Thursday, January 22, 2009
Readers’ Heads-Up
Guardian Publisher Sam Zherka will be appearing in Mount Vernon City Court on Wednesday, January 28th at 9:30 am in response to the recent Ethnic Profiling and First Amendment retaliation employed against him by Mount Vernon City Officials.
Injustice Against One Is Injustice Against All!
Thursday, January 22, 2009
Westchester Guardian/In Our Opinion/Our Readers Respond/Paul Redd.
Thursday, January 22, 2009.
In Our Opinion...
He Toiled That Others Might Enjoy Equality Of Opportunity
The Westchester community suffered a great loss Friday, January 9th with the passing of Paul Redd, one tough advocate for Black employment
opportunity, social and housing equality. We knew him as a man who was very direct with respect to his opinions, one who left no doubt about his agenda; and, one who never stopped advocating that agenda.
Paul truly believed that persistence overcomes resistance. He began writing for the Westchester County Press in 1961 and, for nearly five decades, he hammered home the need for openness of opportunity politically, and in all aspects of daily living, for African-American citizens, not only in Westchester, but everywhere, taking over ownership of the newspaper in 1986.
Born in Virginia, he came north to New York with his family in 1942 at age 14. He was a young activist, all of 28 years old, when, together with his wife Orial, he demonstrated for equality in public accomodations in Atlanta, Georgia, standing up to be counted, side-by-side with such giants of the civil rights movement as Dr. Martin Luther King, Jr. and Ralph Abernathy, in the Segregated South of 1956.
In May of 2005, We had the memorable experience of covering the Westchester Republican Committee’s nominating convention chaired by osemarie Paneo at the Crowne Plaza Hotel, White Plains, together with Paul. We had just gotten seated, together with approximately 100 Republican committee members, when somebody stepped up to the podium to announce that everyone was being asked to leave the room, line up in the corridor, and come back in only after showing proper identification and credentials.
For several minutes, it was touch and go regarding whether Paul Redd, a well-known Democrat, was going to be allowed back into the room. Paul
handled the matter good-naturedly, smiling and cracking jokes about the sudden belated screening process. Nevertheless, as I gazed around the
room, before the nominating event got underway, Paul was one of only two Black persons present. The other fellow was a video cameraman.
Perhaps the nervousness of the committee came from the fact that it had been less than 24 hours since DA Jeanine Pirro had finally announced that she would not be running for a fourth term, and Janet DiFiore was ripping off her judicial robes in haste to take her place.
Paul lived to see the fruits of his toil, including David Paterson, become the first Black governor of New York State, the defeat of Nick Spano by Andrea Stewart-Cousins for the 35th District State Senate seat, Malcolm Smith as State Senate Majority Leader, not to mention the election of President Barack Obama.
Paul’s contribution to all of the above is immeasureable, and We will miss his unique and untiring contributions to Westchester’s ever-evolving political commentary.
Our Readers Respond...
Reader Expresses Unending Concerns About Yonkers Police Brutality
Dear Editor:
As a concerned citizen, I’m writing about the unprofessional and brutal conduct of the Yonkers Police Department. They are a vicious and biased police agency. Certain judges like Arthur Doran III are basically in league with their actions.
Many people are needlessly arrested on trumped-up charges or ticketed beyond belief. Your past articles about their behavior has put a long-needed spotlight on a renegade police force. I commend you on this good work, and ask that you continue these editorials to make them somehow stop
this behavior of abuse and harm.
Finally, Detective Joe Rosulo of the Yonkers Police Department is just one example of this massive problem. He’s accused of robbing drug dealers and there are other Yonkers cops like him on this traitorous police force. In addition, there are numerous people who were set up by Yonkers cops that are now in jail or prison.
Moreover, the stories by Jeff Deskovic are well-written and heartbreaking. Tragically, there are people like him who were treated in a similar manner by the Yonkers Police Department.
I ask, respectfully, that you focus on their unjust plight, as well.
Mt. Vernon City Comptroller Speaks Up
Dear Editor:
It appears the Inspector General was appointed by the mayor with the specific instructions to “attack” the City Comptroller. After a short time on the job, he initiated an “OIG Report of PILOTS” which was done solely on my testimony at a City Council hearing. The ‘audit’ was done without any “first hand” investigation and contained numerous untruths and inaccuracies. The conclusion arrived at in that report was not supported by facts but represented the political views of the Inspector General.
The recently released report dated January 13, 2009 is riddled with inaccuracies, untruths, unfounded allegations and is basically a political document that appears to be the work of a desperate individual who is preparing to wage a run for public office against a political opponent. As an example of these unfounded allegations, the Inspector General reported that the Comptroller knowingly supplied an inaccurate Supplemental 2007 Financial Statement to the State. The Comptroller supplies the state with an audited IDA financial report each year. is report is prepared
by an IDA contracted CPA firm using financial information provided by the Comptroller. The Comptroller does not prepare or provide the state with Supplemental Schedules as alleged by the Inspector General.
The Inspector General who is being paid by the taxpayers of Mount Vernon does not appear to be performing any duties and/or functions associated with his office. The numerous situations in Mount Vernon City Government that warrant his attention are being ignored while he engages in a cheap political witch hunt that apparently targets one individual in City Hall: the City Comptroller. The Inspector General
had compromised his office and his integrity to the point that I am of the firm belief that he is incapable of performing the duties and functions for which he was appointed.
As the independent chief financial officer of the City of Mount Vernon, I can understand the objective of using the Inspector General to go after the ONLY elected official in City government who acts as a means of “checks and balances” on behalf of the residents of our City.
As I continue to examine the Inspector General’s report, I will be responding in detail to each and every one of his politically-motivated
and unfounded allegations.
Maureen Walker,
Mount Vernon City Comptroller
Reader Attacks Roe v Wade
Dear Editor:
On January 22 we will be at the Supreme Court steps at March for Life in Washington, D.C. because the President-elect who spoke about hope and freedom, also promised to enact the most extreme pro-abortion policies ever.
It is sad that so many believe that we are serving women by removing all limits on abortion. Abortion has degraded the value of every life by abstract decisions of who lives and who does not. It has placed the welfare of pregnant minor children out of the safety and support of parents who love them, and into the hands of a life-destroying industry. “Freedom of choice” has become the ultimate bondage for countless women who mourn their unborn children, and for some who recognize now that these were the only children they will ever have.
The price of sexual freedom is the increasing list of communicable diseases, and regret for a lifetime for those who contract them. Abortion has secured the right of irresponsible behavior and abandonment by some men. Even simple protections for women seeking abortions are not
passed out of fear of overturning Roe v Wade. Protecting the right to abortion at any time, any way, and for any reason has become more important than the women it professes to protect.
Abortion is not a woman’s “right” that has set her free; it is an act that has objectified her in the very way she fought against, only now legally. Women have been duped by an industry that seeks nothing but its own profit and political influence, while destroying innocent life and countless families.
In time truth will win out, but I fear the many more lives lost and the long suffering that will come as a result if this new Administration’s
policies are enacted.
We will continue to reach out to those suffering no matter the cost or the consequence, and we will continue to speak about the lie of
abortion to every Administration. So, if you are suffering because of a past abortion, join us in Washington or visit us at http://www.postabortionhelp.org/ or e-mail lumina@postabortionhelp.org.
Theresa Bonopartis
Director of Lumina, Help and Healing
After Abortion and a member of Silent No More
Reader Troubled By Injustice In Paul Cote Case
Dear Editor:
As an avid reader of your weekly newspaper, I want to commend you on the recent article for Paul Cote. It is an utter disgrace this matter
is going on for 8 long years. It is inevitable a frame-up is in perspective. Your support for Mr. Cote is admirable in trying to bring out the truth in the case.
Keep up the good work.
Anne Bauer,
Rye
In Our Opinion...
He Toiled That Others Might Enjoy Equality Of Opportunity
The Westchester community suffered a great loss Friday, January 9th with the passing of Paul Redd, one tough advocate for Black employment
opportunity, social and housing equality. We knew him as a man who was very direct with respect to his opinions, one who left no doubt about his agenda; and, one who never stopped advocating that agenda.
Paul truly believed that persistence overcomes resistance. He began writing for the Westchester County Press in 1961 and, for nearly five decades, he hammered home the need for openness of opportunity politically, and in all aspects of daily living, for African-American citizens, not only in Westchester, but everywhere, taking over ownership of the newspaper in 1986.
Born in Virginia, he came north to New York with his family in 1942 at age 14. He was a young activist, all of 28 years old, when, together with his wife Orial, he demonstrated for equality in public accomodations in Atlanta, Georgia, standing up to be counted, side-by-side with such giants of the civil rights movement as Dr. Martin Luther King, Jr. and Ralph Abernathy, in the Segregated South of 1956.
In May of 2005, We had the memorable experience of covering the Westchester Republican Committee’s nominating convention chaired by osemarie Paneo at the Crowne Plaza Hotel, White Plains, together with Paul. We had just gotten seated, together with approximately 100 Republican committee members, when somebody stepped up to the podium to announce that everyone was being asked to leave the room, line up in the corridor, and come back in only after showing proper identification and credentials.
For several minutes, it was touch and go regarding whether Paul Redd, a well-known Democrat, was going to be allowed back into the room. Paul
handled the matter good-naturedly, smiling and cracking jokes about the sudden belated screening process. Nevertheless, as I gazed around the
room, before the nominating event got underway, Paul was one of only two Black persons present. The other fellow was a video cameraman.
Perhaps the nervousness of the committee came from the fact that it had been less than 24 hours since DA Jeanine Pirro had finally announced that she would not be running for a fourth term, and Janet DiFiore was ripping off her judicial robes in haste to take her place.
Paul lived to see the fruits of his toil, including David Paterson, become the first Black governor of New York State, the defeat of Nick Spano by Andrea Stewart-Cousins for the 35th District State Senate seat, Malcolm Smith as State Senate Majority Leader, not to mention the election of President Barack Obama.
Paul’s contribution to all of the above is immeasureable, and We will miss his unique and untiring contributions to Westchester’s ever-evolving political commentary.
Our Readers Respond...
Reader Expresses Unending Concerns About Yonkers Police Brutality
Dear Editor:
As a concerned citizen, I’m writing about the unprofessional and brutal conduct of the Yonkers Police Department. They are a vicious and biased police agency. Certain judges like Arthur Doran III are basically in league with their actions.
Many people are needlessly arrested on trumped-up charges or ticketed beyond belief. Your past articles about their behavior has put a long-needed spotlight on a renegade police force. I commend you on this good work, and ask that you continue these editorials to make them somehow stop
this behavior of abuse and harm.
Finally, Detective Joe Rosulo of the Yonkers Police Department is just one example of this massive problem. He’s accused of robbing drug dealers and there are other Yonkers cops like him on this traitorous police force. In addition, there are numerous people who were set up by Yonkers cops that are now in jail or prison.
Moreover, the stories by Jeff Deskovic are well-written and heartbreaking. Tragically, there are people like him who were treated in a similar manner by the Yonkers Police Department.
I ask, respectfully, that you focus on their unjust plight, as well.
Mt. Vernon City Comptroller Speaks Up
Dear Editor:
It appears the Inspector General was appointed by the mayor with the specific instructions to “attack” the City Comptroller. After a short time on the job, he initiated an “OIG Report of PILOTS” which was done solely on my testimony at a City Council hearing. The ‘audit’ was done without any “first hand” investigation and contained numerous untruths and inaccuracies. The conclusion arrived at in that report was not supported by facts but represented the political views of the Inspector General.
The recently released report dated January 13, 2009 is riddled with inaccuracies, untruths, unfounded allegations and is basically a political document that appears to be the work of a desperate individual who is preparing to wage a run for public office against a political opponent. As an example of these unfounded allegations, the Inspector General reported that the Comptroller knowingly supplied an inaccurate Supplemental 2007 Financial Statement to the State. The Comptroller supplies the state with an audited IDA financial report each year. is report is prepared
by an IDA contracted CPA firm using financial information provided by the Comptroller. The Comptroller does not prepare or provide the state with Supplemental Schedules as alleged by the Inspector General.
The Inspector General who is being paid by the taxpayers of Mount Vernon does not appear to be performing any duties and/or functions associated with his office. The numerous situations in Mount Vernon City Government that warrant his attention are being ignored while he engages in a cheap political witch hunt that apparently targets one individual in City Hall: the City Comptroller. The Inspector General
had compromised his office and his integrity to the point that I am of the firm belief that he is incapable of performing the duties and functions for which he was appointed.
As the independent chief financial officer of the City of Mount Vernon, I can understand the objective of using the Inspector General to go after the ONLY elected official in City government who acts as a means of “checks and balances” on behalf of the residents of our City.
As I continue to examine the Inspector General’s report, I will be responding in detail to each and every one of his politically-motivated
and unfounded allegations.
Maureen Walker,
Mount Vernon City Comptroller
Reader Attacks Roe v Wade
Dear Editor:
On January 22 we will be at the Supreme Court steps at March for Life in Washington, D.C. because the President-elect who spoke about hope and freedom, also promised to enact the most extreme pro-abortion policies ever.
It is sad that so many believe that we are serving women by removing all limits on abortion. Abortion has degraded the value of every life by abstract decisions of who lives and who does not. It has placed the welfare of pregnant minor children out of the safety and support of parents who love them, and into the hands of a life-destroying industry. “Freedom of choice” has become the ultimate bondage for countless women who mourn their unborn children, and for some who recognize now that these were the only children they will ever have.
The price of sexual freedom is the increasing list of communicable diseases, and regret for a lifetime for those who contract them. Abortion has secured the right of irresponsible behavior and abandonment by some men. Even simple protections for women seeking abortions are not
passed out of fear of overturning Roe v Wade. Protecting the right to abortion at any time, any way, and for any reason has become more important than the women it professes to protect.
Abortion is not a woman’s “right” that has set her free; it is an act that has objectified her in the very way she fought against, only now legally. Women have been duped by an industry that seeks nothing but its own profit and political influence, while destroying innocent life and countless families.
In time truth will win out, but I fear the many more lives lost and the long suffering that will come as a result if this new Administration’s
policies are enacted.
We will continue to reach out to those suffering no matter the cost or the consequence, and we will continue to speak about the lie of
abortion to every Administration. So, if you are suffering because of a past abortion, join us in Washington or visit us at http://www.postabortionhelp.org/ or e-mail lumina@postabortionhelp.org.
Theresa Bonopartis
Director of Lumina, Help and Healing
After Abortion and a member of Silent No More
Reader Troubled By Injustice In Paul Cote Case
Dear Editor:
As an avid reader of your weekly newspaper, I want to commend you on the recent article for Paul Cote. It is an utter disgrace this matter
is going on for 8 long years. It is inevitable a frame-up is in perspective. Your support for Mr. Cote is admirable in trying to bring out the truth in the case.
Keep up the good work.
Anne Bauer,
Rye
Westchester Guardian/The Court Report.
Thursday, January 22, 2009
The Court Report
By Richard Blassberg
Guilty Verdict Against Man Caught With
Pornographic Images Of 4-Year-Old Stepdaughter
LEV L. DASSIN, the Acting United States Attorney for the Southern District of New York, announced that yesterday, after a six-day jury trial
before United States District Judge RICHARD J. SULLIVAN, WILLIAM DAVIS was found guilty of possessing, producing, and attempting to
mail child pornography, as well as of possessing ammunition following a prior felony conviction.
According to the Indictment and the evidence at trial: The case began on January 4, 2007, when DAVIS was arrested at a motel in Ardsley, New York, in connection with a separate investigation by the Ardsley Police Department and the Westchester County Police Department.
Pornographic images of the defendant’s then four-year old stepdaughter were found at that time inside DAVIS’s backpack, in sealed envelopes ready to be mailed. A subsequent search of DAVIS’s personal safe revealed a collection of hundreds of images of child pornography, some involving infants. Ammunition and a taser gun were also found.
DAVIS was charged with one count each of possession of child pornography, production of child pornography, and attempting to mail child pornography. In addition, because DAVIS had a prior felony conviction, he was charged with illegal possession of ammunition. DAVIS was
found guilty on all counts.
DAVIS, 48, of New York, New York, faces a mandatory minimum sentence of 35 years’ imprisonment and a maximum of life imprisonment
on the charge of producing child pornography; a mandatory minimum of 15 years and a maximum of 40 years for attempted mailing of child pornography; a mandatory minimum of 10 years and a maximum of 20 years for possession of child pornography; and a maximum sentence of 10 years’ imprisonment for possession of ammunition as a prior-convicted felon.
Sentencing is scheduled for April 24, 2009.
Mr. DASSIN praised the work of the Federal Bureau of Investigation, the Ardsley Police Department, and the Westchester County Police Department in connection with the investigation and prosecution, and thanked the Westchester County District Attorney’s Office for its assistance.
Assistant United States Attorney AIMEE HECTOR is in charge of the prosecution.
The Court Report
By Richard Blassberg
Guilty Verdict Against Man Caught With
Pornographic Images Of 4-Year-Old Stepdaughter
LEV L. DASSIN, the Acting United States Attorney for the Southern District of New York, announced that yesterday, after a six-day jury trial
before United States District Judge RICHARD J. SULLIVAN, WILLIAM DAVIS was found guilty of possessing, producing, and attempting to
mail child pornography, as well as of possessing ammunition following a prior felony conviction.
According to the Indictment and the evidence at trial: The case began on January 4, 2007, when DAVIS was arrested at a motel in Ardsley, New York, in connection with a separate investigation by the Ardsley Police Department and the Westchester County Police Department.
Pornographic images of the defendant’s then four-year old stepdaughter were found at that time inside DAVIS’s backpack, in sealed envelopes ready to be mailed. A subsequent search of DAVIS’s personal safe revealed a collection of hundreds of images of child pornography, some involving infants. Ammunition and a taser gun were also found.
DAVIS was charged with one count each of possession of child pornography, production of child pornography, and attempting to mail child pornography. In addition, because DAVIS had a prior felony conviction, he was charged with illegal possession of ammunition. DAVIS was
found guilty on all counts.
DAVIS, 48, of New York, New York, faces a mandatory minimum sentence of 35 years’ imprisonment and a maximum of life imprisonment
on the charge of producing child pornography; a mandatory minimum of 15 years and a maximum of 40 years for attempted mailing of child pornography; a mandatory minimum of 10 years and a maximum of 20 years for possession of child pornography; and a maximum sentence of 10 years’ imprisonment for possession of ammunition as a prior-convicted felon.
Sentencing is scheduled for April 24, 2009.
Mr. DASSIN praised the work of the Federal Bureau of Investigation, the Ardsley Police Department, and the Westchester County Police Department in connection with the investigation and prosecution, and thanked the Westchester County District Attorney’s Office for its assistance.
Assistant United States Attorney AIMEE HECTOR is in charge of the prosecution.
Thursday, January 15, 2009
Westchester Guardian/Jeffrey Deskovic.
Jeff Deskovic
DNA Testing: Only As Good As The Laboratory
Part 1
DNA has become a universally acknowledged crime fighting tool, capable of conclusively proving guilt or innocence. Indeed, it is often referred
to as “the gold standard”. Those who are familiar with my own story know that, but for DNA, I would still be in prison for a murder and a rape
that I was totally innocent of. But, the reliability of DNA is dependent on a variety of factors that the average person may not be fully aware of.
Firstly, the evidence containing DNA must have been properly preserved. The tests must be performed while using all of the correct protocols
and procedures, taking care that no contamination takes place either during the testing or during the preservation process. Of equal importance
are the individuals who work in the labs where DNA is tested. They are supposed to be scientists who are objective and dedicated to the truth.
There is no excuse for those who must obtain results that law enforcement needs in order to prove someone’s guilt. Unfortunately the above
standards are not always met, and the resulting fallout can be frightening. The following information was taken from e Houston Metro regarding
the crime lab in that city: “Michael Browich a former U.S. Justice Department inspector appointed two years ago to oversee an independent investigation of the Houston lab, issued a 400-page report. The report cites hundreds of ‘serious and pervasive’ flaws in forensic cases mishandled by the lab’s DNA and serology sections. He reviewed how evidence was processed in more than 3,500 cases handled by the lab in the past 25 years.
Although the report commends the city’s efforts to rebuild the crime lab over the past two years, it also highlights ‘major issues’ identified in
both DNA and blood-analysis cases handled by the lab from the 1980s to 2002. ‘The crime lab’s substandard, unreliable serology and DNA work is
all the more alarming in light of the fact that it is typically performed in the most serious cases, such as homicides and sexual assaults,’ the report
said. e investigation’s review of 135 sample DNA cases analyzed by the crime lab from 1992 to 2002 identi-fied ‘major issues’ in 43 of them. The
review covered all 18 death penalty cases that involved DNA analysis in that time. It identified major issues in the cases of four death-row inmates.
Bromwich’s report suggested the special master be appointed to review 180 blood-analysis cases from the 1980s and early 1990s involving convicts now in prison. But Houston Mayor Bill White, Police Chief Harold Hurtt and Harris County District Attorney Chuck Rosenthal said Wednesday they saw no need for a special master and that such reviews should be done by the police department, the district attorney’s office
and the courts.”
Further information about the Houston crime lab was published in e New York Times:
“Officials even failed to take proper action when two laboratory analysts were cited for four instances of fabricating scientific evidence, or drylabbing, said the investigator, Michael R. Bromwich, a Washington lawyer and former Justice Department inspector general called in by the city
to conduct the review. The DNA section of the laboratory was shut down in scandal in 2002, but other units continued operating and have been
accredited under new leadership. Wrapping up a 90-day investigation into general management problems going back to 1987, Mr. Bromwich said
he was now preparing a second-phase examining more than 2,000 criminal cases handled over the years by the laboratory’s six sections including DNA and serology, or bodily fluids.
That section is the only Houston unit still shut down, requiring the department to send out its DNA evidence for analysis. Yet to be determined,
the report said, was whether the lapses were ‘isolated breakdowns or only the tip of an iceberg.’ Among cases to be studied were three high-profile convictions, including one for murder, based on faulty laboratory evidence. ‘The findings are extremely troubling,’ said Mr. Bromwich, a partner at Fried, Frank, Harris, Shriver & Jacobson, in an interview after presenting his report. But he said, ‘Houston is not alone in having this problem.’ As the Justice Department’s top internal watchdog from 1994 to 1999, he exposed sloppy work and false testimony by F.B.I. laboratory scientists. Other state crime labs have also come under fire.”
But some of the Houston’s report’s language was particularly scathing. By the time a state audit in 2002 confirmed problems exposed by a local television station, KHOU, Mr. Bromwich reported, “the DNA Section was in shambles - plagued by a leaky roof, operating for years without a line supervisor, overseen by a technical leader who had no personal experience performing DNA analysis and who was lacking the qualifications under the F.B.I. standards, staffed by underpaid and under-trained analysts, and generating mistake-ridden and poorly documented casework.”
By 2002, the number of untested rape kits had grown to 19,500, some dating back to 1980, and the backlog is still about 10,000, the report said. Tropical Storm Allison in 2001 flooded the laboratory, and in 33 homicide and rape cases, employees were quoted as reporting, “this biological evidence had become so saturated with water that they observed bloody water dripping out of the boxes containing the evidence and pooling on the floor.”
The problem has not been limited only to Houston. According to an article published in the Seattlepie.com, there have been problems in the Washington State Crime Lab regarding DNA contamination and other errors. The following information is taken from that article. The article
cited 23 examples, I will list only some of them:
“Example #1:
Problem: Cross-contamination;
When and where: July 2002, Spokane lab;
Forensic scientist: Lisa Turpen; Case: child rape;
What happened: Turpen contaminated one of four vaginal swabs with semen from a positive control sample. Corrected report issued almost two years later in March 2004. ....Yakima prosecutors offered plea deal during the trial, wit defendant pleading guilty to two gross misdemeanors.
Turpen’s mistake was a factor, according to defense.
Example #2:
Problem: Erroneous lab report;
When and where: August 2002, Seattle lab;
Forensic scientist: William Stubbs;
Case: Fatal police shooting of Robert Thomas;
What happened: Two hours before testifying at inquest, Stubbs discovered his crime lab report was wrong and notified prosecutor. His report said test found brown stain on gun was likely blood, but his notes had no indication of blood. ... Corrected report issued in September 2002. ... Co-worker reviewing case did not catch mistake.
Example #3:
Problem: Self-contamination
When and where: April 2001, Spokane lab
Forensic scientists: Charles Solomon, Lisa Turpen
Case: rape/kidnapping/assault
What happened: In separate tests, Solomon and Turpen contaminated hair-root tests with their own DNA. Solomon also contaminated reference
blood sample with his DNA. ...Three defendants were convicted.
Example #4:
Problem: Testing error
When and where: September 2002, Marysville lab
Forensic scientist: Mike Croteau
Case: robbery/assault
What happened: Rushing to meet deadlines, Croteau mixed up reference samples from victim and suspect. He reported incorrect findings verbally to prosecutor, then discovered his mistake. ... Defendant pleaded guilty.
Example #5:
Problem: Cross-contamination
When and where: August 2003, Seattle lab
Forensic scientist: Robin Bussoletti
Case: homicide
What happened: Bussoletti likely contaminated work surface while testing a blood sample from a convicted felon during training. Next DNA analyst who used work station noticed contamination in chemical solution that is not supposed to contain DNA.
Example #6
Problem: Cross-contamination;
When and where: January 2004, Tacoma lab;
Forensic scientist: Jeremy Sanderson;
Case: child rape;
What happened: Sanderson failed to change gloves between handling evidence in two cases. He noticed contamination in chemical solution.
... Defendant convicted and sent to prison.
Example #7:
Problem: Error during testing;
When and where: June 2002, Seattle lab;
Forensic scientist: Denise Olson;
Case: aggravated murder; What happened: Olson did initial test to look for blood on shoes. She got weak positive result, then threw out swabs. She didn’t document findings or notify police. Kirkland police complained because discarded swabs couldn’t be tested for DNA. ... Shoes sent to private lab for retesting. ... Defendant Kim Mason convicted and sentenced to life without release.
Example #8:
Problem: Error in DNA test interpretation;
When and where: October 1998, Seattle lab;
Forensic scientist: George Chan;
Case: rape;
What happened: Chan misstated statistical likelihood of match with suspect. Co-worker reviewing case didn’t catch error. ... Pierce County prosecutor noticed mistake at pretrial conference in September 2000. ... Defendant convicted.
Example #9:
Problem: Error in testing procedure;
When and where: September 2002, Seattle lab;
Forensic scientist: Denise Olson;
Case: robbery/assault What happened: Olson tested known DNA samples before evidence collected at crime scene -- a violation of lab procedure
aimed at preventing cross-contamination. A co-worker caught the mistake while reviewing the case.... Tests were redone. ... Defendant pleaded guilty.
Example #10:
Problem: Self-contamination;
When and where: November 2002, Tacoma lab;
Forensic scientist: Mike Dornan;
Case: rape What happened: Dornan contaminated DNA test of victim’s underwear with his own DNA. May have resulted from talking during testing process.... Defendant pleaded guilty.
Example #11:
Problem: Unknown source of contamination;
When and where: January 2004, Tacoma lab;
Forensic scientist: Christopher Sewell;
Case: homicide;
What happened: Sewell found low level of DNA from unknown source in blood sample from victim. May have come from blood transfusion
of victim before death. ... Case pending.
Example #12:
Problem: Self-contamination;
When and where: March 2004, Tacoma lab;
Forensic scientist: William Dean;
Case: rape;
What happened: Dean contaminated control sample with his own DNA while testing police evidence. ... No suspect. According to The Boston Globe: “The civilian head of the crime lab resigned under pressure, and the administrator of the lab’s DNA database Robert Pino was fired after
he was suspended for allegedly mishandling CODIS test results, including 13 cases in which he did not tell law enforcement officials about positive DNA matches in unsolved sexual assault cases until after the statute of limitations had expired. Also last year, the state’s top forensics official,
who supervised the crime lab and the troubled state medical examiner’s of-fice, resigned.”
The following information was taken from The Detroit News: “Criminal justice officials are struggling to calculate the impact of an audit released Thursday that exposed rampant problems in the Detroit Police firearms laboratory and resulted in the shutdown of the department’s entire crime lab. The Michigan State Police audit of the city’s gun lab, which began in June after firearms evidence was found to be tainted, revealed a systemic problem that calls into question all forensic evidence handled in the city’s police laboratory over the past several years, Wayne County Prosecutor Kym Worthy said.
‘This opens a huge can of worms,’ Worthy said. ‘If the quality system is failing in one forensic discipline, it is highly likely to be an indicator of a severe problem that affects other forensic disciplines as well.’ University of Michigan law professor David A. Moran, who saw the audit, said a ‘decent lab’ would have an error rate almost 10 times less than what auditors found in Detroit. ‘When you’re dealing with human beings, you can expect some errors,’ Moran said. ‘But a decent lab would have an error rate of under one percent. A 10 percent rate is absolutely shocking.’
The problems mean there potentially could be people imprisoned for crimes they did not commit -- and there also could be dangerous criminals on the loose, Worthy said. ‘We have no idea how many criminals have gone uncharged as a result of the problems in the crime lab,’ she said. Detroit Mayor Kenneth Cockrel Jr. decided to shut down the department’s entire crime lab, which also handles DNA and blood analysis, fingerprinting and
drug evidence, after seeing the audit’s results.”
DNA Testing: Only As Good As The Laboratory
Part 1
DNA has become a universally acknowledged crime fighting tool, capable of conclusively proving guilt or innocence. Indeed, it is often referred
to as “the gold standard”. Those who are familiar with my own story know that, but for DNA, I would still be in prison for a murder and a rape
that I was totally innocent of. But, the reliability of DNA is dependent on a variety of factors that the average person may not be fully aware of.
Firstly, the evidence containing DNA must have been properly preserved. The tests must be performed while using all of the correct protocols
and procedures, taking care that no contamination takes place either during the testing or during the preservation process. Of equal importance
are the individuals who work in the labs where DNA is tested. They are supposed to be scientists who are objective and dedicated to the truth.
There is no excuse for those who must obtain results that law enforcement needs in order to prove someone’s guilt. Unfortunately the above
standards are not always met, and the resulting fallout can be frightening. The following information was taken from e Houston Metro regarding
the crime lab in that city: “Michael Browich a former U.S. Justice Department inspector appointed two years ago to oversee an independent investigation of the Houston lab, issued a 400-page report. The report cites hundreds of ‘serious and pervasive’ flaws in forensic cases mishandled by the lab’s DNA and serology sections. He reviewed how evidence was processed in more than 3,500 cases handled by the lab in the past 25 years.
Although the report commends the city’s efforts to rebuild the crime lab over the past two years, it also highlights ‘major issues’ identified in
both DNA and blood-analysis cases handled by the lab from the 1980s to 2002. ‘The crime lab’s substandard, unreliable serology and DNA work is
all the more alarming in light of the fact that it is typically performed in the most serious cases, such as homicides and sexual assaults,’ the report
said. e investigation’s review of 135 sample DNA cases analyzed by the crime lab from 1992 to 2002 identi-fied ‘major issues’ in 43 of them. The
review covered all 18 death penalty cases that involved DNA analysis in that time. It identified major issues in the cases of four death-row inmates.
Bromwich’s report suggested the special master be appointed to review 180 blood-analysis cases from the 1980s and early 1990s involving convicts now in prison. But Houston Mayor Bill White, Police Chief Harold Hurtt and Harris County District Attorney Chuck Rosenthal said Wednesday they saw no need for a special master and that such reviews should be done by the police department, the district attorney’s office
and the courts.”
Further information about the Houston crime lab was published in e New York Times:
“Officials even failed to take proper action when two laboratory analysts were cited for four instances of fabricating scientific evidence, or drylabbing, said the investigator, Michael R. Bromwich, a Washington lawyer and former Justice Department inspector general called in by the city
to conduct the review. The DNA section of the laboratory was shut down in scandal in 2002, but other units continued operating and have been
accredited under new leadership. Wrapping up a 90-day investigation into general management problems going back to 1987, Mr. Bromwich said
he was now preparing a second-phase examining more than 2,000 criminal cases handled over the years by the laboratory’s six sections including DNA and serology, or bodily fluids.
That section is the only Houston unit still shut down, requiring the department to send out its DNA evidence for analysis. Yet to be determined,
the report said, was whether the lapses were ‘isolated breakdowns or only the tip of an iceberg.’ Among cases to be studied were three high-profile convictions, including one for murder, based on faulty laboratory evidence. ‘The findings are extremely troubling,’ said Mr. Bromwich, a partner at Fried, Frank, Harris, Shriver & Jacobson, in an interview after presenting his report. But he said, ‘Houston is not alone in having this problem.’ As the Justice Department’s top internal watchdog from 1994 to 1999, he exposed sloppy work and false testimony by F.B.I. laboratory scientists. Other state crime labs have also come under fire.”
But some of the Houston’s report’s language was particularly scathing. By the time a state audit in 2002 confirmed problems exposed by a local television station, KHOU, Mr. Bromwich reported, “the DNA Section was in shambles - plagued by a leaky roof, operating for years without a line supervisor, overseen by a technical leader who had no personal experience performing DNA analysis and who was lacking the qualifications under the F.B.I. standards, staffed by underpaid and under-trained analysts, and generating mistake-ridden and poorly documented casework.”
By 2002, the number of untested rape kits had grown to 19,500, some dating back to 1980, and the backlog is still about 10,000, the report said. Tropical Storm Allison in 2001 flooded the laboratory, and in 33 homicide and rape cases, employees were quoted as reporting, “this biological evidence had become so saturated with water that they observed bloody water dripping out of the boxes containing the evidence and pooling on the floor.”
The problem has not been limited only to Houston. According to an article published in the Seattlepie.com, there have been problems in the Washington State Crime Lab regarding DNA contamination and other errors. The following information is taken from that article. The article
cited 23 examples, I will list only some of them:
“Example #1:
Problem: Cross-contamination;
When and where: July 2002, Spokane lab;
Forensic scientist: Lisa Turpen; Case: child rape;
What happened: Turpen contaminated one of four vaginal swabs with semen from a positive control sample. Corrected report issued almost two years later in March 2004. ....Yakima prosecutors offered plea deal during the trial, wit defendant pleading guilty to two gross misdemeanors.
Turpen’s mistake was a factor, according to defense.
Example #2:
Problem: Erroneous lab report;
When and where: August 2002, Seattle lab;
Forensic scientist: William Stubbs;
Case: Fatal police shooting of Robert Thomas;
What happened: Two hours before testifying at inquest, Stubbs discovered his crime lab report was wrong and notified prosecutor. His report said test found brown stain on gun was likely blood, but his notes had no indication of blood. ... Corrected report issued in September 2002. ... Co-worker reviewing case did not catch mistake.
Example #3:
Problem: Self-contamination
When and where: April 2001, Spokane lab
Forensic scientists: Charles Solomon, Lisa Turpen
Case: rape/kidnapping/assault
What happened: In separate tests, Solomon and Turpen contaminated hair-root tests with their own DNA. Solomon also contaminated reference
blood sample with his DNA. ...Three defendants were convicted.
Example #4:
Problem: Testing error
When and where: September 2002, Marysville lab
Forensic scientist: Mike Croteau
Case: robbery/assault
What happened: Rushing to meet deadlines, Croteau mixed up reference samples from victim and suspect. He reported incorrect findings verbally to prosecutor, then discovered his mistake. ... Defendant pleaded guilty.
Example #5:
Problem: Cross-contamination
When and where: August 2003, Seattle lab
Forensic scientist: Robin Bussoletti
Case: homicide
What happened: Bussoletti likely contaminated work surface while testing a blood sample from a convicted felon during training. Next DNA analyst who used work station noticed contamination in chemical solution that is not supposed to contain DNA.
Example #6
Problem: Cross-contamination;
When and where: January 2004, Tacoma lab;
Forensic scientist: Jeremy Sanderson;
Case: child rape;
What happened: Sanderson failed to change gloves between handling evidence in two cases. He noticed contamination in chemical solution.
... Defendant convicted and sent to prison.
Example #7:
Problem: Error during testing;
When and where: June 2002, Seattle lab;
Forensic scientist: Denise Olson;
Case: aggravated murder; What happened: Olson did initial test to look for blood on shoes. She got weak positive result, then threw out swabs. She didn’t document findings or notify police. Kirkland police complained because discarded swabs couldn’t be tested for DNA. ... Shoes sent to private lab for retesting. ... Defendant Kim Mason convicted and sentenced to life without release.
Example #8:
Problem: Error in DNA test interpretation;
When and where: October 1998, Seattle lab;
Forensic scientist: George Chan;
Case: rape;
What happened: Chan misstated statistical likelihood of match with suspect. Co-worker reviewing case didn’t catch error. ... Pierce County prosecutor noticed mistake at pretrial conference in September 2000. ... Defendant convicted.
Example #9:
Problem: Error in testing procedure;
When and where: September 2002, Seattle lab;
Forensic scientist: Denise Olson;
Case: robbery/assault What happened: Olson tested known DNA samples before evidence collected at crime scene -- a violation of lab procedure
aimed at preventing cross-contamination. A co-worker caught the mistake while reviewing the case.... Tests were redone. ... Defendant pleaded guilty.
Example #10:
Problem: Self-contamination;
When and where: November 2002, Tacoma lab;
Forensic scientist: Mike Dornan;
Case: rape What happened: Dornan contaminated DNA test of victim’s underwear with his own DNA. May have resulted from talking during testing process.... Defendant pleaded guilty.
Example #11:
Problem: Unknown source of contamination;
When and where: January 2004, Tacoma lab;
Forensic scientist: Christopher Sewell;
Case: homicide;
What happened: Sewell found low level of DNA from unknown source in blood sample from victim. May have come from blood transfusion
of victim before death. ... Case pending.
Example #12:
Problem: Self-contamination;
When and where: March 2004, Tacoma lab;
Forensic scientist: William Dean;
Case: rape;
What happened: Dean contaminated control sample with his own DNA while testing police evidence. ... No suspect. According to The Boston Globe: “The civilian head of the crime lab resigned under pressure, and the administrator of the lab’s DNA database Robert Pino was fired after
he was suspended for allegedly mishandling CODIS test results, including 13 cases in which he did not tell law enforcement officials about positive DNA matches in unsolved sexual assault cases until after the statute of limitations had expired. Also last year, the state’s top forensics official,
who supervised the crime lab and the troubled state medical examiner’s of-fice, resigned.”
The following information was taken from The Detroit News: “Criminal justice officials are struggling to calculate the impact of an audit released Thursday that exposed rampant problems in the Detroit Police firearms laboratory and resulted in the shutdown of the department’s entire crime lab. The Michigan State Police audit of the city’s gun lab, which began in June after firearms evidence was found to be tainted, revealed a systemic problem that calls into question all forensic evidence handled in the city’s police laboratory over the past several years, Wayne County Prosecutor Kym Worthy said.
‘This opens a huge can of worms,’ Worthy said. ‘If the quality system is failing in one forensic discipline, it is highly likely to be an indicator of a severe problem that affects other forensic disciplines as well.’ University of Michigan law professor David A. Moran, who saw the audit, said a ‘decent lab’ would have an error rate almost 10 times less than what auditors found in Detroit. ‘When you’re dealing with human beings, you can expect some errors,’ Moran said. ‘But a decent lab would have an error rate of under one percent. A 10 percent rate is absolutely shocking.’
The problems mean there potentially could be people imprisoned for crimes they did not commit -- and there also could be dangerous criminals on the loose, Worthy said. ‘We have no idea how many criminals have gone uncharged as a result of the problems in the crime lab,’ she said. Detroit Mayor Kenneth Cockrel Jr. decided to shut down the department’s entire crime lab, which also handles DNA and blood analysis, fingerprinting and
drug evidence, after seeing the audit’s results.”
Westchester Guardian/Catherine Wilson.
Thursday, January 15, 2009
Catherine Wilson, Bureau Chief
Northern Westchester
State, and Local School Board React
To Guardian Article on Lack of
Administrative Controls
In early November, we published an article concerning the lack of proper administrative procedures in our local school districts. In that article, we noted how one district’s lack of compliance with state-mandated controls, Mt. Pleasant, adversely affected the lives of the young players on their high school soccer team by stripping them of their championship rankings due to a series of inept clerical errors and total lack of administrative controls and reviews.
We can now report that there have been two recent significant developments in that story. First, the school district superintendent, Dr. Alfred Lodovico, recently resigned his position, effective as of December 31, 2008. Readers may recall that Dr. Lodovico issued a curt response to the Guardian in November, dismissing our FOIL request for the district’s administrative policies and procedures: “THIS SOCCER ISSUE IS A PERSONNEL MATTER. NOTHING MORE THAN WAS DISCUSSED AT LAST NIGHT’S MEETING IS APPROPRIATE”.
As we noted in our article, the use of “all caps” in business communications is considered to be the equivalent of shouting. But we also questioned “why is an experienced educator dictating to a journalist what is, or is not, ‘appropriate’ to report?” The official board announcement of Dr. Lodovico’s “retirement” was sent to parents in the district during the December school break. Since his “retirement”
was effective December 31, 2008, before the school term recommenced, the district deftly avoided the usual elaborate sendoffs that generally accompany superintendent retirements and any further interactions between Lodovico and the district’s parents and students.
Planning for retirement is not something that happens overnight. Dr. Lodovico would have probably known for some time if he was really thinking of retiring this year. In addition, most school administrators and teachers time their retirements with the end of the school year in June, not for December, or any other month, since they do not wish to disrupt the education of the students entrusted to their care. In addition, Dr. Lodovico served the Mt. Pleasant school district for 29 years and undoubtedly developed many relationships in the school district during that time. Therefore, had he truly been planning on retiring in December, the official announcement would most likely
have been made while school was still in session, allowing the staff/teachers, parents, students, and Dr. Lodovico himself, an opportunity
to “say goodbye”. Instead, the official district announcement was made after Lodovico had already left, a telling sign.
Even the announcement headline itself from the school district was disingenuous: “Dr. Lodovico to retire from district”. Any parent or student who did not read the smaller print in the notice would be forgiven for assuming Dr. Lodovico had not retired yet and would be staying until the end of the school year, as is the usual custom.
In the same newsletter to local residents, the district made an off-handed acknowledgement to the soccer incident noting in a small blurb, “The boys’ soccer team played heads-up ball all season but unfortunately had to forfeit post-season play”. The district did not take any
official responsibility for the fact that the incident was entirely their fault. Had anyone in the district and school administration noticed
that one of the players was 20 years of age, and therefore too old according to long-established BOCES rules for high school sports,
the undefeated soccer team would have been league champions in November, instead of disheartened teenagers, stripped of their athletic records; teenagers who put their misguided trust into inept officials; officials who did not even have the decency to offer an official apology to them “on the record”.
What is the school district teaching their students with that attitude and behavior? If you do wrong never admit it, but rather gloss it over with a coy statement? In addition to Dr. Lodovico’s quick departure, the New York State Comptroller’s office just noti-fied the Mt. Pleasant schools that they will be conducting a three-month audit of their district in the upcoming months. The school board announced that this audit is merely “required by law”. However the school board president, Marisa Carbone, did not inform the parents of the other legal requirements
of the State Comptroller’s office, many of which the district appears to be lacking in compliance with:
• Training of school board members on financial oversight responsibilities;
• Establishment of an internal audit function in each school district;
• Creation of an Audit Committee
• A competitive process for selecting external auditors;
• Improvement of the effectiveness of external audits, including increased testing, rigorous corrective action plans, and realignment of the claims audit function, directly reporting to the school board. As we noted in our article in November, ‘Dr. Lodovico admitted in a closed-door school board meeting [that this reporter attended] that the “policies and procedures for [this] function were not documented”. Documenting
policies and procedures for all functions is one of the basic tenets of internal controls. If the District adopted the five points in State Comptroller Hevesi’s plan, it would have established an internal auditor. A basic audit would have revealed the lack of documentation.
So why, four years after the state laws mandating them, do our schools still not have even elementary internal controls?’ We promised our readers to find out. We have already contacted the state auditors with a request for their findings in this audit. We shall keep our readers informed as to the results of the state audit and any other developments in this case.
SUNY Tuition Hikes
In our November article on school accountability, we reported on how Westchester Community College, State University of New York, was not tracking which students were legal New York State residents. Only legal New York residents are entitled to the state subsidies that allow them to pay reduced tuition rates. New York has one of the lowest state university tuition rates in the nation, making it very attractive to out-of-state and foreign students. However, by allowing non-legal state residents to benefit from the state subsidies, it places an unfair burden on state taxpayers.
Given the current economic conditions, that is a burden the state, local taxpayers, and the SUNY campuses themselves, can no longer bear.
In addition to looming budget cuts, the SUNY schools have also been affected by the recent dramatic drops in the stock market. In November, the SUNY trustees announced that the value of the state university endowment funds plunged 12.8 percent between June and September alone, for a $54 million loss. The endowment funds suffered further losses in October and November. The SUNY Tuition Hikes
combination of the poor economy and declining investments has led SUNY university presidents to make a recent unprecedented united
call for immediate tuition hikes, effective as students step back onto campuses this week.
The presidents are calling for 25% tuition hikes, from $4,350 a year to $5,440, for the four-year colleges such as SUNY Purchase. Students at SUNY Purchase immediately staged a protest informing Governor Paterson that “we are tired of being treated like pawns”. However, those students failed to note that, despite dramatic rising education costs over the past decade, SUNY schools have not imposed any tuition hikes whatsoever since 2002! In short, those able-bodied teens have been receiving increasing subsidies each year from local taxpayers, many of
whom never had the luxury of attending college at all.
Is a $5,440 a year tuition really so onerous that SUNY students should legitimately be protesting? The average state university tuition
charged nationwide in 2007 was $6,185, with some states charging their residents over $8,400 to attend local schools. Even with the current increase, SUNY tuition is still far below the national average, meaning New York State taxpayers are still disproportionally subsidizing the SUNY students; students who could conceivably work to pay this tuition. At a mere $10 an hour, a student could easily earn $150 to $200 per week towards their tuition during the school year, 26 weeks, for a total of $5,200. Working fulltime during school breaks, the student
could easily earn an additional $10,400 for a total of $15,600 per year. Even factoring in taxes, this is more than enough to cover tuition,
books, fees, and personal expenses, and most of the room and board costs for those students who opt to live on campus.
The Guardian uncovered local computer students from SUNY Binghamton who earn far more during a school year, charging businesses and individuals $75 an hour to set up websites and repair computers, often receiving this income in cash, thereby avoiding paying taxes at all, taxes that could have been used by New York State to help finance their educations. Such students are making over $30,000 a year tax free, while enjoying the subsidies of local taxpayers. So why should New York State taxpayers who are currently struggling to recover their retirement investments, be asked to subsidize young students at a far higher rate than the rest of the nation, especially when these students
only need to work a minimum of hours per week to pay SUNY tuition costs in full?
Putting this issue in perspective, local Para-transit users are being asked to contribute more to their transportation costs in 2009, and many of those individuals are severely handicapped. The Guardian reported last November that the disabled community has a 70% unemployment rate. Yet these individuals are being asked to contribute more out of their fixed disability checks to offset taxpayer subsidies, out of incomes that amount to far less than what these young students can hope to earn.
The situation is even rosier at the state community colleges. Westchester Community College charges a mere $1,775 per semester for
tuition and is showing no increase in this tuition at all for the Spring of 2009. As a community college, it is subsidized by the County, so local taxpayers bear most of this burden. Again, why aren’t able-bodied students being charged more since they only need a few days of work
to cover these fees in full?
Since non-legal New York State residents are charged over $4,400 per semester, why isn’t WCC identifying these students and charging
them accordingly, relieving local taxpayers of the burden of subsidizing students who are not even legal New York State residents? New York State, and Westchester County, are already far more generous to state students, above the national average. According to the College Board, since 2000, other states raised their tuition 40%. New York State only had one tuition hike during this period, in 2002. Given such statistics, the student protests appear to be unfounded to local taxpayers.
As one County resident noted to the Guardian “if they [the SUNY Purchase students] have time to protest, they have time to work”. Added to this mix is the amount of state aid that New York State offers college students. In Governor Paterson’s initial proposal for increasing
SUNY tuition, he offered a tuition hike of only $600 per year to generate an additional $199 million in revenues. However, Paterson
also increased the funding for state aid to college students from $15 million to $44 million. So many of those protesting students could actually be receiving more money from the state this semester to off-set their tuition increases entirely. Not everyone is unhappy with
the SUNY tax hikes. Students in private colleges have been bearing a dramatically increasing financial burden for their educations for well
over a decade. Those students pay an average of $23,712 nationwide in annual tuition costs alone in 2007, according to College Board.
Students pursuing a unique course of study, or interested in groundbreaking areas of scientific and medical research, often have no option than to attend a private college. A private education, however, does not guarantee a higher income upon graduation, so those students bear a disproportionate burden of their educations for another ten years in repayments of student loans. In addition, children of divorced parents in New York State are burdened with the dreaded “SUNY cap”, a state law that actually limits the amount of higher-education child support to be paid to the amount of a SUNY tuition, regardless of what the tuition costs at the private school are. This law has not been amended to keep pace with the disproportionate increases in costs in private schools as compared to SUNY schools.
New York State child support laws are out of step with many other states on this issue. New York State laws allow for parents to escape their education obligations entirely at age 21, even though most students are still in their junior year of college at that age, facing the student to either incur enormous debts for their final year, or drop out, wasting three years of education entirely.
New Jersey now mandates that child support for education must continue for all four years of college, preventing the likelihood of a student dropping out of college due to lack of parental support, if a parent actually has to be taken to court to obtain child support for college to begin with, an individual deservedly referred to as a “deadbeat parent” in the courts, such a parent will undoubtedly take advantage of the lax New York State laws and escape their obligations the day their children turn 21. Such students are relieved that SUNY tuition charges will now be slightly more representative of actual higher education costs since it will mean that their child support will now be increased in line with SUNY tuition hikes.
In the 2008-2009 WCC budget, the County’s community college estimates it will cost over $122 million to operate. Of this, only $42 million
will be collected in tuition and $56 million will be received in state and federal aid and other revenue sources, meaning Westchester County taxpayers will have to subsidize this college to the tune of $24 million. WCC has over 27,000 students in both credit and non-credit classes,
so local taxpayers are subsidizing these students at $900 each. Since WCC reports that over 70% of their students work full time, why can’t
WCC increase their tuition by $900 a year per student, thereby eliminating the need for the $24 million County subsidy at all? In addition,
WCC is not charging its students full tuition to begin with – using their reported $42 million total collected tuition revenues, this equates to only $1,500 per student, below the $1,775 in-state tuition and far below the $4,438 listed as tuition charges for non-legal New York State residents. Perhaps if WCC pursued identifying the non-legal New York State residents, and charged them full out-of-state fees, they could eliminate their $24 million subsidy from the County taxpayers?
As Governor Paterson noted in his budget address to the New York State Legislature last month, there are many ways for the state to cut back on costs and the tax burden to residents without affecting servicing. Asking young, able-bodied students to share the burden of their own education is one such possibility. This reporter is a parent of a college-age student who returned to campus this week with three (loving) words of advice: “get a job!”
Catherine Wilson, Bureau Chief
Northern Westchester
State, and Local School Board React
To Guardian Article on Lack of
Administrative Controls
In early November, we published an article concerning the lack of proper administrative procedures in our local school districts. In that article, we noted how one district’s lack of compliance with state-mandated controls, Mt. Pleasant, adversely affected the lives of the young players on their high school soccer team by stripping them of their championship rankings due to a series of inept clerical errors and total lack of administrative controls and reviews.
We can now report that there have been two recent significant developments in that story. First, the school district superintendent, Dr. Alfred Lodovico, recently resigned his position, effective as of December 31, 2008. Readers may recall that Dr. Lodovico issued a curt response to the Guardian in November, dismissing our FOIL request for the district’s administrative policies and procedures: “THIS SOCCER ISSUE IS A PERSONNEL MATTER. NOTHING MORE THAN WAS DISCUSSED AT LAST NIGHT’S MEETING IS APPROPRIATE”.
As we noted in our article, the use of “all caps” in business communications is considered to be the equivalent of shouting. But we also questioned “why is an experienced educator dictating to a journalist what is, or is not, ‘appropriate’ to report?” The official board announcement of Dr. Lodovico’s “retirement” was sent to parents in the district during the December school break. Since his “retirement”
was effective December 31, 2008, before the school term recommenced, the district deftly avoided the usual elaborate sendoffs that generally accompany superintendent retirements and any further interactions between Lodovico and the district’s parents and students.
Planning for retirement is not something that happens overnight. Dr. Lodovico would have probably known for some time if he was really thinking of retiring this year. In addition, most school administrators and teachers time their retirements with the end of the school year in June, not for December, or any other month, since they do not wish to disrupt the education of the students entrusted to their care. In addition, Dr. Lodovico served the Mt. Pleasant school district for 29 years and undoubtedly developed many relationships in the school district during that time. Therefore, had he truly been planning on retiring in December, the official announcement would most likely
have been made while school was still in session, allowing the staff/teachers, parents, students, and Dr. Lodovico himself, an opportunity
to “say goodbye”. Instead, the official district announcement was made after Lodovico had already left, a telling sign.
Even the announcement headline itself from the school district was disingenuous: “Dr. Lodovico to retire from district”. Any parent or student who did not read the smaller print in the notice would be forgiven for assuming Dr. Lodovico had not retired yet and would be staying until the end of the school year, as is the usual custom.
In the same newsletter to local residents, the district made an off-handed acknowledgement to the soccer incident noting in a small blurb, “The boys’ soccer team played heads-up ball all season but unfortunately had to forfeit post-season play”. The district did not take any
official responsibility for the fact that the incident was entirely their fault. Had anyone in the district and school administration noticed
that one of the players was 20 years of age, and therefore too old according to long-established BOCES rules for high school sports,
the undefeated soccer team would have been league champions in November, instead of disheartened teenagers, stripped of their athletic records; teenagers who put their misguided trust into inept officials; officials who did not even have the decency to offer an official apology to them “on the record”.
What is the school district teaching their students with that attitude and behavior? If you do wrong never admit it, but rather gloss it over with a coy statement? In addition to Dr. Lodovico’s quick departure, the New York State Comptroller’s office just noti-fied the Mt. Pleasant schools that they will be conducting a three-month audit of their district in the upcoming months. The school board announced that this audit is merely “required by law”. However the school board president, Marisa Carbone, did not inform the parents of the other legal requirements
of the State Comptroller’s office, many of which the district appears to be lacking in compliance with:
• Training of school board members on financial oversight responsibilities;
• Establishment of an internal audit function in each school district;
• Creation of an Audit Committee
• A competitive process for selecting external auditors;
• Improvement of the effectiveness of external audits, including increased testing, rigorous corrective action plans, and realignment of the claims audit function, directly reporting to the school board. As we noted in our article in November, ‘Dr. Lodovico admitted in a closed-door school board meeting [that this reporter attended] that the “policies and procedures for [this] function were not documented”. Documenting
policies and procedures for all functions is one of the basic tenets of internal controls. If the District adopted the five points in State Comptroller Hevesi’s plan, it would have established an internal auditor. A basic audit would have revealed the lack of documentation.
So why, four years after the state laws mandating them, do our schools still not have even elementary internal controls?’ We promised our readers to find out. We have already contacted the state auditors with a request for their findings in this audit. We shall keep our readers informed as to the results of the state audit and any other developments in this case.
SUNY Tuition Hikes
In our November article on school accountability, we reported on how Westchester Community College, State University of New York, was not tracking which students were legal New York State residents. Only legal New York residents are entitled to the state subsidies that allow them to pay reduced tuition rates. New York has one of the lowest state university tuition rates in the nation, making it very attractive to out-of-state and foreign students. However, by allowing non-legal state residents to benefit from the state subsidies, it places an unfair burden on state taxpayers.
Given the current economic conditions, that is a burden the state, local taxpayers, and the SUNY campuses themselves, can no longer bear.
In addition to looming budget cuts, the SUNY schools have also been affected by the recent dramatic drops in the stock market. In November, the SUNY trustees announced that the value of the state university endowment funds plunged 12.8 percent between June and September alone, for a $54 million loss. The endowment funds suffered further losses in October and November. The SUNY Tuition Hikes
combination of the poor economy and declining investments has led SUNY university presidents to make a recent unprecedented united
call for immediate tuition hikes, effective as students step back onto campuses this week.
The presidents are calling for 25% tuition hikes, from $4,350 a year to $5,440, for the four-year colleges such as SUNY Purchase. Students at SUNY Purchase immediately staged a protest informing Governor Paterson that “we are tired of being treated like pawns”. However, those students failed to note that, despite dramatic rising education costs over the past decade, SUNY schools have not imposed any tuition hikes whatsoever since 2002! In short, those able-bodied teens have been receiving increasing subsidies each year from local taxpayers, many of
whom never had the luxury of attending college at all.
Is a $5,440 a year tuition really so onerous that SUNY students should legitimately be protesting? The average state university tuition
charged nationwide in 2007 was $6,185, with some states charging their residents over $8,400 to attend local schools. Even with the current increase, SUNY tuition is still far below the national average, meaning New York State taxpayers are still disproportionally subsidizing the SUNY students; students who could conceivably work to pay this tuition. At a mere $10 an hour, a student could easily earn $150 to $200 per week towards their tuition during the school year, 26 weeks, for a total of $5,200. Working fulltime during school breaks, the student
could easily earn an additional $10,400 for a total of $15,600 per year. Even factoring in taxes, this is more than enough to cover tuition,
books, fees, and personal expenses, and most of the room and board costs for those students who opt to live on campus.
The Guardian uncovered local computer students from SUNY Binghamton who earn far more during a school year, charging businesses and individuals $75 an hour to set up websites and repair computers, often receiving this income in cash, thereby avoiding paying taxes at all, taxes that could have been used by New York State to help finance their educations. Such students are making over $30,000 a year tax free, while enjoying the subsidies of local taxpayers. So why should New York State taxpayers who are currently struggling to recover their retirement investments, be asked to subsidize young students at a far higher rate than the rest of the nation, especially when these students
only need to work a minimum of hours per week to pay SUNY tuition costs in full?
Putting this issue in perspective, local Para-transit users are being asked to contribute more to their transportation costs in 2009, and many of those individuals are severely handicapped. The Guardian reported last November that the disabled community has a 70% unemployment rate. Yet these individuals are being asked to contribute more out of their fixed disability checks to offset taxpayer subsidies, out of incomes that amount to far less than what these young students can hope to earn.
The situation is even rosier at the state community colleges. Westchester Community College charges a mere $1,775 per semester for
tuition and is showing no increase in this tuition at all for the Spring of 2009. As a community college, it is subsidized by the County, so local taxpayers bear most of this burden. Again, why aren’t able-bodied students being charged more since they only need a few days of work
to cover these fees in full?
Since non-legal New York State residents are charged over $4,400 per semester, why isn’t WCC identifying these students and charging
them accordingly, relieving local taxpayers of the burden of subsidizing students who are not even legal New York State residents? New York State, and Westchester County, are already far more generous to state students, above the national average. According to the College Board, since 2000, other states raised their tuition 40%. New York State only had one tuition hike during this period, in 2002. Given such statistics, the student protests appear to be unfounded to local taxpayers.
As one County resident noted to the Guardian “if they [the SUNY Purchase students] have time to protest, they have time to work”. Added to this mix is the amount of state aid that New York State offers college students. In Governor Paterson’s initial proposal for increasing
SUNY tuition, he offered a tuition hike of only $600 per year to generate an additional $199 million in revenues. However, Paterson
also increased the funding for state aid to college students from $15 million to $44 million. So many of those protesting students could actually be receiving more money from the state this semester to off-set their tuition increases entirely. Not everyone is unhappy with
the SUNY tax hikes. Students in private colleges have been bearing a dramatically increasing financial burden for their educations for well
over a decade. Those students pay an average of $23,712 nationwide in annual tuition costs alone in 2007, according to College Board.
Students pursuing a unique course of study, or interested in groundbreaking areas of scientific and medical research, often have no option than to attend a private college. A private education, however, does not guarantee a higher income upon graduation, so those students bear a disproportionate burden of their educations for another ten years in repayments of student loans. In addition, children of divorced parents in New York State are burdened with the dreaded “SUNY cap”, a state law that actually limits the amount of higher-education child support to be paid to the amount of a SUNY tuition, regardless of what the tuition costs at the private school are. This law has not been amended to keep pace with the disproportionate increases in costs in private schools as compared to SUNY schools.
New York State child support laws are out of step with many other states on this issue. New York State laws allow for parents to escape their education obligations entirely at age 21, even though most students are still in their junior year of college at that age, facing the student to either incur enormous debts for their final year, or drop out, wasting three years of education entirely.
New Jersey now mandates that child support for education must continue for all four years of college, preventing the likelihood of a student dropping out of college due to lack of parental support, if a parent actually has to be taken to court to obtain child support for college to begin with, an individual deservedly referred to as a “deadbeat parent” in the courts, such a parent will undoubtedly take advantage of the lax New York State laws and escape their obligations the day their children turn 21. Such students are relieved that SUNY tuition charges will now be slightly more representative of actual higher education costs since it will mean that their child support will now be increased in line with SUNY tuition hikes.
In the 2008-2009 WCC budget, the County’s community college estimates it will cost over $122 million to operate. Of this, only $42 million
will be collected in tuition and $56 million will be received in state and federal aid and other revenue sources, meaning Westchester County taxpayers will have to subsidize this college to the tune of $24 million. WCC has over 27,000 students in both credit and non-credit classes,
so local taxpayers are subsidizing these students at $900 each. Since WCC reports that over 70% of their students work full time, why can’t
WCC increase their tuition by $900 a year per student, thereby eliminating the need for the $24 million County subsidy at all? In addition,
WCC is not charging its students full tuition to begin with – using their reported $42 million total collected tuition revenues, this equates to only $1,500 per student, below the $1,775 in-state tuition and far below the $4,438 listed as tuition charges for non-legal New York State residents. Perhaps if WCC pursued identifying the non-legal New York State residents, and charged them full out-of-state fees, they could eliminate their $24 million subsidy from the County taxpayers?
As Governor Paterson noted in his budget address to the New York State Legislature last month, there are many ways for the state to cut back on costs and the tax burden to residents without affecting servicing. Asking young, able-bodied students to share the burden of their own education is one such possibility. This reporter is a parent of a college-age student who returned to campus this week with three (loving) words of advice: “get a job!”
Westchester Guardian/Janet Difiore/Anthony Disimone/The Advocate.
Thursday, January 15, 2009
The Advocate
Richard Blassberg
Judge Adler Would Give Rogue
DAs Another Bite Of The Apple
Last Thursday morning, January 8th, Anthony DiSimone, accompanied by his attorney, Murray Richman, appeared before State Supreme
Court Justice Lester B. Adler, for what Adler would describe as a Hearing For Determination Of Readiness. That description was really a tipoff as
to the mindset with which the Judge entertained the “Reply Memorandum In Support Of Motion To Dismiss The Indictment And Preclude A Retrial,” a 13-page argument drafted by John R. Bartels, Jr., Esq., Of Counsel, presented by Mr. Richman.
In reality, DiSimone, his Attorney, and some members of family, as well as friends, had come to Court, as had the parents and family of the late
Louis Balancio, to receive the Decision And Order of Judge Adler with respect to the Motion submitted by Richman to dismiss the indictment.
And, there was every good, legally justifiable reason, to vacate that indictment handed up in December of 1997 by a Westchester grand jury in
response to the confabulated, tortured version by then-District Attorney Jeanine Pirro of the events outside the Strike Zone Bar on Central Avenue in Yonkers in the wee hours of February 4, 1994 that supposedly resulted in the death, from multiple stab wounds, 13 in all, of one, not quite 21-year-old Louis Balancio, member of the Hell’s Kitchen Gang.
Mrs. Pirro was barely in office one month when the incident occurred involving some 25 or more young adults, many of them of Italian-American
ethnicity, some Irish-American, still others Albanian-American; a number of girls in the area, several guys, supposedly the “Tanglewood Boys.” Pirro saw what she hoped would be an opportunity to shake the notion that she could not prosecute, and deal with, “La Cosa Nostra”, a hindrance to her potential political rise attached to her since 1988 when she was withdrawn from consideration for Lieutenant Governor because of her spouse, Al’s, tight connection to Suburban Carting and owners Jimmy Galante and Tommy Milo.Within six days of the brutal murder of Balancio,
Pirro was in possession of a confession from the actual murderer, a young Albanian-American named Nick Djonovic who was upset by the attention Balancio was paying to his girlfriend. But an Albanian would not suit self-promotionally-motivated Pirro, who allowed Djonovic to escape to Yugoslavia while she concocted her own version of events and searched for the right Italian, hopefully one with some family connection to the “Mob”, that would suit her purposes.
Anthony DiSimone was not her first choice. Darren Mazzarella, who actually held Balancio down while Djonovic stabbed away, got the first call. Darren, and his brother, also named Nick, had already established themselves as a kind of minor “Murder Incorporated”, having wasted Nick’s employer, and a youthful gang member, in the Bronx. They had each been apprehended by federal authorities subsequent to the Balancio killing,
and were vulnerable and willing to play their part in whatever plot Pirro was prepared to script.
The Mazzarellas would ultimately cut a ‘sweetheart’ deal for themselves into Witness Protection at public expense while avoiding sentencing for
their pleas on their federal raps for more than 10 years now. For all that they got from the Government in return, Darren, who would be Pirro’s chief ‘witness’ against Anthony DiSimone, at no point testi- fied that he ever saw him kill anybody.
In point of fact, Mrs. Pirro, and her henchmen prosecutors, Clement Patti and Steven Bender, had nothing truthful in the way of evidence that, in
any way, implicated DiSimone in the death of the Balancio boy, but much that exculpated him, not only pointing to his innocence, but also directly pointing to Nick Djonovic.
Within hours of Pirro’s scheduled classic press conference to announce DiSimone’s indictment by a fourth grand jury late in December of 1997,
after three prior grand juries had refused to, she had received a telephone call from Mark Pomerantz, Assistant United States Attorney for the Southern District of New York and head of the Office’s Criminal Division, questioning how she intended to announce DiSimone’s indictment for a
murder she had had a confession, a bloody leather jacket, and numerous other items of evidence about from Nick Djonovic, who she had allowed
to escape to Yugoslavia.
The fact was, in December of 1997, nearly four years after Louis Balancio lay mouldering in his grave, and Anthony DiSimone continued to
live in plain sight in Yonkers with his wife and her family, Mrs. Pirro & Co. had collected some 376 pages, 52 boxes and miles of tape-recorded conversations that all pointed to the fact that Anthony was innocent of the charges she wanted to bring against him.
It is important to point out, at this juncture, that all of the exculpatory evidence to which I make reference, the overwhelming majority of which
was deliberately and unlawfully kept from his defense, and naturally, from the jurors when Anthony DiSimone was brought to trial in 2000, remained concealed in the Offices of the Westchester County District Attorney while Anthony remained locked up in state prison for a crime he didn’t commit, until in 2006, Attorney John Bartels, Jr., pressing hard for the truth in the Federal District Court of Judge Charles L. Brieant in White Plains, and the Second Circuit Court of Appeals in Foley Square, Manhattan, backed Valerie Livingston, Assistant DA in the Westchester Appeals Bureau, an outrageous liar who we witnessed commit-ting perjury both before Judge Brieant and a three-judge panel including Presiding
Judge Calabresi at the Court Of Appeals, against the wall.
Judge Brieant, on a Remand from the Court above, was mere seconds from opening a long, protracted evidentiary hearing that would’ve been
most embarrassing to DA Janet Di-Fiore and her effort to prevent Mr. DiSimone’s release on a writ of Habeus Corpus when Livingston was compelled to break down and rescind her opposition to the writ, followed by her exit from the courtroom, in tears.
She had every good reason to be crying because she had been caught up in the “tangled web” of lies and deceit with respect to Mr. DiSimone,
and had defended by repeated perjury and misrepresentation before the federal courts what presiding Judge of the Second Circuit Court of Appeals
had called, “The worst Brady violation I have seen in 12 years on the Bench.”
It was this contaminated, ugly case that was before Judge Adler last Thursday. This case, where, although they had the power to do it themselves,
the United States Second Circuit Court of Appeals, having directed the granting of the writ of Habeus Corpus, was not about to clean up after the State Court’s mess entirely, preferring, instead, to make the State deal with the wrongfully-obtained indictment in light of all of the prosecutorial
misconduct, and the malicious motive, that had gone into it.
Such was the opportunity to finally make right what had been so wrong for nearly 15 years; the Big Lie from Jeanine Pirro’s mouth, that had been tearing at both the DiSimone and Balancio families for so very long. However, Judge Adler had no intention of ending either the injustice or the agony. Adler opened the proceedings with, “On DiSimone, the Court has rendered its decision, and it will be handled on the second call. The Attorneys have gone to Judge Molea for scheduling.” Had he decided to vacate the original indictment, there would have been no need for scheduling as there would be nothing to schedule.
The incident which took the life of Louis Balancio had occurred more than four years prior to the day in 1999 when Anthony DiSimone, having
learned that he was now indicted and sought for the murder, walked into Yonkers Police Headquarters to surrender. The entire time he had been
living in plain sight, in Yonkers, having never left the area whatsoever. He was kept in the County Jail, without bail, for a year thereafter while Pirro, Patti, and Bender, not to mention the Yonkers Police Department, and 40 DA investigators worked at trying to tie him to the murder for a
total of five years. His trial was presided over by Judge James Cowhey, who was dating Mrs. Pirro’s mother, Esther Ferris. The Judge was actively engaged in the conspiratorial effort to keep any and all information about Nick Djonovic, the actual murderer, from the Defense and, more importantly, from the jury.
It was against this historical background that last Thursday Judge Lester B. Adler handed up his 20-page Decision and Order denying Anthony
DiSimone’s Motion to Dismiss the original indictment for the crime of Depraved Indifference Murder, which, under the facts of the case, nobody
could be charged with today, or, alternately Intentional Murder, for which DiSimone was acquitted by the original jury and cannot be charged with
under the Constitutional prohibition against Double Jeopardy of the Fifth Amendment.
In point of fact, under rulings from New York’s highest court since 2004, nobody may be charged and indicted, both for Intentional and Depraved
Mind Murder at the same time for the same incident, a fact that Judge Adler has known since he presided over the Selwyn Days’ trial nearly five
years ago.
In reviewing Judge Adler’s Decision And Order, we made a number of observations. On Page 7, Adler points to the fact that as recently as September 15, 2008, “Defendant again moves to inspect the grand jury minutes and to dismiss the indictment on the grounds of legal insufficiency of the evidence.” Given all of the contortions and adjustments the State’s highest court, in its effort to finally deal with a nearly 40-year “leg-up” for the State’s prosecutors, over the past five years, having first cited the “Law of the Case”, a strictly procedural doctrine, as a constraint to granting Defense’s motion, Adler justifiably, and properly, launches into a four-page mini-history of the high court’s multiple attempts to limit some four decades of Unconstitutional application of the Depraved Mind Murder Statute.
However, having taken the extensive tour from Gonzalez through Jean -Baptiste, and properly expressed the recent evolution of the Depraved Mind statute, apparently finding no rock-solid mandate with respect to said changes, to grant Defense’s motion, Adler concludes, “In the absence of
any extraordinary circumstances which would warrant a departure from the doctrine of The Law Of The Case, his [DiSimone’s] renewed motion
to re-inspect the grand jury minutes and to dismiss the indictment on insufficiency grounds, is denied.”
With all due respect, we must take issue with Judge Adler, and suggest that any time a prosecutor, or prosecutors, acting in concert, have concealed 376 pages, including a confession by the actual murderer, 52 boxes, including the bloody jacket worn by the actual murderer, and miles of recorded telephone and in-person conversations with witnesses, FBI agents, and Assistant United States Attorneys, all of which are exculpatory to the individual wrongfully indicted, tried, and convicted, God help us if all that does not constitute “Extraordinary Circumstances.”
Judge Adler would definitely seem to be out of sync with the indignation and outrage felt by the justices of our nation’s second highest court when
they granted Mr. DiSimone a writ of Habeus Corpus for the “worst Brady violation” the presiding justice had seen in 12 years on the Court. Surely
Adler is engaging in classic British understatement when, on Page 12 of his decision, he opines, “Defendant’s federal writ of Habeus Corpus granted on the ground of a Brady violation, not on the ground that the evidence presented at trial was legally insufficient.”
We are talking about multiple Brady violations and multiple acts of prosecutorial misconduct so wrongful and malicious in nature, and so numerous
as to provoke the comment from Judge Calabresi, presiding over the Federal Court of Appeals, dubbing it “the worst” he had seen.
But Judge Adler sees no reason not to give the Office responsible for such dastardly conduct, the Office that has already robbed Mr. DiSimone of seven years of his life and liberty, and driven the decedent’s family half-crazy with their lies and confabulations, another crack at it!
Perhaps Mr. DiSimone’s Attorney, Murray Richman, stated it best when he told this reporter, speaking of Judge Adler’s decision: “We will review
the entire decision with a mind toward reargument. It is apparent on its face that the Court relied on old grounds rather than punishing the
People for their wrongdoing.
“How does society benefit when prosecutors can withhold exculpatory material and have a do-over? “When I was a kid in the Bronx, playing kids’ games, if my opponent did something wrong, he didn’t get a do-over.” Mr. Richman then concluded, “I respect the Judge and honest men can
disagree honestly.”
The Advocate
Richard Blassberg
Judge Adler Would Give Rogue
DAs Another Bite Of The Apple
Last Thursday morning, January 8th, Anthony DiSimone, accompanied by his attorney, Murray Richman, appeared before State Supreme
Court Justice Lester B. Adler, for what Adler would describe as a Hearing For Determination Of Readiness. That description was really a tipoff as
to the mindset with which the Judge entertained the “Reply Memorandum In Support Of Motion To Dismiss The Indictment And Preclude A Retrial,” a 13-page argument drafted by John R. Bartels, Jr., Esq., Of Counsel, presented by Mr. Richman.
In reality, DiSimone, his Attorney, and some members of family, as well as friends, had come to Court, as had the parents and family of the late
Louis Balancio, to receive the Decision And Order of Judge Adler with respect to the Motion submitted by Richman to dismiss the indictment.
And, there was every good, legally justifiable reason, to vacate that indictment handed up in December of 1997 by a Westchester grand jury in
response to the confabulated, tortured version by then-District Attorney Jeanine Pirro of the events outside the Strike Zone Bar on Central Avenue in Yonkers in the wee hours of February 4, 1994 that supposedly resulted in the death, from multiple stab wounds, 13 in all, of one, not quite 21-year-old Louis Balancio, member of the Hell’s Kitchen Gang.
Mrs. Pirro was barely in office one month when the incident occurred involving some 25 or more young adults, many of them of Italian-American
ethnicity, some Irish-American, still others Albanian-American; a number of girls in the area, several guys, supposedly the “Tanglewood Boys.” Pirro saw what she hoped would be an opportunity to shake the notion that she could not prosecute, and deal with, “La Cosa Nostra”, a hindrance to her potential political rise attached to her since 1988 when she was withdrawn from consideration for Lieutenant Governor because of her spouse, Al’s, tight connection to Suburban Carting and owners Jimmy Galante and Tommy Milo.Within six days of the brutal murder of Balancio,
Pirro was in possession of a confession from the actual murderer, a young Albanian-American named Nick Djonovic who was upset by the attention Balancio was paying to his girlfriend. But an Albanian would not suit self-promotionally-motivated Pirro, who allowed Djonovic to escape to Yugoslavia while she concocted her own version of events and searched for the right Italian, hopefully one with some family connection to the “Mob”, that would suit her purposes.
Anthony DiSimone was not her first choice. Darren Mazzarella, who actually held Balancio down while Djonovic stabbed away, got the first call. Darren, and his brother, also named Nick, had already established themselves as a kind of minor “Murder Incorporated”, having wasted Nick’s employer, and a youthful gang member, in the Bronx. They had each been apprehended by federal authorities subsequent to the Balancio killing,
and were vulnerable and willing to play their part in whatever plot Pirro was prepared to script.
The Mazzarellas would ultimately cut a ‘sweetheart’ deal for themselves into Witness Protection at public expense while avoiding sentencing for
their pleas on their federal raps for more than 10 years now. For all that they got from the Government in return, Darren, who would be Pirro’s chief ‘witness’ against Anthony DiSimone, at no point testi- fied that he ever saw him kill anybody.
In point of fact, Mrs. Pirro, and her henchmen prosecutors, Clement Patti and Steven Bender, had nothing truthful in the way of evidence that, in
any way, implicated DiSimone in the death of the Balancio boy, but much that exculpated him, not only pointing to his innocence, but also directly pointing to Nick Djonovic.
Within hours of Pirro’s scheduled classic press conference to announce DiSimone’s indictment by a fourth grand jury late in December of 1997,
after three prior grand juries had refused to, she had received a telephone call from Mark Pomerantz, Assistant United States Attorney for the Southern District of New York and head of the Office’s Criminal Division, questioning how she intended to announce DiSimone’s indictment for a
murder she had had a confession, a bloody leather jacket, and numerous other items of evidence about from Nick Djonovic, who she had allowed
to escape to Yugoslavia.
The fact was, in December of 1997, nearly four years after Louis Balancio lay mouldering in his grave, and Anthony DiSimone continued to
live in plain sight in Yonkers with his wife and her family, Mrs. Pirro & Co. had collected some 376 pages, 52 boxes and miles of tape-recorded conversations that all pointed to the fact that Anthony was innocent of the charges she wanted to bring against him.
It is important to point out, at this juncture, that all of the exculpatory evidence to which I make reference, the overwhelming majority of which
was deliberately and unlawfully kept from his defense, and naturally, from the jurors when Anthony DiSimone was brought to trial in 2000, remained concealed in the Offices of the Westchester County District Attorney while Anthony remained locked up in state prison for a crime he didn’t commit, until in 2006, Attorney John Bartels, Jr., pressing hard for the truth in the Federal District Court of Judge Charles L. Brieant in White Plains, and the Second Circuit Court of Appeals in Foley Square, Manhattan, backed Valerie Livingston, Assistant DA in the Westchester Appeals Bureau, an outrageous liar who we witnessed commit-ting perjury both before Judge Brieant and a three-judge panel including Presiding
Judge Calabresi at the Court Of Appeals, against the wall.
Judge Brieant, on a Remand from the Court above, was mere seconds from opening a long, protracted evidentiary hearing that would’ve been
most embarrassing to DA Janet Di-Fiore and her effort to prevent Mr. DiSimone’s release on a writ of Habeus Corpus when Livingston was compelled to break down and rescind her opposition to the writ, followed by her exit from the courtroom, in tears.
She had every good reason to be crying because she had been caught up in the “tangled web” of lies and deceit with respect to Mr. DiSimone,
and had defended by repeated perjury and misrepresentation before the federal courts what presiding Judge of the Second Circuit Court of Appeals
had called, “The worst Brady violation I have seen in 12 years on the Bench.”
It was this contaminated, ugly case that was before Judge Adler last Thursday. This case, where, although they had the power to do it themselves,
the United States Second Circuit Court of Appeals, having directed the granting of the writ of Habeus Corpus, was not about to clean up after the State Court’s mess entirely, preferring, instead, to make the State deal with the wrongfully-obtained indictment in light of all of the prosecutorial
misconduct, and the malicious motive, that had gone into it.
Such was the opportunity to finally make right what had been so wrong for nearly 15 years; the Big Lie from Jeanine Pirro’s mouth, that had been tearing at both the DiSimone and Balancio families for so very long. However, Judge Adler had no intention of ending either the injustice or the agony. Adler opened the proceedings with, “On DiSimone, the Court has rendered its decision, and it will be handled on the second call. The Attorneys have gone to Judge Molea for scheduling.” Had he decided to vacate the original indictment, there would have been no need for scheduling as there would be nothing to schedule.
The incident which took the life of Louis Balancio had occurred more than four years prior to the day in 1999 when Anthony DiSimone, having
learned that he was now indicted and sought for the murder, walked into Yonkers Police Headquarters to surrender. The entire time he had been
living in plain sight, in Yonkers, having never left the area whatsoever. He was kept in the County Jail, without bail, for a year thereafter while Pirro, Patti, and Bender, not to mention the Yonkers Police Department, and 40 DA investigators worked at trying to tie him to the murder for a
total of five years. His trial was presided over by Judge James Cowhey, who was dating Mrs. Pirro’s mother, Esther Ferris. The Judge was actively engaged in the conspiratorial effort to keep any and all information about Nick Djonovic, the actual murderer, from the Defense and, more importantly, from the jury.
It was against this historical background that last Thursday Judge Lester B. Adler handed up his 20-page Decision and Order denying Anthony
DiSimone’s Motion to Dismiss the original indictment for the crime of Depraved Indifference Murder, which, under the facts of the case, nobody
could be charged with today, or, alternately Intentional Murder, for which DiSimone was acquitted by the original jury and cannot be charged with
under the Constitutional prohibition against Double Jeopardy of the Fifth Amendment.
In point of fact, under rulings from New York’s highest court since 2004, nobody may be charged and indicted, both for Intentional and Depraved
Mind Murder at the same time for the same incident, a fact that Judge Adler has known since he presided over the Selwyn Days’ trial nearly five
years ago.
In reviewing Judge Adler’s Decision And Order, we made a number of observations. On Page 7, Adler points to the fact that as recently as September 15, 2008, “Defendant again moves to inspect the grand jury minutes and to dismiss the indictment on the grounds of legal insufficiency of the evidence.” Given all of the contortions and adjustments the State’s highest court, in its effort to finally deal with a nearly 40-year “leg-up” for the State’s prosecutors, over the past five years, having first cited the “Law of the Case”, a strictly procedural doctrine, as a constraint to granting Defense’s motion, Adler justifiably, and properly, launches into a four-page mini-history of the high court’s multiple attempts to limit some four decades of Unconstitutional application of the Depraved Mind Murder Statute.
However, having taken the extensive tour from Gonzalez through Jean -Baptiste, and properly expressed the recent evolution of the Depraved Mind statute, apparently finding no rock-solid mandate with respect to said changes, to grant Defense’s motion, Adler concludes, “In the absence of
any extraordinary circumstances which would warrant a departure from the doctrine of The Law Of The Case, his [DiSimone’s] renewed motion
to re-inspect the grand jury minutes and to dismiss the indictment on insufficiency grounds, is denied.”
With all due respect, we must take issue with Judge Adler, and suggest that any time a prosecutor, or prosecutors, acting in concert, have concealed 376 pages, including a confession by the actual murderer, 52 boxes, including the bloody jacket worn by the actual murderer, and miles of recorded telephone and in-person conversations with witnesses, FBI agents, and Assistant United States Attorneys, all of which are exculpatory to the individual wrongfully indicted, tried, and convicted, God help us if all that does not constitute “Extraordinary Circumstances.”
Judge Adler would definitely seem to be out of sync with the indignation and outrage felt by the justices of our nation’s second highest court when
they granted Mr. DiSimone a writ of Habeus Corpus for the “worst Brady violation” the presiding justice had seen in 12 years on the Court. Surely
Adler is engaging in classic British understatement when, on Page 12 of his decision, he opines, “Defendant’s federal writ of Habeus Corpus granted on the ground of a Brady violation, not on the ground that the evidence presented at trial was legally insufficient.”
We are talking about multiple Brady violations and multiple acts of prosecutorial misconduct so wrongful and malicious in nature, and so numerous
as to provoke the comment from Judge Calabresi, presiding over the Federal Court of Appeals, dubbing it “the worst” he had seen.
But Judge Adler sees no reason not to give the Office responsible for such dastardly conduct, the Office that has already robbed Mr. DiSimone of seven years of his life and liberty, and driven the decedent’s family half-crazy with their lies and confabulations, another crack at it!
Perhaps Mr. DiSimone’s Attorney, Murray Richman, stated it best when he told this reporter, speaking of Judge Adler’s decision: “We will review
the entire decision with a mind toward reargument. It is apparent on its face that the Court relied on old grounds rather than punishing the
People for their wrongdoing.
“How does society benefit when prosecutors can withhold exculpatory material and have a do-over? “When I was a kid in the Bronx, playing kids’ games, if my opponent did something wrong, he didn’t get a do-over.” Mr. Richman then concluded, “I respect the Judge and honest men can
disagree honestly.”
Westchester Guardian/In Our Opinion/Our Readers Respond/Janet Difiore.
Thursday, January 15, 2009
In Our Opinion...
There Ought To Be A Law
We are more firm than ever in our belief, and motivated in our strivings, to help bring about legislation to control, and prevent, prosecutorial
misconduct. We have come to believe that such legislation must provide both incarcerative and financial penalties; but, at the very least, involve permanent loss of one’s license to practice law. Furthermore, the legislation must be enacted by Congress, as it must be applicable, and enforceable, everywhere throughout our Nation.
Under the current state of affairs, state and federal prosecutors, district attorneys, and United States Attorneys, have no disincentive to engaging in any and every form of prosecutorial misconduct, and, in fact, routinely do, unfortunately, as witnessed in two separate, well-known cases here in Westchester just last week; one in the State Supreme Court, Anthony D. Simone; the other in Federal District Court, Paul Cote.
In the absence of meaningful punishment, prosecutors, already advantaged with unlimited human and financial resources, with increased frequency, find it convenient and personally acceptable to engage in prosecutorial misconduct of every kind in their effort to convict accused citizens, be they guilty or innocent. Without fear of punishment, at the very least loss of their license to practice law, our courts, both state and federal, are virtually powerless to protect the Constitutional rights of citizens against such unscrupulous, rogue prosecutors.
In case after case, we see such prosecutors bent on winning at any and all costs, sending innocent individuals to prison, often for life, based upon false confessions, witness coercion, evidence tampering, suborned perjury, and a host of other actions which, if engaged in by anyone other than a prosecutor, would be dealt with as crimes and would result in incarceration and financial penalties.
In the interest of justice and fair play, We believe the time has long been at hand when federal legislation must be enacted that will prevent the kinds of deliberate and calculated prosecutorial misconduct that sent Jeffrey Deskovic, Richard DiGuglielmo, and Anthony DiSimone (see Advocate, p.5), all innocent victims of prosecutorial misconduct, to prison from state court, and most recently, Paul Cote (see Court Report, p3) from federal court.
No democracy can long endure if the Constitutional rights of its citizens are routinely violated with impunity by the very individuals entrusted to protect them. We must not stand idly by as rogue prosecutors, together with rogue police and others in the Criminal Justice System, commit crimes against innocent citizens, indeed, against the very fabric of our society.
Amongst all of the presidential candidates, Democratic, Republican and other, who offered themselves to the American people, only one, Barack Obama, on at least two occasions, spoke of the need to, “deal with wrongful convictions.”
Now that he is about to take the reins into his hands, and in light of the unprecedented Constitutional violations of his predecessor’s administration, what better time for the voice of the People to be heard on behalf of such legislation?
Our Readers Respond...
Reader Complains Of Tyranny In Rockland Courts
Dear Editor:
Where do I begin? I was charged with Harrassment, 2nd Degree sometime in mid-2006. I am a resident of Rockland County. My defense attorney, at the time, was Anthony Dellicarri, then working for the law firm of Zugabie and Ferraro, one of the county’s largest law firms handling senior estate guardianships granted to them by the Surrogate Court.
In January 2008, Tom Zugabie was elected District Attorney of Rockland County. He now had to make an abrupt closure of his private practice. Mr. Dellicarri was hired onto the District Attorney’s staff as a senior attorney. However, Mr. Dellicarri was still continuing to act as my defense attorney well into February of 2008, after he had sworn the oath of office working in the District Attorney’s Office. In fact, he had written
letters to Judge Paul Phinney in Orangetown Court, presiding over my case, stating that he [Dellicarri] was my attorney of record.
He advised me that a guilty plea would be my best option, and promised to submit a pre-sentencing memorandum, which he promptly failed to prepare after I heeded his advice. A letter-writing campaign ensued between Mr. Dellicarri, Justice Phinney and myself. In short order, Judge Phinney withdrew my guilty plea in the interest of justice, and rescheduled my case to his calendar with new counsel.
I requested a special prosecutor and the recusal of Justice Phinney. I was granted a prosecutor from Putnam County by the name of Mr. Hogan. Who picked him, I don’t know. And Judge Phinney said he would not recuse himself from the case. I wrote to Gary Casella of the Grievance Committee advising him of Mr. Dellicarri’s actions, on the one hand working as my defense attorney and, at the same, being a sworn prosecutor.
My complaint was referred to the Westchester County Bar Association; and, I am currently still waiting to be heard by their Committee as to whether my complaint will be investigated.
I was assigned an 18B counsel because all money had been spent on Mr. Dellicarri’s representation. I was now assigned a Mr. Allen McGeorge, and was given approximately 30 days to prepare my case with him.
On the very eve of my trial, at approximately 8pm, Mr. Mc-George and I were in contact, and he requested that I meet him at a McDonald’s Restaurant, together with my 17-and 13-year-old daughters, witnesses for my defense.
At that meeting, McGeorge stated to me that saw a lot of my letters and asked, “Come on, who do you think you are writing complaints about Anthony Dellicarri?” He said further, “Let’s face it, if he didn’t work for Mr. Zugabie, he would have never gotten the job he has.”
He told me that I hadn’t made any friends writing complaints, stating, “Let’s face it, you’ve pissed-of the judge.” He further stated, “I recommend
you take a toothbrush to court tomorrow,” indicating that I was not going to get a fair trial because of my letter-writing. Well, he wasn’t lying. On the morning of January 6, 2009, approximately two years after my original charge was filed, I stood for trial. I was found guilty of Assault, 2nd Degree and hit with the maximum fine of $250 and 14 days in the Rockland County Jail.
As Judge Phinney read my verdict, two Orangetown police officers entered the courtroom, and the Judge ordered me to be removed from the
court and brought to jail. My daughter, my witness, pleaded with the Judge to not take me, stating, “How will I get home?
I have three siblings at home, how do you expect me to care for them alone?” Phinney said there was nothing he could do. I asked him if it would be alright if I were to go home today, and whether he could postpone sentencing until next week, when the childrens’ mother would be home. He eventually agreed.
What needs to be understood is that, for some time, I have been attempting to expose a mortgage fraud operation that starts in Rockland County and extends to Orange and Nassau Counties. I have forensic handwriting examiners’ reports that name a forger. Several of the names forged were of deceased persons. How could the person forging these signatures be certain that the people were deceased?
I believe someone from the Surrogate Court has been divulging this information, and that a criminal network involving fraudulent mortgages and
deeds, have been processed through the County Clerk’s Of-fice, thereby stealing the property of the deceased and robbing banks and other lending
institutions of mortgage loans which are uncollectible because the person who acquired the loan is actually dead.
Several government actors within Rockland County are becoming quite concerned about my repeated notifications to certain government agencies
exposing these illicit activities. I have been, and I am continuing to be targeted, by said government actors and now my incarceration is essentially
phase 1. My situation in Rockland County is serious; the government actors are proving that they will stop at nothing to keep me from my goal of exposing their criminal enterprise engaged in robbing the dead.
Rockland County, and some of its elected government of-ficials, have literally turned the Surrogate Court into one of the largest theft rings in New York State. They must be stopped and exposed. These are the people who required maximum sentence imposed on them, and pilfered property returned to rightful inheritances. Banks must be repaid in order to prevent the economic collapse of our economy from these criminal government actors.
Finally, people need to start watching the actions of judges and court clerks if we are to put a stop to this organized crime ring facilitated by the people who are entrusted to uphold our Constitution.
Mike Kelly, Rockland
County ADA Audrey Stone Should Be Ashamed Of Herself
Dear Editor:
I was recently a spectator in White Plains Supreme Court because I was both concerned and interested in a case being handled by Anthony M. Giordano, Esq. of Ossining.
A frail and somewhat sickly 71-year-old man, married 48 years, has loud arguments with his wife. During an argument in October 2008 a neighbor called the police, who called in Adult Protective Services. ADT contacted the District Attorney’s Office who issued an Order of Protection for the wife and told the husband to leave the home. The PD prepared a Supporting Deposition. The wife refused to sign it saying it was inaccurate and besides, she wanted her husband back home.
But the District Attorney’s office didn’t care they don’t have a Complainant, along with an un-signed Supporting Deposition. They went full-throttle and had the elderly husband incarcerated when he returned to the house while the TOP was in effect. First he returned because his wife invited him back; second time because he forgot his eye glasses there after he got 22 stitches in his head when he fell.
Attorney Giordano asked for no bail, the ADA asked for $10K and the Ossining Village Judge went with $15K. The elderly man went back to
jail. Then at a bail hearing before kindly Judge Jeffrey Cohen bail was lowered to $1,500. And this is where I ‘met’ the A.D.A. Before going in front of Judge Cohen a woman who’s name I did not know called me to the back of the courtroom. She said to me “What’s your name?” I said “Linda. What’s your name” and she said “Audrey”. She questioned me “What are you doing here? Why do you want to help this man?” I said “Because the man is elderly, needs help, and should not be in jail for the holidays.”
In so many words I was told to mind my own business and just go away. Later on I heard Audrey say to Judge Cohen “And that woman who said the Defendant could live in her home. She refused to even give me her name when I asked her for it!” Hearing a lie being told to a Judge made me
cringe. And from an Assistant District Attorney! ADA Audrey Stone, someone who represents our Court system. Then ADA Stone told the Judge I
“screamed” at her outside of another Court. Another fabrication ADA Stone spewed to Judge Cohen. I was 2 car lengths away from this woman
and said “Someday we’ll both be old. We should be helping our senior citizens.” A witness to this incident corroborated that I had not “screamed” at anyone.
ADA Stone continues to pursue charges again this elderly man who has been forced to live in a hotel since October 2008 (almost 4 months now).
What I’d really like to know is this: How can the District Attorney’s office pursue this matter when they don’t even have a Complainant? How could anyone in their right mind, and under the color of law, force a financially poor person to keep out of his home and either live in a hotel or be homeless? Attorney Anthony Giordano should be sainted. I find him to be honest and caring and professional.
This is not the first time I’ve seen him selflessly represent a truly unfortunate and needy human being. I’d guess he’s disgusted with the shenanigans of the DA’s office.
What’s happening here is a total miscarriage of justice and an abuse of power by District Attorney Janet DiFiore’s office. And after personally hearing ADA Stone lie to a Judge in open Court I will no longer wonder why there are so many lawyer jokes and why our Court system is oftentimes nothing but a mockery.
L.A. Mangano, Ossining
Readers Seeks Answers
Dear Editor:
While reading the article about the civil rights lawsuit against former County Corrections Officer on January 8, 2009, I wondered who has followed through on the death of Zorn Teodorovic who died some 14 months following the body-slamming on October 10, 2000 by Offier Mark Reimer
in an arc with a radius of some 7 feet who bounced his left side of his head violently on the concrete cell-block floor and then joined by Officer Paul
Cote who kicked him and sidekicked him on the right side of his jaw with his boot while Reimer continued to punch him in the chest and face?
Who is questioning the “reflexive response” and the “approved method” involving the treatment of inmates? Who is questioning the death of individuals housed on units for inmates known to have psychiatric issues and the conditions they endure?
I am appalled by the death of Zorn Teodorovic and hope his death will not be overlooked.
Eva Scholle
In Our Opinion...
There Ought To Be A Law
We are more firm than ever in our belief, and motivated in our strivings, to help bring about legislation to control, and prevent, prosecutorial
misconduct. We have come to believe that such legislation must provide both incarcerative and financial penalties; but, at the very least, involve permanent loss of one’s license to practice law. Furthermore, the legislation must be enacted by Congress, as it must be applicable, and enforceable, everywhere throughout our Nation.
Under the current state of affairs, state and federal prosecutors, district attorneys, and United States Attorneys, have no disincentive to engaging in any and every form of prosecutorial misconduct, and, in fact, routinely do, unfortunately, as witnessed in two separate, well-known cases here in Westchester just last week; one in the State Supreme Court, Anthony D. Simone; the other in Federal District Court, Paul Cote.
In the absence of meaningful punishment, prosecutors, already advantaged with unlimited human and financial resources, with increased frequency, find it convenient and personally acceptable to engage in prosecutorial misconduct of every kind in their effort to convict accused citizens, be they guilty or innocent. Without fear of punishment, at the very least loss of their license to practice law, our courts, both state and federal, are virtually powerless to protect the Constitutional rights of citizens against such unscrupulous, rogue prosecutors.
In case after case, we see such prosecutors bent on winning at any and all costs, sending innocent individuals to prison, often for life, based upon false confessions, witness coercion, evidence tampering, suborned perjury, and a host of other actions which, if engaged in by anyone other than a prosecutor, would be dealt with as crimes and would result in incarceration and financial penalties.
In the interest of justice and fair play, We believe the time has long been at hand when federal legislation must be enacted that will prevent the kinds of deliberate and calculated prosecutorial misconduct that sent Jeffrey Deskovic, Richard DiGuglielmo, and Anthony DiSimone (see Advocate, p.5), all innocent victims of prosecutorial misconduct, to prison from state court, and most recently, Paul Cote (see Court Report, p3) from federal court.
No democracy can long endure if the Constitutional rights of its citizens are routinely violated with impunity by the very individuals entrusted to protect them. We must not stand idly by as rogue prosecutors, together with rogue police and others in the Criminal Justice System, commit crimes against innocent citizens, indeed, against the very fabric of our society.
Amongst all of the presidential candidates, Democratic, Republican and other, who offered themselves to the American people, only one, Barack Obama, on at least two occasions, spoke of the need to, “deal with wrongful convictions.”
Now that he is about to take the reins into his hands, and in light of the unprecedented Constitutional violations of his predecessor’s administration, what better time for the voice of the People to be heard on behalf of such legislation?
Our Readers Respond...
Reader Complains Of Tyranny In Rockland Courts
Dear Editor:
Where do I begin? I was charged with Harrassment, 2nd Degree sometime in mid-2006. I am a resident of Rockland County. My defense attorney, at the time, was Anthony Dellicarri, then working for the law firm of Zugabie and Ferraro, one of the county’s largest law firms handling senior estate guardianships granted to them by the Surrogate Court.
In January 2008, Tom Zugabie was elected District Attorney of Rockland County. He now had to make an abrupt closure of his private practice. Mr. Dellicarri was hired onto the District Attorney’s staff as a senior attorney. However, Mr. Dellicarri was still continuing to act as my defense attorney well into February of 2008, after he had sworn the oath of office working in the District Attorney’s Office. In fact, he had written
letters to Judge Paul Phinney in Orangetown Court, presiding over my case, stating that he [Dellicarri] was my attorney of record.
He advised me that a guilty plea would be my best option, and promised to submit a pre-sentencing memorandum, which he promptly failed to prepare after I heeded his advice. A letter-writing campaign ensued between Mr. Dellicarri, Justice Phinney and myself. In short order, Judge Phinney withdrew my guilty plea in the interest of justice, and rescheduled my case to his calendar with new counsel.
I requested a special prosecutor and the recusal of Justice Phinney. I was granted a prosecutor from Putnam County by the name of Mr. Hogan. Who picked him, I don’t know. And Judge Phinney said he would not recuse himself from the case. I wrote to Gary Casella of the Grievance Committee advising him of Mr. Dellicarri’s actions, on the one hand working as my defense attorney and, at the same, being a sworn prosecutor.
My complaint was referred to the Westchester County Bar Association; and, I am currently still waiting to be heard by their Committee as to whether my complaint will be investigated.
I was assigned an 18B counsel because all money had been spent on Mr. Dellicarri’s representation. I was now assigned a Mr. Allen McGeorge, and was given approximately 30 days to prepare my case with him.
On the very eve of my trial, at approximately 8pm, Mr. Mc-George and I were in contact, and he requested that I meet him at a McDonald’s Restaurant, together with my 17-and 13-year-old daughters, witnesses for my defense.
At that meeting, McGeorge stated to me that saw a lot of my letters and asked, “Come on, who do you think you are writing complaints about Anthony Dellicarri?” He said further, “Let’s face it, if he didn’t work for Mr. Zugabie, he would have never gotten the job he has.”
He told me that I hadn’t made any friends writing complaints, stating, “Let’s face it, you’ve pissed-of the judge.” He further stated, “I recommend
you take a toothbrush to court tomorrow,” indicating that I was not going to get a fair trial because of my letter-writing. Well, he wasn’t lying. On the morning of January 6, 2009, approximately two years after my original charge was filed, I stood for trial. I was found guilty of Assault, 2nd Degree and hit with the maximum fine of $250 and 14 days in the Rockland County Jail.
As Judge Phinney read my verdict, two Orangetown police officers entered the courtroom, and the Judge ordered me to be removed from the
court and brought to jail. My daughter, my witness, pleaded with the Judge to not take me, stating, “How will I get home?
I have three siblings at home, how do you expect me to care for them alone?” Phinney said there was nothing he could do. I asked him if it would be alright if I were to go home today, and whether he could postpone sentencing until next week, when the childrens’ mother would be home. He eventually agreed.
What needs to be understood is that, for some time, I have been attempting to expose a mortgage fraud operation that starts in Rockland County and extends to Orange and Nassau Counties. I have forensic handwriting examiners’ reports that name a forger. Several of the names forged were of deceased persons. How could the person forging these signatures be certain that the people were deceased?
I believe someone from the Surrogate Court has been divulging this information, and that a criminal network involving fraudulent mortgages and
deeds, have been processed through the County Clerk’s Of-fice, thereby stealing the property of the deceased and robbing banks and other lending
institutions of mortgage loans which are uncollectible because the person who acquired the loan is actually dead.
Several government actors within Rockland County are becoming quite concerned about my repeated notifications to certain government agencies
exposing these illicit activities. I have been, and I am continuing to be targeted, by said government actors and now my incarceration is essentially
phase 1. My situation in Rockland County is serious; the government actors are proving that they will stop at nothing to keep me from my goal of exposing their criminal enterprise engaged in robbing the dead.
Rockland County, and some of its elected government of-ficials, have literally turned the Surrogate Court into one of the largest theft rings in New York State. They must be stopped and exposed. These are the people who required maximum sentence imposed on them, and pilfered property returned to rightful inheritances. Banks must be repaid in order to prevent the economic collapse of our economy from these criminal government actors.
Finally, people need to start watching the actions of judges and court clerks if we are to put a stop to this organized crime ring facilitated by the people who are entrusted to uphold our Constitution.
Mike Kelly, Rockland
County ADA Audrey Stone Should Be Ashamed Of Herself
Dear Editor:
I was recently a spectator in White Plains Supreme Court because I was both concerned and interested in a case being handled by Anthony M. Giordano, Esq. of Ossining.
A frail and somewhat sickly 71-year-old man, married 48 years, has loud arguments with his wife. During an argument in October 2008 a neighbor called the police, who called in Adult Protective Services. ADT contacted the District Attorney’s Office who issued an Order of Protection for the wife and told the husband to leave the home. The PD prepared a Supporting Deposition. The wife refused to sign it saying it was inaccurate and besides, she wanted her husband back home.
But the District Attorney’s office didn’t care they don’t have a Complainant, along with an un-signed Supporting Deposition. They went full-throttle and had the elderly husband incarcerated when he returned to the house while the TOP was in effect. First he returned because his wife invited him back; second time because he forgot his eye glasses there after he got 22 stitches in his head when he fell.
Attorney Giordano asked for no bail, the ADA asked for $10K and the Ossining Village Judge went with $15K. The elderly man went back to
jail. Then at a bail hearing before kindly Judge Jeffrey Cohen bail was lowered to $1,500. And this is where I ‘met’ the A.D.A. Before going in front of Judge Cohen a woman who’s name I did not know called me to the back of the courtroom. She said to me “What’s your name?” I said “Linda. What’s your name” and she said “Audrey”. She questioned me “What are you doing here? Why do you want to help this man?” I said “Because the man is elderly, needs help, and should not be in jail for the holidays.”
In so many words I was told to mind my own business and just go away. Later on I heard Audrey say to Judge Cohen “And that woman who said the Defendant could live in her home. She refused to even give me her name when I asked her for it!” Hearing a lie being told to a Judge made me
cringe. And from an Assistant District Attorney! ADA Audrey Stone, someone who represents our Court system. Then ADA Stone told the Judge I
“screamed” at her outside of another Court. Another fabrication ADA Stone spewed to Judge Cohen. I was 2 car lengths away from this woman
and said “Someday we’ll both be old. We should be helping our senior citizens.” A witness to this incident corroborated that I had not “screamed” at anyone.
ADA Stone continues to pursue charges again this elderly man who has been forced to live in a hotel since October 2008 (almost 4 months now).
What I’d really like to know is this: How can the District Attorney’s office pursue this matter when they don’t even have a Complainant? How could anyone in their right mind, and under the color of law, force a financially poor person to keep out of his home and either live in a hotel or be homeless? Attorney Anthony Giordano should be sainted. I find him to be honest and caring and professional.
This is not the first time I’ve seen him selflessly represent a truly unfortunate and needy human being. I’d guess he’s disgusted with the shenanigans of the DA’s office.
What’s happening here is a total miscarriage of justice and an abuse of power by District Attorney Janet DiFiore’s office. And after personally hearing ADA Stone lie to a Judge in open Court I will no longer wonder why there are so many lawyer jokes and why our Court system is oftentimes nothing but a mockery.
L.A. Mangano, Ossining
Readers Seeks Answers
Dear Editor:
While reading the article about the civil rights lawsuit against former County Corrections Officer on January 8, 2009, I wondered who has followed through on the death of Zorn Teodorovic who died some 14 months following the body-slamming on October 10, 2000 by Offier Mark Reimer
in an arc with a radius of some 7 feet who bounced his left side of his head violently on the concrete cell-block floor and then joined by Officer Paul
Cote who kicked him and sidekicked him on the right side of his jaw with his boot while Reimer continued to punch him in the chest and face?
Who is questioning the “reflexive response” and the “approved method” involving the treatment of inmates? Who is questioning the death of individuals housed on units for inmates known to have psychiatric issues and the conditions they endure?
I am appalled by the death of Zorn Teodorovic and hope his death will not be overlooked.
Eva Scholle
Westchester Guardian/The Court Report/Paul Cote.
Thursday, January 15, 2009
The Court Report
By Richard Blassberg
Framed Former County Correction Officer
Remanded To Jail, Awaiting Sentencing
United States District Court, White Plains
Judge Kenneth M. Karas Presiding
Last Tuesday, January 6th, former 12-year veteran Westchester County Correction Officer Paul M. Cote, accompanied by some 35 friends and family, was present in Federal Court, White Plains, before Judge Kenneth M. Karas, responding to a motion by Assistant United States Attorney
Cynthia Dunne seeking to remand him to the Federal Detention Facility, awaiting sentencing, having been convicted by a federal jury for using excessive force against inmate Zoran Teodorovic, 46, thus violating his civil rights, in an incident at the Westchester County Jail, October 10, 2000.
Cote, who was convicted of second-degree assault by a jury in Westchester County Court, based on the same set of facts, serving three months in the Putnam County Jail and emerging November 27, 2001, had filed a civil rights lawsuit, claiming First Amendment retaliation on Wednesday, December 31, 2008. That complaint, naming now-Commissioner of Corrections for Westchester County Joseph Spano, numerous high-ranking
corrections officers as well as the Government’s chief Prosecution witness, Sergeant John Mark Reimer, and three jailhouse snitches, was gathered and assembled by civil rights attorney Jonathan Lovett.
Attorney Lovett was present on Tuesday, seated at a separate Defense table behind Cote and Attorneys Bennett Epstein and John Patton, who had represented Cote at the federal trial in 2006, and whose motion, seeking a Judgment of Acquittal, was granted by Trial Judge the late Charles L.
Brieant, April 4, 2007, but reversed by a three-judge panel of the Second Circuit Court of Appeals late last year.
Judge Karas began the proceeding, announcing, “I have read the letters from the Government and from Mr. Epstein.”
There then followed opening remarks by Attorney Epstein, addressing Assistant United States Attorney Cynthia Dunne’s application to incarcerate Paul Cote prior to sentencing, reviewing for the Court’s information, Defense submissions and a brief overview of the Defense position relative to the Government’s. Epstein then told the Court, “There’s one more submission by another attorney who is present in Court.”
Judge Karas responded, “I have sent his petition to the wheel. Mr. Lovett’s papers.” He went on, “With all due respect to Mr. Lovett; and
I love him, I do not believe that what Mr. Lovett has to say is relevant to what the Government is saying.”
There followed several minutes of discussion between Epstein and Karas with respect to the Federal Rules of Criminal Procedure, 18 U.S.C. Section 922, that sets the conditions which control the options available to a federal court in determining how it may handle persons in Cote’s situation
under Clauses One and Two. Epstein cited a specific case, telling the Court, “The Second Circuit view of 922 Crimes is out of step with most of the other Circuits.”
He then introduced a case off the Third Circuit blog which brought about some humorous remarks from the Judge about spending time on the blogosphere.
Judge Karas, turning more serious, engaged Epstein, suggesting, “Let’s assume the Second Circuit has just gone completely off the reservation. I have to go with them, don’t I?”
Epstein shot back, “But, Your Honor.”
Karas was still at it, saying, “Speaking of the Second Circuit, in the Acosta case the Second Circuit says...it breaks down 242...anyone who, under Color of Law.” He went on, “We express no opinion as to whether, if someone violates the second clause of 242, have they not committed a crime of violence?”
Epstein, not wanting to get boxed in, came back with, “My view is you can bifurcate the statute.”
Karas next cited two cases, and then said, “Something that results in bodily injury doesn’t necessarily imply a crime of violence.”
He then laid out a hypothetical that comported with Epstein’s argument and asked if it is “categorically a crime of violence.” He quickly added, “But that’s what the Supreme Court says I have to take out.” At that point lead Prosecutor Cynthia Dunne broke in with, “We’re looking at the right to be free from cruel and unusual punishment; but, we are talking about excessive force.”
Judge Karas came right back with, “But that’s based upon the facts of the case; which violation we’re looking at.” He then speci-fied, “Clause One: Bodily injury, Clause Two: Dangerous weapons.” Going back to a previously cited case, Acosta, he said, “Acosta deals with cops who robbed drug
dealers.” He went further, “You’re getting away again from the categorical approach.
That approach says you must look at what happened as defined by Congress.” He then laid out a DWI example. Dunne responded, indicating she
was not, “Up on DWI state law,” to which Karas joked, “Mr. Epstein’s up on Third Circuit bloggings. What are you doing in your spare time?”
Turning more serious, the Judge, continuing to address Dunne, said, “I understand that the way the case was charged and tried, and the jury verdict, that you view it as a crime of violence.
I don’t see it that way because we are not supposed to rely on the facts as alleged.” He continued further, “I agree with Mr. Epstein, that one does
not go through the transcripts or the trial looking for crimes of violence. The Second Circuit made it clear in Acosta that it was aligning itself with the Fifth Circuit, and, under Acosta, I don’t think I have any choice. It is appropriate to say he [Cote] was convicted under the Second Clause, and I must remaind Mr. Cote to jail.”
Analysis:
Up until that point, it seemed “Mr. Cote, I am sorry, but I am going to remand you until sentence.” to this observer, and probably to most of Paul Cote’s supporters in the Courtroom, that Judge Karas had been making a pretty fair argument for leaving Paul free in the community until his sentencing; which would explain the gasp heard from many as he uttered the words, “I must remand Mr. Cote to jail.”
Nevertheless, Mr. Epstein continued to argue, “This case is in a unique posture because of the passing of Judge Brieant. The Second Circuit didn’t resolve this case. It would be highly relevant to determine who caused the injury to Mr. Teodorovic.”
Judge Karas responded, “It seems to me you would want to. I am prepared to read the entire transcript of the trial. I am happy to read whatever
you want, including your Appellate briefs.”
Perhaps briefly reflecting upon what he had agreed to do, Karas then said, “This is all going to take a great deal of time.” He then proceeded to set
sentencing for May 8th at 2pm, telling Paul Cote, “Mr. Cote, I am sorry, but I’m going to remand you until sentence.”
Analysis:
Judge Karas is a very bright, sensitive and compassionate judge. Having not tried the case, but nonetheless being the one who must sentence Defendant Cote, he is temporarily operating at a disadvantage, not being fully familiar with the testimony or the circumstances that actually brought about the injury to, and ultimate death of, a homeless, belligerent, mentally-ill inmate of the County Jail, Zoran Teodorovic.
Neither is the Judge aware of the First Amendment retaliation and the behind-thescenes prosecutorial misconduct in both state and federal courts
that resulted in the charging, prosecution and conviction of a 12-year veteran correction offi-cer, Paul Cote, as detailed in the civil rights complaint filed with the District Court on December 31, 2008.
What Judge Karas does know, however, is that the late Judge Charles L. Brieant was nobody’s fool, and, that he had every good reason, having conducted the pretrial proceedings, and presided over the trial, to reverse the jury verdict as “inconsistent with the evidence,” as he did.
The Court Report
By Richard Blassberg
Framed Former County Correction Officer
Remanded To Jail, Awaiting Sentencing
United States District Court, White Plains
Judge Kenneth M. Karas Presiding
Last Tuesday, January 6th, former 12-year veteran Westchester County Correction Officer Paul M. Cote, accompanied by some 35 friends and family, was present in Federal Court, White Plains, before Judge Kenneth M. Karas, responding to a motion by Assistant United States Attorney
Cynthia Dunne seeking to remand him to the Federal Detention Facility, awaiting sentencing, having been convicted by a federal jury for using excessive force against inmate Zoran Teodorovic, 46, thus violating his civil rights, in an incident at the Westchester County Jail, October 10, 2000.
Cote, who was convicted of second-degree assault by a jury in Westchester County Court, based on the same set of facts, serving three months in the Putnam County Jail and emerging November 27, 2001, had filed a civil rights lawsuit, claiming First Amendment retaliation on Wednesday, December 31, 2008. That complaint, naming now-Commissioner of Corrections for Westchester County Joseph Spano, numerous high-ranking
corrections officers as well as the Government’s chief Prosecution witness, Sergeant John Mark Reimer, and three jailhouse snitches, was gathered and assembled by civil rights attorney Jonathan Lovett.
Attorney Lovett was present on Tuesday, seated at a separate Defense table behind Cote and Attorneys Bennett Epstein and John Patton, who had represented Cote at the federal trial in 2006, and whose motion, seeking a Judgment of Acquittal, was granted by Trial Judge the late Charles L.
Brieant, April 4, 2007, but reversed by a three-judge panel of the Second Circuit Court of Appeals late last year.
Judge Karas began the proceeding, announcing, “I have read the letters from the Government and from Mr. Epstein.”
There then followed opening remarks by Attorney Epstein, addressing Assistant United States Attorney Cynthia Dunne’s application to incarcerate Paul Cote prior to sentencing, reviewing for the Court’s information, Defense submissions and a brief overview of the Defense position relative to the Government’s. Epstein then told the Court, “There’s one more submission by another attorney who is present in Court.”
Judge Karas responded, “I have sent his petition to the wheel. Mr. Lovett’s papers.” He went on, “With all due respect to Mr. Lovett; and
I love him, I do not believe that what Mr. Lovett has to say is relevant to what the Government is saying.”
There followed several minutes of discussion between Epstein and Karas with respect to the Federal Rules of Criminal Procedure, 18 U.S.C. Section 922, that sets the conditions which control the options available to a federal court in determining how it may handle persons in Cote’s situation
under Clauses One and Two. Epstein cited a specific case, telling the Court, “The Second Circuit view of 922 Crimes is out of step with most of the other Circuits.”
He then introduced a case off the Third Circuit blog which brought about some humorous remarks from the Judge about spending time on the blogosphere.
Judge Karas, turning more serious, engaged Epstein, suggesting, “Let’s assume the Second Circuit has just gone completely off the reservation. I have to go with them, don’t I?”
Epstein shot back, “But, Your Honor.”
Karas was still at it, saying, “Speaking of the Second Circuit, in the Acosta case the Second Circuit says...it breaks down 242...anyone who, under Color of Law.” He went on, “We express no opinion as to whether, if someone violates the second clause of 242, have they not committed a crime of violence?”
Epstein, not wanting to get boxed in, came back with, “My view is you can bifurcate the statute.”
Karas next cited two cases, and then said, “Something that results in bodily injury doesn’t necessarily imply a crime of violence.”
He then laid out a hypothetical that comported with Epstein’s argument and asked if it is “categorically a crime of violence.” He quickly added, “But that’s what the Supreme Court says I have to take out.” At that point lead Prosecutor Cynthia Dunne broke in with, “We’re looking at the right to be free from cruel and unusual punishment; but, we are talking about excessive force.”
Judge Karas came right back with, “But that’s based upon the facts of the case; which violation we’re looking at.” He then speci-fied, “Clause One: Bodily injury, Clause Two: Dangerous weapons.” Going back to a previously cited case, Acosta, he said, “Acosta deals with cops who robbed drug
dealers.” He went further, “You’re getting away again from the categorical approach.
That approach says you must look at what happened as defined by Congress.” He then laid out a DWI example. Dunne responded, indicating she
was not, “Up on DWI state law,” to which Karas joked, “Mr. Epstein’s up on Third Circuit bloggings. What are you doing in your spare time?”
Turning more serious, the Judge, continuing to address Dunne, said, “I understand that the way the case was charged and tried, and the jury verdict, that you view it as a crime of violence.
I don’t see it that way because we are not supposed to rely on the facts as alleged.” He continued further, “I agree with Mr. Epstein, that one does
not go through the transcripts or the trial looking for crimes of violence. The Second Circuit made it clear in Acosta that it was aligning itself with the Fifth Circuit, and, under Acosta, I don’t think I have any choice. It is appropriate to say he [Cote] was convicted under the Second Clause, and I must remaind Mr. Cote to jail.”
Analysis:
Up until that point, it seemed “Mr. Cote, I am sorry, but I am going to remand you until sentence.” to this observer, and probably to most of Paul Cote’s supporters in the Courtroom, that Judge Karas had been making a pretty fair argument for leaving Paul free in the community until his sentencing; which would explain the gasp heard from many as he uttered the words, “I must remand Mr. Cote to jail.”
Nevertheless, Mr. Epstein continued to argue, “This case is in a unique posture because of the passing of Judge Brieant. The Second Circuit didn’t resolve this case. It would be highly relevant to determine who caused the injury to Mr. Teodorovic.”
Judge Karas responded, “It seems to me you would want to. I am prepared to read the entire transcript of the trial. I am happy to read whatever
you want, including your Appellate briefs.”
Perhaps briefly reflecting upon what he had agreed to do, Karas then said, “This is all going to take a great deal of time.” He then proceeded to set
sentencing for May 8th at 2pm, telling Paul Cote, “Mr. Cote, I am sorry, but I’m going to remand you until sentence.”
Analysis:
Judge Karas is a very bright, sensitive and compassionate judge. Having not tried the case, but nonetheless being the one who must sentence Defendant Cote, he is temporarily operating at a disadvantage, not being fully familiar with the testimony or the circumstances that actually brought about the injury to, and ultimate death of, a homeless, belligerent, mentally-ill inmate of the County Jail, Zoran Teodorovic.
Neither is the Judge aware of the First Amendment retaliation and the behind-thescenes prosecutorial misconduct in both state and federal courts
that resulted in the charging, prosecution and conviction of a 12-year veteran correction offi-cer, Paul Cote, as detailed in the civil rights complaint filed with the District Court on December 31, 2008.
What Judge Karas does know, however, is that the late Judge Charles L. Brieant was nobody’s fool, and, that he had every good reason, having conducted the pretrial proceedings, and presided over the trial, to reverse the jury verdict as “inconsistent with the evidence,” as he did.
Thursday, January 8, 2009
Westchester Guardian/Jeffrey Deskovic.
Jeff Deskovic
Updates Of Recent Columns
Update on William Dillon
In the recent article, Wrongful Convictions Just Keep Coming Out, Part 5, William Dillon’s case was reviewed at length. For those who may
have missed that issue, Dillon was convicted of murder, and served 27 years before DNA showed that he was innocent. He was convicted based upon the testimony of a jailhouse snitch, a sometime girlfriend who was sleeping with the lead detective, and who said she was at the crime scene with Dillon, the dog handler Preston, and a man who said he picked up a hitchiker who had bloody yellow t-shirt.
They had sex, and later he dropped him off at a bar. When he realized that the t-shirt was in his vehicle, he threw it out. When he later saw a news report about the crime, he informed authorities about the t-shirt and they recovered it. The t-shirt contained DNA from the victim and from the
perpetrator. Since that column, Dillon’s conviction has been overturned, and the prosecution has dismissed the charges against him.
There were similarities between the Dillon case, and that of Wilton Dedge, who had been convicted of sexual assault, sexual battery, and burglary, but had then been proven innocent by DNA. For those unfamiliar with the Dedge case, according to e Innocence Project’s website, the “proof ” against Dedge consisted of: “The victim’s initial description of her assailant, given at the hospital, was six feet tall and approximately 160
pounds. She had been able to compare their relative heights before and during the attack. She also stated that the perpetrator was big and muscular, able to throw her around easily. At the time of the crime, Wilton Dedge weighed 125 pounds and is 5’5” tall.
At the second trial, the investigating officer testified for the first time that Dedge was wearing boots with higher than normal heels to compensate for the difference between the victim’s description and Dedge’s appearance. The prosecution’s hair expert testified that two pubic hairs were found on the victim’s bed. One was similar to hairs taken from the victim. The other was from a male and Dedge could not be eliminated as a possible source of that hair. The hair proved to be the only physical evidence linking Dedge to the crime.
Sperm was found on a swab in the rape kit, but no blood typing results were ascertained. To complete their case, prosecutors relied on the testimony of Clarence Zacke, a jailhouse snitch, and John Preston, who presented dog-sniffing evidence. Zacke was a known snitch and, at the time of Dedge’s trial, received a drastic reduction in his sentences. He claimed that Dedge confessed to the crime while they were being transported together in a prison van. Preston’s dog allegedly, after sniffing an item with Dedge’s scent on it, alerted its owner to Dedge’s presence in the victim’s house.”
The similarities, taken from an article in Florida Today written by John Torres, involve: “Both suspects’ convictions were based on discredited dog handler John Preston’s expert testimony that his dog tied the men to the crime. Both cases involved the testimony of jailhouse informants. Both cases involved questionable testimony from witnesses.
Both original verdicts were overturned because of the discovery of DNA evidence. “As a result of the Dillon case, attorneys with the Innocence Project of Florida wrote a letter to Florida Governor Charlie Crist asking him to appoint a special prosecutor with subpoena powers to investigate cases that the dog handler Preston testified in. If the governor agrees, Seth Miller, executive director of the Innocence Project, said, then he expects to see many more exonerations. As support for that idea, he said there were more than 20 exonerations in Dallas after the governor
appointed a special prosecutor to look into DNA cases there.” Dillon’s case is just one piece of the corruption in Brevard County,” Miller said.
“We need to root out the bad actors. People have to pay for what they’ve done.” Backing up these claims is retired Brevard County Judge Gilbert
Goshorn, who said the only way the expert dog handler involved in the Dillon case could have tracked anything was if he was previously given the information.
In a sworn affidavit dated Aug. 14, 2008, the Judge said he believed Preston was used regularly by the State Attorney’s Office “to confirm the state’s preconceived notions. It is my belief that the only way Preston could achieve the results he achieved in numerous other cases was having obtained information about the case prior to the scent-tracking, so that Preston could lead the dog to the suspect or evidence in question.”
Preston regularly testified for the State Attorney’s Office during the early 1980s, before being disqualified by Judge Gilbert Goshorn in 1984. Preston later was exposed by television journalist Geraldo Rivera, and many of the cases he testified in nationally were overturned. The Arizona Supreme Court went as far as calling him a “charlatan.”
Russo said he was upset that State Attorney Norman Wolfinger’s office was not cooperating with calls for information regarding Preston and the
cases in which he testified. Wolfinger, he explained, was a public defender with him on the team that helped clear Juan Ramos and which discredited Preston’s dog testimony.
“Mr. Wolfinger is very well-versed in the quality of the dog testimony,” he said. “I’m surprised they are not going back to look at these cases.” But Wolfinger, who has served as state attorney since 1984, responded by saying defendants and their attorneys have been free to bring any motions they deem appropriate before the courts.
“Evidentiary challenges to the admissibility of the dog evidence by defense attorneys began and was well-publicized before I became state attorney,” Wolfinger said. The main target of derision was the repeated use in the early 1980s of since-disgraced expert dog handler John Preston.
Preston, proven to be a fraud, testified in hundreds of Florida cases, including three in Brevard County that have been overturned: Dillon, Wilton
Dedge and Juan Ramos. “This case is about a criminal conspiracy that exists in Brevard County,” said David Menschel, legal director for the Innocence Project of Florida. “This is not a secret. People know about it.”
Update On Bullet Lead Analysis
In a previous issue of The Westchester Guardian, I wrote about Bul-let Lead Analysis, and how it could have lead to thousands having been
wrongfully convicted. The article cited sources which stated that a comprehensive review of thousands of cases would be done in an effort to undo
any wrongful convictions which occurred as a result of it. I also revisited the subject when I wrote an article entitled “Lee Wayne Hunt Revisited”.
The Jimmy Ates case is the first case in the country in which a conviction has been overturned based upon it. Jimmy Ates was released from custody after serving 10 years for murder in Florida. According to The Lethal Injection blogspot The State’s case against Jimmy Ates has been suspect from the beginning. Initially, Okaloosa County State Attorney Curtis Golden refused to prosecute because the case lacked sufficient evidence.
In a highly unusual move, Gov. Lawton Chiles assigned the high-pro- file case to Duval County State Attorney Harry Shorstein, who also refused
to prosecute. Six years after the murder, armed with the FBI’s new Bullet Lead Analysis, a third State Attorney prosecuted Jimmy Ates. CBLA is a procedure by which scientists claim to be able to link bullets to a particular batch or box on the basis of their chemical composition.
In Ates’ trial, FBI Analyst Kathleen Lundy testified that the bullets retrieved from the victim’s body matched the bullets found in the Ates’
family utility room, and therefore they came from the same batch. This testimony had no scientific basis. “Lundy was a fraud peddling a junk science and without that testimony, Jimmy Ates would never have been convicted,” said David Menschel, Legal Director of IPF.
Lundy testified about CBLA in at least six other Florida cases. Based on the new evidence that has emerged since trial, William Cervone, the special prosecutor assigned to the case, conceded that Ates’ conviction cannot stand. According to the NWF Daily News, attorneys for the Innocence Project of Florida also said in a news release “Ates is the first person in the nation to have a conviction overturned based on the FBI’s disavowal” of what is known as comparative bullet lead analysis (CBLA). “Jimmy Ates is one of just 1,500 individuals nationwide whose cases were tainted by CBLA,” the release said
Commentary
The Barnes case reaffirms the need for legislation to improve the accuracy of identifications. Misidentification is the cause of wrongful convictions in 75% of the wrongful conviction cases. It also shows how junk science can help convict innocent people. Often, such junk science does not convict people in and of itself, but rather it has the illusory effect of seeming to shore up other shaky evidence.
I believe that the need for continued advances in DNA technology as a criminal justice tool is highlighted by this case. The DNA couldn’t yield
conclusive results initially in 1993, but later improvements to the technology led to him being able to get testing. There may be cases now where if the technology was further improved that result could be obtained whereas right now they can’t. The scientists who work in this field, to me, are heroes. The Roman case makes me wonder: how many other people remain incarcerated, having been convicted at trial even though DNA evidence did not match them? This situation is completely intolerable, and in view of what is universally known and recognized about DNA should not be permitted to go on. Whenever there is a negative DNA test in a case, we need to acknowledge that it means the defendant is innocent, just as clearly as we do when post-conviction testing shows innocence. The difference between a pre-conviction DNA test and a post-conviction test is, to me, a mere technicality; for all intents and purposes in reality it shows the same thing.This non-recognition happened in my case as well.
Another important point that I wish legislators would recognize in deciding to vote or not vote for changes to improve the accuracy of the criminal justice system is that every time the wrong person is convicted, it leaves the real offender free to strike again.
In the Ott case, the common theme of incentivized witnessing contributing to a wrongful conviction is clearly present. This case also illustrates how prosecutors often will go to all kinds of lengths in order to win their case no matter what. The Justice Department opposing Ott’s appeal by arguing that it was “speculative” that all three crimes were committed by the same person, and that the person could not have been Ott because he was in jail while two of them were committed, is ridiculous.
The mindset of the police as expressed by their spokeswoman that “all the DNA proves is that the same man was with all three females, and that
they still believe that Ott is guilty”, is an example of authorities rarely wanting to admit that they made a mistake. Often, once they make up their mind that someone is guilty, there is no turning back, and any evidence to the contrary is twisted and contorted in all kinds of illogical ways in order to try to maintain the conclusion of guilt.
The Ates case further shows that junk science leads to wrongful convictions. The fact that there are 1500 other people currently in prison based up bullet lead analysis offers a window, in my opinion, as to just how many people are wrongfully imprisoned throughout the country, regardless of
the reason. Every time it emerges that a science is proven to be junk, every effort must be made to find the cases so affected and then conduct a review.
The Richardo Rachell case leaves me flabbergasted. The guy was sending many people in authority news articles that another person was committing similar crimes, but nobody listened. I try to place myself in a position of authority of one of the people receiving a letter from him, which contains a news article about similar crimes. That surely would have set off many warning bells. Why did nobody react? Was it simply more convenient to leave an innocent man in prison? Is it that people are jaded? Is it that they are worn down? Whatever the cause, the failure to act in this case is inexcusable and egregious.
The Dillon case further shows how junk science can assist in wrongfully convicting people. That a court at any time ever credited “dog testimony” is something on the level of the Keystone Cops. I don’t understand how Preston was able to sleep at night, earning money through a means of
fraud that was at least in part costing people years of their lives.
Without a doubt, a special prosecutor should be appointed to review all cases involving Preston in order to see how many others he helped wrongfully convict. I don’t see why Florida Gov. Crist is hesitating. It is a no brainer that this needs to be done. At the same time, I would like to applaud Judge Goshorn for coming out publicly, both assisting Dillon and supporting the need for an inquiry.
Updates Of Recent Columns
Update on William Dillon
In the recent article, Wrongful Convictions Just Keep Coming Out, Part 5, William Dillon’s case was reviewed at length. For those who may
have missed that issue, Dillon was convicted of murder, and served 27 years before DNA showed that he was innocent. He was convicted based upon the testimony of a jailhouse snitch, a sometime girlfriend who was sleeping with the lead detective, and who said she was at the crime scene with Dillon, the dog handler Preston, and a man who said he picked up a hitchiker who had bloody yellow t-shirt.
They had sex, and later he dropped him off at a bar. When he realized that the t-shirt was in his vehicle, he threw it out. When he later saw a news report about the crime, he informed authorities about the t-shirt and they recovered it. The t-shirt contained DNA from the victim and from the
perpetrator. Since that column, Dillon’s conviction has been overturned, and the prosecution has dismissed the charges against him.
There were similarities between the Dillon case, and that of Wilton Dedge, who had been convicted of sexual assault, sexual battery, and burglary, but had then been proven innocent by DNA. For those unfamiliar with the Dedge case, according to e Innocence Project’s website, the “proof ” against Dedge consisted of: “The victim’s initial description of her assailant, given at the hospital, was six feet tall and approximately 160
pounds. She had been able to compare their relative heights before and during the attack. She also stated that the perpetrator was big and muscular, able to throw her around easily. At the time of the crime, Wilton Dedge weighed 125 pounds and is 5’5” tall.
At the second trial, the investigating officer testified for the first time that Dedge was wearing boots with higher than normal heels to compensate for the difference between the victim’s description and Dedge’s appearance. The prosecution’s hair expert testified that two pubic hairs were found on the victim’s bed. One was similar to hairs taken from the victim. The other was from a male and Dedge could not be eliminated as a possible source of that hair. The hair proved to be the only physical evidence linking Dedge to the crime.
Sperm was found on a swab in the rape kit, but no blood typing results were ascertained. To complete their case, prosecutors relied on the testimony of Clarence Zacke, a jailhouse snitch, and John Preston, who presented dog-sniffing evidence. Zacke was a known snitch and, at the time of Dedge’s trial, received a drastic reduction in his sentences. He claimed that Dedge confessed to the crime while they were being transported together in a prison van. Preston’s dog allegedly, after sniffing an item with Dedge’s scent on it, alerted its owner to Dedge’s presence in the victim’s house.”
The similarities, taken from an article in Florida Today written by John Torres, involve: “Both suspects’ convictions were based on discredited dog handler John Preston’s expert testimony that his dog tied the men to the crime. Both cases involved the testimony of jailhouse informants. Both cases involved questionable testimony from witnesses.
Both original verdicts were overturned because of the discovery of DNA evidence. “As a result of the Dillon case, attorneys with the Innocence Project of Florida wrote a letter to Florida Governor Charlie Crist asking him to appoint a special prosecutor with subpoena powers to investigate cases that the dog handler Preston testified in. If the governor agrees, Seth Miller, executive director of the Innocence Project, said, then he expects to see many more exonerations. As support for that idea, he said there were more than 20 exonerations in Dallas after the governor
appointed a special prosecutor to look into DNA cases there.” Dillon’s case is just one piece of the corruption in Brevard County,” Miller said.
“We need to root out the bad actors. People have to pay for what they’ve done.” Backing up these claims is retired Brevard County Judge Gilbert
Goshorn, who said the only way the expert dog handler involved in the Dillon case could have tracked anything was if he was previously given the information.
In a sworn affidavit dated Aug. 14, 2008, the Judge said he believed Preston was used regularly by the State Attorney’s Office “to confirm the state’s preconceived notions. It is my belief that the only way Preston could achieve the results he achieved in numerous other cases was having obtained information about the case prior to the scent-tracking, so that Preston could lead the dog to the suspect or evidence in question.”
Preston regularly testified for the State Attorney’s Office during the early 1980s, before being disqualified by Judge Gilbert Goshorn in 1984. Preston later was exposed by television journalist Geraldo Rivera, and many of the cases he testified in nationally were overturned. The Arizona Supreme Court went as far as calling him a “charlatan.”
Russo said he was upset that State Attorney Norman Wolfinger’s office was not cooperating with calls for information regarding Preston and the
cases in which he testified. Wolfinger, he explained, was a public defender with him on the team that helped clear Juan Ramos and which discredited Preston’s dog testimony.
“Mr. Wolfinger is very well-versed in the quality of the dog testimony,” he said. “I’m surprised they are not going back to look at these cases.” But Wolfinger, who has served as state attorney since 1984, responded by saying defendants and their attorneys have been free to bring any motions they deem appropriate before the courts.
“Evidentiary challenges to the admissibility of the dog evidence by defense attorneys began and was well-publicized before I became state attorney,” Wolfinger said. The main target of derision was the repeated use in the early 1980s of since-disgraced expert dog handler John Preston.
Preston, proven to be a fraud, testified in hundreds of Florida cases, including three in Brevard County that have been overturned: Dillon, Wilton
Dedge and Juan Ramos. “This case is about a criminal conspiracy that exists in Brevard County,” said David Menschel, legal director for the Innocence Project of Florida. “This is not a secret. People know about it.”
Update On Bullet Lead Analysis
In a previous issue of The Westchester Guardian, I wrote about Bul-let Lead Analysis, and how it could have lead to thousands having been
wrongfully convicted. The article cited sources which stated that a comprehensive review of thousands of cases would be done in an effort to undo
any wrongful convictions which occurred as a result of it. I also revisited the subject when I wrote an article entitled “Lee Wayne Hunt Revisited”.
The Jimmy Ates case is the first case in the country in which a conviction has been overturned based upon it. Jimmy Ates was released from custody after serving 10 years for murder in Florida. According to The Lethal Injection blogspot The State’s case against Jimmy Ates has been suspect from the beginning. Initially, Okaloosa County State Attorney Curtis Golden refused to prosecute because the case lacked sufficient evidence.
In a highly unusual move, Gov. Lawton Chiles assigned the high-pro- file case to Duval County State Attorney Harry Shorstein, who also refused
to prosecute. Six years after the murder, armed with the FBI’s new Bullet Lead Analysis, a third State Attorney prosecuted Jimmy Ates. CBLA is a procedure by which scientists claim to be able to link bullets to a particular batch or box on the basis of their chemical composition.
In Ates’ trial, FBI Analyst Kathleen Lundy testified that the bullets retrieved from the victim’s body matched the bullets found in the Ates’
family utility room, and therefore they came from the same batch. This testimony had no scientific basis. “Lundy was a fraud peddling a junk science and without that testimony, Jimmy Ates would never have been convicted,” said David Menschel, Legal Director of IPF.
Lundy testified about CBLA in at least six other Florida cases. Based on the new evidence that has emerged since trial, William Cervone, the special prosecutor assigned to the case, conceded that Ates’ conviction cannot stand. According to the NWF Daily News, attorneys for the Innocence Project of Florida also said in a news release “Ates is the first person in the nation to have a conviction overturned based on the FBI’s disavowal” of what is known as comparative bullet lead analysis (CBLA). “Jimmy Ates is one of just 1,500 individuals nationwide whose cases were tainted by CBLA,” the release said
Commentary
The Barnes case reaffirms the need for legislation to improve the accuracy of identifications. Misidentification is the cause of wrongful convictions in 75% of the wrongful conviction cases. It also shows how junk science can help convict innocent people. Often, such junk science does not convict people in and of itself, but rather it has the illusory effect of seeming to shore up other shaky evidence.
I believe that the need for continued advances in DNA technology as a criminal justice tool is highlighted by this case. The DNA couldn’t yield
conclusive results initially in 1993, but later improvements to the technology led to him being able to get testing. There may be cases now where if the technology was further improved that result could be obtained whereas right now they can’t. The scientists who work in this field, to me, are heroes. The Roman case makes me wonder: how many other people remain incarcerated, having been convicted at trial even though DNA evidence did not match them? This situation is completely intolerable, and in view of what is universally known and recognized about DNA should not be permitted to go on. Whenever there is a negative DNA test in a case, we need to acknowledge that it means the defendant is innocent, just as clearly as we do when post-conviction testing shows innocence. The difference between a pre-conviction DNA test and a post-conviction test is, to me, a mere technicality; for all intents and purposes in reality it shows the same thing.This non-recognition happened in my case as well.
Another important point that I wish legislators would recognize in deciding to vote or not vote for changes to improve the accuracy of the criminal justice system is that every time the wrong person is convicted, it leaves the real offender free to strike again.
In the Ott case, the common theme of incentivized witnessing contributing to a wrongful conviction is clearly present. This case also illustrates how prosecutors often will go to all kinds of lengths in order to win their case no matter what. The Justice Department opposing Ott’s appeal by arguing that it was “speculative” that all three crimes were committed by the same person, and that the person could not have been Ott because he was in jail while two of them were committed, is ridiculous.
The mindset of the police as expressed by their spokeswoman that “all the DNA proves is that the same man was with all three females, and that
they still believe that Ott is guilty”, is an example of authorities rarely wanting to admit that they made a mistake. Often, once they make up their mind that someone is guilty, there is no turning back, and any evidence to the contrary is twisted and contorted in all kinds of illogical ways in order to try to maintain the conclusion of guilt.
The Ates case further shows that junk science leads to wrongful convictions. The fact that there are 1500 other people currently in prison based up bullet lead analysis offers a window, in my opinion, as to just how many people are wrongfully imprisoned throughout the country, regardless of
the reason. Every time it emerges that a science is proven to be junk, every effort must be made to find the cases so affected and then conduct a review.
The Richardo Rachell case leaves me flabbergasted. The guy was sending many people in authority news articles that another person was committing similar crimes, but nobody listened. I try to place myself in a position of authority of one of the people receiving a letter from him, which contains a news article about similar crimes. That surely would have set off many warning bells. Why did nobody react? Was it simply more convenient to leave an innocent man in prison? Is it that people are jaded? Is it that they are worn down? Whatever the cause, the failure to act in this case is inexcusable and egregious.
The Dillon case further shows how junk science can assist in wrongfully convicting people. That a court at any time ever credited “dog testimony” is something on the level of the Keystone Cops. I don’t understand how Preston was able to sleep at night, earning money through a means of
fraud that was at least in part costing people years of their lives.
Without a doubt, a special prosecutor should be appointed to review all cases involving Preston in order to see how many others he helped wrongfully convict. I don’t see why Florida Gov. Crist is hesitating. It is a no brainer that this needs to be done. At the same time, I would like to applaud Judge Goshorn for coming out publicly, both assisting Dillon and supporting the need for an inquiry.
Westchester Guardian/Catherine Wilson.
Thursday, January 8, 2009
Catherine Wilson, Bureau Chief
Northern Westchester
Time to Reassess
On July 1, 2008, the County Board of Legislators requested funding to perform yet another study to reevaluate property taxes within Westchester County, now the highest in the nation. The Board was granted $25,000 for a study on improving assessment practices, including revaluation.
According to a press release from the Board on December 23, “The study group has begun its work. David Jackson, Executive Director
of the Westchester County Tax Commission, is facilitating the wide-ranging and exhaustive discussion on this complex issue with
representatives from the Westchester Assessors Association and the Municipal Officials Association”.
The report from this Commission is due by the end of February, 2009. At the time of the request for this grant, Legislator William Burton,
the Chair of the Board’s Committee on Legislation, noted that “the Committee on Legislation feels that initiating this study will have a positive benefit to our County’s taxpayers by alleviating the differences in evaluating real property”.
Such promises have been made before by the legislators, with no relief to the taxpayers. In his July request Burton admitted that “in 1996, our Board of Legislators approved legislation, which was also supported by the Westchester Municipal Officials Association authorizing
a County-wide system of real property valuation. is required that there was an establishment of a Westchester County revaluation commission that would implement and oversee the real property valuation”.
Almost 13 years later, County taxpayers are still waiting for a change to the current system. Taxpayers are voicing their concerns over their onerous property taxes to local and state representatives. On December 29, Assemblywoman Sandy Galef released the results of a constituent survey she conducted on property tax relief in the 90th New York State Assembly District. According to Galef, her constituents were “overwhelmingly in favor of change, with the vast majority supporting a property tax cap”.
In June 2008, the New York State Commission on Property Tax Relief issued their findings from their study on changes to the current property tax system. Among the solutions the Commission recommended was the establishment of a “tax cap, local overrides to a cap, mandate relief, and circuit breaker legislation”.
Galef ’s survey of County residents showed their preferences (See Chart on Page 2). While Galef ’s legislation seeks to cap the method for calculating property taxes, the County is seeking to reassess the values that local property taxes are based on. County Legislator Ken Jenkins noted the swings in taxes that can result at present from the current system: “A slight increase in county taxes can actually end up as a decrease on a property tax bill for some residents and an increase that varies from minimal to significant for others”.
The Board of Legislators blames the swings on the state’s “equalization rate”. According to the Board, this rate is based on “the relationship
of sample assessments with sales or appraisals in a community. Fluctuations in the real estate market and construction activity, assessment reductions due to appeals, and methodologies that vary from municipality to municipality are factors responsible for producing a wide disparity in assessment results”.
Despite the high rate of taxes and the wide fluctuations in tax evaluations locally, the Board of Legislators acknowledged to the County Executive, Andrew Spano, last July “This survey will be the first step that is in order to ease the undo-burden that our taxpayers
face”.
And, although the Board recognized in 1996 that the County property tax system was already dysfunctional they are only just now taking the “first step” to address this system with this study; a first step that won’t even be completed until February, ten months after they initiated the request for this study. How much more evidence do we need to demonstrate County Government’s disregard for the plight of Westchester’s taxpayers? While both the County Board and the New York State Legislature are seeking to address the property tax issues for the long run, at the rate reforms to the system are progressing, to quote the famous economist John Maynard Keynes “in the long run, we’ll all be dead”. How much longer can local residents wait for tax relief?
The problem is not limited to local homeowners. Commercial property owners face an even higher burden for property taxes since in many municipalities commercial property is assessed at a higher rate than residential property.
One tactic that both commercial and residential property owners use to reduce their tax burden is to challenge the value of their property on local tax records through a process known as a property tax grievance. According to a report in Real Estate New York, this grievance process is fraught with errors and delays. This report outlines the steps in a property tax grievance:
The first step in an assessment review is administrative, generally performed by local assessment boards with no professional staff. Typically they meet for a short-term grievance period. These boards are often deferential to the Assessor and generally lack the expertise to review properties other than homes.
The next step is judicial review. Tax review is generally a part-time assignment for a single judge and this is a major source of delay. Judges also often lack valuation expertise and in many cases they do not set or enforce scheduling orders or deadlines. Attorneys, mostly for municipalities, thus get repeated adjournments and cases do not quickly settle.
Tax review cases are won by proving both the value of a property and the ratio of the assessment to full value. Few assessors assess at 100%
of market value. Most assessment ratios in Westchester County are under three percent. Even a small difference in ratio can make a big difference in obtaining assessment reductions. Compounding the problem, the current system for property evaluation uses the “comparable sales” technique, which has been replacing the “replacement cost” technique. According to the Property Rights Foundation “the comparable
sales technique can only work when properties are extremely similar and are located in extremely similar situations, but, lacking statistically
significant samples, assessors are forced to apply subjective judgment to use a minimal number of sample properties that have just a few similarities to the property being assessed”. In comparison, replacement cost calculations are based on a piece by piece analysis of the construction of the residence or commercial property.
The Foundation warns that, when challenging property tax assessments, “the taxpayer has no right to view the assessor’s selection of comparable sales, because these are considered the assessor’s work product, exempt from the state Freedom of Information Law or from access during assessment appeals!”
The Foundation correctly notes, however, that assessments merely distribute taxes, they do not increase taxes overall. Tax dollars needed
and not collected through property taxes will simply be collected elsewhere. Therefore any relief local taxpayers obtain from lower tax valuations, may eventually be offset by increases in higher income taxes and local sales taxes as the state and municipalities struggle to replenish their drop in property tax revenues from lower property tax values.
Yet despite the problems in the grievance process, for many local taxpayers, it is the only method they have available to alleviate their tax burden. But once again, taxpayers have to wait months for relief. Many local municipalities list their grievance dates and procedures on their website. North Castle lists the following critical dates for taxpayers seeking to challenge their property taxes:
Important Assessment Dates
Taxable Status Date: June 1st
Tentative Completion of Roll: June 1st
Grievance Day: 3rd Tuesday of June
Final Filing of Roll: September 15th
Taxable Status Date: The particular date on which the taxable status of real property must be determined according to its condition and ownership. An improvement added after taxable status date is not assessable until the following year; one added before is subject to current year assessment and taxation Tentative Assessment Roll: The assessor completes, certifies, and files a roll containing proposed assessed
values for each property in the assessing unit.
Grievance Day: The Board of Assessment Review meets to hear assessment complaints. This is the last day property owners may file a
formal complaint seeking a reduction in their tentative assessments. Anyone can examine the assessment roll and property records during
business hours at the Assessor’s Office, 17 Bedford Road, Armonk, New York. However, between Taxable Status Day and Grievance Day
it should be done by appointment.
It is up to individual property owners to monitor their own assessments. Taxpayers who feel they are not being fairly assessed should
meet with the assessor before the tentative assessment roll is established. The assessor can be contacted at 273-3324 or by e-mail at
assessor@northcastleny.com. The assessor will explain how the assessment was determined and the rationale behind it.
North Castle also reminds their residents of the property tax exemptions they may apply for:
Alternative Veterans Exemption
Basic/Enhanced Star Exemption
Clergy Exemption
Cold War Veterans Exemption
Neighbor Notification Order Form
Non Profit Organization Exemption
Senior Citizen Exemption
Volunteer Firefighter & Ambulance Worker Exemption
However, as many property tax reform advocates have noted, property tax studies, reassessments, grievances, and exemptions are merely stop-gap methods that do little to alleviate the real reason why local taxes are so high. At a conference for “Reforming New York’s Property Tax”, the “New York Matters” organization bluntly noted: “Why are property taxes going up? Because spending is going up!” Robert Ward of the Public Policy Institute noted at this conference last year: “We have a spending problem here in New York, and that’s why we have a property tax problem.”
Ward reported at this conference that local government employment in New York State rose 12.6 percent in the last decade though the overall
population was up just 4 percent. School staffing increased 21 percent though student enrollment was up just 5 percent. Putting that in a national context, Ward noted that New York has about 57 local government workers for every 1,000 residents, while the national number is 49.
Ward recommended, “Spending needs to be brought in line through trimming pension and health benefits, and considering whether we
truly need all the government workers we have.”
The Guardian noted last month the significant discrepancies in benefits between government workers and other local employees. The time
has come for local residents to demand concessions from those unions which are unfairly burdening our local budgets for unrealistic and unfair
benefits. In this economic climate, local residents need a reduction in their taxes to survive – simply holding taxes at their current levels is not
good enough. It’s time for our local governments and government employees to cut back. Governor Paterson has already taken a step in the
right direction when he proposed the following concessions from state government workers in his 2009 budget for New York State:
Increasing the minimum retirement age from 55 to 62;
Requiring a 3% contribution from government employees to their pensions;
Prolonging the automatic pension step up at 20 years of service to 25 years;
Requiring a minimum of 10 years of public service to collect a pension, currently 5 years;
Eliminating overtime pay from pension benefit calculations.
These proposals, while still far more generous than the private sector, are necessary to lower the state budget and the tax burdens on state
residents. It’s time for the county and local municipalities to follow suit. Instead of wasting time and money on more studies, the County
Board of Legislators and our local communities should be spending their time negotiating concessions from the government employees.
Reassessing property values merely redistributes the problem. Eliminating or reducing bloated government benefits, eliminates it.
Catherine Wilson, Bureau Chief
Northern Westchester
Time to Reassess
On July 1, 2008, the County Board of Legislators requested funding to perform yet another study to reevaluate property taxes within Westchester County, now the highest in the nation. The Board was granted $25,000 for a study on improving assessment practices, including revaluation.
According to a press release from the Board on December 23, “The study group has begun its work. David Jackson, Executive Director
of the Westchester County Tax Commission, is facilitating the wide-ranging and exhaustive discussion on this complex issue with
representatives from the Westchester Assessors Association and the Municipal Officials Association”.
The report from this Commission is due by the end of February, 2009. At the time of the request for this grant, Legislator William Burton,
the Chair of the Board’s Committee on Legislation, noted that “the Committee on Legislation feels that initiating this study will have a positive benefit to our County’s taxpayers by alleviating the differences in evaluating real property”.
Such promises have been made before by the legislators, with no relief to the taxpayers. In his July request Burton admitted that “in 1996, our Board of Legislators approved legislation, which was also supported by the Westchester Municipal Officials Association authorizing
a County-wide system of real property valuation. is required that there was an establishment of a Westchester County revaluation commission that would implement and oversee the real property valuation”.
Almost 13 years later, County taxpayers are still waiting for a change to the current system. Taxpayers are voicing their concerns over their onerous property taxes to local and state representatives. On December 29, Assemblywoman Sandy Galef released the results of a constituent survey she conducted on property tax relief in the 90th New York State Assembly District. According to Galef, her constituents were “overwhelmingly in favor of change, with the vast majority supporting a property tax cap”.
In June 2008, the New York State Commission on Property Tax Relief issued their findings from their study on changes to the current property tax system. Among the solutions the Commission recommended was the establishment of a “tax cap, local overrides to a cap, mandate relief, and circuit breaker legislation”.
Galef ’s survey of County residents showed their preferences (See Chart on Page 2). While Galef ’s legislation seeks to cap the method for calculating property taxes, the County is seeking to reassess the values that local property taxes are based on. County Legislator Ken Jenkins noted the swings in taxes that can result at present from the current system: “A slight increase in county taxes can actually end up as a decrease on a property tax bill for some residents and an increase that varies from minimal to significant for others”.
The Board of Legislators blames the swings on the state’s “equalization rate”. According to the Board, this rate is based on “the relationship
of sample assessments with sales or appraisals in a community. Fluctuations in the real estate market and construction activity, assessment reductions due to appeals, and methodologies that vary from municipality to municipality are factors responsible for producing a wide disparity in assessment results”.
Despite the high rate of taxes and the wide fluctuations in tax evaluations locally, the Board of Legislators acknowledged to the County Executive, Andrew Spano, last July “This survey will be the first step that is in order to ease the undo-burden that our taxpayers
face”.
And, although the Board recognized in 1996 that the County property tax system was already dysfunctional they are only just now taking the “first step” to address this system with this study; a first step that won’t even be completed until February, ten months after they initiated the request for this study. How much more evidence do we need to demonstrate County Government’s disregard for the plight of Westchester’s taxpayers? While both the County Board and the New York State Legislature are seeking to address the property tax issues for the long run, at the rate reforms to the system are progressing, to quote the famous economist John Maynard Keynes “in the long run, we’ll all be dead”. How much longer can local residents wait for tax relief?
The problem is not limited to local homeowners. Commercial property owners face an even higher burden for property taxes since in many municipalities commercial property is assessed at a higher rate than residential property.
One tactic that both commercial and residential property owners use to reduce their tax burden is to challenge the value of their property on local tax records through a process known as a property tax grievance. According to a report in Real Estate New York, this grievance process is fraught with errors and delays. This report outlines the steps in a property tax grievance:
The first step in an assessment review is administrative, generally performed by local assessment boards with no professional staff. Typically they meet for a short-term grievance period. These boards are often deferential to the Assessor and generally lack the expertise to review properties other than homes.
The next step is judicial review. Tax review is generally a part-time assignment for a single judge and this is a major source of delay. Judges also often lack valuation expertise and in many cases they do not set or enforce scheduling orders or deadlines. Attorneys, mostly for municipalities, thus get repeated adjournments and cases do not quickly settle.
Tax review cases are won by proving both the value of a property and the ratio of the assessment to full value. Few assessors assess at 100%
of market value. Most assessment ratios in Westchester County are under three percent. Even a small difference in ratio can make a big difference in obtaining assessment reductions. Compounding the problem, the current system for property evaluation uses the “comparable sales” technique, which has been replacing the “replacement cost” technique. According to the Property Rights Foundation “the comparable
sales technique can only work when properties are extremely similar and are located in extremely similar situations, but, lacking statistically
significant samples, assessors are forced to apply subjective judgment to use a minimal number of sample properties that have just a few similarities to the property being assessed”. In comparison, replacement cost calculations are based on a piece by piece analysis of the construction of the residence or commercial property.
The Foundation warns that, when challenging property tax assessments, “the taxpayer has no right to view the assessor’s selection of comparable sales, because these are considered the assessor’s work product, exempt from the state Freedom of Information Law or from access during assessment appeals!”
The Foundation correctly notes, however, that assessments merely distribute taxes, they do not increase taxes overall. Tax dollars needed
and not collected through property taxes will simply be collected elsewhere. Therefore any relief local taxpayers obtain from lower tax valuations, may eventually be offset by increases in higher income taxes and local sales taxes as the state and municipalities struggle to replenish their drop in property tax revenues from lower property tax values.
Yet despite the problems in the grievance process, for many local taxpayers, it is the only method they have available to alleviate their tax burden. But once again, taxpayers have to wait months for relief. Many local municipalities list their grievance dates and procedures on their website. North Castle lists the following critical dates for taxpayers seeking to challenge their property taxes:
Important Assessment Dates
Taxable Status Date: June 1st
Tentative Completion of Roll: June 1st
Grievance Day: 3rd Tuesday of June
Final Filing of Roll: September 15th
Taxable Status Date: The particular date on which the taxable status of real property must be determined according to its condition and ownership. An improvement added after taxable status date is not assessable until the following year; one added before is subject to current year assessment and taxation Tentative Assessment Roll: The assessor completes, certifies, and files a roll containing proposed assessed
values for each property in the assessing unit.
Grievance Day: The Board of Assessment Review meets to hear assessment complaints. This is the last day property owners may file a
formal complaint seeking a reduction in their tentative assessments. Anyone can examine the assessment roll and property records during
business hours at the Assessor’s Office, 17 Bedford Road, Armonk, New York. However, between Taxable Status Day and Grievance Day
it should be done by appointment.
It is up to individual property owners to monitor their own assessments. Taxpayers who feel they are not being fairly assessed should
meet with the assessor before the tentative assessment roll is established. The assessor can be contacted at 273-3324 or by e-mail at
assessor@northcastleny.com. The assessor will explain how the assessment was determined and the rationale behind it.
North Castle also reminds their residents of the property tax exemptions they may apply for:
Alternative Veterans Exemption
Basic/Enhanced Star Exemption
Clergy Exemption
Cold War Veterans Exemption
Neighbor Notification Order Form
Non Profit Organization Exemption
Senior Citizen Exemption
Volunteer Firefighter & Ambulance Worker Exemption
However, as many property tax reform advocates have noted, property tax studies, reassessments, grievances, and exemptions are merely stop-gap methods that do little to alleviate the real reason why local taxes are so high. At a conference for “Reforming New York’s Property Tax”, the “New York Matters” organization bluntly noted: “Why are property taxes going up? Because spending is going up!” Robert Ward of the Public Policy Institute noted at this conference last year: “We have a spending problem here in New York, and that’s why we have a property tax problem.”
Ward reported at this conference that local government employment in New York State rose 12.6 percent in the last decade though the overall
population was up just 4 percent. School staffing increased 21 percent though student enrollment was up just 5 percent. Putting that in a national context, Ward noted that New York has about 57 local government workers for every 1,000 residents, while the national number is 49.
Ward recommended, “Spending needs to be brought in line through trimming pension and health benefits, and considering whether we
truly need all the government workers we have.”
The Guardian noted last month the significant discrepancies in benefits between government workers and other local employees. The time
has come for local residents to demand concessions from those unions which are unfairly burdening our local budgets for unrealistic and unfair
benefits. In this economic climate, local residents need a reduction in their taxes to survive – simply holding taxes at their current levels is not
good enough. It’s time for our local governments and government employees to cut back. Governor Paterson has already taken a step in the
right direction when he proposed the following concessions from state government workers in his 2009 budget for New York State:
Increasing the minimum retirement age from 55 to 62;
Requiring a 3% contribution from government employees to their pensions;
Prolonging the automatic pension step up at 20 years of service to 25 years;
Requiring a minimum of 10 years of public service to collect a pension, currently 5 years;
Eliminating overtime pay from pension benefit calculations.
These proposals, while still far more generous than the private sector, are necessary to lower the state budget and the tax burdens on state
residents. It’s time for the county and local municipalities to follow suit. Instead of wasting time and money on more studies, the County
Board of Legislators and our local communities should be spending their time negotiating concessions from the government employees.
Reassessing property values merely redistributes the problem. Eliminating or reducing bloated government benefits, eliminates it.
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