Thursday, June 19, 2008.
The Advocate
Richard Blassberg
Guardian Publisher Exposes DA DiFiore’s ‘Dirty
Tricks’ To Stifle His First Amendment Rights
Last Tuesday, June 10, Westchester Guardian publisher Sam Zherka held a press conference to announce his placement, in escrow, of $100,000 with White Plains attorney Jonathan Lovett, and his offer to award the funds to whomever shall first come forward with verifiable, truthful information regarding any illegal or unethical activity or prosecutorial misconduct by DA Janet DiFiore and/or her friend, ADA Matthew Bogdanos, of the Manhattan DA’s Office, that leads to their arrest, conviction and/or disbarment.
Mr. Zherka presented the following to explain his unprecedented offer: Last March, The Westchester Guardian published an article critical
of New York State’s Chief Judge, Judith Kaye, in which some unflattering information regarding Janet DiFiore’s high powered attorney spouse, Dennis Glazer, was reviewed.
That article produced a violently angry and abusively intimidating telephone call from DA DiFiore to Publisher Zherka in which she threatened, “How would you like it if someone came after your family?”
Zherka told reporters, “Within a few weeks, my investigation reveals, she had her friend, Assistant DA Matthew Bogdanos, of the Manhattan District Attorney’s Office, send out subpoenas to several businesses I deal with.” Those subpoenas produced no evidence of wrongdoing by Zherka whatsoever.
In July and August of last year, Yonkers Mayor Phil Amicone, closely aligned with DiFiore and with Attorney Michael Edelman, political consultant to each of them, ordered his Department of Public Works and his Police Department to confiscate 56 Guardian news boxes and thousands of newspapers.
Then, in September, Edelman began making false and defamatory accusations about Mr. Zherka on LoHud, the Journal News blog, and
other sites. Edelman created a list of entities and individuals who do business with Mr. Zherka, and who contributed to Dennis Robertson’s
campaign for Mayor of Yonkers. Edelman’s defamatory activities on the blog sites intensified right through October.
Zherka learned that during October, while the defamatory activity was being conducted on the blogs by Edelman, Phil Amicone, at a Republican political function, held at a church in Yonkers, in the presence of some 60 people, reiterated the defama-tory statements of
Edelman, attempting to implicate the publisher criminally, discredit him, and silence his exercise of Free Speech.
Zherka declared, “As a result, everyone who I introduced to Dennis Robertson’s campaign, and who made a contribution, received criminal subpoenas from the Manhattan District Attorney’s Office. It is no coincidence that in April 2007, Janet DiFiore told a person who was then close to her, and has since come forward because of the injustice, to report that Janet told him, ‘Don’t worry; I’m going to fix him.’ ”
Zherka told reporters, “Her misconduct was a blatant attack and retaliation against Free Speech.”
Having held his press conference on Tuesday, June 10, the very next day Zherka was served with more than 20 additional subpoenas.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------x
SELIM ZHERKA and THE WESTCHESTER
GUARDIAN, INC.,
Plaintiffs, 08 Civ. 3469 ( )
-against- COMPLAINT
JANET DiFIORE, individually, and THE
COUNTY OF WESTCHESTER,
Jury Trial Demanded
Defendant.
---------------------------------------------------------x
Plaintiffs SELIM ZHERKA and THE WESTCHESTER GUARDIAN, INC., by their attorneys Lovett & Gould, LLP, for their complaint respectfully state:
NATURE OF THE ACTION
1. This is an action for compensatory and punitive damages, as well as related declaratory and injunctive relief, proximately resulting from Defendants’ violation of Plaintiffs’ rights as guaranteed by the First Amendment to the United States Constitution, 42 U.S.C. §1983.
JURISDICTION
2. The Court’s jurisdiction is invoked pursuant to 28 U.S.C. §§1331, 1343.
THE PARTIES
3. Plaintiff SELIM ZHERKA is a citizen of the United States, a domiciliary of the State of New York, a resident of the Northern Counties, and the owner of Plaintiff THE WESTCHESTER GUARDIAN, INC, a New York domestic corporation having offices for the conduct of business at 2 William Street, White Plains, New York. As such he is the publisher/owner of The Westchester Guardian, a weekly newspaper, which commencing in August of 2006 began publishing articles concerning inter alia political corruption in the government of the County of Westchester, New York.
4. Defendant JANET DiFIORE (hereinafter “DiFiore”), who is sued in her individual and personal capacities only, at all times relevant to this complaint was the elected District Attorney of Defendant COUNTY OF WESTCHESTER, New York (hereinafter “County”), a municipal corporate subdivision of the State of New York duly existing by reason of and pursuant to the laws of said State. With respect to DiFiore’s conduct as set forth infra she acted as in her discretion as a final policymaking official of the County rather than on behalf of the People of the State of New York.
Thursday, June 19, 2008
Westchester Guardian.
Thursday, June 19, 2008
In Our Opinion...
Re: Greg Ball
If nothing else can be said for Greg Ball, Assemblyman from the 99th Assembly District, he’s not someone that people in the Lower Hudson Valley have neutral feelings about, whether they are residents of his district or not. Mr. Ball has been essentially a one-issue politician, and, despite his claims to the contrary, the thrust and passion of his political odyssey has been all about undocumented Latino immigrants.
Ball’s district covers parts of three counties; in Putnam, specifically the Towns of Patterson, Southeast, which most Westchester residents know as Brewster, and Carmel. In Dutchess, the Village of Pawling, and in Northern Westchester, the Towns of North Salem, Somers, and Yorktown Heights. A resident of Carmel, one might rightly conclude, he is best known by the Putnam Republican Party.
More than a year ago, Ball appeared on News12’s Newsmakers program opposite The Guardian’s own columnist, Dr. Maria Munoz Kantha. That program went a long way to spotlight Greg Ball’s ethnically-focused agenda, and the shallowness of his understanding of the breadth of local issues. The Putnam Republican organization has made their sentiments regarding Mr. Ball very clear in nominating John Degnan, former Mayor of the Village of Brewster, and one-time Democrat, for the Assembly seat now held by Ball. At the same time, Democrats from Northern Westchester last week came out in support of Degnan, a Republican, demonstrating, if nothing else, that
there is bi-partisan resistance to Greg Ball and his agenda.
Ball has made some serious political blunders. Upon assuming office in January 2007, he made a very bold declaration that the Assembly was part of “the most dysfunctional State Legislature in the Nation”, a statement hardly calculated to engender cooperation and assistance with a freshman colleague. Politicians who prey upon constituents’ fears and ethnic prejudices are merely that, self-serving politicians. At times wild-eyed, Greg Ball is all about Greg Ball.We do not see a public servant standing in his shoes. We congratulate the Republicans of Putnam County and the Democrats of Northern Westchester for placing principle and public service above blind party loyalty.
• • •
Re: Gary Kriss
Does anybody in their right mind really believe that unethical, and perhaps unlawful, spending and other misconduct in Westchester
County Government begins and ends with Gary Kriss? Of course not.
And, here are a couple of points to ponder.
What if, instead of the Chief Advisor to the Chairman of the County Legislature, Bill Ryan, we were instead scrutinizing the Chief Advisor to County Executive Andy Spano, none other than Susan Tolchin? And, what if the investigation looked into nepotistic employment influence, nephews, off- spring, etc.? Would District Attorney Janet DiFiore be so quick to jump in and gore Andy’s bull?
We think not!
Our Readers Respond...
Editor’s Note: The following letter to Harrison Supervisor/Mayor Joan Walsh, is reproduced at the request of the senders.
Dear Mayor Walsh:
As citizens of the Town of Harrison, we support your decision to seek an investigation against several members of the Harrison Police Department. We have read about and heard of numerous disturbing complaints against several high-ranking officers, subordinate officers, and Chief Hall himself. It is clear that Chief Hall will not conduct an investigation of these members because he is named as a defendant in several of the lawsuits (i.e. the camera in the locker room and the falsified check) with the officers subject to the current investigations of the teen sexual harassment and Corolla complaints. We also have reason to believe that the Republican members of the board may not agree to a suspension and fair investigation of these officers because Chief Hall and Captain Marraccini are big contributors to the Republican Party.
For example, a fund raiser party was held on behalf of the Republicans prior to the last election by Captain Marraccini. We hope this does not sway their opinion. In addition, the District Attorney’s Office will not give a fair investigation of the accused members of the department. As we have seen in the Viscome incident, the check fraud claim, and the camera in the locker room claim, the DA’s Office will not investigate these members (most likely stemming from their cooperation with the DA’s Office in the Viscome incident). We agree with you completely in that the accused members “cannot be allowed to investigate themselves.”
As long-term residents of Harrison, we are very upset with the incidents in question. It would pain us greatly to see no action taken in connection with potentially valid complaints against the police by our fellow citizens. It would suggest that no matter what the high ranking members of the department do, and no matter how severe, they will not have to answer for their actions because they are given the final say in who is investigated and who is not. That would totally discredit our system of checks and balances, and allow them to do what they please. We are not suggesting that anyone has engaged in illegal or improper conduct. However, when a complaint is made against the police department’s high officials, in this case more than ten (against the same people), these matters should certainly be looked into, as you have stated. All allegations against the Police Chief and/or Captain should be investigated, just like allegations brought against any private civilian would be investigated. Chief Hall felt the need to investigate and suspend two other officers for an incident that yielded no criminal complaints being filed, so why should a more serious complaint of sexual harassment not be treated the same way?
Corrupt members of any police department will use their power and intimidation tactics to silence citizens whose rights they violate. When one citizen comes forth, it opens the door for the rest. Currently, we feel that this is the reason why so many are now coming to the surface.
One of the articles we have read was disturbingly titled, Harrison, A Town Of Fear Of Its Police Department. We feel that your actions will help begin to make that fear start to disappear.
We chose you as our mayor because we feel you correctly expressed your discontent with the Harrison Police Department’s recent activity. We are glad that you have now decided to do something in order to protect your citizens.
Should an investigation produce evidence to support any of the accusations made against the offending officers, it will further prove that your election as Mayor of Harrison was the right choice.
Concerned Residents of Harrison
MEMORANDUM
To: Paul Feiner, Joan Gronowski, Co-Chairs, Committee to Eliminate Westchester County Government
From: Anthony Futia, Member, Westchester County Budget Study Committee
In pursuing the study on our county government budget, looking at ways to cut or eliminate Westchester County Government entirely, I feel strongly about the following: I am a resident and property owner in Westchester County, whose family also has homes in Greene and Schoharie Counties in New York.
In both Greene and Schoharie Counties, police coverage is provided by the “Office of the Sheriff” and the New York State Police, not a Public Safety Commissioner. We contribute to the Sheriff’s Association every year and receive a directory,which lists a Sheriff for Westchester County.
On review and research, it appears to make more sense and benefit Westchester County residents to have a County Sheriff’s Office responsible to and elected by the people as opposed to a County Police Department beholding to the County Executive and the County Board of Legislators.
I feel it is a dangerous situation where the police are responsible to the politicians instead of the residents. In today’s Journal News, “Spano’s Pal May House County Cops” at 450 Saw Mill River Road “it’s a good solution for our needs” said Kiernan
In Our Opinion...
Re: Greg Ball
If nothing else can be said for Greg Ball, Assemblyman from the 99th Assembly District, he’s not someone that people in the Lower Hudson Valley have neutral feelings about, whether they are residents of his district or not. Mr. Ball has been essentially a one-issue politician, and, despite his claims to the contrary, the thrust and passion of his political odyssey has been all about undocumented Latino immigrants.
Ball’s district covers parts of three counties; in Putnam, specifically the Towns of Patterson, Southeast, which most Westchester residents know as Brewster, and Carmel. In Dutchess, the Village of Pawling, and in Northern Westchester, the Towns of North Salem, Somers, and Yorktown Heights. A resident of Carmel, one might rightly conclude, he is best known by the Putnam Republican Party.
More than a year ago, Ball appeared on News12’s Newsmakers program opposite The Guardian’s own columnist, Dr. Maria Munoz Kantha. That program went a long way to spotlight Greg Ball’s ethnically-focused agenda, and the shallowness of his understanding of the breadth of local issues. The Putnam Republican organization has made their sentiments regarding Mr. Ball very clear in nominating John Degnan, former Mayor of the Village of Brewster, and one-time Democrat, for the Assembly seat now held by Ball. At the same time, Democrats from Northern Westchester last week came out in support of Degnan, a Republican, demonstrating, if nothing else, that
there is bi-partisan resistance to Greg Ball and his agenda.
Ball has made some serious political blunders. Upon assuming office in January 2007, he made a very bold declaration that the Assembly was part of “the most dysfunctional State Legislature in the Nation”, a statement hardly calculated to engender cooperation and assistance with a freshman colleague. Politicians who prey upon constituents’ fears and ethnic prejudices are merely that, self-serving politicians. At times wild-eyed, Greg Ball is all about Greg Ball.We do not see a public servant standing in his shoes. We congratulate the Republicans of Putnam County and the Democrats of Northern Westchester for placing principle and public service above blind party loyalty.
• • •
Re: Gary Kriss
Does anybody in their right mind really believe that unethical, and perhaps unlawful, spending and other misconduct in Westchester
County Government begins and ends with Gary Kriss? Of course not.
And, here are a couple of points to ponder.
What if, instead of the Chief Advisor to the Chairman of the County Legislature, Bill Ryan, we were instead scrutinizing the Chief Advisor to County Executive Andy Spano, none other than Susan Tolchin? And, what if the investigation looked into nepotistic employment influence, nephews, off- spring, etc.? Would District Attorney Janet DiFiore be so quick to jump in and gore Andy’s bull?
We think not!
Our Readers Respond...
Editor’s Note: The following letter to Harrison Supervisor/Mayor Joan Walsh, is reproduced at the request of the senders.
Dear Mayor Walsh:
As citizens of the Town of Harrison, we support your decision to seek an investigation against several members of the Harrison Police Department. We have read about and heard of numerous disturbing complaints against several high-ranking officers, subordinate officers, and Chief Hall himself. It is clear that Chief Hall will not conduct an investigation of these members because he is named as a defendant in several of the lawsuits (i.e. the camera in the locker room and the falsified check) with the officers subject to the current investigations of the teen sexual harassment and Corolla complaints. We also have reason to believe that the Republican members of the board may not agree to a suspension and fair investigation of these officers because Chief Hall and Captain Marraccini are big contributors to the Republican Party.
For example, a fund raiser party was held on behalf of the Republicans prior to the last election by Captain Marraccini. We hope this does not sway their opinion. In addition, the District Attorney’s Office will not give a fair investigation of the accused members of the department. As we have seen in the Viscome incident, the check fraud claim, and the camera in the locker room claim, the DA’s Office will not investigate these members (most likely stemming from their cooperation with the DA’s Office in the Viscome incident). We agree with you completely in that the accused members “cannot be allowed to investigate themselves.”
As long-term residents of Harrison, we are very upset with the incidents in question. It would pain us greatly to see no action taken in connection with potentially valid complaints against the police by our fellow citizens. It would suggest that no matter what the high ranking members of the department do, and no matter how severe, they will not have to answer for their actions because they are given the final say in who is investigated and who is not. That would totally discredit our system of checks and balances, and allow them to do what they please. We are not suggesting that anyone has engaged in illegal or improper conduct. However, when a complaint is made against the police department’s high officials, in this case more than ten (against the same people), these matters should certainly be looked into, as you have stated. All allegations against the Police Chief and/or Captain should be investigated, just like allegations brought against any private civilian would be investigated. Chief Hall felt the need to investigate and suspend two other officers for an incident that yielded no criminal complaints being filed, so why should a more serious complaint of sexual harassment not be treated the same way?
Corrupt members of any police department will use their power and intimidation tactics to silence citizens whose rights they violate. When one citizen comes forth, it opens the door for the rest. Currently, we feel that this is the reason why so many are now coming to the surface.
One of the articles we have read was disturbingly titled, Harrison, A Town Of Fear Of Its Police Department. We feel that your actions will help begin to make that fear start to disappear.
We chose you as our mayor because we feel you correctly expressed your discontent with the Harrison Police Department’s recent activity. We are glad that you have now decided to do something in order to protect your citizens.
Should an investigation produce evidence to support any of the accusations made against the offending officers, it will further prove that your election as Mayor of Harrison was the right choice.
Concerned Residents of Harrison
MEMORANDUM
To: Paul Feiner, Joan Gronowski, Co-Chairs, Committee to Eliminate Westchester County Government
From: Anthony Futia, Member, Westchester County Budget Study Committee
In pursuing the study on our county government budget, looking at ways to cut or eliminate Westchester County Government entirely, I feel strongly about the following: I am a resident and property owner in Westchester County, whose family also has homes in Greene and Schoharie Counties in New York.
In both Greene and Schoharie Counties, police coverage is provided by the “Office of the Sheriff” and the New York State Police, not a Public Safety Commissioner. We contribute to the Sheriff’s Association every year and receive a directory,which lists a Sheriff for Westchester County.
On review and research, it appears to make more sense and benefit Westchester County residents to have a County Sheriff’s Office responsible to and elected by the people as opposed to a County Police Department beholding to the County Executive and the County Board of Legislators.
I feel it is a dangerous situation where the police are responsible to the politicians instead of the residents. In today’s Journal News, “Spano’s Pal May House County Cops” at 450 Saw Mill River Road “it’s a good solution for our needs” said Kiernan
O’Leary, a spokesman for Public Safety Commissioner Thomas Belfiore; also Deputy County Executive Larry Schwartz said, “It would also allow the County to cancel a $14.2 million project that had been planned to build a new public safety headquarters in Valhalla.” Note that $14.2 million exceeds the $10 million requirement for a referendum and that the 2008 budget lists only $9 million for a new public safety headquarters.
I am requesting that our review committee investigate the feasibility of restructuring the present county police department from a Commissioner/Sheriff controlled by and responsible to the County Executive and Board of Legislators to a true “Office of the Sheriff ” responsible only to the people.
Attached herein is data for review; I have used for initial comparisons for Westchester County – Erie County which has the largest sheriff ’s office in New York State and is the fourteenth largest in the nation:
Total Area In Square Miles:
Westchester County – 500 square miles
Erie County – 1,227 square miles
Population:
Westchester County – 923,459
Erie County – 950,265
Cities, Towns, Villages & Reservations:
Westchester County has 45 cities, towns, villages and no reservations; the largest city is Yonkers
Erie County has 43 cities, towns, villages and two reservations; the largest city is Buffalo
The Office of the Sheriff is the oldest office under the system of common law in the United States. The powers and the duties of the Sheriff are embodied in the Constitution of each state and is an integral part of government in the State of New York.
As the oldest Constitutional law enforcement office, the sheriff is charged with maintaining peace in all municipalities, villages and towns
within his jurisdiction and the care and custody of persons pending court action. The Sheriff also serves as the Chief Executive Officer of the Courts and responsible for correctional facilities management.
The Sheriff ’s organization is always referred to as “the Office of the Sheriff ”, never incorrectly “the Sheriff ’s department”. This is because the Sheriff ’s office is independent of the Federal and State governments, not just a “department” of any of the 62 counties in New York State. Fifty-five counties elect a sheriff; the exceptions are New York City (which encompasses five counties) and the Mayor appoints a sheriff. Westchester County Commissioner/Sheriff and the Nassau County Sheriff are both appointed by the County Executive.
I’m looking forward to exploring the possibility of the financial and operational feasibility of an “Office of the Sheriff ” in Westchester County.
Anthony Futia,
North White Plains
Westchester Guardian.
Thursday, June 19, 2008
The Court Report
By Richard Blassberg
Judge Adler Dismisses 3 Of 4 Counts
Prosecution Witnesses Continued To Make Defense
Case For “Investigation Run Backwards”
Westchester Supreme Court, White Plains
Judge Lester B. Adler Presiding
Last Monday, June 9, the trial of former Mount Kisco Police Officer George Bubaris continued in Westchester Supreme Court. Prior to
admission of the jury to the courtroom, Judge Adler, as is routine, called upon both the Prosecution and Defense to submit any motions
or issues that needed to be heard by the Court prior to continuation of the trial proceedings.
Lead Prosecutor James McCarty spoke up, telling the Court that the Prosecution would be putting on a few more witnesses and then winding down their case, but that, “the Prosecution does not want to rest until we make this application requesting that the jury be allowed
to view that section of Mount Kisco between Rose Cleaners and the laundromat, the topography and the inter-relationship of the streets.”
McCarty went on, “We do not believe the desolate and seemingly removed aspect of the area to which Mr. Perez was taken, can be adequately portrayed without seeing it.
We would want people to be given the opportunity to get out in the area where the body was found.” Defense Attorney Andrew Quinn
responded, “I would only ask if where we are going to permit jurors to view includes the laundry, that they view the back of it as well.”
Judge Adler, recognizing some of the more obvious problems involved with granting such an application, asked of McCarty, “Weren’t there campsites in the woods? We’re going in the daytime; it was night. What about the foliage?” Assistant DA McCarty came back with “Our application is a broad-based application.” Whereupon Adler, who had called in his law clerk, Lee Spaulding, before hearing the application, indicated that he was reserving his decision until returning from lunch at 2pm.
The trial resumed with a reswearing of Prosecution witness Detective Sergeant Jeffrey Dickan, of the Bedford Police Department, who
had given some direct testimony on Friday, June 6. Putting up a large aerial photo of the relevant section of the Village of Mount Kisco, the
witness traced the supposed course taken by a Mount Kisco Police vehicle at 11:05pm the night in question based upon surveillance videos
taken by cameras at local business establishments. The account included movements supposedly by the Defendant, who Dickan described
first as “six feet four inches”, then “six foot three and 250 pounds.” Attorney Quinn began his cross-examination, asking, “You knew my
client’s height and weight because he told you.” The witness responded, “Yes.”
Quinn asked what evidence of homeless people the detective discovered at the site where Rene Perez was found dying? The detective responded, “Just tarps and debris.”
Then Quinn went into the subject of a certain black Armitron men’s wristwatch that was found at the site the day after Perez was discovered. Quinn got the detective, who led the investigation, to admit he never looked into who owned the watch; never had any DNA tests run on it; “never con-firmed if, in fact, it was the watch that Rene Perez was seen wearing in the videos from the laundromat.” He also got him to admit that he and his men never found Perez’ hat.
Then, after establishing that the distance from the laundromat to where Perez was found was merely 3.2 miles, Attorney Quinn asked Detective Dickan, “Is it fair to say that from 11:05pm, when he is seen leaving the laundromat on the video ´til he is found at 11:40pm, his
whereabouts remain unaccounted for?” Dickan responded, “Yes.”
Moving on to another subject, with a clear intention of showing the jury that, in fact, the investigation of Rene Perez’ death was run backward, Quinn remarked, “Of-ficer Dwyer makes a call at Stewart Place at 11:37pm, supposedly doing a license check.” He continues, “So
is it fair to say that Officer Dwyer’s whereabouts is unaccounted for between 11:15 and 11:42pm?” The witness explained that he had learned the facts on May 8, 2007, fully ten days after the incident.
Quinn came back with, “You knew then, on May 8, that Officer Dwyer’s whereabouts was unaccounted for?” Quinn declares, “It’s your investigation, you’re in charge; it’s your decision not to fingerprint Officer Dwyer’s patrol car.” Dickan, feeling obviously intimidated,
came back with, “Not just my decision alone; there were other people involved.” With that, Attorney Quinn asked, “Does the Bedford Police
Department have a policy of giving courtesy rides?”
Dickan, attempting to be cautious, said, “There are times.” Quinn then asked the witness, “When Mr. Perez was transported by Bedford
Police Officer Evans, he would’ve been in the back seat, unable to get out?” Detective Dickan responded, “Yes, unless the window was open.”
Quinn, changing gears once again, got the detective to admit that he had put together a timeline based on video images from Finch’s Mobil
and Rose Cleaners. And, more significantly, he got him to acknowledge that he did very little follow-up of other possible suspects. But Quinn wanted more from Detective Dickan. He went back to the black Armitron watch, getting the witness to admit that although he had the watch in his possession since the day after the incident, more than 13 months ago, he never had it checked for DNA evidence, or hair follicles, and never questioned Officer Evans as to whether he remembered Perez wearing it when he transported him to Mount Kisco.
Quinn said, “So you just operated on the theory that since you thought you saw the watch in the laundromat video on Mr. Perez, that it was his watch.” Dickan said, “Yes.”
Then, Andrew Quinn revisited the issue of Mount Kisco Police Of-ficer Dwyer’s call from Guard Hill, attempting once again to emphasize
the lead detective’s failure to follow-up, by asking if Dickan ever checked to confirm Dwyer’s reported purchase of a pack of cigarettes,
with a rephrased question. Judge Adler quickly responded with, “Sustained,” which was certainly in order and appropriate, but followed
up with, “Nice try, nice try.”
After the lunch break, the Judge denied the Prosecution’s application to transport the jury to the site where Rene Perez was found near death, as well as other relevant locations, including the laundromat.
Tuesday afternoon the last Prosecution witness, Dr. Barbara Sampson, a Medical Examiner for the City of New York, “specializing in unexpected deaths,” was back on the witness stand for cross-examination. She had made a firm argument for a punch, or a kick, as the probable source of the “concentrated bluntforce trauma that ruptured Rene Perez’ mesentery.”
Attorney Quinn returned to the issue of chemo-dilution, a critical one because it spoke to the question of how long it would take for Perez’
blood hemoglobin level to drop to the level it was at.
In responding, Dr. Sampson spoke about “the constellation of evidence” and admitted having gone to the scene.
Quinn asked if she saw rocks at the site where Perez was found. Sampson replied, “I didn’t see a rock that perfectly fit the injury.” However, Quinn got the witness to acknowledge that Perez had a “recent abrasion” of his knee, and “two minor abrasions to his nose,” suggesting the very real possibility he had suffered a fall.
Quinn asked, “In reading through his medical record, did you learn that Mr. Perez had numerous incidents of falling down?” Sampson responded, “I noted several hospital visits for injuries from falling down.”
In response to Mr. Quinn’s inquiry into her compensation, Sampson said, “I am here today as a favor to Westchester County from the New York City Medical Examiner’s Office. My testimony is not for sale. I am being paid my regular salary to be here.” With that, cross-examination was concluded and ADA McCarty rose and told the Court, “The People rest.”
At that point, Defense counsel Andrew Quinn proceeded to make a motion for a Trial Order Dismissal, a traditional, but not mandatory, defense motion upon the completion of the Prosecution’s case, predicated on the theory that the People have failed to make out a case that establishes each and every element of the charged offenses, even when viewed in a light most favorable to the Prosecution. Quinn told the Court, “The evidence is, at best, circumstantial. But, at best, it is insufficient. We have received no credible evidence that Rene Perez was ever in Mr. Bubaris’ police car; if you believe it’s a police car in the Peltz Tape.
“He never told Officer Dwyer anything other than that he had given Rene Perez a ride. He never said he struck him. He never said he abandoned him. He never said he took him beyond his will.
“Until the People make out manslaughter, the People must prove intentional bluntforce trauma. Even if you accept Dwyer’s statement,
there is no nexus to my client. There is no DNA in the rear of my client’s police car, even though Perez has a bleeding nose and we see him at the laundromat rubbing his nose. “Even if you accept all of their medical evidence, there is still 25 to 35 minutes that the Prosecution fails to make any connection with my client. As regards Count Two, Unlawful Imprisonment In The First Degree, there is no way it was a non-consensual act.
“If ever there was an appropriate case for a Trial Order Dismissal, this is it; it’s conjecture based on conjecture.” Assistant District Attorney Mc- Carty responded, attempting to defend the Prosecution case based upon a reckless murder theory. Then, in response to a question
from the Judge, McCarty declared, “It is our position that we do not have to prove every element of the crimes charged.” He then further
declared, “Officer Dwyer had no personal motive in testifying against a brother officer. The People are entitled to the reasonable assumption
that the victim was taken to Byram Lake without his consent.”
The Judge asked, “Where have you proven that there is a difference between what you are alleging Mr. Bubaris did and the ride he was given by a Bedford Police officer?” The Judge further questioned the “benefit element” in the charges of Official Misconduct. Attorney Quinn’s motion and argument were no mere perfunctory gesture. He offered a well-organized, well-framed, and highly persuasive retort to the People’s presentation.
Judge Adler listened intently as did his law clerk, Lee Spaulding. And, having asked several questions of both Quinn and McCarty, he reserved his decision.
Wednesday morning the resumption of trial was delayed until 11am. Citing no fewer than four cases, Judge Adler denied Quinn’s motion as applied to Count One, Second Degree Manslaughter. Then, to the obvious dismay and surprise of the three-man Prosecution team, as well as some six other District Attorney staff, including Patricia Murphy, he proceeded to dismiss Counts Two, Three and Four; one count of Unlawful Imprisonment, and two counts of Official Misconduct as “legally insufficient”.
Analysis:
This was Les Adler at his best; a judge who hasn’t lost his legal compass and who applied the law irrespective of the pressures of public
opinion and politics. Assistant District Attorneys McCarty, Perrone, and Delohery were visibly blown away. They had truly come to trial with their “tank on empty”.
The Court Report
By Richard Blassberg
Judge Adler Dismisses 3 Of 4 Counts
Prosecution Witnesses Continued To Make Defense
Case For “Investigation Run Backwards”
Westchester Supreme Court, White Plains
Judge Lester B. Adler Presiding
Last Monday, June 9, the trial of former Mount Kisco Police Officer George Bubaris continued in Westchester Supreme Court. Prior to
admission of the jury to the courtroom, Judge Adler, as is routine, called upon both the Prosecution and Defense to submit any motions
or issues that needed to be heard by the Court prior to continuation of the trial proceedings.
Lead Prosecutor James McCarty spoke up, telling the Court that the Prosecution would be putting on a few more witnesses and then winding down their case, but that, “the Prosecution does not want to rest until we make this application requesting that the jury be allowed
to view that section of Mount Kisco between Rose Cleaners and the laundromat, the topography and the inter-relationship of the streets.”
McCarty went on, “We do not believe the desolate and seemingly removed aspect of the area to which Mr. Perez was taken, can be adequately portrayed without seeing it.
We would want people to be given the opportunity to get out in the area where the body was found.” Defense Attorney Andrew Quinn
responded, “I would only ask if where we are going to permit jurors to view includes the laundry, that they view the back of it as well.”
Judge Adler, recognizing some of the more obvious problems involved with granting such an application, asked of McCarty, “Weren’t there campsites in the woods? We’re going in the daytime; it was night. What about the foliage?” Assistant DA McCarty came back with “Our application is a broad-based application.” Whereupon Adler, who had called in his law clerk, Lee Spaulding, before hearing the application, indicated that he was reserving his decision until returning from lunch at 2pm.
The trial resumed with a reswearing of Prosecution witness Detective Sergeant Jeffrey Dickan, of the Bedford Police Department, who
had given some direct testimony on Friday, June 6. Putting up a large aerial photo of the relevant section of the Village of Mount Kisco, the
witness traced the supposed course taken by a Mount Kisco Police vehicle at 11:05pm the night in question based upon surveillance videos
taken by cameras at local business establishments. The account included movements supposedly by the Defendant, who Dickan described
first as “six feet four inches”, then “six foot three and 250 pounds.” Attorney Quinn began his cross-examination, asking, “You knew my
client’s height and weight because he told you.” The witness responded, “Yes.”
Quinn asked what evidence of homeless people the detective discovered at the site where Rene Perez was found dying? The detective responded, “Just tarps and debris.”
Then Quinn went into the subject of a certain black Armitron men’s wristwatch that was found at the site the day after Perez was discovered. Quinn got the detective, who led the investigation, to admit he never looked into who owned the watch; never had any DNA tests run on it; “never con-firmed if, in fact, it was the watch that Rene Perez was seen wearing in the videos from the laundromat.” He also got him to admit that he and his men never found Perez’ hat.
Then, after establishing that the distance from the laundromat to where Perez was found was merely 3.2 miles, Attorney Quinn asked Detective Dickan, “Is it fair to say that from 11:05pm, when he is seen leaving the laundromat on the video ´til he is found at 11:40pm, his
whereabouts remain unaccounted for?” Dickan responded, “Yes.”
Moving on to another subject, with a clear intention of showing the jury that, in fact, the investigation of Rene Perez’ death was run backward, Quinn remarked, “Of-ficer Dwyer makes a call at Stewart Place at 11:37pm, supposedly doing a license check.” He continues, “So
is it fair to say that Officer Dwyer’s whereabouts is unaccounted for between 11:15 and 11:42pm?” The witness explained that he had learned the facts on May 8, 2007, fully ten days after the incident.
Quinn came back with, “You knew then, on May 8, that Officer Dwyer’s whereabouts was unaccounted for?” Quinn declares, “It’s your investigation, you’re in charge; it’s your decision not to fingerprint Officer Dwyer’s patrol car.” Dickan, feeling obviously intimidated,
came back with, “Not just my decision alone; there were other people involved.” With that, Attorney Quinn asked, “Does the Bedford Police
Department have a policy of giving courtesy rides?”
Dickan, attempting to be cautious, said, “There are times.” Quinn then asked the witness, “When Mr. Perez was transported by Bedford
Police Officer Evans, he would’ve been in the back seat, unable to get out?” Detective Dickan responded, “Yes, unless the window was open.”
Quinn, changing gears once again, got the detective to admit that he had put together a timeline based on video images from Finch’s Mobil
and Rose Cleaners. And, more significantly, he got him to acknowledge that he did very little follow-up of other possible suspects. But Quinn wanted more from Detective Dickan. He went back to the black Armitron watch, getting the witness to admit that although he had the watch in his possession since the day after the incident, more than 13 months ago, he never had it checked for DNA evidence, or hair follicles, and never questioned Officer Evans as to whether he remembered Perez wearing it when he transported him to Mount Kisco.
Quinn said, “So you just operated on the theory that since you thought you saw the watch in the laundromat video on Mr. Perez, that it was his watch.” Dickan said, “Yes.”
Then, Andrew Quinn revisited the issue of Mount Kisco Police Of-ficer Dwyer’s call from Guard Hill, attempting once again to emphasize
the lead detective’s failure to follow-up, by asking if Dickan ever checked to confirm Dwyer’s reported purchase of a pack of cigarettes,
with a rephrased question. Judge Adler quickly responded with, “Sustained,” which was certainly in order and appropriate, but followed
up with, “Nice try, nice try.”
After the lunch break, the Judge denied the Prosecution’s application to transport the jury to the site where Rene Perez was found near death, as well as other relevant locations, including the laundromat.
Tuesday afternoon the last Prosecution witness, Dr. Barbara Sampson, a Medical Examiner for the City of New York, “specializing in unexpected deaths,” was back on the witness stand for cross-examination. She had made a firm argument for a punch, or a kick, as the probable source of the “concentrated bluntforce trauma that ruptured Rene Perez’ mesentery.”
Attorney Quinn returned to the issue of chemo-dilution, a critical one because it spoke to the question of how long it would take for Perez’
blood hemoglobin level to drop to the level it was at.
In responding, Dr. Sampson spoke about “the constellation of evidence” and admitted having gone to the scene.
Quinn asked if she saw rocks at the site where Perez was found. Sampson replied, “I didn’t see a rock that perfectly fit the injury.” However, Quinn got the witness to acknowledge that Perez had a “recent abrasion” of his knee, and “two minor abrasions to his nose,” suggesting the very real possibility he had suffered a fall.
Quinn asked, “In reading through his medical record, did you learn that Mr. Perez had numerous incidents of falling down?” Sampson responded, “I noted several hospital visits for injuries from falling down.”
In response to Mr. Quinn’s inquiry into her compensation, Sampson said, “I am here today as a favor to Westchester County from the New York City Medical Examiner’s Office. My testimony is not for sale. I am being paid my regular salary to be here.” With that, cross-examination was concluded and ADA McCarty rose and told the Court, “The People rest.”
At that point, Defense counsel Andrew Quinn proceeded to make a motion for a Trial Order Dismissal, a traditional, but not mandatory, defense motion upon the completion of the Prosecution’s case, predicated on the theory that the People have failed to make out a case that establishes each and every element of the charged offenses, even when viewed in a light most favorable to the Prosecution. Quinn told the Court, “The evidence is, at best, circumstantial. But, at best, it is insufficient. We have received no credible evidence that Rene Perez was ever in Mr. Bubaris’ police car; if you believe it’s a police car in the Peltz Tape.
“He never told Officer Dwyer anything other than that he had given Rene Perez a ride. He never said he struck him. He never said he abandoned him. He never said he took him beyond his will.
“Until the People make out manslaughter, the People must prove intentional bluntforce trauma. Even if you accept Dwyer’s statement,
there is no nexus to my client. There is no DNA in the rear of my client’s police car, even though Perez has a bleeding nose and we see him at the laundromat rubbing his nose. “Even if you accept all of their medical evidence, there is still 25 to 35 minutes that the Prosecution fails to make any connection with my client. As regards Count Two, Unlawful Imprisonment In The First Degree, there is no way it was a non-consensual act.
“If ever there was an appropriate case for a Trial Order Dismissal, this is it; it’s conjecture based on conjecture.” Assistant District Attorney Mc- Carty responded, attempting to defend the Prosecution case based upon a reckless murder theory. Then, in response to a question
from the Judge, McCarty declared, “It is our position that we do not have to prove every element of the crimes charged.” He then further
declared, “Officer Dwyer had no personal motive in testifying against a brother officer. The People are entitled to the reasonable assumption
that the victim was taken to Byram Lake without his consent.”
The Judge asked, “Where have you proven that there is a difference between what you are alleging Mr. Bubaris did and the ride he was given by a Bedford Police officer?” The Judge further questioned the “benefit element” in the charges of Official Misconduct. Attorney Quinn’s motion and argument were no mere perfunctory gesture. He offered a well-organized, well-framed, and highly persuasive retort to the People’s presentation.
Judge Adler listened intently as did his law clerk, Lee Spaulding. And, having asked several questions of both Quinn and McCarty, he reserved his decision.
Wednesday morning the resumption of trial was delayed until 11am. Citing no fewer than four cases, Judge Adler denied Quinn’s motion as applied to Count One, Second Degree Manslaughter. Then, to the obvious dismay and surprise of the three-man Prosecution team, as well as some six other District Attorney staff, including Patricia Murphy, he proceeded to dismiss Counts Two, Three and Four; one count of Unlawful Imprisonment, and two counts of Official Misconduct as “legally insufficient”.
Analysis:
This was Les Adler at his best; a judge who hasn’t lost his legal compass and who applied the law irrespective of the pressures of public
opinion and politics. Assistant District Attorneys McCarty, Perrone, and Delohery were visibly blown away. They had truly come to trial with their “tank on empty”.
Thursday, June 12, 2008
Jeff Deskovic
Advocating For Prisoner Re-Entry
Issues And Prison Conditions
The Community Service Society (CSS) is an organization with a 160-year history representing the needs of low income New Yorkers. Their mission statement states the following, “We recognize the challenges facing residents who return to their families and communities after
periods of incarceration. Most striking is the concentration of this population in a handful of neighborhoods in the city. As the rate of incarcerations has increased and recidivism has undermined family stability, it has become clear that these individuals and their families fall within the universe of New Yorkers whose life chances are limited by their lack of economic opportunity and political voice. As a result of our research, we initiated a series of roundtables called the New York Reentry Roundtable, which resulted in a successful Reentry Advocacy
Day in May 2007. CSS recognizes the importance of playing a more direct role in challenging systematic barriers to civic participation facing formerly incarcerated persons. On June 7, 2006, Governor Pataki signed into law a monumental change affecting sentencing in New York, amending the Penal Law to add ‘promotion of successful and productive reentry and reintegration into society’ to the four traditional
goals of deterrence, rehabilitation, retribution, and incapacitation.
This change re-flected a broader movement by advocates, family and community members, and formerly incarcerated individuals who understand that removing unfair barriers faced by people with criminal records trying to meet their most basic needs is crucial to increasing public safety while decreasing public spending on jails and prisons. In a time of budget shortfalls, the following proposals address costly and ineffective sentencing policies, unnecessary criminal justice expenditures, and counter-productive obstacles faced by individuals who have had criminal justice involvement”.
It then goes on to list a variety of proposals, which I will discuss further on. Their primary focus is prisoner re-entry, with some prison condition issues included. Every month, a reentry roundtable meeting is held, in which both concerned citizens, advocates, and organizations,
discuss issues related to the above. Free discussion of ideas, viewpoints, and strategies is encouraged, as is networking.
I became aware of the New York Reentry Roundtable through reading an email flyer about it. I have always wanted to get involved in trying to bring about changes in prison conditions. But because my life has gotten so hectic I haven’t had a chance to do so.
There is a lot of work I have had to do on all fronts since being released after serving the 16 years for a crime I was innocent of, in terms of getting my life in order. Some of those issues include readjustment to being back in the free world, coping with what I went through, trying to re-establish family relations, catching up on technology, and continuing my formal education which was interrupted when Gov. Pataki
cut the funding for college education for prisoners. Additionally, I needed to prepare for the LSATS in an attempt to get into law school, and of course there is my continuing effort to try to develop some social life, while constantly dealing with the financial pressures that many of us face even without having been incarcerated.
I have spent a lot of time working against wrongful convictions and the death penalty, to date having made over 40 presentations and written over 40 articles on related subjects, not to mention numerous television, radio, and print media interviews by means of raising public awareness. Additionally, I have engaged in lobbying activity with numerous State Senators and Assembly persons in an effort to bring about legislation to help prevent wrongful convictions.
The fact I have not had more time to work on prison reform troubles me, because I cannot forget the horrendous conditions that I endured in prison, nor the people that I left behind. People are people, and whether guilty or innocent, they should not be mistreated. I have never believed that people who are guilty of crimes should not be punished, but rather that society has elected to punish by means of depriving people of freedom, not the mistreatment, abuse, lack of Constitutional rights, human rights, and basic human dignity that goes on daily in prison.
Since I am now free and am able to speak about things that I witnessed, and in many cases experienced, and now have a public voice and some credibility because of what happened to me, I feel a moral obligation to try to bring about changes and to eliminate the injustices that I witnessed, even if it is nothing more than by simply exposing things.
When I learned that the Community Service Society deals with some prison issues, I reasoned that I could be one of the voices. I thought that the perspective of someone who saw, first-hand, life in prison would be valuable to lawmakers.
I, too, have experienced the difficulty of reintegrating into society. It is tough enough for me as an exoneree. However, I know that it would be even harder if I had a criminal record to overcome, as do those who are on parole. Nevertheless, many of the difficulties parolees face are
the same as I face. Thus, being involved in advocacy relative to prisoner re-entry issues is a natural extension of the work that I do. In addition to helping the group with the issues at hand, I was looking forward to networking with others who would be willing to float the idea to colleges, universities, high schools, and other community organizations that might permit me to make presentations about wrongful convictions and the death penalty.
On May 20, 2008, I traveled to Albany with members of the Society. Taking public transportation was not only more economical than driving to Albany myself, but provided an opportunity to become acquainted with several members of the organization as well as many other groups.
The groups included: Rights for Imprisoned People With Psychiatric Disabilities, represented by Carlos Sabater, Bronx Defenders, represented by Kate Rubin; Covenant House, represented by Nancy Downing; Center for Employment Opportunities, represented by Mara
Nelson; e Fortune Society, represented by Glenn Martin; Women’s Prison Association, represented by Brenda Pearson; Angus Community, represented by Dianna Diaz; Civic Association, represented by Robert Kinnery; MFY Legal Services, represented by Bernadette Jentsch; Sociology Department at New School for Social Research, represented by Westerly Donahue; Brooklyn Public Library, represented by Nicholas Higgins; Community Access, represented by Judith Gittens; Fifth Avenue Committee, represented by Julia Duvall; Riverside Church Empire Prison, Empire State Pride, represented by Gary Paul Gilbert; Interfaith Coalition of Advocates for Reentry and Employment, represented by Susan Manereck; Prisons in Action Network, represented by Judith Brink; Citizens United for Rehabilitation
of Errants, represented by Amy S. James Oliveras; Correctional Association, Drop the Rock: represented by Caitlin Dunklee. Representing Community Service Society and coordinating Advocacy Day was Gabriel Torres Rivera, himself a former prisoner who is making great contributions to society through the program.
We were given breakfast, and then we were greeted with a short presentation by Assembyman Jeffrion Aubry, which was designed to set the tone for the day. He expressed how important the work was that we were here to do, and that we should not get upset if some lawmakers were not amenable to what we wanted them to do, but instead should remain dignified.
The Issues
Specific issues and proposals were put together. These issues and proposals were what we went to Albany to advocate for. The issues were a combination of prisoner re-entry matters, prison conditions, and incarceration itself. I cannot list all of the issues that we advocated for, due to space constraints. Instead, I will simply go over some of the proposals whose conditions give rise to the need for legislative action in that they are most shocking, and the public is most unlikely to be aware of.
Issues Related To Successful Prisoner Reintegration
When a prisoner returns to prison, everybody loses. There is often another victim and victim’s family who are affected; Society has to bear the burden of the $40,000 a year it takes to incarcerate someone; the offender themselves along with their family. There is the matter of
the loss of tax dollars that the re-offender would otherwise have to pay if they remained free and employed. It therefore makes sense to make the way as easy as possible for the former prisoner to successfully reintegrate. The following issues were advocated for:
• Restoration of Rights of individuals with prior criminal convictions through the passage of the Restoration of Rights Act, which amends Corrections Law 701 and 703 to replace the Certificate of Relief from Disabilities and Certificate of Good Conduct with a Certificate of Restoration with all of the same effects and functions of the existing certificates: The Certificate of Restoration overcomes automatic bars
to voting, employment, licensing, public housing, and any other civil disabilities imposed as a result of a criminal conviction.
It would also amend New York State Human Rights Law (Subdivision 16 of section 296 of the Executive Law) to prohibit a prospective employer from making any inquiry about an applicant’s criminal record until a conditional offer of employment has been made contingent upon a satisfactory criminal background check. The offer could then be withdrawn only if, consistent with Correctional Law, the applicant’s
criminal conviction record bears direct relationship to the duties and responsibilities of the position or hiring the individual poses and unreasonable risk to person’s or property.
• We also advocated for amending existing laws prohibiting individuals with criminal records from working in restaurants, arenas, and convention centers, and to restore discretion in hiring decisions to individual employers.
• We advocated for supporting the Re- Entry Tax Credit (Senate Bill 2956) which would establish a re-entry employment incentive tax credit, providing a $10,000 tax credit to employers who hire individuals released from New York correctional facilities in full time jobs at 140% of the state minimum wage
• We advocated for passage of Assembly bill 5555, which would extend the right to register and vote in any election to individuals who have been released from prison on parole.
• We advocated for legislation prohibiting colleges and universities from banning the applications of formerly incarcerated persons solely based on the criminal record, or to have blanket policies of refusing to consider applications from students with criminal records.
• We advocated for an amendment to the Family Court Act and Domestic Relations Law in relation to setting or modifying child support obligations of incarcerated non-custodial parents so that incarceration is no longer defined as “willful unemployment.”
There must, at some point, come a time at which it is acknowledged by all that an offender has paid their debt to society and that they should be able to fully put it behind them. That means being allowed to work and obtain housing. It is essential to put protections in place, because
there are some who will not do the right thing morally and thus require a law, with teeth to enforce it.
Fully being able to participate in society necessarily means voting. To strip a person of their ability to get housing, work, and to vote is in many ways to render them powerless. To permanently disenfranchise people, simply because of one mistake, seems an excessive punishment, particularly when someone has remained crime free for a long time.
Issues Related To Prison Conditions
Most prisoners will eventually return to society. If they are mistreated when they are incarcerated, rehabilitation is less likely, and it is probable that they will return to society full of rage, which makes their committing a crime more likely. In addition, mistreating people and not giving them basic human dignity while they are in prison makes society in many ways no better than the offender. Therefore, our
agenda involved improving prison conditions.
The following issues were therefore advocated for:
• Assembly Bill 3787, which would require the New York State Department of Health to oversee and monitor HIV and Hepatitis C care in prison. As I witnessed myself personally while in prison, the medical care allotted is substandard, and therefore oversight is needed.
• Restoration of eligibility of prisoners for financial aid for college education
• Study and develop a plan for improving education in state prison
Issues Related To Incarceration
Incarcerating prisoners cost $40,000 a year. Therefore, when it is not necessary, or the length of a sentence is not necessary, it should be avoided. The issues we advocated for in this arena included: Assembly bill 04342A, which includes:
• Restoration of judicial discretion in all drug cases
• Expansion of community based drug treatment and other alternative to incarceration programs
• Reduction in lengths of sentences for all drug cases;
• Retroactive sentencing relief for all prisoners currently incarcerated under the Rockefeller era Drug Laws
It is absurd when those who are imprisoned for drug offenses-whether as users or sellers, while not excusable, should not result in sentences greater than that given to people who commit violent crime. Drug use is a disease which requires treatment in drug rehabs, not imprisonment. The Rockefeller Drug Law, which I wrote about in prior articles, is particularly draconian.
• We also advocated for S.3164, which would extend merit time release eligibility to domestic violence survivors incarcerated for committing violent crimes. Being a victim of domestic abuse certainly should be a mitigating circumstance. The abuse often has the effect of turning law abiding spouses into traumatized, desperate women who perceive violence to be their only way out. There should be a contrast of them with those who commit murder under different circumstance, and that difference should be reflected in the law.
The Way Forward
I found becoming involved in these issues very rewarding. I want to see people successfully reintegrate into society, and lead productive, crime-free lives. Re-entering society after a long period of incarceration is not easy, particularly with the obstacles that being on parole and having a criminal record present.
If we, as a society, place unreasonable barriers to reintegration and the ability to get meaningful employment, we are setting the stage for ex-offenders to give up trying to lead a law-abiding life and instead resorting back to crime. That often results in more victims, and the financial
cost to incarcerate, and all of the human costs associated thereto.
What legitimate interest does society have in preventing employment or placing barriers to obtaining housing? Therefore, on a legislative level, the laws should be changed. On an individual level, I encourage business owners, employers, and managers to give deserving ex-inmates
who have demonstrated by education and good conduct that they have turned their lives around, a chance by offering them meaningful jobs at a sustainable wage.
In that sense, we all have a moral obligation. If that approach is rejected, and businesses have a blanket policy of not hiring ex-prisoners, then they have a small hand, morally, when an ex-offender succumbs to temptation and returns to crime. Alternatives to incarceration, whenever
possible, should be sought, and when incarceration is deemed necessary, it should be the minimal amount needed to promote justice. Giving drug offenders Draconian sentencing, such as in the Rockefeller Drug Law, only serves to promote rage, thus destroying lives that could otherwise be crime-free and productive, and destroys families. Similarly, allowing abuse in prison and providing substandard medical care, both of which I witnessed on a regular basis, only serves to create resentment and rage, while morally lowering society to beneath the level of the very lawbreakers they seek to punish, while at the same time holding out a very poor role model.
I have long advocated for a restoration of college in prison, and I renew that call, because the recidivism rate is much lower for those who are allowed such education. It sets the stage for a future that includes hope, and being able to get jobs other than the dead-end variety. Vocational programs should be upgraded to include the current methods of doing things in various trades, taught by instructors who care. Similarly,
when released, former prisoners should not be denied college education.
The next roundtable discussion is scheduled for Wednesday, June 11, 2008, from 1-3pm. The address is 105 East 22nd Street, and Park Avenue. The guest speaker is, Lynn Goodman, Statewide Director of Reentry Services. The roundtable discussions are open to anyone who wants to attend. I personally encourage regular, everyday citizens, to attend, and get involved to the extent that you are comfortable.
You never know, one day it could be a family member, who, in a moment of bad judgment, breaks the law, ends up in prison, and then must face the reintegration issues. Wouldn’t you want the transition from prison to successful re-entry to be as easy as possible?
Advocating For Prisoner Re-Entry
Issues And Prison Conditions
The Community Service Society (CSS) is an organization with a 160-year history representing the needs of low income New Yorkers. Their mission statement states the following, “We recognize the challenges facing residents who return to their families and communities after
periods of incarceration. Most striking is the concentration of this population in a handful of neighborhoods in the city. As the rate of incarcerations has increased and recidivism has undermined family stability, it has become clear that these individuals and their families fall within the universe of New Yorkers whose life chances are limited by their lack of economic opportunity and political voice. As a result of our research, we initiated a series of roundtables called the New York Reentry Roundtable, which resulted in a successful Reentry Advocacy
Day in May 2007. CSS recognizes the importance of playing a more direct role in challenging systematic barriers to civic participation facing formerly incarcerated persons. On June 7, 2006, Governor Pataki signed into law a monumental change affecting sentencing in New York, amending the Penal Law to add ‘promotion of successful and productive reentry and reintegration into society’ to the four traditional
goals of deterrence, rehabilitation, retribution, and incapacitation.
This change re-flected a broader movement by advocates, family and community members, and formerly incarcerated individuals who understand that removing unfair barriers faced by people with criminal records trying to meet their most basic needs is crucial to increasing public safety while decreasing public spending on jails and prisons. In a time of budget shortfalls, the following proposals address costly and ineffective sentencing policies, unnecessary criminal justice expenditures, and counter-productive obstacles faced by individuals who have had criminal justice involvement”.
It then goes on to list a variety of proposals, which I will discuss further on. Their primary focus is prisoner re-entry, with some prison condition issues included. Every month, a reentry roundtable meeting is held, in which both concerned citizens, advocates, and organizations,
discuss issues related to the above. Free discussion of ideas, viewpoints, and strategies is encouraged, as is networking.
I became aware of the New York Reentry Roundtable through reading an email flyer about it. I have always wanted to get involved in trying to bring about changes in prison conditions. But because my life has gotten so hectic I haven’t had a chance to do so.
There is a lot of work I have had to do on all fronts since being released after serving the 16 years for a crime I was innocent of, in terms of getting my life in order. Some of those issues include readjustment to being back in the free world, coping with what I went through, trying to re-establish family relations, catching up on technology, and continuing my formal education which was interrupted when Gov. Pataki
cut the funding for college education for prisoners. Additionally, I needed to prepare for the LSATS in an attempt to get into law school, and of course there is my continuing effort to try to develop some social life, while constantly dealing with the financial pressures that many of us face even without having been incarcerated.
I have spent a lot of time working against wrongful convictions and the death penalty, to date having made over 40 presentations and written over 40 articles on related subjects, not to mention numerous television, radio, and print media interviews by means of raising public awareness. Additionally, I have engaged in lobbying activity with numerous State Senators and Assembly persons in an effort to bring about legislation to help prevent wrongful convictions.
The fact I have not had more time to work on prison reform troubles me, because I cannot forget the horrendous conditions that I endured in prison, nor the people that I left behind. People are people, and whether guilty or innocent, they should not be mistreated. I have never believed that people who are guilty of crimes should not be punished, but rather that society has elected to punish by means of depriving people of freedom, not the mistreatment, abuse, lack of Constitutional rights, human rights, and basic human dignity that goes on daily in prison.
Since I am now free and am able to speak about things that I witnessed, and in many cases experienced, and now have a public voice and some credibility because of what happened to me, I feel a moral obligation to try to bring about changes and to eliminate the injustices that I witnessed, even if it is nothing more than by simply exposing things.
When I learned that the Community Service Society deals with some prison issues, I reasoned that I could be one of the voices. I thought that the perspective of someone who saw, first-hand, life in prison would be valuable to lawmakers.
I, too, have experienced the difficulty of reintegrating into society. It is tough enough for me as an exoneree. However, I know that it would be even harder if I had a criminal record to overcome, as do those who are on parole. Nevertheless, many of the difficulties parolees face are
the same as I face. Thus, being involved in advocacy relative to prisoner re-entry issues is a natural extension of the work that I do. In addition to helping the group with the issues at hand, I was looking forward to networking with others who would be willing to float the idea to colleges, universities, high schools, and other community organizations that might permit me to make presentations about wrongful convictions and the death penalty.
On May 20, 2008, I traveled to Albany with members of the Society. Taking public transportation was not only more economical than driving to Albany myself, but provided an opportunity to become acquainted with several members of the organization as well as many other groups.
The groups included: Rights for Imprisoned People With Psychiatric Disabilities, represented by Carlos Sabater, Bronx Defenders, represented by Kate Rubin; Covenant House, represented by Nancy Downing; Center for Employment Opportunities, represented by Mara
Nelson; e Fortune Society, represented by Glenn Martin; Women’s Prison Association, represented by Brenda Pearson; Angus Community, represented by Dianna Diaz; Civic Association, represented by Robert Kinnery; MFY Legal Services, represented by Bernadette Jentsch; Sociology Department at New School for Social Research, represented by Westerly Donahue; Brooklyn Public Library, represented by Nicholas Higgins; Community Access, represented by Judith Gittens; Fifth Avenue Committee, represented by Julia Duvall; Riverside Church Empire Prison, Empire State Pride, represented by Gary Paul Gilbert; Interfaith Coalition of Advocates for Reentry and Employment, represented by Susan Manereck; Prisons in Action Network, represented by Judith Brink; Citizens United for Rehabilitation
of Errants, represented by Amy S. James Oliveras; Correctional Association, Drop the Rock: represented by Caitlin Dunklee. Representing Community Service Society and coordinating Advocacy Day was Gabriel Torres Rivera, himself a former prisoner who is making great contributions to society through the program.
We were given breakfast, and then we were greeted with a short presentation by Assembyman Jeffrion Aubry, which was designed to set the tone for the day. He expressed how important the work was that we were here to do, and that we should not get upset if some lawmakers were not amenable to what we wanted them to do, but instead should remain dignified.
The Issues
Specific issues and proposals were put together. These issues and proposals were what we went to Albany to advocate for. The issues were a combination of prisoner re-entry matters, prison conditions, and incarceration itself. I cannot list all of the issues that we advocated for, due to space constraints. Instead, I will simply go over some of the proposals whose conditions give rise to the need for legislative action in that they are most shocking, and the public is most unlikely to be aware of.
Issues Related To Successful Prisoner Reintegration
When a prisoner returns to prison, everybody loses. There is often another victim and victim’s family who are affected; Society has to bear the burden of the $40,000 a year it takes to incarcerate someone; the offender themselves along with their family. There is the matter of
the loss of tax dollars that the re-offender would otherwise have to pay if they remained free and employed. It therefore makes sense to make the way as easy as possible for the former prisoner to successfully reintegrate. The following issues were advocated for:
• Restoration of Rights of individuals with prior criminal convictions through the passage of the Restoration of Rights Act, which amends Corrections Law 701 and 703 to replace the Certificate of Relief from Disabilities and Certificate of Good Conduct with a Certificate of Restoration with all of the same effects and functions of the existing certificates: The Certificate of Restoration overcomes automatic bars
to voting, employment, licensing, public housing, and any other civil disabilities imposed as a result of a criminal conviction.
It would also amend New York State Human Rights Law (Subdivision 16 of section 296 of the Executive Law) to prohibit a prospective employer from making any inquiry about an applicant’s criminal record until a conditional offer of employment has been made contingent upon a satisfactory criminal background check. The offer could then be withdrawn only if, consistent with Correctional Law, the applicant’s
criminal conviction record bears direct relationship to the duties and responsibilities of the position or hiring the individual poses and unreasonable risk to person’s or property.
• We also advocated for amending existing laws prohibiting individuals with criminal records from working in restaurants, arenas, and convention centers, and to restore discretion in hiring decisions to individual employers.
• We advocated for supporting the Re- Entry Tax Credit (Senate Bill 2956) which would establish a re-entry employment incentive tax credit, providing a $10,000 tax credit to employers who hire individuals released from New York correctional facilities in full time jobs at 140% of the state minimum wage
• We advocated for passage of Assembly bill 5555, which would extend the right to register and vote in any election to individuals who have been released from prison on parole.
• We advocated for legislation prohibiting colleges and universities from banning the applications of formerly incarcerated persons solely based on the criminal record, or to have blanket policies of refusing to consider applications from students with criminal records.
• We advocated for an amendment to the Family Court Act and Domestic Relations Law in relation to setting or modifying child support obligations of incarcerated non-custodial parents so that incarceration is no longer defined as “willful unemployment.”
There must, at some point, come a time at which it is acknowledged by all that an offender has paid their debt to society and that they should be able to fully put it behind them. That means being allowed to work and obtain housing. It is essential to put protections in place, because
there are some who will not do the right thing morally and thus require a law, with teeth to enforce it.
Fully being able to participate in society necessarily means voting. To strip a person of their ability to get housing, work, and to vote is in many ways to render them powerless. To permanently disenfranchise people, simply because of one mistake, seems an excessive punishment, particularly when someone has remained crime free for a long time.
Issues Related To Prison Conditions
Most prisoners will eventually return to society. If they are mistreated when they are incarcerated, rehabilitation is less likely, and it is probable that they will return to society full of rage, which makes their committing a crime more likely. In addition, mistreating people and not giving them basic human dignity while they are in prison makes society in many ways no better than the offender. Therefore, our
agenda involved improving prison conditions.
The following issues were therefore advocated for:
• Assembly Bill 3787, which would require the New York State Department of Health to oversee and monitor HIV and Hepatitis C care in prison. As I witnessed myself personally while in prison, the medical care allotted is substandard, and therefore oversight is needed.
• Restoration of eligibility of prisoners for financial aid for college education
• Study and develop a plan for improving education in state prison
Issues Related To Incarceration
Incarcerating prisoners cost $40,000 a year. Therefore, when it is not necessary, or the length of a sentence is not necessary, it should be avoided. The issues we advocated for in this arena included: Assembly bill 04342A, which includes:
• Restoration of judicial discretion in all drug cases
• Expansion of community based drug treatment and other alternative to incarceration programs
• Reduction in lengths of sentences for all drug cases;
• Retroactive sentencing relief for all prisoners currently incarcerated under the Rockefeller era Drug Laws
It is absurd when those who are imprisoned for drug offenses-whether as users or sellers, while not excusable, should not result in sentences greater than that given to people who commit violent crime. Drug use is a disease which requires treatment in drug rehabs, not imprisonment. The Rockefeller Drug Law, which I wrote about in prior articles, is particularly draconian.
• We also advocated for S.3164, which would extend merit time release eligibility to domestic violence survivors incarcerated for committing violent crimes. Being a victim of domestic abuse certainly should be a mitigating circumstance. The abuse often has the effect of turning law abiding spouses into traumatized, desperate women who perceive violence to be their only way out. There should be a contrast of them with those who commit murder under different circumstance, and that difference should be reflected in the law.
The Way Forward
I found becoming involved in these issues very rewarding. I want to see people successfully reintegrate into society, and lead productive, crime-free lives. Re-entering society after a long period of incarceration is not easy, particularly with the obstacles that being on parole and having a criminal record present.
If we, as a society, place unreasonable barriers to reintegration and the ability to get meaningful employment, we are setting the stage for ex-offenders to give up trying to lead a law-abiding life and instead resorting back to crime. That often results in more victims, and the financial
cost to incarcerate, and all of the human costs associated thereto.
What legitimate interest does society have in preventing employment or placing barriers to obtaining housing? Therefore, on a legislative level, the laws should be changed. On an individual level, I encourage business owners, employers, and managers to give deserving ex-inmates
who have demonstrated by education and good conduct that they have turned their lives around, a chance by offering them meaningful jobs at a sustainable wage.
In that sense, we all have a moral obligation. If that approach is rejected, and businesses have a blanket policy of not hiring ex-prisoners, then they have a small hand, morally, when an ex-offender succumbs to temptation and returns to crime. Alternatives to incarceration, whenever
possible, should be sought, and when incarceration is deemed necessary, it should be the minimal amount needed to promote justice. Giving drug offenders Draconian sentencing, such as in the Rockefeller Drug Law, only serves to promote rage, thus destroying lives that could otherwise be crime-free and productive, and destroys families. Similarly, allowing abuse in prison and providing substandard medical care, both of which I witnessed on a regular basis, only serves to create resentment and rage, while morally lowering society to beneath the level of the very lawbreakers they seek to punish, while at the same time holding out a very poor role model.
I have long advocated for a restoration of college in prison, and I renew that call, because the recidivism rate is much lower for those who are allowed such education. It sets the stage for a future that includes hope, and being able to get jobs other than the dead-end variety. Vocational programs should be upgraded to include the current methods of doing things in various trades, taught by instructors who care. Similarly,
when released, former prisoners should not be denied college education.
The next roundtable discussion is scheduled for Wednesday, June 11, 2008, from 1-3pm. The address is 105 East 22nd Street, and Park Avenue. The guest speaker is, Lynn Goodman, Statewide Director of Reentry Services. The roundtable discussions are open to anyone who wants to attend. I personally encourage regular, everyday citizens, to attend, and get involved to the extent that you are comfortable.
You never know, one day it could be a family member, who, in a moment of bad judgment, breaks the law, ends up in prison, and then must face the reintegration issues. Wouldn’t you want the transition from prison to successful re-entry to be as easy as possible?
Thursday, June 12, 2008
Catherine Wilson, Bureau Chief
Northern Westchester
What Does the County
Board of Legislators Do?
As part of our series on how local corporations, organizations, and government agencies are addressing the tightening economic and ecological
problems facing our community, The Guardian asked the Westchester Board of Legislators what steps they were taking. We wanted to know if the Board setting a good example for our County and local residents to follow?
The Guardian attended a recent meeting of the Board on May 27, and spoke with several members about the issues they are addressing on behalf of local residents.
The agenda for the May 27th meeting listed eighty items, from commission reports to proposed legislation to County Board and Commission appointments. However, over half of the Board’s agenda for this meeting consisted of appointments: six reappointments to the County’s Airport Advisory Board, six reappointments to the County’s Hispanic Advisory Board, six reappointments and one new appointment to the County’s Council for Seniors, two reappointments each to the Human Rights Commission, the Domestic Violence Council, as well as the Electrical Licensing Board, three reappointments to the Fire Advisory Board, five reappointments to the Youth Board, and one reappointment each to the Board Of Plumbing Examiners, the Emergency Medical Services Advisory Board, the Taxi and Limousine Commission, the Professional Prequalification Board, the Traffic Safety Board, the Transportation Board, the African American Advisory Board, and the Board of Ethics. Only two of the appointments on the Board’s agenda were not for other boards and commissions – appointing the Chief Information Officer for Westchester County and reappointing the Commissioner for the Department of Social Services.
Almost all of the appointments, both to County jobs and to the boards and commissions, were for individuals proposed by the County Executive’s Office. Only one appointment, for two members to the Fish and Wildlife Board, was actually initiated by a member of the Board Of Legislators. Therefore, half of the issues before the County Board at this meeting were to approve selections submitted by the County Executive’s Office.
Of the forty-five appointments on the Board’s agenda, only one of those appointments was briefly discussed at the meeting in our presence. Many of the other appointments had been on the Board’s agenda for months – some dating as far back as January of this year. Not only was half of the Board’s official agenda devoted to appointments to other boards, but they are appointments that had already been selected by the County Executive’s Of-fice, and had languished, in some cases, for months.
Political scientists argue that this process represents the checks and balances of government. However, Westchester County now has the distinction of having the highest property taxes in the nation. Therefore, local taxpayers could reasonably argue that the existence of all of these commissions, boards, and councils, and the duplicate levels of approvals and multiple meetings needed to adopt the plethora of these appointments, cost far more than what county residents can afford.
The other thirty-five items on the agenda were a mixed bag of issues. Of the total, fifteen merely addressed correspondence from other sources. One board member, George Oros, submitted correspondence “requesting the Board use the New York State Penal Law with regard to the issuance of bad checks as a guide to establish a Westchester County Law”.
Despite the fact that the New York State laws governing this issue would render any county law moot and superfluous, this item has been on the Board’s official agenda since March. Some of the correspondence before the Board came from constituents and local groups – such
as the North White Plains Fire Company, with regard to tax credits for local volunteer firefighters. And some correspondence came
from the Board itself – such as the request from the Committee on Legislation for prompt action on a proposed countywide property revaluation.
Ironically, that item has been on the Board’s agenda since May 5th. Given that the Board is simultaneously considering the establishment of
a Westchester County Property Valuation Commission, and other boards and commissions are awaiting appointments for several
months, the request for “prompt” action here may need to be defined.
However, the remainder of the issues before the Board did address serious concerns of County residents. In response to the floods in Mamaroneck last year, the Board was seeking to establish a Drainage and Flood Management District and Agency. The Board has addressed
other flooding and storm-water issues before. In 2006 it adopted an intermunicipal agreement with New York City for a watershed management plan for the Bronx River.
The Board is also currently proposing developing a “silver alert” system for missing senior citizens, similar to the Amber alerts for missing children. As The Guardian noted in December, 2007, the number of individuals with memory-related problems in our area is dramatically increasing as our population ages.
On March 17, the Board’s Committee on Environment and Energy considered a proposal by the County Executive to “establish a program to allow reimbursement for pumpout and inspection of septic systems”. That proposal was discussed at the May 27th meeting. The Board
is proposing setting aside $1,099,000 per year for the next four years for reimbursements to local owners of specific properties for routine
septage removal and inspection services. Legislator Judith Myers noted that “residents who have septics can no longer say they are getting nothing from their sewer taxes.” The Environment and Energy Committee noted that the program will also address properties with failed septic systems.
Thomas Abinanti, the chair of the Environment and Energy Committee, provided The Guardian with a list of the issues the committee is currently addressing. These issues include:
• Motor Vehicle Idling Law – addresses both environmental and energy issues by limiting idling time of motor vehicles.
• Lawn Fertilizer Application and Sale – to establish regulations for lawn fertilizer application and sale.
• Green Building Requirements – require certain county public works projects to conform to green building requirements.
• Plastic Bags Recycling Program – proposed law to establish an at-store recycling program for plastic bags.
However, like the Board of Legislator’s Agenda, many of the items referred by the Environment and Energy Committee, on their recent report, were correspondence and newspaper articles. Under the caption of “Flooding”, the committee forwarded an article entitled “
Counties Worry About Funding For Stormwater Cleanup.” Yet the Committee noted in its report for the 2006 – 2007 term that it had already “approved legislation to accept New York State grant monies” for its stormwater programs, indicating no such funding difficulties. Of the forty items on the Committee’s active list for May, 2008, over 20 items were either correspondence, newspaper articles, or copies of reports or resolutions from local municipalities or agencies.
Given the ongoing scrutiny of the financial affairs of the County Board of Legislators, it is reasonable for local residents to ask if he Board
should be spending time forwarding correspondence and reapproving appointments selected by the County Executive or proposing legislation that is better addressed, or even already addressed, at the state level.
Does Westchester County really need to spend time and money to enact a local law to “prohibit the sale of shark n soup and other shark-derived products” as proposed by Mr. Abinanti, when issues concerning these products are handled at the Federal level by the Food and Drug Administration?
Do we need additional laws at the county level “prohibiting, and establishing fines for, hosting, allowing, entertaining, organizing, permitting,
or suffering a party, gathering or event where minors are present and alcoholic beverages are being consumed by a minor” as proposed by both James Maisano and Vito Pinto when New York State already has laws governing alcohol and minors?
New York State has 62 counties – do we really want 62 different laws on each and every legal issue? If so, then what do we need Albany for? Should Westchester County be making any laws at all? In the kick-off of this series of articles, The Guardian asked “What Sacrifices Our Leaders Should Be Making”, reasoning that local residents should not be making sacrifices to deal with the energy, environmental, and economic issues facing our communities, if the leaders in our midst were not doing likewise. Most local residents make extreme sacrifices to pay the extraordinarily high level of local property taxes; taxes that are used to pay the salaries of county employees, including the Board of Legislators and their staff.
Given the high level of our local property taxes, one of the issues the Board should be addressing is its own existence. Does Westchester County really need 17 legislators? Can that number be cut in at least half and the support staff and office space reduced accordingly? Before any issues are addressed by the Board, shouldn’t they be reviewed to determine if they are already covered by other state and federal laws?
Even the issue of the “silver alert” system could be handled by one of the County’s Albany representatives so that it could be established statewide using the same system already in place for the Amber alerts? Recent events have also revealed that a member of the Board’s support staff charged considerable personal expenses to the county and its taxpayers. This development demonstrates a disturbing lack of internal controls by both the Board and the County government.
Where were the County auditors? Why did no one perform this basic audit of the Board and its staff? Every major business and organization
reviews the expense reports of their personnel in detail before they are reimbursed in accordance with Federal laws, notably Sarbanes-Oxley.
In addition, businesses and organizations are also required to conduct regular audits of their finances, including their expense reimbursements to check for fraud, collusion, and plain stupidity. Yet the Board of Legislator’s employee’s expense reports were allegedly submitted without proper documentation. How can an expense report for a County employee be approved without receipts and supporting documentation justifying the expenses as necessary and reasonable?
And if those expenses are approved within one branch of our County government, why isn’t another branch, like the financial department within the County Executive’s Office, reviewing and auditing those reimbursements? Where are the “Checks and Balances” (what auditors refer to as “internal controls”)? If the Board of Legislators has to approve the appointments of the County Executive as a double-check of
powers, then why isn’t the County Executive double-checking the Board’s spending of our tax dollars?
The Guardian is currently attempting to uncover exactly how the taxdollars of local residents are accounted for at all levels of our county government. On May 14th, we made a Freedom of Information (FOIL) request to the County’s Budget Office for copies of all expense reports and budgets for all department heads. Despite New York State laws that state that all such requests must be acknowledged within
5 business days, The Guardian has yet to receive such an acknowledgement of our request from the County.
Why? What else is the County covering-up? What else don’t they want the taxpayers to see? How many other county employees are charging personal expenses to the taxpayers, or using county equipment and resources for their personal needs? And, who is looking out for the hard-earned tax dollars of local residents? If non-business expenses can get approved and reimbursed by the County, it raises the question of what else is going on. Are there “no-show employees” on the books? Do county employees have conflicts-of-interest with organizations/
individuals they are doing official business with? Are county employees receiving or awarding kickbacks, gifts, or other benefits as a result of their of-ficial positions?
The Guardian is therefore expanding the scope of this series of articles to go beyond the environmental, energy, and economic issues we initially raised to include these questions. We will now expand our FOIL request to Westchester County government to include requests for copies of all recent audit reports.
The focus of this series will be the same: why should local residents have to struggle with their finances, rising gas prices and lowering property values, local environmental and flooding concerns, and conserving energy, if none of our leaders (in business, government) are doing likewise? Why should local residents have to struggle just to support “business as usual” from our leaders?
Catherine Wilson, Bureau Chief
Northern Westchester
What Does the County
Board of Legislators Do?
As part of our series on how local corporations, organizations, and government agencies are addressing the tightening economic and ecological
problems facing our community, The Guardian asked the Westchester Board of Legislators what steps they were taking. We wanted to know if the Board setting a good example for our County and local residents to follow?
The Guardian attended a recent meeting of the Board on May 27, and spoke with several members about the issues they are addressing on behalf of local residents.
The agenda for the May 27th meeting listed eighty items, from commission reports to proposed legislation to County Board and Commission appointments. However, over half of the Board’s agenda for this meeting consisted of appointments: six reappointments to the County’s Airport Advisory Board, six reappointments to the County’s Hispanic Advisory Board, six reappointments and one new appointment to the County’s Council for Seniors, two reappointments each to the Human Rights Commission, the Domestic Violence Council, as well as the Electrical Licensing Board, three reappointments to the Fire Advisory Board, five reappointments to the Youth Board, and one reappointment each to the Board Of Plumbing Examiners, the Emergency Medical Services Advisory Board, the Taxi and Limousine Commission, the Professional Prequalification Board, the Traffic Safety Board, the Transportation Board, the African American Advisory Board, and the Board of Ethics. Only two of the appointments on the Board’s agenda were not for other boards and commissions – appointing the Chief Information Officer for Westchester County and reappointing the Commissioner for the Department of Social Services.
Almost all of the appointments, both to County jobs and to the boards and commissions, were for individuals proposed by the County Executive’s Office. Only one appointment, for two members to the Fish and Wildlife Board, was actually initiated by a member of the Board Of Legislators. Therefore, half of the issues before the County Board at this meeting were to approve selections submitted by the County Executive’s Office.
Of the forty-five appointments on the Board’s agenda, only one of those appointments was briefly discussed at the meeting in our presence. Many of the other appointments had been on the Board’s agenda for months – some dating as far back as January of this year. Not only was half of the Board’s official agenda devoted to appointments to other boards, but they are appointments that had already been selected by the County Executive’s Of-fice, and had languished, in some cases, for months.
Political scientists argue that this process represents the checks and balances of government. However, Westchester County now has the distinction of having the highest property taxes in the nation. Therefore, local taxpayers could reasonably argue that the existence of all of these commissions, boards, and councils, and the duplicate levels of approvals and multiple meetings needed to adopt the plethora of these appointments, cost far more than what county residents can afford.
The other thirty-five items on the agenda were a mixed bag of issues. Of the total, fifteen merely addressed correspondence from other sources. One board member, George Oros, submitted correspondence “requesting the Board use the New York State Penal Law with regard to the issuance of bad checks as a guide to establish a Westchester County Law”.
Despite the fact that the New York State laws governing this issue would render any county law moot and superfluous, this item has been on the Board’s official agenda since March. Some of the correspondence before the Board came from constituents and local groups – such
as the North White Plains Fire Company, with regard to tax credits for local volunteer firefighters. And some correspondence came
from the Board itself – such as the request from the Committee on Legislation for prompt action on a proposed countywide property revaluation.
Ironically, that item has been on the Board’s agenda since May 5th. Given that the Board is simultaneously considering the establishment of
a Westchester County Property Valuation Commission, and other boards and commissions are awaiting appointments for several
months, the request for “prompt” action here may need to be defined.
However, the remainder of the issues before the Board did address serious concerns of County residents. In response to the floods in Mamaroneck last year, the Board was seeking to establish a Drainage and Flood Management District and Agency. The Board has addressed
other flooding and storm-water issues before. In 2006 it adopted an intermunicipal agreement with New York City for a watershed management plan for the Bronx River.
The Board is also currently proposing developing a “silver alert” system for missing senior citizens, similar to the Amber alerts for missing children. As The Guardian noted in December, 2007, the number of individuals with memory-related problems in our area is dramatically increasing as our population ages.
On March 17, the Board’s Committee on Environment and Energy considered a proposal by the County Executive to “establish a program to allow reimbursement for pumpout and inspection of septic systems”. That proposal was discussed at the May 27th meeting. The Board
is proposing setting aside $1,099,000 per year for the next four years for reimbursements to local owners of specific properties for routine
septage removal and inspection services. Legislator Judith Myers noted that “residents who have septics can no longer say they are getting nothing from their sewer taxes.” The Environment and Energy Committee noted that the program will also address properties with failed septic systems.
Thomas Abinanti, the chair of the Environment and Energy Committee, provided The Guardian with a list of the issues the committee is currently addressing. These issues include:
• Motor Vehicle Idling Law – addresses both environmental and energy issues by limiting idling time of motor vehicles.
• Lawn Fertilizer Application and Sale – to establish regulations for lawn fertilizer application and sale.
• Green Building Requirements – require certain county public works projects to conform to green building requirements.
• Plastic Bags Recycling Program – proposed law to establish an at-store recycling program for plastic bags.
However, like the Board of Legislator’s Agenda, many of the items referred by the Environment and Energy Committee, on their recent report, were correspondence and newspaper articles. Under the caption of “Flooding”, the committee forwarded an article entitled “
Counties Worry About Funding For Stormwater Cleanup.” Yet the Committee noted in its report for the 2006 – 2007 term that it had already “approved legislation to accept New York State grant monies” for its stormwater programs, indicating no such funding difficulties. Of the forty items on the Committee’s active list for May, 2008, over 20 items were either correspondence, newspaper articles, or copies of reports or resolutions from local municipalities or agencies.
Given the ongoing scrutiny of the financial affairs of the County Board of Legislators, it is reasonable for local residents to ask if he Board
should be spending time forwarding correspondence and reapproving appointments selected by the County Executive or proposing legislation that is better addressed, or even already addressed, at the state level.
Does Westchester County really need to spend time and money to enact a local law to “prohibit the sale of shark n soup and other shark-derived products” as proposed by Mr. Abinanti, when issues concerning these products are handled at the Federal level by the Food and Drug Administration?
Do we need additional laws at the county level “prohibiting, and establishing fines for, hosting, allowing, entertaining, organizing, permitting,
or suffering a party, gathering or event where minors are present and alcoholic beverages are being consumed by a minor” as proposed by both James Maisano and Vito Pinto when New York State already has laws governing alcohol and minors?
New York State has 62 counties – do we really want 62 different laws on each and every legal issue? If so, then what do we need Albany for? Should Westchester County be making any laws at all? In the kick-off of this series of articles, The Guardian asked “What Sacrifices Our Leaders Should Be Making”, reasoning that local residents should not be making sacrifices to deal with the energy, environmental, and economic issues facing our communities, if the leaders in our midst were not doing likewise. Most local residents make extreme sacrifices to pay the extraordinarily high level of local property taxes; taxes that are used to pay the salaries of county employees, including the Board of Legislators and their staff.
Given the high level of our local property taxes, one of the issues the Board should be addressing is its own existence. Does Westchester County really need 17 legislators? Can that number be cut in at least half and the support staff and office space reduced accordingly? Before any issues are addressed by the Board, shouldn’t they be reviewed to determine if they are already covered by other state and federal laws?
Even the issue of the “silver alert” system could be handled by one of the County’s Albany representatives so that it could be established statewide using the same system already in place for the Amber alerts? Recent events have also revealed that a member of the Board’s support staff charged considerable personal expenses to the county and its taxpayers. This development demonstrates a disturbing lack of internal controls by both the Board and the County government.
Where were the County auditors? Why did no one perform this basic audit of the Board and its staff? Every major business and organization
reviews the expense reports of their personnel in detail before they are reimbursed in accordance with Federal laws, notably Sarbanes-Oxley.
In addition, businesses and organizations are also required to conduct regular audits of their finances, including their expense reimbursements to check for fraud, collusion, and plain stupidity. Yet the Board of Legislator’s employee’s expense reports were allegedly submitted without proper documentation. How can an expense report for a County employee be approved without receipts and supporting documentation justifying the expenses as necessary and reasonable?
And if those expenses are approved within one branch of our County government, why isn’t another branch, like the financial department within the County Executive’s Office, reviewing and auditing those reimbursements? Where are the “Checks and Balances” (what auditors refer to as “internal controls”)? If the Board of Legislators has to approve the appointments of the County Executive as a double-check of
powers, then why isn’t the County Executive double-checking the Board’s spending of our tax dollars?
The Guardian is currently attempting to uncover exactly how the taxdollars of local residents are accounted for at all levels of our county government. On May 14th, we made a Freedom of Information (FOIL) request to the County’s Budget Office for copies of all expense reports and budgets for all department heads. Despite New York State laws that state that all such requests must be acknowledged within
5 business days, The Guardian has yet to receive such an acknowledgement of our request from the County.
Why? What else is the County covering-up? What else don’t they want the taxpayers to see? How many other county employees are charging personal expenses to the taxpayers, or using county equipment and resources for their personal needs? And, who is looking out for the hard-earned tax dollars of local residents? If non-business expenses can get approved and reimbursed by the County, it raises the question of what else is going on. Are there “no-show employees” on the books? Do county employees have conflicts-of-interest with organizations/
individuals they are doing official business with? Are county employees receiving or awarding kickbacks, gifts, or other benefits as a result of their of-ficial positions?
The Guardian is therefore expanding the scope of this series of articles to go beyond the environmental, energy, and economic issues we initially raised to include these questions. We will now expand our FOIL request to Westchester County government to include requests for copies of all recent audit reports.
The focus of this series will be the same: why should local residents have to struggle with their finances, rising gas prices and lowering property values, local environmental and flooding concerns, and conserving energy, if none of our leaders (in business, government) are doing likewise? Why should local residents have to struggle just to support “business as usual” from our leaders?
Thursday, June 12, 2008
Effort To Eliminate County
Last Monday night, June 2, about 85 Westchester taxpayers showed up at Greenburgh Town Hall to discuss specific ways in which the movement to abolish County Government, and with it probably half of a nearly $2 billion budget, might move forward, as well as how they might assist. Approximately 40 individuals signed up to serve on one, or more, of the six committees proposed and approved by a majority of those present.
Those committees include:
1. A Bi-Partisan Budget Committee, to study the County Budget, specifically searching for duplication of services otherwise provided by municipal and/or state government;
2. A Research Committee, to discover and evaluate what it was that Connecticut residents did to eliminate County government some 40 years ago;
3. A Legal Committee, consisting mainly of lawyers who will advise the group as to what legislative action would be needed to abolish Westchester County government;
4. A Marketing Committee, to carry the group’s message out to the community;
5. A Website Committee, to establish an Internet website;
6. A Funding Committee, to engage in fundraising and other activities to insure the solvency of the operation.
Reached the following day, Paul Feiner indicated that he was very pleased with the turnout, but especially pleased with the number of individuals who enthusiastically volunteered to put their professional experience and energy to work on the various committees.
Asked about a published report that County Executive Andy Spano was amused by news of the group’s second meeting, Feiner responded, “The County Executive’s Office may not be taking this movement very seriously right now, but momentum is building; people are not very happy with the abuses of taxpayer dollars and the public trust. In time, County politicians will be taking us very seriously.”
Feiner was alluding to disclosures of abusive spending by Gary Kriss, a $149,000-per-year “aide” to the County Legislature’s Chair, Bill
Ryan. He said, “We will be moving forward our Committees, creating a website, distributing lawn signs, and holding fundraising events
over the next few months.”
Contacted Wednesday, Joan Gronowski summarized her thoughts on the group’s second gathering with, “We had a very good night, particularly the formation of committees staffed with enthusiastic people.” Asked what she considered the three highest priority tasks, Gronowski said, “We must research and evaluate Connecticut’s experience 40 years ago. There were similarities, and some differences.” She continued, “Fundraising is very important, as well as setting up a website and getting our message out.”
Of those who attended last Monday night, many had been at the first gathering, at the Will Library in Yonkers, and their focus was clearly on getting the process rolling. Upcoming meetings will involve committees engaged in the nuts and bolts of their assignments.
Effort To Eliminate County
Last Monday night, June 2, about 85 Westchester taxpayers showed up at Greenburgh Town Hall to discuss specific ways in which the movement to abolish County Government, and with it probably half of a nearly $2 billion budget, might move forward, as well as how they might assist. Approximately 40 individuals signed up to serve on one, or more, of the six committees proposed and approved by a majority of those present.
Those committees include:
1. A Bi-Partisan Budget Committee, to study the County Budget, specifically searching for duplication of services otherwise provided by municipal and/or state government;
2. A Research Committee, to discover and evaluate what it was that Connecticut residents did to eliminate County government some 40 years ago;
3. A Legal Committee, consisting mainly of lawyers who will advise the group as to what legislative action would be needed to abolish Westchester County government;
4. A Marketing Committee, to carry the group’s message out to the community;
5. A Website Committee, to establish an Internet website;
6. A Funding Committee, to engage in fundraising and other activities to insure the solvency of the operation.
Reached the following day, Paul Feiner indicated that he was very pleased with the turnout, but especially pleased with the number of individuals who enthusiastically volunteered to put their professional experience and energy to work on the various committees.
Asked about a published report that County Executive Andy Spano was amused by news of the group’s second meeting, Feiner responded, “The County Executive’s Office may not be taking this movement very seriously right now, but momentum is building; people are not very happy with the abuses of taxpayer dollars and the public trust. In time, County politicians will be taking us very seriously.”
Feiner was alluding to disclosures of abusive spending by Gary Kriss, a $149,000-per-year “aide” to the County Legislature’s Chair, Bill
Ryan. He said, “We will be moving forward our Committees, creating a website, distributing lawn signs, and holding fundraising events
over the next few months.”
Contacted Wednesday, Joan Gronowski summarized her thoughts on the group’s second gathering with, “We had a very good night, particularly the formation of committees staffed with enthusiastic people.” Asked what she considered the three highest priority tasks, Gronowski said, “We must research and evaluate Connecticut’s experience 40 years ago. There were similarities, and some differences.” She continued, “Fundraising is very important, as well as setting up a website and getting our message out.”
Of those who attended last Monday night, many had been at the first gathering, at the Will Library in Yonkers, and their focus was clearly on getting the process rolling. Upcoming meetings will involve committees engaged in the nuts and bolts of their assignments.
Janet Difiore.
Thursday, June 12, 2008
The Advocate
Richard Blassberg
DiFiore’s Incestuousness With Yonkers
Police Sacrifices Victims Of Police Brutality
Tony Castro Predicts, “It Will Come Back To Haunt Law Enforcement”
Nearly two years ago, in our September 21, 2006 issue, The Guardian blew the lid off years of Yonkers Police brutality, revealing an incident in 2005 in a front-page story entitled Mother, 72, Daughter, 49, Charge Yonkers Police Brutality. That story, which detailed the serious civil rights violations the Yonkers Police Department committed when they roughed up a middle-aged woman and her elderly mother, up behind Saunders High School, opened the floodgate to reports by residents, all over the City, and caused the sudden resignation and retirement of Police Commissioner Robert Taggart.
Within a week of the appearance of that story, President Karen Edmonson and Attorney Mike Sussman, of the Yonkers chapter of the NAACP, held a speak-out session at the Riverfront Library, attended by more than 125 persons, many of whom told about their own, and
their family’s, including mother’s and children’s, brutal encounters with the Yonkers Police, involving little or no provocation or justifi-
cation. Attorneys and law students from Pace Law School’s Criminal Justice Center, recorded their accounts which ultimately came to the attention the United States Attorney’s Office and the FBI.
More than a year ago, the FBI, in response, announced that they were conducting a “formal investigation into allegations of police brutality in Yonkers.” The Guardian is aware of visits by FBI special agents to a number of victim/complainants, including Tina and Mary Bostwick, the mother and daughter subjects of our first report. To date, we are not aware of any reports having been issued, or af-firmative action having been taken by the United States Attorney’s Of-fice, or the FBI, that might impact the continuing, unlawful brutality, and false criminal charges routinely worked against innocent men, women and children by, perhaps, 20 or so rogue, violent police offi-cers out of a force of some 670.
Last fall, a second speak-out was held at the Riverfront Library; this time in the auditorium, a few weeks prior to the mayoral election. Mayor Amicone, who had been campaigning nearby, came in to the auditorium in an ill-advised attempt to whitewash and dilute the concerns of the diverse, but mostly minority, audience. He was quickly booed and jeered, and literally chased from the auditorium.
In case after case, the routine has been the same; Yonkers Police beating up innocent citizens, then charging them with Disorderly Conduct, Obstruction of Governmental Administration, Resisting Arrest, Assault Upon A Police Of-ficer, or any combination thereof, both to cover and provide justifi-cation for their own criminal, civil rights violations, and as “bargaining chips” intended to discourage civilian victims from lodging criminal and/or civil complaints.
The practice has been going on for many years; DA Jeanine Pirro, for the most part, looking the other way. However, DA Janet DiFiore
has literally become a co-conspirator with Police Commissioner Hartnett and Mayor Amicone in case after case, as in the Irma Marquez
case. Marquez, all but killed by a totally unjustified body slam delivered by Yonkers Police Of-ficer Wayne Simoes, on March 3, 2007, was charged and prosecuted by DA DiFiore for Obstruction Of Governmental Administration and Disorderly Conduct, an absolutely absurd response by the DA given the clear, indisputable evidence provided by a security camera videotape at the scene.
Those who might wonder why Janet DiFiore repeatedly abandons her sworn duty to protect innocent citizens in her rush to aid and assist
rogue Yonkers cops, while covering up the Department’s serious civil rights violations, need to understand that she has a deep indebtedness
to the Yonkers Police, given the circumstances surrounding her race for District Attorney against Tony Castro in 2005. In point of fact, Di-
Fiore, whose husband attempted to bribe Right-To-Life candidate Anthony DiCintio off the ballot, was nonetheless publicly endorsed by
the Yonkers Police Department.
They were the host department at the Yonkers Polish Center within days of the election at a rally by police brass from Harrison, Dobbs
Ferry and other departments. But, more importantly, and more suspect, they were the department assigned to secure the warehouse storage
facility on Saw Mill River Road, where more than 300 voting machines were impounded at DiFiore’s request; a request filed three days
before the election was even held. This writer, who was reporting at the time for Martinelli Publications, witnessed the recanvas of those machines.
Having been Tony Castro’s campaign director when, as a total unknown he came close to defeating Jeanine Pirro four years earlier, I quickly recognized the peculiar voting patterns revealed in the 2005 Yonkers recount, not to mention numerous machines with broken seals. Despite the so-called “Non- Aggression Pact” of 2001, where Andy Spano and Larry Schwartz, and Reggie Lafayette, and all their henchmen, were actually part of the “fix” to reelect Jeanine Pirro, I never doubted that she won by six points, actually receiving more votes than my candidate. I have never enjoyed that lack of doubt with respect to Janet DiFiore. Given the totality of the circumstances, what reasonably
intelligent individual could?
Finally, speaking of Tony Castro, exposure of Irma Marquez’ case, less than two weeks ago, with its shocking videotape, brought to mind his client, Rui Florim, now approximately 23, who was beaten by six Yonkers police officers approximately 2 years ago. The facts of his encounter are no less outrageous and egregious.
Florim, who had gotten off work at 10:30pm from O’Porto Restaurant in the Village of Hartsdale, Town of Greenburgh, was being driven home by a female friend, having just crossed Central Avenue when they were pulled over by flashing lights in a dark area of the roadway. Six Yonkers Police Officers, including one female, all dressed in civilian clothing, pulled Florim from his friend’s car. And, forcing him into their unmarked car, four of them beat him about the face and head mercilessly.
He was then taken to St. Joseph’s Hospital, opposite Yonkers Police Headquarters, a hospital repeatedly used as the depository for victims of Yonkers Police brutality. He required 70 stitches and staples and five days in the Intensive Care Unit to recover. While he was in St. Joseph’s, Yonkers Police physically barred his family, and his attorney, from any contact with him.
Tony Castro represents Mr. Florim in State Court because, as with Irma Marquez, DA DiFiore is prosecuting him on trumped-up charges. Florim, will, no doubt, also be bringing an action in Federal Court. Castro told The Guardian, “The District Attorney’s routine response to Yonkers Police brutality is very short-sighted. She is not looking ahead to the long-term implications for juries and verdicts.
Jurors will learn what has been taking place. And, what has happened in The Bronx is what will happen in Yonkers, and all over
Westchester.” Castro went on, “It will come back to haunt law enforcement all across Westchester in the near-future. Their jury service is where citizens express their feelings about what they experience with police.”
Tony Castro, a former Bronx Assistant District Attorney, with 14 years experience, who trained hundreds of prosecutors, and who was
Deputy Bureau Chief of Homicides and the Grand Jury, was referring specifically to the preferential treatment DA DiFiore has repeatedly
shown the Yonkers Police Department at the expense of innocent citizens, as she has consistently been unwilling to investigate and prosecute their brutality against men, women and children. He is concerned that grand juries and trial juries will become so cynical and jaded that they will refuse to indict, or convict, in cases that are dependent upon police accounts.
The Advocate
Richard Blassberg
DiFiore’s Incestuousness With Yonkers
Police Sacrifices Victims Of Police Brutality
Tony Castro Predicts, “It Will Come Back To Haunt Law Enforcement”
Nearly two years ago, in our September 21, 2006 issue, The Guardian blew the lid off years of Yonkers Police brutality, revealing an incident in 2005 in a front-page story entitled Mother, 72, Daughter, 49, Charge Yonkers Police Brutality. That story, which detailed the serious civil rights violations the Yonkers Police Department committed when they roughed up a middle-aged woman and her elderly mother, up behind Saunders High School, opened the floodgate to reports by residents, all over the City, and caused the sudden resignation and retirement of Police Commissioner Robert Taggart.
Within a week of the appearance of that story, President Karen Edmonson and Attorney Mike Sussman, of the Yonkers chapter of the NAACP, held a speak-out session at the Riverfront Library, attended by more than 125 persons, many of whom told about their own, and
their family’s, including mother’s and children’s, brutal encounters with the Yonkers Police, involving little or no provocation or justifi-
cation. Attorneys and law students from Pace Law School’s Criminal Justice Center, recorded their accounts which ultimately came to the attention the United States Attorney’s Office and the FBI.
More than a year ago, the FBI, in response, announced that they were conducting a “formal investigation into allegations of police brutality in Yonkers.” The Guardian is aware of visits by FBI special agents to a number of victim/complainants, including Tina and Mary Bostwick, the mother and daughter subjects of our first report. To date, we are not aware of any reports having been issued, or af-firmative action having been taken by the United States Attorney’s Of-fice, or the FBI, that might impact the continuing, unlawful brutality, and false criminal charges routinely worked against innocent men, women and children by, perhaps, 20 or so rogue, violent police offi-cers out of a force of some 670.
Last fall, a second speak-out was held at the Riverfront Library; this time in the auditorium, a few weeks prior to the mayoral election. Mayor Amicone, who had been campaigning nearby, came in to the auditorium in an ill-advised attempt to whitewash and dilute the concerns of the diverse, but mostly minority, audience. He was quickly booed and jeered, and literally chased from the auditorium.
In case after case, the routine has been the same; Yonkers Police beating up innocent citizens, then charging them with Disorderly Conduct, Obstruction of Governmental Administration, Resisting Arrest, Assault Upon A Police Of-ficer, or any combination thereof, both to cover and provide justifi-cation for their own criminal, civil rights violations, and as “bargaining chips” intended to discourage civilian victims from lodging criminal and/or civil complaints.
The practice has been going on for many years; DA Jeanine Pirro, for the most part, looking the other way. However, DA Janet DiFiore
has literally become a co-conspirator with Police Commissioner Hartnett and Mayor Amicone in case after case, as in the Irma Marquez
case. Marquez, all but killed by a totally unjustified body slam delivered by Yonkers Police Of-ficer Wayne Simoes, on March 3, 2007, was charged and prosecuted by DA DiFiore for Obstruction Of Governmental Administration and Disorderly Conduct, an absolutely absurd response by the DA given the clear, indisputable evidence provided by a security camera videotape at the scene.
Those who might wonder why Janet DiFiore repeatedly abandons her sworn duty to protect innocent citizens in her rush to aid and assist
rogue Yonkers cops, while covering up the Department’s serious civil rights violations, need to understand that she has a deep indebtedness
to the Yonkers Police, given the circumstances surrounding her race for District Attorney against Tony Castro in 2005. In point of fact, Di-
Fiore, whose husband attempted to bribe Right-To-Life candidate Anthony DiCintio off the ballot, was nonetheless publicly endorsed by
the Yonkers Police Department.
They were the host department at the Yonkers Polish Center within days of the election at a rally by police brass from Harrison, Dobbs
Ferry and other departments. But, more importantly, and more suspect, they were the department assigned to secure the warehouse storage
facility on Saw Mill River Road, where more than 300 voting machines were impounded at DiFiore’s request; a request filed three days
before the election was even held. This writer, who was reporting at the time for Martinelli Publications, witnessed the recanvas of those machines.
Having been Tony Castro’s campaign director when, as a total unknown he came close to defeating Jeanine Pirro four years earlier, I quickly recognized the peculiar voting patterns revealed in the 2005 Yonkers recount, not to mention numerous machines with broken seals. Despite the so-called “Non- Aggression Pact” of 2001, where Andy Spano and Larry Schwartz, and Reggie Lafayette, and all their henchmen, were actually part of the “fix” to reelect Jeanine Pirro, I never doubted that she won by six points, actually receiving more votes than my candidate. I have never enjoyed that lack of doubt with respect to Janet DiFiore. Given the totality of the circumstances, what reasonably
intelligent individual could?
Finally, speaking of Tony Castro, exposure of Irma Marquez’ case, less than two weeks ago, with its shocking videotape, brought to mind his client, Rui Florim, now approximately 23, who was beaten by six Yonkers police officers approximately 2 years ago. The facts of his encounter are no less outrageous and egregious.
Florim, who had gotten off work at 10:30pm from O’Porto Restaurant in the Village of Hartsdale, Town of Greenburgh, was being driven home by a female friend, having just crossed Central Avenue when they were pulled over by flashing lights in a dark area of the roadway. Six Yonkers Police Officers, including one female, all dressed in civilian clothing, pulled Florim from his friend’s car. And, forcing him into their unmarked car, four of them beat him about the face and head mercilessly.
He was then taken to St. Joseph’s Hospital, opposite Yonkers Police Headquarters, a hospital repeatedly used as the depository for victims of Yonkers Police brutality. He required 70 stitches and staples and five days in the Intensive Care Unit to recover. While he was in St. Joseph’s, Yonkers Police physically barred his family, and his attorney, from any contact with him.
Tony Castro represents Mr. Florim in State Court because, as with Irma Marquez, DA DiFiore is prosecuting him on trumped-up charges. Florim, will, no doubt, also be bringing an action in Federal Court. Castro told The Guardian, “The District Attorney’s routine response to Yonkers Police brutality is very short-sighted. She is not looking ahead to the long-term implications for juries and verdicts.
Jurors will learn what has been taking place. And, what has happened in The Bronx is what will happen in Yonkers, and all over
Westchester.” Castro went on, “It will come back to haunt law enforcement all across Westchester in the near-future. Their jury service is where citizens express their feelings about what they experience with police.”
Tony Castro, a former Bronx Assistant District Attorney, with 14 years experience, who trained hundreds of prosecutors, and who was
Deputy Bureau Chief of Homicides and the Grand Jury, was referring specifically to the preferential treatment DA DiFiore has repeatedly
shown the Yonkers Police Department at the expense of innocent citizens, as she has consistently been unwilling to investigate and prosecute their brutality against men, women and children. He is concerned that grand juries and trial juries will become so cynical and jaded that they will refuse to indict, or convict, in cases that are dependent upon police accounts.
Janet Difiore.
Thursday, June 12, 2008
In Our Opinion...
Westchester’s Culture Of Corruption
Not only are we the most heavily-taxed county in the nation, we also rank very highly in terms of public corruption and taxpayer abuse. Does anyone doubt that Gary Kriss and his recently-exposed abuses of trust and unauthorized expenditure of our taxpayer dollars is merely the “one”? You know, the one exterminators are referring to when they tell us “When you see one, there’s 20, or 30”. And, it doesn’t matter
whether it’s rats or roaches; it’s enough to turn your stomach.
But, what should we expect, having elected one district attorney three times whose spouse was one of the most outrageous white collar criminals in the County; Pataki’s “best friend and fundraiser.” Most so-called savvy people, when asked why they voted for her, or contributed to her; those who were not on her payroll or direct beneficiaries, or fearfully vulnerable players, would often shrug their shoulders and laugh.
Intelligent observers in neighboring counties were laughing, too, but not with us, at us. Few realized the network that it required to support the proposition, Al and Jeanine Pirro, “Westchester’s Power Couple”, and all that jazz.
It took an enormous network of larcenous, greedy, essentially criminally-corrupt, lawyers, politicians, police, prosecutors, and judges; yes, judges, right up into the Appellate Division. Could Nick Spano have stolen the election of 2004 had his buddy, and former attorney, Judge Robert Spalzino not been appointed to the Appellate Division, Second Department? Jeanine and her cohorts, Larry Schwartz, and Schwartz’s front-man, Andy Spano, needed Nick in the State Senate, for one thing, so they could get their nominees on the County and Supreme Courts. You know, winners like Larry Horowitz, Andy’s “Sonny Liston” in the election of 2001.
Of course, Jeanine knew the handwriting was on the wall when Tony Castro, a virtual unknown, came within six points of her. It had nothing to do with her unwillingness to have to abandon the DA’s Office to run, as she thought she would in 2006, against Hillary. She never meant to leave the DA’s office unless it was for a higher post. However, her expensive polling operation in the spring of 2005 convinced her that she could not defeat Castro a second time.
In her stead, we have Janet DiFiore, a vindictive, arrogant; some believe protege of hers. Not really. Oh, there are similarities, each with a spouse fond of cutting corners and influence-peddling. And, neither of them have the moral authority to be Dogcatcher, much less Chief Law Enforcement Officer in a county of nearly a million residents.
When Michael Garcia, United States Attorney for the Southern District of New York, published his hotline telephone number 25 months ago, and received a deluge of information about public corruption, few anticipated that so much time, more than two years, would go by with so little in the way of indictments for public integrity violations, given how blatant and notorious the corruption truly is.
Many citizens are becoming discouraged and disillusioned with the Federal Government’s apparent lack of production given the abundance of public integrity violations, virtually in all of our faces. Consider the following conservative, partial listing:
• The County Executive’s Solid Waste $17-million-and-climbing giveaway;
• The fixed County-wide Elections of 2001;
• The 2000, 2002, and 2004 Nick Spano contests for State Senate;
• Police brutality in Yonkers;
• Police brutality and scandal in Harrison;
• Police coercion and subornation of perjury in Dobbs Ferry;
• The RICO-type enterprise in the Matrimonial Part of State Supreme Court;
• The District Attorney’s Office’s numerous civil rights violations;
• The $22.5 million giveaway by the County Executive’s Office to Cablevision;
• The oppressive, unlawful, Amicone Regime in Yonkers.
Given what has been accomplished in New Jersey, New York City and Connecticut to combat failures of public integrity, just how much are we, the hard-working people of Westchester, expected to tolerate before the Federal Government puts some teeth into our Constitutionally-guaranteed right to Life, Liberty, and the Pursuit of Happiness, free from interference by organized government gangsters?
Our Readers Respond...
Reader Tries Humor On Serious Concern
Dear Editor:
So, a car full of County workers stops at a bar…no, wait, wrong joke. The car is stopped at an entrance to a park. When asked the purpose of the visit, the answer is the Health Department employees are looking for mosquitoes. When advised of a chronic pooling water problem at another facility, the drivers says he’ll tell his boss. Who is? Name given. The Deputy Commissioner of Mosquitoes?
Of course, the knowing reply. Not so funny when you consider the number of superfluous Administrators in County government, and lack of background required. Then again, they don’t need any because they are told what to do and there needs to be a lot of them so no individual
has to be decisive or responsible. Depending on who you know, no experience is required, one can begin at management level. Full-time workers at seasonal jobs, generating paperwork that “justifies” more nonessential jobs. Folks often say that these wasteful practices happen everywhere. Then don’t complain about your taxes, or feel Westchester County is causing your relocation.
On that point, shouldn’t County employees at management level and above be required to live here and not Connecticut or Pennsylvania?
Knowledgeable And Disgusted
In Our Opinion...
Westchester’s Culture Of Corruption
Not only are we the most heavily-taxed county in the nation, we also rank very highly in terms of public corruption and taxpayer abuse. Does anyone doubt that Gary Kriss and his recently-exposed abuses of trust and unauthorized expenditure of our taxpayer dollars is merely the “one”? You know, the one exterminators are referring to when they tell us “When you see one, there’s 20, or 30”. And, it doesn’t matter
whether it’s rats or roaches; it’s enough to turn your stomach.
But, what should we expect, having elected one district attorney three times whose spouse was one of the most outrageous white collar criminals in the County; Pataki’s “best friend and fundraiser.” Most so-called savvy people, when asked why they voted for her, or contributed to her; those who were not on her payroll or direct beneficiaries, or fearfully vulnerable players, would often shrug their shoulders and laugh.
Intelligent observers in neighboring counties were laughing, too, but not with us, at us. Few realized the network that it required to support the proposition, Al and Jeanine Pirro, “Westchester’s Power Couple”, and all that jazz.
It took an enormous network of larcenous, greedy, essentially criminally-corrupt, lawyers, politicians, police, prosecutors, and judges; yes, judges, right up into the Appellate Division. Could Nick Spano have stolen the election of 2004 had his buddy, and former attorney, Judge Robert Spalzino not been appointed to the Appellate Division, Second Department? Jeanine and her cohorts, Larry Schwartz, and Schwartz’s front-man, Andy Spano, needed Nick in the State Senate, for one thing, so they could get their nominees on the County and Supreme Courts. You know, winners like Larry Horowitz, Andy’s “Sonny Liston” in the election of 2001.
Of course, Jeanine knew the handwriting was on the wall when Tony Castro, a virtual unknown, came within six points of her. It had nothing to do with her unwillingness to have to abandon the DA’s Office to run, as she thought she would in 2006, against Hillary. She never meant to leave the DA’s office unless it was for a higher post. However, her expensive polling operation in the spring of 2005 convinced her that she could not defeat Castro a second time.
In her stead, we have Janet DiFiore, a vindictive, arrogant; some believe protege of hers. Not really. Oh, there are similarities, each with a spouse fond of cutting corners and influence-peddling. And, neither of them have the moral authority to be Dogcatcher, much less Chief Law Enforcement Officer in a county of nearly a million residents.
When Michael Garcia, United States Attorney for the Southern District of New York, published his hotline telephone number 25 months ago, and received a deluge of information about public corruption, few anticipated that so much time, more than two years, would go by with so little in the way of indictments for public integrity violations, given how blatant and notorious the corruption truly is.
Many citizens are becoming discouraged and disillusioned with the Federal Government’s apparent lack of production given the abundance of public integrity violations, virtually in all of our faces. Consider the following conservative, partial listing:
• The County Executive’s Solid Waste $17-million-and-climbing giveaway;
• The fixed County-wide Elections of 2001;
• The 2000, 2002, and 2004 Nick Spano contests for State Senate;
• Police brutality in Yonkers;
• Police brutality and scandal in Harrison;
• Police coercion and subornation of perjury in Dobbs Ferry;
• The RICO-type enterprise in the Matrimonial Part of State Supreme Court;
• The District Attorney’s Office’s numerous civil rights violations;
• The $22.5 million giveaway by the County Executive’s Office to Cablevision;
• The oppressive, unlawful, Amicone Regime in Yonkers.
Given what has been accomplished in New Jersey, New York City and Connecticut to combat failures of public integrity, just how much are we, the hard-working people of Westchester, expected to tolerate before the Federal Government puts some teeth into our Constitutionally-guaranteed right to Life, Liberty, and the Pursuit of Happiness, free from interference by organized government gangsters?
Our Readers Respond...
Reader Tries Humor On Serious Concern
Dear Editor:
So, a car full of County workers stops at a bar…no, wait, wrong joke. The car is stopped at an entrance to a park. When asked the purpose of the visit, the answer is the Health Department employees are looking for mosquitoes. When advised of a chronic pooling water problem at another facility, the drivers says he’ll tell his boss. Who is? Name given. The Deputy Commissioner of Mosquitoes?
Of course, the knowing reply. Not so funny when you consider the number of superfluous Administrators in County government, and lack of background required. Then again, they don’t need any because they are told what to do and there needs to be a lot of them so no individual
has to be decisive or responsible. Depending on who you know, no experience is required, one can begin at management level. Full-time workers at seasonal jobs, generating paperwork that “justifies” more nonessential jobs. Folks often say that these wasteful practices happen everywhere. Then don’t complain about your taxes, or feel Westchester County is causing your relocation.
On that point, shouldn’t County employees at management level and above be required to live here and not Connecticut or Pennsylvania?
Knowledgeable And Disgusted
Thursday, June 12, 2008
The Court Report
By Richard Blassberg
Deskovic Civil Action Continues
In Preliminary Pre-Trial Mode
United States District Court, White Plains
Judge Kenneth M. Karas Presiding
Judge Karas was his usual frank and perceptive self, addressing Plaintiff Jeffrey Deskovic’s attorney, Nick Bruskin, who had filed a Motion To Amend since his last appearance. Plaintiff ’s Attorney Jennifer Loren, who had attended the first pre-trial hearing on April 10, also was present, but Barry Scheck was not.
Karas opened the proceedings announcing the fact that Assistant Attorney General John Knudson, representing the State of New York and the Department of Corrections, “still wants to change venue.” Attorney Stuart Kahan, representing the County of Westchester, former Deputy Chief Medical Examiner Dr. Luis Roh, and former Westchester Assistant DA George Bolen, spoke up, “I’m the only party opposing the motion to amend the complaint, if the effort to amend involves ADA George Bolen. It does not set forth a potential claim
in line with the Russo case. We are not dealing with the withholding of exculpatory information.”
Judge Karas responded, “It is not just a withholding of DNA information.” Mr. Kahan: “Whatever Bolen may have done, it was in his prosecutorial function.”
Judge Karas: “The Brady obligation is ongoing forever.”
Mr. Kahan tried to argue the point with the Judge, but discovered a well-informed jurist who actually took the time to fully familiarize
himself with the facts and allegations of the case. Karas advised Kahan, “It’s what Bolen conscripts Roh to do; to explain away the DNA
evidence.”
The Judge then followed up with, “You think that if an ADA gets a doctor to make up information that explains away exculpatory information, that act is not malice?”
Kahan responded, “There’s all kinds of things prosecutors investigate after indictments.”
Karas then asked, “What do you do with Plaintiff ’s effort to fit this case under Buckley? It’s like shopping for a witness.” He continued,
telling Attorney Kahan, “What we have here is ADA Bolen saying Dr. Roh, see what you can do.” Jeffrey Deskovic’s attorney, Nick Bruskin, then jumped in, in response to a nod from the Judge, saying, “I can’t put it any better than you have, Your Honor. Probable
Cause is vitiated.”
Karas then inquired of Bruskin, “Your theory is he didn’t have beyond a reasonable doubt,” referring to Bolen’s case.
Bruskin responded, “I don’t see how the Prosecutor is immune.”
Bolen’s attorney, Mr. Kahan, was trying to make the argument that his client’s conspiring, and scheming, with another of his clients, Dr.
Luis Roh, fully eight months before bringing a 16-year-old whose DNA and hair follicles did not match the man who raped and murdered 15-
year-old Angela Correa, to trial, anyway, was by way of “trial preparation.”
But Karas just wasn’t buying into it. So, the attorney decided to change gears, arguing that Deskovic’s use of three medical experts did not conform to Federal Rule of Civil Procedure No. 26.
Attorney Bruskin quickly responded, “We think the facts are not in dispute, and are most unusual.” Judge Karas, at that point, teasing,
turned to Bruskin and suggested, “If it turns out that Dr. Roh is really bad at what he does, then you wouldn’t have a case against Roh or
Bolen.”
Attorney Brian Sokolov, representing the City of Peekskill, Police Chief Eugene Tumolo, and Detectives McIntyre and Levine, spoke
up, declaring, “The Plaintiff ’s use of other incidents that go back to 1980 go to Monell.”
Karas immediately picked up on Sokolov’s statement, saying, “Plaintiffs get accused all the time with, you have made conclusory claims;
you haven’t stated a claim for which the Court can bring about relief.” Turning to Sokolov, Karas went on, “You can make a claim that Roh’s
statements were based on lack of knowledge.”
At that point, Sokolov took some liberty and told the Judge, “Speaking for all Defense counselors, our complaint is not so much substantive
as it is style.”
Analysis:
The seven Defense attorneys in Judge Karas’ Court last Monday must continue to cope with the unenviable task of having to defend numerous individuals whose acts, with respect to Jeffrey Deskovic, an innocent 16-year-old boy, wrongfully prosecuted and convicted of
rape and murder, were, and are, indefensible. As a consequence, in an effort to mitigate and minimize the damages for which their clients
will be held liable, they are attempting to cover over the ugly facts, by which the Plaintiff was robbed of 17 years of his life, by using arguments involving procedural matters and questions of so-called “prosecutorial immunity.”
Attorney Bruskin advised the Court that Plaintiffs anticipate 50 to 60 depositions. Accordingly, the Judge laid out a tentative schedule,
over the next 12 months, with a Case Management Conference scheduled for May 8, 2009. Having grasped the seriousness with which Judge Karas viewed the allegations against the Defendants, most of whom were demonstrably acting in concert, and having had a taste of the narrowness of the Judge’s interpretation of those prosecutorial activities possibly eligible for immunity, Attorney Sokolov took the opportunity to inform the Court that he intends to interplead Deskovic’s trial attorney into the case.
Forced By Federal Court To Cough
Up A Mountain Of Evidence Of His
Innocence, Vindictive DA DiFiore
Wants To Retry Anthony DiSimone
Westchester District Attorney Janet DiFiore knows perfectly well that Anthony DiSimone is totally innocent in the killing of Louis Balancio outside the Strike Zone Bar in Yonkers February 4, 1994. She even knows who the actual murderers were, Darin Mazzarella, previously charged in two other unrelated murders, who held Balancio in place, while Nick Djonovic stabbed him to death 13 times. She knows the
truth because when she took office in January 2006, she inherited a mountain of exculpatory evidence that her predecessor, Jeanine Pirro, had kept hidden from DiSimone for nearly 12 years.
DiFiore, not at all unlike Pirro, upon becoming District Attorney, made a conscious decision to continue to unlawfully withhold 376 pages, 52 boxes and miles of audiotaped live and telephone conversations, some with the United States Attorney’s Office, all of which support
Mr. DiSimone’s innocence, and point to Djonovic and Mazzarella.
For 16 months, until the point in Di-Simone’s federal appeals process, when District Court Judge Charles L. Brieant was about to gavel open, what would have been a very revealing and embarrassing Evidentiary Hearing process for her of-fice, perhaps over several weeks, DiFiore kept the evidence, including Djonovic’s confession six days after the killing, as well as his blood-covered leather jacket, from the Court and the Defense. Only when faced with certain slow and painful exposure, did she relent and cough up evidence kept concealed for 13 long years, seven of which DiSimone spent wrongfully convicted and imprisoned.
All throughout the appeals process, her Assistant District Attorney, Valerie Livingston, boldly, and incredibly, lied to District Court Judge Brieant and to three-judge panels of the United States Second Circuit Court of Appeals. The presiding judge of one such panel, in August
2006, Judge Calabresi, not yet even fully aware of quite all of the evidence being concealed, described the extreme unlawful conduct of the Westchester District Attorney’s Office, saying, “In twelve years on this Court I have never seen such a Brady violation.”
More than a year ago, the Federal Court released Mr. DiSimone on a Writ of Habeus Corpus. After seven years of wrongful imprisonment, he has managed to find employment and has attempted to resume some semblance of a normal life with his wife and young son.
Analysis:
Under the circumstances, last Thursday’s activity in Supreme Court Justice Les Adler’s courtroom in which a $500,000 bail was set, and the preliminary activity needed to retry DiSimone were set in motion, one can only conclude that what we are now witnessing is but the latest chapter in the extreme prosecutorial misconduct that has driven the response to Louis Balancio’s death for some 14 years now.
Despite any suggestion to the contrary, District Attorney DiFiore cannot try Anthony DiSimone, either for Second Degree Intentional Murder, a charge for which he was originally acquitted at trial, nor for Depraved Indifference Murder, for which he was wrongfully, and unlawfully, convicted because the State’s highest court has many times, since that conviction, explained that killings such as Balancio’s,
involving multiple stab wounds, do not fall under the Depraved Mind Theory.
DA DiFiore is well aware of those facts, and she is equally well aware of the fact that irrespective of all of the above, no jury, which will be made aware of all of the exculpatory evidence she was compelled to turn over, could ever convict Mr. DiSimone. Therefore, we can only conclude that her present course of action is both by way of the most malicious form of harassment, and a blatant attempt to frighten an innocent man into negotiating an unnecessary plea deal in order to prevent his civil action anticipated as a result of all of the civil rights violations he and his family have been made to endure for more than 14 years.
The Court Report
By Richard Blassberg
Deskovic Civil Action Continues
In Preliminary Pre-Trial Mode
United States District Court, White Plains
Judge Kenneth M. Karas Presiding
Judge Karas was his usual frank and perceptive self, addressing Plaintiff Jeffrey Deskovic’s attorney, Nick Bruskin, who had filed a Motion To Amend since his last appearance. Plaintiff ’s Attorney Jennifer Loren, who had attended the first pre-trial hearing on April 10, also was present, but Barry Scheck was not.
Karas opened the proceedings announcing the fact that Assistant Attorney General John Knudson, representing the State of New York and the Department of Corrections, “still wants to change venue.” Attorney Stuart Kahan, representing the County of Westchester, former Deputy Chief Medical Examiner Dr. Luis Roh, and former Westchester Assistant DA George Bolen, spoke up, “I’m the only party opposing the motion to amend the complaint, if the effort to amend involves ADA George Bolen. It does not set forth a potential claim
in line with the Russo case. We are not dealing with the withholding of exculpatory information.”
Judge Karas responded, “It is not just a withholding of DNA information.” Mr. Kahan: “Whatever Bolen may have done, it was in his prosecutorial function.”
Judge Karas: “The Brady obligation is ongoing forever.”
Mr. Kahan tried to argue the point with the Judge, but discovered a well-informed jurist who actually took the time to fully familiarize
himself with the facts and allegations of the case. Karas advised Kahan, “It’s what Bolen conscripts Roh to do; to explain away the DNA
evidence.”
The Judge then followed up with, “You think that if an ADA gets a doctor to make up information that explains away exculpatory information, that act is not malice?”
Kahan responded, “There’s all kinds of things prosecutors investigate after indictments.”
Karas then asked, “What do you do with Plaintiff ’s effort to fit this case under Buckley? It’s like shopping for a witness.” He continued,
telling Attorney Kahan, “What we have here is ADA Bolen saying Dr. Roh, see what you can do.” Jeffrey Deskovic’s attorney, Nick Bruskin, then jumped in, in response to a nod from the Judge, saying, “I can’t put it any better than you have, Your Honor. Probable
Cause is vitiated.”
Karas then inquired of Bruskin, “Your theory is he didn’t have beyond a reasonable doubt,” referring to Bolen’s case.
Bruskin responded, “I don’t see how the Prosecutor is immune.”
Bolen’s attorney, Mr. Kahan, was trying to make the argument that his client’s conspiring, and scheming, with another of his clients, Dr.
Luis Roh, fully eight months before bringing a 16-year-old whose DNA and hair follicles did not match the man who raped and murdered 15-
year-old Angela Correa, to trial, anyway, was by way of “trial preparation.”
But Karas just wasn’t buying into it. So, the attorney decided to change gears, arguing that Deskovic’s use of three medical experts did not conform to Federal Rule of Civil Procedure No. 26.
Attorney Bruskin quickly responded, “We think the facts are not in dispute, and are most unusual.” Judge Karas, at that point, teasing,
turned to Bruskin and suggested, “If it turns out that Dr. Roh is really bad at what he does, then you wouldn’t have a case against Roh or
Bolen.”
Attorney Brian Sokolov, representing the City of Peekskill, Police Chief Eugene Tumolo, and Detectives McIntyre and Levine, spoke
up, declaring, “The Plaintiff ’s use of other incidents that go back to 1980 go to Monell.”
Karas immediately picked up on Sokolov’s statement, saying, “Plaintiffs get accused all the time with, you have made conclusory claims;
you haven’t stated a claim for which the Court can bring about relief.” Turning to Sokolov, Karas went on, “You can make a claim that Roh’s
statements were based on lack of knowledge.”
At that point, Sokolov took some liberty and told the Judge, “Speaking for all Defense counselors, our complaint is not so much substantive
as it is style.”
Analysis:
The seven Defense attorneys in Judge Karas’ Court last Monday must continue to cope with the unenviable task of having to defend numerous individuals whose acts, with respect to Jeffrey Deskovic, an innocent 16-year-old boy, wrongfully prosecuted and convicted of
rape and murder, were, and are, indefensible. As a consequence, in an effort to mitigate and minimize the damages for which their clients
will be held liable, they are attempting to cover over the ugly facts, by which the Plaintiff was robbed of 17 years of his life, by using arguments involving procedural matters and questions of so-called “prosecutorial immunity.”
Attorney Bruskin advised the Court that Plaintiffs anticipate 50 to 60 depositions. Accordingly, the Judge laid out a tentative schedule,
over the next 12 months, with a Case Management Conference scheduled for May 8, 2009. Having grasped the seriousness with which Judge Karas viewed the allegations against the Defendants, most of whom were demonstrably acting in concert, and having had a taste of the narrowness of the Judge’s interpretation of those prosecutorial activities possibly eligible for immunity, Attorney Sokolov took the opportunity to inform the Court that he intends to interplead Deskovic’s trial attorney into the case.
Forced By Federal Court To Cough
Up A Mountain Of Evidence Of His
Innocence, Vindictive DA DiFiore
Wants To Retry Anthony DiSimone
Westchester District Attorney Janet DiFiore knows perfectly well that Anthony DiSimone is totally innocent in the killing of Louis Balancio outside the Strike Zone Bar in Yonkers February 4, 1994. She even knows who the actual murderers were, Darin Mazzarella, previously charged in two other unrelated murders, who held Balancio in place, while Nick Djonovic stabbed him to death 13 times. She knows the
truth because when she took office in January 2006, she inherited a mountain of exculpatory evidence that her predecessor, Jeanine Pirro, had kept hidden from DiSimone for nearly 12 years.
DiFiore, not at all unlike Pirro, upon becoming District Attorney, made a conscious decision to continue to unlawfully withhold 376 pages, 52 boxes and miles of audiotaped live and telephone conversations, some with the United States Attorney’s Office, all of which support
Mr. DiSimone’s innocence, and point to Djonovic and Mazzarella.
For 16 months, until the point in Di-Simone’s federal appeals process, when District Court Judge Charles L. Brieant was about to gavel open, what would have been a very revealing and embarrassing Evidentiary Hearing process for her of-fice, perhaps over several weeks, DiFiore kept the evidence, including Djonovic’s confession six days after the killing, as well as his blood-covered leather jacket, from the Court and the Defense. Only when faced with certain slow and painful exposure, did she relent and cough up evidence kept concealed for 13 long years, seven of which DiSimone spent wrongfully convicted and imprisoned.
All throughout the appeals process, her Assistant District Attorney, Valerie Livingston, boldly, and incredibly, lied to District Court Judge Brieant and to three-judge panels of the United States Second Circuit Court of Appeals. The presiding judge of one such panel, in August
2006, Judge Calabresi, not yet even fully aware of quite all of the evidence being concealed, described the extreme unlawful conduct of the Westchester District Attorney’s Office, saying, “In twelve years on this Court I have never seen such a Brady violation.”
More than a year ago, the Federal Court released Mr. DiSimone on a Writ of Habeus Corpus. After seven years of wrongful imprisonment, he has managed to find employment and has attempted to resume some semblance of a normal life with his wife and young son.
Analysis:
Under the circumstances, last Thursday’s activity in Supreme Court Justice Les Adler’s courtroom in which a $500,000 bail was set, and the preliminary activity needed to retry DiSimone were set in motion, one can only conclude that what we are now witnessing is but the latest chapter in the extreme prosecutorial misconduct that has driven the response to Louis Balancio’s death for some 14 years now.
Despite any suggestion to the contrary, District Attorney DiFiore cannot try Anthony DiSimone, either for Second Degree Intentional Murder, a charge for which he was originally acquitted at trial, nor for Depraved Indifference Murder, for which he was wrongfully, and unlawfully, convicted because the State’s highest court has many times, since that conviction, explained that killings such as Balancio’s,
involving multiple stab wounds, do not fall under the Depraved Mind Theory.
DA DiFiore is well aware of those facts, and she is equally well aware of the fact that irrespective of all of the above, no jury, which will be made aware of all of the exculpatory evidence she was compelled to turn over, could ever convict Mr. DiSimone. Therefore, we can only conclude that her present course of action is both by way of the most malicious form of harassment, and a blatant attempt to frighten an innocent man into negotiating an unnecessary plea deal in order to prevent his civil action anticipated as a result of all of the civil rights violations he and his family have been made to endure for more than 14 years.
Thursday, June 5, 2008
Wrongful Convictions Just
Keep Coming Out, Part II
Jeff Deskovic
Several issues ago, I wrote an article entitled “Wrongful Convictions Just Keep Coming Out.” In this issue, I will do a follow-up to that article, further illustrating that theme, with the purpose in mind of trying to raise the awareness of society to the problem of wrongful convictions. People will come to realize, with each passing instance, that wrongful convictions are not rare, that this really can happen to anyone, and does. Furthermore, there is no geographical location which is immune from it happening. The thought “That could never
happen here”, or “that could never happen to me”, are unfortunately myths that we as a society cannot afford to have.
It is also my intention to raise the awareness of those who are in a position to directly do something about it: state senators and assemblypersons in passing bills to protect the innocent; policemen and others in law enforcement, to be sure not to coerce confessions, to be careful when conducting lineups and photo arrays so as not to taint them, with the result of a misidentification occurring, tunnel vision and overzealousness; prosecutors in being on the lookout for the possibility of the police having engaged in the aforementioned, as well as not engaging in prosecutorial misconduct and playing things straight in the courtroom, knowing that defendants are not immune from being wrongfully convicted if they are innocent; and judges in ensuring that trials are fair, and in ruling on the merits of appeals.
Periodically, as more cases are exposed, I will write follow-up articles. The following are major cases of wrongful convictions that have come out since the first installment of this series.
James Woodard was released on April 29, 2008, after spending more than 27 years in prison in Texas for a 1980 murder he has been cleared of by DNA. Woodard was sentenced to life in prison in July 1981 for the murder of a 21-year-old Dallas woman found sexually assaulted and strangled near the banks of the Trinity River. The 27 years he served wrongfully make him the longest-serving wrongly convicted man in the nation to be exonerated by DNA testing.
He is also the 18th person in Dallas County to have his conviction overturned by DNA, which is a figure unmatched by any county in the United States, according to The Innocence Project.
Overall, 31 people have been formally exonerated through DNA testing in Texas, also a national high. at does not include Woodard and at least three others whose exonerations will not become official until Gov. Rick Perry grants pardons or the Texas Court of Criminal Appeals formally accepts the ruling of lower courts that have already recommended exoneration.
The following report was filed by Schuyler Dixon, of the Associated Press, on Woodard’s case: He was convicted primarily on the basis of testimony from two eyewitnesses, said Natalie Roetzel, the executive director of the Innocence Project of Texas. One has since recanted in an af-fidavit. As for the other, “We don’t believe her testimony was accurate,” Roetzel said. Like nearly all the exonorees, Woodard has maintained his innocence throughout his time in prison.
But after filing six writs with an appeals court, plus two requests for DNA testing, his pleas of innocence became so repetitive and routine that “the courthouse doors were eventually closed to him and he was labeled a writ abuser,” Roetzel said.
“On the first day he was arrested, he told the world he was innocent ... and nobody listened,” Jeff Blackburn, chief counsel for the Innocence Project of Texas, said during Tuesday’s hearing. “James Lee Woodard stepped out of the courtroom and raised his arms to a throng of photographers. Supporters and other people gathered outside the court erupted in applause. “No words can express what a tragic story yours is,” state District Judge Mark Stoltz told Woodard at a brief hearing before his release. “I thank God for the existence of the Innocence project,” Woodard, 55, told the court. “Without that, I wouldn’t be here today. I would be wasting away in prison.”
Walter Swift was exonerated on May 21, 2008 by DNA after serving 26 years in Michigan for rape. The Innocence Project, which represents
Swift, released the following report about the case:
For 26 long years, Walter Swift has held onto hope that the truth would finally come out and he would be exonerated. Today, his unimaginable nightmare is ending but he is just beginning the long road to rebuild his life,” said Barry Scheck, Co-Director of the Innocence Project. “He was convicted based on a deeply awed and completely unreliable eyewitness identification. Even at the time of his trial in 1982, there was convincing evidence that he was innocent, but his court-appointed attorney failed to present that evidence. ”
The case stems from a September 1982 home-invasion rape and robbery in Detroit. The victim was a pregnant white woman who was at home with her seven-month old child. She described her attacker as a 15-to-18-year-old African-American man with unusual braids and “poofs of hair” on his head, but no facial hair. After the crime, police asked her to look through hundreds of photos. She selected the photos of seven men who she said resembled the assailant, and the police officer handling the case randomly decided that the next person the victim selected would be brought in for a live lineup.
That person was Walter Swift, who was several years older than the victim’s description of her attacker, had a pronounced black eye at the time of the crime (which was not part of the victim’s description), had a mustache and long sideburns at the time of the crime, and always had closely cropped hair with no braids. Swift - but none of the other seven men whose photos were selected by the victim – was brought in for a lineup, and the victim was told that the eighth man she selected would be in the lineup.
She selected Swift in the lineup, saying that she “believed” he was her attacker. The police officer who initially investigated the case and handled the photo identification believed that the victim’s identification was uncertain and unreliable – but at Swift’s trial, the jury heard only that she selected his photo and his photo alone, that she identi-fied him in a lineup, and that she was certain he was the assailant.
In addition to the flawed and unreliable eyewitness identification, forensic testing before Swift’s trial supported his claims of innocence – but the jury never heard that forensic evidence. An analyst who tested semen from the perpetrator determined that if the sample she was testing was clean enough (meaning it was predominately semen from the perpetrator, which it likely was), Swift could not have been the perpetrator based on his blood type.
That analyst was never called to the stand at Swift’s trial, and she was shocked to learn in recent years that Swift had been convicted.
Swift’s court-appointed trial attorney, Lawrence R. Greene, did not adequately pursue the identification procedure during the trial and did not present the exculpatory forensic evidence. Greene has been suspended from practicing law several times in just the last decade based on misconduct and inadequate representation in other cases.
From the first time police questioned Swift about the crime, he had an airtight alibi from a woman he was dating at the time. The woman, whose relationship with Swift ended two decades ago, maintains that she was with Swift when the crime was committed, and she had documentation at the time of trial (shopping receipts) corroborating her story of their whereabouts. She has been a law enforcement officer for 24 years and has no motive to fabricate an alibi for Swift. Swift had been denied parole five times since 2000 because he would not admit to a crime he didn’t commit.
The Innocence Project accepted Swift’s case 10 years ago, hoping to conduct DNA testing on crime scene evidence that could prove his innocence. The evidence had all been lost or destroyed – but the Innocence Project began to uncover evidence about the eyewitness
identi-fication procedure, the forensic testing, Swift’s alibi and the depths of his inadequate defense counsel at trial. “Over the course of a decade, each layer we pulled back led to more evidence that Walter Swift is innocent,” said Innocence Project Staff Attorney Olga Akselrod.
“We also began to work with people throughout the criminal justice system, some of whom were directly involved in convicting Mr. Swift, who were becoming increasingly convinced of his innocence. It’s highly unusual to have the original prosecutor, the police officer who investigated the case and the lab analyst who handled the case all come forward to support an innocent prisoner – but that’s exactly what happened in this case.”
In an extraordinary development, the prosecutor who convicted Swift, and the police officer who initially investigated the case, both assisted the Innocence Project in seeking to vacate Swift’s conviction. Both filed formal affidavits, as did the alibi witness. The Innocence Project presented all of the evidence in the case to Wayne County Prosecuting Attorney Kym Worthy, whose office investigated it thoroughly.
“The Prosecuting Attorney’s office looked at this case carefully and closely. Each piece of evidence needed to be analyzed on its own and in combination with the other evidence, and the Prosecuting Attorney was extraordinarily thoughtful and reached the right conclusion,” Scheck said. Barry Scheck said, “Walter Swift wasn’t the first person in Michigan who was wrongfully convicted based on eyewitness misidentification, and he won’t be the last. A bill is pending in the Michigan Legislature that would make sure photo arrays and lineups
are conducted properly, based on what decades of scientific research and practical experience shows can reduce misidentifications.
The Legislature should make this bill a priority and pass it promptly,” Scheck said. The following account of the Levon Jones case is taken from an article written by Titan Barksdale of The News And Observer: In 1993, a Duplin County jury convicted Jones, now 49, of first-degree murder in the 1987 shooting death of Leamon Grady, a local bootlegger. The jury also convicted him of robbery with a dangerous weapon and conspiracy.
District Attorney Dewey Hudson, the top prosecutor in a district including Duplin, dismissed all of the charges against Jones on Friday, saying his star witness’ recent recantation of trial testimony was the main reason for his decision. The recantation of Lovely Lorden, Jones’ then-girlfriend, left Hudson with little evidence to put before a jury again. The big break in Jones’ bid for freedom came from a federal judge in 2006.
U.S. District Court Judge Terrence Boyle handed down a strongly worded order, taking Jones off death row and calling for a new trial. Boyle called the case against Jones weak and was critical of the performance of Jones’ trial attorneys, Graham Phillips Jr. and Charles C. Henderson. “Jones received two appointed attorneys that spent virtually no time or effort investigating the offense or his background,” Boyle wrote in the order. Jones has maintained his innocence, and members of his close-knit family, many of whom live in Duplin County, said they believed him without a doubt. Friday, they all wanted a piece of Jones during his first minutes of freedom. Emerging from a back hallway at the Duplin County jail, Jones, smiling widely, was met with an ovation. One by one, family members hugged Jones tightly.
Reporters could detain him only briefly before he whisked past them to get outside of the jail. “I’m ready to go,” Jones said. “I’ve been here too long.”
Jones said he expected to be a free man someday, although the N.C. Supreme Court upheld his conviction in 1996. Jones’ 15 years on death row is the longest stint of any condemned inmate in North Carolina who has been freed. During a news conference, Hudson defended his prosecution of Jones, laying blame on the court system. “Any time the court system takes so long to resolve these important legal issues, the [district attorney’s] office is placed in a tough position,” Hudson said.
Hudson is not convinced that Jones is an innocent man, though his attorneys and supporters say otherwise. Jone’s time spent on death row is followed closely by that of Glen Chapman, who was cleared and recently released from death row after 14 years there.
Commentary
Each of these cases brings a variety of thoughts to my mind. I will discuss them in the order in which the cases are mentioned. The Woodard case illustrates that no matter how long a conviction may have stood, that is no indication of it’s reliability. It simply means that no evidence as yet has come out regarding innocence. I say this being well aware that there are guilty people in prison, and that there are some who falsely claim innocence. Thus, courts need to continue to provide a forum from which those who are alleging innocence can have their claims heard and viewed objectively, regardless of the amount of time that has passed or the so-called “Finality Of Convictions”, and the denial of appeals based upon procedure, particularly when innocence as raised, is going in the opposite direction of guilt and innocence being the bedrock of the criminal justice system. We need more review mechanisms for the wrongfully convicted, as I have advocated in the petition on my website, http://www.jeffrey-deskovicspeaks.org/
In my view, while it can clearly be said that Texas has had a big problem with wrongful convictions often occurring there, currently leading the country in the number of exposed cases, that by no means indicates that other states do not have a similar, or as severe a problem. It merely means that Texas has had a lot of them exposed. Since DNA is only available in 10% of all serious felony cases, and it is hard for wrongfully convicted prisoners to obtain quality legal representation, there is no telling how many people have been wrongfully convicted or which states are truly the worst at that. The fact that a state has not yet had an exoneration doesn’t mean it has been infallible. It merely means that they have not, as yet, been uncovered.
The case reaffirms the unreliability of identification testimony, which to date has accounted for 75% of the now 216 DNA exonerations, as well as the insufficiency of the appellate process in protecting society. The need for legislation increasing the accuracy of identifications remains urgent. I find the two denials of requests for DNA testing to be particularly reprehensible, and very reminiscent of former Westchester District Atttorney Jeanine Pirro’s actions in blocking requests for DNA Testing in my case. We need legislation granting each
prisoner the unequivocal right to DNA Testing whenever there is material to test.
The level of deficient representation that Walter Swift received serves as an important illustration of the need for each state’s government to adopt a standardized system of public defense to allow for more streamlining, quality control, and oversight, as well as the need to properly fund the public defender’s office, and to limit the amount of cases that lawyers are allowed to take at one time. In the Bronx, it is not unusual for a public defender to simultaneously represent 120 defendants at one time. It is also important to weed out bad attorneys who continue to
be employed as public defenders, thus setting the stage for future inadequate legal representation and with it more wrongful convictions.
I have mixed feelings regarding the original prosecuting attorney and the police officer. In order to learn best the lessons of this case, the good should be seized upon and emulated, and the bad should not be repeated. On that note, I laud the prosecutor and the policeman for being willing to admit an error and assist in an exoneration that they had directly participated in. It is far too rare. Prosecutors and policemen all
over should take note and follow them in this whenever the facts and circumstances in a case warrant it, rather than fighting tooth and nail to preserve a bad conviction at any cost.
On the other had, both the policeman and prosecutor were aware of how shaky the identification of Swift was, and this should have set off red flags, as should have the other evidence of innocence. The fact that they could ignore alibi evidence of a law enforcement officer, is mindboggling. Additionally, in general, alibi evidence being discounted by police, prosecutors, judges, juries, and appellate judges on the state and federal level, seems to be a common theme in many cases.
Lastly, the wrongfully convicted being denied parole based upon continuing to maintain innocence, also shows up often. We need to have a law in New York, and across the country, that parole applicants cannot be denied parole based upon maintaining innocence, because to do otherwise is not to take into account the reality that innocent people are wrongfully convicted. To extend a stay of incarceration due to
maintaining innocence is to add insult to injury, and to continue an injustice. My stay in prison for a crime I was later proved innocent of by DNA, was extended for a year by the parole board because I would not make an admission of guilt.
The Levon Jones case is further evidence that innocent people will be sentenced to death if we have a death penalty, and therefore the need to keep it out of New York, and have it repealed across the country is paramount if we don’t want to execute innocent people. The theme of bad lawyering raises it’s head, as it did in the Swift case. The prosecutor expressing doubt regarding Jones’ innocence, is reminiscent of the habit of many prosecutors and policemen: not wanting to admit their error or acknowledge that an innocent man was wrongfully incarcerated.
For the prosecutor to then try to blame the court system is disingenuous, because a prosecutor has responsibility in the decisions that the court makes, because they are arguing positions in front of it. Rather than trying to shift blame, maybe they should apply introspection to their actions in fighting against Levon Jones.
I do think that courts should take a lesson and be more careful in reviewing appeals, because it really should have never gotten to the point that Jones was incarcerated for 15 years on death row. Lastly, the movement back in 1997, when the United States Congress passed, and the President signed into law, a procedure cutting down the length of time that someone on death row could spend on appeals, can safely be said to be foolhardy, as has procedures limiting appeals.
Keep Coming Out, Part II
Jeff Deskovic
Several issues ago, I wrote an article entitled “Wrongful Convictions Just Keep Coming Out.” In this issue, I will do a follow-up to that article, further illustrating that theme, with the purpose in mind of trying to raise the awareness of society to the problem of wrongful convictions. People will come to realize, with each passing instance, that wrongful convictions are not rare, that this really can happen to anyone, and does. Furthermore, there is no geographical location which is immune from it happening. The thought “That could never
happen here”, or “that could never happen to me”, are unfortunately myths that we as a society cannot afford to have.
It is also my intention to raise the awareness of those who are in a position to directly do something about it: state senators and assemblypersons in passing bills to protect the innocent; policemen and others in law enforcement, to be sure not to coerce confessions, to be careful when conducting lineups and photo arrays so as not to taint them, with the result of a misidentification occurring, tunnel vision and overzealousness; prosecutors in being on the lookout for the possibility of the police having engaged in the aforementioned, as well as not engaging in prosecutorial misconduct and playing things straight in the courtroom, knowing that defendants are not immune from being wrongfully convicted if they are innocent; and judges in ensuring that trials are fair, and in ruling on the merits of appeals.
Periodically, as more cases are exposed, I will write follow-up articles. The following are major cases of wrongful convictions that have come out since the first installment of this series.
James Woodard was released on April 29, 2008, after spending more than 27 years in prison in Texas for a 1980 murder he has been cleared of by DNA. Woodard was sentenced to life in prison in July 1981 for the murder of a 21-year-old Dallas woman found sexually assaulted and strangled near the banks of the Trinity River. The 27 years he served wrongfully make him the longest-serving wrongly convicted man in the nation to be exonerated by DNA testing.
He is also the 18th person in Dallas County to have his conviction overturned by DNA, which is a figure unmatched by any county in the United States, according to The Innocence Project.
Overall, 31 people have been formally exonerated through DNA testing in Texas, also a national high. at does not include Woodard and at least three others whose exonerations will not become official until Gov. Rick Perry grants pardons or the Texas Court of Criminal Appeals formally accepts the ruling of lower courts that have already recommended exoneration.
The following report was filed by Schuyler Dixon, of the Associated Press, on Woodard’s case: He was convicted primarily on the basis of testimony from two eyewitnesses, said Natalie Roetzel, the executive director of the Innocence Project of Texas. One has since recanted in an af-fidavit. As for the other, “We don’t believe her testimony was accurate,” Roetzel said. Like nearly all the exonorees, Woodard has maintained his innocence throughout his time in prison.
But after filing six writs with an appeals court, plus two requests for DNA testing, his pleas of innocence became so repetitive and routine that “the courthouse doors were eventually closed to him and he was labeled a writ abuser,” Roetzel said.
“On the first day he was arrested, he told the world he was innocent ... and nobody listened,” Jeff Blackburn, chief counsel for the Innocence Project of Texas, said during Tuesday’s hearing. “James Lee Woodard stepped out of the courtroom and raised his arms to a throng of photographers. Supporters and other people gathered outside the court erupted in applause. “No words can express what a tragic story yours is,” state District Judge Mark Stoltz told Woodard at a brief hearing before his release. “I thank God for the existence of the Innocence project,” Woodard, 55, told the court. “Without that, I wouldn’t be here today. I would be wasting away in prison.”
Walter Swift was exonerated on May 21, 2008 by DNA after serving 26 years in Michigan for rape. The Innocence Project, which represents
Swift, released the following report about the case:
For 26 long years, Walter Swift has held onto hope that the truth would finally come out and he would be exonerated. Today, his unimaginable nightmare is ending but he is just beginning the long road to rebuild his life,” said Barry Scheck, Co-Director of the Innocence Project. “He was convicted based on a deeply awed and completely unreliable eyewitness identification. Even at the time of his trial in 1982, there was convincing evidence that he was innocent, but his court-appointed attorney failed to present that evidence. ”
The case stems from a September 1982 home-invasion rape and robbery in Detroit. The victim was a pregnant white woman who was at home with her seven-month old child. She described her attacker as a 15-to-18-year-old African-American man with unusual braids and “poofs of hair” on his head, but no facial hair. After the crime, police asked her to look through hundreds of photos. She selected the photos of seven men who she said resembled the assailant, and the police officer handling the case randomly decided that the next person the victim selected would be brought in for a live lineup.
That person was Walter Swift, who was several years older than the victim’s description of her attacker, had a pronounced black eye at the time of the crime (which was not part of the victim’s description), had a mustache and long sideburns at the time of the crime, and always had closely cropped hair with no braids. Swift - but none of the other seven men whose photos were selected by the victim – was brought in for a lineup, and the victim was told that the eighth man she selected would be in the lineup.
She selected Swift in the lineup, saying that she “believed” he was her attacker. The police officer who initially investigated the case and handled the photo identification believed that the victim’s identification was uncertain and unreliable – but at Swift’s trial, the jury heard only that she selected his photo and his photo alone, that she identi-fied him in a lineup, and that she was certain he was the assailant.
In addition to the flawed and unreliable eyewitness identification, forensic testing before Swift’s trial supported his claims of innocence – but the jury never heard that forensic evidence. An analyst who tested semen from the perpetrator determined that if the sample she was testing was clean enough (meaning it was predominately semen from the perpetrator, which it likely was), Swift could not have been the perpetrator based on his blood type.
That analyst was never called to the stand at Swift’s trial, and she was shocked to learn in recent years that Swift had been convicted.
Swift’s court-appointed trial attorney, Lawrence R. Greene, did not adequately pursue the identification procedure during the trial and did not present the exculpatory forensic evidence. Greene has been suspended from practicing law several times in just the last decade based on misconduct and inadequate representation in other cases.
From the first time police questioned Swift about the crime, he had an airtight alibi from a woman he was dating at the time. The woman, whose relationship with Swift ended two decades ago, maintains that she was with Swift when the crime was committed, and she had documentation at the time of trial (shopping receipts) corroborating her story of their whereabouts. She has been a law enforcement officer for 24 years and has no motive to fabricate an alibi for Swift. Swift had been denied parole five times since 2000 because he would not admit to a crime he didn’t commit.
The Innocence Project accepted Swift’s case 10 years ago, hoping to conduct DNA testing on crime scene evidence that could prove his innocence. The evidence had all been lost or destroyed – but the Innocence Project began to uncover evidence about the eyewitness
identi-fication procedure, the forensic testing, Swift’s alibi and the depths of his inadequate defense counsel at trial. “Over the course of a decade, each layer we pulled back led to more evidence that Walter Swift is innocent,” said Innocence Project Staff Attorney Olga Akselrod.
“We also began to work with people throughout the criminal justice system, some of whom were directly involved in convicting Mr. Swift, who were becoming increasingly convinced of his innocence. It’s highly unusual to have the original prosecutor, the police officer who investigated the case and the lab analyst who handled the case all come forward to support an innocent prisoner – but that’s exactly what happened in this case.”
In an extraordinary development, the prosecutor who convicted Swift, and the police officer who initially investigated the case, both assisted the Innocence Project in seeking to vacate Swift’s conviction. Both filed formal affidavits, as did the alibi witness. The Innocence Project presented all of the evidence in the case to Wayne County Prosecuting Attorney Kym Worthy, whose office investigated it thoroughly.
“The Prosecuting Attorney’s office looked at this case carefully and closely. Each piece of evidence needed to be analyzed on its own and in combination with the other evidence, and the Prosecuting Attorney was extraordinarily thoughtful and reached the right conclusion,” Scheck said. Barry Scheck said, “Walter Swift wasn’t the first person in Michigan who was wrongfully convicted based on eyewitness misidentification, and he won’t be the last. A bill is pending in the Michigan Legislature that would make sure photo arrays and lineups
are conducted properly, based on what decades of scientific research and practical experience shows can reduce misidentifications.
The Legislature should make this bill a priority and pass it promptly,” Scheck said. The following account of the Levon Jones case is taken from an article written by Titan Barksdale of The News And Observer: In 1993, a Duplin County jury convicted Jones, now 49, of first-degree murder in the 1987 shooting death of Leamon Grady, a local bootlegger. The jury also convicted him of robbery with a dangerous weapon and conspiracy.
District Attorney Dewey Hudson, the top prosecutor in a district including Duplin, dismissed all of the charges against Jones on Friday, saying his star witness’ recent recantation of trial testimony was the main reason for his decision. The recantation of Lovely Lorden, Jones’ then-girlfriend, left Hudson with little evidence to put before a jury again. The big break in Jones’ bid for freedom came from a federal judge in 2006.
U.S. District Court Judge Terrence Boyle handed down a strongly worded order, taking Jones off death row and calling for a new trial. Boyle called the case against Jones weak and was critical of the performance of Jones’ trial attorneys, Graham Phillips Jr. and Charles C. Henderson. “Jones received two appointed attorneys that spent virtually no time or effort investigating the offense or his background,” Boyle wrote in the order. Jones has maintained his innocence, and members of his close-knit family, many of whom live in Duplin County, said they believed him without a doubt. Friday, they all wanted a piece of Jones during his first minutes of freedom. Emerging from a back hallway at the Duplin County jail, Jones, smiling widely, was met with an ovation. One by one, family members hugged Jones tightly.
Reporters could detain him only briefly before he whisked past them to get outside of the jail. “I’m ready to go,” Jones said. “I’ve been here too long.”
Jones said he expected to be a free man someday, although the N.C. Supreme Court upheld his conviction in 1996. Jones’ 15 years on death row is the longest stint of any condemned inmate in North Carolina who has been freed. During a news conference, Hudson defended his prosecution of Jones, laying blame on the court system. “Any time the court system takes so long to resolve these important legal issues, the [district attorney’s] office is placed in a tough position,” Hudson said.
Hudson is not convinced that Jones is an innocent man, though his attorneys and supporters say otherwise. Jone’s time spent on death row is followed closely by that of Glen Chapman, who was cleared and recently released from death row after 14 years there.
Commentary
Each of these cases brings a variety of thoughts to my mind. I will discuss them in the order in which the cases are mentioned. The Woodard case illustrates that no matter how long a conviction may have stood, that is no indication of it’s reliability. It simply means that no evidence as yet has come out regarding innocence. I say this being well aware that there are guilty people in prison, and that there are some who falsely claim innocence. Thus, courts need to continue to provide a forum from which those who are alleging innocence can have their claims heard and viewed objectively, regardless of the amount of time that has passed or the so-called “Finality Of Convictions”, and the denial of appeals based upon procedure, particularly when innocence as raised, is going in the opposite direction of guilt and innocence being the bedrock of the criminal justice system. We need more review mechanisms for the wrongfully convicted, as I have advocated in the petition on my website, http://www.jeffrey-deskovicspeaks.org/
In my view, while it can clearly be said that Texas has had a big problem with wrongful convictions often occurring there, currently leading the country in the number of exposed cases, that by no means indicates that other states do not have a similar, or as severe a problem. It merely means that Texas has had a lot of them exposed. Since DNA is only available in 10% of all serious felony cases, and it is hard for wrongfully convicted prisoners to obtain quality legal representation, there is no telling how many people have been wrongfully convicted or which states are truly the worst at that. The fact that a state has not yet had an exoneration doesn’t mean it has been infallible. It merely means that they have not, as yet, been uncovered.
The case reaffirms the unreliability of identification testimony, which to date has accounted for 75% of the now 216 DNA exonerations, as well as the insufficiency of the appellate process in protecting society. The need for legislation increasing the accuracy of identifications remains urgent. I find the two denials of requests for DNA testing to be particularly reprehensible, and very reminiscent of former Westchester District Atttorney Jeanine Pirro’s actions in blocking requests for DNA Testing in my case. We need legislation granting each
prisoner the unequivocal right to DNA Testing whenever there is material to test.
The level of deficient representation that Walter Swift received serves as an important illustration of the need for each state’s government to adopt a standardized system of public defense to allow for more streamlining, quality control, and oversight, as well as the need to properly fund the public defender’s office, and to limit the amount of cases that lawyers are allowed to take at one time. In the Bronx, it is not unusual for a public defender to simultaneously represent 120 defendants at one time. It is also important to weed out bad attorneys who continue to
be employed as public defenders, thus setting the stage for future inadequate legal representation and with it more wrongful convictions.
I have mixed feelings regarding the original prosecuting attorney and the police officer. In order to learn best the lessons of this case, the good should be seized upon and emulated, and the bad should not be repeated. On that note, I laud the prosecutor and the policeman for being willing to admit an error and assist in an exoneration that they had directly participated in. It is far too rare. Prosecutors and policemen all
over should take note and follow them in this whenever the facts and circumstances in a case warrant it, rather than fighting tooth and nail to preserve a bad conviction at any cost.
On the other had, both the policeman and prosecutor were aware of how shaky the identification of Swift was, and this should have set off red flags, as should have the other evidence of innocence. The fact that they could ignore alibi evidence of a law enforcement officer, is mindboggling. Additionally, in general, alibi evidence being discounted by police, prosecutors, judges, juries, and appellate judges on the state and federal level, seems to be a common theme in many cases.
Lastly, the wrongfully convicted being denied parole based upon continuing to maintain innocence, also shows up often. We need to have a law in New York, and across the country, that parole applicants cannot be denied parole based upon maintaining innocence, because to do otherwise is not to take into account the reality that innocent people are wrongfully convicted. To extend a stay of incarceration due to
maintaining innocence is to add insult to injury, and to continue an injustice. My stay in prison for a crime I was later proved innocent of by DNA, was extended for a year by the parole board because I would not make an admission of guilt.
The Levon Jones case is further evidence that innocent people will be sentenced to death if we have a death penalty, and therefore the need to keep it out of New York, and have it repealed across the country is paramount if we don’t want to execute innocent people. The theme of bad lawyering raises it’s head, as it did in the Swift case. The prosecutor expressing doubt regarding Jones’ innocence, is reminiscent of the habit of many prosecutors and policemen: not wanting to admit their error or acknowledge that an innocent man was wrongfully incarcerated.
For the prosecutor to then try to blame the court system is disingenuous, because a prosecutor has responsibility in the decisions that the court makes, because they are arguing positions in front of it. Rather than trying to shift blame, maybe they should apply introspection to their actions in fighting against Levon Jones.
I do think that courts should take a lesson and be more careful in reviewing appeals, because it really should have never gotten to the point that Jones was incarcerated for 15 years on death row. Lastly, the movement back in 1997, when the United States Congress passed, and the President signed into law, a procedure cutting down the length of time that someone on death row could spend on appeals, can safely be said to be foolhardy, as has procedures limiting appeals.
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