Ex-Con Gets Law License While Political Retaliation Victims Still Suffer

Panel Admits Lawyer Convicted of Crimes in His 'Earlier Life'
The New York Law Journal by Brendan Pierson  -  March 21, 2012

A man who went to law school after he was imprisoned for nearly six years on charges he had dealt prescription drugs and tried to kill his ex-girlfriend in the 1980s has been admitted to practice in New York state courts after being repeatedly rebuffed over the last 17 years.  Justice Peter Tom wrote in a 4-1 opinion for the Appellate Division, First Department on March 20 Justice Peter Tom wrote on March 20 in an 82-page 4-1 opinion that the crimes Neal E. Wiesner committed "in an earlier life" should no longer bar him from practicing in New York. Justices Angela M. Mazzarelli, Sallie Manzanet-Daniels and Nelson S. Román joined the opinion.  Justice David B. Saxe, in an impassioned, 46-page dissent, said that Mr. Wiesner should not have been admitted because he still had not taken full responsibility for his actions.  Mr. Wiesner, now in his late 50s, had already been admitted to practice in federal court in the Eastern, Western, Northern and Southern districts of New York and the Second and Third Circuit Courts of Appeal, in state and federal court in New Jersey and in federal tax court, according to the opinion. However, the First Department had denied him admission nine times because of his past crimes.  Mr. Wiesner, who lives on Staten Island, had a troubled childhood. He became addicted to drugs at age 12, dropped out of high school at 16 and supported himself for a time by giving banjo lessons (NYLJ, May 12, 2006). Between 1980 and 1982, he ran a scheme in which he paid doctors to prescribe Quaaludes to patients on request. The scheme made millions of dollars, allowing Mr. Wiesner to live a lavish lifestyle, though he continued to use drugs heavily.

In 1983, he was arrested for allegedly holding his ex-girlfriend captive in her apartment for hours and attempting to shoot her when she escaped by jumping out of a second-story window, seriously injuring herself.  In Mr. Wiesner's own recollection of the event, which he has repeated from his trial through each of his numerous applications to be admitted in the First Department, his ex-girlfriend stayed with him voluntarily because he was threatening to kill himself, and the shots he fired out the window were not aimed at her. He also has testified that he had taken an entire bottle of an amphetamine-like diet drug that day.  In 1984. Mr. Wiesner was taken into federal custody on narcotics trafficking charges. He was still there when he was convicted in 1985 of attempted murder, burglary and other charges by a Staten Island jury and sentenced to 12 1/2 to 25 years in prison. In 1987, he pleaded guilty to the federal drug charges and was sentenced to time served.  In 1989, Eastern District Judge Raymond Dearie granted a habeas corpus petition filed by Mr. Wiesner on the grounds that he had been denied his constitutional right to represent himself, and instead had been assigned counsel. He was released from prison in January 1990.  In 1991, on the eve of his retrial, he pleaded guilty to second-degree attempted murder, without admitting to any facts in connection with the plea, in exchange for a sentence of two to six years, deemed to have begun in 1984 and to have run concurrently with the federal sentence.  Once freed, Mr. Wiesner quickly obtained a college degree. He then earned a law degree from the City University of New York School of Law and passed the bar in 1994.  He applied for admission in the First Department in 1995, but was denied on the ground that he did not satisfy the good moral character requirement of the Judicial Law.  Despite his admission to practice in several jurisdictions over the following years, the First Department repeatedly rebuffed his motions to renew his application. Mr. Wiesner also lost two federal lawsuits challenging the First Department's refusal.

In August 2009, the First Department panel granted Mr. Wiesner's tenth motion to renew his application to the First Department's Committee on Character and Fitness. In February 2010, the committee recommended that Mr. Wiesner be admitted.  Justice Tom opened his opinion adopting that recommendation by noting that the Judiciary Law did not give a clear-cut definition of good moral character. However, he said, the law did make clear that a past crime did not forever bar an attorney from being admitted.  "Notably, the statute does not contemplate open-ended moral findings of a personal nature," the judge wrote. "Thus, the statute reflects no intent to impose a continuing punishment on an applicant with a criminal past."  Justice Tom said that the passage of time, and Mr. Wiesner's unblemished record as a practicing lawyer in other jurisdictions, contributed to the First Department's change of heart.  "Although our approval in the past was impeded by the brevity of time, a sufficient time period has now passed without incident in petitioner's life—during which he has been a practicing attorney in good standing and has contributed to society—that we are now persuaded that a change in circumstances warrants a different result," he wrote.  Justice Tom also cited the numerous character witnesses who have vouched for Mr. Wiesner's integrity, including John D. Feerick, former dean of Fordham Law School; Joseph L. Forstadt of Stroock & Stroock & Lavan; Albert Richter, former law secretary to former First Department Justice John Carro; Mr. Carro himself; solo attorney Roland R. Acevedo, who has himself been imprisoned twice for attempted robbery and who represented Mr. Wiesner in one of his federal lawsuits; Ariyike Oshunkoya Diggs,, who represented him in his present application for admission; and several others.  "Crediting his witnesses and taking into account his postrelease conduct and achievements, the manner in which he makes himself available to help individuals and his contributions to the betterment of society—matters to which all witnesses have attested—as well as the absence of conduct contrary to the ethics governing the legal profession over an extensive period of time, it is manifest that petitioner has rehabilitated himself to such an extent that he satisfies the character and fitness requirement" of the Judiciary Law, Justice Tom wrote.

Remorse Disputed

In dissent, Justice Saxe, said that in the course of his testimony before the Character and Fitness Committee, Mr. Wiesner had at times expressed "exasperation, even resentment" at being asked to show his remorse.  More importantly, the judge said, Mr. Wiesner had made no attempt to square his version of what happened in 1983 with the testimony of his victim, or with certain undisputed facts. For example, he said, Mr. Wiesner had never offered any explanation of why she jumped out of a window if she had been staying with him voluntarily.  Justice Saxe also referred to a "piece of disturbing information" provided by Mr. Wiesner's victim during cross-examination: that at one point in their relationship, Mr. Wiesner force-fed her drugs and branded her skin.  Although no charges ever arose from that testimony, Justice Saxe said, it could still be "evidence relevant to petitioner's character."  The judge also provided a footnote, citing Wikipedia, in which he said that "the historical practice of human branding to mark slaves, prisoners or convicts has been widely abandoned as inhumane, but remains in current use by some street gangs, college fraternities, and among some sadomasochists."  "It is not that he has no remorse for the crimes he committed; it is that he approached these applications with a sense of entitlement," Justice Saxe wrote. "Having worked very hard to turn his life around, he seems unwilling to accept that establishing his rehabilitation might cause him to experience humiliation or emotional discomfort, by requiring him to clearly acknowledge the totality of his misconduct and to demonstrate—not merely recite—the nature and extent of his remorse."  He continued, "In fact, the requirement I would impose is one to which the majority gives lip service: candor."  Justice Saxe stressed that Mr. Wiesner did not have to admit that he intended to kill his ex-girlfriend when he shot out the window, but said that he at least had to address the apparent contradictions between his testimony and the known facts.  "I have never suggested that petitioner's rehabilitative efforts and accomplishments be ignored; I recognize that petitioner has started down the road to redemption and rehabilitation," Justice Saxe wrote. "But, he simply has not gotten there."  Justice Tom, in a portion of his opinion addressing the dissent, said that Justice Saxe was demanding of Mr. Wiesner "an endless quest in which petitioner will never succeed."  He also said that Justice Saxe's focus on the facts of the 1983 crime and of the testimony of Mr. Wiesner's victim amounted to "trying petitioner all over again."  Justice Tom took particular issue with Justice Saxe's mention of Mr. Wiesner's alleged branding of his ex-girlfriend, saying that it was inappropriate to consider testimony that the court had no basis for evaluating. He also criticized the footnote, saying that "as of yet, Wikipedia is not recognized source material for serious jurisprudential analysis" and saying that the references to slavery and gangs were irrelevant.  "Petitioner was once a successful operator of an illegal enterprise that sold Quaaludes, not a gang thug," Justice Tom wrote. "Nevertheless, in a landscape of petitioner's life that has been viewed time and time again, the dissent now seems determined to forcibly sketch in new details that simply do not fit."  In an interview Mr. Wiesner said, "I'm very happy and gratified....I wasn't optimistic. The court seemed very dug in."  Ms. Diggs said, "It's been a very difficult and very emotional journey for Mr. Wiesner, but it's finally over, and I'm so grateful that these judges got it. Finally, they got it. The right decision was made, and he can move on with his life."  Brendan Pierson can be contacted at bpierson@alm.com.