Thursday, January 31, 2008
Reviewing Another Questionable
Dobbs Ferry Conviction On Appeal
By Jeff Deskovic
On January 17th, the Appellate Division, Second Department, of State Supreme Court, heard oral arguments in the appeal of Steven Nowicki, former grammar school teacher in the Dobbs Ferry School District. Convicted of child molestation in 2000 and serving 16 years in state prison. Mr. Nowicki’s present appeal is based largely upon ineffectiveness of trial counsel, however, there were several issues involving police and prosecutorial misconduct, not the least of which included the disappearance of nearly two dozen e-mail correspondences between the alleged victims’ mother and teacher Nowicki as well as serious issues of expert witness credibility and chain of custody with respect
to DNA evidence presented at trial.
On Dec 31, 1998, Steven Nowicki, a 5th grade Dobbs Ferry grade school teacher, was invited to an impromptu New Years Eve gathering at the home of Peter and Nancy Losee and their three children - two sons and a daughter. Mrs. Losee had previously exchanged numerous e-mail communications with Nowicki prior to the event. Nowicki arrived at approximately 4:30 p.m. and remained the entire evening, along with approximately 25 guests and their children. At approximately 12:15 a.m., when most of the other guests had left, Nancy picked up her daughter and the two went to the master bedroom. Nowicki, the last remaining guest, sat for another 20 minutes with a wine glass in his hand
watching television with Peter and his grade-school-aged boys.
Suddenly, Nowicki stood up from his chair and left the house without saying a word; uneasy on his feet and stumbling as he rounded the corner to go out the door. It was Peter Losee’s impression that Nowicki was drunk. Several minutes later, Peter went outside and found Nowicki slumped in the driver’s seat of his vehicle with his head on the steering wheel. Believing him to be too drunk to drive, Peter awakened him and invited him back into his home to sleep it off. Nowicki stumbled back into the house where he laid down on a loveseat. Peter gave him a blanket and told him to sleep on the couch in the living room. Meanwhile, both of the Losee boys had gone to sleep in their bunk bed. There were two different versions of what then followed by one of the alleged juvenile victims: One son originally reported that
he was asleep in his bunk when he was suddenly awakened in his dark bedroom by the sound of the ladder that led up to his brother’s upper bunk, banging against the bed. He said he went back to sleep because he was scared. He was awakened the second time when he felt someone touching him. He claimed he did not know how his pajamas came to be pulled down. He claimed that he told the man to stop.
While being touched, he felt scared that “he would just throw me back,” but the man did not hurt him or threaten to hurt him. He then saw the man climb up the ladder towards his brother’s bunk, and then somehow fell back asleep. However, he woke up a third time when the man left the room, and claimed that he realized that the man was Nowicki. At trial, the same boy, on cross examination, testified that he was
awakened by the sound of someone banging into the ladder and then fell asleep when he saw the shape of a person standing on the ladder going to his brother’s bed. After this, he claimed he was awakened the second time by the sound of footsteps and saw the man leaving the room. In this second version, he repeatedly made no mention of anyone touching him.
His brother testified that he was asleep in bed when he was awakened by a hand rubbing his chest. He claimed that he realized that a man was on top of his legs, his feet were at the end of the bed, and he was on top of him. He said he did not yell because he was too shocked. He was then touched. After the man stopped touching him, he left the bed, walked out of the room, went to the bathroom, and turned on the light in the bathroom. The boys reportedly asked each other if they were okay, replying yes. Then one victim went to sleep. The other saw Nowicki reenter the room and lay down on the floor, and thereupon gave him a stuffed animal to use as a pillow. After several minutes, one of them left the bedroom and went to tell the mother what happened. Steven Nowicki testified in his own defense at trial and denied ever having
molested the boys. There are allegations that Nowicki made admissions to police officers, which the police say were never signed
nor recorded; Nowicki denies having made them.
In his brief before the Appellate Division, Nowicki raises the principle issue that his lawyer was ineffective. The standard for evaluating whether a lawyer has been ineffective is not merely whether strategy was unsuccessful and a defendant was therefore found guilty, but
rather whether the performance of the lawyer fell below an objective standard of reasonableness, and, whether that performance prejudiced the defendant. The actions that Nowicki points to, in his claim of ineffective representation, include:
1) Failure to object to inadmissible and highly prejudicial hearsay testimony concerning prior consistent statements made by child witnesses to each other, to their parents, police, and medical personnel.
2) Failure to object to inadmissible expert testimony that Nowicki’s DNA was found on one of the children’s genitals, because no foundation had been laid to establish the integrity of the samples tested, and an unaccounted for saliva sample that could have cross contaminated the tested samples.
Note: With regard to this claim, there are serious questions with regard to the integrity of the DNA sample used to convict Mr. Nowicki. In fact, the District Attorney’s Office was not able to get either the Westchester County Forensic Laboratory nor any testing facility on the East Coast to test and certify the origin and integrity of the samples. The Prosecution’s expert witnesses consisted of a technician and her supervisor from the State of Washington, each of whom promptly and intentionally disappeared following their testimony at trial. However, even those witnesses acknowledged that the sample was contaminated in that it contained female as well as male DNA.
3) Wrongly conceding the presence of Nowicki’s saliva on the child’s genital area, when in fact the evidence did not establish that his saliva was there.
4) Failure to object to the Prosecutor’s repeated and improper efforts on direct examination and cross-examination of Nowicki, to adduce otherwise inadmissible evidence regarding his post-Miranda silence.
5) Failure to object to inadmissible lay opinion testimony from party guests that Nowicki was involved in inappropriate behavior with an alleged child victim prior to the alleged sexual contact.
6) Failure to object to a jury charge request made by the Prosecutor, that shifted the burden of proof from the Prosecution to the Defense.
The Westchester District Attorney’s brief counters these claims, arguing:
1) The fact that his trial attorney told the Judge that there was a reason that he was not objecting, and therefore letting inadmissible evidence in was proof that it was strategy, in that by allowing all of these accounts to be testified to it showed discrepancies.
2) That the DNA had proper foundation, and that this, too, was strategy.
3) That the Defendant chose to waive his Miranda rights and answered some questions, and therefore could be cross-examined about his failure to inform the police about exculpatory circumstances.
4) That the questioning of the lay persons was within the limit of what the judge allowed, and to the extent that it went beyond it, it was a strategic decision by the lawyer.
5) That the People had a right to request the jury instruction.
This is a case of egregious prosecutorial misconduct. The Assistant District Attorney was well aware that it was improper to elicit hearsay testimony against Nowicki. The trial judge was even concerned about this, stating, “I’m getting disturbed here, because, first of all, you’re bringing in the victim’s stories through every single witness, and no objection.”
Similarly, it was improper to preempt any of Nowicki’s defenses before he even asserted them. By the Prosecution asking police officers if Nowicki ever mentioned this or that, it served to head off any defense before he even got a chance to raise it. The reason that this is improper to do is because it would require a Defendant to set forth every fact that they possibly could before they were ever arrested. It would punish
defendants from exercising their Fifth Amendment Right to remain silent, or even to choose which questions to answer. It would punish suspects for declining to speak to the police until represented by a lawyer, because at trial when testifying as to what happened,
an adverse inference could be drawn because they didn’t speak previously.
This reporter is a big proponent of DNA. Were it not for DNA having matched the real perpetrator, I would not be free. DNA does not yield false negatives. When the test is performed correctly, the results of a match are unassailable. That, however, presumes that all of the correct protocols have been exercised, and that there has been no contamination. Nationwide, out of the 212 DNA exonerations to date, there were three people who were wrongfully convicted by contaminated DNA, which subsequent tests, years later, went on to clear. A big part of ensuring the accuracy of tests is the maintaining of the chain of custody so that the evidence, at all times, is accounted for, thus insuring
that no contamination takes place.
The Crime Lab in Houston, Texas, for example, has contributed to many wrongful convictions because that lab does not practice proper protocols during testing. That is why it has repeatedly been audited and warnings have been issued that it was not following correct protocols. In the Nowicki case, as the trial judge pointed out in his questioning of the Prosecution DNA expert witness regarding the condition of the packaging of the samples; whether the integrity of the packaging was ensured, there was a possibility that Nowicki’s saliva contaminated other samples. The following exchange by the Judge and Prosecutor, taken from the trial transcript, is most telling:
Judge: “I just have a question about this very important evidence. I feel I need to know what happened to the sealed package.”
ADA: “What sealed package, Judge?”
Judge: “What happened to the package which the material arrived in?”
ADA: “Do you mean the Federal Express box?”
ADA: “Ask her.”
Judge: “No. I’m not the prosecution. This is important evidence for the chain of custody, it is extremely significant.”
ADA: “Judge, I really don’t know why you’re going here. She has explained these items arrived in their own packaging.”
Judge: “If you don’t know where I am going, you better go back and read a book.”
Following this exchange, the expert testified that she did not see any leakage or evidence of contamination or tampering. However, no questions were asked regarding the steps to safeguard the saliva tube to prevent crosscontamination prior to being placed in the evidence freezer. Thus, the DNA result in Nowicki’s case should be discounted. The Prosecution argued that there was “overwhelming evidence of guilt.” This phrase is, in general, a favorite catchall phrase that most prosecutors resort to. In the process of ‘rubber-stamp denial’ of appeals, many Appellate Courts often side with prosecutors on this issue regardless of the facts or evidence.
As an example of this, in my own direct appeal, the Prosecution argued that there was “overwhelming evidence of guilt”, and actually got the Appellate Division, Second Department, State Supreme Court, to agree with them 5-0. The reason that prosecutors often make this argument is because they are asking courts, and the public, to overlook errors, in fact implying that “this error does not matter, because he would have been convicted anyway.” That line of reasoning is fallacious and highly prejudicial because once an error has occurred, it impacts upon the
fairness of a trial; changing the entire proceeding, what happens afterwards, and how subsequent evidence is viewed. There is no telling how cases would turn out but for intentional and honest errors. In fact, if many of the errors that are intentionally committed nationwide by overzealous prosecutors were “harmless”, the prosecutors would not bother to commit them.
In this case, given the fact that the jury deliberated for four days weighing the evidence, which essentially pitted Nowicki’s testimony vs. the alleged victims’, not really corroborated by the DNA and all of the questions surrounding it’s preservation from contamination, it is a blatant miscategorization to say that there was overwhelming evidence of guilt. Rather, it is clear that for the jury this was a close case, otherwise
the deliberations would only have lasted for a short time.
Reflecting upon the theory as set forth by the Prosecution:
1) that Nowicki feigned being drunk, stumbling out of the door, and then again in his car putting his face on the steering wheel pretending to sleep, in hope that Peter Losee will come out and invite him back inside the house so that he can molest the children; I find that it defies all logic, common experience, and is borderline absurd.
2) That while in bunk beds, one boy was molested by Nowicki, and then as Nowicki climbs up the ladder and molests the other one, the first victim does not get up and run to his parents, scream, or holler, to me, seems too big a stretch to be believed.
3)That one boy gives two different accounts of what happened, one of them clearing Nowicki by not mentioning any criminal conduct on his part, and the other implicating him suggests that they are not truthful witnesses. The accounts they give of a claimed traumatic event may contain minor differences because of memory not being perfect, particularly due to trauma, shock, and the ability to recall everything, down
to the very last detail, completely on point, time after time; but it will not alternately characterize an assailant as innocent, and then guilty.
4) Finally, considering the fact that Nowicki was found by the father sleeping in the doorway of the boys’ room, it defies logic that someone would molest, and then subsequently go to sleep, as if nothing had happened.
There are reportedly two million people currently entangled within the web of the criminal justice system in this country, whether in prison, on parole, or on probation. If we are ultraconservative and say that a mere five percent of all persons arrested are innocent, the number of wrongfully convicted and imprisoned is staggering. In the 16 years that I served in state prison for a crime for which I was wrongfully convicted, six inmates that I personally knew were cleared before before I was, and another was cleared immediately after me. That having been said, I am not so naïve as to believe that everybody who is in prison is innocent. Neither do I say that everyone who states that they are
innocent is, in fact, innocent. However, the Steven Nowicki case has all of the hallmarks of a wrongful conviction, and I personally believe,
based upon the facts set forth, that Steven Nowicki deserves a new trial, with competent counsel, and without all of the errors that occurred in his first one, and, most importantly, without the prosecutorial misconduct that occurred in his first one. For his trial attorney to have allowed all of the unobjected to occurrences to go on at trial, it is clear that he was not protecting his clients rights, nor affording him the
counsel that all of us are entitled to under the Sixth Amendment to the Constitution.
Our Readers Respond...
Reader Defines Guardian’s Mission
Great job on your paper. You are the only one telling the real story of what goes on in the County.
Thank you! It’s nice to be appreciated. - Editor
Assemblywoman Galef Sets Forth 2008 Priorities
After working hard for years on critical issues facing the 90th Assembly District as well as New York State, I was very pleased to hear many of my priorities for 2008 echoed in Governor Spitzer’s State of the State message.
Currently, property taxes are spiraling out of control. That’s why, as chairperson of the Assembly Real Property Tax committee, I introduced legislation calling for a Blue Ribbon Commission of experts to come up with solutions for alternative school funding mechanisms. One possible solution, similar to the fix in place in Massachusetts, caps taxes but allows school districts to override the cap for high need items.
I also introduced a middle-class circuit breaker bill to help those most acutely impacted by property tax increases. Governor Spitzer proposed a similar bipartisan commission to offer recommendations that look at root causes of high taxes, make tax relief fairer for middle class taxpayers, and offer a fair and effective cap to school property taxes. I will continue to work with this commission and support
property tax relief.
My commitment to help constituents rein in costs also aligns with energy savings in my Smart Meter bills, another priority Governor Spitzer highlighted. Smart metering allows homeowners to control utility costs with an in-home monitor that displays minute-by-minute costs of energy based on demand. This reduces costs and helps households cut back overall energy consumption, specifically at highcost,
high demand times. It mitigates potential overflow on the utility’s grid, and helps the environment.
I have and will continue to push for consolidation of government and shared services between school districts, municipalities, county and state government. Surely, in this time of economic hardship we can do better at reducing overlap and streamlining processes. My work on children’s health and wellness, education and government reform are renewed priorities which the Governor supported in his message.
Please join me at my upcoming town meetings, call my office, and/or respond to my newsletter survey to let me know how we can partner. Together, we can maintain and improve the quality of life we’ve come to expect in New York State.
Sandy Galef, Assemblywoman 90th Assembly District
In Our Opinion....
Andrew Cuomo Is Getting Bad Advice And, What’s Worse, He’s Taking It
Firstly, Andrew Cuomo should not have stepped in to the Marty Tankleff case, particularly, as a Special Prosecutor at the behest of Governor Eliot Spitzer. For one thing, the separation of powers between his office and the Governor’s would suggest a serious conflict.
Also, by accepting the Special Prosecutor status, a State Attorney General compromises his autonomy. He had the authority to step into the case without the Governor’s assignment.
Attorney General Cuomo should realize that if he had the power to investigate the “TrooperGate” misconduct of the Governor’s Office, and
the Governor had no power to quash it, he ought not be taking investigative assignments or prosecutorial assignments, from the Governor.
After all, the State Commission of Investigation was already involved in the case for a year. What was Spitzer up to? What is Cuomo up to?
Secondly, Andrew Cuomo was on the wrong side of the judicial candidate issue; nomination of State Supreme Court candidates by corrupt
horse-trading creatures like Judges Joseph Alessandro and Jonathan Lippman; using cross-endorsements to lock up election in the State’s
judicial districts, horse-trading patronage jobs with creatures like Giulio Cavallo, Zehy Jereis, and the like.
What does Mr. Cuomo know about the widespread RICO enterprise in the Matrimonial Part of State Supreme Court? What does he know
about the issuance of bogus Temporary Orders Of Protection, and the appointment of corrupt money-hungry law guardians? Why would he
opt to keep the courts as they are, shameful as they are? Is there no Constitutionally-forbidden issue that this Scalia-controlled Supreme Court will not put their shoe print on?
At law school, in Constitutional Law 101, we learned that the Supreme Court of the United States was not supposed to involve itself in matters political. Of course, that highest of all tribunals trashed that sacred rule in 2000 when it stepped into the election dispute between Al Gore and George Bush.
Needed: A Search For The Truth
In the May 17, 2007 edition of The Guardian, a front-page headline declared, “Perez Killing Demands FBI Investigation”. In the In Our Opinion editorial, we opined, “It doesn’t require the wisdom of Solomon to recognize that neither the Mount Kisco Village Police, nor the Bedford Town Police Department, should be actively engaged in the investigation of the ‘Death by Homicide’, as determined by the Westchester Medical Examiner’s Office, of Rene Perez in the early morning hours of April 29.”
In our September 29, 2007 issue, the front page headline declared, “Bubaris Indictment: Many More Questions; Few, If Any, Answers.” The Advocate column, in that issue, asked, “Will Officer Bubaris be sacrificed for the sins of many?” We were concerned then, and we are increasingly concerned now, that investigation by the Westchester District Attorney’s Office, an of-fice that, over the years, has knowingly,
and maliciously, sent several innocent police officers like Matthew McKerrick, and Richard DiGuglielmo, to prison; an office that has repeatedly demonstrated its willingness to sacrifice rank and file police officers to cover the criminal conduct of high-ranking brass, as
in their present harrassment of Harrison Police Officer Ralph Tancredi, would be a serious mistake.
In the September 20 issue we voiced our further concern over Assistant District Attorney Michael Hughes’ direct involvement in the Bubaris prosecution, as we indicated, “given his correspondence in the McKerrick case, suggesting (to the brother of Officer McKerrick) that it didn’t matter if the DA’s Office knew the man they prosecuted and sent to prison was innocent.”
The release, last week, to the media of taped conversations between two Bedford Police Of-ficers and a third unidentified party, in which
the exchange of comments reflected a callous lack of concern, a lack of feeling with respect to undocumented alien Rene Perez’s loss of
life, and the responses of Officer Bubaris’ attorney, Edward Hayes, as well as the Westchester District Attorney’s Office, deepens our concern with respect to the investigation. Attorney Hayes, who has conceded that his client, Officer Bubaris, in fact, drove Rene Perez out to the area on Byram Lake Road, near where he was later found, weak and near death, had issued numerous subpoenas in an effort to get to the truth. The Westchester District Attorney’s Office, not surprisingly, was attempting to quash every one of them.
We have a serious problem with a Prosecutor’s Office that is not willing to permit the truth to surface, an office that says, in effect, “Our mind is made up, don’t confuse us with facts.” We have a serious problem with an of-fice that not only has a bad record in its treatment of innocent rank and file police officers, but furthermore, has been cited as having committed the worst Brady violation (the intentional withholding of exculpatory information) ever seen in 12 years on the bench by United States Second Circuit Court of Appeals Judge Calabresi, as so declared in the Anthony Disimone decision.
Three hundred seventy six pages, fifty two boxes, and miles of exculpatory tapes were intentionally withheld from an innocent man, Anthony Disimone, for 13 years, seven of which he spent in State Prison. Every individual involved in that conspiracy, in that prosecutorial
misconduct, top to bottom, should be jailed.
Under the circumstances, it is not acceptable for the United States Attorney’s Office and the FBI to continue to leave the investigation and prosecution of Rene Perez’ death by homicide in the hands of the Westchester DA’s Office. That Office’s record, with regard to prosecutorial misconduct, in the malicious prosecution of innocent rank and file police officers, coupled with their “legendary withholding” of Brady material, is surely known to federal authorities and compels an immediate takeover of the investigation.
With regard to Defense Attorney Hayes’ attempt, by subpoena, to gather vital discovery material concerning certain officers of the Bedford Town Police Department, last Thursday, January 24th, appearing before State Supreme Court Justice Les Adler, Hayes agreed to withdraw his subpoenas and submit a motion to the Court by Monday, January 28. Judge Adler, keenly aware of the importance of such materials to the mounting of a competent defense, particularly in light of the recently leaked tapes, instructed Prosecutors that he expected their prompt answer the following day.
The Court Report
By Richard Blassberg
Federal Court Rules Port Chester’s System Of Election Discriminates Against Hispanic Voters
United States Attorney
Southern District of New York
MICHAEL J. GARCIA, the United States Attorney for the Southern District of New York, and GRACE CHUNG BECKER, the Acting Assistant Attorney General of the Civil Rights Division of the United States Department of Justice, announced that a federal judge in White Plains, New York, has ruled that the at-large system of election used by the Village of Port Chester, New York, to elect its Trustees violates
the Voting Rights Act because it discriminates against Hispanics. In a 56-page decision dated January 17, 2008, and released on January 22, 2008, United States District Judge STEPHEN C. ROBINSON ruled that after performing a “thorough and careful analysis,” he concluded that “the Village of Port Chester’s at-large system for electing its Board of Trustees violates Section 2 of the Voting Rights Act.”
The United States filed a Complaint on December 15, 2006, alleging that Port Chester’s at-large election system diluted the voting strength of the Village’s Hispanic citizens. The same day, the United States filed a motion to enjoin Port Chester from using its at-large system on March 20, 2007, to elect two new trustees. On March 2, 2007, following a 10-day hearing, Judge ROBINSON issued a preliminary injunction enjoining Port Chester from proceeding with its March 20, 2007 election, finding that the United States had shown that it was likely to prevail on its claim.
The Court’s decision today came after an additional five days of testimony and post-trial briefing. According to the evidence at trial, and as cited in Judge ROBINSON’s opinion, the 2000 census shows that almost half of Port Chester’s residents, and 22% of Port Chester’s citizens of voting age, were Hispanic. By July 2006, the number of Hispanic citizens of voting age had increased to about 28%. Despite these figures, no Hispanic has ever been elected to Port Chester’s municipal legislature, the six-member Board of Trustees. Indeed, no Hispanic has ever been elected to any public office in Port Chester, despite the fact that Hispanic candidates have run for office 6 times – twice for the
Board of Trustees, and 4 times for the Port Chester Board of Education, which manages a school system that is overwhelmingly Hispanic.
In ruling for the United States, the Court also found that:
• a six-district plan could be drawn for Port Chester in which Hispanics
would constitute a majority of the citizen voting age population in at least one district;
• Hispanics in Port Chester voted cohesively for their candidates of choice and these candidates of choice were routinely defeated;
• voting in Port Chester is polarized by ethnicity;
• Hispanics in Port Chester suffered from the lingering effects of discrimination that negatively affected their ability to participate in the political process; and
• racial appeals – in particular an anti-Hispanic flyer in the 2007 Mayoral race – had marred recent political campaigns.
Mr. GARCIA stated: “Judge Robinson noted in his decision that a citizen, later appointed to Port Chester’s Voting Rights Commission, argued that Port Chester should be exempted from the application of the federal Voting Rights Act. Fortunately for the minority citizens of that Village, whose federally protected voting rights were diluted by Port Chester’s at-large election system, the Act applies in full force
there, as it does in every municipality. We hope that Port Chester will move forward and work with us to develop a district-based election system that remedies the violation of the Voting Rights Act that Judge Robinson has found.”
“We are very pleased with the Court’s ruling that Port Chester’s election system violates Section 2 of the Voting Rights Act,” said GRACE CHUNG BECKER, the Acting Assistant Attorney General for the Civil Rights Division. “This ruling will compel Port Chester to adopt an electoral system that will enable Hispanic voters to participate with all other voters as equals in the electoral process.”
The Court ordered the parties to file proposed remedial plans in writing with the Court within three weeks, and stated that the Court would
thereafter schedule a one-day hearing on the proposed remedies. Assistant United States Attorney DAVID J. KENNEDY of the Southern
District of New York and Department of Justice Trial Attorney TIMOTHY F. MELLETT are handling the case.
Additional information about the Voting Rights Act and other federal voting laws is available on the Department of Justice website at www.usdoj.gov/crt/voting/index.htm.
For many decades, the Village of Port Chester has maintained a six member Board of Trustees without even one Hispanic member by operating an at-large election system intended to sufficiently dilute the Hispanic population and frustrate any effort to elect an Hispanic candidate. That was essentially the argument advanced by the United States Department of Justice, and Mr. Cesar Ruiz, an unsuccessful candidate for Trustee, joint Plaintiffs in an action in Federal District Court, White Plains, charging discrimination in violation of the Voting Rights Act.
Early last year, the Government presented prima facia evidence of de facto discriminatory voting practices and outcomes over many years, sufficiently persuasive to Judge Stephen C. Robinson to invoke a temporary injunction, thus voiding the offending at-large regimen for the March 20, 2007 Trustee election. The case quickly proceeded to trial with the Government represented by Assistant United States Attorneys David J. Kennedy and Timothy F. Mellett. Mr. Ruiz was represented by Randolph McLaughlin, locally recognized Civil Rights and Labor attorney, closely associated with Pace University Law School.
Anthony Piscionere, a Republican leader, and attorney, from Rye, represented the Defendant Village of Port Chester. The Government presented two alternative plans, one of which would establish three voting districts; the other six, that would replace the at large system with one that would have at least one district in which Hispanic residents, of voting age, would comprise a sufficient voting bloc capable of electing an Hispanic candidate if that be the choice of the majority of said voters. In rejecting both “Plan A” and “Modified Plan A” as
the Government’s proposed regimes came to be known, the attorney for the Village of Port Chester argued unconvincingly that either plan would have “packed the non-Hispanic White population of the Village, concentrating them into certain districts.”
In reaching his decision, Judge Robinson rejected Defense arguments, declaring, “The mere fact that there are greater concentrations
of non-Hispanic Whites in certain areas and greater concentrations of Hispanics in other areas, does not indicate any sort of nefarious effort; instead, this merely is a reflection of the reality of residential segregation in Port Chester.” Supporting Robinson’s conclusion, Plaintiff’s expert witness, Professor Robert Courtney Smith, an expert in the field of historic socio-economic discrimination against Hispanics in New
York, had labeled Port Chester “a very segregated town.”
Judge Robinson apparently did not intend to wait very long before installing a new system. He has ordered both sides to submit remedial plans within three weeks. It is likely the Government will re-propose Plan A and Modified Plan A. In addition to de facto evidence of voting rights violations, resulting from the at-large election system, Judge Robinson noted other discrimination-based activity, stating, “There can be no question that the most recent election for Mayor of Port Chester was marred by a racial appeal.” He was, of course, referring to a mailing which he described as a “blatant racial message, one which several witnesses conceded was racist,” as being, “troubling to this Court."
Wednesday, January 30, 2008
Northern Westchester Bureau Chief
Peekskill/Cortlandt Community Deals With Issues of Race
Recently, in the Presidential campaign, the rhetoric from the Democratic candidates has revolved around the issue of race. As allegations
have flown, questions have been raised: Is race still an issue in our society and how far has America come since the Civil Rights Era?
No communities in Northern Westchester are more sensitive to this issue lately than the neighboring towns of Cortlandt and Peekskill, recent sites of two of the most prevalent kinds of racial attacks: hate crimes, and “Black-on-Black” violence. Last Thanksgiving eve, a cross was burned in the front yard of an African-American family in Cortlandt. And this past month, a young African-American man was allegedly killed by his girlfriend. As reported in The Westchester Guardian on December 13, 2007, the Town of Cortlandt held a public forum to
address the issues and concerns raised by the community. In response to the community’s needs, the Peekskill Area Pastor’s Association (PAPA) recently hosted a “Day of Celebration” appropriately scheduled for January 21, 2008, Martin Luther King Day, at the Peekskill High School Auditorium.
The event was filled to standing-room-only capacity in the 640 seat forum with community members of all races, ages, religions, towns, and political persuasion. After an interfaith prayer service led by the local Jewish, Muslim, and Christian representatives, several local community leaders offered their perspectives of what Dr. King’s dream meant to them and to the community. Dr. Judith Johnson, the Superintendent of the Peekskill School District and recently appointed New York State’s 2008 Superintendent of the Year, reminded the community that “today cannot be the only time we pause to remember Dr. King’s message of non-violence. The response to injustice must be accomplished with words, not weapons”. Dr. Johnson noted, “Every young person in our midst must dream, and their access to education
to achieve those dreams is a civil right”.
Note: Dr. Johnson’s record in the Peekskill schools attests to her beliefs – as the State Council of School Superintendents noted in their
announcement of her appointment: “Judith Johnson was chosen as New York’s Superintendent Of The Year because her colleagues admire her as a champion for children in Peekskill. The graduation rate, which was below 60% in 2001, is now at 78%. Peekskill students have
achieved double-digit gains in performance on many state tests. Participation in Advanced Placement courses has doubled since 2002.
Following Dr. Johnson’s opening remarks, John Hall, the US Congressional Democrat representative for the 19th District, and the founder
of the band Orleans, spoke of his experiences with segregation while traveling as a young jazz musician with African-American band members. Hall noted that “despite the progress we have made, we still face struggles” in realizing Dr. King’s dream of racial equality. But Congressman Hall reminded the audience that Martin Luther King Day was not established on the date of Dr. King’s assassination (April 4, 1968), but rather near his birthday (January 15, 1929) “as a sign of hope”.
Ms. Mary Foster, the Mayor of Peekskill, reminded the community that Dr. King also fought against poverty, war, as well as for civil rights.
Mayor Foster remarked that “when we honor someone and the path they set us on, we also need to consider if that path is complete. In
Martin Luther King’s path, we have not gone very far. We have, in fact, gone in a circle”. Mayor Foster spoke of the need for economic opportunities for all through equal education, employment, and housing and asked local officials in the city to seek the citizens’ input
to achieve those goals. She called on each board member to stand and identify themselves for the audience “so the community can see who will be addressing these issues”.
The Supervisor of the Town of Cortlandt, Linda Puglisi, drew a laugh when she referenced the Giants’ recent victory: “when interviewed in the locker room, they spoke of themselves as a team, not as individuals or by race. And that’s what we are, one team”. Puglisi thanked Reverend Lacey and P.A.P.A. for their support “with the recent crime in our community” and vowed that “we have pledged to continue the dialogue so that something like this (cross-burning) can never happen again”. Puglisi quoted Dr. King’s comments that “injustice anywhere is a threat to justice everywhere”.
But the highlight of the event was clearly when the community children took the stage. Brought together in under two weeks to form the
“MLK Youth Mass Choir”, over sixty area children of all races, ages, and religions performed “We Are the World” as the audience cheered. The group then performed a song written especially for the event by their choir director, Mrs. Tuesday Paige McDonald. The song, entitled “Dr. King’s Melody” was an upbeat jazz tune with a spirited rap routine that had the audience clapping along. It came as a surprise to the audience to learn that the performance they had witnessed from the children was achieved with only three rehearsals.
No celebration of Dr. King’s birthday would be complete without a reading of his famous “I Have a Dream” speech. But the organizers of
the event did not subject the audience to a lifeless reiteration from an elder statesman. Rather, five young boys and girls from the Peekskill
Youth Bureau, representing White, Hispanic, and African-Americans, recited segments of this speech in turn. Their stirring renditions, accompanied by pumping fists and impassioned vocal inflections, brought the audience to its feet for a lengthy heart-felt ovation.
Ending the event was the Reverend Eboni Marshall of the Abyssinian Baptist Church. Reverend Marshall asked the community “what does
one say of the dream of Martin Luther King when forty years later the violence of war continues to be legislated from Capitol Hill and Black on-Black violence prevails? Where is the dream when children see no solution but violence?” Reverend Marshall reminded the audience of
Dr. King’s non-violent approach to issues and that “we cannot train our children that when someone hits you, you hit back”. She quoted Dr.
King when noting that “en eye for an eye only leaves the whole world blind”. Marshall challenged the community to “love those who hate us.
We cannot judge our neighbors by the color of their skin but by the content of their character”. She reminded the listeners that “King’s dream
was for hearts to be changed”. To continue Dr. King’s message and the dialogue for racial tolerance and equal opportunity, P.A.P.A. and other religious organizations are hosting further events in the community. The City of Peekskill is also actively seeking residents to serve on local boards and committees including the newly formed Diversity Committee and is asking interested parties to contact the City Manager at 914-734-4245.
Northern Westchester Round-Up
Bedford: Tape recordings from the Bedford Police Department reveal officers joking about the death of Rene Javier Perez, a homeless man found at the side of a road. The Town Board met with the Bedford police chief on January 22 to discuss the tapes. A Mount Kisco police officer has been charged with killing Perez.
Ossining: Sandy Galef, New York State Assemblywoman, 90th District, will host a town meeting on Governor Spitzer’s proposed 2008 budget at the Ossining Public Library on January 31, from 7 to 9 p.m.
Peekskill: Mayor Mary Foster has called for a public hearing on January 28 to review the 2008 adopted budget. The budget uses $1 million
of city reserves to subsidize a 0% tax increase. Mayor Foster wants the public’s input on removing this money from the town’s fund balances.
Pocantico Hills: The Pocantico District School Board approved an $18 million bond for improvements to the local district’s school building. The bond is to be put to the community for a vote.
– Catherine Wilson
Sunday, January 27, 2008
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Thursday, January 24, 2008
By Jeff Deskovic
On Jan 12, I had an opportunity to go to a very special school in the South Bronx, The Bronx Charter School for the Arts. The school is unique because the ninth and tenth graders are oriented toward learning about wrongful convictions and police brutality. Considering
my advocacy, working against wrongful convictions, it was only natural that they might wish to hear from me. I was accompanying by one of my attorneys, Nick Brustin, who is involved with the day-to-day work of my numerous lawsuits against those who played a role in
the intentional sending of a 16-year-old boy to prison for 16 years, for a crime that they knew he was innocent of. I was particularly impressed with the fact that the students were so interested that they were willing to come to school on Saturday.
The format was that I would first speak to the staff and a few select senior students in a group of about ten, before going on to speak to the larger class. Rather than speak from a podium and have the audience face me, we instead decided to sit in a circle, and I made my delivery more informally, allowing them to interrupt at any time if they needed clarification. Nonetheless, despite this freedom, as I told my tale of being wrongfully convicted at 16; being coerced into falsely confessing while being fed details in the course of the interrogation; having other evidence fabricated by misconduct on the part of the prosecution and virtually every arm of law enforcement involved in my case; the failure of my lawyer to render competent counsel, and being successfully opposed in all of my appeals by Jeanine Pirro, in my attempt to get more sophisticated DNA testing coupled with the rubber stamp denials by all of the appeals courts all the way through the entire judicial system,
left them so shocked and appalled that very few questions were asked until I was finished.
One of the adults in the circle asked me, “Whatever happened to the detectives that coerced you;” Detectives Mc-Intyre, Levine, the polygrapher Daniel Stephens, and Lt. Tumulo, and others. I explained that McIntyre and Levine had retired; that Stephens now worked
as a physician’s assistant in Brewster, and Tumulo was now the Chief of Police in Peekskill. That last fact brought remarks of outrage and concern that he could again be involved in something like that.
As is my custom, I refrained from speculating on the subject, attempting to remain above the fray and instead simply provided the facts, allowing my audience to form whatever conclusions they would.
I shared with them a bit of my prison experience, my tireless fight to prove my innocence through every conceivable method, and
the flukish way that I had come to be exonerated:
By being lucky enough to have had people lobbying The Innocence Project to take my case; Claudia Whitman - an amateur
investigator who works against the death penalty on a federal level, from outside the organization, and case intake worker Maggie Taylor from within. I explained that Jeanine Pirro was no longer in of-fice and that Janet DiFiore cooperated with the testing; that the FBI had preserved the DNA sample, and that Steven Cunningham’s DNA just happened to have been in the databank by virtue of his having committed an unrelated crime, the murder of school teacher Pat Morrison in Peekskill.
I pointed out the fact that the failure of any of those factors could have very easily led to my remaining in prison, and quite possibly dying in there, despite my efforts. I further explained that my appeals had been exhausted in 2001, and with that I no longer had legal representation. I described how all of my letters, begging for help, had fallen on deaf ears and did not result in any assistance until approximately May of 2006 when The Innocence Project took my case. Finally, I told of the Parole Board slamming shut my chance of being released on parole after I had served the sentence minimum of 15 years, despite having a good disciplinary record, a great educational record, and a letter from a prison employee recommending that I be released. When I started speaking about reforms is when the questions began to pick up. The youngsters were quite surprised to learn about the true state of the criminal justice system and how there are so many pitfalls which can lead to wrongful convictions, and just how many reforms will be needed to close them them up. They didn’t know that false confessions had led to 25% of
the now 211 DNA exonerations, or that shocking police tactics continue to be allowed; tactics such as interrogations lasting for hours, lying to suspects claiming to have nonexistent evidence; false promises, along with the questioning of mentally ill and developmentally disabled people without the presence of a lawyer. They were unaware of the fact that, at 16 years of age, a suspect is considered to be an adult, capable of understanding and waiving his or her rights; nor that eyewitness misidentifi-cation has caused 75% of the 211 DNA exposed
Additionally, they were surprised to learn that police and prosecutors sometimes intentionally withhold evidence from the defense and/or coerce witnesses; that public defenders are often inadequate and are frequently given case loads of 150 defendants while working with a very small budget and staff as opposed to prosecutors who enjoy huge budgets and staff and earn significantly more.
I explained that junk science leads to wrongful convictions by providing faulty corroborative evidence and that there is no standardized evidence preservation system so that those who are wrongfully convicted must first hope that the relevant evidence has not been destroyed or lost. I went on to point out that those facing charges will sometimes falsely incriminate the innocent in order to get a lighter sentence, and
that this factor alone caused 15 percent of the convictions reversed by DNA. They agreed with me that reforms addressing all of these issues should be enacted, along with the criminal prosecution of police and prosecuters who intentionally withhold evidence. They understood how such a flawed system could very easily lead to the execution of someone who was innocent. They complemented me on my work, and said they would ask their regular schools to invite me to come to give a presentation.
The audience response that really shook me to my core was when a student, who was heading to college, informed me, based upon my story, that she would be going to law school, after she graduated, for the purpose of working to undo wrongful convictions. Hearing that was a profound moment for me; to think that I might have helped shape someone’s life like that, and possibly set in motion a future lawyer who could undo someone else’s wrongful conviction. I went on to share my story with the larger group of students, approximately 40, along with about 5 adults. At that point the question was asked, several times, whether I was angry about what happened to me. It seemed to shake the
kids that I was not angry because, as I explained, to feel anger would be to give the wrongful actors the rest of my life. I explained that I am determined to live the most meaningful life possible, and that the energy that I feel fuels my drive to work against wrongful convictions by spreading awareness about it through presentations as well as media interviews and the lobbying of legislators for reforms. I further shared my own quest to become a lawyer to exonerate others who have been wrongfully convicted, and to establish my own ‘innocence project’.
I explained, on a personal level, that I really believe a big reason why I can remain sane now is due to the fact that I am not angry, and that if I were, I would lose all rhyme and reason and, with it, my mind. As the session came to a close, the moderator asked me for some concrete things that the students might do to help in the fight against wrongful convictions.
I answered that they could study wrongful convictions, spread the information by talking with their friends and parents; ask their high
schools, colleges, churches, and community organizations to consider the problem and to possibly permit me to speak. I suggested that when they got older they might call their elected of-ficials and insist they enact reforms and keep the death penalty out of New York and to warn those officials that if they did not take such action they and their family and friends would be voting against them. Finally I suggested that
they could contribute financially to The Innocence Project and other organizations that are fighting on behalf of wrongfully convicted individuals, and that they might take a personal role in all of this should they decide to become lawyers.
After I left the school, I toured the Hunts Point area of the Bronx and the 41st Precinct, where the school is located ultimately driving up to Arthur Avenue for lunch in Little Italy. I reflected on the wonderful school I had visited and thought how wonderful it would be if more schools would educate their students on this ultra important topic.
Northern Westchester Bureau Chief
Westchester’s Albany Contingent Responds To State Of The State
Each year in January, the Governor gives a “State of the State” address to the members of the Legislature. This speech outlines the issues
the governor considers to be paramount for New York and sets the tone and goals for the upcoming budget. In his State of the State Address on January 9, 2008, Governor Spitzer covered a variety of issues. Chief among his concerns was education, especially our colleges and universities in the State University of New York (SUNY) system. Spitzer encouraged the legislature to adopt the recommendations of the 2007 Commission on Higher Education: Over the next five years, we must hire 2,000 new full-time faculty members for SUNY and CUNY, including 250 eminent scholars – the type of professors whose research draws grants and collaboration from around the globe, and whose stature lifts entire campuses.
We must create an Innovation Fund for cutting-edge research at New York’s public and private colleges, similar to the National Science Foundation, and the National Institutes of Health. Supercharging cutting-edge academic research will also supercharge our innovation
We must invest in our community colleges, which train New York-ers for high-skilled jobs and serve as the gateway to four-year colleges.
For the community college students who want to continue their education by transferring to four-year SUNY and CUNY schools, we will
make the process simple and seamless, and give them full credit for the academic courses they have successfully completed.
In addition to the above, Spitzer is proposing flagship medical and research universities at Buffalo and Stony Brook in the areas of cancer, neurobiology, plant genetics, and bioinformatics. Spitzer sees this as a “chance for New York to lead the world”. The Governor acknowledges that this expansion of the SUNY system will not be without cost and is proposing unlocking some of the value of the New York State Lottery: “either by taking in private investment or looking at other financing alternatives”. Spitzer also advocated making health care affordable, especially coverage for children:
“In my upcoming Executive Budget, I will propose that New York State fully fund the expansion of our Children’s Health Insurance Program. I know many in this chamber care passionately about this issue and will join me. There will be affordable coverage for every single child in this State.”
The governor also addressed the lack of medical care in the urban areas and poorer sections of our state. He is proposing the creation of
a program called “Doctors Across New York” which will offer grants to repay education loans for doctors who move to the State’s medically underserved areas. Spitzer highlighted the initial success of the state’s $600 million Stem Cell Research fund which was initiated in 2007 and already operational in several research facilities across the state, including New York Medical College in Valhalla.
The governor also encouraged prevention of chronic diseases, especially in our state’s children. To that end, Spitzer is proposing the Healthy Schools Act” to take junk food out of our schools – a proposal set forth by local Chappaqua doctor, Susan Rubin, as reported in The Guardian last December. Chief among the concerns of New Yorkers are high property taxes – Westchester now has the distinction of having the highest property taxes in the nation. Spitzer acknowledged this problem and noted that the current rebate check program may “temporarily ease the pain, but it doesn’t cure the disease”. He is proposing a bipartisan commission to study the issue from a threepoint
First, a package of reforms that gets at the root causes of what is driving taxes so high. This should include a look at unfunded mandates on both school districts and municipalities. Because school district property taxes account for about two-thirds of all property taxes, the commission must also identify ways to maintain our commitment to the highest quality education at a more affordable cost.
Second, proposals on how to make our tax relief system fairer to the middle class taxpayer. And third, a proposal for a fair and effective cap – to hold the line on sky high school district property taxes once and for all. In addition to keeping property taxes down, the governor also proposed a series of cost-cutting measures from improvements in the workers’ compensation system to energy conservation methods
of “smart metering” for consumer appliances to generation of solar and wind power.
The governor’s proposals also included some new spending measures – a billion dollar “Upstate Revitalization Fund” and an investment in the infrastructure in the state. Spitzer emphasized the $500 million investment in Stewart Airport and improvements to the New York City transit system.
Lastly, the governor’s speech addressed quality of life issues, among them affordable housing, public safety, and public spaces. A new “I Live New York” program seeks to build jobs and create “livable communities”. Spitzer is proposing $400 million for a “Housing Opportunity Fund”, support for law enforcement including a full DNA databank, and $100 million to revitalize the state’s aging parks.
Given the breath of the governor’s address, and the variety of issues it covers, The Guardian asked our local state representatives for their reaction and how the governor’s proposals will affect their constituents. Sandy Galef, Democrat NYS Assemblywoman for the 90th District, commented at length with The Guardian on several of the governor’s proposals. As the chairwoman of the Real Property Tax committee
in Albany, Galef was especially heartened that the governor made the reduction of property taxes a priority. Galef said “the high cost of living is the greatest concern” for her constituents and that we need to “share or merge our local governments to reduce costs”. However, Galef proposed an alternative to the current STAR program. “I would prefer a ‘circuit breaker’ program which would base property tax rebates on earnings and how much is spent on property taxes” Galef said. She believes the ‘circuit breaker’ rebate approach would benefit those taxpayers who are spending a greater portion of their income on property taxes. In addition, Galef was supportive of the governor’s proposal to offer energy incentives. She is proposing to “make Westchester the pilot project” for smart metering to reduce energy costs for local residents.
Chief among Galef ’s priorities was the Healthy Schools Program. “I want to require better meals for our children in schools” Galef said and
noted that she has already been working with Dr. Susan Rubin in Northern Westchester schools to promote healthy eating for our children.
Galef agreed with the need for improvements in the SUNY system but also called for “accountability of education funds” and supported the Comptroller’s push for state audits of school spending, including audits of charter schools since they “utilize state funding”. Lastly, Galef supported the expansion of the Child Health Plus program but also wants to continue providing lower insurance for businesses through
the Healthy New York program. “I believe we should track Massachusetts’ program where everyone is provided health insurance from a pool at lower cost to see if a similar program would work for New York” Galef said. She noted that one of the biggest medical issues for her constituents were difficulties with dealing with insurance companies and advocated the use of “electronic health records” to
ease problems and lower costs.
The Chair of the State’s Finance Committee, Vincent Liebell, Republican NYS Senator for the 40th District, also spoke with The Guardian
at length on the governor’s address. Like Ms. Galef, Liebell said he was “pleased that the governor addressed property taxes since this is
the most pressing issue for New York” and was encouraged by the tone of the governor’s address. Liebell said, “I am hopeful and willing to
make changes. We all have a role in our government, from elected of-ficials to constituents to the governor”.
Liebell noted that the property tax issue is “the number one priority” and if not addressed, will “break the back of New York”. “If this is not corrected”, Liebell said, “the middle class will leave”. He wants the governor’s property tax commission to “report back quickly”. Liebell noted that the Senate already passed legislation in both 2006 and 2007 to resolve the school tax issue and believes these pending legislations would help the commission resolve this issue.
Second among Liebell’s concerns was the need for infrastructure and he supported the proposed improvements for our roads, mass transit, and particularly Stewart Airport which he believes will “put money into our area”. Liebell also strongly supports the improvements to the SUNY system to make New York more competitive. “Our competitors are no longer sister states” Liebell said. “We are now competing with the world and if we’re not doing something, our competitors will be doing it. We have to enact laws and make changes at a faster rate than previous administrations”.
Senator Andrea Stewart-Cousins, Democrat 35th District, agreed with her fellow legislators that high property taxes was her constituents’ greatest concern and was heartened that all of the NYS legislators were “on the same page”. Stewart-Cousins noted: “the governor laid out a broad sweeping agenda”. She was encouraged to see that her constituents’ concerns of “lowering property taxes, educational opportunities, health care for all, and providing doctors to underserved communities” were all addressed in Spitzer’s speech. “The fact that we are talking about some of these issues is important” Stewart-Cousins said. “Some of these issues, like creating affordable housing, haven’t been addressed by the state in years”.
Chief among Stewart-Cousins interests is educational opportunities and school taxes. She noted that she is holding a forum with local school
superintendents later this month to flesh out ideas and discuss issues. “We’ve got to find another way and a better way to fund our education
system” Stewart-Cousins said. “We are in a global society so we need to provide opportunities”. But she cautioned that “We have to create a more level playing field” in the area of school property taxes. Stewart-Cousins noted that we “need to find answers sooner rather than later”.
Greg Ball, Republican NYS Assemblyman for the 99th District, had a different view of the governor’s address. “The governor was elected
on a mandate by the people to reform Albany” Ball said. Ball was disappointed that Governor Spitzer seems to have backed down from reforming Albany in his speech. Agreeing with his fellow representatives that property taxes are the major issue, Ball wants to “cap taxes like in Massachusetts” and has co-sponsored the “Taxpayers’ Protection Act”. However, Ball was disappointed that the State of the State Address did not mention the governor’s failed proposal for providing drivers’ licenses to illegal immigrants. Ball said “It is interesting that (he) did not mention this”. Ball also said that Spitzer’s mandate for reforming Albany was “awkwardly missing” from his address.
As of press time, Assemblyman Adam Bradley, Democrat 89th District, and Senator Suzi Oppenheimer, Democrat, 37th District, had not
responded to The Guardian’s requests for comments. Assemblyman Richard Brodsky, Democrat 92nd District did respond to The Guardian’s request for comments with the following statement: “It was a good speech, delivered well, with the right tone. There was a marked absence of how to pay for all of the good things the Governor wants to be able to do so we will not be able to answer your question of how the State of the State will impact our area until we see the budget”. Since the State of the State Address sets the tone and the goals for
the governor’s budget, its full impact will not be known until the Executive Budget is proposed next month.
Northern Westchester Round-Up
Armonk: • IBM announced that it was granted 3,125 patents in 2007, the highest in the U.S. The computer company has received the highest
number of U.S. patents every year for the past 15 years.
Mount Kisco: •The Town H all announced that it will accept preliminary applications for a waiting list for Section 8 housing from January
28 to February 1. Applications may be obtained from the Mount Kisco Housing Authority at 200 Carpenter Avenue.
Peekskill: • Fundraisers at Hendrick Hudson High School generated more than $6,000 for the family of slain student Justin Woodward. Woodward was stabbed to death earlier this month. The proceeds of the fundraisers were donated to Woodward’s mother at a local basketball game last week.
Sleepy Hollow: •The FBI has subpoenaed the personnel files of several members of the Sleepy Hollow Police Department. The FBI is
investigating the department for possible cases of police brutality and misconduct.
– Catherine Wilson
Our Readers Respond...
I want to commend your newspaper for being a lone voice in the media forest when it comes to reporting the malfeasance and incompetence
of the Westchester County District Attorney’s Office, as represented by the conduct of former Chief District Attorney Clement Patti,
particularly with respect to his prosecution of the Balancio homicide case.
Your readers know that Mr. Patti prosecuted the case of People v. Anthony DiSimone for Mr. Balancio’s murder. What amazes me is how
such an incompetent and malicious prosecution by Mr. Patti has not resulted in his being disciplined by the Bar Association or the Office of
First, Mr. Patti, either through incompetence, at best, or malice, at worst, went to trial against Mr. DiSimone on two different theories
of Murder, “Intentional” and “Depraved Indifference”. It was improper for Mr. Patti to charge Depraved Indifference Murder because Mr.
DiSimone’s conduct, if he were guilty, had to be intentional. When the jury found him not guilty of Intentional Murder, but guilty of Depraved Indifference Murder, Mr. DiSimone should have walked out of court a free man because the highest court of New York State ruled this was an illegal conviction (stabbing someone repeatedly is an intentional act under the circumstances of this case) but the Court ruled on this issue after the DiSimone verdict and did not apply it retroactively to the DiSimone verdict. So, Mr. DiSimone remained in jail. That should have been the end of it.
But Mr. Patti’s conduct, we have learned, got worse. Not only did he not properly file the charges against Mr. DiSimone, the right charges, at
trial, Mr. Patti committed the worst possible act a prosecutor can commit. He intentionally withheld the confession from another man that
he, and not Mr. DiSimone, had killed Mr. Balancio. Obviously, had Mr. DiSimone had this information at trial for his Defense, he may have
been found not guilty. Instead, his life was ruined, and he spent many years in jail. Mr. Patti’s gross misconduct, as we know, resulted in the
United States Second Circuit Court of Appeals reversing the conviction and ordering a new trial.
But, Mr. Patti also victimized the Balancio family. Let’s suppose that the man who confessed to the murder was lying, and that Mr. DiSimone did, in fact, commit the murder. Nevertheless, Mr. DiSimone cannot be retried on the Depraved Indifference Murder charge because this is an illegal charge. Since Mr. DiSimone was found not guilty of Intentional Murder, he can’t be retried due to Double Jeopardy considerations. So, even though the case against Mr. DiSimone can be retried by the DA’s Office, he cannot be prosecuted again for murder.
However, if the man who confessed to killing Mr. Balancio did, in fact, commit this murder, the victim’s family will never see him go to
trial because Mr. Patti, by virtue of not pursuing the real killer, allowed him to escape to an unknown destination in a foreign country. So, if Mr. DiSimone is innocent, Mr. Patti caused an innocent person’s life to be ruined. If the real murderer escaped prosecution because of Mr. Patti’s conduct, then the Balancio family has been doubly victimized.
I am shocked that Mr. Patti has not been prosecuted by the current DA, or brought up on charges by the Office of Court Administration.
Hopefully, your newspaper will keep us advised of this case unlike the general media.
A Concerned Reader,
an attorney with over 35 years of practice who wishes not to mention his name because he’s a defense attorney
in Westchester County and fears reprisals.
In Our Opinion....
Perhaps The Time Has Come
With the so-called “quiet appointment” of a $55,000-a-year lobbyist by the Westchester County Legislature several days ago, once again that
not-so-august body of local politicians has effectively dared the hard-working, taxpaying citizens of Westchester to seriously consider the possibility of forcing a referendum to abolish County Government. Given the County Executive’s $25,000-a-year emissary in Albany, the Legislature went out and did him one better and hired their own at $55,000.
After all, each branch of Westchester County Government, the executive and the legislative, obviously has its own interests and agenda, and true to Newtonian Physics, they are equal in force and definitely opposite in direction. Perhaps the Board Chairman, Bill Ryan, was thwarted in his attempt to bring his salary, his part-time salary, within striking distance of Andy Spano’s; but he’s got a lobbyist that cost more than twice as much as Andy’s. And, isn’t that a good thing when push comes to shove in Albany, and con-flicting interests, albeit both housed under one roof at 148 Martine Avenue, are seeking funding and legislation favorable to their particular agenda?
Taxpayers are asking questions. For one thing, it’s hard for most to understand why either the County Executive or the Board of Legislators should need a hired ‘salesperson’ to do their bidding in Albany. Why is it, they want to know, “people who are handsomely paid for their full-time and part-time positions in County Government are no longer capable of speaking to their Legislators, both in the Assembly and in the Senate, themselves?”
Furthermore, many Westchester families are having difficulty understanding why the message from the County Executive would be so different than from the Board of Legislators, if each is actually seeking what is needed by the families and taxpayers they mutually represent. Of course, it might just be that these two branches of County Government are not employing lobbyists in furtherance of their constituents’ needs, but rather their own. If so, how long do these clowns think the populace will sit still for one stunt after another before shutting down the circus?
What makes the current picture in Westchester County the more intolerable and unfathomable is the fact that the Democratic Party, the same party that controls the Governor’s Office, the Attorney General’s Office, and the State Comptroller’s Office, as well as the State Assembly, has a 13-4 supermajority in the County Legislature. Clearly, it’s not about the People; it’s about a struggle for power and money. We’ve granted them the power, virtually absolute power, and now they are fighting amongst themselves for our money. It’s inexcusable and ugly.
Perhaps the People of Westchester need to look to the east, to their neighbors in the State of Connecticut, to realize that life can go on without County Government. Essential services can all be met by state and municipal agencies already in place. And, finally, the ugly extra layer of fat can be eliminated, and taxes can be reduced in the process.
Judge Karas Resists ‘Celebrity Shield’
Issues Right Sentence Under The Circumstances
District Court Judge Kenneth Karas, in his sentencing of disgraced former track star Marion Jones in Federal Court, White Plains, January
11th, resisted all pressure mounted by Defense and Prosecution attorneys, alike, to get him to let her skate without doing any jail time. Published reports several days before the sentencing had quoted the Defendant, herself, lobbying the Court. Sitting in the courtroom, one got the clear impression that Jones’ celebrity shield was certainly in play.
For openers, her principle attorney, F. Hill Allen, put on a performance calculated to make it appear that his client had been exemplary in her
acts of acceptance of responsibility, “unlike any”, he had ever seen. His comment, “However belatedly, she stepped up to the plate and shared information with the Government,” could not have been more preposterous given that, for seven years, Jones had adamantly
denied use of steroids and performance-enhancing drugs, and had flat-out lied to Government investigators in California three years ago,
frustrating and slowing down their investigation into the use of such unlawful substances in sports.
Allen declared, with regard to her eventual cooperation and plea deal with federal authorities, “That was six months before any indictment
was handed up,” as if to make the Court, and perhaps the World, believe that she was no way aware that an indictment was forthcoming.
He went on, “Her elocution on October 5th was longer than anything I’ve ever seen. Her statement on the courthouse steps; there was no
equivocation. She chose what to say. We didn’t put the words in her mouth.”
Going further, he told the Court, “She has been pillaried, pummelled, savaged. I would liken it to a biblical stoning. Every result in her career since September 2000 has been dissolved; she has been stripped of her career. She has taken it with a courage I cannot even describe.”
Judge Karas, turning to Attorney Allan, felt compelled to remark, “You and I both know there was a history from the spring of 2007 where your client was quite adamant in her denials.” Karas was attempting to keep Allen’s feet on the floor.Allen responded, “She
was weak. I don’t say that she shouldn’t have come clean immediately; and she had every opportunity to do so. It was a
very human thing that she did.” He had the nerve to then say, “We have asked for no special treatment or consideration.” He couldn’t prove it by any reasonably intelligent observer in the courtroom.
It was plain to those who could handle the truth that, in point of fact, Marion Jones expected and was receiving very special treatment. Nowhere, in her attorney’s comments, nor in her own, was there ever an acknowledgement of the harm she did to those she had competed
against; denying honest, drug-free athletes, the gold, silver and bronze medals, and the acclaim they had worked so hard for. At no point were
those thefts apologized for. She might have been compelled to bail out on her repeated denials by the threat of overwhelming evidence before
her. But, humility and compassion for those she had cheated, those she beat by inches at the wire, even on performance-enhancing drugs, was
totally lacking from her repertoire. She was, after all, one of the most highly celebrated female athletes in the world. It was always about her,
and it would still be.
Interestingly, an Assistant United States Attorney from New York, already on the record with the Court, as willing to accept “a sentence
between zero and six months jail time,” said of Jones, “The Defendant has fully and completely accepted responsibility.” He conceded however, “She came in, not because of a crisis of conscience.”
In contrast, an Assistant United States Attorney from California opened his remarks with, “The lie she told was a Worldwide Lie.”
Judge Karas had added, “The Worldwide Lie involved people using illegal substances in sports.”
The California-based United States attorney resumed his remarks, declaring, “A truthful answer at the time of our original investigation would have enabled us to move forward more easily with our investigation.” Judge Karas made a point of reminding the New York Prosecutor that other individuals connected with Jones’ case, “will be sentenced today, one of whom had produced false documents, obstructing justice, offenses for which the New York office has recommended an upward extension of his sentence by 19 months.”
Marion Jones, who was not only being sentenced in connection with lying about drugging, but also in connection with a check fraud
scheme, said to the Court, “I admitted my mistakes too late; but, hopefully not too late to experience the milk of human kindness.”
Judge Karas took great care and effort to share his thinking and deliberations with Jones, her family and supporters, and the press and
media of the world. He defined the issues with which he was confronted, asking, “What is the appropriate level of punishment for lying to the Government; lies made three years apart in very serious cases; one case having involved a fraud of $6 million?”
The Judge continued, “Athletes in our society enjoy an elevated status; they entertain, they inspire; they are role models.” Alluding to the
potential broad impact on children, he reminded those in the courtroom, “The false statements occured twice in both ends of the country.
I don’t believe it can be written off. I understand that to provide truthful answers would have had serious implications. Committing of the offenses was compounded by not being truthful.”
Karas then looked directly at Jones, declaring, “I am sorry to say that I do have some doubts about the sincerity of her statements before
the Court during her elocution. Athletes at Ms. Jones’ level know very well the difference between great and good is infinitesimally small. It’s hard to believe an athlete at Ms. Jones’ level wouldn’t be aware of the difference in her performance while taking the substance. Nobody is above the responsibility to tell the truth.”
Then, after reviewing the aspects of Specific and General Deterrents in deciding sentences, and reflecting upon the harm to children, he declared, “We wouldn’t be here today if Ms. Jones had told the truth!” He concluded, “In the end, I think there is an argument for incarceration because of the need for deterrence and to promote respect for the law.”
Judge Karas then proceeded to sentence Marion Jones on the first count of her indictment to six months imprisonment and, on the second
count, to two months imprisonment, to run concurrently in a federal detention facility. He further directed that upon release she would be
subject to two years of supervision, during which she was to complete 400 hours of community service, specifically, “to get the message out to children about the importance of telling the truth and to conform to rules of competition and not use illegal drugs.”
The Court Report
By Richard Blassberg
Brieant Accords Davis & Co. Every Consideration
United States District Court, White Plains
Judge Charles L. Brieant Presiding
Friday, January 11th, Attorney Stephen C. Jackson and approximately 10 diehard supporters of former Mount Vernon Mayor Ernest Davis appeared in Federal District Judge Charles L. Brieant’s Court, White Plains in a proceeding that the Judge defined by stating, “This is meant to be a case management meeting.” Brieant went on to tell Attorney Jackson, speaking about a prior judge who had handled his clients’ $600 million lawsuit, “The Judge determined that there was no reasonable possibility of success on the merits of the case.” Addressing Jackson directly, he continued, “You do not contend, and you never contended, that those elected failed to gather more votes. Your position is that the voters were deceived, a Fraud In The Inducement.”
Attorney Jackson attempted to put forth the notion that his client, former Mayor Ernest Davis, and his supporters, were the victims
of a concerted and coordinated effort by the FBI and federal prosecutors, together with Democratic opponent Clinton Young, to dissuade voters from coming out to reelect Mr. Davis by conducting an investigation just before Election Day, and repeatedly raiding the Mayor’s Office at City Hall, serving the Mayor and his staff with subpoenas and search warrants.
Judge Brieant declared, “Some Judge, not I, signed a search warrant.”
Jackson countered with, “However, Your Honor, the Government chose to conduct a highly-publicized investigation at the time of the election. We have First Amendment Rights that were violated. The essence of the complaint is that they had information, it’s the timing of the raid.”
Brieant broke in with, “Everyone wants to hear from the Second Circuit.” He went on to instruct the Plaintiffs, “The prosecutorial arm of the Government is not prohibited from going forward merely because there’s an election going on. A neutral magistrate told them, Go.”
At this point, an Assistant United States Attorney told the Judge, “Your Honor, this case is legally frivolous on numerous grounds.” Brieant retorted, “Maybe not.” The government attorney continued, “Principles of Soveriegnity bar any action against the federal government. There was a valid warrant issued. The Plaintiff has no standing. Numerous courts have held that the reasons why an election is won or lost cannot be ascertained.”
Now, Judge Brieant revealed his intentions, telling the Government, “In my view, Mayor Davis has a right to the information he is seeking.”
The Assistant United States Attorney, digging in his heels, declared, “There are no facts that need to be discovered.”
Brieant then clarified and firmed up his position, stating, “I believe that, in fact, there was a finding of Probable Cause; that, in fact, there was an investigation; that, in fact, it involved a trash hauling contract.”
The Government Attorney, once again, took the position that the Government could not be sued. Brieant then said, “Assuming that to be so, he (Davis) is still entitled to the information. What was in the warrant? What did they seize?”
The Government now declared, “Your Honor, we want to make a motion to dismiss this case. The affidavit upon which the warrant
was based is still under seal.” Brieant came back with, “Hard cases make bad law.”
The Government attorney responded, “I don’t believe this is a hard case.”
Judge Brieant then declared, “If you want to make a motion, perhaps I should not permit it without production.” He then directed
the United States Attorney’s Office to “Produce the warrant, the papers upon which the warrant was issued, and the return papers,
that this Court shall examine in camera.” The Government, as if to strengthen their position, reasserted, “The primary grounds for dismissal is Absolute Immunity, even based upon the facts the Plaintiffs are alleging.”
Attorney William Greenawalt, of the law firm McCarthy Fingar, now rose on behalf of his client, a named Defendant in Davis’ action, Mount Vernon Mayor Clinton Young, declaring, “There is no evidence that my client was involved in any kind of conspiracy. My client won by more than 2700 votes. There was a greater turnout than usual, especially in African-American areas. Judge Goettel found that there was no legitimate basis to overturn the results of the election.”
Brieant informed Greenawalt that he would be “going forward, examining the documents that I directed the Government to produce.” Attorney Jackson then broke in, asking, “Is that for Counsel’s eyes?” Brieant, as if reading Jackson, quickly responded, “No, not yet.”
Judge Brieant extended the benefit of the doubt with regard to the sincerity and good faith of Ernest Davis’ $600 million filing and with respect to the sanctity of the election process.However, Mr. Jackson would need to get up a whole lot earlier if he thought the Judge was about to give him a sneak preview of sealed discovery materials before any indictment of his client was announced.
Westchester DA’s Office Continues To Harass Police Officer Ralph Tancredi
Westchester Supreme Court, White Plains
Judge Sam Walker Presiding
Last Thursday, January 17th, Harrison Police Officer Ralph Tancredi appeared in State Supreme Court before Judge Sam Walker, to answer to a series of charges leveled against him by Harrison Police Chief David Hall, and Captain Anthony Marriccini in retaliation for charges brought against them early last year in United States Federal District Court, White Plains. In papers filed on behalf of the Harrison Police
PBA, of which Tancredi was President, Chief Hall was charged with Intercepting and Converting By Forgery a $2500 check
mailed by a local country club to the Harrison PBA following a fundraiser at the club. Additionally, both Hall and Marriccini
were named in a federal civil rights lawsuit charging them with having secretly installed audio and videotaping equipment in the locker room at Harrison Police Headquarters.
The charges brought in Federal Court by Tancredi and several members of the Harrison Police Benevolent Association were
originally brought to the attention of the Westchester District Attorney’s Office, which refused to take any action. The failure of the DA’s Office to take appropriate action in response to criminal charges substantiated against high-level police brass, choosing, instead, to join forces with said offenders in retaliatory acts against rank and file complainants, is really nothing new in Westchester.
Representing Officer Tancredi, before Judge Walker, were Attorneys Jonathan Lovett, of Lovett & Gould, White Plains, and Gustavo L. Vila, PBA Counsel. Assistant DA Audrey Stone replaced Barbara Egenhauser, who was, herself, charged with Harassment, Intimidation, and False Imprisonment, by Sophia Saenz, an indispensible witness to the DA’s Office in the Tancredi matter. Ms. Saenz has retained Mr. Lovett in her federal suit against Egenhauser and the Town and Village of Harrison, New York. Judge Walker opened the proceedings stating, “The last time we were here, the People had filed a Motion for Consolidation.”
Mr. Lovett responded, “No, Your Honor, we were opposed.”
ADA Stone then proceeded to reiterate her Office’s position, and Judge Walker quickly granted the motion to consolidate all of the actions lodged against Officer Tancredi into one case.
Attorney Vila then requested the opportunity to file Omnibus Motions, but was refused by Walker. Vila then declared, “If I’m going to be refused the opportunity to file motions, I want to go immediately to trial.”
At that point, Walker softened his position somewhat, telling Attorney Vila, “I will give you the opportunity to file motions in writing.” He then turned to Jon Lovett, asking, “What is Mr. Lovett’s position?”
Lovett declared, “I don’t see how the District Attorney is going to trial without a witness. The People can subpoena her (Ms. Saenz),
but she is going to assert her Fifth Amendment Right.”
Then, turning to another subject, the Judge told Lovett, “The last time your client was here, I assigned him to TASK.” At that point, the court clerk handed a progress report from TASK to the Judge, which he glanced at and appeared satisfied with. He then proceeded to establish a pre-trial hearing date of February 6th before Judge Colangelo.
Following the proceeding, outside the courtroom, Attorney Vila told The Guardian, “The DA’s Office is essentially co ntinuing to facilitate the retaliatory actions being taken against Police Officer Ralph Tancredi by Chief Hall and Captain Marriccini, because of Tancredi’s having come forward to report their unlawful activities.” Attorney Lovett added, “This case primarily embodies the biggest waste of taxpayers’ money in Westchester. It’s purely politically driven.”
The scenario that has been unfolding between Harrison Police Of-ficer Ralph Tancredi, with more than 10 years on the job, together with
several other fellow PBA member officers, on the one side, and Chief Hall and Captain Marriccini, aided and abetted by the Westchester DA’s Office, on the other, has already had profound consequences in the Town of Harrison. For one thing, it clearly influenced the outcome in the recent Supervisor’s race, resulting, in part, in the election of former Town Clerk Joan Walsh, in whom many residents have expressed confidence that she will straighten out their Police Department, previously ignored by Stephen Malfitano. As significantly, from the standpoint of the citizens of the rest of the County, the continued prosecutorial misconduct that has ignored the unlawful, criminal, activities of high-ranking officers of the Harrison Police Department while, at the same time, aiding and abetting the continuing harassment of innocent rank and file police officers, cries out for federal investigation and prosecution.
“I don’t see how the District Attorney is going to trial without a witness. The People can subpoena her (Ms. Saenz), but she is going to assert her Fifth Amendment Right.”
Thursday, January 17, 2008
By Jeff Deskovic
Craig Watkins is the Dallas County, Texas, District Attorney. He has been in office for two years. The work that he has done in that time has been nothing short of revolutionary. Watkins is concerned with ensuring that the convictions that are achieved by his office have integrity; meaning that only the guilty are convicted and that convictions are achieved without police or prosecutorial misconduct as opposed to a ‘win-at-all-cost’; and, that any past injustices are corrected. He seeks legislative changes in order to decrease the chances of wrongful
convictions occurring with their usual frequency. He is a beacon of light to justice and serves as an example to district attorneys everywhere who are serious about justice.
His office’s Conviction Integrity Unit was the idea of former federal prosecutor Terri Moore, who is now Watkins’ top assistant. The idea is to have an in-house oversight unit to ensure that only those who are guilty are convicted, and that those convictions were not obtained through police or prosecutorial misconduct. Additionally, the unit insures that past injustices are corrected, and that wrongful convictions are studied to determine what the causes were with a view toward preventing them in the future. Included in their review is a determination of whether there was any inappropriate pattern or practice on the part of police or prosecutors. To date there have been a total of 39 exonerations in Dallas, 15 of them involving DNA, and 24 that did not. Many of the wrongful convictions exposed, as such, by DNA were caused as a result of misidentification. Still, Mike Ware, who heads the integrity unit, says the District Attorney’s Of-fice wants to figure out “how did it get to the point where the victim is picking out the wrong person in the courtroom.”
To create the unit, Watkins had to go before the Dallas County Commissioners to ask for funding. Two of the five members opposed Watkins, arguing that the unit would place the District Attorney’s Office in the role of defense counsel, and that the oversight was not necessary. In a 3-2 vote, Watkins got some funding, but not all that he had asked for. The funding was only enough to be able to hire two attorneys, one investigator, and one secretary. To make up for the lack of funding, he has collaborated with The Texas Innocence Project, and has law student interns, working with the paid staff, reviewing cases. They are reviewing more than 400 cases in which his predecessor, Bill
Hill, denied prior testing.
There are currently eight cases awaiting test results. Under Watkins’ watch, five people have thus far been cleared based upon DNA. Here
are the five cases:
• Charles Chatman was cleared on Jan. 3, 2007 after serving 27 years for Rape. He was convicted when he was 20 years old, and is now 47. The cause of his wrongful conviction was being misidentified after being picked out of a photo array. After earlier tests proved inconclusive, Chatman recently agreed to Y-STR testing, an advanced form of DNA testing that can determine a profile from a small sample. The risk was that this final test could have consumed the last of the biological evidence in the case. It proved to be the right decision, however, as the profile proved that another man committed the rape for which Chatman was serving a 99-year sentence. Chatman said he was denied parole
three times during his 27 years in prison because he refused to admit guilt in a crime he didn’t commit. “Every time I’d go to parole, they’d
want a description of the crime or my version of the crime,” Chatman said. He told the Parole Board, “I don’t have a version of the crime. I never committed the crime. I never will admit to doing this crime that I know I didn’t do.”
• Larry Fuller served 19 ½ years out of a 50 year sentence for Sexual Assault based on a misidentification. Initially the victim stated that
she could not identify her assailant because the room was barely lit and the crime took place about an hour before sunrise. A week after the crime the police, nonetheless, asked her to make an identification. After viewing one photo array she said that Fuller, “looks like the guy,” but that she could not be sure. After being shown a second array she then said that she was sure it was him. Additionally, a serological
test was performed on semen collected from a rape kit. Fuller was serologically included in that he was a non-secretor, and the blood type of
the rape kit fluid matched the victim’s own blood type. Therefore, serological testing did not exclude Fuller, but it also did not identify him as the perpetrator. At trial, however, a prosecutor inaccurately summed up the scientific testimony by saying it placed Mr. Fuller among 20 percent of the male population that could have committed the crime. Mr. Fuller first contacted the Innocence Project in the
mid-1990s. A 2003 DNA test was inconclusive, but a 2006 test ruled him out as the assailant, and he was released.
• Greg Wallis served 17 years out of 50 years for Burglary of a Habitation with the Intent To Commit Sexual Assault. The victim gave a description to police but, without any leads, the investigation went unsolved. After four months police circulated a flier about the attack in a local jail. An inmate told the Irving police that Gregory Wallis had a tattoo similar to the description given by the victim. The victim subsequently chose Wallis out of a photo array. Wallis and his wife testified that they were together at the time of the crime, but he was
convicted anyway. A 2005 DNA test could not entirely rule out Mr. Wallis as the rapist, and he rejected an offer that would have freed
him from prison provided that he reg-ister as a sex offender for life. A second test in 2006 proved that Mr. Wallis was not responsible for the attack
• Andrew Gossett served 7 years out of 50 years in prison in the 1999 Sexual Assault of a Dallas woman. He came under suspicion based on
his matching the general description given; and then the victim erroneously picked him out of a photo array. He had been seeking DNA testing in 2001, but the then-District Attorney prevented him. In 2006, with Watkins in office, tests showed that he was innocent.
• James Giles was convicted of Aggravated Rape. He served 10 years in prison, and 14 years on parole as a registered sex offender. The female victim identified a photo of Stanley Bryant, the perpetrator, who was an acquaintance of the couple, on the day after the attack. A month after the crime, a CrimeStoppers tip led police to include James Curtis Giles in a lineup, and the victim identified him as one of the three rapists. Neither the male victim nor another eyewitness identified James Curtis Giles in a lineup or at trial. James Curtis Giles, at 29, was a decade older than the description of the perpetrators, and he had two prominent gold teeth which the victim also didn’t mention. His alibi was that he had eaten dinner with his wife and afterwards went home and went to bed early.
Documents now show that evidence indicating the identity of the actual perpetrators – including a man named James Earl Giles – was available to prosecutors before trial and was withheld from defense attorneys for James Curtis Giles. In 1984, one of the attackers, Stanley Bryant, pled guilty. He said he committed the crime with a man named “James” and man named “Michael.” The next year, Bryant signed an affidavit that James Curtis Giles was not the “James” who participated in this crime. While in prison, James Curtis Giles met a man who lived near the victims and had called CrimeStoppers during the investigation of the crime and told them that one of the perpetrators was named “James Giles.” The informant said he had learned that a different person, James Earl Giles, was the alleged attacker.
Since 1991, both the informant and James Curtis Giles have said that the wrong James Giles was convicted of this rape. James Curtis Giles served 10 years of his sentence before he was paroled in 2001.
In each of these cases, Watkins consented to the DNA testing, and when the results cleared the men, he joined defense motions to have the
convictions reversed and the men released. In each of these cases his predecessor, Bill Hill, had successfully opposed testing.
District Attorney Craig Watkins attributes the wrongful convictions to “a past culture of overly aggressive prosecutors trying to win at any
cost.” Watkins opposes that philosophy, stating, “We’ve been taught that the district attorney is supposed to convict. But the district attorney is supposed to be seeking justice. My job as Dallas District Attorney is to protect the citizens. Sometimes that means exonerating the wrongfully convicted; sometimes it means sending the guilty to prison.”
Part of that change of culture involves correcting past prosecutorial misconduct, going beyond just simply looking at DNA, and sometimes
past simple guilt and innocence to include justice. In other words, the ‘ends do not justify the means’. There have been several examples of Watkins’ commitment to this credo.
• Joseph Lave had a scheduled execution date last September when prosecuters realized that evidence requested by his appellate lawyers was
not released, and was possibly lied about. “When we looked at Lave’s file, it was an embarrassment to my profession. I don’t know if Lave is guilty, But I think he is. But if you think he’s guilty, why would you withhold that information that causes a problem 20 years later?” District Attorney Watkins said. He stressed, “You have a responsibility, not only to the Defendant, but to the Victim’s family.” Another example involved a judge calling Watkins and informing him that a proscutor was not turning over evidence to a defense attorney that the
law required him to. When Watkins’ confronted the prosecutor, he claimed that he did not know that the law required it to be turned over. Watkins demoted him, and he later quit.
Craig Watkins gives talks in forums open to the public about wrongful convictions and his program just about every day. In addition to speaking in Texas, he has also made presentations in other states, including New York. Once the studies have been completed by his Conviction Integrity Unit, Watkins told this reporter that he intends to use those findings to form the basis upon which he will
make proposals for reforms that he believes the Texas Legislature should adopt. In the meanwhile, the idea of checking the integrity of prior cases has begun to spread.
In Harris County, judges appointed three lawyers to examine whether 161 cases were tainted by problems at the Houston Police Crime Laboratory. Some of the cases date back more than 20 years, and officials with the program say they’ve sought advice from Dallas County. Bob Wicoff, the first attorney appointed for the Harris County program, sought advice from Dallas. “I’m getting their input on it,” he said, “They’ve said they would help.”
In addition, the Dallas County District Attorney’s Office no longer seeks the harshest of punishments but, instead, reserves that for when the crime calls for it. Mr. Alex, who oversees the Organized Crime, Specialized Crime and Gang Units, said “You can [seek the harshest punishments], but it’s not always the right thing.” In a presentation given in Bronxville about a year ago, Westchester D.A. Janet DiFiore stated that although some crimes call for prison time, there should not be a ‘knee jerk, one-size-fits-all’ reaction. She mentioned that her Office’s function was not merely to convict the guilty but to see that justice was done; indicating that her office had an “internal Second Look Program.” I have recently contacted her of-fice and, in the near future, I intend to explore the details of that program.