Thursday, February 26, 2009
Reviewing New York State Bar Association’s Preliminary
Report On Wrongful Convictions in New York, Part 2
Editor’s Note: In this, the second of a three-part series, Mr. Deskovic continues to review the various elements of the New York State Bar Association’s preliminary report on wrongful convictions issued prior to their seminar in New York City two weeks ago.
Mr. Deskovic, who was an invited speaker at the seminar, at which Westchester District Attorney Janet DiFiore was a panelist, will be reporting next week on what transpired at the event.
The Bar Association’s preliminary report advocates the electronic recording of all custodial interrogations in felony-level investigations because such procedures would help prevent and identify false confessions, and therefore should be required. It also encourages that training in the area of interrogation be provided to police, prosecutors, defense attorneys, and judges.
I have long advocated for the videotaping of interrogations. However, the report, while acknowledging the tactics which have been linked to false confessions, such as prolonged interrogations, interrogating the mentally disabled and mentally ill, psychological coercion, and deception, nonetheless does not advocate for any remedies to address these realities.
As I see it, we live under The United States Constitution, which includes the 5th Amendment, which states that no one shall be compelled to be
a witness against themselves. In Miranda v Arizona, the United States Supreme Court stated that all waivers of our Miranda Rights must be done “knowingly, willingly, and intelligently”. A system of interrogation which involves psychological coercion, and deception, is incompatible with that. Therefore it should not be allowed.
Similarly, just as in other walks of life we believe that the mentally ill are not able to make certain decisions, such as business contracts, control
over money, or sexual relations, so too I fail to see how they are able to “intelligently” waive their rights. Rather, an attorney who can explain things to them patiently, along with all of the implications, should be made available.
Then, if a person decides to confess, they can lawfully do so. Absent, too, in the report, is the relationship between the polygraph and false confessions, along with interrogating people for long periods of time.
The report suggests the following:
1. In the event of a late Brady disclosure, whether before or during trial, the court should grant an adjournment of sufficient length to enable the defense to prepare, and, where appropriate, preclude evidence, give an appropriate instruction to the jury and grant such other relief as is appropriate;
2. If Brady information relevant to the defense has not been given to the defense or has been delivered in a late turnover, or if false testimony is used at trial, relief on appeal or collateral challenge should be granted unless the state shows there was no possibility the information would
have affected the decision;
3. Where procedures do not currently exist, prosecutors should put in place appropriate internal procedures for prevent Brady and truthful evidence rule violation and for examining, evaluating, and determining whether the official conduct of an assistant is improper and should be sanctioned, and if appropriate imposing such sanctions;
4. Under the existing rules of the Code of Professional Responsibility (or, if adopted, the Model Rules of Professional Conduct), a statewide procedure for identifying and reviewing intentional or reckless violations of Brady and the truthful evidence rule should be established;
5. A Brady Conference should be held before trial to resolve issues of turnover;
6. Law enforcement officials should be trained and supervised in the application of Brady.
In my recent article about prosecutorial misconduct, I advocated granting post conviction relief when prosecutorial misconduct has been committed. That would include Brady violations. I agree with this recommendation. Although there is mention of reviewing intentional violations, there is no mention of the criminalization of prosecutorial misconduct, nor of financial penalties. As such, this is inadequate. The Dallas
Morning News reported that in Texas, Dallas District Attorney Craig Watkins and the Texas Innocence Project have come out publicly in favor of criminalizing the purposeful withholding of exculpatory material.
The report advocates the preservation of evidence, both DNA and non-DNA. An important addition that the report listed is that the failure to follow protocols should, where appropriate, as in cases in which public officials have failed to establish procedures or have systematically violated them, or the state has acted intentionally to destroy the evidence, give to the defendant at trial or post-conviction procedure, the benefit of a permissible presumption that any forensic result would be deemed favorable to the defendant’s position.
Giving a defendant the presumption that any forensic result would have been favorable in instances where the evidence has been destroyed or lost is the only way to make up for not preserving it. As such, this is an excellent suggestion, and would have the impact of highly motivating both police and prosecutors to ensure that evidence be preserved.
An Interesting Aside
The report made an interesting statement elsewhere that I think is worth repeating. Pretrial hearings on the subject of the reliability of identification procedures, known in legal jargon as Wade Hearings, nor appellate review , is sufficient “to address the problem of wrongful convictions based on mistaken eyewitness testimony and are difficult to overturn on appeal under existing New York State law.
This is because the Appellate Division is traditionally deferential to the trial courts since they have seen the witness. As for the Court Of Appeals, they will reverse a conviction on the grounds that identification testimony should have been suppressed only when the lower court’s findings of fact are clearly unsupported by the record and thus present a question of law for review.
After trial, convictions based on erroneous eyewitness identifications are difficult to overturn because appellate and habeas corpus decisions are almost always predicated on questions of law, not questions of fact. This limited nature of appeals makes the reversal of erroneous verdicts almost impossible.
In particular, mistakes resulting from juror error are difficult to correct. It is unlikely that a conviction due to a jury’s mistaken application of law to facts will be reversed because current legal mechanisms are not conducive to examining and correcting mistakes of juror judgment. As a result, the justice system becomes frustrated, with innocent parties jailed and criminals freed…. it might be years before such error is corrected, if ever.
During the interim between a wrongful conviction and a reversal of the conviction, if any, innocent defendants suffer the severe costs of incarceration, and society incurs the cost of guilty offenders remaining free to perpetrate crimes against other victims.” Police officers should be trained to investigate alternate theories for a case at least until they are reasonably satisfied that they are without merit.
Catherine Wilson, Bureau Chief
Joe Pisani, Disbarred and Convicted Felon, Keeps
Trust Funds Of Disabled Child From Helping Her
Two weeks ago, the Guardian reported on how a disgraced New York State Senator, Joseph Pisani, who was convicted and disbarred for fraud and embezzlement, was allowed to drain a special needs trust for a disabled child with the blessings and approval of our local courts.
Not content with taking the $2 million involved, Pisani has also continually refused medical and educational aid for the child, a refusal that
had near-fatal consequences for the young woman.
Ann Masotti, the child’s mother, sat with the Guardian last week and spent over three hours providing us with even more shocking details of her daughter’s care under Pisani’s trusteeship.
Mrs. Masotti’s daughter suffers from Asperger’s Syndrome, a variation of autism. Asperger’s has fewer brain abnormalities than autism, making it difficult to diagnose. Children with Asperger’s are often initially misdiagnosed with learning disabilities, attention-deficit disorder, or as being bipolar. Mrs. Masotti and her late husband Vito experienced the frustration of not knowing what was wrong with their daughter throughout her early childhood education as her disorder was continually misdiagnosed.
However, both parents were keenly aware that their child had problems and despite being divorced, worked together to provide for her needs. When Vito Masotti contracted cancer, he set up a will and trust for his daughter with the help of a trusted family friend, appointing long-term family friends as trustees and executors of his daughter’s $1.4 million Special Needs Trust.
Any difficulties the young Ms. Masotti, however, experienced throughout her school years, were nothing compared to the problems she faced once her father died.
Shortly before his death, Vito’s will was changed by convicted felon and disgraced ex-New York State Senator Joseph Pisani, who set himself up as executor of the estate and trustee of Ms. Masotti’s trust fund despite being a disbarred attorney with no legal right to do so. Ms. Masotti was 19 at the time of her father’s death, but due to her disability, her psychological and cognitive age was significantly younger.
Therefore, it was not unexpected when Ms. Masotti suffered an emotional breakdown due to the traumatic changes in her life when her father
died. Her mother, Ann Masotti, immediately investigated medical facilities for her daughter’s care and selected a private facility.
Unfortunately, since her daughter was now over the age of 18, due to HIPPA regulations, Mrs. Masotti no longer had any legal right to determine the medical care for her own child and had to seek guardianship of her daughter in order to continue to make decisions for her.
Normally, obtaining guardianship of a disabled person with Asperger’s Syndrome is not a difficult process. Medical professionals agree that such individuals lack the cognitive ability to properly care for themselves and, unless there is any objection to the individual stepping forward as guardian, establishing guardianship, especially on a temporary or emergency basis, is an uncomplicated process, and can often
be accomplished in a single court appearance.
Unless, of course, someone comes forward and objects to the ability and motives of the guardian; which is precisely what Joseph Pisani did.
Pisani had no intention of relinquishing the control he had wrestled over Vito Masotti’s $2 million estate, and saw Mrs. Masotti’s request for
guardianship of her own daughter as something that would undermine him. He therefore immediately challenged her in court which successfully stalled her appointment as guardian. By taking the unconscionable step of objecting to Mrs. Masotti becoming guardian of her
own daughter, Pisani denied her the legal right to make emergency medical decisions for her handicapped child at that time. Mrs. Masotti, with the blessings and approval of Westchester Surrogate Court, was therefore prevented by Pisani from helping her child obtain the proper treatment she needed to recover from her emotional breakdown caused by her father’s death.
The facility she selected had a successful program that could have helped her daughter through the difficult process of dealing with her father’s death. Pisani, however, had no intention of spending $10,000 a month on Ms. Masotti, even for a short term, $10,000 that could end up instead lining his pocket. And Mrs. Masotti did not have the financial ability to pay for the medical care for her daughter herself. She thus needed the cooperation of a complete stranger, Pisani, and the funds from the trust intended to help her own child through this difficult period. But Joseph Pisani refused to do anything for his young trustee, including his refusal to purchase health insurance to pay for her medical care. The doctors treating the fragile 19-year-old determined that she needed convalescent care to recover from her emotional breakdown. But without the ability to access the funds from her trust to purchase private health insurance or pay for a private facility directly, Ms. Masotti was utterly dependent upon Medicare and was instead tossed into a state hospital on a ward with convicted rapists and murderers.
Her mother was naturally distraught at this treatment of her child but had no choice but to leave her job and stay at her daughter’s side as long as possible every day. But, despite Mrs. Masotti’s extended visits, her protection of her daughter was not enough. She was attacked several times during her stay in the state hospital by other patients. Even the Court’s own guardian ad litem, in this case, James Meyer, testified to Judge Scarpino, that this facility was “not much different than a jail”.
He expressed his hope that Ms. Masotti would receive treatment “in a more home-like environment”. Yet, despite this evaluation, Pisani did nothing to protect her, and Scarpino never issued a court order to override Pisani and remove Ms. Masotti to a safer facility. Like most parents of a disabled child, Mrs. Masotti had become an expert on her daughter’s disorders and was familiar with the all of the treatments
and care available. Parents will try anything to help their disabled child live as normal a life as possible, even foregoing their own lifestyles and draining their own finances in the process. Mrs. Masotti was such a mother. Upon discovering that her daughter reacted well to equine therapy, she took a job as a caretaker on a horse farm in Northern Westchester. The teenage Ms. Masotti worked part-time in the stables caring for the horses, a job she loved, and one which gave her an opportunity to be independent.
Away from the judgmental eyes of the public, she was thriving in the tranquil surroundings, and started taking college courses. According to her mother, for the first time in her young life, Ms. Masotti had a future. “She was fully functional, and wasn’t dependent on any medications when we were living on the farm,” Ann told us. She went on to say, “My daughter was very happy. She had her own job, she was going to school, and she had ‘her’ horses”.
All that tranquility and happiness ended with the death of her father. Since Mrs. Masotti had no choice but to be at her daughter’s side in the state facility, she jeopardized her job on the estate and was eventually fired. By losing her job, Mrs. Masotti also lost the environment that her daughter had been thriving in. Once she was released from the state hospital, the young Ms. Masotti would not have her beloved horses to return home to. It was therefore even more urgent that the young Ms. Masotti receive the care she needed to recover and be able to deal with the now-multiplying changes in her life. Yet Pisani was still unmoved and continued to leave Ms. Masotti in the state hospital, a facility that was physically dangerous for her. And, Judge Scarpino did not intervene.
Throughout this entire period, the Courts continually ruled that Pisani’s behavior was legally acceptable since it was “within his sole discretion” as trustee to determine how to spend money, or not, for Ms. Masotti’s care. Not once did the Courts rule that Pisani had a
fi-duciary obligation as trustee to protect his young charge, even after she was physically attacked by the patients in the state facility. Since Pisani, in his 20-plus years in the New York State Senate, had influenced the appointments or ballot selections of many of our local politicians, judges, and even members of the District Attorney’s office, no one in the Westchester Courts would oppose him, even when a disabled girl’s life, and emotional health, was in danger. Not once did the courts ever ask why an attorney would use his discretion to place
a disabled child in physical danger and override that decision. Not once did Judge Scarpino ever address the rights of the disabled child in this case.
Why didn’t the rights of a disabled child succeed over the self-serving discretion of a disbarred attorney who was a convicted felon and who
should have been prohibited from even being a trustee to begin with? What protections do our State courts give the disabled, if any? Is the
Americans With Disabilities Act just a joke to our Westchester judges and lawyers? Or, are the trusts and funds set aside by family members for the care of their loved ones upon their demise just, as one court insider revealed to the Guardian this week, “a license to steal” by the corrupt lawyers in our midst since their victims can do little to protect themselves?
The Masotti case has stirred several responses to the Guardian from other victims of corruption in our courts. Sadly, young Ms. Masotti is
not alone, and neither are the abuses limited to the disabled. Several local individuals who have lost their jobs in this recession and are now facing foreclosure told this reporter that they are also being preyed upon by unscrupulous attorneys who were appointed as foreclosure referees in their cases.
These attorneys are now charging exorbitant fees for their “services”, all with the blessing of the judges who appointed them since those appointments are often paybacks for the attorneys’ campaign contributions to the judge!
In the “nudge-nudge, wink-wink” environment of our Westchester courts, court rules and state laws established to protect the disabled, the elderly, and the impoverished, are routinely ignored. New York State Court rules have set standards for fees charged in guardianship cases and when higher than average fees may be allowed, e.g. cases involving alleged sexual abuse which require specialized investigation. Since most of these cases involve minors or incapacitated individuals, it is generally unacceptable for attorneys to charge their usual rates of up to $500 an hour; most local guardians charge $125 - $150 an hour to such individuals, even accepting $75 an hour for court-paid cases for indigents. Yet, in every guardianship appointment in Ms. Masotti’s case, Judge Scarpino allowed the attorneys to milk her estate at the
rate of $300 an hour, ignoring both court rules and acceptable legal ethical practices, and depleting her trust to the tune of $28,000 in the process. Worse, Scarpino allowed Pisani to pilfer Ms. Masotti’s estate for what amounts to a blatant legal malpractice. In August 2007, Pisani paid al-most $85,000 in estate taxes on the estate of Vito Masotti. However, in accordance with Vito’s will, the bulk of his estate was to have been set up in a Special Needs Trust for the care of his disabled daughter.
Had Pisani established that trust, as instructed to, no estate taxes would have been owed on those funds at all! Yet Scarpino, and even the guardians appointed by the Court, failed to address this blatant malpractice and allowed Pisani to deduct $85,000 from Ms. Masotti’s funds
for these taxes. Pisani did not do what he had been hired to do by Vito Masotti; set up the trust for Ms. Masotti, therefore, he was guilty of malpractice by not following his client’s wishes, and should have been court-ordered to pay these taxes out of his malpractice insurance or his own pocket.
One of the problems faced by litigants in Surrogates Court and other courts, is the complete lack of financial, medical, and even legal knowledge by the players in this system. The Court does not mandate that only certified accountants may be allowed to account for the monies involved, instead opting to allow untrained lawyers to determine the investment, accounting, and tax strategies needed to maximize
the financial potential and protection of the trusts; the equivalent of asking your dentist to perform open-heart surgery.
The lawyers, who are appointed in Surrogate and in foreclosure cases often have no further credentials other than having contributed to the judge’s campaign and often have zero training, knowledge or experience as to even how to account for the significant amount of money often involved, money that frequently represents the litigant’s, or decedent’s entire life savings.
Shouldn’t foreclosure and trust funds be entrusted to financial experts, certified by independent organizations such as the New York State Certified Professional Accountants, and not selected based on the size of the attorney’s campaign contribution checks to judges?
The court-appointed guardian’s report, while empathetic to Ms. Masotti’s plight in the state hospital, was completely naïve and incorrect when addressing the money involved. The guardian, James Meyer, acknowledged that Vito Masotti had “the foresight to place my ward’s inheritance into Trust” but never noted the improper payment of the estate taxes incurred because the trust was not established properly!
Meyer notes that there was no money to pay for “a better treatment facility for my ward” because “the estate taxes had just been paid, and the Estate did not have much in the form of liquid assets”.
But he failed to note that the estate taxes should never have been incurred at all and that there was $146,000 in various bank accounts and stocks and an additional $51,000 in a life insurance policy, enough to cover 20 months in the private facility for Ms. Masotti’s care if need be. Yet Meyer never pursued what became of these funds or even acknowledged he was aware of their existence in his inaccurate and incomplete financial reporting.
In his ignorance, Meyer described Pisani’s accounting of the trust as “simple but straightforward”. He went so far as to say, “He shows all of the income coming in and checks going out”. What Meyer is describing is merely a check register, not an accounting! If Meyer had any financial training whatsoever, and was truly qualified to analyze trust expenditures and investments, he would have known that a full and
complete accounting for a Trust contains the following:
• A copy of the Estate Tax return
• A copy of the Fiduciary Tax returns
• A listing of all assets of the descendant at the time of death, separately listed
• All bank statements for both personal and business accounts including cancelled checks or copies of both the front and back of each check, and details of all deposits
• Details of all bills paid including invoices from vendors and suppliers
• Copies of all 1099’s issued to individuals
• Loan and retainer and any other professional agreements
• All details of loan activities including the initial loan agreement
• Purchase, escrow, transfer and closing documents on any assets purchased or disposed of, the dates of all transactions and names of all individuals involved
• Dates and amounts of each rent collection and copies of all leases for each tenant and details of evictions • A copy of all insurance policies
and proof of current payments
• A running balance of the funds in each account and a separate monthly reconciliation for each account and asset held by the trust
• A copy of all correspondence, court orders, etc. committing the trust to any legal, financial, or other obligation
This reporter is a certified accountant and a trustee for a Special Needs Trust. Instead of performing the due diligence required for the protection of this ward’s trust to determine the validity of the reports and the protection of the assets, Meyer incredibly agreed with Pisani’s assessment that “if the property is sold and the proceeds invested prudently, the return should be about 10% to 12%” and claimed that he found this assessment “to be a rational belief ”. Really?
We ask, upon what financial and investment analyses does Mr. Meyer base such “rational belief ”? Most financial planners, before the current recession, would have used the average annual rate of return for the stock market of 7% as their estimate for probable returns. But Pisani and Meyer, neither of whom are licensed financial planners, speculated that they could outdo the experts and achieve 10% to 12%.
With whom, Bernie Madoff? Yet Judge Scarpino accepted such unsubstantiated analyses as gospel to determine the fate of a disabled child’s
trust because he allowed Pisani to pursue selling the apartment building that was bequeathed for Ms. Masotti’s care in her father’s estate.
This building has since been sold and Judge Scarpino has yet to order a full accounting of the proceeds of the sale and the balance in the trust funds. Sadly, the saga of Pisani’s dealings with our Surrogate Court under Judge Scarpino, since his disbarment and conviction, and that Court’s ineptness in protecting the rights of the disabled and litigants is not limited to Ms. Masotti’s case; not by a longshot. The Guardian
has learned that Pisani has been allowed to apply his name to commercial tax certiorari cases in the Westchester Courts over the past several years for individuals who are not attorneys and are not legally allowed to perform this work. They use Pisani to ‘rubber-stamp’ his name on hundreds of these cases to give them an appearance of legitimacy, even though, as a disbarred attorney, Pisani himself was prohibited from using his law license until January of 2008.
Why did any of the judges in the Westchester courthouse accept Pisani’s signature on even a single case? The answer lies with who is appointing him. In the past several years, Pisani has been appointed as a referee in discovery issues by Westchester judges 13 times, and as a foreclosure referee 65 times by Judge Dennis Donovan, Judge Louis Barrone, Judge John DiBlasi, ex-administrative judge Aldo Nastasi, ex-Westchester County Executive, Judge Andrew O’Rourke, and even by the current Administrative Judge, Francis Nicolai. For the past
several years, the Westchester Courts have entrusted over $13,000,000 in foreclosure victims’ funds to a convicted felon, a disbarred attorney, who was not even legally allowed to handle foreclosure cases to begin with! How possible would it have been for any ethical judge to stop Pisani, when the Administrative Judge, himself, was one of the individuals doling out appointments to him?
Pisani’s influence extends even beyond the courthouse. Since 2001, Pisani has been routinely invited by Professor Gary Casella, of
the Pace University School of Law, and the Grievance Committee, to be a guest lecturer to Pace law students on the topic of, you guessed it, ethics! Is there any hope for our legal system when our upcoming young lawyers are being trained by a disbarred attorney who is a convicted felon?
Is there any help or recourse at all for those who fall prey to these corrupt individuals? As we asked in our first article on this subject, “What do you do if the individuals assigned to protect your child, the lawyers and the courts, are the ones who are victimizing them?”
Over the past two weeks, this reporter has heard from many other victims. However, we have as yet to hear from anyone in the Court System as to what they intend to do about this abuse and how they will protect the innocent victims here. Why have they remained
silent on this issue? It’s time the Westchester Courthouse comes up with some explanation.
Over the past two weeks, this reporter has heard from many other victims. However, we have as yet to hear from anyone in the Court
System as to what they intend to do about this abuse and how they will protect the innocent victims here. Why have they remained silent
on this issue?
It’s time the Westchester Courthouse comes up with some explanation.
This story should serve as a warning to all parents of disabled children in our County.
Setting up trusts and guardians for your childrens’ care after your death does not protect your children from abuse by the very systems that
have supposedly been established to protect them. The Special Needs Trusts you have set up may not be used for their needs but may end up, instead, lining the pockets of corrupt attorneys.
The facilities and provisions you have carefully selected and dictated for their care may not be followed and your children may end up a ward of the state in inadequate, frightening facilities instead. The trustees you have appointed could be challenged and dismissed. In short, once you are dead, your disabled children could end up alone and unprotected, and, become a ward of the state at the mercy of our legal system; a system that the United States District Court referred to in 2007 as “the most corrupt in the nation”.
It Took The Signing Of The “Recovery
And Reinvestment Act Of 2009”
Of all the agencies and departments of the federal government, perhaps the one the American people should be least pleased with is the Department of Veterans Affairs. After all, it is the department charged with honoring and fulfilling the obligation and debt we owe those men and women who have risked their lives and limb in our defense.
The sad truth is, and always has been, that men and women returning home from combat around the world, for the better part of 100 years going back to World War I, have been typically short-changed; put through a series of obstacles and adjudicative processes that suggest our national priority is more involved with saving money than providing the nest care available to those who have given so much.
To begin with, the VA has always been preoccupied with distinguishing service-connected from non-service-connected injuries; and, understandably so, given the legislative intent of the enabling legislation that underpins the creation of the Department. Unfortunately, arriving at the correct adjudication has not always been a certainty, and factors, such as political connections, and prevailing public attitudes at any given time, have influenced determinations of service connection or otherwise.
Between 1968 and 1986, my family and I operated a VA Community Care home, providing care, supervision, and a good life to 47 different emotionally disabled veterans, some of whom had served in the First World War, most of whom were drafted during the Second World War, and a few from the Korean and peacetime eras. We were operating essentially a boarding house, caring for as many as 20 veterans at a time in a beautiful 19-room Georgian Colonial set on a park-like 8-1/2 acre property in Brewster, New York.
The program in which we were but one of more than 100 homes serving Franklin Delano Roosevelt Hospital at Montrose, New York, known as the Community Care Sponsors Program, was largely brought into being by the advent of effective anti-psychotic medications such as Melaril, Thorazine, and Stellazine, that came on the market in the early 60s; and made practical the management of otherwise acting-out,
schizophrenic individuals in a homelike, if communal, setting.
For the most part, the VA Community Care Programs in New York State and throughout the nation were clearly superior to any attempt in the 70s by New York’s State Hospitals to emulate them. Still, the quality of medical and psychiatric care inside VA hospitals, such as Montrose; Kingsbridge, clearly inferior and often antiquated, both in terms of staffing and facility, when compared to contemporary
municipal hospitals. throughout the 70s.
Many Community Care sponsors prided themselves in only accepting service-connected, disabled veterans, for purely financial reasons because those who had been adjudicated service-connected could comfortably afford their room, board and supervision while those who were not were often viewed as charity cases, no less worthy of an opportunity to get out of the hospital and into a family setting with children,
pets, and contact with a real community. However, the method by which the VA made their irreversible adjudications was very flawed, to say the least.
Consider Frederick W. Unger, who enlisted Monday morning, December 8th, 1941; who fought in the First and Third Armies, who killed in excess of 200 enemy soldiers as a front-line observer, and who emerged from the war and went to work driving a bus for the City of New York. He did so at $1 an hour, 48 hours a week, for some 14 months until the faces of all the men he had killed, all the struggles he survived, finally caught up with him, turning him into an alcoholic to the point of brain damage. Nevermind the 200 or more enemy soldiers he shot, bayoneted, and beat to death. The fact was he emerged from the war and held a job for more than 12 months, and, therefore, his injury was classified as non-service-connected!
It happens that one of the first four veterans that came to live with us, back in June of 1968, June 28th to be precise, my mother’s 54th birthday and, coincidentally, the 54th anniversary of the outbreak of World War I, was a fellow named Eli Paul. His father schizophrenic son, “Eli, why don’t you join the Army? When the war is over, they will take care of you.” Dad was already taking care of Eli’s helplessly schizophrenic and once enlisted, and put through “boot camp”, he was assigned, appropriately enough, to Fort Dix, New Jersey, where he guarded German and Italian prisoners of war until the war ended in 1945.
The most traumatizing experience Eli dealt with in his four-year Army career was when he was exposed to a horror film on one of the many occasions that he would bring the prisoners to a movie in New York City. Of course, upon the conclusion of the war, Eli was adjudicated “service-connected”. In 1986, when we, who had been determined to be a ‘model home’ some 12 years earlier by a top-level VA team of evaluators from Washington, D.C., were virtually compelled to sell our property, or go bankrupt, Eli Paul was receiving $1895 tax-free a month in VA disability, and Fred W. Unger, incidentally the second-most heavily decorated soldier of World War II, was receiving a $225-a-month “pension”.
Given that personal history with, and knowledge of, the agency that was formerly known as the Veterans Administration, I was not the least bit surprised to read last Thursday’s updated dispatch out of Manila, in the Philippines, headlined, “Pinoy Veterans To Get One-Time, Lump-Sum From U.S. DVA,” which declared, “The United States Department of Veterans Affairs is now reaching out to all Filipino
World War II veterans in connection with the ‘new one-time lump-sum’ benefit program as a part of the new law entitled, ‘American Recovery And Reinvestment Act of 2009’”, the U.S. Embassy reported yesterday.”
The dispatch went on to say, “The United States has great respect for the bravery and service of Philippine World War II Veterans and for their partnership with the U.S. military in defending freedom. This new legislation formally recognizes the service of Filipino veterans as active military service in the Armed Forces for purposes of this law, the Embassy said.”
The Second World War ended in August, 1945, 64 years ago. Even a Filipino who fought, and was only 25 years old when the war ended, would be a minimum of 89 today. And, oh yes, the dispatch made it very clear that, “In order to provide effective transparent service, claims will only be accepted from Filipino war veterans. We encourage all Filipino World War II veterans to apply in person at one of the locations listed on the dates indicated. Claims for spouses, widows, and children of Filipino World War II veterans, will not be accepted, the U.S. Embassy said.”
What took us so long? But, then again, isn’t this the same VA that, for 30 years, argued over caring for our Vietnam veterans sickened by Agent Orange; the same VA that makes it necessary to enlist the help of a Congressman to get the care and treatment our young men and women, returning from Iraq and Afghanistan without arms and legs, so desperately need?
In Our Opinion...
Perhaps Paterson Would Really Rather Not Be Governor
We have had the distinct impression, for some time, that David Paterson never wanted to be Governor of New York; that he was quite content to be Lieutenant Governor; an award of sorts bestowed by Eliot Spitzer for his years of congeniality as the State Senate’s Minority Leader. For the most part, his effectiveness lay in his ability to achieve in the background, out of the limelight, together with his abundant good sense of humor.
David could be disarming at times, not merely with sharp, almost abrasive, one-line quips, but with major operations such as his all too-detailed revelation of his and his lovely spouse’s extra-marital dalliances within hours of assuming Eliot’s throne. It was all too obvious that he was largely unprepared, staff-wise, to take on either the responsibility, or the character, of his new assignment.
Paterson has come off more disoriented and confused than most New Yorkers are willing to accept nearly a year after becoming governor. It is
as though the decline of Eliot Spitzer, as well as that of Joe Bruno, may have traumatized a man who never really had had to engage in open
political warfare; a man whose physical disability, and, to some extent, his familial and racial identities had sheltered and perpetuated, virtually
taking his constituency, and his position, for granted for many years.
David Paterson would clearly have been contented to serve out eight years under Eliot Spitzer, going about the state cutting ribbons, making
high-minded speeches, and basically doing nothing that could subject him to much scrutiny or criticism. Clearly, he was a man who needed guidance, good advice, someone to watch over him and to protect his flank day and night. Some say Charles O’Byrne, his embattled former Chief of Staff, was that person, the one individual who could keep Paterson focused and on course. With O’Byrne’s departure, even the most obvious decisions, the Caroline Kennedy Affair, the granting of huge raises to top aides while calling for union givebacks, have turned into nails in his political coffin.
With respect to Andrew Cuomo, Paterson couldn’t be more helpful to that camp’s gubernatorial ambitions if he were Andrew’s campaign director. David missed the perfect opportunity if he was serious about remaining governor, to knock his chief rival, politely, but affirmatively, out of the running. We have little doubt that Cuomo would have gladly accepted Paterson’s appointment to the United States Senate in a heartbeat.
Perhaps Chuck Schumer influenced that decision, not wishing someone as politically powerful and ambitious as Andrew on board. In any event, whatever advice David Paterson was listening to was bad advice, unless, of course, in his heart of hearts, he would like nothing better than to get off the gubernatorial hot seat.
Our Readers Respond ...
Eyewitness To Ridley Killing Says “Parents Deserve The Truth, Not Lies, From A Corrupt DA”
This letter is in response to your Advocate article of February 12th. I cannot understand how you can excuse the District Attorney’s regular violations of the United States and New York State Constitutions, even if it was tongue-in-cheek. As a witness to the tragic events of the death of young Officer Ridley, Janet DiFiore’s actions are inexcusable! Yes, I was a witness and did testify to the grand jury. Even if the actions of the County Police are excusable as “ordinary people in an extraordinary circumstance,” the actions taken after are not.
When we were all in the basement of 148 Martine, one witness kept saying, “They shot another cop!” This witness didn’t want to make a statement. After seeing the lies and cruelty of the DA’s Office, we can understand why.
Christopher Ridley was apparently left-handed. He held his gun in his left hand, in his right hand, to my belief and knowledge, his badge. The young officer had just been in a fight for his life. The suspect he was arresting had caused his gun to fall to the ground, under them, as they fought. He retrieved it in his left hand. In his right hand he picked up his badge to show. Out of breath, he seemed to not be able to speak. The responding officers did not see this. They apparently panicked. How much training can really prepare you for an actual moment of someone holding a gun at you? However, a few minutes after the shooting, when we were able to approach the body, before the White Plains Police Department got there, the badge was nowhere to be seen.
At least 10 people saw it, but not after the shooting. This fact can easily be clarified with the tapes taken from 148 Martine Avenue. It is my understanding witnesses were both identified and subpoenaed from this tape at a later date. If the tapes were that clear, why have they not been shown; shown to the grand jury, the witnesses, or anyone else in authority that would need to see them? I understand that they are quite clear.
Also, if the person Officer Ridley was arresting assaulted an older man around the corner, the start of all of this, why hasn’t that tape been seen? Surely if witnesses can be identi-fied from them, the alleged girlfriend could be seen. The truth behind that is that the suspect had no girlfriend.
He asked for a cigarette, and was told no. That prompted the initial assault. Truth is, he should not have been in the city at all that day. It is my understanding, from residents at the Volunteers Of America’s shelter at Grasslands that that morning he was threatening to, “kill someone today.”
This seems familiar, yes, Philip Grant, another resident of a VOA shelter in Westchester. He, too, was reported to have made threats, then been brought promptly to White Plains, with similar results. The truth is, Janet DiFiore is not covering up a tragic mistake of any officer. She is covering up for an inept contractor (the VOA) and a gross misappropriation of federal funds. The New York State Constitution, Article 18, states that these funds are to be used for the building and maintenance of “low-income housing,” not for the building of medium-security prisons to warehouse the homeless. After all, it seems Westchester County, without a legislative act, has decided homelessness is a crime. This may be
unknown to your readers, but a bed at the VOA’s shelter costs taxpayers @ $4,000 per month. There are 140 beds at the Grasslands Shelter. There
is an average of four beds per room at a cost of @ $16,000 a month, per room. These are rooms, no private bathroom, and no cooking facility.
This is opposed to low-income rentals that are never built by the builders who are supposed to build so many units. Where is all this money going?
The homeless get $45 per month, $1.50 per day.
The real reason Officer Ridley may have been characterized as reckless may be to keep people from asking, at that much money, when the shelter was opened to prevent another Philip Grant-type incident, how did it happen again? This time, a young hero lost his life. At least, in fairness to Mr. and Mrs. Ridley, the truth needs to come out.
Their son was not reckless, he was brave. Our DA, and the County’s leadership, are the cowards. There is no greater loss than when a child dies before a parent. We all must know someone who lost a child by illness, accident, or some other way. These parents deserve the truth, not lies from a corrupt DA. Where are those videotapes? When will the truth come to light?
Pisani Article Grabs Attention Of A National Organization
Your Court-Appointed Convicted Embezzler Handling Disabled Child’s Funds article was forwarded to me and, in turn, I wish to introduce you to NASGA (National Association to STOP Guardian Abuse), an organization of victims and families working to expose and end unlawful and abusive
guardianship/conservatorships of the elderly and/or vulnerable. We have members who are parents of disabled adults. Guardianship abuse targets any vulnerable person with assets.
Please visit our website at www.StopGuardianshipAbuse.org, and our blog at http://NASGA-StopGuardianAbuse.blogspot.com. Thanks for your article and your advocacy. Stay healthy and strong!
Elaine Renoir, NASGA
Down With County Government
From its inception the move to rethink Westchester Government was long overdue. The wellresearched articles by Westchester Guardian bureau
chief Catherine Wilson (Nov. 20, 2008 thru Jan. 8, 2009) undoubtedly give the most thorough accounting as to why this wasteful, redundant burden has to go, a must-read for the increasingly outraged residents.
Rob Astorino’s involvements with the “rethinking” movement raises some questions. Could it be that this was true bi-partisanship, Republicans, Democrats, Independents working together for a common goal? Or was this a “foot-in-the-door” thing, another attempt by Mr. Astorino for County Executive?
Apparently someone is not getting the message – WE DON’T WANT COUNTY GOVERNMENT! During Mr. Astorino’s previous effort, party lines became blurred, so eager were residents to be rid of Andy Spano & Crew. Damning evidence was presented to Mr. Astorino’s campaign staff, documentation of the highly questionable practices of County Government, genuine exposé material, to no avail. Even a cleverly designed Spano
bumper sticker, while displayed at campaign headquarters, was rejected.
David Simpson and staff weren’t touching it. Missed opportunities. It makes one wonder; was that first attempt by Mr. Astorino a real one or was it another “arrangement” á la Larry Horowitz? Read our lips, Rob, NO MORE COUNTY GOVERNMENT!
A Knowledgeable Reader
Re: Paul Cote
I am writing to you in response to your article of January 8, 2009, First Amendment Retaliation That Contaminated State And Federal Prosecutions.
I picked up your paper and was quite taken with the article. I can’t seem to wrap my head around the fact that this country has a new president and everyone seems alive with hope and a new future and Mr. Cote seems to be waiting for an unfair prison sentence.
Is there something I am missing? This is not a story I was following, but I think it touches and affects each and every one of us. The only thing this man seems guilty of is doing his job. How can this man be a menace to society, when he served society in one of the most thankless positions as a corrections officer?
How, in this day and age, are people sitting back and letting this happen? Isn’t this America? It saddens me that there is no end in sight, regarding this tragedy, for Mr. Cote and his family. Kudos to you and the Westchester Guardian for your courage and integrity.
Re: Paul Cote
Some thoughts on Ugly Retaliatory Injustice.
After reading and digesting the facts presented in your January 8th feature story about former Corrections Officer Paul Cote, I couldn’t help but put the bare facts of the incident which occurred in the Valhalla Facility on Oct. 10, 2000 in an inequality format. It appears evident that a judicial error and personal agendas prompted the outcome which former officer Cote is experiencing presently.
Clearly, there were three active participants in the incident, one of them being the belligerent inmate, and two others who were correction officers, Reimer and Cote. Surely, one correction officer is carrying the burden of the outcome, demonstrating an inequality, and travesty of justice. What prompted one correction officer, Reimer, to be granted “immunity” while the second officer, Cote, carries the ball? Was it political motivation and/or personal protection from being brought to task? I think so.
The article brings out the fact that Officer Cote was already indicted, tried, convicted, and incarcerated on the state level. So why did the federal government continue to pursue after 59 months, to reindict, to bring to trial and convict Officer Cote when, in point of fact, he already was punished for coming to the aid of Officer Reimer, immuned from the onset?
In these days of a downward spiral of the economy, doesn’t the federal government have anything better to do with taxpayers’ money than to
continue to retry, and reconvict, one who has already “paid his dues”? Let’s be fair, and examine, and reexamine, the reason and/or reasons behind a reconviction and a current incarceration.
A Concerned Reader And Taxpayer
Once Again, A Voice From The Right
What Price Comity is the title of Fred Polvere’s February 5th column. And, in his usual mantra, the Republicans are the cause of all the ills of society. Now they are to blame for the economic crisis we find ourselves in. No mention is made of the Fannie Mae/Freddie Mac fiasco, who many believe was the genesis of our current problems, brought about mainly by the continued support of Democrats and their liberal agenda.
We can all agree that fiscal irresponsibility, out-of-control spending, regulations, de-regulations, etc., over the last eight years did nothing to assuage the mess we find ourselves in. And I believe both parties, and the American people, should share equally in the blame. What I find ironic, however, is the last sentence in the column, “This is not the time for a Kumbaya Presidency.”
Well, what has been going on for the last two years, I wonder. The euphoria and ill-conceived expectations; it was Obamamania, a reckless abandon
of common sense and maturity. It was let’s all hold hands and sway to and fro, sing of hope and change, and give thanks, for the chosen one has arrived. It has been Kumbaya unrestrained, and now you want it to stop?
Bob Pascarella, Bronx
The Court Report
By Richard Blassberg
Acting State Supreme Court Justice Jeffrey A. Cohen
Grants Injunctive Relief To Westchester County
Correction Officers In Dispute With County
Ruling Brings Into Focus Questionable Practices By
County Department Of Corrections Involving Millions Of Dollars
Westchester State Supreme Court
White Plains, New York
Judge Jeffrey A. Cohen Presiding
A ruling by Acting Supreme Court Justice Jeffrey A. Cohen, a little more than two weeks ago, has brought a quick response from the County Attorney’s Office in the form of an appeal to the Appellate Division, Second Department, of State Supreme Court in Brooklyn. The Westchester County Correction Officers Benevolent Association [COBA], bargaining agent for some 750 County correction officers, had brought an Article 78 proceeding in the form of an Order To Show Cause against “The County of Westchester and the Westchester County Department of Corrections.”
COBA had argued that the Respondents had, over a period of several years, been “withholding, revoking, and/or interfering with benefits due correction officers,” pursuant to General Municipal Law 207c in accordance with Article XX, Paragraph 12(a) of the Collective Bargaining Agreement between the union and the County. Essentially, the union argued that the practice of the Department of Corrections, over several years, involving reduction of officers’ leave time and benefits, was in blatant violation of State statutes and the terms of the Collective Bargaining Agreement in force with respect to correction officers on leave due to job-related injury.
As is so often the case lately, when individuals, or agents acting on behalf of County employees, or a class of individuals, bring the County of Westchester and/or any of its many departments into State or Federal Court, the County Attorney’s Office typically attempts to obfuscate the legal issues and elements of fact with a ‘smokescreen’ of procedural arguments. Judge Cohen was neither distracted nor confused, manifesting a clear grasp of the history between the litigants as well as the applicable case law.
Relying upon “the plain language of Paragraph 12(a) of Article XX of the CBA” Cohen concluded that the petitioning union was correct in their contention that the Department of Corrections had “improperly deducted the individual petitioners’ accrued leave for a portion of the time period during which the Medical Consultant’s determination as to their fitness to return to work was still pending.”
While it is clearly very important, going forward, that Judge Cohen has, in fact, enjoined the County from engaging any further in such unlawful practices, the real impact will be felt from the retroactive application of the ruling to possibly hundreds of such wrongfully handled correction officers over the past several years, and the questions that will surely arise regarding those unpaid funds.
Tuesday, February 24, 2009
RSVP to Jan Maltby at email@example.com by March 3rd. www.comfortrestaurant.net
SLOW FOOD WESTCHESTER, WESTCHESTER/ROCKLAND DIETETIC ASSOCIATION and FOOD BANK WESTCHESTER present:
FOODLAND: Sustainable ways to grow land and food, economical and creative ways to enjoy local cuisine.
Date: Wednesday March 25, 2009
Place: Peter Pratt’s Inn
Yorktown Heights, NY
Time: 5:00-5:45 p.m. – networking and appetizers. Meet local farmers and taste their products.
6:00-8:00 p.m. – food courses alternating with presentations by restaurateur Jonathan Pratt, horticulturalist Russell Greenleaf, and farm manager Kevin Skvorak.
Farmers are finding new ways to sell their goods and finding new goods and ways to produce them. We need to preserve this major NYS industry. First, we need to insure enough healthy land is preserved to grow food. How much farmland do we need to feed the growing population? How many new farmers will we need? How can we ensure that local farmers can afford to keep farmland?
We will also discuss growing food for work & therapy: troubled youth, mentally challenged adults, prisoners.
We will taste and talk about new cuisine opportunities that can be enjoyed in NYS.
Cost: $35.oo per person, Slow Food Members receive a free glass of wine
For reservations and information call: 914-882-0121
Diane A. Lombardi, RD
PR Chair, Sustainable Agriculture Co-Chair
Westchester Rockland Dietetic Association
196 Danbury Road, Wilton, Connecticut
Sunday March 1st, from 2:00-4:00.p.m.
Space is limited to 10 kids and 10 adults
R.S.V.P. to firstname.lastname@example.org a must!
Free for SlowFood members/$5 a child for non-members.
Please join us to learn how bread is made at the celebrated WaveHill Bakery
in Wilton, CT. Owners Margaret Sapir and Mitchell Rapoport will show
the kids the ins & outs of breadbaking. From learning how the spelt and rye
are milled, to shaping the dough, learning how the dough rises and, finally,
baking the bread. Each child will have enough dough to make a loaf to take home.
During the proofing process, snacks will be available for everyone.
This is a wonderful class that kids enjoy.
It’s best for children ages 4-10, but older kids will enjoy it too.
WaveHill's amazing Artisanal bread will be available for sale at the event.
This event is almost SOLD_OUT
Friday, February 20, 2009
Book, coordinate & schedule patients surgical appointments. Pre certify and schedule tests and procedures. Coordinate medical clearances for patients. Maintain information on Physician's schedule.
APPLY HERE >>
DENTAL CHAIRSIDE ASSISTANT Chairside, Four handed, expanded duties
We need someone:Experienced, Competent, with Terrific Work Ethic Someone who can communicate with ConfidenceWarm and amiable is a plusWe will really take care of you, and pay you more than anybody, (includes medical care, pension etc.)
Please fax resume to 914 764 8358 or email to email@example.com
Park Avenue Health Care, a leading provider of medical and behavioral services at long term care facilities in New York for nearly 25 years, is seeking an experienced Psychologist for a part-time position in Somers, NY.Psychologist will provide individual psychotherapy to residents of a long-term care facility. A flexible schedule, autonomy, and minimal paperwork, are some of the advantages of this position.
APPLY HERE >>
APPLY HERE >>
Thursday, February 19, 2009
Reviewing New York State Bar Association’s Preliminary
Report On Wrongful Convictions in New York, Part 1
The New York State Bar Association recently issued a preliminary report on wrongful convictions in New York analyzing what the causes
of wrongful convictions are, what reforms are needed in light of what they tabulate as 53 wrongful convictions in New York, which they define
by saying that they “do not express an opinion that all 53 exonerees were actually innocent. “However,” they further declare, “While some individuals may not have been, in fact, innocent, in all these cases the criminal justice system broke down to the degree that a conviction was wrongly obtained.”
This article will review some provisions that the report offers and, as a criminal justice advocate, give my views with respect to them. Because much of it is written in language similar to the way that Criminal Procedure Law is written, I will translate where necessary to facilitate understanding before stating my own views. e report itself, with all of its appendices, is 184 pages long.
In this article with limited space, I will attempt to review some of their more relevant points. However, I encourage those who are interested to
view the original document online at www.nysba.org/Content/Navigation-Menu42/January302009HouseofDelegatesMeetingAgendaItems/
The last thing that I would like to say is that as someone who researches wrongful convictions, attempts to keep abreast in the field, and occasionally writes memos, I fully appreciate the level of work and research that went into the document, and I consider it to be of tremendous value and a very positive tool for those who are interested in learning more about wrongful convictions, as well as for those who are working to effect change, both amongst the advocates working on policy issues as well as public officeholders. I cannot say enough good things about it, though I do not agree with everything in it. The beginning of the report sets the tone for the rest for the document as follows: “When Bernice Leber assumed the presidency of the New York State Bar Association on June 2, 2008, she immediately recognized the need to study the root causes of wrongful convictions in New York and to promulgate any changes necessary to insure that only the guilty are convicted. She stated,
‘[f]or each wrongful conviction that surfaces, how many others are still unfairly resolved? Ensuring the fair administration of justice must be the
number one priority in our criminal justice system. As leaders of the profession, we have a responsibility to do everything we can to protect the innocent and make sure men and women are not punished – not even for even one day – for crimes they did not commit.’ ” Based upon this, she ordered that studies be undertaken and a report issued.
The Mission Statement of the document is as follows: “The number of exonerations in New York undermines the assumption that the criminal
justice system sufficiently protects the innocent. Many of the exonerations do not involve DNA evidence. The consequences are far-reaching,
considering, among other things, the lengthy incarcerations some defendants have experienced. The Task Force is charged with identifying the
causes for wrongful convictions, and to attempt to eliminate them. The Task Force shall identify all of the causes of the wrongful convictions and isolate the systemic causes that produced these injustices. The Task Force shall focus on current rules, procedures and statutes that were implicated in each case and propose solutions in the form of procedural changes and legislation. The Task Force shall provide opportunities to educate the profession and the public on the causes of these erroneous convictions with the aim of ensuring that our laws, policies and practices are designed to reduce the risk of convicting the innocent and increasing the likelihood of convicting the guilty. In addition, the Task Force shall review and report on the current remedies/compensation available to those wrongly convicted and propose reforms, where appropriate.”
Note: Misidentification is the leading cause of wrongful convictions, accounting for 75% of the nations 232 DNA proven wrongful convictions, and in 12 of New York’s 24 DNA proven exonerations.
Change the Way in Which Identification Procedures (Including Lineups and Photo Arrays) Are
Conducted to Enhance the Reliability of Eyewitness Identifications
A) Double blind administration - The administration of the identification procedure should be performed by persons who do not know the
identity of the suspect.
b. B) Cautionary instructions - Eyewitnesses should be told that individuals administering the identification procedure do not know who the suspect is and told that the perpetrator may or may not be present.
C). Effective use of fillers - At least five fillers should be used. If practicable, fillers should be matched to the eyewitness’ description of the
suspect, but at the same time the suspect should not stand out as being different from the fillers.
D). One suspect per lineup.
E) . Sequential presentation of identification procedures - There is evidence that sequential and double-blind identification procedures result in a reduction in “false positive” results,
F) Videotaping the procedure - Where the identification procedure is a police arranged procedure such as a lineup or photographic array,
the entire identification procedure should be videotaped with enough cameras with audio to capture the witness, administrator and members
of the lineup or photo array.
Evidence of Photographic
Identifications Should Be
Admitted At Trial
If they Are Properly Documented by Video Recording and If they Are Conducted in Accordance With the Proposed Improvements to Identification Procedure (i.e., Double-Blind; One Suspect Per Procedure; Cautionary Instructions Provided to the Eyewitness; Effective
Use of Fillers; One Suspect Per Procedure)
Failure to Comply With the Proposed Reforms to Identification Procedures Should Be Considered By the Trial Court As A Factor in
Determining Whether Evidence of the Eyewitness Identification Should Be Admitted at Trial.
Allow Expert Testimony on Eyewitness Identifications At Trial
- An expert should be permitted to testify as to the scientific research surrounding identification procedures, including their administration,
reliability and the nature of human memory, in any case where identification is an issue and where such testimony is relevant. In the
event that prosecutors or defense attorneys lack the resources to hire an expert on eyewitness identifications, funds should be provided to both prosecutors and defense attorneys to permit the hiring of these kinds of experts.
Provide Jury Instructions on Eyewitness Identifications
- Jury instructions should be provided so that at the time of deliberations, the jury is aware of any potential unreliability in the eyewitness
identification. Through jury instructions, jurors should be made aware of the factors to consider in evaluating the reliability of an eyewitness
identification. Specifically, in any case where an eyewitness identification procedure is not conducted in accordance with the improved procedures outlined here (i.e., double-blind; one suspect per procedure; cautionary instructions provided to the eyewitness; effective use of fillers; one suspect per procedure), jurors should be instructed that they may consider the failure to implement the procedure as a factor in accepting or rejecting the identification. Jurors should likewise be instructed that they may consider law enforcement’s failure to properly document the identification procedure when deciding whether to accept or reject the in-court identification
Firstly, better procedures for ensuring the accuracy of an identification are proposed. If those procedures are not employed, the court must then consider that fact in deciding whether to allow the identification to come into evidence. If the judge decides to admit the eyewitness
identification even though the recommended procedures were not utilized, the jury will be given instructions to take into account the
fact that the most accurate procedures were not used and an expert will be allowed to testify.
The procedures the committee suggests are the same as those that are pretty much universally advocated by most in the wrongful conviction
movement. Considering that these are supported by scientific research, I agree with the procedures. However, they leave out an important step, taking victim confidence statements; asking a victim, “On a scale of 1 to 10, how confident are you of your identification?”
The proposal to have a judge take into account a failure to follow best practices in deciding to allow testimony in is a good one, as is the proposed curative instructions, which I see as both a motivation to prosecutors and police to conduct proper lineup procedures in order to ensure accuracy, as well as in an effort to get juries focused on important factors to weigh while assessing the credibility of an identification
that was obtained without using the most accurate procedures. Although I believe that these suggestions would help improve matters, I take a somewhat different view as to what needs to be done. I don’t think that these remedies are necessarily the strongest ones that are available. Given that misidentification has caused 75% of the nation’s 232 DNA-proven wrongful convictions, and that defendants often spend decades of their lives in prison before being proven innocent, I believe that the time for pussyfooting around has long since past. I believe that authorities should be educated on the danger that misidentification poses, and taught the new procedures, and then made to comply with them by the court.
The idea of allowing an eyewitness identification expert to testify is a good one which will give jurors more general background knowledge.
They should be allowed to testify as to general information about misidentification.
Jail House Informants
Incentivized witnessing, which I have previously written about, is de-fined as when a witness has been given a reward in exchange for testifying, including having charges dismissed and/or receiving a lesser sentence, or a financial reward, has been a cause of wrongful convictions in 15% of the nations 232 DNA proven wrongful convictions. In New York, it contributed to 5 of New York’s 24 DNA proven
wrongful convictions, thus far.
1. Any Informant’s Testimony Should Be Corroborated (The Corroboration Requirement for the Use of Accomplice Testimony Should Be
Extended to Non-Accomplice Informants)
2. The Jury Should Be Instructed to Consider Several Factors Indicating the Extent to Which the Testimony is Credible, Including: (i)
Any Explicit or Implied Inducements that the Informant May Have Received or Will Receive; (ii) the Prior Criminal History of the Informant; (iii) Evidence That He or She is a “Career Informant” Who Has Testified in Other Criminal Cases; and (iv) Any Other Factors That Might Tend to Render the Witnesses’ Testimony Unreliable
3. The Court Should Conduct a Pre-Trial Reliability Hearing with Respect to the Testimony of Informants
4. When the Court Finds the Need to Protect the Identity of an Informant Compelling, It Should Conduct an In Camera Review of the Information Relating to the Informant’s Credibility, and Provide the Defense With All Such Information As May be Provided Without Disclosing the Informant’s Identity
5. A Videotape Recording, When Possible, Should be Made of Any Informant’s Statement Given to Any Law Enforcement
Agent or Prosecutor 6. The Prosecution Should Develop “Best Practices” That Check the Reliability of Informant Testimony
In view of the danger of wrongful conviction based upon testimony from jailhouse informants, the report seeks to implement some protections in an effort to prevent that. Those protections include:
A) that defendants should not be convicted based solely on an informant’s word, but instead that their testimony must have some other evidence to prove it’s truthfulness;
B) The judge must evaluate the informant’s testimony at a pretrial hearing for the purpose of determining whether they are believable,
before allowing such evidence to be used at a trial;
C) Juries will be told that they must take into account various factors which may make an informant’s testimony unreliable;
D) Informant’s statements must be videotaped; and,
E) Prosecutors must have a system in place to ensure that informants are testifying truthfully.
The reforms seek to place the emphasis on ensuring that only truthful testimony is obtained from informants. As such, it would make
the system more reliable. Nonetheless, I believe that criminal justice would be more accurate if the practice of giving witnesses rewards were
to cease altogether. In my view, a witness to a crime should come forward on a moral basis, and not because they stand to profit. Despite the procedure suggested, to have a judge evaluate an informant’s credibility before allowing it to be introduced to a jury, given many trial judges’
failure to prevent wrongful convictions in other areas, such as pre-trial hearings designed to prevent the admission of unreliable eyewitness
testimony and coerced confessions, I don’t believe that this procedure will be very effective.
Catherine Wilson, Bureau Chief
Not Holding Their Breath
For Recovery Bailouts
Congress finally passed an economic recovery package last week, the American Recovery and Reinvestment Act of 2009, that was high on dollars but short on details. According to the Congressional website: (The) American Recovery and Reinvestment Act of 2009 - Calls for the enactment of legislation to create jobs, restore economic growth, and strengthen America’s middle class through measures that:
(1) Modernize the nation’s infrastructure;
(2) Enhance America’s energy independence;
(3) Expand educational opportunities;
(4) Preserve and improve affordable health care;
(5) Provide tax relief; and
(6) Protect those in greatest need.
The bill provides for expanded unemployment benefits, food stamps, health coverage and aid for states for school aid and other programs. In
addition, individuals who receive Social Security, Supplemental Security Income and veterans pensions and disability, will receive a check for $250 each. Middle income taxpayers would get a break of $400 per individual, $800 per couple, in their Federal taxes while lower income earners will receive a reduction in their Social Security and Medicare taxes. The Obama Administration is also proposing additional government funding in this bill, for information technology in health care, and “green jobs” to reduce the nation’s reliance on foreign oil, and $46 billion for highway, bridge, and mass transit infrastructure projects. General Motors and Chrysler will also receive additional funding
from this stimulus package, up to $7 billion in total, in addition to the $13 billion in loans they already received from the Bush Administration last year.
In tandem with the $790 billion economic stimulus plan for Americans, Treasury Secretary Timothy Geithner also announced a $2 trillion bailout package last week for the banking industry. Both plans were initially rejected by Wall Street where stocks plunged another 382 points the day the stimulus package was approved by the Senate. “Wall Street is hoping for an easy way out and there is no easy out,” President Obama noted, reacting to the stock market plunge. However, neither Obama nor Geithner provided the comprehensive details as to where all this money will end up and how it will be accounted for, that investors, taxpayers, and state and local governments are seeking at this critical time.
In a message to state residents last week, Governor Paterson addressed the financial crisis affecting New York and how the state is already acting
on this issue, without waiting for the Federal Government’s intervention: “Earlier this week, I reached an agreement with the Legislature to close a $1.6 billion deficit for the 2008-09 fiscal year. Though I have repeatedly lobbied the federal government for an economic stimulus package, New York could not afford to delay and hope for rescue any longer,” Paterson said.
Many area residents and local business owners are also taking the same approach. They are not waiting for the government to step in and are, instead, addressing their economic problems themselves. Billy Fortin, owner of Scotts Corner Market in Pound Ridge, noted that his customers are already changing their shopping habits. “People are more selective about their buying. They’re leaving the good dollar stuff on the shelves. They’ve switched from Porterhouse steak to less expensive cuts,” he told us.
Fortin believes that the solutions for the economy will come from businesses themselves. He said, “We’ve had it so good for so long. But my sales are off recently about 4-5%, which is pretty good in comparison to other businesses. So, we need to look into the intimate details of our businesses
and run them better. That’s what companies should do anyway. You should always look at how you can do better, even in good times”.
By following his own advice and keeping an eye on the details of his business, Fortin has managed to avoid the pitfalls of the economy so far. He stated, “I’ve never laid anyone off and I haven’t had to yet. I have 144 employees and they have to feed their kids, too”. Fortin also owns two other businesses in the area that are not showing the impact of the declining economy. “I own a pet store and I haven’t seen any impact there.
People love their animals. For many people, their pets are their best friends and they want to spend on them and take care of them,” Fortin noted. “I also own a restaurant in town, called Blind Charlie’s. We’re a breakfast and lunch café. I deal with a very well educated clientele. They demand value, and our café prices are good. So nothing has really changed there. But I know some friends who own fine dining establishments and their businesses are down,” he added.
Fortin is concerned about some of the government proposals to stimulate the economy and offset the declining tax revenues. He interjected, “This
is an affluent area. If the government raises taxes on high income individuals that will probably hurt businesses in this area”. But Fortin believes that the ultimate responsibility for his business rests with him and sound business practices. “I don’t know that government can help; if my business goes under, it’s my fault.
I don’t want government to bail me out. But I hate to see people lose their jobs. So if the government can help with that, I’d be for it,” he reflected. Fortin is not alone in not waiting for government intervention in the economy to help his businesses survive. Many local merchants are looking for new ways to cut costs to offset their declining sales. A common tactic the Guardian discovered among local businesses to cut costs lately is to be selective about what credit cards they will accept. Many local merchants, particularly gas stations, are refusing to accept American Express cards any longer due to their higher than average user rates. One gas station owner in Pleasantville admitted to the Guardian, “I cannot afford to accept them, American Express. They bill me 4% - 5% on every dollar the customer charges. That’s almost double what MasterCard and Visa charge.” However, this owner noted that not all MasterCard and Visa credit cards are alike. “If the MasterCard or Visa awards airline frequent
flier points, they’ll charge me almost as much as American Express. And you can’t often tell by looking at them if they are an award card,” he noted. “Besides, I have to accept them, regardless of what type of award card they are”.
The most popular card with these merchants is Discover which traditionally charges businesses the lowest rates for accepting them. However, as the Pleasantville owner noted, “Most individuals in this area do not carry Discover cards. It’s either a Master-Card or Visa for their personal
use and an American Express for their business expenses”. Local employees charging gasoline and other business expenses to their companies may have to foot the bill up front themselves on their personal credit cards as more gas stations and area businesses refuse to accept American Express for payment.
Local companies catering to mostly non-business clientele are following suit. The owner of “The Hair Stylist” beauty salon in the Galleria Mall in White Plains also stopped accepting American Express cards from her customers just two weeks ago. “I cannot afford to pay them their fees any more,” Vicky told the Guardian. “They charge far more than the other cards so I have to stop taking them.” Vicky had just posted a hand-written
sign on her cash register the day of the Guardian’s visit. “So far I haven’t had any complaints” she said. “People understand we have to cut costs.”
Even major chain stores are adopting new strategies to keep customers. When a discontinued Dyson vacuum cleaner, advertised at $449.98, discounted from $549, was no longer available last week in Kohl’s in Bedford Hills, the manager on duty offered the prospective customer a higher-priced model, one regularly priced at $599.98, for the lesser-model’s sale price, an immediate savings of over $150 for the customer.
Several sales clerks and cashiers from local chain stores admitted to the Guardian that their stores are willing to negotiate with customers, especially on high-ticket items, in order to get the sale. Kohl’s position in the market as a low-priced clothing store places it in a favorable position in this economy, it is one of the few major department store chains that is expanding and hiring. Last week Kohl’s announced the opening of another store, in West Palm Beach, Florida. At a hiring fair for that store earlier this month, scores of potential employees lined up all weekend for the 150 positions available.
While some businesses like Kohl’s are doing well in the current recession, others are struggling to survive. Adding to the economic woes are consumers themselves who are cutting back on purchases. Noting that “American families are tightening their belts and so should Washington”,
President Obama, on his first day in office, capped the salaries of White House aides who currently earn over $100,000.
Tightening our belts may not be enough; economic experts are now claiming the current “Great Recession” could last as long as three more years. As the stimulus package was being voted on, however, Obama reassured Americans by claiming the plan would “create 3.5 million jobs and get the economy back on track”.
Included in the package are tax breaks for the purchase of a new car or home to encourage growth in the housing and car manufacturing industries. But for families already hit hard by the recession, or worried about losing their jobs if the current recession continues, tax credits alone may not
be enough to encourage them to make major purchases. And area businesses are responding to the changes already visible in consumer patterns. As Pound Ridge entrepreneur Billy Fortin noted, “Businesses have to adapt to survive”.
Support Growing For Scarsdale PBA In
Dispute With Village Administration
Some weeks ago several police officers from the Scarsdale Village Police Department, as well as other departments in Westchester, showed up at a regular session of the Village Board. The issue that brought them out, without prior notice, involved their concerns about provisions in the Scarsdale Union contract as related to General Municipal Law 207c, Disability And Health Insurance Coverage For Police Officers Injured In The Line Of Duty. Scarsdale Officer Ron Arefieg, injured while dealing with a serious domestic violence call, and recuperating from surgery, was the central figure in what appeared to be a much broader dispute.
The president of the Scarsdale PBA, Officer Jose Santos, had issued a statement to the press regarding Officer Arefieg which said, “Officer Arefieg elected General Municipal Law 207c coverage while he would be recuperating at home. Forty-seven years ago, Governor Rockefeller enacted this law to recognize the hazardous duties performed by law enforcement. The Human Resources Director, Michael De-Long, has decided to discontinue
the employer-provided health insurance previously provided to our officers. Under our collective bargaining agreement, the Village of Scarsdale is bound to pay the employer portion of our officers’ health insurance.”
The statement went on to declare “Village officials are playing a shell game” and that the Village Administration was, “without the legal authority to offer a choice between Worker’s Compensation and GML 207c.” Officer Arefieg emphasized, at our meeting, that the issue wasn’t about him but rather the broader issue between the union and municipal government agencies.
Having met with Officer Arefieg, PBA President Santos and Union attorney Tom Troett, the Guardian then sat down with Village Manager Al Gatta and Human Resources Director Mike DeLong, jointly, to get their take on the matter.
We asked, “The Scarsdale PBA says that they will not permit Village Government to intimidate its members by agreeing to meet its contractual obligation to provide health insurance only if the injured police officer accepts Worker’s Compensation, and not 207c; is that true?” Mike DeLong responded, “Let me be clear and unambiguous. Once he [Arefieg] requested 207c, we had to investigate to determine it was a 207c. It was incurred on the job.”
Village Manager Al Gatta then joined in, “He has a belief that in two years, five years, he would be discharged. He’s a member of the union, and 207c has caused a lot of grief.”
We asked, “Is it inaccurate to say that the Village is only willing to comply with their contractual agreement to contribute their share to the continuance of injured police of-ficers’ health insurance if the of-ficer is willing to waive 207c with its higher compensation as compared with the $550 per week provided by Worker’s Compensation?”
DeLong then said, “After one year, he could be suspended, but he wouldn’t be. The chief told him so.”
We inquired as to Officer Arefieg’s then-current circumstances, and was told by Manager Gatta that he was receiving his full pay and that the Village was paying his and his family’s medical insurance, and would be continuing to do so.
The Administration’s position was that Officer Arefieg was essentially being used as a representative case by various police unions in their combined desire to protect and strengthen General Municipal Law 207c.
Re-contacted last Thursday, PBA President Santos informed us that, as of January 27th, Police Officer Ron Arefieg had exhausted his medical coverage under the Family Medical Leave Act. He made the following statement: “The Village of Scarsdale has decided to stand alone regarding
207c benefits. The Village is without legal authority to offer Worker’s Compensation. As a result, this mean-spirited decision has instilled a fear in our police officers that they may jeopardize their family health insurance coverage if they sustain a serious injury while in the performance of their duties.”
Santos indicated that the PBA had received more than 500 support cards from Scarsdale families, and that some 529 individuals had signed the PBA’s online petition. Additionally, he stated that at least 25 Village merchants were displaying PBA support signs in their windows.
In Our Opinion...
“We Must Deal With Wrongful Convictions”
We witness, with increasing frequency, and alarm, a very troubling pattern of behavior in the realm of criminal justice broadly referred
to as prosecutorial misconduct. And, while it would seem to come with the territory in New York’s State Courts these days; a system grown putrid
and ripe with corruption at every level, where Supreme Court judgeship are bought and compromised routinely without apology, the real sin lies
in the spread of infection to our federal system.
No democratic society can long endure in the absence of a reliable and fair court system. As William Pitt declared: “Where Law Ends, Tyranny
Begins.” Yet, one cannot deny the growing number of cases in both State and Federal Court that involved prosecutorial misconduct, a direct and
deliberate strategy calculated to advantage prosecutors while intentionally trampling the Constitutional rights of the accused.
One cannot overemphasize the catastrophic damage done mindlessly by jaded, self-righteous, self-serving prosecutors, long ago disinterested in
achieving justice, bent on winning at any cost. Not only do they destroy the lives of actual innocents, and their families, targets of opportunity, but, as significantly, they undermine the confidence of all of society that, in fact, we live under the Rule Of Law, and remedy is available in our courts.
When an innocent individual has fallen prey to the evil of prosecutorial misconduct in state court, and relief is unavailable within that offending
system, such victim must find justice and rescue in the Federal Court. However, what is one to do who is twice violated by a tag-team of malicious,
cruel prosecutors, first state, and then federal? Such has been the intolerable and unjustifiable torture visited upon former Westchester
County Corrections Officer Paul Cote, his loved ones, and the People of Westchester.
Those who know Paul, and who are aware of the politically motivated lie first promulgated by Jeanine Pirro and her high-ranking cronies in the
County Department Of Corrections, then cultivated by former ADA Robert Neary, now a judge three times forced down our throats; and, secondly, exhumed and rescuscitated more than five years later, beyond the Statute of Limitations, by Assistant United States Attorney Cynthia Dunne, are very angry and disillusioned. They have been to court and witnessed the preposterous, intelligence-insulting fabrication that moved the late, great Judge Charles L. Brieant presiding over the misguided trial, to do what few judges have ever had the courage to do, reverse the conviction of a sitting jury, as, “inconsistent with the evidence presented.”
They have written to The Guardian in numbers greater than we have seen on any other subject in more than two and half years of publication. Their letters share a common disillusionment with the Federal Court, with the very notion that prosecutors Cynthia Dunne, and her former boss, Michael Garcia, would lower not only themselves, but the very dignity of the Federal Courts to the political proposition of First Amendment retaliation, and further, publicly boast about it. Those writers ask, “What alternate universe is this?”
We believe it is cases such as Paul Cote’s that exemplify why we need meaningful federal legislation to curtail the prosecutorial misconduct President Obama was talking about when he proclaimed twice, in major speeches during his campaign, “We must deal with wrongful convictions.” Clearly, Judge Brieant shared that very sentiment when he vacated Paul Cote’s.
Our Readers Respond....
Re: Paul Cote
Regarding the recent articles “First Amendment Retaliation…” and “…Correction Officer Remanded To Jail…”, it is beyond my comprehension how any reasonable person who is familiar with all the information concerning the case of Paul Cote, veteran Corrections Officer, can come to any conclusion other than the fact that he was framed for something he did not do.
How ironic it is that by supporting fellow officer Roca’s civil rights grievance against Captain Polewaski for using an ethnic slur, that Cote, himself, would have his own civil rights violated, due to the retaliatory efforts of Capt. Polewaski and others? How ironic is it that by coming to the assistance of fellow officer Reimer, who was being assaulted by inmate Teodorovic, that Cote would be the one accused of violating Teodorovic’s civil rights when he used approved methods of force, and the actual cause of the brain trauma leading to Teodorovic’s death can be attributed to Reimer’s slamming his head on the concrete floor? Further, how ironic is it that because Officer Cote at one time approached his former union leader, Joseph Spano, and engaged him in conversation regarding stalled contract negotiations, that down the road Spano, as Commissioner of the Department of Corrections, would add his own retaliatory efforts to those of Capt. Polewaski, leading to a classic frameup of Cote?
The good and fair, late Judge Charles Brieant saw through this fraud of justice and, after Cote had served his time for 2nd Degree Assault, expressed his belief that Cote was not guilty of any civil rights violation by his Judgment of Acquittal after the jury verdict. But, aided and abetted by Spano, Polewaski, and the government’s chief witness, Reimer himself, the over-zealous former U.S. Attorney Michael Garcia, succeeded through his oral
argument in obtaining a guilty verdict against Cote on appeal. It was not enough for them that this good and decent officer had already lost his job, benefits, pension and career, but they are now trying to extract their final pound of flesh with Judge Karas ordering Cote remanded to jail as he awaits sentencing for his so-called “civil rights violation” against inmate Teodorovic.
Now that Cote has filed his own civil rights lawsuit against Spano, Polewaski, Reimer, and others, one can only hope that the truth will ultimately be recognized and that it will be upheld that if anyone’s civil rights were violated throughout this whole fiasco, it was the civil rights of Paul Cote.
May Judge Karas carefully read all the details involved with the case against Mr. Cote, leading up to this pending sentencing, and may he remember the words of the esteemed Judge Brieant, that Paul Cote’s original conviction was “inconsistent with the evidence presented at trial.” May justice prevail!
Angela Cuccinello, Bronx
Re: Paul Cote
I want to commend you on your articles concerning Paul Cote. I have known Paul all my life and can honestly say he is an upright citizen, always ready to help his fellow man.
For the past nine years he has been wrongfully accused of a crime too hard to believe. Where is the justice in the case? A father of two children, a loving husband and man of character who went to the aid of his partner who had already subdued the inmate by slamming him to the ground which
caused the injury.
If Judge Brieant saw this, why can’t Cynthia Dunne stop persecuting him? His life has been shattered to no avail. How can his partner, namely Reimer, live with himself knowing what damage he did to Paul and his family?
Please keep the articles coming in his defense.
John Brauer, Rye
Re: Paul Cote
After reading your articles in The Westchester Guardian on the case of former County Corrections Officer Paul Cote, I felt compelled to write a few words in response to the article of January 8, 2009.
First of all, thank you so much, Mr. Blassberg, for your excellent summary of the events leading to the unjust conviction of Mr. Cote and his most recent incarceration following the overturning of the late Honorable Judge Brieant’s Judgment of Acquittal. I have followed this case since 2000; have done research on this case quite extensively, and I am absolutely certain the facts you state in your article are accurate and that Paul Cote was framed, and did NOT deliver the injury that resulted in the ultimate death of inmate Teodorovic from brain trauma. I pray that there will be a happy ending to this story; the truth will eventually surface; Mr. Cote will get his life back with his family and his convictions will finally be determined to have been “inconsistent with the evidence presented at trial” as Judge Brieant once stated. True justice will be served. I know Mr. Paul Cote to be an honorable, upright and highly moral man who loves his family and his God.
His character is unblemished. I am an avid reader of your weekly publication and always look forward to your articles for they are thought-provoking, factual, and get to the truth. I have not found this to be the case with other local and metropolitan newspapers. KEEP UP THE GOOD WORK! I support your work.
Frank P. Caparelli
Adjunct Professor of Mathematics
Iona College, New Rochelle
Re: Paul Cote
I was at the White Plains Courthouse hearing on January 6th in which was it was to be determined if Officer Paul Cote would be remanded to jail or not before his sentencing. I, like others in attendance, were taken aback, to say the least, when Judge Karas ruled to keep Mr. Cote “locked up” until May, despite every person in the court room knowing he was absolutely no threat to anyone, and certainly wouldn’t flee.
There were long discussions between Judge Karas and the lawyers for both sides concerning previous rulings about excessive violence, and the application of said precedent(s) to this case. From all appearances, tone of voice, and attitude, it seemed to all that the Honorable Judge Karas was
very much leaning in favor of Office Cote. However, as we now know, the ruling went against him. The Judge actually apologized to Paul before
stating that he was “constrained” by law to remand him to jail until the sentencing in May.
I won’t rehash the series of unjust sentences so blatantly perpetrated in county and federal courts; they have already been detailed in this publication. However, just one case of this type of injustice is too many!
When you consider the anguish, the heartache, and the agonizing pain of seeing someone close to you incarcerated, you realize how deathly important it is for our court system to be free of prejudice, bias and, most of all, free of outside coercion for independent agendas. Look in the eyes
of your loved ones and we need say no more.
In the case of Officer Paul Cote, the inconsistencies, the one-sidedness of testimony and decisions, the almost outright lies, and the determination of certain parties to single him out as a scapegoat for punishment has now become apparent even to the casual observer.
This, combined with Judge Brieant’s ruling of “inconsistent with the evidence”, will hopefully appeal to the logic and humanity of Judge Karas
on May 8th when we hope to hear the best possible verdict which will include words to the effect of “limit your sentence to time served.”
We appeal to all who value justice to right all the wrongs that have led to this point by imploring you to support this cause; this could be the case they look to in the future as the one that began to turn the system in the right direction.
Frank Naccarato, Eastchester