlings and hoodlums, would take care of the details.

It’s truly ugly when the most sacred right of citizens in a proclaimed democracy is tarnished and corrupted as they are denied the opportunity to select their chosen representative, their prosecuting attorney.

We are, once again, coming around to County-wide elections. It will be interesting to see which individual might be promised a judgeship a la Larry Horowitz to pretend he’s running against Andy. And, it will be equally interesting to see what stunt will attempt to put Janet DiFiore, with her dismal performance, massive staff resignations, and moral betrayal of Westchester citizens, back into the DA’s Office. The answer will be none if the Justice Department actually monitors the process.

Our Readers Respond...

Reader Loved Article About Paul Cote

Dear Editor:

I just had to drop you a note to say “Thank you” for the excellent, excellent article you wrote in today’s paper about Paul Cote. Truer words were never spoken. Thank you again and keep up the good work. I love the paper.

Lucy Uomoleale
Mount Vernon


Reader Alerts Westchester Community

Dear Editor:


In the past month, even though we are registered with the FTC’s “Do Not Call” registry, I have received no less than four recorded calls inviting me to “reduce the interest rates” on my credit cards. When I press the “customer service representative” for the name and location of their company or ask to speak to a supervisor, the line goes dead. Given these difficult economic times, when so many are struggling with credit card debt, it is outrageous that these people are, as far as I can discern, seeking to “phish” for credit card account information. When I hit *69 the following number came up: 1-904-398-4657.

However, when I dialed it, the recording indicated that it was disconnected (perhaps they are using disposable cellular telephones). I have called and spoken with Verizon (who con-firmed that this is, indeed, a scam) and I am in the process of filing a complaint with the FTC. It is patently disgusting that these people are preying on those who may have financial difficulties, especially in light of the present state of our economy.

Mary Ann McCarra-Fitzpatrick
Mount Vernon

Westchester Guardian/The Court Report/Janet Difiore/Richard Diguglielmo/Jeanine Pirro.

Thursday, October 16, 2008

The Court Report
By Richard Blassberg

Appellate Division Of State Supreme
Court Refuses To Stay the Order
By Judge Rory J. Bellantoni Freeing
Richard DiGuglielmo.

Analysis:

The decision last Thursday, October 8th, by a four-judge panel of the Appellate
Division of State Supreme Court, Second Department, to deny the motion
by Westchester District Attorney Janet DiFiore, calling for a “stay of enforcement”
of the Decision and Order last month by Judge Rory J. Bellantoni in the
case of Richard D. DiGuglielmo, is a very encouraging sign that that Court has
begun to recognize the true nature of numerous prosecutions, for 12 years, under
former District Attorney Jeanine Pirro, as well as the repeated, misguided effort
of DA Janet DiFiore to preserve the wrongful convictions so often produced.

Attorney Andrew Shapiro, of Mayer, Brown, who has been engaged ‘pro bono’ for nine years in the effort to overturn DiGuglielmo’s wrongful conviction, told The Guardian, “We are very pleased.”

Dr. Bobrowsky To Re-Occupy Her Home
Yonkers City Court
Judge Michael A. Martinelli, Presiding

When The Guardian last reported about Dr. Sherry Bobrowsky, who had been rendered virtually homeless by the connivances and co-conspiracy of her brother, Jacques, and his attorney, Herbert N. Posner, together with the
Yonkers Police Department, as well as Yonkers Corporate Counsel, and the Westchester DA’s Office, we closed with the optimistic prediction, based upon Judge Martinelli’s having consolidated, and taken over, all of her cases, that she might “soon re-occupy her home and normalize her life.” As the result of the non-jury trial before Martinelli on September 25th and the proceedings last Wednesday, October 8th, it appears that prediction will become reality within a week.

Bobrowsky appeared before Judge Martinelli in the company of her attorney, Anthony John Messina, of White Plains, to receive the Judge’s verdict with respect to the trial in which she had been charged with violating an Order of Protection barring her from contact
with her 82-year-old mother, Lillian.

Assistant District Attorney Jennifer Lowry was present at the Prosecution table. And, seated in the spectators’ section, were Lillian, Jacques, and attorney Posner.

Judge Martinelli opened the proceedings stating, “The People’s case consisted of a statement that Ms. Bobrowsky was parked at the curb and that she left when her mother appeared.

The People failed to prove their case beyond a reasonable doubt. The case is dismissed.”
Having found Dr. Bobrowsky innocent, Martinelli next proceeded to deal with an Order To Show Cause filed by attorney Posner.

Martinelli declared, “I’m looking at the meritorious defense. It’s excusable default I’m mostly concerned with.”

Attorney Posner then stated, “There was an Order To Show Cause, which is before Judge Liebowitz. I don’t know when Judge Liebowitz will decide the motion.”

Attorney Messina, possibly sensing yet another delay, responded, “I would assume Judge Liebowitz would’ve given me an opportunity to respond to any stay which I am totally unaware of,” seeming to cast doubt upon the very existence of such an Order.

At that point, Attorney Posner claimed that Judge Liebowitz had relied upon him to convey the information regarding the motion to Messina.

Messina then proceeded to deny all of Posner’s assertions, declaring, “Judge, if he went to Supreme Court and the Judge didn’t sign...”

As Messina continued to address the Court, casting further doubt upon Posner’s assertions, Posner reached into his briefcase and handed up to the Judge a copy of an Order To Show Cause supposedly signed by Judge Liebowitz.

Posner then said, “If we were in a situation in which there was no question of equities...,” picking up on a prior statement by Martinelli with reference to 82-year-old Lillian. He then abruptly declared, “They will be out of the house before the 23rd of October.”

At that point, Attorney Messina stated, “I understand the equities. But, my client has an equity claim too. It is her house.”

Judge Martinelli then began, “We were here on September 11th, and that was the first; and then September 23rd.”

Posner responded, “All I’m asking is to give my client until the 23rd. I assure you that they will be out on, or before, the 23rd.”

Martinelli responded, “I don’t think that’s unreasonable.

At that point, Mr. Messina offered, “Your Honor, my client insists on addressing the Court.” However, Dr. Bobrowsky failed to speak, and Judge Martinelli declard, “I’ve made my determination,” thus closing the proceedings.



Top Executives Of Pharmacy Chain,
With Eight Stores In Westchester, Indicted
Former CEO And CFO Of Duane Reade Charged With Securities Fraud

LEV L. DASSIN, the Acting United States Attorney for the Southern District of New York, and MARK J. MERSHON, the Assistant Director-in-Charge of the New York Office of the Federal Bureau of Investigation (“FBI”), announced that ANTHONY CUTI, the former Chief Executive Of- ficer (“CEO”), Chairman of the Board, and President of Duane Reade, Inc. (“Duane Reade”), and WILLIAM TENNANT, the former Chief Financial Officer (“CFO”) and Senior Vice-President of Duane Reade, were indicted for allegedly perpetrating a scheme to falsely inflate the income and reduce the expenses that Duane Reade reported to the investing public and others.

CUTI was also charged with making false filings with the Securities and Exchange Commission (“SEC”). According to the Indictment filed in Manhattan federal court: From December 2000 through June 2005, CUTI and TENNANT engaged in a scheme to misrepresent Duane Reade’s fi-
nancial performance in order to meet its own projections and the expectations of professional securities analysts’ expectations about the company’s financial performance.

The scheme involved: 1) the reporting of inflated income from fraudulent real estate transactions; and 2) the artificial reduction of expenses through fictitious credits from vendors who did work for Duane Reade. Real Estate Transactions: With respect to the real estate transactions, CUTI and TENNANT engaged in fraudulent “Real Estate Concession Transactions.” Pursuant to these transactions, Duane Reade sold to various brokers, real estate developers, and landlords certain real estate rights, including remaining time on leases and options on retail locations. The rights being sold, however, were largely worthless for various reasons, including that there was little or no time left on the leases, the property subject to the transactions was unusable, or Duane Reade had already sold the right previously. In order to convince various third parties,
brokers, developers and landlords, to participate in these fraudulent transactions, CUTI promised, through various side agreements, to pay the third parties back the cost of doing the transactions.

TENNANT and CUTI carried out these promises by engaging in additional fraudulent transactions that were merely vehicles to return money to the third parties. In order to inflate reported income, CUTI and TENNANT generally structured the fraudulent Real Estate Concession
Transactions so that Duane Reade could report income on them immediately in the financial quarter in which Duane Reade faced a shortfall
on its own projections or analysts’ expectations.

Meanwhile, CUTI and TENNANT structured the fraudulent return payments to the third parties so they would be treated as capital expenditures, enabling Duane Reade to stretch those costs over a long period of time.

CUTI and TENNANT misled Duane Reade’s auditors about the Real Estate Concession Transactions by failing to disclose that the real estate rights being sold were largely worthless and by failing to inform the auditors that they were reimbursing the brokers, developers, and landlords for participating in the deals.

Fictitious Credits: CUTI also falsely inflated the income that Duane Reade reported to the investing public in a second way, by engaging in fraudulent “Credit-Rebilling Transactions.” In these transactions, CUTI directed a co-conspirator not named in the Indictment (“CC-1”), who was an employee of Duane Reade, to seek fictitious credits from vendors who did work for Duane Reade. At the same time, CUTI directed CC-1 to tell the vendors that they could recover the money from the fictitious credits by rebilling Duane Reade for the same amounts in later quarters without doing any additional work. CUTI further told CC-1 that the vendors should use language on the false rebilling that would allow Duane Reade to treat the rebilling as capital expenditures. In this way, Duane Reade could record the credits immediately but stretch the cost of the rebilling over time.

These credits and rebilling were false because, as CUTI knew, they did not reflect the true reasons for the credits and the side agreements Duane Reade had struck with the vendors. The false credits were used to decrease Duane Reade’s expenses, which had the effect of increasing the net income reported to the public.

As a result of both aspects of the scheme, materially false and misleading information was provided to the investing public, Duane Reade shareholders and auditors, and the SEC about the company’s true income, expenses, earnings per share, and other financial results. This information was contained in Annual and Quarterly Reports filed with the SEC, in press releases, and on conference calls held with securities analysts. In addition, in July 2004, the private equity firm Oak Hill Capital Partners, L.P. (“Oak Hill”), purchased all the publicly traded stock of Duane Reade.

Materially false and misleading information was provided to Oak Hill during the negotiation of this purchase. CUTI participated directly in those negotiations. Through this scheme, CUTI and TENNANT caused Duane Reade to report income that was inflated in a false and misleading
manner by approximately 10-15 percent between the last quarter of its fiscal year in 2000 and Oak Hill’s acquisition in July 2004.

CUTI and TENNANT achieved significant financial gain in part pursuant to this scheme. CUTI negotiated lucrative compensation packages with Duane Reade and Oak Hill. From 2000 through 2005, CUTI received more than $50 million in compensation from Duane Reade and Oak
Hill, including a pay-out of more than $25 million in connection with Oak Hill’s acquisition. TENNANT, from June through November 2001, after participating in numerous fraudulent Real Estate Concession Transactions, exercised his options to buy Duane Reade stock and received in excess of $2.8 million in gain.

The case is assigned to United States District Judge DEBORAH A. BATTS. CUTI is expected to surrender and be arraigned on the charges. TENNANT is expected to surrender at a later date. The Indictment charges CUTI and TENNANT with one count of conspiracy to commit securities fraud, make false statements in annual and quarterly SEC reports, make false statements to auditors, and make false entries in books and
records; and one count of securities fraud. It also charges CUTI with three counts of making false filings with the SEC. The conspiracy count carries a maximum sentence of 5 years in prison and a fine of $250,000 or twice the gross gain or gross loss from the offense. The securities fraud count and the false SEC filing counts each carry maximum sentences of 20 years in prison and fines of $5 million.

CUTI, 63, lives in Saddle River, New Jersey. TENNANT, 61, lives in Richmond, Virginia. Mr. DASSIN praised the investigative work of the FBI, and thanked the SEC for their assistance.

“The defendants are alleged to have deceived the investing public by providing false and misleading information about Duane Reade’s financial condition while lining their own pockets with millions of dollars in compensation,” said Acting United States Attorney LEV L. DASSIN. “Corporate executives who profit through fraud do so at the expense of public confidence in our financial markets.”

“The FBI is committed to aggressively investigating corporate fraud wherein self-dealing corporate executives design schemes to deceive investors, auditors, and analysts about the true financial condition of the corporation,” said Assistant Director-in-Charge MARK J. MERSHON.

Assistant United States Attorneys JONATHAN R. STREETER and JOAN M. LOUGHNANE are in charge of the prosecution. The charges and allegations contained in the Indictment are merely accusations, and the defendants are presumed innocent unless and until proven guilty.

Westchester Guardian/Jeffrey Deskovic.

Jeff Deskovic

When DNA Isn’t Enough,
Part 2

This is the second in a two-part series concerning cases in which DNA evidence has conclusively established innocence but the courts have attempted to preserve the wrongful conviction.

In an article in USA Today by reporter Richard Willing, written last year, quoting United States Senator Patrick Leahy, speaking to the importance of using DNA in light of it’s reliability, the Senator said, “DNA is such a powerful tool in providing guilt or innocence that it’s inexcusable not to use it” In the ongoing case of Thomas Arthur, the situation would appear worse. Arthur has been unable to get courts to agree to allow him to have the testing, and he is currently one court denial away from being executed.

Thomas Arthur was convicted of murder in 1991 and was sentenced to death. He has been on death row in Alabama for 25 years. Alabama does not have a statute which gives prisoners the right to DNA testing, and Arthur’s attempts to get DNA testing of evidence have thus far been unsuccessful to the point where he is down to his final appeal.

Across the country, his case has gotten the support of The Innocence Project, which has helped get thousands of letters and emails forwarded to Alabama Governor Bob Riley from the general public. The Birmingham News and Amnesty International have also come out publicly for Arthur.

The facts of Arthur’s case, taken from the magazine Justice Denied, are as follows: “Judy Wicker was convicted of committing murder in 1982 in
Muscle Shoals, Alabama against her husband Troy Wicker. After almost ten years of imprisonment she made a deal with the State of Alabama.

She would be paroled from her life sentence in exchange for recanting her trial testimony and numerous extra-judicial statements that she had been raped by a black intruder who then killed her husband, and that Thomas Arthur had nothing to do with the crime to instead state that Arthur killed her husband Troy Wicker , and that she was having an affair with him.

None of the plethora of crime scene evidence that included hair, blood, sperm, fingerprints, was forensically linked to him. The only direct evidence placing Thomas Arthur at the murder scene was the revised testimony of Judy Wicker.

Judy Wicker also directly implicated her sister and her sister’s boyfriend in Troy Wicker’s murder, but, for still unexplained reasons, they were
never prosecuted.

The State of Alabama has for many years unwaveringly opposed making the crime scene evidence in Thomas Arthur’s case available to him for forensic testing at his expense. Alabama’s refusal to allow post-conviction testing of the evidence has continued with its opposition to a federal civil rights lawsuit Thomas Arthur filed seeking access to the biological evidence for DNA testing that could contribute to proving his innocence.

That evidence sought for DNA testing includes Judy Wicker’s clothing, Judy Wicker’s rape kit that includes sperm recovered from her the morning of the murder, a wig and hair samples collected from Judy Wicker’s car, vacuum sweepings from the Wickers’ home, hair samples taken
from a shoe, bullet cartridges, a bullet, and a pillow case taken from the Wickers’ home.

The office of Alabama’s Attorney General strong-armed two credible alibi witnesses to recant their post-trial sworn affidavits that on the morning
of Troy Wicker’s murder they saw and talked with Thomas Arthur in Decatur, which was then about an hours drive from Muscle Shoals.”

Arthur’s trial attorney, who was paid a total of $1000, which is the maximum amount of money that Alabama law allows, has admitted that Arthur received inadequate legal representation. In addition, Arthur has been without an attorney during some of the appeals process, with the result that he has missed some filing deadlines, before finally securing an attorney.

Arthur has been scheduled to be executed several times. The following timeline was taken from The Birmingham News: “Arthur came within hours of being executed Sept. 27, but Gov. Bob Riley issued a stay so the state could add a step to its execution procedure. Arthur’s execution was rescheduled for Dec. 6 and blocked again on Dec. 5 by the U.S. Supreme Court, pending the outcome of a Kentucky challenge to the constitutionality of lethal injection.

The court in April upheld lethal injection by a 7-2 vote.” Arthur’s execution was stayed pending that decision. During that time The Innocence Project began a campaign encouraging the public to send emails to Alabama’s governor, to order DNA Testing, and thousands of emails were sent.

Nonetheless, the Governor refused, and continues to refuse to order the testing. Following the United States Supreme Court decision, Arthur was
again scheduled for execution to take place on July 31, 2008. However, he again received a last-second stay of execution by the Alabama Supreme Court, because of an appeal by Arthur based upon another prisoner coming forward to say that he, and not Arthur, committed the murder.

The Birmingham News reported that “Bobby Ray Gilbert, who is serving a life sentence at St. Clair Correctional Facility for stabbing another inmate to death in a dispute over a carton of cigarettes, this week claimed he had an affair with Judy Wicker in 1982, and that he committed the crime. In response to that, Wicker filed a sworn statement that ‘None of Gilbert’s allegations are true,’ Wicker said in a sworn statement filed Wednesday. ‘I do not know anyone named Bobby Gilbert. I hired and paid money to Thomas Arthur, not Bobby Gilbert, to kill Troy Wicker.’”

Arthur’s attorney sought to have DNA on the rape kit collected at the crime scene, and other items to see if it would corroborate Gilbert’s
story of having sex with Judy Wicker on the day he committed the murder. It was at this time that Assistant Alabama Attorney General
Clay Crenshaw revealed in an affidavit that the state could not find that evidence.

The following excerpt from The Birmingham News speaks to this development: “The Muscle Shoals Police Department, Colbert County
District Attorney’s Office, and the Alabama Department of Forensic Sciences all said it’s not in their possession, he said. ‘All I know is that
they don’t have it,’ Crenshaw said. Attorneys for Arthur called the loss of the evidence ‘astounding.’ State and federal courts previously have
rejected Arthur’s requests for access to the evidence, ruling that even favorable results from DNA tests would not prove his innocence, and that he
missed filing deadlines.”

According to The Birmingham News, also in Judy Wicker’s affidavit was the claim that, “Arthur’s daughter, Sherrie Stone, offered to pay her
to falsely testify that Arthur is innocent. Stone denied trying to bribe Wicker, but said she told Wicker during a visit last year that ‘we would be
happy to help her family if any money came out of it. I told her I wanted her to tell the truth,’ Stone said.” Justice Denied, which is a magazine
dedicated to exposing both ongoing cases of wrongful conviction and ones in which an exoneration has taken place, as well as cases in which a wrongful conviction has likely taken place, had the following commentary on the Arthur case: “Murder can be characterized as what a State intends when it uses its prosecutorial power to obtain a conviction and death sentence that is tainted by numerous pre-trial, trial, and post-trial irregularities, and, possibly illegal tactics that have a direct bearing on concealing both the truth of the crime and the possible innocence of the defendant.

Murder describes what will happen September 27, 2007, if the State of Alabama and its agents commit the “wicked and morally reprehensible”
act of administering a lethal mix of substances into Thomas Arthur’s body until he is legally, clinically, and permanently dead – when there
is the all too real possibility that he is factually innocent of Troy Wicker’s murder and the evidence that could prove it remains untested.”

In addition to the above sentiments which I completely endorse, I would like to add some thoughts. This case in many ways represents a reverse Alice in Wonderland: So many bizarre things going on that it could not possibly be real. And yet it is. The idea that a witness who was convicted of conspiring to have her husband killed and who served 10 years in prison prior to changing her story to incriminate someone else in exchange for being paroled, is credible, defies common sense. In many previous issues of The Guardian, I have written about how incentivized witnessing, a witness receives a benefit in exchange for their testimony, is unreliable and has resulted in wrongful convictions in 15% of the DNA Exonerations
and many other non-DNA cases. In my view, a prisoner who is already convicted and in state prison would be hard-pressed to receive a better deal than what Wicker received: being paroled from serving a life sentence. That alone makes her testimony unreliable. I find the Alabama State Legislature to be far behind the times in not giving prisoners the right to DNA testing, and for finding ways to uphold convictions at any cost,
through prosecutors fighting to win, no matter what. I believe the court rulings against Arthur to be immoral and criminal, making a mockery of the bedrock principle that courts are supposed to be places where justice reigns.

Similarly, it is a most serious example of prosecutorial misconduct for the Assistant Attorney General to only just recently claim that the evidence
has been lost. Suppose Arthur had won any of his prior appeals to get the testing. He would have been unable. In terms of both deception and trying to win at all costs, it doesn’t get any more stark than that. It is sickening that for a time Arthur, sentenced to death, was not given an attorney to handle his appeals, and that Alabama, in general, does not provide attorneys for death row prisoners.

There was nothing to lose by allowing Arthur to test all of the DNA. The fact that the evidence has come up missing now that another person has
claimed responsibility for the crime, is very suspicious. In my view, based upon the occurrence, and in light of all of the facts of this case, Arthur not only should not be executed, but his conviction should be overturned, the charges dismissed, and he should be immediately freed. This case has all of the hallmarks of a wrongful conviction.

Certainly, the bizarreness of this case should entitle him to a new trial with the benefit of a competent attorney, with sufficient funds, to make use of all of the crazy happenings in this case, in order to illustrate plenty of reasonable doubt. I cannot imagine a jury, once again, finding him guilty.

Westchester Guardian/Catherine Wilson.

Thursday, October 9, 2008

Catherine Wilson, Bureau Chief
Northern Westchester

Solving the Economic Crisis:
Is It Even Possible?

The recent events on Wall Street and in Congress have left many local residents wondering how it will affect them personally. But how did
this mess get started in the first place? What happened to all the controls and regulations set in place after the Great Depression to prevent this type of debacle from happening again?

Some of the blame lies with the deregulation of the banking industry. In 1999, pushed by Federal Reserve Chairman Alan Greenspan, President Clinton signed the Financial Services Modernization Act (FSMA) which allowed for the integration of banking, insurance, and stock trading companies, a segregation that had been put in place in 1933. Prior to the FSMA, banks, brokerages and insurance companies
were barred from each others’ industries, and investment banking and commercial banking were separated.

FSMA was passed after substantial industry lobbying in Congress; approximately $300 million was spent by the lobbyists in total. The chairman of the Senate Banking Committee at the time, Texas Republican Phil Gramm, collected more than $1.5 million alone from the three industries involved. Opponents to the bill warned, “The bill ties the banking system and the insurance industry even more directly to the volatile United States stock market, virtually guaranteeing that any significant plunge on Wall Street will have an immediate and catastrophic impact throughout the United States Financial system.” (source: wsws.org).

Regulation of the banking industry had already started disappearing in the 1980’s under President Reagan and the Savings and Loan bailouts
(S&L’s). For those Guardian readers who purchased homes in the early 1980’s and prior, you were subject to 20% down-payments, intense credit and employment checks, and regulations limiting your mortgage and property tax payments to 28% of your gross monthly income; your total personal credit outstanding, including car loans, credit cards, and student loan payments could not exceed 33% of your monthly gross income. If you had less than a 20% down payment, you were required to take out ‘mortgage insurance’ to guarantee your payments.

Foreclosures were almost unheard of except in extreme unfortunate cases. But after the Reagan deregulations, new home owners could be
offered variable-rate mortgages, mortgages that were interest only for the first few years, mortgages with low introductory rates, even mortgages with no down payment. Subprime lenders bragged that no income verification or credit checks were required for their mortgages.

Television infomercials boasted how individuals could make a fortune from skyrocketing housing prices on houses purchased for investment with ‘no money down’ mortgages. The mortgage companies also targeted individuals with bad credit histories and people who could not afford the debt they were taking on. In 2006, it was estimated that 60% of all new mortgages were ‘subprime’. (source: Robert Kuttner ‘The American Prospect’).

With such a lack of collateral and credit supporting these mortgages, the writing was on the wall for an economic collapse. Between 2004 and
2006, Alan Greenspan, as Chairman of the United States Federal Reserve, increased interest rates from 1% to 5.35%. Homeowners with low ‘teaser’ or variable rates on their mortgages faced significantly higher payments once the higher interest rates kicked in. With higher payments, default rates on sub-prime loans; high risk loans to clients with poor or no credit histories, started to rise. (source: BBC Business reports).

In mid-to late 2007, mortgage companies, faced with increasing foreclosure rates, started collapsing and filing for bankruptcy. Other banks that had purchased mortgages from these companies felt the domino effect; the mortgages were worth less, or indeed, completely worthless, so the banks’ assets were in turn worth less, making it more difficult for them to borrow and lend.

In July 2007, Bear Sterns announced that it could no longer borrow from other banks and its hedge funds had plunged in value. In August
2007, the European Central Bank pumped over $400 billion into the banking system to improve liquidity following the news from BNP Paribus, a European bank, that investors could not withdraw their funds due to an ‘evaporation of liquidity’, meaning that the global banks were refusing to do business with each other.

The United States Federal Reserve immediately stepped in and dropped interest rates to entice lending and borrowing. It proved to be too little, too late as global banks announced major losses; several banks collapsed or were bought out by others. The remaining global banks cut back on lending to other banks based on concerns over lending to banks with risky mortgage investments, or on concerns for their
own survival. Throughout the Fall of 2007 and the Spring of 2008, the Federal Reserve called several emergency sessions and continued to cut rates further to stem the worldwide hemorrhaging.

By February 2008, Robert Reich, Secretary of Labor under President Clinton, was warning of an even greater threat to the global banking
environment: “Decades of United States government deregulation of Wall Street has reaped a whirlwind of irresponsible speculation. It’s ending in a financial meltdown that’s being remedied by government ownership, with all the strings that come with government ownership.

And it’s not even OUR government that’s holding the strings.” Reich was referring to the rash of global banks being snatched up by foreign investors. As Reich noted last February: “There’s no end in sight for the credit crisis, and Middle Eastern and East-Asian ‘sovereign wealth
funds’ are in the process of owning a larger and larger portion of the global banking system”. In June of this year, the Qatar Investment Authority announced plans to invest £1.7 billion in Barclay’s Bank U.K., giving them a 7.7% share in the business. One of the main reasons therefore, why Congress is considering a buyout package for the United States banking system, is to keep our banks in United States hands
and out of the hands of foreign governments and foreign investors.

The job losses at the banks and mortgage companies, concurrent with the job losses in the housing and construction sectors, and the domino impact on other industries has now given rise to the highest unemployment figures since 1994 – in September, the United States Department of Labor announced that over 6% of the United States population is currently out of work, this situation is actually worse since unemployment numbers are traditionally ‘low-balled’ as they only count individuals currently collecting unemployment, i.e., people actively
looking for work. They do not include individuals who have given up due to lack of employment in their field, such as the banking or housing construction industries, and/or taken menial jobs in the interim. In just the past three weeks, several major banks have either filed for bankruptcy, Lehman Brothers, or have been taken over in emergency buyouts by other banks, Washington Mutual, Merrill Lynch, and the Benelux governments of Belgium, the Netherlands, and Luxemburg did a joint takeover of the European banking and insurance giant, Fortis.
In mid-September, the United States Federal Reserve stepped in again and announced an $85 billion rescue package for AIG, the largest
United States insurance company, in effect, a nationalization of this company since the government would get an 80% stake in AIG in return.

Britain followed suit last week with the nationalization of their major mortgage lender, Bradford & Bingley. It still was not enough. The United States Congress was forced to step forward with a $700 billion rescue plan to ‘provide authority for the Federal Government to purchase and insure several types of troubled assets for the purposes of providing stability to and preventing disruption in the economy
and financial system and protecting taxpayers, and for other purposes” (source: Emergency Economic and Stabilization Act of 2008).

On September 29, the United States Congress failed to pass the rescue plan. The global banks now face a major concern regarding how individual banks can handle the mortgages they’ve absorbed from failing banks and when the global banking industry can return to ‘normal’ operations.

In response, the Belgian, French, and Luxemburg governments guaranteed an additional €6.4 billion ($9 billion) to failing banks on September
30th. That same day, the Irish government voted in favor of a €400 billion ($600 billion) to guarantee all deposits, bonds and loans, in the country’s main banks for two years.

The Irish Prime Minister, Mr. Brian Cowen, was quoted as saying “The option of doing nothing, of not making a move, would put at risk the
entire stability of the Irish financial system.” Which begs the question, if a small country like Ireland can guarantee $600 billion for the deposits of its citizens, albeit now giving their banks a lending advantage over other global banks, including United States institutions,
what is our Congress doing to protect us in this crisis?

That is the question on the minds of many local residents. The purpose of the bailout plan is to protect the average individual since its aim is to prevent a complete fallout of the investment and financial community. Any local resident who owns investments or a pension plan would suffer severe losses if the stock markets and banks tumble further; most pensions are heavily invested in the stock market, including bank stocks.

In addition, while the bailout plan allows for Treasury Secretary Hank Paulson to buy up the dubious mortgage investments held by the banks, the United States taxpayers would get a non-voting stake in the banks to act as an investment. If the banks recover from this crisis, taxpayers would make a profit. However, if they do not, then the financial services industry would absorb the costs.

The bailout plan also calls for financial institutions to take insurance policies against future losses on mortgage- backed securities. Of concern to average taxpayers are the incredible bonuses doled out by the financial industry. The bailout plan places limits on salaries and golden parachutes; the huge severance payments paid executives when leaving a company, are supposed to be eliminated.

Finally, as the Irish Prime Minister correctly noted, the cost of doing nothing is far worse. As the global financial markets have already seen, if the United States does not act, other countries will, further jeopardizing our banks and our economy. If the United States banks cannot
borrow money to lend out to investors, those investors will turn to other sources, such as the now-solvent Irish banks, for their business, causing an even greater decline in the our banking system with a still greater loss of jobs.

The $700 billion needed for this bailout would not be raised through taxes. Instead, the government had intended to borrow the money from
world financial markets by granting the Treasury the authority to issue an additional $700 billion worth of Treasury notes. On the plus side, once the housing market stabilizes, the Treasury could then sell the distressed assets back into financial markets, perhaps even making a profit.

However, opponents of the bailout were concerned that issuing such an amount of Treasury debt would almost double the current budget deficit and make the United States still more dependent on foreign banks as they are the biggest purchasers of Treasury securities. In short, Robert Reich’s warnings that our banking system could end up under the control of foreign governments could come to pass.

Some local Congressional representatives have claimed that they are listening to their constituents when voting against this bailout. Considering that all of the members of the House are up for reelection this November, those who initially voted against the bailout were placing their jobs above the global economy and constituents’ pensions and investments.

However, our local Congressional representatives do not have this dilemma. Representative Eliot Engel (Democrat, 17th District) acknowledged in his press release on September 30 what most local residents already knew; this crisis affects New Yorkers most. As Rep. Engel noted: “While this is a national and international crisis, it is magnified for New York City and State. Both Governor Paterson and
Mayor Bloomberg are already cutting their budgets because of this crisis.

Wall Street is an integral part of the New York City and State economies, and both governments rely heavily on the jobs associated with it.”
Rep. Engel further noted, “In order to govern effectively you must compromise. This bill was not what I would have written, but I was willing to accept it because of the compromises I received in it. These included Congressional oversight, the elimination of ‘golden parachutes’, the disbursement of funds in stages, and, most importantly, the guarantee that the American taxpayer would receive any profit that came from the sale of the loans to the financial industry”.

Not every government representative or candidate is concerned about their job; some are even seeing an increase in support thanks to this crisis. Toby Heaps, the spokesperson for Ralph Nader’s Presidential campaign, stated that they have seen a significant increase in interest and support in the past week. “Nader has been fighting Wall Street and corporate corruption for his entire career and the voters know that.
He represents true change here. McCain supports more spending on the war and Obama will just leave voters with the chump change in their pockets” Heaps stated. Both McCain and Obama have voiced their support of a banking bailout package. As a result “Many voters are now switching their support over to Nader,” Heaps noted.

On his web site, Nader gives his position on the bailout supported by McCain, Obama, and Bush: “Here comes the MOB. With an October surprise. The MOB? That would be McCain/Obama/Bush. With the Mother Of all Bailouts. Mc-Cain/Obama/Bush are pushing hard for the bailout of Wall Street crooks. While Nader/Gonzalez stand with the American people in opposition. Why are we in this mess? As Richard Fischer, the president of the Federal Reserve in Dallas put it yesterday, we’re in this mess because of ‘a sustained orgy of excess and reckless behavior.’ Why then should we bail out those who engaged in the orgy? We shouldn’t. And it’s time to stand up and speak in one loud and clear voice. No to the bailout. Vote Ralph Nader, the man who for his entire career has pushed for tough law and order regulation of Wall Street; regulation that would have prohibited the orgy of excess and reckless behavior. The bailout of Wall Street crooks will be the number one issue throughout October.”

The New York Times has also noted the sudden and unexpected sources of support for Nader’s stand in this crisis. In an online blog, the chief financial correspondent for the Times and the International Herald Tribune, Floyd Norris, reported “So much for party discipline. This bill was supported by John McCain and Barack Obama, the presidential candidates who, between them, have the support of nearly every
member of the House. But a majority of the House voted along with Bob Barr, the Libertarian who said, “We need to make Wall Street take the hit for its irresponsible investment decisions,” and Ralph Nader, the Independent candidate who described the bill as a ‘bailout for Wall Street crooks’. I had assumed the House leadership could assure that enough members of both parties held their noses and voted yes to gain a narrow margin for passage. But what we have here is a rejection of what Mr. Nader calls the two ‘corporate candidates’.”

Given their support for the bailout plan, perhaps the voters also now view both Obama and McCain as ‘corporate candidates’ and will demand a complete change in November. Congress’ nay vote on September 29th sent shockwaves around the global financial community. Given the growing economic crisis, US citizens may send out a shockwave of their own this Election Day. One thing is agreed upon by all the economists and politicians, this crisis will not resolve itself anytime soon.

“Decades of United States government deregulation of Wall Street has reaped a whirlwind of irresponsible speculation. It’s ending in a financial meltdown that’s being remedied by government ownership, with all the strings that come with government ownership. And it’s not even OUR government that’s holding the strings.”

– Former Secretary of Labor Robert Reich

Westchester Guardian/The Advocate.

Thursday, October 9, 2008

The Advocate
Richard Blassberg

DA DiFiore Attempts, Once Again,
To Preserve A Wrongful Conviction
Fires Off Appeal Within 24 Hours Of Bellantoni’s DiGuglielmo Decision

On Sept. 19, 2008, within one day of the issuance of Judge Rory J. Bellantoni’s decision freeing Richard DiGuglielmo, District Attorney
Janet DiFiore filed a Notice of Appeal with the New York State Supreme Court, Appellate Division, Second Department, as well as an Affirmation, a Memorandum of Law, and an Order To Show Cause, in contemplation of action by that Court, prepared by Assistant District Attorney Robert K. Sauer. Mr. Sauer, together with ADA Timothy Ward, had represented the District Attorney’s Office at the, frequently combative, eight-day evidentiary hearing, that developed from the 440.10 Motion submitted by DiGuglielmo.

Richard DiGuglielmo was a New York City Transit Police Offi-cer with 12 years on the job when a violent incident occurred in the parking lot of his family’s Dobbs Ferry deli, October 3, 1996; an incident that would involve a batwielding assailant, who, after severely injuring the officer’s father’s hand and leg, was shot and killed while attempting to strike the father’s head.

At the time of the incident, there were three, and only three, eyewitnesses who saw the incident unfold, including the firing of three shots
by Officer DiGuglielmo as Charles Campbell was swinging at the of-ficer’s middle-aged father’s head with a metal baseball bat. Each of the three eyewitnesses had initially reported to the Dobbs Ferry Police that Of-ficer DiGuglielmo’s firing of three shots at Campbell was in self-defense
because, as one of them stated, Campbell would have “crushed his (the elder DiGuglielmo’s) head like a watermelon.”

The 440.10 Motion was brought about by the discovery that, although at the grand jury, and at trial, the key prosecution witness, Michael Dillon, had testi-fied with statements that supported the Prosecution’s position that the shooting was a bias crime, and, that there was no immediate threat to the life or safety of the elder DiGuglielmo from the bat-toting Charles Campbell, there had been no fewer than 4 statements elicited
from him by Dobbs Ferry Police in their coercive effort by harassment and intimidation to get him to come off his original account of self-defense.

In the course of the hearings, another of the eyewitnesses, Jimmy White, who also had undergone similar treatment by the Dobbs Ferry Police, but who never changed his account, came forward to describe, for Bellantoni’s Court, the coercive tactics employed by Dobbs Ferry Police Chief George Longworth and his threeman detective bureau. Testimony by Detective Guarneri, and then lead prosecutor, high-ranking Assistant District Attorney Patricia Murphy, was “not credible”, and was inneffectual in countering either Dillon or White’s testimony, particularly with regard to their repeated nightly ordeal at the hands of Dobbs Ferry Police between October 3 and October 8, 1996.

Those familiar with Mr. Sauer’s work will recognize the cynicism and distortion of fact so often employed in his appellate presentations. His reference to “a long line of disputes initiated by the Defendant’s father, the deli’s propieter, due to his bizzare obsession over the parking spaces in his lot,” neglects the truth; firstly, that the elder DiGulielmo had merely placed a sticker on Charles Campbell’s car window, as instructed to by Dobbs Ferry Police and, secondly, that it was Campbell who came running across the street, fists flying, to punish him for doing so.

Sauer speaks of, “The jury, having rejected his (DiGuglielmo’s) Justification Defense on the bases of the testimony of sixteen eyewitnesses to all or parts of the events, nine of whom saw the actual shooting, and testified that the victim, while holding a baseball bat when he was shot, was, in fact, in a defensive posture and not swinging the bat when the Defendant fired his weapon.” The bullet entry wounds clearly suggested otherwise.

It is astounding the lengths the Westchester District Attorney’s Office has been willing to go to, both under Jeanine Pirro and Janet DiFiore, to protect and preserve wrongfully-obtained criminal convictions. Prior to the trial Pirro was fond of speaking about, “thirteen witnesses who heard racial epithets.” At trial she couldn’t produce one.

As regards Mr. Sauer’s “sixteen witnesses;” there were only three eyewitnesses to the entire encounter, including the shooting, Cablevision repairmen Kevin O’Donnell and Michael Dillon, who witnessed the incident from the cab of their company van and Jimmy White, a school teacher and a local customer who was at the deli having come home from work. Of those three, the Prosecution did not get much mileage out of O’Donnell, who had damaged his own credibility attempting to come off as a hero, initially, claiming that he had jumped from the van and attempted to stop Campbell from beating Officer DiGuglielmo’s father with the bat; not very supportive of the DA’s theory. Jimmy White, who refused to be turned by the Dobbs Ferry Police, was not used by the Prosecution for obvious reasons, nor by the Defense because he refused to
meet with Defense attorneys prior to testifying.

That left one witness who could be used by the Prosecution, effectively, Dillon, who had changed his account after four nights of being
hounded by Dobbs Ferry Police; taken from his job in Mamaroneck each night by three detectives and the Chief of Police, until he finally
gave them the account the District Attorney wanted from him.

On page 13 of the District Attorney’s Affirmation, Mr. Sauer tells the Appellate Court the same lie that the Office had offered to Mr. DiGuglielmo’s attorneys, and to County Court Judge Bellantoni nearly a year ago, stating, “Prior to the hearing, the People notified the Defense that the search for reports of any meetings with Michael Dillon and the Dobbs Ferry Police Department between October 3 and October 7, 1996, conducted by the Dobbs Ferry Police Department under the supervision of Police Chief Betsy Gelardi, had met with negative results, and that no
such interviews had, in fact, taken place.”

After so many years under Jeanine Pirro, and now under Janet DiFiore, a combined total of nearly 15 years, it is obvious that for Mr. Sauer, and, indeed, the entire Appeals Bureau of the Westchester District Attorney’s Office, the line between truth and fiction has been so blurred as to be
virtually nonexistent. The acts of prosecutorial misconduct and Constitutional violation have been so many and so repetititve as to be virtually indefensible by truthful explanation. Both in the State Supreme Court, Appellate Division, and the Second Circuit Court of Appeals, we have witnessed baldfaced lying on numerous occasions by Assistant DAs who know that even if they are caught lying, they will suffer no consequences.

There can be no question that the Appellate Division and the Court of Appeals, the State’s highest tribunal, have, for decades, displayed a distinct bias in favor of the prosecution in homicide cases, particularly those involving so-called Depraved Mind, or Depraved Indifference Murder. A nebulous concept, from the moment it was made a part of the Criminal Code in 1967, for four decades it served as a fall-back, or safety net, for prosecutors with weak, poorly investigated Intentional Murder cases.

Not until March 2004 with the Gonzalez decision in a case out of Rochester, in Monroe County, did the Court of Appeals begin to grapple with the problem it had allowed to fester for nearly 40 years. By that time, hundreds of individuals had been convicted of Depraved Indifference Murder when, in point of fact, their act in taking a life was not the least bit indifferent.

Application of the statute reached the point of scandal as prosecutors, such as Jeanine Pirro, with little concern for finding truth, but a heavy commitment to their political careers, would offer juries a smorgasbord choice between Intentional and Depraved Indifference Murder, each
carrying a 25-year to-life sentence.

Even now, despite a succession of cases since Gonzalez and Payne, the high court has refused to definitively deal with the problem, and many judges still do not grasp the fine distinction, the level of recklessness, and indifference needed to meet the threshhold.

Judge Bellantoni’s decision, while dealing with the issues surrounding Depraved Indifference Murder, given that DiGuglielmo was acquitted of intentional murder in the Second Degree, as well as assault, nonetheless was predicated essentially on the tainted prosecutorial presentation, including the failure of the Prosecution to share the original statements of Michael Dillon and Jimmy White with the Defense, as well as the process by which Michael Dillon’s statement before the grand jury, and at trial, were achieved.

Assistant District Attorney Sauer, in his Memorandum of Law, in an attempt to distort the intrinsic role of Depraved Indifference Murder in Judge Bellantoni’s calculations, repeatedly refers to “the likelihood of reversal of the trial Court’s order dismissing the indictment is, in light of Policano virtually a foregone conclusion.” Mr. Sauer attempts to skirt the real issues that provoked the decision to grant Richard DiGuglielmo’s 440.10 motion, the Brady and Rosario violations, as well as the overall tainted prosecutorial activity that produced both the indictment and the conviction at trial, instead suggesting that DiGuglielmo’s release resulted from the trial Judge’s “disregard of the significant principal of stare decisis
by conferring on the defendant retroactive application of the ‘New Depraved Indifference Rule.’”

The fact is, Judge Bellantoni was not releasing Richard DiGuglielmo based upon Policano, but merely observing that having overturned both the conviction as well as the indictment from which it sprang, because each was achieved through unlawful prosecutorial misconduct, Defendant DiGuglielmo, having been acquitted of Intentional Murder, cannot be reindicted under the Statute of Depraved Indifference Murder, as the Court of Appeals has redefined it, for an act that was clearly intentional: “Three shots to center mass at close range.”