The Advocate
Richard Blassberg
Federal Prosecutor Continues Misuse Of Taxpayers’ Money Maliciously Prosecuting Paul Cote, Victim Of Pirro Lie
Two weeks ago, April 26, 2007, Assistant United States Attorney Cynthia K. Dunne, headquartered at the Federal Courthouse, White Plains, filed a Notice Of Appeal with the United States District Court Judge Charles L Brieant, at the same location, in the case of United States of America v. Paul M. Cote.
Readers will recall that on April 23rd Federal District Court Judge Brieant had rendered a decision overturning the conviction of former County Correction Officer Paul Cote by a jury after trial, on September 20, 2006, and
their finding that he had violated 18 U.S.C. Section 242 depriving Zoran Teodorovic of his right to liberty, without due process of law, while acting under color of law.
Mr. Cote, who had been tried and convicted of Assault, Second Degree, in state court, in July 2001, and served three months in jail, had granted the United States Attorney’s Office a waiver of the five-year Statute of Limitations, whereupon that office proceeded to once again try him under the same facts as he had previously been exposed under, clearly in every Constitutional sense, Double Jeopardy.
What was most significant about Judge Brieant’s vacating of Cote’s conviction was the fact that it was not based upon some procedural technicality nor flaw, but rather upon the failure of the jury’s verdict to comport with the overwhelming weight of evidence presented at trial. No intelligent observer attending the case put on by Assistant United States Attorneys Cynthia Dunne and Andrew Schilling against Mr. Cote could, in good conscience,
ever conclude that it was his actions that ultimately, some fourteen months later, resulted in the death of inmate Teodorovic. Despite the confabulated fiction created by DA Jeanine Pirro some seven years earlier, the product of her ‘deal’ with the correction officer actually responsible, John Mark Reimer, the conspicuous truth remained that it was Reimer, six foot two inches tall, and 285 pounds, whose ‘bearhug’ and slamming of Teodorovic
to the concrete floor of G-1 Cellblock of the County Jail, with such force that the inmate’s head literally bounced, was the single most identifi-able cause of his ultimate premature death some fourteen months later.
We must now ask the United States Attorney’s Office, and more specifi-cally Attorney Cynthia Dunne, given what your office and you individually now know, and must publicly acknowledge, in light of the Anthony
DiSimone case, and all of the revelations that continue to flow from it, that, in fact, form the basis of your Office’s ongoing investigation of, and case against, former DA Jeanine Pirro, how can you ethically, morally, and in
good conscience, continue to pursue the malicious prosecution and harassment of Paul Cote based upon confabulated and irrational testimony schemed up between Officer Reimer, Jeanine Pirro and her assistant
Robert Neary?
You can not have it both ways, after all. You can not, on the one hand, prosecute her for her acts of blatant prosecutorial misconduct, some of which intimately involving your Office and the FBI, while at the same moment relying upon her witness’ suborned perjured testimony as though it was the Synoptic Gospel. Neither can you
continue to torment this Defendant and his loved ones without significantly losing face at a time when Michael J. Garcia, and the Administration in Washington are struggling to restore public confidence in the integrity of the Justice Department, and the judiciary, both state and federal, merely because the Government has unlimited financial resources, and can literally bankrupt and exhaust any defendant irrespective of his innocence and his determination to receive due process.
You must do the honorable thing now, not after you have been compelled to totally discredit and malign the very person whose lies you now use to torture and desecrate an innocent man. You must withdraw your appeal of Judge Brieant’s decision, and acknowledge the wisdom and truthfulness, and yes, the humanity, of it. In so doing you will fulfill your sworn duty as a federal prosecutor, not only to protect the innocent while prosecuting the guilty, but also to preserve and protect the Constitution of the United States of America.
Thursday, May 10, 2007
In Our Opinion...
As We Sow, So Shall We Reap
It’s beginning to look as though Mount Vernon Mayor Ernie Davis’ broken promises, and repeated failure to respond decisively to serious problems, is catching up with him. Certainly the City’s youth are very disappointed with the virtual absence of after-school activities and summer employment and recreational opportunities
available in New York State’s second most densely populated city. Something about “idle hands and the Devil” crosses our collective consciousness as We consider the current spate of youth violence and killing gripping the City.
We are not suggesting for one second that the Mayor’s broken promises, the Hip-Hop Museum that never was, the conversion of federal monies intended for recreational facilities, the grabbing up of employment and summer camp opportunities by politically connected families, are any justification for youthful violence and killing.
However, the lack of productive and meaningful recreational and employment opportunity surely contributes
to the inventory of idle, bored, and vulnerable youth on the streets of Mount Vernon. Worse yet, it implants a mentality of poverty in those same youngsters, particularly difficult to accept when they look around at, and
travel to, other Westchester communities where opportunities are more plentiful and young people appear more positive and secure.
The lack of material wealth has never been any excuse for criminal and violent activities. Ironically, fifty years ago the tree-lined streets and private houses of Mount Vernon seemed idyllic to a boy bicycling up from Fort Apache, the Bronx. It’s really all about mindset, one’s image of oneself and his surroundings, and potential.
There is nothing inherently criminal about the young people of Mount Vernon. The violence and killing that we continue to witness is more about how the City’s youth view themselves, how much value they place on their
own lives, their own futures, and, in turn, on the lives and futures of others.
Unfortunately, as they look about they see signs of neglect and indifference all around them. Where once a Hip-Hop Museum, something commemorative of their City’s contribution to entertainment, was promised, they see
only a vacant, littered lot. The library lacks books, lacks equipment, and lacks a waterproof roof, for years. They get the message.
Kids can be very forgiving, but they are smarter than many adults, particularly politicians, often give them credit for. Like a dog, they know the difference between being tripped over and being kicked. And, the kids in Mount Vernon have been kicked far too many times not to know it.
Truth be told, the Ernie Davis Show has become a very tired act. The Mayor is far too concerned about image and not nearly concerned enough about substance. Twelve years of progressively increasing broken promises
is about enough. In fairness, though, the Mayor has done one thing right recently. He hired a terrific, energetic, and dedicated Police Commissioner, who hopefully will survive the change of city administration so desperately needed if Mount Vernon is to move forward.
The new administration must shift the focus from memorials for youth who have died to care and concern for those who are living.
As We Sow, So Shall We Reap
It’s beginning to look as though Mount Vernon Mayor Ernie Davis’ broken promises, and repeated failure to respond decisively to serious problems, is catching up with him. Certainly the City’s youth are very disappointed with the virtual absence of after-school activities and summer employment and recreational opportunities
available in New York State’s second most densely populated city. Something about “idle hands and the Devil” crosses our collective consciousness as We consider the current spate of youth violence and killing gripping the City.
We are not suggesting for one second that the Mayor’s broken promises, the Hip-Hop Museum that never was, the conversion of federal monies intended for recreational facilities, the grabbing up of employment and summer camp opportunities by politically connected families, are any justification for youthful violence and killing.
However, the lack of productive and meaningful recreational and employment opportunity surely contributes
to the inventory of idle, bored, and vulnerable youth on the streets of Mount Vernon. Worse yet, it implants a mentality of poverty in those same youngsters, particularly difficult to accept when they look around at, and
travel to, other Westchester communities where opportunities are more plentiful and young people appear more positive and secure.
The lack of material wealth has never been any excuse for criminal and violent activities. Ironically, fifty years ago the tree-lined streets and private houses of Mount Vernon seemed idyllic to a boy bicycling up from Fort Apache, the Bronx. It’s really all about mindset, one’s image of oneself and his surroundings, and potential.
There is nothing inherently criminal about the young people of Mount Vernon. The violence and killing that we continue to witness is more about how the City’s youth view themselves, how much value they place on their
own lives, their own futures, and, in turn, on the lives and futures of others.
Unfortunately, as they look about they see signs of neglect and indifference all around them. Where once a Hip-Hop Museum, something commemorative of their City’s contribution to entertainment, was promised, they see
only a vacant, littered lot. The library lacks books, lacks equipment, and lacks a waterproof roof, for years. They get the message.
Kids can be very forgiving, but they are smarter than many adults, particularly politicians, often give them credit for. Like a dog, they know the difference between being tripped over and being kicked. And, the kids in Mount Vernon have been kicked far too many times not to know it.
Truth be told, the Ernie Davis Show has become a very tired act. The Mayor is far too concerned about image and not nearly concerned enough about substance. Twelve years of progressively increasing broken promises
is about enough. In fairness, though, the Mayor has done one thing right recently. He hired a terrific, energetic, and dedicated Police Commissioner, who hopefully will survive the change of city administration so desperately needed if Mount Vernon is to move forward.
The new administration must shift the focus from memorials for youth who have died to care and concern for those who are living.
Our Readers Respond...
The Truth About Most Judges
Dear Editor:
This is in response to the letter to the editor April 26 asking “could there be perks to the job that are not disclosed to the general public’s knowledge that lure these judges to these $136,700 positions of deprivation?”
I can answer in the affirmative. My ex-husband is Ray Powers, the Law Secretary to Judge Nick Colabella, NYS Supreme Court, White Plains. I’ve been behind the scenes in the Westchester courts for over 20 years.
Judge Kaye (the Chief Judge in NYS) is whining that judges “only” get $136,000 a year conveniently “forgetting” to mention the value of their enormous benefits and all the other money they get for special assignments and committee memberships - their total compensation is closer to $250,000.
Even at $136,700 a year, that salary puts judges in the top 95th percentile of American workers. Plus, upon retirement, judges make a fortune by becoming “of counsel” members of large law firms. It is not uncommon for a retired judge to earn hundreds of thousands of dollars a year merely by lending his/her name to the letterhead of a firm. It looks impressive to potential clients to show a former judge as a partner in your firm - the judges are “rain-makers” in terms of the amount of billable hours the cache of their names alone will earn.
Judges get six weeks paid vacation (three times what most workers get), eleven paid holidays (one more paid week off than most workers), and some get personal days to boot. In addition, their sick days and vacation time never expire (unlike most workers who are on the use-it-or-lose-it plan). Judges can accumulate all their vacation days and get a huge check for this when they leave - at their current pay rate, not the pay at which the sick days were actually earned. Likewise, they can roll over sick days from year to year and can apply their value (again at current rates) to the cost of their health insurance in retirement. They only pay 10% of the cost of their health insurance, have free dental insurance, get 50% of their orthodontia paid for, and 90% of their prescription costs.
They also get free glasses once a year and free tuition. Judges get free life insurance issued at three times their annual salary (so a minimum of $400,000 coverage completely free). They get pensions that they don’t contribute a dime towards - my ex will retire at a pension of $76,000 a year, almost completely paid for by taxpayers. In addition, judges get “assignment” pay. If a judge is asked to work in another court, he gets travel money. The staff that is reassigned with the judge gets nothing. Ray and Judge Colabella worked in Rockland County for six months. Colabella collected extra money to “compensate” him for his “travel” expenses; Ray got squat.
Judges also get money to be assigned to commissions. The Matrimonial Commission had a budget rumored to be about $3 million (nothing was revealed to the taxpayers, of course.
My FOIL requests for this budget went unanswered from the very people whose job it is to enforce the law!). Judges travel all over the state to hearings, taking their spouses along for the ride. The Westchester hearing was conveniently scheduled to coincide with the “Gates” exhibit in Central Park so the judges showed up in White Plains to spend the weekend in New York City with their spouses at art exhibits and plays, all - nanced by the taxpayers.
Judges get perks when assigned to commissions. Your writer is correct that there’s a reason why lawyers want
to be judges. They’re constantly being “wined and dined” by lawyers groups, bar associations, etc. Judges get several offers a week to fundraisers and dinners, all absolutely free. They pay for almost nothing. Some judges even have cars and drivers. It’s a lot of perks and money for little or no work.
I can attest to the fact that these babies rarely work - their Law Secretaries do almost everything. Judges
work part-time (from about 9:30 to 4:30 with at least an hour for lunch - ever stop by a courthouse at 5:00
p.m.? It’s a ghost town!). Spend a day in court and you’ll quickly see that every time a judge has to make
a ruling, he’ll “take a break”.
That’s code for, “I have no clue what to do here, I have to go back to my office to ask my Law Secretary to look up the law for me”. Don’t believe that it’s the Law Secretary’s who are really the judges? Ask any civil attorney. They all know who to suck up to (they sucked up to me for years, trying to influence my ex). Judges don’t read any of the motion papers submitted to them (the Law Secretaries do that), most don’t write their opinions and decisions (again, the Law Secretaries), and some don’t even sign their own names to their orders! (yup, Law Secretaries again).
There are judges in White Plains who run their real estate businesses from chambers, judges who regularly
fall asleep on the bench, and even a judge who called the blackemployees the “n word” to their faces
(in front of witnesses).
The Justice Department issued a decision last year stating that NYS has the most corrupt judicial election
process in the entire country. What does that mean for our courts? We have judges on the bench who are
beholden to the political Tammany Hall bosses who put them there.
Judge Garson, in Brooklyn was convicted two weeks ago for taking kickbacks and bribes on custody cases. The lawyers and the judge were tape-recorded - the language they use in “closed chambers” while discussing a mother and her children was appalling. I’ve heard this kind of attitude in social situations over the 20 years I spent with these egotisical idiots. They have absolutely zero empathy for any of the litigants before them. Their
attitude is “they must have done something to deserve this”. Unfortunately, anyone can be taken to court in this country whether they deserve it or not - all it takes is one hateful, vindictive individual.
Ask any doctor, contractor, or abused spouse. To become a judge, all you need is to endear yourself to a political party, spend a few years working on campaigns, make the right connections, spend at least $80,000 in
bribes, oops, I mean “campaign con-tributions”, and kiss the right butts.
Knowledge of the law, experience, and empathy are all optional. There are, indeed, some marvelous judges out there. But they are overshadowed by the political, incompetent hacks on the bench. If Judge Kaye truly wants judges to get a raise, I suggest she clean house first.
Catherine Wilson
Hartsdale Business District In Dire Need
Dear Editor:
Stormy torrents of rain from the recent Noreaster has more than soaked the walls and pooled the floors of merchants’ leased commercial space and residential ground level floors in Hartsdale Village, Town of Greenburgh; a damp spirit yet haunts the resurrection of these businesses and homecomings.
Supervisor Paul Feiner has, from the get-go, energetically committed extensive time to mitigate the soggy and sore - nancial circumstances and, most recently, rallied additional available government resources, that of Congresswoman Nita Lowey, State Senator Andrea Stewart Cousins, and County Legislator Tom Abinanti to revitalize the East Hartsdale Avenue commercial district.
While residents of the two affected apartment buildings have turned their lights back on and rest again in their own beds, only Eckards Pharmacy among the eleven businesses on the west side of the village commercial strip has reopened their doors to customers.
Through Greenburgh’s internet site, Paul Feiner has informed interested citizens of updates in recovery development and on May 1st sent an invitation, by gblist@cit-e.net site, for an open discussion, presently
scheduled for 8pm on May 15th, at Greenburgh Town Hall.
Marcia Kent
The Truth About Most Judges
Dear Editor:
This is in response to the letter to the editor April 26 asking “could there be perks to the job that are not disclosed to the general public’s knowledge that lure these judges to these $136,700 positions of deprivation?”
I can answer in the affirmative. My ex-husband is Ray Powers, the Law Secretary to Judge Nick Colabella, NYS Supreme Court, White Plains. I’ve been behind the scenes in the Westchester courts for over 20 years.
Judge Kaye (the Chief Judge in NYS) is whining that judges “only” get $136,000 a year conveniently “forgetting” to mention the value of their enormous benefits and all the other money they get for special assignments and committee memberships - their total compensation is closer to $250,000.
Even at $136,700 a year, that salary puts judges in the top 95th percentile of American workers. Plus, upon retirement, judges make a fortune by becoming “of counsel” members of large law firms. It is not uncommon for a retired judge to earn hundreds of thousands of dollars a year merely by lending his/her name to the letterhead of a firm. It looks impressive to potential clients to show a former judge as a partner in your firm - the judges are “rain-makers” in terms of the amount of billable hours the cache of their names alone will earn.
Judges get six weeks paid vacation (three times what most workers get), eleven paid holidays (one more paid week off than most workers), and some get personal days to boot. In addition, their sick days and vacation time never expire (unlike most workers who are on the use-it-or-lose-it plan). Judges can accumulate all their vacation days and get a huge check for this when they leave - at their current pay rate, not the pay at which the sick days were actually earned. Likewise, they can roll over sick days from year to year and can apply their value (again at current rates) to the cost of their health insurance in retirement. They only pay 10% of the cost of their health insurance, have free dental insurance, get 50% of their orthodontia paid for, and 90% of their prescription costs.
They also get free glasses once a year and free tuition. Judges get free life insurance issued at three times their annual salary (so a minimum of $400,000 coverage completely free). They get pensions that they don’t contribute a dime towards - my ex will retire at a pension of $76,000 a year, almost completely paid for by taxpayers. In addition, judges get “assignment” pay. If a judge is asked to work in another court, he gets travel money. The staff that is reassigned with the judge gets nothing. Ray and Judge Colabella worked in Rockland County for six months. Colabella collected extra money to “compensate” him for his “travel” expenses; Ray got squat.
Judges also get money to be assigned to commissions. The Matrimonial Commission had a budget rumored to be about $3 million (nothing was revealed to the taxpayers, of course.
My FOIL requests for this budget went unanswered from the very people whose job it is to enforce the law!). Judges travel all over the state to hearings, taking their spouses along for the ride. The Westchester hearing was conveniently scheduled to coincide with the “Gates” exhibit in Central Park so the judges showed up in White Plains to spend the weekend in New York City with their spouses at art exhibits and plays, all - nanced by the taxpayers.
Judges get perks when assigned to commissions. Your writer is correct that there’s a reason why lawyers want
to be judges. They’re constantly being “wined and dined” by lawyers groups, bar associations, etc. Judges get several offers a week to fundraisers and dinners, all absolutely free. They pay for almost nothing. Some judges even have cars and drivers. It’s a lot of perks and money for little or no work.
I can attest to the fact that these babies rarely work - their Law Secretaries do almost everything. Judges
work part-time (from about 9:30 to 4:30 with at least an hour for lunch - ever stop by a courthouse at 5:00
p.m.? It’s a ghost town!). Spend a day in court and you’ll quickly see that every time a judge has to make
a ruling, he’ll “take a break”.
That’s code for, “I have no clue what to do here, I have to go back to my office to ask my Law Secretary to look up the law for me”. Don’t believe that it’s the Law Secretary’s who are really the judges? Ask any civil attorney. They all know who to suck up to (they sucked up to me for years, trying to influence my ex). Judges don’t read any of the motion papers submitted to them (the Law Secretaries do that), most don’t write their opinions and decisions (again, the Law Secretaries), and some don’t even sign their own names to their orders! (yup, Law Secretaries again).
There are judges in White Plains who run their real estate businesses from chambers, judges who regularly
fall asleep on the bench, and even a judge who called the blackemployees the “n word” to their faces
(in front of witnesses).
The Justice Department issued a decision last year stating that NYS has the most corrupt judicial election
process in the entire country. What does that mean for our courts? We have judges on the bench who are
beholden to the political Tammany Hall bosses who put them there.
Judge Garson, in Brooklyn was convicted two weeks ago for taking kickbacks and bribes on custody cases. The lawyers and the judge were tape-recorded - the language they use in “closed chambers” while discussing a mother and her children was appalling. I’ve heard this kind of attitude in social situations over the 20 years I spent with these egotisical idiots. They have absolutely zero empathy for any of the litigants before them. Their
attitude is “they must have done something to deserve this”. Unfortunately, anyone can be taken to court in this country whether they deserve it or not - all it takes is one hateful, vindictive individual.
Ask any doctor, contractor, or abused spouse. To become a judge, all you need is to endear yourself to a political party, spend a few years working on campaigns, make the right connections, spend at least $80,000 in
bribes, oops, I mean “campaign con-tributions”, and kiss the right butts.
Knowledge of the law, experience, and empathy are all optional. There are, indeed, some marvelous judges out there. But they are overshadowed by the political, incompetent hacks on the bench. If Judge Kaye truly wants judges to get a raise, I suggest she clean house first.
Catherine Wilson
Hartsdale Business District In Dire Need
Dear Editor:
Stormy torrents of rain from the recent Noreaster has more than soaked the walls and pooled the floors of merchants’ leased commercial space and residential ground level floors in Hartsdale Village, Town of Greenburgh; a damp spirit yet haunts the resurrection of these businesses and homecomings.
Supervisor Paul Feiner has, from the get-go, energetically committed extensive time to mitigate the soggy and sore - nancial circumstances and, most recently, rallied additional available government resources, that of Congresswoman Nita Lowey, State Senator Andrea Stewart Cousins, and County Legislator Tom Abinanti to revitalize the East Hartsdale Avenue commercial district.
While residents of the two affected apartment buildings have turned their lights back on and rest again in their own beds, only Eckards Pharmacy among the eleven businesses on the west side of the village commercial strip has reopened their doors to customers.
Through Greenburgh’s internet site, Paul Feiner has informed interested citizens of updates in recovery development and on May 1st sent an invitation, by gblist@cit-e.net site, for an open discussion, presently
scheduled for 8pm on May 15th, at Greenburgh Town Hall.
Marcia Kent
Youthful Violence Taking Over Mt. Vernon? Police Commissioner Brings Remedies; Mayor Only Laments Image.
By Vicki Mayfield and Richard Blassberg
Following a spate of violence, by youthful offenders, that resulted in two deaths by gunshot, critical injury to two others, and an assault against a Mount Vernon Police Officer at the high school the previous week, last Monday,
The Westchester Guardian was on assignment in that City hoping to interview high school students and other Mount Vernon youths in an effort to possibly uncover the underlying causes.
It had been our plan to interview students as they were dismissed shortly before 3pm as they walked home, stopping them at points a few blocks from the high school campus on California Road. However, just before 1 pm we received a call from a source within the school informing us that there was a “bomb scare” in progress, and that students were being dismissed early.
In no particular rush, not wishing to encounter crowds pouring off the campus, we waited for more than half an hour and drove into the neighborhood of the high school, arriving about 1:45, to discover small groups of students leisurely walking home. As we pulled to the curb about three blocks from the campus, calling
out to a cluster of three students, a car came rushing up the street, and positioning himself between us and the students, the school security staffer driving yelled out to them not to talk to anyone. He then drove off, ultimately circling back towards the school. Undeterred, we parked, got out and began to interview the next group
coming up the street. As we stood on the sidewalk speaking with a group of three girls and two boys, all ninth-graders, a large Suburban-type vehicle pulled up on the street, the driver, another school security guard, questioning what was going on. Upon our showing of press credentials, he nodded and drove off.
Asked why they had gotten out two hours early the kids told us there had been a “fire drill.” They agreed to speak with us on condition of anonymity, insisting “no pictures.” One of the girls said, “I feel safe on the bus, but not in school.” To which one of the boys responded, “Kids bring drugs and weapons through the side doors.” He
went on, “Some of the new security guards go too easy on kids they know. There should be better security checks.” Another girl backed that statement up suggesting, “They should bring in dogs to sniff out the lockers. Our parents are worried about our security.”
We next interviewed two eleventh-grade girls, friends who lived in the neighborhood near the high school. They, too, did not wish to be identified. One of the girls told us that she wanted to become a doctor, and that her mother was so concerned about her safety that she is considering sending her to a private school to finish high school. Her friend complained. “ There’s nothing for kids to do after school. We just go home and do computer.”The first girl then added, “Nobody is happy about the uniforms they want us to wear next year.”
When asked why they had gotten out early the girls also said it was a fire drill. Following our interviews we drove down toward the high school about 2:15 to discover about six police cars parked off-campus on both sides of California Road with an equal number of officers standing and watching small groups of students streaming away from the school. There wasn’t any apparent urgency, and police appeared to be maintaining as low a profile as possible under the circumstances.
Leaving the high school we went to East Fourth Street and Union Avenue, where a memorial to Reginald Reynolds, the twenty-year-old who had been gunned down by three shooters, at close range, the previous Wednesday, the 25th, had been set up. There we encountered a number of adults and young children
lingering for several minutes at the site.
Police Commissioner David Chong, interviewed on Wednesday, May 2nd, candidly revealed that his department had received word that there might be some kind of disturbance on campus Monday, and that they wanted to be prepared just in case.
Chong declared, “The kids are not dumb. They generated their own hysteria with text messaging and phone calls, that scared some good kids and parents.”
Turning more serious he told The Guardian, “What we need to do is stop the kids from killing each other.” Asked just what he had in mind the Commissioner responded, “We cannot arrest our way out of this culture.” He went on, “We intend to immediately institute more high visibility police patrols, especially in certain areas.
Those who are looking for trouble, if they come out in Mount Vernon there’s a good chance they are going to cross the path of a uniformed police officer.” He went on, “If we catch them with a gun they will face 3-1/2 years minimum with 2-1/2 years post-prison supervision, no exceptions. They better leave the gun at home.”
Asked how he intended to implement control over the flow of guns and drugs into his city, Chong responded, “We will be employing a Mobile Command Center capable of deployment anywhere in the City on a moment’s notice, which will be used in conjunction with bright lights and barricades, particularly in heavily trafficked areas.”
Explaining further, Commissioner Chong emphasized, “We will be looking out for and intercepting cruising troublemakers, by changing traffic patterns, and setting up checkpoints.”
When asked how he intended to deal specifically with gun traffic, the Commissioner said, “Guns seized in Mount Vernon are not made in Mount Vernon. We are looking at all kinds of law enforcement tools and procedures, including long-term covert investigation. We know that only a very small percentage of youths is causing the problem. We need good people to come forward with information.”
Tuesday night, Mayor Davis had addressed a crowd of several hundred concerned residents at the Macedonia Baptist Church, greeting them with the statement, “I am prepared to help our young people get to where they need to go. I deliberately chose the church to have this meeting because the residents of Mount Vernon are under an influence. Nobody in Mount Vernon makes guns or dope.
You’re all saints.” In contrast with the Police Commissioner’s comments to The Guardian, the next day, Davis appeared more concerned with the City’s image than with finding ways of dealing with it’s serious problems.
The mayor would tell those assembled, “Crime is down in the City. People have a lot to say, but it doesn’t have to be said tonight. So, if you’re playing to the cameras…”
Following Mayor Davis’ remarks, the moderator came to the microphone, as if on cue, and said to those assembled, and noticeably upset, “We already have an image problem, so don’t show any emotion to the cameras.”
By Vicki Mayfield and Richard Blassberg
Following a spate of violence, by youthful offenders, that resulted in two deaths by gunshot, critical injury to two others, and an assault against a Mount Vernon Police Officer at the high school the previous week, last Monday,
The Westchester Guardian was on assignment in that City hoping to interview high school students and other Mount Vernon youths in an effort to possibly uncover the underlying causes.
It had been our plan to interview students as they were dismissed shortly before 3pm as they walked home, stopping them at points a few blocks from the high school campus on California Road. However, just before 1 pm we received a call from a source within the school informing us that there was a “bomb scare” in progress, and that students were being dismissed early.
In no particular rush, not wishing to encounter crowds pouring off the campus, we waited for more than half an hour and drove into the neighborhood of the high school, arriving about 1:45, to discover small groups of students leisurely walking home. As we pulled to the curb about three blocks from the campus, calling
out to a cluster of three students, a car came rushing up the street, and positioning himself between us and the students, the school security staffer driving yelled out to them not to talk to anyone. He then drove off, ultimately circling back towards the school. Undeterred, we parked, got out and began to interview the next group
coming up the street. As we stood on the sidewalk speaking with a group of three girls and two boys, all ninth-graders, a large Suburban-type vehicle pulled up on the street, the driver, another school security guard, questioning what was going on. Upon our showing of press credentials, he nodded and drove off.
Asked why they had gotten out two hours early the kids told us there had been a “fire drill.” They agreed to speak with us on condition of anonymity, insisting “no pictures.” One of the girls said, “I feel safe on the bus, but not in school.” To which one of the boys responded, “Kids bring drugs and weapons through the side doors.” He
went on, “Some of the new security guards go too easy on kids they know. There should be better security checks.” Another girl backed that statement up suggesting, “They should bring in dogs to sniff out the lockers. Our parents are worried about our security.”
We next interviewed two eleventh-grade girls, friends who lived in the neighborhood near the high school. They, too, did not wish to be identified. One of the girls told us that she wanted to become a doctor, and that her mother was so concerned about her safety that she is considering sending her to a private school to finish high school. Her friend complained. “ There’s nothing for kids to do after school. We just go home and do computer.”The first girl then added, “Nobody is happy about the uniforms they want us to wear next year.”
When asked why they had gotten out early the girls also said it was a fire drill. Following our interviews we drove down toward the high school about 2:15 to discover about six police cars parked off-campus on both sides of California Road with an equal number of officers standing and watching small groups of students streaming away from the school. There wasn’t any apparent urgency, and police appeared to be maintaining as low a profile as possible under the circumstances.
Leaving the high school we went to East Fourth Street and Union Avenue, where a memorial to Reginald Reynolds, the twenty-year-old who had been gunned down by three shooters, at close range, the previous Wednesday, the 25th, had been set up. There we encountered a number of adults and young children
lingering for several minutes at the site.
Police Commissioner David Chong, interviewed on Wednesday, May 2nd, candidly revealed that his department had received word that there might be some kind of disturbance on campus Monday, and that they wanted to be prepared just in case.
Chong declared, “The kids are not dumb. They generated their own hysteria with text messaging and phone calls, that scared some good kids and parents.”
Turning more serious he told The Guardian, “What we need to do is stop the kids from killing each other.” Asked just what he had in mind the Commissioner responded, “We cannot arrest our way out of this culture.” He went on, “We intend to immediately institute more high visibility police patrols, especially in certain areas.
Those who are looking for trouble, if they come out in Mount Vernon there’s a good chance they are going to cross the path of a uniformed police officer.” He went on, “If we catch them with a gun they will face 3-1/2 years minimum with 2-1/2 years post-prison supervision, no exceptions. They better leave the gun at home.”
Asked how he intended to implement control over the flow of guns and drugs into his city, Chong responded, “We will be employing a Mobile Command Center capable of deployment anywhere in the City on a moment’s notice, which will be used in conjunction with bright lights and barricades, particularly in heavily trafficked areas.”
Explaining further, Commissioner Chong emphasized, “We will be looking out for and intercepting cruising troublemakers, by changing traffic patterns, and setting up checkpoints.”
When asked how he intended to deal specifically with gun traffic, the Commissioner said, “Guns seized in Mount Vernon are not made in Mount Vernon. We are looking at all kinds of law enforcement tools and procedures, including long-term covert investigation. We know that only a very small percentage of youths is causing the problem. We need good people to come forward with information.”
Tuesday night, Mayor Davis had addressed a crowd of several hundred concerned residents at the Macedonia Baptist Church, greeting them with the statement, “I am prepared to help our young people get to where they need to go. I deliberately chose the church to have this meeting because the residents of Mount Vernon are under an influence. Nobody in Mount Vernon makes guns or dope.
You’re all saints.” In contrast with the Police Commissioner’s comments to The Guardian, the next day, Davis appeared more concerned with the City’s image than with finding ways of dealing with it’s serious problems.
The mayor would tell those assembled, “Crime is down in the City. People have a lot to say, but it doesn’t have to be said tonight. So, if you’re playing to the cameras…”
Following Mayor Davis’ remarks, the moderator came to the microphone, as if on cue, and said to those assembled, and noticeably upset, “We already have an image problem, so don’t show any emotion to the cameras.”
Court Report:
Great Irony At Sentencing Of
Peekskill Murderer
Westchester County Court, White Plains
Judge Susan Cacace Presiding
There was great irony, Wednesday, May 2nd, attached to the sentencing
of Steven Cunningham, the finally confessed murderer of fifteen-year-old
Angela Correa, November 15, 1989, as he stood at the Defense Table with his
attorney Barry Warhit for the pronouncement of sentence by County Court
Judge Susan Cacace. Standing at the Prosecution Table, and handling the
case for the State, was Assistant District Attorney Patricia Murphy. Over the
years, Murphy had frequently been the “tag team partner” of ADA George
Bolen in any number of high profile prosecutions. Now she stood in Cacace’s
Court in the official effort to make right what can never be made right.
It was George Bolen, after all, the despicable, vile creature, knowing
perfectly well that 16-year-old Jeffrey Deskovic was not the rapist nor the
killer of Angela Correa; neither his DNA, nor his hair follicles matched
those found in and on her body, who, nevertheless prosecuted the totally
innocent boy for sport, just because he had the financial and political resources
to do so. He had done similarly before, and would do so many
times again, before fleeing into retirement days before Jeffrey would finally
emerge from prison, sixteen years later.
It was George Bolen, unprincipled and insensitive as any prosecutor
could be, who told the jury that the reason defendant Deskovic’s DNA and
hair did not match wasn’t because he was not the perpetrator, but rather,
because fifteen-year-old Angela “had consensual sex with someone else.”
Of course, George made no effort to identify her earlier partner, because
he knew he was lying, and really didn’t give a damn how he had to destroy
the reputation of some dead Hispanic girl from Peekskill, if he could notch
another win in his record.
Patricia Murphy was clearly subdued, and, to her credit, handled, what, at
best, was an uncomfortable situation with dignity and professionalism, reading
the combined statements of Angela’s mother, and surviving sister. Her mother,
also named Angela, told the Court, “She was a kind, sweet kid, and had the
biggest heart you’ve ever seen.” She reflected, “On that day her illusions and
dreams died.” Speaking directly to Jeffrey Deskovic, Angela’s mother offered,
“For those who have condemned you, I invite them to bow their heads.” Unfortunately,
neither George Bolen, nor Peekskill Police Chief Eugene Tumolo,
were man enough to be present in court to hear those words.
The victim’s sister, speaking of Steven Cunningham, added, “He not only took
multiple lives, he took the hearts and souls of those still waiting for answers.”
At one point in her presentation ADA Murphy, making reference to the
wrongful conviction of Jeffrey Deskovic for the crime of Steven Cunningham,
said, “Fortunately, though very belatedly, science placed the blame
where it always belonged.” Those words had to be very tough for Deskovic
to listen to knowing that for more than ten years DA Jeanine Pirro, Murphy’s
boss for twelve years, did everything in her power to prevent him
from getting the DNA material found in young Angela’s body from being
compared with the State’s DNA Data Bank. Had Pirro not been so incredibly
cruel, Jeffrey would have been out of prison ten years earlier.
Judge Cacace, prior to pronouncing sentence, offered Cunningham the
opportunity to speak in his own behalf. He quickly said, “No.” The Judge
then proceeded to sentence him to Twenty-Years to Life, to run consecutively
with the term he is currently serving for the murder of his former
girlfriend’s sister, Pat Morrison, also of Peekskill.
Analysis
Had the Peekskill police, and specifically then-Lt. Detective Tumolo
not forced a false confession from Jeffrey Deskovic, in order to quickly arrest
and convict somebody, anybody; and had George Bolen not mindlessly
sent an innocent youngster to prison, Steven Cunningham might very
well have been apprehended and imprisoned, and Pat Morrison would
not have lost her life. No financial compensation can ever repay Mr. Deskovic
for the best years of his youth needlessly spent behind bars, and no
sum of money can ever bring back Pat Morrison.
Deskovic, a very strong and determined young man, emerged nearly
eight months ago, remarkably without anger or bitterness, and has been
working to achieve the college degree he nearly acquired while in prison,
before Pataki became governor and terminated that opportunity for inmates.
He plans to go on for a law degree, all the while advocating for
legislative changes needed to prevent self-serving prosecutors from maliciously,
and unlawfully, doing to other innocent defendants what was
done to him. Everywhere he has spoken before groups in several states,
and major cities, he has been warmly and enthusiastically received. He
has been actively lobbying the New York State Legislature, speaking out
against the Death Penalty, and seeking legislative action against prosecutorial
misconduct.
Great Irony At Sentencing Of
Peekskill Murderer
Westchester County Court, White Plains
Judge Susan Cacace Presiding
There was great irony, Wednesday, May 2nd, attached to the sentencing
of Steven Cunningham, the finally confessed murderer of fifteen-year-old
Angela Correa, November 15, 1989, as he stood at the Defense Table with his
attorney Barry Warhit for the pronouncement of sentence by County Court
Judge Susan Cacace. Standing at the Prosecution Table, and handling the
case for the State, was Assistant District Attorney Patricia Murphy. Over the
years, Murphy had frequently been the “tag team partner” of ADA George
Bolen in any number of high profile prosecutions. Now she stood in Cacace’s
Court in the official effort to make right what can never be made right.
It was George Bolen, after all, the despicable, vile creature, knowing
perfectly well that 16-year-old Jeffrey Deskovic was not the rapist nor the
killer of Angela Correa; neither his DNA, nor his hair follicles matched
those found in and on her body, who, nevertheless prosecuted the totally
innocent boy for sport, just because he had the financial and political resources
to do so. He had done similarly before, and would do so many
times again, before fleeing into retirement days before Jeffrey would finally
emerge from prison, sixteen years later.
It was George Bolen, unprincipled and insensitive as any prosecutor
could be, who told the jury that the reason defendant Deskovic’s DNA and
hair did not match wasn’t because he was not the perpetrator, but rather,
because fifteen-year-old Angela “had consensual sex with someone else.”
Of course, George made no effort to identify her earlier partner, because
he knew he was lying, and really didn’t give a damn how he had to destroy
the reputation of some dead Hispanic girl from Peekskill, if he could notch
another win in his record.
Patricia Murphy was clearly subdued, and, to her credit, handled, what, at
best, was an uncomfortable situation with dignity and professionalism, reading
the combined statements of Angela’s mother, and surviving sister. Her mother,
also named Angela, told the Court, “She was a kind, sweet kid, and had the
biggest heart you’ve ever seen.” She reflected, “On that day her illusions and
dreams died.” Speaking directly to Jeffrey Deskovic, Angela’s mother offered,
“For those who have condemned you, I invite them to bow their heads.” Unfortunately,
neither George Bolen, nor Peekskill Police Chief Eugene Tumolo,
were man enough to be present in court to hear those words.
The victim’s sister, speaking of Steven Cunningham, added, “He not only took
multiple lives, he took the hearts and souls of those still waiting for answers.”
At one point in her presentation ADA Murphy, making reference to the
wrongful conviction of Jeffrey Deskovic for the crime of Steven Cunningham,
said, “Fortunately, though very belatedly, science placed the blame
where it always belonged.” Those words had to be very tough for Deskovic
to listen to knowing that for more than ten years DA Jeanine Pirro, Murphy’s
boss for twelve years, did everything in her power to prevent him
from getting the DNA material found in young Angela’s body from being
compared with the State’s DNA Data Bank. Had Pirro not been so incredibly
cruel, Jeffrey would have been out of prison ten years earlier.
Judge Cacace, prior to pronouncing sentence, offered Cunningham the
opportunity to speak in his own behalf. He quickly said, “No.” The Judge
then proceeded to sentence him to Twenty-Years to Life, to run consecutively
with the term he is currently serving for the murder of his former
girlfriend’s sister, Pat Morrison, also of Peekskill.
Analysis
Had the Peekskill police, and specifically then-Lt. Detective Tumolo
not forced a false confession from Jeffrey Deskovic, in order to quickly arrest
and convict somebody, anybody; and had George Bolen not mindlessly
sent an innocent youngster to prison, Steven Cunningham might very
well have been apprehended and imprisoned, and Pat Morrison would
not have lost her life. No financial compensation can ever repay Mr. Deskovic
for the best years of his youth needlessly spent behind bars, and no
sum of money can ever bring back Pat Morrison.
Deskovic, a very strong and determined young man, emerged nearly
eight months ago, remarkably without anger or bitterness, and has been
working to achieve the college degree he nearly acquired while in prison,
before Pataki became governor and terminated that opportunity for inmates.
He plans to go on for a law degree, all the while advocating for
legislative changes needed to prevent self-serving prosecutors from maliciously,
and unlawfully, doing to other innocent defendants what was
done to him. Everywhere he has spoken before groups in several states,
and major cities, he has been warmly and enthusiastically received. He
has been actively lobbying the New York State Legislature, speaking out
against the Death Penalty, and seeking legislative action against prosecutorial
misconduct.
Part 1
By Jeffrey Deskovic
Why We Should Not Bring The Death Penalty Back In New York.
Out of the wisdom of the Greeks, I believe, comes the paraphrased saying that “He who does not learn the lessons of the past is doomed to repeat them in the future.” The death penalty has been around quite a long time in America. Currently, in Albany, there is a debate concerning the possibility of bringing the death penalty back to New York. There are two separate bills Why We Should Not Bring The Death Penalty Back In New York
being considered. One of them is to bring the death penalty back for cop killers, the other is a general bill. For
the following reasons, I am against each of those bills, and I hope that my readers who agree with me will
call their local State Senators and Assemblypersons and voice their opposition. If we do not speak up,
there is a real possibility that one, or both, of these will pass.
The issue which should unite us all, both those who are pro-death penalty, and those that are anti-death penalty,
is the certainty that innocent people will be executed. Much has been said about the death penalty on a moral basis, and I see no reason to restate what has already been said. But regardless of what one may think of the pro or cons of those issues, there is one issue which should unite us all: The reality is if we have a death penalty we will execute innocent people. The system is too flawed.
There have been 200 exonerations in the United S t a t e s t h r o u g h DNA by The Inn o c e n c e Project. It
took them 13 years to clear one hundred people and it has taken them only five more years to double that figure.
As their slogan goes, “200 Exonerated Too Many Wrongfully Convicted”. That figure is not counting exonerations achieved by other means. There are so many things that can go wrong leading to an innocent person being arrested and convicted, capital murder cases being no exception:
It is a common misconception that only the guilty confess; after all, why would someone who is innocent confess? Statistics show, out of 195 DNA exonerations, false confessions accounted for 25% of the wrongful convictions, including some cases in which the suspect was pressured into pleading guilty in court to charges they went on to be cleared of. What are the reasons that the innocent falsely confess? According to the website of The Innocence
Project, duress, coercion, intoxication, psychological and/or emotional problems, fear of violence, the actual
infliction of harm, threats of harsher sentence, false promises of being allowed to “go home” afterwards, are all
factors. Lengthy interrogations also result in false confessions. According to the treatise False Interrogations In
The Post DNA World by Drizin and Leo, eighty percent of the false confessors were interrogated for more
than six hours, and fifty percent of the false confessors were interrogated for more than twelve hours. Why
would lengthy interrogation make a difference? Because, as the same treatise later states, “Interrogationinduced
false confessions tend to be correlated with lengthy interrogations in which the innocent suspect’s resistance is worn down, coercive techniques are used, and the suspect is made to feel hopeless, regardless of his innocence.” Other factors, such as the police falsely claiming to have evidence that they do not have, and the abuse of the polygraph machine by claiming that the machine has indicated that a suspect is lying, also produce false confessions utilizing the same theme, which is to convince the suspect that maintaining innocence is futile and that no matter what they will be arrested, it’s just a matter of whether they will make it harder on themselves by lying to authorities by asserting their innocence.
All it would take is one person mistakenly identifying us. Misidentification has been the cause of 75% of all DNA-proven wrongful conviction cases. Some of the reasons for misidentification include: seeing the perpetrator only briefly during a very traumatic moment, physical resemblance to a perpetrator, wearing the same color or type of jacket or pants, or driving the same make and model of a car used in a crime. Considering how many cars of the same make are made and sold, along with that of clothing, the chances of resemblance is great. In many of the misidentifi-cation cases, including those which should have been overturned but were not, discrepancies in weight, height, and distinguishing characteristics that perpetrators had but the person arrested did not, such as scars, tattoos, and dimples, have not mattered.
The sad truth about public defenders is that most of the public defenders frankly are not very good. They are not paid the same amount of money per hour that prosecutors are, consequently many of the good lawyers go into private practice or work for the district attorney’s office.
They don’t have the same human resources that the prosecution has at its disposal for investigative purposes.
They don’t have adequate budgets to permit experts to examine evidence, run tests, and render opinions that
the prosecution has. Instead, they often must ask the court for funds for an expert to examine evidence, which is sometimes denied. They are often too friendly with the prosecutors they go against in court and the judges presiding over a case, having been playing golf and drinking together for years. It isn’t hard to see how this out-of-court familiarity often results in defense lawyers not going all-out, within legal limits, to win a case. After all,
they do not want to get their friend angry with them or damage the relationship, do they? Some of them get
worn down and jaded by the system.
As an example of how bad representation results in justice going awry, consider the case of Jimmy Bromgard.
His lawyer made no opening statement or closing argument, did no investigation, led no pretrial motions, did not get any experts to examine the hairs which the state’s hair expert said were indistinguishable from his, or to
refute the fraudulent testimony that the chance that they did not belong to him were less than one in ten thousand.
There has never been a standard by which to statistically match hair through microscopic inspection; the “expert” simply made them up. The lawyer never led an appeal. Jimmy was proven innocent by DNA in 2002 after serving 15-1/2 years. In other cases, lawyering which has not been held to be ineffective by courts include sleeping during portions of the case and being addicted to drugs.
Can anyone forget how Anthony DiSimone’s murder conviction was thrown out after the district attorney,
other than the one who prosecuted him, admitted that three hundred and seventy six pages and fifty two
boxes of evidence had been withheld from his defense lawyers, including a police statement from a man who
stated that a relative admitted that he stabbed the victim outside a bar.
This is when people have been offered bene ts in exchange for testifying, such as by having a case against them dropped, or getting a lesser sentence, or getting a financial reward “for information leading to the arrest and conviction of ” various suspects, including but not limited to, shooting police. Lying informants accounted for 15% of wrongful convictions in cases where DNA proved innocence. - ose who have information about a crime should come forward on a moral basis without being compensated for doing so.
As an example of how incentivized witness testimony can convict the innocent, Larry Peterson, of New Jersey, was wrongfully convicted of Capital Murder and served 17 years before DNA cleared him. Three of his co-workers told police that they were with Larry when the body was found. When they were threatened with prosecution themselves, coworkers claimed than on the way to work Larry had confessed to them.
Employment records show that he had not even worked on the day of this supposed admission. Additionally,
a man who was in jail and facing charges in three separate counties claimed that Larry had confessed to him while in the county jail. DNA cleared Larry in 2006.
When prejudicial coverage of a case saturates a given geographical area from which a case comes, an
atmosphere of hostility whose effect spills into the courtroom can affect how a case turns out. How?
Prospective jurors, like anybody else, read and hear about cases. How many will be honest and admit
this? During trials themselves jurors could hear news reports through television, radio, family or friends. they are not supposed to, but human nature is what it is, and everybody everywhere isn’t always following all of the rules.
Judges often are pro prosecution in their leanings to begin with, since many are former prosecutors themselves.
There are some who have integrity and this isn’t the case with them.
But, what about on a subconscious level? Judges, too, can get swept up by the general atmosphere the media
can create. If anyone doubts how saturated coverage can be an obstacle to a fair trial, remember the famous U.S. Supreme Court case in which the murder conviction of Dr. Sam Sheppard was overturned based upon this, and was found not guilty at his retrial.
Judges are human like everybody else and are subject to the same emotions, feelings, and passions. - is means that some of them are swayed by things in their outlook on cases which affects their rulings, sometimes deliberately, sometimes subconsciously.
The phrase “the hanging judge” did not come about out of the clear blue sky; it is coined out of the reputation
that some judges have regarding their hostility towards defendants both in their rulings in a trial which winds
up impacting upon the verdict, and in the sentence which they mete out.
There are proposed remedies for all of these factors which lead to wrongful convictions, which I have written about in previous articles for the Westchester Guardian. Even with them enacted, there would still be a risk of executing someone who is innocent.
But not a single one has been enacted as of yet by the Legislature. Yet there are some Senators and Assemblypersons who have no qualms about bringing back the death penalty without bothering to enact a
single one of them, thus setting the stage for the innocent to be wrongfully convicted and executed.
By Jeffrey Deskovic
Why We Should Not Bring The Death Penalty Back In New York.
Out of the wisdom of the Greeks, I believe, comes the paraphrased saying that “He who does not learn the lessons of the past is doomed to repeat them in the future.” The death penalty has been around quite a long time in America. Currently, in Albany, there is a debate concerning the possibility of bringing the death penalty back to New York. There are two separate bills Why We Should Not Bring The Death Penalty Back In New York
being considered. One of them is to bring the death penalty back for cop killers, the other is a general bill. For
the following reasons, I am against each of those bills, and I hope that my readers who agree with me will
call their local State Senators and Assemblypersons and voice their opposition. If we do not speak up,
there is a real possibility that one, or both, of these will pass.
The issue which should unite us all, both those who are pro-death penalty, and those that are anti-death penalty,
is the certainty that innocent people will be executed. Much has been said about the death penalty on a moral basis, and I see no reason to restate what has already been said. But regardless of what one may think of the pro or cons of those issues, there is one issue which should unite us all: The reality is if we have a death penalty we will execute innocent people. The system is too flawed.
There have been 200 exonerations in the United S t a t e s t h r o u g h DNA by The Inn o c e n c e Project. It
took them 13 years to clear one hundred people and it has taken them only five more years to double that figure.
As their slogan goes, “200 Exonerated Too Many Wrongfully Convicted”. That figure is not counting exonerations achieved by other means. There are so many things that can go wrong leading to an innocent person being arrested and convicted, capital murder cases being no exception:
It is a common misconception that only the guilty confess; after all, why would someone who is innocent confess? Statistics show, out of 195 DNA exonerations, false confessions accounted for 25% of the wrongful convictions, including some cases in which the suspect was pressured into pleading guilty in court to charges they went on to be cleared of. What are the reasons that the innocent falsely confess? According to the website of The Innocence
Project, duress, coercion, intoxication, psychological and/or emotional problems, fear of violence, the actual
infliction of harm, threats of harsher sentence, false promises of being allowed to “go home” afterwards, are all
factors. Lengthy interrogations also result in false confessions. According to the treatise False Interrogations In
The Post DNA World by Drizin and Leo, eighty percent of the false confessors were interrogated for more
than six hours, and fifty percent of the false confessors were interrogated for more than twelve hours. Why
would lengthy interrogation make a difference? Because, as the same treatise later states, “Interrogationinduced
false confessions tend to be correlated with lengthy interrogations in which the innocent suspect’s resistance is worn down, coercive techniques are used, and the suspect is made to feel hopeless, regardless of his innocence.” Other factors, such as the police falsely claiming to have evidence that they do not have, and the abuse of the polygraph machine by claiming that the machine has indicated that a suspect is lying, also produce false confessions utilizing the same theme, which is to convince the suspect that maintaining innocence is futile and that no matter what they will be arrested, it’s just a matter of whether they will make it harder on themselves by lying to authorities by asserting their innocence.
All it would take is one person mistakenly identifying us. Misidentification has been the cause of 75% of all DNA-proven wrongful conviction cases. Some of the reasons for misidentification include: seeing the perpetrator only briefly during a very traumatic moment, physical resemblance to a perpetrator, wearing the same color or type of jacket or pants, or driving the same make and model of a car used in a crime. Considering how many cars of the same make are made and sold, along with that of clothing, the chances of resemblance is great. In many of the misidentifi-cation cases, including those which should have been overturned but were not, discrepancies in weight, height, and distinguishing characteristics that perpetrators had but the person arrested did not, such as scars, tattoos, and dimples, have not mattered.
The sad truth about public defenders is that most of the public defenders frankly are not very good. They are not paid the same amount of money per hour that prosecutors are, consequently many of the good lawyers go into private practice or work for the district attorney’s office.
They don’t have the same human resources that the prosecution has at its disposal for investigative purposes.
They don’t have adequate budgets to permit experts to examine evidence, run tests, and render opinions that
the prosecution has. Instead, they often must ask the court for funds for an expert to examine evidence, which is sometimes denied. They are often too friendly with the prosecutors they go against in court and the judges presiding over a case, having been playing golf and drinking together for years. It isn’t hard to see how this out-of-court familiarity often results in defense lawyers not going all-out, within legal limits, to win a case. After all,
they do not want to get their friend angry with them or damage the relationship, do they? Some of them get
worn down and jaded by the system.
As an example of how bad representation results in justice going awry, consider the case of Jimmy Bromgard.
His lawyer made no opening statement or closing argument, did no investigation, led no pretrial motions, did not get any experts to examine the hairs which the state’s hair expert said were indistinguishable from his, or to
refute the fraudulent testimony that the chance that they did not belong to him were less than one in ten thousand.
There has never been a standard by which to statistically match hair through microscopic inspection; the “expert” simply made them up. The lawyer never led an appeal. Jimmy was proven innocent by DNA in 2002 after serving 15-1/2 years. In other cases, lawyering which has not been held to be ineffective by courts include sleeping during portions of the case and being addicted to drugs.
Can anyone forget how Anthony DiSimone’s murder conviction was thrown out after the district attorney,
other than the one who prosecuted him, admitted that three hundred and seventy six pages and fifty two
boxes of evidence had been withheld from his defense lawyers, including a police statement from a man who
stated that a relative admitted that he stabbed the victim outside a bar.
This is when people have been offered bene ts in exchange for testifying, such as by having a case against them dropped, or getting a lesser sentence, or getting a financial reward “for information leading to the arrest and conviction of ” various suspects, including but not limited to, shooting police. Lying informants accounted for 15% of wrongful convictions in cases where DNA proved innocence. - ose who have information about a crime should come forward on a moral basis without being compensated for doing so.
As an example of how incentivized witness testimony can convict the innocent, Larry Peterson, of New Jersey, was wrongfully convicted of Capital Murder and served 17 years before DNA cleared him. Three of his co-workers told police that they were with Larry when the body was found. When they were threatened with prosecution themselves, coworkers claimed than on the way to work Larry had confessed to them.
Employment records show that he had not even worked on the day of this supposed admission. Additionally,
a man who was in jail and facing charges in three separate counties claimed that Larry had confessed to him while in the county jail. DNA cleared Larry in 2006.
When prejudicial coverage of a case saturates a given geographical area from which a case comes, an
atmosphere of hostility whose effect spills into the courtroom can affect how a case turns out. How?
Prospective jurors, like anybody else, read and hear about cases. How many will be honest and admit
this? During trials themselves jurors could hear news reports through television, radio, family or friends. they are not supposed to, but human nature is what it is, and everybody everywhere isn’t always following all of the rules.
Judges often are pro prosecution in their leanings to begin with, since many are former prosecutors themselves.
There are some who have integrity and this isn’t the case with them.
But, what about on a subconscious level? Judges, too, can get swept up by the general atmosphere the media
can create. If anyone doubts how saturated coverage can be an obstacle to a fair trial, remember the famous U.S. Supreme Court case in which the murder conviction of Dr. Sam Sheppard was overturned based upon this, and was found not guilty at his retrial.
Judges are human like everybody else and are subject to the same emotions, feelings, and passions. - is means that some of them are swayed by things in their outlook on cases which affects their rulings, sometimes deliberately, sometimes subconsciously.
The phrase “the hanging judge” did not come about out of the clear blue sky; it is coined out of the reputation
that some judges have regarding their hostility towards defendants both in their rulings in a trial which winds
up impacting upon the verdict, and in the sentence which they mete out.
There are proposed remedies for all of these factors which lead to wrongful convictions, which I have written about in previous articles for the Westchester Guardian. Even with them enacted, there would still be a risk of executing someone who is innocent.
But not a single one has been enacted as of yet by the Legislature. Yet there are some Senators and Assemblypersons who have no qualms about bringing back the death penalty without bothering to enact a
single one of them, thus setting the stage for the innocent to be wrongfully convicted and executed.
Thursday, May 3, 2007
In Our Opinion...
County Legislators Refuse To Be Stampeded
We applaud the decision by the County Board of Legislators, under Chairman Bill Ryan, to retain independent counsel to evaluate the feasibility of bringing a successful civil action against KPMG Peat Marwick, LLP, as has been strongly urged by the County Executive’s Office recently. Any such court action would, of course, require the County Legislature to sign off.
County Executive Andrew Spano, based on data compiled by Larry Schwartz, and legal assessments from the law firm Nixon Peabody, has been actively promoting the notion that County taxpayers might recover as much as $200 million from KPMG Peat Marwick because they, allegedly, repeatedly failed to warn the County of problems with the accounting practices employed in-house at the Westchester County Medical Center between 1998 and 2004.
Deputy County Executive Larry Schwartz, several weeks ago, suggested that the well-known accounting firm had been derelict in its duty to inform the County, which guarantees several hundred million dollars of the hospital’s debt, that certain flawed accounting practices might have been misleading, and more encouraging to underwriters, than was warranted. Some observers have expressed doubt that Mr. Schwartz could have been misled, or working under any misunderstanding regarding the Medical Center’s financial health given the publicity attendant to their long-standing financial crisis, and their need for repeated monetary transfusions over the past several years, virtually teetering on the brink of bankruptcy a few years ago.
We appreciate Chairman Bill Ryan’s measured and thoughtful response to Larry Schwartz’ hustle to try to get the legislators on board. Perhaps Ryan, and the other legislators, are experiencing a little difficulty swallowing
the notion that Larry, controlling as he is in all aspects, would somehow be left in the dark regarding the financial health and circumstances of the Medical Center. We certainly would understand if they found his position a little out of character, and somewhat disingenuous.
After all, it’s not as though the County Executive’s Office could have been out of touch with the operational and financial day-to-day realities at the Medical Center, given the fact that Mr. Spano has made several appointments
to the Board of Directors, including its chairman Richard Berman, since 1998, and throughout the period in question. And, clearly, there was reason enough to have justified independent audits given the mismanagement and financial miscues that required repeated bailouts, and, ultimately, the resignation of several top administrators, including Executive Vice President Marilyn Slaaten.
Finally, given the fact that the Medical Center’s administration has announced that they will not be joining in any action to recover money from their former accounting firm, having been advised by counsel that their case would be weak, the Legislature and Chairman Ryan’s hesitation to jump into litigation is both prudent and reasonable. The $20,000 they have agreed to spend for an independent evaluation by Lowey-Dannenberg, a law firm with a great deal of experience in litigation involving accounting firms, is money well spent.
County Legislators Refuse To Be Stampeded
We applaud the decision by the County Board of Legislators, under Chairman Bill Ryan, to retain independent counsel to evaluate the feasibility of bringing a successful civil action against KPMG Peat Marwick, LLP, as has been strongly urged by the County Executive’s Office recently. Any such court action would, of course, require the County Legislature to sign off.
County Executive Andrew Spano, based on data compiled by Larry Schwartz, and legal assessments from the law firm Nixon Peabody, has been actively promoting the notion that County taxpayers might recover as much as $200 million from KPMG Peat Marwick because they, allegedly, repeatedly failed to warn the County of problems with the accounting practices employed in-house at the Westchester County Medical Center between 1998 and 2004.
Deputy County Executive Larry Schwartz, several weeks ago, suggested that the well-known accounting firm had been derelict in its duty to inform the County, which guarantees several hundred million dollars of the hospital’s debt, that certain flawed accounting practices might have been misleading, and more encouraging to underwriters, than was warranted. Some observers have expressed doubt that Mr. Schwartz could have been misled, or working under any misunderstanding regarding the Medical Center’s financial health given the publicity attendant to their long-standing financial crisis, and their need for repeated monetary transfusions over the past several years, virtually teetering on the brink of bankruptcy a few years ago.
We appreciate Chairman Bill Ryan’s measured and thoughtful response to Larry Schwartz’ hustle to try to get the legislators on board. Perhaps Ryan, and the other legislators, are experiencing a little difficulty swallowing
the notion that Larry, controlling as he is in all aspects, would somehow be left in the dark regarding the financial health and circumstances of the Medical Center. We certainly would understand if they found his position a little out of character, and somewhat disingenuous.
After all, it’s not as though the County Executive’s Office could have been out of touch with the operational and financial day-to-day realities at the Medical Center, given the fact that Mr. Spano has made several appointments
to the Board of Directors, including its chairman Richard Berman, since 1998, and throughout the period in question. And, clearly, there was reason enough to have justified independent audits given the mismanagement and financial miscues that required repeated bailouts, and, ultimately, the resignation of several top administrators, including Executive Vice President Marilyn Slaaten.
Finally, given the fact that the Medical Center’s administration has announced that they will not be joining in any action to recover money from their former accounting firm, having been advised by counsel that their case would be weak, the Legislature and Chairman Ryan’s hesitation to jump into litigation is both prudent and reasonable. The $20,000 they have agreed to spend for an independent evaluation by Lowey-Dannenberg, a law firm with a great deal of experience in litigation involving accounting firms, is money well spent.
Our Readers Respond...
Dear Editor:
The New York State Commission on Judicial Conduct receives and reviews written complaints of misconduct against judges of the state unified court system.
This is my second request to investigate this matter as the first was found that the commission did not make any request for supporting documentation in order to make an informed decision and therefore, dismissed without merit.
This is a committee obviously unable to live up to its mission statement as pledged.
Douglas Higbee
Enclosed please find my recent correspondence with the New York State Commission on Judicial Conduct:
New York State Commission on Judicial Conduct
38-40 State Street
Albany, New York 12207
April 23, 2007
Steven R. Coffey
WITH A COMPLETE RESERVATION OF RIGHTS
Mr. Coffey,
I am contacting you as Mr. Raoul L. Felder is being asked to step down. This,
along with my prior request for investigation and subsequent disciplinary action
was responded to by Ms. Jean M. Savanyu with, ... ‘Upon careful consideration
the Commission concluded that there was insufficient indication of judicial misconduct
to justify judicial discipline” without having obtained and reviewed any
transcript. I am enclosing the 3 minute/12-page transcript recorded February 27,
2006 of Supreme Court Justice W. Denis Donovan, since removed from the bench
shortly thereafter in June, 2006. Being of non-lawyer status, I must inquire of the
commission:
1. Ms. Joan Marshall Cresap, Esq., is my sister-in-law; my wives sister. Is this
an ethical violation of the NYSB with Judge Donovan’s knowledge?
2. Having voluntarily appeared February 27, 2007 and was never served nor
made aware of any warrant for my arrest, incarcerated without due process?
3. Why are court officers prepared to take me into custody? Do they work for
Ms. Cresap or the Court? Who (else) does Ms. Cresap work for?
4. What is AWOL? The Court obviously understands this statement. To
what degree has ex-parte communication taken place here?
5. If it was known, for several years at of this date, that I was resident to
Connecticut, why wasn’t I served with the Warrant? Why does Judge Donovan
question this?
6. What is the relevance of Chef Antonio’s restaurant?
7. Pension? What pension? What is the relevance of some pension?
8. Why does Judge Donovan tolerate such statements, “the man is full of
lies, full of lies for years.’ What lies and what does such an unfounded statement
do to my credibility?
9. “THE COURT: At this point you said they owe you $170,000 in attorney’s
fees.” When did this discussion take place? Not earlier in this transcript.
Who is ‘they?’ Judge Donovan seems confused or is he truly under the impression
that there is a ‘they,’ and is ‘they’ after him, backing me, or what?
10. What is the relevance of question page 9, line 24? Despite my response
to be negative, in what relevance is this? “That’s not bad for a guy who
[does not] drink.” What is the relevance of this comment? Is this a pre-conceived
character assassination?
11. THE COURT: “Do you take drugs?” What the heck is this all about?
What ex-parte communication took place again here for this verbal assault?
This couldn’t be more concise if scripted.
12. As I voluntarily appeared this date, how can I be a flight risk? Why wasn’t
I offered a subsequent date of hearing and/or a bail offering?
13. Why is the court asking Ms. Cresap “Would he be entitled to 18B?”
What is 18B?
14. Why was I denied counsel and remanded to county jail?
15. How am I beyond the jurisdiction of ‘this court’ ?
16. Why was my vehicle impounded? The vehicle is licensed and registered
to Connecticut. What jurisdiction does Westchester have on this vehicle
and why?
Due to cost constraints I am limited to the expense of the enclosed transcript.
Subsequent hearing dates (transcript) of March 8th and April 13th of
Ms. Cresap and Justice Donovan will further substantiate my complaint.
Please refer to these additionally.
Congratulations to the Committee for being allocated an additional $2.2
million in funding for your efforts of reviewing complaints of potential misconduct.
Funding that is long overdue.
Sincerely,
Douglas Higbee
Dear Editor:
The New York State Commission on Judicial Conduct receives and reviews written complaints of misconduct against judges of the state unified court system.
This is my second request to investigate this matter as the first was found that the commission did not make any request for supporting documentation in order to make an informed decision and therefore, dismissed without merit.
This is a committee obviously unable to live up to its mission statement as pledged.
Douglas Higbee
Enclosed please find my recent correspondence with the New York State Commission on Judicial Conduct:
New York State Commission on Judicial Conduct
38-40 State Street
Albany, New York 12207
April 23, 2007
Steven R. Coffey
WITH A COMPLETE RESERVATION OF RIGHTS
Mr. Coffey,
I am contacting you as Mr. Raoul L. Felder is being asked to step down. This,
along with my prior request for investigation and subsequent disciplinary action
was responded to by Ms. Jean M. Savanyu with, ... ‘Upon careful consideration
the Commission concluded that there was insufficient indication of judicial misconduct
to justify judicial discipline” without having obtained and reviewed any
transcript. I am enclosing the 3 minute/12-page transcript recorded February 27,
2006 of Supreme Court Justice W. Denis Donovan, since removed from the bench
shortly thereafter in June, 2006. Being of non-lawyer status, I must inquire of the
commission:
1. Ms. Joan Marshall Cresap, Esq., is my sister-in-law; my wives sister. Is this
an ethical violation of the NYSB with Judge Donovan’s knowledge?
2. Having voluntarily appeared February 27, 2007 and was never served nor
made aware of any warrant for my arrest, incarcerated without due process?
3. Why are court officers prepared to take me into custody? Do they work for
Ms. Cresap or the Court? Who (else) does Ms. Cresap work for?
4. What is AWOL? The Court obviously understands this statement. To
what degree has ex-parte communication taken place here?
5. If it was known, for several years at of this date, that I was resident to
Connecticut, why wasn’t I served with the Warrant? Why does Judge Donovan
question this?
6. What is the relevance of Chef Antonio’s restaurant?
7. Pension? What pension? What is the relevance of some pension?
8. Why does Judge Donovan tolerate such statements, “the man is full of
lies, full of lies for years.’ What lies and what does such an unfounded statement
do to my credibility?
9. “THE COURT: At this point you said they owe you $170,000 in attorney’s
fees.” When did this discussion take place? Not earlier in this transcript.
Who is ‘they?’ Judge Donovan seems confused or is he truly under the impression
that there is a ‘they,’ and is ‘they’ after him, backing me, or what?
10. What is the relevance of question page 9, line 24? Despite my response
to be negative, in what relevance is this? “That’s not bad for a guy who
[does not] drink.” What is the relevance of this comment? Is this a pre-conceived
character assassination?
11. THE COURT: “Do you take drugs?” What the heck is this all about?
What ex-parte communication took place again here for this verbal assault?
This couldn’t be more concise if scripted.
12. As I voluntarily appeared this date, how can I be a flight risk? Why wasn’t
I offered a subsequent date of hearing and/or a bail offering?
13. Why is the court asking Ms. Cresap “Would he be entitled to 18B?”
What is 18B?
14. Why was I denied counsel and remanded to county jail?
15. How am I beyond the jurisdiction of ‘this court’ ?
16. Why was my vehicle impounded? The vehicle is licensed and registered
to Connecticut. What jurisdiction does Westchester have on this vehicle
and why?
Due to cost constraints I am limited to the expense of the enclosed transcript.
Subsequent hearing dates (transcript) of March 8th and April 13th of
Ms. Cresap and Justice Donovan will further substantiate my complaint.
Please refer to these additionally.
Congratulations to the Committee for being allocated an additional $2.2
million in funding for your efforts of reviewing complaints of potential misconduct.
Funding that is long overdue.
Sincerely,
Douglas Higbee
The Advocate
Richard Blassberg
Epidemic of Prosecutorial Misconduct
Urgently Demands Legislation
Last week brought a significant achievement in the effort to bring real justice to the Criminal Justice system throughout the United States, with the announced exoneration of Jerry Miller, believed to be the 200th wrongly convicted, and incarcerated, innocent individual cleared by DNA evidence since the first known reversal in 1989.
Unlike Jeffrey Deskovic, well-known to Guardian readers, who was in his sixteenth year behind bars, when freed through the efforts of the Innocence Project, Miller had already been paroled, having served 25 years, prior
to his recent exoneration by DNA evidence. What has many observers concerned is the fact that the first 100 cases took thirteen years, but only five more years to double the figure.
In fact, those numbers should not really be all that surprising given the fact that the technology obviously was not distributed everywhere, equally, all at once, and the rules of criminal procedure, not to mention court backlogs and protocols, vary from state to state, and between jurisdictions within each state, exclusive of the federal system. Those of us who have been involved with criminal justice for some time know very well that there have been many more cases of wrongful prosecution and conviction, even over the last fifty years, than we can ever hope to uncover and rectify. In fact, it is no overstatement to estimate that fully 30%, or more, of those who have gone to prison since 1957, were not guilty of the crime for which they were convicted.
Such is the reality of jurisdictions in which 97% of all felony indictments are disposed of by plea-bargain. One must understand that it is logical to assume that where a defendant can easily avoid as much as 75-90% of the prison time he is facing, if convicted after trial, by merely “copping a plea,” and yet insists upon his innocence, and is willing to incur the risk, and the expense, of going to trial, there is, at least a fair chance that he is, in fact, innocent. But, on the other hand, given the attractiveness of avoiding a possible 20, or 25-year sentence, many innocentindividuals, particularly those without significant resources, will take a “generous” plea deal, offering 1 ½ to 3 years, or possibly even probation. Many innocent individuals reside in state and federal prisons because they took that option.
Unfortunately, plea-bargaining has degenerated over the years to where it has become more like an addiction than a remedy for overcrowded calendars and overextended prosecutorial caseloads. And, while, in the purest sense, the Constitutional sense, it has become a device amongst many in the contemporary prosecutor’s
bag of tricks, it is the single most subversive factor in the “Criminal Justice Equation.” Prosecutors, for the most part, ignore half of their sworn mandate, the half which calls for “protection of the innocent,” preferring, instead, merely to “prosecute the guilty,” whomever they say is guilty. All too often it becomes a contest, a test of wills, and certainly not a “search for the truth.” What’s Justice got to do with it anyway?
Of course, it varies from jurisdiction to jurisdiction, but few district attorneys, and fewer United States Attorneys, are heard exclaiming that their investigation revealed the fact that an individual charged by police was, in fact, innocent.
That’s simply not what prosecutors believe the voting public wants to hear, ever. There’s just far too much politics and money tied up in the criminal justice system at every level. Hence, prosecutorial misconduct is not merely commonplace, but rampant and pervasive.
The Westchester District Attorney’s Office, in 1990, under Carl Vergari, had no compunction about sending a sixteen-year-old boy, Jeffrey Deskovic, to prison for 15-Years-To-Life for Rape and Murder despite the fact that his DNA and hair follicles did not match those found in, and on, the body of a 15-year-old schoolmate.
ADA George Bolen, arrogant, insensitive, but insulated, creature that he was, merely told the jury that Angela Correa, 15, a Peeksill High School student, had simply, “had consensual sex with someone else prior to her rape and murder.” Was there even any attempt, ever, to identify the “consensual partner?” Of course not.
That was the very worst kind of prosecutorial misconduct, because not only did it send a totally innocent boy of sixteen to prison for the next sixteen years of his life, but also it left Steven Cunningham, the actual perpetrator, at large in the Peekskill community where he once again killed another young woman little more than three years later. That same office, in 1994, this time under Jeanine Pirro, would turn a brutal stabbing and homicide in the City of Yonkers, into a 13-year lie and confabulation simply to satisfy the personal political needs of a very
sick, psychopathic, prosecutor, despite the fact that she had a confession from the actual killer just six days after the incident.
To achieve her evil, and clearly criminal, ends Pirro, and numerous assistant district attorneys, medical examiners, police, forensic experts, and even a judge, who just happened to be dating Pirro’s mother, all conspired to keep more than 376 pages, and 52 boxes of exculpatory information and exhibits, Brady material, from the Defense for more than thirteen years. Again, arrogance, no fear of legal reprisal or personal consequences, combined with a total disregard for Constitutional Rights, produced a seven-year prison stay for the innocent accused, as well
as prison sentences for other, unrelated, trumped-up offenses, prosecuted against witnesses who refused to lie about the original brutal stabbing.
It is difficult enough to accept the fact that 200 exonerations hardly represent even the tip of an enormous iceberg, given that honest, good faith mistakes can be made by the most well intentioned prosecutor. However, realizing the reality that in the vast majority of state and federal prosecutions intentional violations occur in the name of “winning by any means necessary,” the need for serious measures to stem the tide, indeed the epidemic, of malicious prosecutions, is all to evident.
What is needed here in New York State, and perhaps in most states, is serious legislation which will accomplish three essential goals:
First, a permanent commission must be established to make legislative recommendations, as well as overseeing their enactment and execution.
Second, legislation must be enacted that establishes financial, and incarcerative penalties for prosecutors who engage in malicious, and intentional, prosecutorial misconduct, calculated to deny defendants their Constitutional Rights.
Third, serious revisions must be made to the Code of Criminal Procedure, taking into account technological advancements, and social changes over the last fifty years, in an effort to level the playing field and enhance the
possibility of Constitutionally correct prosecution and the application of Due Process.
Richard Blassberg
Epidemic of Prosecutorial Misconduct
Urgently Demands Legislation
Last week brought a significant achievement in the effort to bring real justice to the Criminal Justice system throughout the United States, with the announced exoneration of Jerry Miller, believed to be the 200th wrongly convicted, and incarcerated, innocent individual cleared by DNA evidence since the first known reversal in 1989.
Unlike Jeffrey Deskovic, well-known to Guardian readers, who was in his sixteenth year behind bars, when freed through the efforts of the Innocence Project, Miller had already been paroled, having served 25 years, prior
to his recent exoneration by DNA evidence. What has many observers concerned is the fact that the first 100 cases took thirteen years, but only five more years to double the figure.
In fact, those numbers should not really be all that surprising given the fact that the technology obviously was not distributed everywhere, equally, all at once, and the rules of criminal procedure, not to mention court backlogs and protocols, vary from state to state, and between jurisdictions within each state, exclusive of the federal system. Those of us who have been involved with criminal justice for some time know very well that there have been many more cases of wrongful prosecution and conviction, even over the last fifty years, than we can ever hope to uncover and rectify. In fact, it is no overstatement to estimate that fully 30%, or more, of those who have gone to prison since 1957, were not guilty of the crime for which they were convicted.
Such is the reality of jurisdictions in which 97% of all felony indictments are disposed of by plea-bargain. One must understand that it is logical to assume that where a defendant can easily avoid as much as 75-90% of the prison time he is facing, if convicted after trial, by merely “copping a plea,” and yet insists upon his innocence, and is willing to incur the risk, and the expense, of going to trial, there is, at least a fair chance that he is, in fact, innocent. But, on the other hand, given the attractiveness of avoiding a possible 20, or 25-year sentence, many innocentindividuals, particularly those without significant resources, will take a “generous” plea deal, offering 1 ½ to 3 years, or possibly even probation. Many innocent individuals reside in state and federal prisons because they took that option.
Unfortunately, plea-bargaining has degenerated over the years to where it has become more like an addiction than a remedy for overcrowded calendars and overextended prosecutorial caseloads. And, while, in the purest sense, the Constitutional sense, it has become a device amongst many in the contemporary prosecutor’s
bag of tricks, it is the single most subversive factor in the “Criminal Justice Equation.” Prosecutors, for the most part, ignore half of their sworn mandate, the half which calls for “protection of the innocent,” preferring, instead, merely to “prosecute the guilty,” whomever they say is guilty. All too often it becomes a contest, a test of wills, and certainly not a “search for the truth.” What’s Justice got to do with it anyway?
Of course, it varies from jurisdiction to jurisdiction, but few district attorneys, and fewer United States Attorneys, are heard exclaiming that their investigation revealed the fact that an individual charged by police was, in fact, innocent.
That’s simply not what prosecutors believe the voting public wants to hear, ever. There’s just far too much politics and money tied up in the criminal justice system at every level. Hence, prosecutorial misconduct is not merely commonplace, but rampant and pervasive.
The Westchester District Attorney’s Office, in 1990, under Carl Vergari, had no compunction about sending a sixteen-year-old boy, Jeffrey Deskovic, to prison for 15-Years-To-Life for Rape and Murder despite the fact that his DNA and hair follicles did not match those found in, and on, the body of a 15-year-old schoolmate.
ADA George Bolen, arrogant, insensitive, but insulated, creature that he was, merely told the jury that Angela Correa, 15, a Peeksill High School student, had simply, “had consensual sex with someone else prior to her rape and murder.” Was there even any attempt, ever, to identify the “consensual partner?” Of course not.
That was the very worst kind of prosecutorial misconduct, because not only did it send a totally innocent boy of sixteen to prison for the next sixteen years of his life, but also it left Steven Cunningham, the actual perpetrator, at large in the Peekskill community where he once again killed another young woman little more than three years later. That same office, in 1994, this time under Jeanine Pirro, would turn a brutal stabbing and homicide in the City of Yonkers, into a 13-year lie and confabulation simply to satisfy the personal political needs of a very
sick, psychopathic, prosecutor, despite the fact that she had a confession from the actual killer just six days after the incident.
To achieve her evil, and clearly criminal, ends Pirro, and numerous assistant district attorneys, medical examiners, police, forensic experts, and even a judge, who just happened to be dating Pirro’s mother, all conspired to keep more than 376 pages, and 52 boxes of exculpatory information and exhibits, Brady material, from the Defense for more than thirteen years. Again, arrogance, no fear of legal reprisal or personal consequences, combined with a total disregard for Constitutional Rights, produced a seven-year prison stay for the innocent accused, as well
as prison sentences for other, unrelated, trumped-up offenses, prosecuted against witnesses who refused to lie about the original brutal stabbing.
It is difficult enough to accept the fact that 200 exonerations hardly represent even the tip of an enormous iceberg, given that honest, good faith mistakes can be made by the most well intentioned prosecutor. However, realizing the reality that in the vast majority of state and federal prosecutions intentional violations occur in the name of “winning by any means necessary,” the need for serious measures to stem the tide, indeed the epidemic, of malicious prosecutions, is all to evident.
What is needed here in New York State, and perhaps in most states, is serious legislation which will accomplish three essential goals:
First, a permanent commission must be established to make legislative recommendations, as well as overseeing their enactment and execution.
Second, legislation must be enacted that establishes financial, and incarcerative penalties for prosecutors who engage in malicious, and intentional, prosecutorial misconduct, calculated to deny defendants their Constitutional Rights.
Third, serious revisions must be made to the Code of Criminal Procedure, taking into account technological advancements, and social changes over the last fifty years, in an effort to level the playing field and enhance the
possibility of Constitutionally correct prosecution and the application of Due Process.
Court Report:
Surrogate Court Judge Anthony Scarpino, In His
Stated “There Is Substantial Evidence Indicating
Over the past 32 years, nearly 30 of them in retirement, former Major Crime
Detective with the White Plains Police Department, Austin Avery, has been involved
in the investigation of the murder of Oscar Nedd, a resident of White Plains, in early
January of 1975. Originally assigned with his partner, John Markey, “to investigate
the disappearance of a 24-year-old black male who resided at 59 North Broadway in
the City of White Plains, New York,” Avery quickly recognized that there had been
foul play and possibly a homicide. The Guardian recently spent nearly four hours
with retired Detective Avery at his home in Connecticut. The following information
is the product of that interview.
“On or about January 15, 1975, my partner and I were assigned to investigate the
report of a missing person, Oscar Ray Nedd, age 24, a male black, who resided in a
rooming house located at the intersection of Rockledge Ave. and North Broadway in
the City of White Plains. Oscar Nedd had been reported missing on January 8, 1975
by the husband of his half-sister, who lived in New York City. He indicated that attempts
to speak with Nedd by telephone had met with negative results, so he went
to the rooming house where Nedd lived, and a check of his room by him and the
manager revealed all of Nedd’s belongings were gone, as well as Ned and Ned’s cousin,
Joseph Fluellen. Also missing was Nedd’s car.
The informant said, ‘While checking the room he saw what appeared to be traces
of blood on the woodwork. He also said that the last time he had seen Nedd was in
the company of his cousin, Joe Fluellen, when Nedd came to visit him and his wife in
New York City.
My partner and I went to the rooming house and spoke with the manager, who
opened the locked door to Nedd’s room. At first sight, the room appeared to be in normal
condition, until we looked closer at the woodwork, and found numerous blood spots,
including, on the side of the lampshade. Under the bed we found bloody items of clothing.
At this point we turned over the mattress and found a huge puddle of dried blood.
My partner, John Markey, immediately called headquarters, requesting a photographer
and a forensic technician. Once these persons came to the scene, my partner
and I interviewed the manager and those tenants who were home at the time. It
should be noted that during this time period we received a message from the Warner
Robbins, Georgia Police Department stating that Joseph Fluellen had escaped from
prison in that city where he was being held on
an armed robbery charge. e message indicated
the Fluellen was believed to have stolen a
car in Georgia which was later recovered in New
Jersey, where he was believed to have friends. It
also indicated that Fluellen had relatives in the
White Plains area.
After receiving this information on Oscar
Nedd’s cousin, an “All Points Bulletin” was sent
out on the car owned by Nedd, and we began a
search of the area and the entire City of White
Plains for Oscar Nedd, his cousin Joe Fluellen,
and Nedd’s car. We continued our interviews with
the manager, tenants and friends of Oscar Nedd.
Our contacts revealed that Oscar Nedd was
well-liked, was engaged to be married to a young
woman, Paulette Reid who, at the time resided at
23 Old Mamaroneck Road, White Plains. Contacting
Miss Reid, we discovered that she and Oscar Nedd were in love and were planning
to be married. She stated that he called her every day, and she also indicated that
Oscar worked two jobs, and had saved close to $2,000 which was for their wedding,
planned in the near future.
Paulette said that on or about December 18, 1974, Oscar told her he had received
a phone call from Joe Fluellen, and that he was at the White Plains Train Station, and
had asked if Oscar could pick him up. She said, when he did, Fluellen told him he
had shopli ed in Georgia and was out on bail, and that as soon as he could, he was
going to return to Georgia, but needed a place to stay for the time being. Oscar told
her that he knew Fluellen was not a good person, and that he had once shot a relative
in Florida that was never reported to the police. He said he didn’t want his family
to think he would turn his back on a relative who needed help so he agreed to allow
Fluellen to stay with him.
Decision Declaring Oscar Nedd ‘Legally Dead’,
Oscar Nedd Was The Victim Of Foul Play”
Paulette also said that about a week later Oscar told her, while he was at work,
that Fluellen was going through his things in the room. On January 1, 1975, Oscar
and Fluellen stopped by Paulette’s apartment on their way to visit Oscar’s sister in
New York City, and then stopped at her place again on their way back. This was the
last time she ever saw Oscar. Paulette added that before going to New York, Oscar
told her that he was going but did not want her to go with them as he was upset over
something he had learned about Fluellen.
In our interview with Nedd’s sister and her husband we were informed that, while
at their apartment, Nedd told them he had something to tell them about Fluellen that
he had just learned. But, because Fluellen was there, he could not speak about it at
the time. We were also advised that Nedd had a doctor’s appointment for January 6,
1975 which he never kept. We continued our search for Nedd’s body and interviewed
friends and neighbors.
Some time in February of 1975 we received a bulletin that two male blacks, using
a car registered to Oscar Nedd, had been involved in a holdup in Arizona, but the
subject had gotten away. A week or two later we then received a call that two subjects,
Oscar Nedd and Willy Marshall, were arrested in Las Cruces, New Mexico, in Nedd’s
car for armed robbery. I called Las Cruces authorities and advised them that I did not
believe the subject who identified himself as Oscar Nedd was Oscar but was, in fact,
Joe Fluellen. As for the other subject who identified himself as Willy Marshall, I had
no idea who he was. Further interviews revealed that the subject, claiming to be Nedd,
admitted he was Joe Fluellen.
My partner and I requested permission to go to New Mexico and speak with
Fluellen, but we were denied. I could not believe the total lack of interest by DA Carl
Vergari and White Plains Police Commissioner John Dolce. They each reasoned to
me that the New Mexico Police would ‘handle the rest of the case.’ I replied, ‘How can
they handle it when they do not know the facts in this case?’ Again I was denied. I
later was advised that both subjects were convicted of armed robbery and sentenced
to 15 years in jail but had been released after serving only two and a half years.
I continued to work on the case with a new partner and, in 1977, we re-interviewed
a tenant in the rooming house whom I always felt knew more than he had said when
first interviewed. This resulted in his signed, notarized statement in which he said that
on January 1, 1975 he did, in fact, see Fluellen carrying what he believed to be a body
rolled up inside of a rug, place it in Nedd’s car, and drive off. Again, this information was
totally ignored by DA Vergari and the White Plains Police Department.
We continued to work the case. And, then, in June of 1978, I walked into the of-
fice of the Chief of Detectives Bernard Seit and saw a report in a folder marked Las
Cruces, New Mexico. I asked for permission to review the report, but was denied. At
this point I indicated now that I had 24 years of service, I was going to retire, knowing
this was the only way I could follow up on the case. Commissioner John Dolce called
me into his office and asked me to reconsider. I did, for the next several months, and
then put in my retirement papers in October, 1978. The following week I began to
investigate on my own, an investigation which has taken me all over the country. The
first place I went to was Marshallville, Georgia, where I spoke with Iris Rumph, Oscar
Nedd’s sister. She told me that Oscar was a good student, and also a good athlete, who
had never been in any trouble with the law. His goal in life was to further his education
and become a journalist, but their family was very poor and so he left and went to
live in Florida with an aunt, after which he went to New York, settling in White Plains.
He kept in constant touch with his family. Iris further added that when she learned
that Joe Fluellen had escaped prison and was with Oscar in New York, she had called
her brother December 31, 1974 advising him to tell Fluellen to leave. I believe this accounted
for what Oscar said he had to tell his sister in New York, but was hesitant to
do so in Fluellen’s company.
Over the past 31 years, I have been to Georgia eight times, speaking with relatives and
friends of Oscar. The next stop for me was the police station in Warner Robbins, Georgia.
There I discovered Joe Fluellen’s lengthy record of numerous crimes, ranging from armed
robbery and burglary to rape, and that this particular department had outstanding warrants
for his arrest. I continued my interviews with friends and relatives, discovering in
1993 that Joe Fluellen was wanted in armed robberies all over the South.
All this time I kept thinking of the report I was denied access to, and then I
requested permission to review the case again. When I was allowed to do this, I discovered
the report which had been directed to Captain Seit was from a former NYS
Police Lieutenant who was now assigned to the crime commission in New Mexico.
While reading the report I was shocked to learn that Fluellen had stated, in interviews
with FBI agents, that on or about December 15, 1974 he and Oscar Nedd decided to
go to California where Nedd met a girl in San Francisco. Fluellen said that Nedd failed
to show up at a pool hall one night and that he decided to drive back to Georgia by
himself, leaving Oscar Nedd in California.
Fluellen further stated that on January 8, 1975, another friend, Willy Marshall,
who had just gotten out of prison, decided to return to California with Fluellen. Fluellen
admitted that on their way back to California they did the holdups in Arizona and
New Mexico. The report also indicated an interview with Willy Marshall stated that
Marshall first met Fluellen while doing time in prison in Georgia. Fluellen escaped
this prison, and the next time Marshall saw him, was on January 8, 1975 when he was
released. At that time Fluellen asked him if he wanted to go with him to California,
and he agreed. Marshall indicated that while in the car he had asked Fluellen where
he had got it, and Fluellen responded that his aunt in New York gave him the car.
Marshall also revealed that Joe Fluellen had about $2,000 on him and that whenever
they stopped, he used Oscar Nedd’s name as identification for hotels, etc. He stated
that he saw what he believed to be blood in the car. He did not know who Oscar Nedd
was, nor did he ever see him.
On further investigation, I learned that both men had been given polygraph tests
and that Marshall had passed, and Fluellen had not. The same report included a statement
from the writer who said the car was released to an insurance company and that,
in his opinion, Fluellen was a hardened criminal who would continue a life of crime.
Fluellen had committed over 20 armed robberies and five armed bank robberies in Florida
where he was arrested in 1995, convicted, and sent to Federal prison in Georgia.
After gathering all this information, I met with Commissioner John Dolce to discuss
it. His response to me was, ‘this is an embarrassment to the Department.’ He
repeated this again, leading me to the conclusion that in his way he was asking me to
back off. I indicated that I wanted the District Attorney advised. Approximately two
weeks later I met with Commissioner Dolce, a top assistant district attorney, a captain,
two lieutenants and detective who worked out of Commissioner Dolce’s office. I gave a
verbal account of what I had discovered and placed the report in front of the assistant
DA, who refused to read it, stating that without a body the district attorney would not
consider the case. I responded to all present, ‘I want to make this perfectly clear. The
evidence in this case is overwhelming that Joe Fluellen murdered Oscar Nedd, and I
will do whatever it takes to bring this case before a grand jury.’ I continued my investigation
for the next two years and learned that Fluellen had been arrested in Miami,
Florida for five armed bank robberies. I went to Miami and received permission to
speak with him. I believe the only reason he agreed to speak with me was because he
didn’t know what I had discovered thus far. During our conversation he never denied
killing Oscar Nedd, but only repeated, ‘You can’t prove it.’
I met with DA Jeanine Pirro, who succeeded Carl Vergari, who had been the
DA when this case occurred. Those present at the meeting, besides Pirro and myself,
included her First Assistant and the chief of her Homicide Division. After giving her
all the information to date, her exact words to me were, ‘With all that evidence, why
didn’t you arrest Fluellen?’ She indicated that she would assign her investigators to assist
the White Plains Police Department with this case. I had made plans to go to California
to check out a gas station in San Francisco where Fluellen had taken Nedd’s car
for repairs. The receipt for this work was still in his possession when he was arrested
in New Mexico. When I returned back east, I set up a meeting with two detectives assigned
by Commissioner Dolce to reinvestigate this case. And, at that meeting, I was
asked if I had a copy of the case file, which I did not, but at the time I wondered why I
was asked. I was also asked by the detective who was at the meeting with the assistant
DA if I had copies of the negatives of the photos taken at the crime scene, which I did
not. Again, I wondered about these inquiries and was frustrated that the only thing
done by these detectives since reinvestigating the case was to ascertain that Oscar
Nedd’s social security number had not been used since his disappearance.
I realize that since this case was getting old, and a body was never discovered, those
new to the investigation did not consider it a priority. I decided to investigate by retracing
Joe Fluellen’s whereabouts after Nedd’s disappearance. I surmised that he may
have traveled straight to Georgia to see Willy Marshall, and that he was familiar with
areas in New Jersey as stated in his past interviews. I contacted the New Jersey State
Police and, with their help, I checked for any unidentified bodies found between 1975
and 1980. I discovered the records of an unidentified black male, age approximately
24, same height, same weight, whose remains were discovered on Route 80 in the area
of the Delaware Water Gap. The medical examiner’s report indicated that the remains
were found in 1976 and were believed to have been there for a year. I felt that because of
Fluellen’s ties in New Jersey and his familiarity with this area, that this could be the remains
of Oscar Nedd. Two weeks later the medical examiner said he had made an error,
and changed the sex of these remains from male to female. Since late 1990 I was aware
of new advancements in DNA testing and felt the New Jersey medical examiner was
unsure of the gender of those remains found in 1976. Once again contacting the New
Jersey Police, I discovered that since the first change, a pathologist changed the findings
back, the gender being male. With this new discovery, I traveled to Georgia, and asked if
I might speak with Oscar Nedd’s mother. I learned that his father had passed away, still
grieving over his son, Oscar. His mother was at the doctor’s office, where I visited and
spoke with her and her doctor in the presence of her daughter, Ms. Rumph, regarding
getting a blood sample for a DNA match test to the remains found in New Jersey. Both
agreed and, after the doctor had taken the sample and placed it in ice for my trip back
North, I assured Oscar Nedd’s mother that I would not give up on solving the disappearance
of her son whom she still grieved for every day.
Once I returned to White Plains, I went directly to Commissioner Dolce’s of-
fice with the new information and the sample, but he refused to accept the sample. I
left his office and went directly to New Jersey to give the sample to the State Police.
After a few weeks had passed, I was told the New Jersey Police could not locate the
remains found in 1976. However, after repeated calls and letters, it was approximately
six months later they were located and sent to the FBI Crime Lab.
I waited three years, with many phone calls in between, and finally decided to
go to the Warren County prosecutor’s office directly. On my way there, I stopped at
the New Jersey State Police substation in Totowa and spoke to Lt. Smeltz. I started to
tell him why I was in New Jersey, and where I was headed, and he started shaking his
head back and forth and told me he knew of me. Asked how he had heard of me, he
stated that he was notified of the remains being misplaced, and that those remains
were signed out in 1985 and were never signed back in until my repeated calls to the
Warren County Prosecutor’s Office. I received a call from Frank Murphy who said he
was a former police officer in Paterson, NJ and a former Secret Service agent. He indicated
he was currently a forensic science teacher at Seton Hall University and Ramapo
College. He asked for a meeting, which I agreed to. I told him all of the facts and he
responded with his desire to assist in getting the case prosecuted. Murphy asked if I
would be willing to discuss the case with his class at Ramapo College, which I did.
After my discussion, the class of thirty would-be ‘forensic scientists and lawyers’ voted
on whether they would indict if on a grand jury, and everyone said they would. In
one of our numerous discussions Murphy said we needed to get Oscar Nedd declared
legally dead, and together we began this next step.
During this time Frank Murphy sent a letter to the Westchester County DA’s of-
fice and Commissioner Dolce indicating who he was and that he believed an injustice
had occurred regarding this case. He suggested that the case be turned over to the
New York State Police. Jeanine Pirro’s office called the White Plains Chief of Police,
William Bradley, and asked him to contact Frank Murphy to see what was going on.
When Bradley called Murphy, he said there was absolutely no forensic evidence in the
case or photos of the scene. Frank’s response was, ‘if that is true, Chief, why did you or
one of your detectives tell a reporter with the Newark Star Ledger that the very small
amount of blood found in Nedd’s room was animal blood?’ The chief had no answer
for this and, although he said he would get back to Frank, he never did. I reminded
Frank that Bradley was not at the scene in 1975, but I was, and I know what I saw.
The very next day I went to the office of the Westchester Forensic Lab, and the head
of the department, Frank Drummond, happened to be in the building. He agreed to
see me. When we reviewed the report of the Oscar Nedd case, he said he was familiar
with this one in particular, saying, ‘Oscar Nedd case, right? There was a lot of blood in
that room. Without a transfusion, no one could survive that amount of blood loss. 59
North Broadway, right? It was in 1975, I’ll never forget it, my first big case.’ He said he
started in forensics in 1973 and got that case in 1975. He agreed to give me copies of
his reports if I would give him a foil letter. I arrived the next day with the letter, and he
gave me over 15 pages of reports and notes on the case. He then said, ‘We take photos,
but when a department like White Plains calls, they have their own, so we did not take
any that day.’ Frank Murphy called Frank Drummond to verify what he had said, and
Drummond repeated to Murphy what he told me the day before.
Efforts to declare Oscar Nedd legally dead were started. I went to the Surrogate
Court in White Plains and spoke with the chief clerk and advised her of my reason for
being there. The head clerk for Judge Scarpino instructed her to give me the forms and
procedure requirements. This took about six months.
I made several attempts to meet with the new White Plains Commissioner of
Public Safety, Frank Straub, who finally returned my call and agreed to meet with me.
The next day an Inspector Jackson called me and said he and Commissioner Straub
would meet with me at a diner in North Castle, outside the city limits. I knew this was
being done for one reason only, and that was to show interest in the case, but not in
Police Headquarters with Chief Bradley present. I met with them, and was told that
instead of going to the DA, Straub was going to assign a detective named Tim Byrne,
who worked out of the White Plains office but did not report to Police Headquarters.
Three weeks later I received a call from Detective Byrne, who said he could not locate
the case file and asked if I would meet with him at the same diner. He asked me for
details in the case, which I gave him entirely.
In November 2005 I was notified by the Surrogate Court that a hearing would be
held on December 8. At that hearing, a judge assigned a lawyer to the case. When he
did, I served a subpoena on the Records Division of the White Plains Police Department
for the case file, which was never produced to the Court. Instead, I got a call
that Investigator Byrne was very upset over the subpoena, and did not produce any
records and further indicated photos could not be located. I knew then why the two
detectives asked me if I had any copies on this case, and why Detective Byrne could
not locate the file. It was clear that someone had removed this file from the case folder.
Byrne also told me he could not locate any of the witnesses I had told him about.
All are unaware of this. I have spoken recently with the number one witness in
this case, in the presence of another witness who will verify this, and she reiterated
to me what took place on January 1, 1975. When I asked her if she would speak to a
reporter with Eyewitness News she refused, saying, ‘I know if I am subpoenaed I will
have to testify under oath, and I will, but I will not speak before any camera. I have not
slept well in 31 years for fear of Joe Fluellen, who will have me killed if I do.’ It should
be noted that I met with the New York State Police Investigative Unit which informs
me that the evidence is very strong proof that Fluellen did murder Oscar Nedd. But,
because of political reasons, they will not take over this case.
After reading what took place in this case one must consider the following facts.
It will clearly prove what occurred to cover up what was done and not done in the
murder of Oscar Nedd.
1. In an investigation of a murder, the family is always interviewed not only for
the possibility of being involved, but for information that could help in the case. No
one other person other than myself ever spoke to any of Oscar Nedd’s family.
2. When Fluellen was arrested in Las Cruces and interviewed, he was in possession
of Nedd’s car, which was used to transport his body across state lines. This car
should have been brought back to White Plains and held as evidence. Instead it was
turned over to an insurance company according to the Las Cruces report and the family
was never notified.
3. Photos of the blood in Nedd’s room are missing from the case file.
4. When I served the subpoena on the Records Division of the White Plains Police
Department for the case file to be given to the Surrogate Court, it was never done.
5. Detective Tim Byrne, who was assigned to the case by Commissioner Frank
Straub, told me he could not locate the case file for several weeks, and then said there
were no photos. He was also upset over the fact that I had subpoenaed the case file.
Why would this bother him other than he knew things were missing?
6. Detective Byrne also said he could not locate any witnesses and yet the star witness
in the case, Paulette Reid, lives right in the heart of White Plains.
7. Joe Fluellen told the FBI that he left Oscar Nedd in California in the middle of
December 1974 when in fact he and Oscar Nedd were visiting Nedd’s sister in New
York on January 1, 1975. There are six eyewitnesses to this.
8. There were three DAs in White Plains who failed to listen to the evidence in
this case as follows:
• Carl Vergari did not think it was worth the time, effort or money to send
investigators to New Mexico to speak with Joe Fluellen simply because he was arrested
for armed robbery and that was justice (Fluellen got out in two and half
years and went on with his life of crime).
• In my interview with Jeanine Pirro and two of her top aides after hearing
the evidence back in 1995, she said, ‘With all that evidence, Detective Avery, why
didn’t you arrest Joe Fluellen?’ When she learned that Vergari refused to pursue
the case, she backed off and refused to proceed with the case.
• Janet DiFiore has refused to meet with me simply because she does not want
to become involved and, like Pirro, refuses to listen to the overwhelming evidence,
which she knows would reveal what her predecessors did.
9. The commissioner at the time of this case was John Dolce. When I discovered
the Las Cruces report and what it contained, I went to speak with Dolce who, upon
hearing what I discovered, said, ‘This is an embarrassment to the department.’ I could
not agree more. It is and should be an embarrassment to allow a criminal like Joe
Fluellen to get away with murder. It is not only an embarrassment; it is a miscarriage
of justice. Commissioner Dolce also said, ‘Austin, you’re not making any friends here.’
My answer to that was, ‘I’m not looking to make friends. I’m looking for justice for a
poor Black family who lost a son and a brother.’
10. One must ask oneself: Why would Joe Fluellen take the rug from the room
other than to hide the body?
11. When the new Commissioner of Public Safety, Frank Straub, finally agreed
to meet with me, it was not in police headquarters or in his office. It was in a diner
outside the city limits. Also present was Inspector Jackson. I knew that he was only
meeting with me to establish the fact that he did, but I agreed to this because I wanted
to hear what he had to say. When I advised him and Inspector Jackson of the facts, he
listened and said nothing. I then asked him if he was going to request the DA to put
this before a Grand Jury and his response was, ‘Oh no. I will assign a detective to the
case for further investigation.’ I knew then that I was right and he was only meeting
with me to keep me quiet, but this will never happen.
12. When I spoke with an investigator with the State Police, his response was,
‘Detective Avery, you have the case solved and I would like to take this case.’ Two
weeks later he said, ‘I’m sorry but my superiors will not take over the case because
of political reasons.’ In other words, they didn’t want to offend the DA or the Police
Commissioner. How do I tell the Nedd family this?
This case is not only a failure to prosecute Joe Fluellen who killed Oscar Nedd, but
it is a clear picture of what those in power did to cover up what took place. There is no
doubt whatsoever that it was done because Oscar Nedd was Black and was perceived
as no one of any particular importance. This case was a very easy case to solve. It did
not take a Sherlock Holmes to solve it. Like DA Pirro said, ‘With all the evidence, why
didn’t you arrest Joe Fluellen?”
Analysis:
Joseph Fluellen, who has been incarcerated in Federal Prison for several years,
having been convicted of Armed Bank Robbery, is scheduled to be released, possibly
as early as next year. Retired Detective Avery’s concern is shared by The Westchester
Guardian. We believe that there is a very real possibility that Fluellen, upon his
release, may seek to silence those in Westchester capable of testifying and pointing a
finger in his direction for the murder of Oscar Nedd. We further believe it is incumbent
upon the District Attorney’s Office to avail itself of the evidence amassed over
more than 30 years by a dedicated, right-thinking detective who has lived by his
personal credo, “Quitters never win; winners never quit,” in his search for truth and
justice for Oscar Nedd’s loved ones.
Surrogate Court Judge Anthony Scarpino, In His
Stated “There Is Substantial Evidence Indicating
Over the past 32 years, nearly 30 of them in retirement, former Major Crime
Detective with the White Plains Police Department, Austin Avery, has been involved
in the investigation of the murder of Oscar Nedd, a resident of White Plains, in early
January of 1975. Originally assigned with his partner, John Markey, “to investigate
the disappearance of a 24-year-old black male who resided at 59 North Broadway in
the City of White Plains, New York,” Avery quickly recognized that there had been
foul play and possibly a homicide. The Guardian recently spent nearly four hours
with retired Detective Avery at his home in Connecticut. The following information
is the product of that interview.
“On or about January 15, 1975, my partner and I were assigned to investigate the
report of a missing person, Oscar Ray Nedd, age 24, a male black, who resided in a
rooming house located at the intersection of Rockledge Ave. and North Broadway in
the City of White Plains. Oscar Nedd had been reported missing on January 8, 1975
by the husband of his half-sister, who lived in New York City. He indicated that attempts
to speak with Nedd by telephone had met with negative results, so he went
to the rooming house where Nedd lived, and a check of his room by him and the
manager revealed all of Nedd’s belongings were gone, as well as Ned and Ned’s cousin,
Joseph Fluellen. Also missing was Nedd’s car.
The informant said, ‘While checking the room he saw what appeared to be traces
of blood on the woodwork. He also said that the last time he had seen Nedd was in
the company of his cousin, Joe Fluellen, when Nedd came to visit him and his wife in
New York City.
My partner and I went to the rooming house and spoke with the manager, who
opened the locked door to Nedd’s room. At first sight, the room appeared to be in normal
condition, until we looked closer at the woodwork, and found numerous blood spots,
including, on the side of the lampshade. Under the bed we found bloody items of clothing.
At this point we turned over the mattress and found a huge puddle of dried blood.
My partner, John Markey, immediately called headquarters, requesting a photographer
and a forensic technician. Once these persons came to the scene, my partner
and I interviewed the manager and those tenants who were home at the time. It
should be noted that during this time period we received a message from the Warner
Robbins, Georgia Police Department stating that Joseph Fluellen had escaped from
prison in that city where he was being held on
an armed robbery charge. e message indicated
the Fluellen was believed to have stolen a
car in Georgia which was later recovered in New
Jersey, where he was believed to have friends. It
also indicated that Fluellen had relatives in the
White Plains area.
After receiving this information on Oscar
Nedd’s cousin, an “All Points Bulletin” was sent
out on the car owned by Nedd, and we began a
search of the area and the entire City of White
Plains for Oscar Nedd, his cousin Joe Fluellen,
and Nedd’s car. We continued our interviews with
the manager, tenants and friends of Oscar Nedd.
Our contacts revealed that Oscar Nedd was
well-liked, was engaged to be married to a young
woman, Paulette Reid who, at the time resided at
23 Old Mamaroneck Road, White Plains. Contacting
Miss Reid, we discovered that she and Oscar Nedd were in love and were planning
to be married. She stated that he called her every day, and she also indicated that
Oscar worked two jobs, and had saved close to $2,000 which was for their wedding,
planned in the near future.
Paulette said that on or about December 18, 1974, Oscar told her he had received
a phone call from Joe Fluellen, and that he was at the White Plains Train Station, and
had asked if Oscar could pick him up. She said, when he did, Fluellen told him he
had shopli ed in Georgia and was out on bail, and that as soon as he could, he was
going to return to Georgia, but needed a place to stay for the time being. Oscar told
her that he knew Fluellen was not a good person, and that he had once shot a relative
in Florida that was never reported to the police. He said he didn’t want his family
to think he would turn his back on a relative who needed help so he agreed to allow
Fluellen to stay with him.
Decision Declaring Oscar Nedd ‘Legally Dead’,
Oscar Nedd Was The Victim Of Foul Play”
Paulette also said that about a week later Oscar told her, while he was at work,
that Fluellen was going through his things in the room. On January 1, 1975, Oscar
and Fluellen stopped by Paulette’s apartment on their way to visit Oscar’s sister in
New York City, and then stopped at her place again on their way back. This was the
last time she ever saw Oscar. Paulette added that before going to New York, Oscar
told her that he was going but did not want her to go with them as he was upset over
something he had learned about Fluellen.
In our interview with Nedd’s sister and her husband we were informed that, while
at their apartment, Nedd told them he had something to tell them about Fluellen that
he had just learned. But, because Fluellen was there, he could not speak about it at
the time. We were also advised that Nedd had a doctor’s appointment for January 6,
1975 which he never kept. We continued our search for Nedd’s body and interviewed
friends and neighbors.
Some time in February of 1975 we received a bulletin that two male blacks, using
a car registered to Oscar Nedd, had been involved in a holdup in Arizona, but the
subject had gotten away. A week or two later we then received a call that two subjects,
Oscar Nedd and Willy Marshall, were arrested in Las Cruces, New Mexico, in Nedd’s
car for armed robbery. I called Las Cruces authorities and advised them that I did not
believe the subject who identified himself as Oscar Nedd was Oscar but was, in fact,
Joe Fluellen. As for the other subject who identified himself as Willy Marshall, I had
no idea who he was. Further interviews revealed that the subject, claiming to be Nedd,
admitted he was Joe Fluellen.
My partner and I requested permission to go to New Mexico and speak with
Fluellen, but we were denied. I could not believe the total lack of interest by DA Carl
Vergari and White Plains Police Commissioner John Dolce. They each reasoned to
me that the New Mexico Police would ‘handle the rest of the case.’ I replied, ‘How can
they handle it when they do not know the facts in this case?’ Again I was denied. I
later was advised that both subjects were convicted of armed robbery and sentenced
to 15 years in jail but had been released after serving only two and a half years.
I continued to work on the case with a new partner and, in 1977, we re-interviewed
a tenant in the rooming house whom I always felt knew more than he had said when
first interviewed. This resulted in his signed, notarized statement in which he said that
on January 1, 1975 he did, in fact, see Fluellen carrying what he believed to be a body
rolled up inside of a rug, place it in Nedd’s car, and drive off. Again, this information was
totally ignored by DA Vergari and the White Plains Police Department.
We continued to work the case. And, then, in June of 1978, I walked into the of-
fice of the Chief of Detectives Bernard Seit and saw a report in a folder marked Las
Cruces, New Mexico. I asked for permission to review the report, but was denied. At
this point I indicated now that I had 24 years of service, I was going to retire, knowing
this was the only way I could follow up on the case. Commissioner John Dolce called
me into his office and asked me to reconsider. I did, for the next several months, and
then put in my retirement papers in October, 1978. The following week I began to
investigate on my own, an investigation which has taken me all over the country. The
first place I went to was Marshallville, Georgia, where I spoke with Iris Rumph, Oscar
Nedd’s sister. She told me that Oscar was a good student, and also a good athlete, who
had never been in any trouble with the law. His goal in life was to further his education
and become a journalist, but their family was very poor and so he left and went to
live in Florida with an aunt, after which he went to New York, settling in White Plains.
He kept in constant touch with his family. Iris further added that when she learned
that Joe Fluellen had escaped prison and was with Oscar in New York, she had called
her brother December 31, 1974 advising him to tell Fluellen to leave. I believe this accounted
for what Oscar said he had to tell his sister in New York, but was hesitant to
do so in Fluellen’s company.
Over the past 31 years, I have been to Georgia eight times, speaking with relatives and
friends of Oscar. The next stop for me was the police station in Warner Robbins, Georgia.
There I discovered Joe Fluellen’s lengthy record of numerous crimes, ranging from armed
robbery and burglary to rape, and that this particular department had outstanding warrants
for his arrest. I continued my interviews with friends and relatives, discovering in
1993 that Joe Fluellen was wanted in armed robberies all over the South.
All this time I kept thinking of the report I was denied access to, and then I
requested permission to review the case again. When I was allowed to do this, I discovered
the report which had been directed to Captain Seit was from a former NYS
Police Lieutenant who was now assigned to the crime commission in New Mexico.
While reading the report I was shocked to learn that Fluellen had stated, in interviews
with FBI agents, that on or about December 15, 1974 he and Oscar Nedd decided to
go to California where Nedd met a girl in San Francisco. Fluellen said that Nedd failed
to show up at a pool hall one night and that he decided to drive back to Georgia by
himself, leaving Oscar Nedd in California.
Fluellen further stated that on January 8, 1975, another friend, Willy Marshall,
who had just gotten out of prison, decided to return to California with Fluellen. Fluellen
admitted that on their way back to California they did the holdups in Arizona and
New Mexico. The report also indicated an interview with Willy Marshall stated that
Marshall first met Fluellen while doing time in prison in Georgia. Fluellen escaped
this prison, and the next time Marshall saw him, was on January 8, 1975 when he was
released. At that time Fluellen asked him if he wanted to go with him to California,
and he agreed. Marshall indicated that while in the car he had asked Fluellen where
he had got it, and Fluellen responded that his aunt in New York gave him the car.
Marshall also revealed that Joe Fluellen had about $2,000 on him and that whenever
they stopped, he used Oscar Nedd’s name as identification for hotels, etc. He stated
that he saw what he believed to be blood in the car. He did not know who Oscar Nedd
was, nor did he ever see him.
On further investigation, I learned that both men had been given polygraph tests
and that Marshall had passed, and Fluellen had not. The same report included a statement
from the writer who said the car was released to an insurance company and that,
in his opinion, Fluellen was a hardened criminal who would continue a life of crime.
Fluellen had committed over 20 armed robberies and five armed bank robberies in Florida
where he was arrested in 1995, convicted, and sent to Federal prison in Georgia.
After gathering all this information, I met with Commissioner John Dolce to discuss
it. His response to me was, ‘this is an embarrassment to the Department.’ He
repeated this again, leading me to the conclusion that in his way he was asking me to
back off. I indicated that I wanted the District Attorney advised. Approximately two
weeks later I met with Commissioner Dolce, a top assistant district attorney, a captain,
two lieutenants and detective who worked out of Commissioner Dolce’s office. I gave a
verbal account of what I had discovered and placed the report in front of the assistant
DA, who refused to read it, stating that without a body the district attorney would not
consider the case. I responded to all present, ‘I want to make this perfectly clear. The
evidence in this case is overwhelming that Joe Fluellen murdered Oscar Nedd, and I
will do whatever it takes to bring this case before a grand jury.’ I continued my investigation
for the next two years and learned that Fluellen had been arrested in Miami,
Florida for five armed bank robberies. I went to Miami and received permission to
speak with him. I believe the only reason he agreed to speak with me was because he
didn’t know what I had discovered thus far. During our conversation he never denied
killing Oscar Nedd, but only repeated, ‘You can’t prove it.’
I met with DA Jeanine Pirro, who succeeded Carl Vergari, who had been the
DA when this case occurred. Those present at the meeting, besides Pirro and myself,
included her First Assistant and the chief of her Homicide Division. After giving her
all the information to date, her exact words to me were, ‘With all that evidence, why
didn’t you arrest Fluellen?’ She indicated that she would assign her investigators to assist
the White Plains Police Department with this case. I had made plans to go to California
to check out a gas station in San Francisco where Fluellen had taken Nedd’s car
for repairs. The receipt for this work was still in his possession when he was arrested
in New Mexico. When I returned back east, I set up a meeting with two detectives assigned
by Commissioner Dolce to reinvestigate this case. And, at that meeting, I was
asked if I had a copy of the case file, which I did not, but at the time I wondered why I
was asked. I was also asked by the detective who was at the meeting with the assistant
DA if I had copies of the negatives of the photos taken at the crime scene, which I did
not. Again, I wondered about these inquiries and was frustrated that the only thing
done by these detectives since reinvestigating the case was to ascertain that Oscar
Nedd’s social security number had not been used since his disappearance.
I realize that since this case was getting old, and a body was never discovered, those
new to the investigation did not consider it a priority. I decided to investigate by retracing
Joe Fluellen’s whereabouts after Nedd’s disappearance. I surmised that he may
have traveled straight to Georgia to see Willy Marshall, and that he was familiar with
areas in New Jersey as stated in his past interviews. I contacted the New Jersey State
Police and, with their help, I checked for any unidentified bodies found between 1975
and 1980. I discovered the records of an unidentified black male, age approximately
24, same height, same weight, whose remains were discovered on Route 80 in the area
of the Delaware Water Gap. The medical examiner’s report indicated that the remains
were found in 1976 and were believed to have been there for a year. I felt that because of
Fluellen’s ties in New Jersey and his familiarity with this area, that this could be the remains
of Oscar Nedd. Two weeks later the medical examiner said he had made an error,
and changed the sex of these remains from male to female. Since late 1990 I was aware
of new advancements in DNA testing and felt the New Jersey medical examiner was
unsure of the gender of those remains found in 1976. Once again contacting the New
Jersey Police, I discovered that since the first change, a pathologist changed the findings
back, the gender being male. With this new discovery, I traveled to Georgia, and asked if
I might speak with Oscar Nedd’s mother. I learned that his father had passed away, still
grieving over his son, Oscar. His mother was at the doctor’s office, where I visited and
spoke with her and her doctor in the presence of her daughter, Ms. Rumph, regarding
getting a blood sample for a DNA match test to the remains found in New Jersey. Both
agreed and, after the doctor had taken the sample and placed it in ice for my trip back
North, I assured Oscar Nedd’s mother that I would not give up on solving the disappearance
of her son whom she still grieved for every day.
Once I returned to White Plains, I went directly to Commissioner Dolce’s of-
fice with the new information and the sample, but he refused to accept the sample. I
left his office and went directly to New Jersey to give the sample to the State Police.
After a few weeks had passed, I was told the New Jersey Police could not locate the
remains found in 1976. However, after repeated calls and letters, it was approximately
six months later they were located and sent to the FBI Crime Lab.
I waited three years, with many phone calls in between, and finally decided to
go to the Warren County prosecutor’s office directly. On my way there, I stopped at
the New Jersey State Police substation in Totowa and spoke to Lt. Smeltz. I started to
tell him why I was in New Jersey, and where I was headed, and he started shaking his
head back and forth and told me he knew of me. Asked how he had heard of me, he
stated that he was notified of the remains being misplaced, and that those remains
were signed out in 1985 and were never signed back in until my repeated calls to the
Warren County Prosecutor’s Office. I received a call from Frank Murphy who said he
was a former police officer in Paterson, NJ and a former Secret Service agent. He indicated
he was currently a forensic science teacher at Seton Hall University and Ramapo
College. He asked for a meeting, which I agreed to. I told him all of the facts and he
responded with his desire to assist in getting the case prosecuted. Murphy asked if I
would be willing to discuss the case with his class at Ramapo College, which I did.
After my discussion, the class of thirty would-be ‘forensic scientists and lawyers’ voted
on whether they would indict if on a grand jury, and everyone said they would. In
one of our numerous discussions Murphy said we needed to get Oscar Nedd declared
legally dead, and together we began this next step.
During this time Frank Murphy sent a letter to the Westchester County DA’s of-
fice and Commissioner Dolce indicating who he was and that he believed an injustice
had occurred regarding this case. He suggested that the case be turned over to the
New York State Police. Jeanine Pirro’s office called the White Plains Chief of Police,
William Bradley, and asked him to contact Frank Murphy to see what was going on.
When Bradley called Murphy, he said there was absolutely no forensic evidence in the
case or photos of the scene. Frank’s response was, ‘if that is true, Chief, why did you or
one of your detectives tell a reporter with the Newark Star Ledger that the very small
amount of blood found in Nedd’s room was animal blood?’ The chief had no answer
for this and, although he said he would get back to Frank, he never did. I reminded
Frank that Bradley was not at the scene in 1975, but I was, and I know what I saw.
The very next day I went to the office of the Westchester Forensic Lab, and the head
of the department, Frank Drummond, happened to be in the building. He agreed to
see me. When we reviewed the report of the Oscar Nedd case, he said he was familiar
with this one in particular, saying, ‘Oscar Nedd case, right? There was a lot of blood in
that room. Without a transfusion, no one could survive that amount of blood loss. 59
North Broadway, right? It was in 1975, I’ll never forget it, my first big case.’ He said he
started in forensics in 1973 and got that case in 1975. He agreed to give me copies of
his reports if I would give him a foil letter. I arrived the next day with the letter, and he
gave me over 15 pages of reports and notes on the case. He then said, ‘We take photos,
but when a department like White Plains calls, they have their own, so we did not take
any that day.’ Frank Murphy called Frank Drummond to verify what he had said, and
Drummond repeated to Murphy what he told me the day before.
Efforts to declare Oscar Nedd legally dead were started. I went to the Surrogate
Court in White Plains and spoke with the chief clerk and advised her of my reason for
being there. The head clerk for Judge Scarpino instructed her to give me the forms and
procedure requirements. This took about six months.
I made several attempts to meet with the new White Plains Commissioner of
Public Safety, Frank Straub, who finally returned my call and agreed to meet with me.
The next day an Inspector Jackson called me and said he and Commissioner Straub
would meet with me at a diner in North Castle, outside the city limits. I knew this was
being done for one reason only, and that was to show interest in the case, but not in
Police Headquarters with Chief Bradley present. I met with them, and was told that
instead of going to the DA, Straub was going to assign a detective named Tim Byrne,
who worked out of the White Plains office but did not report to Police Headquarters.
Three weeks later I received a call from Detective Byrne, who said he could not locate
the case file and asked if I would meet with him at the same diner. He asked me for
details in the case, which I gave him entirely.
In November 2005 I was notified by the Surrogate Court that a hearing would be
held on December 8. At that hearing, a judge assigned a lawyer to the case. When he
did, I served a subpoena on the Records Division of the White Plains Police Department
for the case file, which was never produced to the Court. Instead, I got a call
that Investigator Byrne was very upset over the subpoena, and did not produce any
records and further indicated photos could not be located. I knew then why the two
detectives asked me if I had any copies on this case, and why Detective Byrne could
not locate the file. It was clear that someone had removed this file from the case folder.
Byrne also told me he could not locate any of the witnesses I had told him about.
All are unaware of this. I have spoken recently with the number one witness in
this case, in the presence of another witness who will verify this, and she reiterated
to me what took place on January 1, 1975. When I asked her if she would speak to a
reporter with Eyewitness News she refused, saying, ‘I know if I am subpoenaed I will
have to testify under oath, and I will, but I will not speak before any camera. I have not
slept well in 31 years for fear of Joe Fluellen, who will have me killed if I do.’ It should
be noted that I met with the New York State Police Investigative Unit which informs
me that the evidence is very strong proof that Fluellen did murder Oscar Nedd. But,
because of political reasons, they will not take over this case.
After reading what took place in this case one must consider the following facts.
It will clearly prove what occurred to cover up what was done and not done in the
murder of Oscar Nedd.
1. In an investigation of a murder, the family is always interviewed not only for
the possibility of being involved, but for information that could help in the case. No
one other person other than myself ever spoke to any of Oscar Nedd’s family.
2. When Fluellen was arrested in Las Cruces and interviewed, he was in possession
of Nedd’s car, which was used to transport his body across state lines. This car
should have been brought back to White Plains and held as evidence. Instead it was
turned over to an insurance company according to the Las Cruces report and the family
was never notified.
3. Photos of the blood in Nedd’s room are missing from the case file.
4. When I served the subpoena on the Records Division of the White Plains Police
Department for the case file to be given to the Surrogate Court, it was never done.
5. Detective Tim Byrne, who was assigned to the case by Commissioner Frank
Straub, told me he could not locate the case file for several weeks, and then said there
were no photos. He was also upset over the fact that I had subpoenaed the case file.
Why would this bother him other than he knew things were missing?
6. Detective Byrne also said he could not locate any witnesses and yet the star witness
in the case, Paulette Reid, lives right in the heart of White Plains.
7. Joe Fluellen told the FBI that he left Oscar Nedd in California in the middle of
December 1974 when in fact he and Oscar Nedd were visiting Nedd’s sister in New
York on January 1, 1975. There are six eyewitnesses to this.
8. There were three DAs in White Plains who failed to listen to the evidence in
this case as follows:
• Carl Vergari did not think it was worth the time, effort or money to send
investigators to New Mexico to speak with Joe Fluellen simply because he was arrested
for armed robbery and that was justice (Fluellen got out in two and half
years and went on with his life of crime).
• In my interview with Jeanine Pirro and two of her top aides after hearing
the evidence back in 1995, she said, ‘With all that evidence, Detective Avery, why
didn’t you arrest Joe Fluellen?’ When she learned that Vergari refused to pursue
the case, she backed off and refused to proceed with the case.
• Janet DiFiore has refused to meet with me simply because she does not want
to become involved and, like Pirro, refuses to listen to the overwhelming evidence,
which she knows would reveal what her predecessors did.
9. The commissioner at the time of this case was John Dolce. When I discovered
the Las Cruces report and what it contained, I went to speak with Dolce who, upon
hearing what I discovered, said, ‘This is an embarrassment to the department.’ I could
not agree more. It is and should be an embarrassment to allow a criminal like Joe
Fluellen to get away with murder. It is not only an embarrassment; it is a miscarriage
of justice. Commissioner Dolce also said, ‘Austin, you’re not making any friends here.’
My answer to that was, ‘I’m not looking to make friends. I’m looking for justice for a
poor Black family who lost a son and a brother.’
10. One must ask oneself: Why would Joe Fluellen take the rug from the room
other than to hide the body?
11. When the new Commissioner of Public Safety, Frank Straub, finally agreed
to meet with me, it was not in police headquarters or in his office. It was in a diner
outside the city limits. Also present was Inspector Jackson. I knew that he was only
meeting with me to establish the fact that he did, but I agreed to this because I wanted
to hear what he had to say. When I advised him and Inspector Jackson of the facts, he
listened and said nothing. I then asked him if he was going to request the DA to put
this before a Grand Jury and his response was, ‘Oh no. I will assign a detective to the
case for further investigation.’ I knew then that I was right and he was only meeting
with me to keep me quiet, but this will never happen.
12. When I spoke with an investigator with the State Police, his response was,
‘Detective Avery, you have the case solved and I would like to take this case.’ Two
weeks later he said, ‘I’m sorry but my superiors will not take over the case because
of political reasons.’ In other words, they didn’t want to offend the DA or the Police
Commissioner. How do I tell the Nedd family this?
This case is not only a failure to prosecute Joe Fluellen who killed Oscar Nedd, but
it is a clear picture of what those in power did to cover up what took place. There is no
doubt whatsoever that it was done because Oscar Nedd was Black and was perceived
as no one of any particular importance. This case was a very easy case to solve. It did
not take a Sherlock Holmes to solve it. Like DA Pirro said, ‘With all the evidence, why
didn’t you arrest Joe Fluellen?”
Analysis:
Joseph Fluellen, who has been incarcerated in Federal Prison for several years,
having been convicted of Armed Bank Robbery, is scheduled to be released, possibly
as early as next year. Retired Detective Avery’s concern is shared by The Westchester
Guardian. We believe that there is a very real possibility that Fluellen, upon his
release, may seek to silence those in Westchester capable of testifying and pointing a
finger in his direction for the murder of Oscar Nedd. We further believe it is incumbent
upon the District Attorney’s Office to avail itself of the evidence amassed over
more than 30 years by a dedicated, right-thinking detective who has lived by his
personal credo, “Quitters never win; winners never quit,” in his search for truth and
justice for Oscar Nedd’s loved ones.
Judge Kaye And Four Of Her Justices
Should Return To Law School
The question before the Court was not about what the law should
have said, or meant to say, but rather what it actually said.
As time passes, it appears more and more obvious that the old expression, “A fish rots from the head down,” is quite applicable to the New York State Court System. Clearly, the disastrous condition of New York’s state courts flows from the disintegration of the Court of Appeals under the misguiding hand of Chief Judge Judith Kaye.
For some time now we have been questioning the Chief Judge’s willingness to tolerate, in fact, encourage numerous instances of ethical misconduct, and outright corruption, particularly in the Matrimonial Part of State Supreme Court which, here in Westchester, has truly become a Rico-type enterprise between certain judges and a particular clique of attorneys.
Additionally, she has condoned such outrageous maneuvers as were pulled off by Democrat Jonathan Lippman and Republican Joseph Alessandro in 2005 when they cross-endorsed each other to totally lockup their election to the Supreme Court.
And, speaking about cross-endorsements, Judge Kaye appears to have no problem seating Supreme and County Court Judges Judge Kaye And Four Of Her Justices Should Return To Law School The question before the Court was not about what the law should have said, or meant to say, but rather what it actually said.
who have paid thousands of dollars to political operatives such as Giulio Cavallo, to buy the Independence Party’s cross-endorsement, and thereby purchase a judgeship.
So much for the unabated corruption; Judge Kaye apparently prefers to remain in denial for the next nineteen months.
However, competence, and a correct understanding of the separation of powers between the Executive, the Legislative, and the Judicial branches of government, as set out by both the United States, and New York State Constitutions, is so essential, and fundamental to the role and function of the State’s highest tribunal, that it is painful to witness the failure of that Court to lawfully and appropriately deal with cases before it.
In our March 29th issue in The Advocate column entitled Only The Legislature, Not The Courts, May Enact
Law, the failure of the Court of Appeals to deal with the abuse of the Depraved Indifference Murder Statute, by prosecutors for some forty years was thoroughly exposed.
Now, that same Court, once again, is attempting to re-write the law, this time the statute that was enacted in 1996 prohibiting the sending of e-mails to minors “depicting nudity or sexual activity.”
Despite the fact that the Appellate Division, State Supreme Court, Second Department had overturned the conviction of Jeffrey Koslow for violation of the statute, because his transmissions to an undercover agent, pretending to be a fourteen–year-old, contained no images, no graphic, or pictorial material, the Court of Appeals, last week decided to expand the ordinary dictionary defi-nition of the word DEPICT, (commonly
defined in the dictionary as “to represent by drawing, painting) to now include the use of words. In effect, for whatever reasons, political, personal, or other, the State’s highest court once again has rewritten the law.
What makes the Court’s decision all the more inappropriate, and egregious, an invasion of the powers reserved for the State Legislature, is the fact that just a few weeks ago, the State Senate, and Assembly, passed, and Governor Spitzer signed into law, a revision of the original statute enacted eleven years ago, because on the
heels of the Koslow decision from the Appellate Division, the legislators realized that the language of their initial act did not specifically include words.
Dissenting Justices Theodore T. Jones, JR., and Robert S. Smith must be distinguished from Kaye and the four other justices whose action was again misguided.
Speaking of the 1996 statute, under which Koslow was convicted, Smith, in explaining the Dissent, said, “…if the Legislature intended to reach both pictures and words the obvious way to do so was to say depicts or describes.”
The revised law, recently passed says, “depicts or describes.” The Court’s ruling, in fact, is Constitutionally ex post facto; something every first-year law student would recognize.
Should Return To Law School
The question before the Court was not about what the law should
have said, or meant to say, but rather what it actually said.
As time passes, it appears more and more obvious that the old expression, “A fish rots from the head down,” is quite applicable to the New York State Court System. Clearly, the disastrous condition of New York’s state courts flows from the disintegration of the Court of Appeals under the misguiding hand of Chief Judge Judith Kaye.
For some time now we have been questioning the Chief Judge’s willingness to tolerate, in fact, encourage numerous instances of ethical misconduct, and outright corruption, particularly in the Matrimonial Part of State Supreme Court which, here in Westchester, has truly become a Rico-type enterprise between certain judges and a particular clique of attorneys.
Additionally, she has condoned such outrageous maneuvers as were pulled off by Democrat Jonathan Lippman and Republican Joseph Alessandro in 2005 when they cross-endorsed each other to totally lockup their election to the Supreme Court.
And, speaking about cross-endorsements, Judge Kaye appears to have no problem seating Supreme and County Court Judges Judge Kaye And Four Of Her Justices Should Return To Law School The question before the Court was not about what the law should have said, or meant to say, but rather what it actually said.
who have paid thousands of dollars to political operatives such as Giulio Cavallo, to buy the Independence Party’s cross-endorsement, and thereby purchase a judgeship.
So much for the unabated corruption; Judge Kaye apparently prefers to remain in denial for the next nineteen months.
However, competence, and a correct understanding of the separation of powers between the Executive, the Legislative, and the Judicial branches of government, as set out by both the United States, and New York State Constitutions, is so essential, and fundamental to the role and function of the State’s highest tribunal, that it is painful to witness the failure of that Court to lawfully and appropriately deal with cases before it.
In our March 29th issue in The Advocate column entitled Only The Legislature, Not The Courts, May Enact
Law, the failure of the Court of Appeals to deal with the abuse of the Depraved Indifference Murder Statute, by prosecutors for some forty years was thoroughly exposed.
Now, that same Court, once again, is attempting to re-write the law, this time the statute that was enacted in 1996 prohibiting the sending of e-mails to minors “depicting nudity or sexual activity.”
Despite the fact that the Appellate Division, State Supreme Court, Second Department had overturned the conviction of Jeffrey Koslow for violation of the statute, because his transmissions to an undercover agent, pretending to be a fourteen–year-old, contained no images, no graphic, or pictorial material, the Court of Appeals, last week decided to expand the ordinary dictionary defi-nition of the word DEPICT, (commonly
defined in the dictionary as “to represent by drawing, painting) to now include the use of words. In effect, for whatever reasons, political, personal, or other, the State’s highest court once again has rewritten the law.
What makes the Court’s decision all the more inappropriate, and egregious, an invasion of the powers reserved for the State Legislature, is the fact that just a few weeks ago, the State Senate, and Assembly, passed, and Governor Spitzer signed into law, a revision of the original statute enacted eleven years ago, because on the
heels of the Koslow decision from the Appellate Division, the legislators realized that the language of their initial act did not specifically include words.
Dissenting Justices Theodore T. Jones, JR., and Robert S. Smith must be distinguished from Kaye and the four other justices whose action was again misguided.
Speaking of the 1996 statute, under which Koslow was convicted, Smith, in explaining the Dissent, said, “…if the Legislature intended to reach both pictures and words the obvious way to do so was to say depicts or describes.”
The revised law, recently passed says, “depicts or describes.” The Court’s ruling, in fact, is Constitutionally ex post facto; something every first-year law student would recognize.
Thursday, April 26, 2007
In Our Opinion.
It’s Time To Pull The Plug On Larry Schwartz
It has come to our attention that the Westchester County Commissioner of Public Safety, Tom Belfiore, has been supplying Deputy County Executive Larry Schwartz with police intelligence, BCI Reports, on applicants for pistol permits, and other County residents. If true, the practice is not lawful, and constitutes an unacceptable
conspiracy, and usurping of powers by two public employees, neither of which are directly answerable to the public, and one of whom serves at the pleasure of the other. Sure, both were appointed by County Executive Andy Spano. And he, ostensibly, is answerable to the voters.
However, everyone knows Larry is the real County Executive. And, that situation is not healthy for decent, law-abiding citizens, whether applicants for a Pistol Permit, or not, because Larry’s lust for power and control knows no limit. From his perch on the ninth floor of the County Office Building, he has controlled Westchester County
Government, in all three of its branches: the Executive, of course; the Legislative, by it’s purse strings, with all of the funds raised from Democrats going into Andy’s campaign coffers for distribution as Larry sees fit; and the Judicial, similarly, historically in collaboration with individuals such as Guilio Cavallo, Nick Spano, and Jeanine
Pirro corruptly controlling the nomination and election process.
Under Larry Schwartz, County Government has been a ‘closed shop’ for nearly ten years. It’s not merely about patronage and money. Larry’s diabolical control involves indecency, and unconscionable, and unconstitutional, violations of individuals’ civil rights; in one instance driving a gifted young attorney and public servant, working
in the County Executive’s office, to suicide, a man whose only “disloyalty” was his unwillingness to betray his political party, the Democrats, and their candidate for District Attorney, Tony Castro, to join Larry’s scheme to re-elect Jeanine Pirro.
Larry never forgave David Meyer for his unwillingness to join the countywide race-fixing conspiracy of 2001. After pushing him from the office, he blackballed him everywhere he went, with every prospective employer. David, with a wife and two young children, pleaded with him, 48 hours before his plunge, to stop badmouthing him. But, Larry told him he would “never work again.”
We do not believe an individual as ruthless and conscienceless as Larry Schwartz ought to have a hand in the selection of who will be granted a pistol permit. He shouldn’t have had a hand in selecting the County’s solid waste hauler, either. However, because he did, we are doing business with a company from Connecticut that
the City of New York specifically would not do business with because of its Mob ties, and we are paying nearly twice the $70 million we once paid, and could have renewed for another five years, but for Larry’s control of the County Legislature.
One has to wonder about deals like that. Where do the unnecessary millions of taxpayer dollars squandered on a vender with, at best, a checkered history, really go?
We are not persuaded that the pistol permit application process should be taken from the hands of elected, County and Supreme Court Justices, and entrusted entirely to Larry and his cronies, simply because he has enlisted the support of the District Attorney’s Office. The relationship between that office and his has been far too incestuous to begin with. To be more specific, the DA’s so-called Public Integrity Unit has been a joke for years, a virtual oxymoron.
Elected judges are accountable to the voters, and their decisions are subject to scrutiny, due process, and recall. The same cannot be said for Larry and his gang. As We understand it the real question is: Why does County Executive Andrew Spano keep Larry Schwartz employed and in control, someone whose cruel agenda has injured, and turned away so many good citizens and public servants?
It’s Time To Pull The Plug On Larry Schwartz
It has come to our attention that the Westchester County Commissioner of Public Safety, Tom Belfiore, has been supplying Deputy County Executive Larry Schwartz with police intelligence, BCI Reports, on applicants for pistol permits, and other County residents. If true, the practice is not lawful, and constitutes an unacceptable
conspiracy, and usurping of powers by two public employees, neither of which are directly answerable to the public, and one of whom serves at the pleasure of the other. Sure, both were appointed by County Executive Andy Spano. And he, ostensibly, is answerable to the voters.
However, everyone knows Larry is the real County Executive. And, that situation is not healthy for decent, law-abiding citizens, whether applicants for a Pistol Permit, or not, because Larry’s lust for power and control knows no limit. From his perch on the ninth floor of the County Office Building, he has controlled Westchester County
Government, in all three of its branches: the Executive, of course; the Legislative, by it’s purse strings, with all of the funds raised from Democrats going into Andy’s campaign coffers for distribution as Larry sees fit; and the Judicial, similarly, historically in collaboration with individuals such as Guilio Cavallo, Nick Spano, and Jeanine
Pirro corruptly controlling the nomination and election process.
Under Larry Schwartz, County Government has been a ‘closed shop’ for nearly ten years. It’s not merely about patronage and money. Larry’s diabolical control involves indecency, and unconscionable, and unconstitutional, violations of individuals’ civil rights; in one instance driving a gifted young attorney and public servant, working
in the County Executive’s office, to suicide, a man whose only “disloyalty” was his unwillingness to betray his political party, the Democrats, and their candidate for District Attorney, Tony Castro, to join Larry’s scheme to re-elect Jeanine Pirro.
Larry never forgave David Meyer for his unwillingness to join the countywide race-fixing conspiracy of 2001. After pushing him from the office, he blackballed him everywhere he went, with every prospective employer. David, with a wife and two young children, pleaded with him, 48 hours before his plunge, to stop badmouthing him. But, Larry told him he would “never work again.”
We do not believe an individual as ruthless and conscienceless as Larry Schwartz ought to have a hand in the selection of who will be granted a pistol permit. He shouldn’t have had a hand in selecting the County’s solid waste hauler, either. However, because he did, we are doing business with a company from Connecticut that
the City of New York specifically would not do business with because of its Mob ties, and we are paying nearly twice the $70 million we once paid, and could have renewed for another five years, but for Larry’s control of the County Legislature.
One has to wonder about deals like that. Where do the unnecessary millions of taxpayer dollars squandered on a vender with, at best, a checkered history, really go?
We are not persuaded that the pistol permit application process should be taken from the hands of elected, County and Supreme Court Justices, and entrusted entirely to Larry and his cronies, simply because he has enlisted the support of the District Attorney’s Office. The relationship between that office and his has been far too incestuous to begin with. To be more specific, the DA’s so-called Public Integrity Unit has been a joke for years, a virtual oxymoron.
Elected judges are accountable to the voters, and their decisions are subject to scrutiny, due process, and recall. The same cannot be said for Larry and his gang. As We understand it the real question is: Why does County Executive Andrew Spano keep Larry Schwartz employed and in control, someone whose cruel agenda has injured, and turned away so many good citizens and public servants?
Our Readers Respond...
Dear Editor:
My name is Nicole Zumbo, and I just wanted to thank you for not forgetting my friend Robert Viscome. I live in West Harrison, and went to school with Rob all my life, from kindergarten, until that fateful day. I think it is great
how you have persued this story, and have reminded the people of Westchester of the lies, and deceit, that Jeanine Pirro has cast on this case, and many others. I myself witnessed John, and Beth’s, public mourning for Rob, and fell victim their deceit as well. They, along with Jeanine, the detectives, and those young men and
women who watched as my good friend lie dying on the floor, do not deserve to be let of the hook as easily as they have. I think of Rob everyday; this time five years ago we were celebrating in Cancun, Mexico together, and now look. I miss him dearly as do so many that had the good fortune of knowing him.
I thank you from the bottom of my heart for trying your best to remind people of him, and the injustice that surrounded his case. You are absolutely right, it is never to late to tell the truth, and I hope one day the guilty parties involved will stand up, and tell the community that they were wrong. West Harrison, misses him dearly, and we still five years later are mourning our loss, but with articles like, “It’s Never to Late to Tell the Truth” we
have hope that people have not forgotten our fallen friend. May his life have not been in vain. Thank You.
Nicole Zumbo
Dear Editor:
There have been several articles from the NY Law Journal covering Judith Kaye’s recent hoopla over New York State Supreme Court judicial pay raises. Their salaries are not meritbased compensation as $136,700 per year is guaranteed across the board whether their workload on the bench is productive or not. It is likewise guaranteed whether their competency has been questioned by litigants and brought before judicial review
boards, and when their judicial immunity essentially “unionizes” them as a protected work force. To my knowledge, a judicial seat is not forced upon them with whip and chain but, rather, is a career choice judges seek, like any other career application choice. Similarly, to other salaried employees, if satisfaction with the position is lacking, a career move is available.
Surely, a public service position is not the usual route for those eager to earn handsome salaries. Could there be perks to the job that are not disclosed to the general public’s knowledge that lure judges to these $136,700 positions of deprivation? On April 10 The New York Times reported that “the pay issue has galvanized
the bench. Judge Kaye said that some judges have urged work stoppages or slowdowns, which she would not condone.” Some lawyers and many litigants opine that there were in place, by the bench, work slowdowns and stopages already, if complaints of such are any indication. In fact, Judith Kaye said her proposed reforms, for which she asked an additional twenty months as Chief Judge, was to address the snail’s pace of litigation in a
court decried as crowded, costly, and traumatizing to the public.
It may be worthy to note that those before the New York State Supreme Court who are asked to pay the exorbitant and excessive fees of attorneys may not themselves get cost of living salary increases to afford the often frivilous litigation fees brought by these judges’ peers at the Bar. Ain’t life tough?
Westchester Guardian Reader
Name Withheld
Dear Editor:
I am writing to question the Con-ict of Interest in the One Stop Employment Center of Mt. Vernon. It is
the only One Stop owned by the Department of Social Services. Do you think they are going to refer jobs to
people on welfare, the very people they make so much money off ?
No they aren’t, they are the bloodsuckers of the poor. DSS has over 65,000 welfare recipients most of whom are not eligible for employment because of the various service programs and Workfare they must attend. The One Stop Employment Center has Welfare oriented programs, which have nothing to do with employment.
Department of Labor is a State run program, so how is it our local county government owns a One Stop Employment Center? People who want to work shouldn’t have to deal with the Department of Social Services
at all. The name of the Center is even a lie, you’d think there would be jobs lined up at a place called One Stop Employment, but in reality it’s just another place to lure people into the Welfare system.
Tracy King
Dear Editor:
Last week major New York City newspapers published articles covering the most recent actions of New York
State’s Chief Judge, Judith Kaye, entitled, amongst others, Kaye Calls Pay Impasse ‘Infuriating’, Raises Prospect Of Suit If Raises Not Approved; Kaye Prepared To Sue For Judicial Raises.
Then, there was an editorial in the New York Law Journal entitled, Bar Should Mobilize For Judicial Salary
Hikes, which now causes me to observe that the litigant/public opinion on these matters should be expressed to the same legislators as the Law Journal and other newspapers propose members of the Bar lift their pen and sound their voice to.
Sheldon Silver, Joseph Bruno and individual Assemblypersons may well be interested to learn that not every New York State citizen believes these jurists deserve a cost of living increase paid from taxpayers’ contributions.
Where are the performance reviews before these raises are considered earned? Where in the State Constitution
is it written State Supreme Court Jurists’ salaries are commensurate with the salary of Federal District Court
judges?
A few weeks ago, Judge Milonas suggested the mandatory retirement age of judges be extended. Last week, Judge Kaye proposed to ask State Comptroller Thomas DiNapoli and State Attorney General Andrew Cuomo whether the Judiciary may unilaterally move to increase judicial salaries should the Governor and Legislature not enact the pay hike. How will the acknowledged needed reforms of the Court occur when all emphasis has been on jurists, the length of their stay on the bench, and the compensation they receive while they’re sitting there?
Some twenty-month fix-it job, Judge Kaye!
A Concerned Litigant
Dear Editor:
My name is Nicole Zumbo, and I just wanted to thank you for not forgetting my friend Robert Viscome. I live in West Harrison, and went to school with Rob all my life, from kindergarten, until that fateful day. I think it is great
how you have persued this story, and have reminded the people of Westchester of the lies, and deceit, that Jeanine Pirro has cast on this case, and many others. I myself witnessed John, and Beth’s, public mourning for Rob, and fell victim their deceit as well. They, along with Jeanine, the detectives, and those young men and
women who watched as my good friend lie dying on the floor, do not deserve to be let of the hook as easily as they have. I think of Rob everyday; this time five years ago we were celebrating in Cancun, Mexico together, and now look. I miss him dearly as do so many that had the good fortune of knowing him.
I thank you from the bottom of my heart for trying your best to remind people of him, and the injustice that surrounded his case. You are absolutely right, it is never to late to tell the truth, and I hope one day the guilty parties involved will stand up, and tell the community that they were wrong. West Harrison, misses him dearly, and we still five years later are mourning our loss, but with articles like, “It’s Never to Late to Tell the Truth” we
have hope that people have not forgotten our fallen friend. May his life have not been in vain. Thank You.
Nicole Zumbo
Dear Editor:
There have been several articles from the NY Law Journal covering Judith Kaye’s recent hoopla over New York State Supreme Court judicial pay raises. Their salaries are not meritbased compensation as $136,700 per year is guaranteed across the board whether their workload on the bench is productive or not. It is likewise guaranteed whether their competency has been questioned by litigants and brought before judicial review
boards, and when their judicial immunity essentially “unionizes” them as a protected work force. To my knowledge, a judicial seat is not forced upon them with whip and chain but, rather, is a career choice judges seek, like any other career application choice. Similarly, to other salaried employees, if satisfaction with the position is lacking, a career move is available.
Surely, a public service position is not the usual route for those eager to earn handsome salaries. Could there be perks to the job that are not disclosed to the general public’s knowledge that lure judges to these $136,700 positions of deprivation? On April 10 The New York Times reported that “the pay issue has galvanized
the bench. Judge Kaye said that some judges have urged work stoppages or slowdowns, which she would not condone.” Some lawyers and many litigants opine that there were in place, by the bench, work slowdowns and stopages already, if complaints of such are any indication. In fact, Judith Kaye said her proposed reforms, for which she asked an additional twenty months as Chief Judge, was to address the snail’s pace of litigation in a
court decried as crowded, costly, and traumatizing to the public.
It may be worthy to note that those before the New York State Supreme Court who are asked to pay the exorbitant and excessive fees of attorneys may not themselves get cost of living salary increases to afford the often frivilous litigation fees brought by these judges’ peers at the Bar. Ain’t life tough?
Westchester Guardian Reader
Name Withheld
Dear Editor:
I am writing to question the Con-ict of Interest in the One Stop Employment Center of Mt. Vernon. It is
the only One Stop owned by the Department of Social Services. Do you think they are going to refer jobs to
people on welfare, the very people they make so much money off ?
No they aren’t, they are the bloodsuckers of the poor. DSS has over 65,000 welfare recipients most of whom are not eligible for employment because of the various service programs and Workfare they must attend. The One Stop Employment Center has Welfare oriented programs, which have nothing to do with employment.
Department of Labor is a State run program, so how is it our local county government owns a One Stop Employment Center? People who want to work shouldn’t have to deal with the Department of Social Services
at all. The name of the Center is even a lie, you’d think there would be jobs lined up at a place called One Stop Employment, but in reality it’s just another place to lure people into the Welfare system.
Tracy King
Dear Editor:
Last week major New York City newspapers published articles covering the most recent actions of New York
State’s Chief Judge, Judith Kaye, entitled, amongst others, Kaye Calls Pay Impasse ‘Infuriating’, Raises Prospect Of Suit If Raises Not Approved; Kaye Prepared To Sue For Judicial Raises.
Then, there was an editorial in the New York Law Journal entitled, Bar Should Mobilize For Judicial Salary
Hikes, which now causes me to observe that the litigant/public opinion on these matters should be expressed to the same legislators as the Law Journal and other newspapers propose members of the Bar lift their pen and sound their voice to.
Sheldon Silver, Joseph Bruno and individual Assemblypersons may well be interested to learn that not every New York State citizen believes these jurists deserve a cost of living increase paid from taxpayers’ contributions.
Where are the performance reviews before these raises are considered earned? Where in the State Constitution
is it written State Supreme Court Jurists’ salaries are commensurate with the salary of Federal District Court
judges?
A few weeks ago, Judge Milonas suggested the mandatory retirement age of judges be extended. Last week, Judge Kaye proposed to ask State Comptroller Thomas DiNapoli and State Attorney General Andrew Cuomo whether the Judiciary may unilaterally move to increase judicial salaries should the Governor and Legislature not enact the pay hike. How will the acknowledged needed reforms of the Court occur when all emphasis has been on jurists, the length of their stay on the bench, and the compensation they receive while they’re sitting there?
Some twenty-month fix-it job, Judge Kaye!
A Concerned Litigant
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