Forest Hill council discusses associate municipal judge's indictment
The Texas Star-Telegram by Elizabeth Campbell - May. 15, 2012
FOREST HILL, TX -- In closed session Tuesday night, the City Council discussed the indictment against Associate Municipal Judge Mario Perez, who is accused of falsifying campaign contributions to an Arlington school district trustee. Afterward, Mayor Gerald Joubert said the council directed staff to continue the investigation. "We don't know if we can remove the judge just on the basis of the indictment," Joubert said. "Staff will give us a recommendation, and we will make a decision." Before the meeting, City Manager Sheyi Ipaye said, "I don't want this indictment to be a black eye to the city," emphasizing that the council would have the final say on whether Perez keeps the job. Perez's attorney, Greg Westfall, said neither he nor Perez was aware that the council intended to discuss the judge's position. "It's just sad there is no presumption of innocence in Forest Hill," Westfall said. Perez, a partner in the Linebarger Goggan Blair & Sampson tax collection law firm until late last year, was indicted in April on six counts of fraudulent tampering with a government record. He is accused of falsifying entries on a campaign finance report during Arlington school Trustee Aaron Reich's 2009 campaign. The campaign reported a donation of $1,000 and an in-kind contribution of $338.70 from Bassam and Leila Darkazally of Arlington, who at the time were Perez's in-laws. The report also lists an in-kind contribution of $4,216.06 from a Mansfield man. The two in-kind contributions total $4,554.76, which is the exact amount of a payment that the campaign reported making to the consulting firm Murphy Turner & Associates for "production, mailing, voter contact." The indictment says all the filings were false. No charges have been brought against Reich or the Linebarger firm. Reich was re-elected Saturday. Perez was appointed Forest Hill's third municipal judge in April 2011. Municipal Judge Glenn Lewis had asked for a third judge and said it would be helpful to have one who spoke Spanish. Elizabeth Campbell, 817-390-7696 - liz@star-telegram.com
Monday, May 21, 2012
The Global Crime of Misusing Authority
Famous Spain judge convicted of misusing authority
The Associated Press - February 9, 2012
MADRID, SPAIN – The superstar Spanish judge who won global fame for aggressively taking on international human rights cases has been convicted of overstepping his jurisdiction in a domestic corruption probe and barred from the bench for 11 years, marking a spectacular fall from grace for one of the nation's most prominent citizens. Baltasar Garzon was unanimously convicted Thursday by a seven-judge panel of the Supreme Court. Because he is 56, the punishment could end his Spanish judicial career. Hours after the verdict, hundreds of Garzon supporters braved freezing weather in Madrid's central Sol plaza shouting "Shame! Shame!" in protest. It was just one of three cases pending against Garzon, who is still awaiting a verdict in trial on the same charge — knowingly overstepping the bounds of his jurisdiction — for launching a probe in 2008 of right-wing atrocities committed during and after the Spanish civil war of 1936-1939 even though the crimes were covered by a 1977 amnesty. In Thursday's verdict, the court ruled that Garzon acted arbitrarily in ordering jailhouse wiretaps of detainees talking to their lawyers, the court said, adding that his actions "these days are only found in totalitarian regimes."
Ironically, Garzon is best known for indicting a totalitarian ruler, former Chilean dictator Augusto Pinochet, in 1998, and trying to put him on trial in Madrid for crimes against humanity. He also indicted Osama bin Laden in 2003 over the Sept. 11, 2001 terror attacks. The verdict came despite declarations by Spanish prosecutors that Garzon committed no crime. The charges against him stem from a complaint filed by lawyers who were taped in prison while visiting their clients. In a quirk of Spanish law, people can seek criminal charges even if prosecutors disagree. Garzon took on cases using the principle of universal jurisdiction — the idea that some crimes are so heinous they can be prosecuted anywhere. He and colleagues at the National Court went on to champion the doctrine and try to apply it to abuses in far-flung places like Rwanda and Tibet. Legal experts have said Spain's Constitutional Court, the country's highest court, probably won't accept an appeal of the judge's conviction, although Garzon's lawyer could try, or file an appeal with the European Court of Human Rights in Strasbourg, France, that would likely take years.
The lawyer, Francisco Javier Baena Bocanegra told the Cadena Ser radio network that Garzon was "suffering severely," but suggested he will appeal. "He is completely innocent," Bocanegra said. "We face a long road ahead, but we still have strength." Garzon also said he was evaluating his appeal options without offering specifics, and vehemently denied breaking any laws. "I have worked against terrorism, drug trafficking, crimes against humanity and corruption. I've done it with the law in hand, together with prosecutors, judges and police," he said in a statement. "I have always strictly complied with the rules, I have defended the rights of defendants and victims in very adverse situations." Human rights groups that hold up Garzon as a hero slammed the decision, saying he was targeted by critics who wanted to bring him down. "It looks like Garzon's enemies got what they wanted. Absent compelling reasons, the criminal prosecution of a judge for his judicial actions undermines the independence of the judiciary," said Reed Brody, a senior legal expert for Human Rights Watch. Although Garzon enjoyed rock-star status among rights groups at home and abroad, he made many enemies in Spain, especially judicial colleagues uncomfortable with his celebrity and allegedly corner-cutting tactics in legal procedures, and conservative politicians who claimed he was more interested in fame than justice. In the civil war case, the amnesty law came two years after the death of dictator Gen. Francisco Franco, the victor in the war, as Spain moved to restore democracy and rebuild after nearly 40 years of rule under Franco. The civil war trial concluded on Wednesday, but that verdict is not expected for weeks. Garzon has been suspended from his job at the National Court since 2010 when he was indicted in that case. Garzon faces more legal woes in Spain from a probe that could see him indicted over ties with a big Spanish bank that financed human rights seminars he oversaw while on sabbatical in New York in 2005 and 2006. Thursday's conviction relates to Garzon's decision in 2009 to order wiretaps of jailhouse conversations between lawyers and detainees accused of paying off politicians of the now-ruling conservative Popular Party to obtain lucrative government contracts in the Madrid and Valencia regions. Such wiretaps are permitted for terrorism cases, but Spanish law is more vague on non-terror cases. Garzon argued that he ordered the wiretaps because of suspicions the lawyers were being given instructions by the detainees to launder money. But the Supreme Court said Thursday that Garzon had no legitimate reason to suspect the lawyers, ruling that the wiretaps were not justified and violated the detainees' right to a fair defense. The judges wrote that Garzon engaged in "practices that these days are only found in totalitarian regimes in which anything is considered fair game in order to obtain information that interests, or supposedly interests, the state." In the civil war case, prosecutors also say Garzon committed no crime. Those charges stem from a complaint filed by two small right-wing groups. After Garzon was indicted and suspended in 2010, he took a six-month job in The Hague at the International Criminal Court as an adviser to its chief prosecutor. After that, he accepted a position as a human rights adviser to the government of Colombia, which is fighting leftist rebels and powerful drug lords. So even if Garzon's career ends in Spain, he could presumably accept a similar position. Protesters said Garzon's conviction was a major setback for Spanish democracy. "Spanish justice is shameful," said Diego Torrel, a 53-year-old railway construction worker. "It seems like we still have the same judges we had during the Franco era."
The Associated Press - February 9, 2012
MADRID, SPAIN – The superstar Spanish judge who won global fame for aggressively taking on international human rights cases has been convicted of overstepping his jurisdiction in a domestic corruption probe and barred from the bench for 11 years, marking a spectacular fall from grace for one of the nation's most prominent citizens. Baltasar Garzon was unanimously convicted Thursday by a seven-judge panel of the Supreme Court. Because he is 56, the punishment could end his Spanish judicial career. Hours after the verdict, hundreds of Garzon supporters braved freezing weather in Madrid's central Sol plaza shouting "Shame! Shame!" in protest. It was just one of three cases pending against Garzon, who is still awaiting a verdict in trial on the same charge — knowingly overstepping the bounds of his jurisdiction — for launching a probe in 2008 of right-wing atrocities committed during and after the Spanish civil war of 1936-1939 even though the crimes were covered by a 1977 amnesty. In Thursday's verdict, the court ruled that Garzon acted arbitrarily in ordering jailhouse wiretaps of detainees talking to their lawyers, the court said, adding that his actions "these days are only found in totalitarian regimes."
Ironically, Garzon is best known for indicting a totalitarian ruler, former Chilean dictator Augusto Pinochet, in 1998, and trying to put him on trial in Madrid for crimes against humanity. He also indicted Osama bin Laden in 2003 over the Sept. 11, 2001 terror attacks. The verdict came despite declarations by Spanish prosecutors that Garzon committed no crime. The charges against him stem from a complaint filed by lawyers who were taped in prison while visiting their clients. In a quirk of Spanish law, people can seek criminal charges even if prosecutors disagree. Garzon took on cases using the principle of universal jurisdiction — the idea that some crimes are so heinous they can be prosecuted anywhere. He and colleagues at the National Court went on to champion the doctrine and try to apply it to abuses in far-flung places like Rwanda and Tibet. Legal experts have said Spain's Constitutional Court, the country's highest court, probably won't accept an appeal of the judge's conviction, although Garzon's lawyer could try, or file an appeal with the European Court of Human Rights in Strasbourg, France, that would likely take years.
The lawyer, Francisco Javier Baena Bocanegra told the Cadena Ser radio network that Garzon was "suffering severely," but suggested he will appeal. "He is completely innocent," Bocanegra said. "We face a long road ahead, but we still have strength." Garzon also said he was evaluating his appeal options without offering specifics, and vehemently denied breaking any laws. "I have worked against terrorism, drug trafficking, crimes against humanity and corruption. I've done it with the law in hand, together with prosecutors, judges and police," he said in a statement. "I have always strictly complied with the rules, I have defended the rights of defendants and victims in very adverse situations." Human rights groups that hold up Garzon as a hero slammed the decision, saying he was targeted by critics who wanted to bring him down. "It looks like Garzon's enemies got what they wanted. Absent compelling reasons, the criminal prosecution of a judge for his judicial actions undermines the independence of the judiciary," said Reed Brody, a senior legal expert for Human Rights Watch. Although Garzon enjoyed rock-star status among rights groups at home and abroad, he made many enemies in Spain, especially judicial colleagues uncomfortable with his celebrity and allegedly corner-cutting tactics in legal procedures, and conservative politicians who claimed he was more interested in fame than justice. In the civil war case, the amnesty law came two years after the death of dictator Gen. Francisco Franco, the victor in the war, as Spain moved to restore democracy and rebuild after nearly 40 years of rule under Franco. The civil war trial concluded on Wednesday, but that verdict is not expected for weeks. Garzon has been suspended from his job at the National Court since 2010 when he was indicted in that case. Garzon faces more legal woes in Spain from a probe that could see him indicted over ties with a big Spanish bank that financed human rights seminars he oversaw while on sabbatical in New York in 2005 and 2006. Thursday's conviction relates to Garzon's decision in 2009 to order wiretaps of jailhouse conversations between lawyers and detainees accused of paying off politicians of the now-ruling conservative Popular Party to obtain lucrative government contracts in the Madrid and Valencia regions. Such wiretaps are permitted for terrorism cases, but Spanish law is more vague on non-terror cases. Garzon argued that he ordered the wiretaps because of suspicions the lawyers were being given instructions by the detainees to launder money. But the Supreme Court said Thursday that Garzon had no legitimate reason to suspect the lawyers, ruling that the wiretaps were not justified and violated the detainees' right to a fair defense. The judges wrote that Garzon engaged in "practices that these days are only found in totalitarian regimes in which anything is considered fair game in order to obtain information that interests, or supposedly interests, the state." In the civil war case, prosecutors also say Garzon committed no crime. Those charges stem from a complaint filed by two small right-wing groups. After Garzon was indicted and suspended in 2010, he took a six-month job in The Hague at the International Criminal Court as an adviser to its chief prosecutor. After that, he accepted a position as a human rights adviser to the government of Colombia, which is fighting leftist rebels and powerful drug lords. So even if Garzon's career ends in Spain, he could presumably accept a similar position. Protesters said Garzon's conviction was a major setback for Spanish democracy. "Spanish justice is shameful," said Diego Torrel, a 53-year-old railway construction worker. "It seems like we still have the same judges we had during the Franco era."
Sunday, May 20, 2012
Nationwide Courts Fuel For-Profit Justice
Louisiana is the World's Prison Capital
The Times-Picayune by Cindy Chang - May 13, 2012
The hidden engine behind the state's well-oiled prison machine is cold, hard cash. A majority of Louisiana inmates are housed in for-profit facilities, which must be supplied with a constant influx of human beings or a $182 million industry will go bankrupt. Several homegrown private prison companies command a slice of the market. But in a uniquely Louisiana twist, most prison entrepreneurs are rural sheriffs, who hold tremendous sway in remote parishes like Madison, Avoyelles, East Carroll and Concordia. A good portion of Louisiana law enforcement is financed with dollars legally skimmed off the top of prison operations. If the inmate count dips, sheriffs bleed money. Their constituents lose jobs. The prison lobby ensures this does not happen by thwarting nearly every reform that could result in fewer people behind bars.
How Louisiana became the prison capital of the world (view full size graphic)
Louisiana's prison population since 1977 (view full size graphic)
View full size
World and state incarceration rates (full full size graphic)
Louisiana is the world's prison capital. The state imprisons more of its people, per head, than any of its U.S. counterparts. First among Americans means first in the world. Louisiana's incarceration rate is nearly triple Iran's, seven times China's and 10 times Germany's.
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Meanwhile, inmates subsist in bare-bones conditions with few programs to give them a better shot at becoming productive citizens. Each inmate is worth $24.39 a day in state money, and sheriffs trade them like horses, unloading a few extras on a colleague who has openings. A prison system that leased its convicts as plantation labor in the 1800s has come full circle and is again a nexus for profit. In the past two decades, Louisiana's prison population has doubled, costing taxpayers billions while New Orleans continues to lead the nation in homicides. One in 86 adult Louisianians is doing time, nearly double the national average. Among black men from New Orleans, one in 14 is behind bars; one in seven is either in prison, on parole or on probation. Crime rates in Louisiana are relatively high, but that does not begin to explain the state's No. 1 ranking, year after year, in the percentage of residents it locks up. In Louisiana, a two-time car burglar can get 24 years without parole. A trio of drug convictions can be enough to land you at the Louisiana State Penitentiary at Angola for the rest of your life. Almost every state lets judges decide when to mete out the severest punishment and when a sympathetic defendant should have a chance at freedom down the road. In Louisiana, murderers automatically receive life without parole on the guilty votes of as few as 10 of 12 jurors. The lobbying muscle of the sheriffs, buttressed by a tough-on-crime electorate, keeps these harsh sentencing schemes firmly in place. "Something has to be done -- it just has to be done -- about the long sentences," said Angola Warden Burl Cain. "Some people you can let out of here that won't hurt you and can be productive citizens, and we know the ones who can't." Every dollar spent on prisons is a dollar not spent on schools, hospitals and highways. Other states are strategically reducing their prison populations -- using tactics known in policy circles as "smart on crime." Compared with the national average, Louisiana has a much lower percentage of people incarcerated for violent offenses and a much higher percentage behind bars for drug offenses -- perhaps a signal that some nonviolent criminals could be dealt with differently.
Do all of Louisiana's 40,000 inmates need to be incarcerated for the interests of punishment and public safety to be served? Gov. Bobby Jindal, a conservative Republican with presidential ambitions, says the answer is no. Despite locking up more people for longer periods than any other state, Louisiana has one of the highest rates of both violent and property crimes. Yet the state shows no signs of weaning itself off its prison dependence. "You have people who are so invested in maintaining the present system -- not just the sheriffs, but judges, prosecutors, other people who have links to it," said Burk Foster, a former professor at the University of Louisiana-Lafayette and an expert on Louisiana prisons. "They don't want to see the prison system get smaller or the number of people in custody reduced, even though the crime rate is down, because the good old boys are all linked together in the punishment network, which is good for them financially and politically."
Keeping the beds full
In the early 1990s, when the incarceration rate was half what it is now, Louisiana was at a crossroads. Under a federal court order to reduce overcrowding, the state had two choices: Lock up fewer people or build more prisons. It achieved the latter, not with new state prisons -- there was no money for that -- but by encouraging sheriffs to foot the construction bills in return for future profits. The financial incentives were so sweet, and the corrections jobs so sought after, that new prisons sprouted up all over rural Louisiana. The national prison population was expanding at a rapid clip. Louisiana's grew even faster. There was no need to rein in the growth by keeping sentencing laws in line with those of other states or by putting minor offenders in alternative programs. The new sheriffs' beds were ready and waiting. Overcrowding became a thing of the past, even as the inmate population multiplied rapidly. "If the sheriffs hadn't built those extra spaces, we'd either have to go to the Legislature and say, 'Give us more money,' or we'd have to reduce the sentences, make it easier to get parole and commutation -- and get rid of people who shouldn't be here," said Richard Crane, former general counsel for the Louisiana Department of Corrections.
Today, wardens make daily rounds of calls to other sheriffs' prisons in search of convicts to fill their beds. Urban areas such as New Orleans and Baton Rouge have an excess of sentenced criminals, while prisons in remote parishes must import inmates to survive. The more empty beds, the more an operation sinks into the red. With maximum occupancy and a thrifty touch with expenses, a sheriff can divert the profits to his law enforcement arm, outfitting his deputies with new squad cars, guns and laptops. Inmates spend months or years in 80-man dormitories with nothing to do and few educational opportunities before being released into society with $10 and a bus ticket. Fred Schoonover, deputy warden of the 522-bed Tensas Parish Detention Center in northeast Louisiana, says he does not view inmates as a "commodity." But he acknowledges that the prison's business model is built on head counts. Like other wardens in this part of the state, he wheels and deals to maintain his tally of human beings. His boss, Tensas Parish Sheriff Rickey Jones, relies on him to keep the numbers up. "We struggle. I stay on the phone a lot, calling all over the state, trying to hustle a few," Schoonover said. Some sheriffs, and even a few small towns, lease their prison rights to private companies. LaSalle Corrections, based in Ruston, plays a role in housing one of seven Louisiana prisoners. LCS Corrections Services, another homegrown company, runs three Louisiana prisons and is a major donor to political campaigns, including those of urban sheriffs who supply rural prisons with inmates.Incarceration on the cheap
Ask anyone who has done time in Louisiana whether he or she would rather be in a state-run prison or a local sheriff-run prison. The answer is invariably state prison.
How Louisiana became the prison capital of the world (view full size graphic)Inmates in local prisons are typically serving sentences of 10 years or less on nonviolent charges such as drug possession, burglary or writing bad checks. State prisons are reserved for the worst of the worst. Yet it is the murderers, rapists and other long-termers who learn trades like welding, auto mechanics, air-conditioning repair and plumbing. Angola's Bible college offers the only chance for Louisiana inmates to earn an undergraduate degree. Such opportunities are not available to the 53 percent serving their time in local prisons. In a cruel irony, those who could benefit most are unable to better themselves, while men who will die in prison proudly show off fistfuls of educational certificates. Louisiana specializes in incarceration on the cheap, allocating by far the least money per inmate of any state. The $24.39 per diem is several times lower than what Angola and other state-run prisons spend -- even before the sheriff takes his share. All local wardens can offer is GED classes and perhaps an inmate-led support group such as Alcoholics Anonymous. Their facilities are cramped and airless compared with the spacious grounds of state prisons, where inmates walk along outdoor breezeways and stay busy with jobs or classes. With a criminal record, finding work is tough. In five years, about half of the state's ex-convicts end up behind bars again. Gregory Barber has seen the contrast between state and local prisons firsthand. He began a four-year sentence for burglary at the state-run Phelps Correctional Center -- a stroke of luck for someone with a relatively short sentence on a nonviolent charge who might easily have ended up in a sheriff's custody.
Louisiana's prison population since 1977 (view full size graphic)With only six months to go, the New Orleans native was transferred to Richwood Correctional Center, a LaSalle-run prison near Monroe. He had hoped to end his time in a work-release program to up his chances of getting a good job. But the 11th-hour transfer rendered him ineligible. At Phelps, he took a welding class. Now, he whiles away the hours lying in his bunk for lack of anything better to do. The only relief from the monotony is an occasional substance-abuse rehab meeting. "In DOC camps, you'd go to the yard every day, go to work," said Barber, 50, of state-run prisons. "Here, you just lay down, or go to meetings. It makes time pass a little slower."
Downward spiral
View full sizeWhile Louisiana tops the prison rankings, it consistently vies with Mississippi -- the state with the second-highest incarceration rate -- for the worst schools, the most poverty, the highest infant mortality. One in three Louisiana prisoners reads below a fifth-grade level. The vast majority did not complete high school. The easy fix of selling drugs or stealing is all too tempting when the alternative is a low-wage, dead-end job. More money spent on locking up an ever-growing number of prisoners means less money for the very institutions that could help young people stay out of trouble, giving rise to a vicious cycle. Louisiana spends about $663 million a year to feed, house, secure and provide medical care to 40,000 inmates. Nearly a third of that money -- $182 million -- goes to for-profit prisons, whether run by sheriffs or private companies. "Clearly, the more that Louisiana invests in large-scale incarceration, the less money is available for everything from preschools to community policing that could help to reduce the prison population," said Marc Mauer, executive director of The Sentencing Project, a national criminal justice reform group. "You almost institutionalize the high rate of incarceration, and it's even harder to get out of that situation." Louisiana's prison epidemic disproportionately affects neighborhoods already devastated by crime and poverty. In some parts of New Orleans, a stint behind bars is a rite of passage for young men. About 5,000 black men from New Orleans are doing state prison time, compared with 400 white men from the city. Because police concentrate resources on high-crime areas, minor lawbreakers there are more likely to be stopped and frisked or caught up in a drug sweep than, say, an Uptown college student with a sideline marijuana business. With so many people lost to either prison or violence, fraying neighborhoods enter a downward spiral. As the incarceration rate climbs, more children grow up with fathers, brothers, grandfathers and uncles in prison, putting them at increased risk of repeating the cycle themselves.
'Don't feel no pity'
Angola is home to scores of old men who cannot get out of bed, let alone commit a crime. Someone who made a terrible mistake in his youth and has transformed himself after decades in prison has little to no chance at freedom.
World and state incarceration rates (full full size graphic)Louisiana has a higher percentage of inmates serving life without parole than any other state. Its justice system is unstintingly tough on petty offenders as well as violent criminals. In more than four years in office, Jindal has only pardoned one inmate. "Louisiana don't feel no pity. I feel like everybody deserves a second chance," said Preston Russell, a Lower 9th Ward native who received life without parole for a string of burglaries and a crack charge. "I feel like dudes get all this education ... under their belt and been here 20, 30 years. You don't think that's enough time to let a man back out and give him another chance at life?" An inmate at Angola costs the state an average of $23,000 a year. A young lifer will rack up more than $1 million in taxpayer-funded expenses if he reaches the Louisiana male life expectancy of 72. Russell, 49, is in good health. But as he gets older, treating his age-related ailments will be expensive. The state spends about $24 million a year caring for between 300 and 400 infirm inmates. Now in his 13th year at Angola, Russell breaks into tears recounting how he rebelled against the grandmother who raised him, leaving home as soon as he could. First he smoked weed, weed became crack, then he was selling drugs and burglarizing stores in between jobs in construction or shipping. The last time he stole, Orleans Parish prosecutors tagged him as a multiple offender and sought the maximum -- the same sentence given to murderers. In the final crime that put him away for life, he broke into Fat Harry's and stole $4,000 from the Uptown bar's video poker machines.
Political will
Tough fiscal times have spurred many states to reduce their prison populations. In lock-'em-up Texas, new legislation is steering low-level criminals into drug treatment and other alternatives to prison. In Louisiana, even baby steps are met with resistance. Jindal, who rose to the governor's office with the backing of the sheriffs' lobby, says too many people are behind bars. Yet earlier this year, he watered down a reform package hammered out by the Sentencing Commission he himself had convened. The commission includes sheriffs and district attorneys, so its proposals were modest to begin with. Measures like those in Texas, which target a subset of nonviolent offenders, are frequently lauded but may not be enough. To make a significant dent in the prisoner numbers, sentences for violent crimes must be reduced and more money must be invested in inner-city communities, according to David Cole, a professor at Georgetown Law School. Such large-scale change -- which has not been attempted in any state, let alone Louisiana -- can only happen through political will. In Louisiana, that will appears to be practically nonexistent. Locking up as many people as possible for as long as possible has enriched a few while making everyone else poorer. Public safety comes second to profits. "You cannot build your way out of it. Very simply, you cannot build your way out of crime," said Secretary of Corrections Jimmy LeBlanc, who supports reducing the incarceration rate and putting more resources into inmate rehabilitation. "It just doesn't work that way. You can't afford it. Nobody can afford that." Cindy Chang can be reached at cchang@timespicayune.com or 504.826.3386.
Federal Judge Serves Justice to Justice Advocate
Reflections on Jury Nullification and a Dismissed Indictment
The New York Law Journal by Paul Shechtman - May 17, 2012
On April 19, 2012, U.S. District Judge Kimba Wood dismissed the indictment against Julian Heicklen for distributing pamphlets that advocated jury nullification. It was a wise decision that deserves more attention than it has received. Julian Heicklen, an 80-year-old retired chemistry professor, advocates for the right of jurors to follow their conscience and not the law. On at least eight occasions between October 2009 and May 2010, he stood outside the entrance to the federal courthouse at 500 Pearl Street, holding a sign reading "Jury Info" and distributing pamphlets from the Fully Informed Jury Association. The pamphlets tell jurors that "the judge will instruct the jury that it must uphold the law as he gives it [but] he will be lying." A juror, the pamphlets state, must "judge the law as well as the facts"—"it is the jury's duty to see that justice is done." And the pamphlets encourage jurors who believe in the "right to nullify" to be less than candid when asked if they "will follow the law as given." In the words of the pamphlet: "It's up to you to decide how to answer this question especially if you have moral qualms about the consequences of telling the truth. A truthful answer, the pamphlet notes, could "cost you your chance to serve and therefore enable the legal professionals to stack the jury with people who don't know their rights." Convinced that Heicklen was a threat to the fair administration of the law, the government sent in a female undercover officer posing as a juror ("I'm a juror, I got picked yesterday") to speak with Heicklen, and Heicklen gave the undercover a pamphlet and a history lesson:
Heicklen: The jury has the right to judge the law as well as the facts. The judge will tell you otherwise, but there are several Supreme Court decisions which said that was true. In other words, if you think the law is unjust you can find a person innocent. In fact, that's how we got freedom of religion. William Penn was the first guy, he was a Quaker in England and he used to practice his religion openly and that was a crime in England…he was tried, the jurors found him…not guilty, then the judge locked the jurors up for three weeks 'til a higher court let them go…. In this country, the first case was a guy named John Peter Zenger, who published a newspaper and he criticized the Governor of New York. It was a crime to criticize any of the King's appointees and he was tried and the jury acquitted him and that's how we got freedom of the press. So you serve a very important function. I'm not telling you to find anybody not guilty, there should be a reason for it. But, if there is a law you think is wrong then you should do that. And you will be in very good company…. [I]t only takes one juror to disagree to hang the jury. If you are one, you are Queen. You are a Queen for this trial. For his pamphleteering, Heicklen was indicted for violating 18 U.S.C. §1504, which makes it a crime to "attempt[] to influence the action or decision of any…juror…upon any issue or matter pending before such juror…by writing or sending him any written communication, in relation to such issue or matter." The crime is a misdemeanor. Heicklen, no doubt, was surprised to learn of his indictment, but even more astonished to be told that because the maximum penalty for the crime is six months' imprisonment, it was the government's position (almost certainly a correct one) that he did not have a right to a jury trial in his case.1 Shortly after his indictment, Heicklen, acting pro se, sent a letter to "Dishonorable Judge Wood," to whom the case was assigned, telling her that "everything that [he had] said was true" and that "[t]he problem is that the judges and federal attorneys are ignorant of the law." The behavior of the U.S. Attorney's Office, Heicklen wrote, was "extremely despicable"; the "U.S. Attorney should be prosecuted"; and judges were "destroying the country by denying jury trials." The letter, which ended "Yours in Disgust," was copied to President Barack Obama, Attorney General Eric Holder, Chief Justice John Roberts, Ben Weiser of The New York Times, and numerous others.
Where It Began
Was everything Heicklen said true? The standard history has it that during our first century as a nation, jurors were regularly instructed along the lines that "juries are the best judges of the facts [and] the courts are the best judges of the law [but] you have nevertheless a right to take upon yourself to judge of both, and to determine the law as well as the facts in controversy." (The language is from Chief Justice John Jay's charge in Georgia v. Brailsford.)2 Indeed, when Justice Samuel Chase was impeached in 1806, one of the charges against him was that, as a circuit justice, he had endeavored "to wrest from the jury their indisputable right to hear argument, and determine upon the question of the law, as well as on the question of fact, involved in the verdict they are required to give."3 According to the standard account, that changed in 1895 with the decision in Sparf and Hansen v. United States.4 In the course of deciding whether a lesser offense instruction should have been given, the Supreme Court reviewed the authority for and against the jury's right to "take upon themselves the determination of both law and fact" and came down solidly against a right to nullify. Sparf was widely followed, and soon juries were regularly being instructed that they must take the law from the court.5 As Nancy King, professor at Vanderbilt Law School, has shown, however, the historical record is not quite so neat.6 King reports (i) that as early as 1820, Quakers opposed to capital punishment were excused for cause from federal death penalty cases; (ii) jurors were excused for cause from trials of persons accused of resisting the Fugitive Slave Law if they had "formed an opinion that the law [was] unconstitutional"; and (iii) jurors who believed that bigamy should not be criminalized were excused for cause when the federal government launched its crusade against bigamy in Utah in the late 19th century. In 1862, Congress enacted legislation excluding from jury service in bigamy trials anyone who "believes it right for a man to have more than one living and undivorced wife at the same time." A belief in a broad right to nullify is hard to square with such exclusions. Perhaps most importantly, if Heicklen believed that nullification was lawful, he picked the wrong courthouse for that message. In 1997, in United States v. Thomas, the Second Circuit "categorically rejected the idea that in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is in their authority to prevent."7 As the court noted, the jury that acquitted Peter Zenger may have reached a result we now consider just, but "more recent history presents numerous and notorious examples of juror nullifying-cases that reveal the destructive potential of a practice [that] has rightly [been] termed a 'sabotage of justice.'" One has only to recall the 1955 trial of the two white men who brutally murdered 14-year-old Emmitt Till for supposedly flirting with a white woman to appreciate that jury nullification is not always about returning a conscientious verdict in the face of a "bad" law. Despite clear evidence of guilt, the jury acquitted the two men in one hour and seven minutes, taking "additional time" because the sheriff-elect had sent word "to wait a while, to make it 'look good.'"8 So if the jury does not have a right to nullify (and if Heicklen was handing out literature that encouraged jurors to dissemble so that they could exercise a right that was not theirs), why did Judge Wood dismiss the indictment? As she read it, Section 1504 did not reach Heicklen's conduct. Focusing on the words "upon any issue or matter" and interpreting the statute to avoid constitutional difficulties, Judge Wood concluded that it applied only if the defendant "sought to influence a juror through a written communication in relation to a specific case before that juror or to a substantive point in dispute between [the] parties before that juror." Because Heicklen had "no inkling of [the] type of case [that] was before the 'juror' who approached him [i.e., the undercover officer] and no intent to affect the outcome of a specific case," his conduct was outside the statute's reach.
Where Reason Wins
Was Judge Wood correct? One could argue that Heicklen was trying to influence a juror in relation to an issue or matter pending before the juror—he was, after all, urging her to vote her conscience, not follow the law, whatever the issue in the case might be. But the decision seems a sound one. Heicklen's pamphlets did not pose an imminent threat to the administration of justice, and it is hard to believe that Congress had him in mind when it enacted the statute. Moreover, as Judge Wood observed in a footnote, there is little reason to believe that jurors will not follow an instruction to ignore the retired chemist outside and accept the law from the court. (The government is usually the first to argue that jurors are presumed to follow instructions.) Notably, in 2010, the government won convictions in 75 percent of its tried cases (64 of 75), and six of the 11 acquittals came in bench trials, suggesting that Heicklen is finding few sympathetic ears.9 After the decision, Heicklen took the lawyers who were appointed to assist him (whom he tried to fire several times) to lunch and announced that he would return to 500 Pearl Street to continue his campaign.10 He sent this e-mail to his "tyranny-fighting" friends: "One small step for a shabby old man, but a giant leap for justice and our country." That is hyperbole. But one does not have to believe in jury nullification or have much regard for Julian Heicklen to believe that Honorable Judge Wood got it right. Paul Shechtman is a partner at Zuckerman Spaeder and an adjunct professor at Columbia Law School.
Endnotes:
1. Heicklen argued that even though he had no right to a jury trial, the court could grant him one in its discretion. But see Fed. R. Crim. Pro. 58 ("the magistrate judge must inform the defendant of…the right to a jury trial…unless the charge is a petty offense" [i.e., a misdemeanor punishable by six months' imprisonment or less].
2. See Alschuler and Deiss, "A Brief History of Criminal Jury in the United States," 61 U. Chi. L. Rev. 867, 907 (1994).
3. Id. at 908.
4. 156 U.S. 51 (1895).
5. See, e.g., People v. Goetz, 73 N.Y.2d 751 (1988) (proper to instruct jury it "must" find defendant guilty if People have met their burden of proof).
6. King, "Silencing Nullification Advocacy Inside the Jury Room and Outside the Courtroom," 65 U. Chi. L. Rev. 433 (1998).
7. United States v. Thomas, 116 F.3d 606 (2d Cir. 1997).
8. Whitfield, "A Death in the Delta" at 42.
9. Administrative Office of the United States Courts. 2010 Annual Report of the Director: Judicial Business of the United States Court. Washington, D.C.: 2011, Table D-7.
10. Posting of Scott H. Greenfield to http://blog.simplejustice.us/2012/04/20/heicklen-wins-jury-nullification-charge-dismissed.aspx (April 20, 2012, 6:35 EST).
The New York Law Journal by Paul Shechtman - May 17, 2012
On April 19, 2012, U.S. District Judge Kimba Wood dismissed the indictment against Julian Heicklen for distributing pamphlets that advocated jury nullification. It was a wise decision that deserves more attention than it has received. Julian Heicklen, an 80-year-old retired chemistry professor, advocates for the right of jurors to follow their conscience and not the law. On at least eight occasions between October 2009 and May 2010, he stood outside the entrance to the federal courthouse at 500 Pearl Street, holding a sign reading "Jury Info" and distributing pamphlets from the Fully Informed Jury Association. The pamphlets tell jurors that "the judge will instruct the jury that it must uphold the law as he gives it [but] he will be lying." A juror, the pamphlets state, must "judge the law as well as the facts"—"it is the jury's duty to see that justice is done." And the pamphlets encourage jurors who believe in the "right to nullify" to be less than candid when asked if they "will follow the law as given." In the words of the pamphlet: "It's up to you to decide how to answer this question especially if you have moral qualms about the consequences of telling the truth. A truthful answer, the pamphlet notes, could "cost you your chance to serve and therefore enable the legal professionals to stack the jury with people who don't know their rights." Convinced that Heicklen was a threat to the fair administration of the law, the government sent in a female undercover officer posing as a juror ("I'm a juror, I got picked yesterday") to speak with Heicklen, and Heicklen gave the undercover a pamphlet and a history lesson:
Heicklen: The jury has the right to judge the law as well as the facts. The judge will tell you otherwise, but there are several Supreme Court decisions which said that was true. In other words, if you think the law is unjust you can find a person innocent. In fact, that's how we got freedom of religion. William Penn was the first guy, he was a Quaker in England and he used to practice his religion openly and that was a crime in England…he was tried, the jurors found him…not guilty, then the judge locked the jurors up for three weeks 'til a higher court let them go…. In this country, the first case was a guy named John Peter Zenger, who published a newspaper and he criticized the Governor of New York. It was a crime to criticize any of the King's appointees and he was tried and the jury acquitted him and that's how we got freedom of the press. So you serve a very important function. I'm not telling you to find anybody not guilty, there should be a reason for it. But, if there is a law you think is wrong then you should do that. And you will be in very good company…. [I]t only takes one juror to disagree to hang the jury. If you are one, you are Queen. You are a Queen for this trial. For his pamphleteering, Heicklen was indicted for violating 18 U.S.C. §1504, which makes it a crime to "attempt[] to influence the action or decision of any…juror…upon any issue or matter pending before such juror…by writing or sending him any written communication, in relation to such issue or matter." The crime is a misdemeanor. Heicklen, no doubt, was surprised to learn of his indictment, but even more astonished to be told that because the maximum penalty for the crime is six months' imprisonment, it was the government's position (almost certainly a correct one) that he did not have a right to a jury trial in his case.1 Shortly after his indictment, Heicklen, acting pro se, sent a letter to "Dishonorable Judge Wood," to whom the case was assigned, telling her that "everything that [he had] said was true" and that "[t]he problem is that the judges and federal attorneys are ignorant of the law." The behavior of the U.S. Attorney's Office, Heicklen wrote, was "extremely despicable"; the "U.S. Attorney should be prosecuted"; and judges were "destroying the country by denying jury trials." The letter, which ended "Yours in Disgust," was copied to President Barack Obama, Attorney General Eric Holder, Chief Justice John Roberts, Ben Weiser of The New York Times, and numerous others.
Where It Began
Was everything Heicklen said true? The standard history has it that during our first century as a nation, jurors were regularly instructed along the lines that "juries are the best judges of the facts [and] the courts are the best judges of the law [but] you have nevertheless a right to take upon yourself to judge of both, and to determine the law as well as the facts in controversy." (The language is from Chief Justice John Jay's charge in Georgia v. Brailsford.)2 Indeed, when Justice Samuel Chase was impeached in 1806, one of the charges against him was that, as a circuit justice, he had endeavored "to wrest from the jury their indisputable right to hear argument, and determine upon the question of the law, as well as on the question of fact, involved in the verdict they are required to give."3 According to the standard account, that changed in 1895 with the decision in Sparf and Hansen v. United States.4 In the course of deciding whether a lesser offense instruction should have been given, the Supreme Court reviewed the authority for and against the jury's right to "take upon themselves the determination of both law and fact" and came down solidly against a right to nullify. Sparf was widely followed, and soon juries were regularly being instructed that they must take the law from the court.5 As Nancy King, professor at Vanderbilt Law School, has shown, however, the historical record is not quite so neat.6 King reports (i) that as early as 1820, Quakers opposed to capital punishment were excused for cause from federal death penalty cases; (ii) jurors were excused for cause from trials of persons accused of resisting the Fugitive Slave Law if they had "formed an opinion that the law [was] unconstitutional"; and (iii) jurors who believed that bigamy should not be criminalized were excused for cause when the federal government launched its crusade against bigamy in Utah in the late 19th century. In 1862, Congress enacted legislation excluding from jury service in bigamy trials anyone who "believes it right for a man to have more than one living and undivorced wife at the same time." A belief in a broad right to nullify is hard to square with such exclusions. Perhaps most importantly, if Heicklen believed that nullification was lawful, he picked the wrong courthouse for that message. In 1997, in United States v. Thomas, the Second Circuit "categorically rejected the idea that in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is in their authority to prevent."7 As the court noted, the jury that acquitted Peter Zenger may have reached a result we now consider just, but "more recent history presents numerous and notorious examples of juror nullifying-cases that reveal the destructive potential of a practice [that] has rightly [been] termed a 'sabotage of justice.'" One has only to recall the 1955 trial of the two white men who brutally murdered 14-year-old Emmitt Till for supposedly flirting with a white woman to appreciate that jury nullification is not always about returning a conscientious verdict in the face of a "bad" law. Despite clear evidence of guilt, the jury acquitted the two men in one hour and seven minutes, taking "additional time" because the sheriff-elect had sent word "to wait a while, to make it 'look good.'"8 So if the jury does not have a right to nullify (and if Heicklen was handing out literature that encouraged jurors to dissemble so that they could exercise a right that was not theirs), why did Judge Wood dismiss the indictment? As she read it, Section 1504 did not reach Heicklen's conduct. Focusing on the words "upon any issue or matter" and interpreting the statute to avoid constitutional difficulties, Judge Wood concluded that it applied only if the defendant "sought to influence a juror through a written communication in relation to a specific case before that juror or to a substantive point in dispute between [the] parties before that juror." Because Heicklen had "no inkling of [the] type of case [that] was before the 'juror' who approached him [i.e., the undercover officer] and no intent to affect the outcome of a specific case," his conduct was outside the statute's reach.
Where Reason Wins
Was Judge Wood correct? One could argue that Heicklen was trying to influence a juror in relation to an issue or matter pending before the juror—he was, after all, urging her to vote her conscience, not follow the law, whatever the issue in the case might be. But the decision seems a sound one. Heicklen's pamphlets did not pose an imminent threat to the administration of justice, and it is hard to believe that Congress had him in mind when it enacted the statute. Moreover, as Judge Wood observed in a footnote, there is little reason to believe that jurors will not follow an instruction to ignore the retired chemist outside and accept the law from the court. (The government is usually the first to argue that jurors are presumed to follow instructions.) Notably, in 2010, the government won convictions in 75 percent of its tried cases (64 of 75), and six of the 11 acquittals came in bench trials, suggesting that Heicklen is finding few sympathetic ears.9 After the decision, Heicklen took the lawyers who were appointed to assist him (whom he tried to fire several times) to lunch and announced that he would return to 500 Pearl Street to continue his campaign.10 He sent this e-mail to his "tyranny-fighting" friends: "One small step for a shabby old man, but a giant leap for justice and our country." That is hyperbole. But one does not have to believe in jury nullification or have much regard for Julian Heicklen to believe that Honorable Judge Wood got it right. Paul Shechtman is a partner at Zuckerman Spaeder and an adjunct professor at Columbia Law School.
Endnotes:
1. Heicklen argued that even though he had no right to a jury trial, the court could grant him one in its discretion. But see Fed. R. Crim. Pro. 58 ("the magistrate judge must inform the defendant of…the right to a jury trial…unless the charge is a petty offense" [i.e., a misdemeanor punishable by six months' imprisonment or less].
2. See Alschuler and Deiss, "A Brief History of Criminal Jury in the United States," 61 U. Chi. L. Rev. 867, 907 (1994).
3. Id. at 908.
4. 156 U.S. 51 (1895).
5. See, e.g., People v. Goetz, 73 N.Y.2d 751 (1988) (proper to instruct jury it "must" find defendant guilty if People have met their burden of proof).
6. King, "Silencing Nullification Advocacy Inside the Jury Room and Outside the Courtroom," 65 U. Chi. L. Rev. 433 (1998).
7. United States v. Thomas, 116 F.3d 606 (2d Cir. 1997).
8. Whitfield, "A Death in the Delta" at 42.
9. Administrative Office of the United States Courts. 2010 Annual Report of the Director: Judicial Business of the United States Court. Washington, D.C.: 2011, Table D-7.
10. Posting of Scott H. Greenfield to http://blog.simplejustice.us/2012/04/20/heicklen-wins-jury-nullification-charge-dismissed.aspx (April 20, 2012, 6:35 EST).
Lawyer Defaming Other Lawyer Case Goes Forward
Lawyer's Claim She Was Defamed by Another Attorney Goes Forward
The New York Law Journal by Mark Hamblett - May 21, 2012
An attorney who warned against what she says was an art gallery's wrongful assertion of copyright has cleared a hurdle on her claim she was defamed when a gallery trustee, a fellow lawyer, denigrated her legal advice. Kerry Connolly, of Manhattan, claims her reputation as an attorney was damaged when Lelia Martin Wood-Smith complained that Connolly's advice that artists retain the copyright in their sold works was incorrect and cost the trust overseeing the Allan Stone Gallery "hundreds of thousands of dollars." Wood-Smith moved to dismiss on a number of grounds, including that her comments did not demonstrate actual malice. But Magistrate Judge James Francis issued a report and recommendation for Southern District Judge Deborah Batts, saying the defamation case should go forward in Connolly v. Wood-Smith, 11 Civ. 8801. When renowned art dealer and collector Allan Stone died in 2006, his interest in the gallery was vested in the C.S. Marital Trust, which is controlled by Wood-Smith, of Florida, in her role as independent trustee. Stone's daughter, Claudia Stone, was the director of the gallery.
In 2010, Wood-Smith instructed Claudia Stone to add a legend to invoices for the sale of two paintings indicating that the gallery still retained the copyright to the paintings. Stone sought Connolly's advice, and the answer was that the artists rights organization that represented the painter insisted the artist retained the copyright after sale. Even if that opinion was incorrect, Connolly relayed, and the paintings had entered the public domain, it would be a violation of the Copyright Act for the gallery to assert it retained the copyright. Connolly drafted two memoranda for the gallery on the subject of an artist's retention of copyright and, on March 8, 2011, wrote an e-mail to Wood-Smith raising other concerns about false assertion of copyright under state law. When Stone expressed opposition to some of Wood-Smith's actions, she was fired as director of the gallery. Connolly submitted invoices for her legal work, but she was never paid and she filed suit on Sept. 28, 2011, to obtain her fees. After she filed suit, Connolly was informed by Stone that Wood-Smith had circulated an e-mail to members of the Stone family saying Connolly's "ongoing advice on copyright 'was incorrect' and 'had cost the Trust hundreds of thousands of dollars.'" In her amended complaint, Connolly charged Wood-Smith was motivated by "malice and spite," when she made the statements. Connolly also said Wood-Smith retaliated against her because her position on copyright undermined Wood-Smith, who was trying to hang on to her position as independent trustee—a position that was the subject of litigation in Westchester County Surrogate's Court. On Nov. 3, Wood-Smith's attorney, Laurie Berke-Weiss, sent an e-mail to Connolly saying the gallery wanted to work out an agreement on the matter and pay her fee plus interest. But on Dec. 1, Berke-Weiss informed Connolly the gallery was going to charge her with malpractice.
In addition to defamation, Connolly asserted a claim under the Stored Communications Act, because Wood-Smith persuaded the administrator of the gallery's e-mail system to provide Wood-Smith with the passwords to all gallery e-mail accounts, enabling her to read all e-mails, which Connolly claimed was a violation of the attorney-client privilege. Magistrate Judge Francis recommended the Stored Communications Act claim be dismissed. But the claim in defamation should go forward, he said in his 35-page report, as Connolly has adequately pleaded that the e-mail was defamatory in that Wood-Smith's comments "disparaged" Connolly in her profession and "impugned" her competence. "Furthermore, because the statements qualify as defamation per se, the plaintiff need not prove special damages to prevail on her claim," he said. Wood-Smith had claimed the "single instance" defense to the defamation claim, which holds that where a publication charges that a professional person committed a "single error in judgment," the law presumes that their reputation is not damaged. Francis, however, noted the doctrine has been read narrowly in recent years and has been applied in cases of errors, mistakes or lapses in judgment. Here, he said, it was "inaccurate" for Wood-Smith to claim, in a memo to the court, that Connolly "merely accuses [her] of saying that [plaintiff] gave incorrect advice on a particular matter." "The Amended Complaint alleges that the defendant characterized the plaintiff's 'ongoing legal advice' as incorrect, which, by its terms, implies more than a 'single dereliction,'" Francis said. "Moreover, the pleadings refer to three occasions on which Ms. Connolly provided the advice that purportedly 'cost the Trust hundreds of thousands of dollars.'" Francis then knocked down Wood-Smith's argument that her statements were protected as expressions of opinion. "The statements at issue in this case are unaccompanied by a recitation of the facts on which they are based, and as alleged, 'imply the existence of undisclosed underlying facts,'" he said, quoting the New York Court of Appeals in Gross v. New York Times, 82 N.Y.2d 146 (1993). "A reasonable reader would infer that Ms. Wood-Smith 'knows certain facts[] unknown to the audience'—specifically, why the plaintiff's legal advice was incorrect and how it cost the Trust hundreds of thousands of dollars—which support her statements and are detrimental to Ms. Connolly." Accepting Connolly's assertions to be true for purposes of the motion, he said "the statements were not protected expressions of 'pure opinion.'" Finally, the court rejected Wood-Smith's assertion of qualified privilege due to her role as independent trustee. Connolly, he said, "has pled sufficient facts from which it may be inferred that Ms. Wood-Smith published the alleged statements with actual malice, including that: the plaintiff proffered 'legal advice [that] directly questioned and challenged a fraudulent plan [to assert copyright over paintings] that [the defendant] proposed to implement.'" Berke-Weiss and Jessica Tischler of Berke-Weiss & Pechman represent Wood-Smith. Hung Ta represents Connolly. Mark Hamblett can be contacted at mhamblett@alm.com.
The New York Law Journal by Mark Hamblett - May 21, 2012
An attorney who warned against what she says was an art gallery's wrongful assertion of copyright has cleared a hurdle on her claim she was defamed when a gallery trustee, a fellow lawyer, denigrated her legal advice. Kerry Connolly, of Manhattan, claims her reputation as an attorney was damaged when Lelia Martin Wood-Smith complained that Connolly's advice that artists retain the copyright in their sold works was incorrect and cost the trust overseeing the Allan Stone Gallery "hundreds of thousands of dollars." Wood-Smith moved to dismiss on a number of grounds, including that her comments did not demonstrate actual malice. But Magistrate Judge James Francis issued a report and recommendation for Southern District Judge Deborah Batts, saying the defamation case should go forward in Connolly v. Wood-Smith, 11 Civ. 8801. When renowned art dealer and collector Allan Stone died in 2006, his interest in the gallery was vested in the C.S. Marital Trust, which is controlled by Wood-Smith, of Florida, in her role as independent trustee. Stone's daughter, Claudia Stone, was the director of the gallery.
In 2010, Wood-Smith instructed Claudia Stone to add a legend to invoices for the sale of two paintings indicating that the gallery still retained the copyright to the paintings. Stone sought Connolly's advice, and the answer was that the artists rights organization that represented the painter insisted the artist retained the copyright after sale. Even if that opinion was incorrect, Connolly relayed, and the paintings had entered the public domain, it would be a violation of the Copyright Act for the gallery to assert it retained the copyright. Connolly drafted two memoranda for the gallery on the subject of an artist's retention of copyright and, on March 8, 2011, wrote an e-mail to Wood-Smith raising other concerns about false assertion of copyright under state law. When Stone expressed opposition to some of Wood-Smith's actions, she was fired as director of the gallery. Connolly submitted invoices for her legal work, but she was never paid and she filed suit on Sept. 28, 2011, to obtain her fees. After she filed suit, Connolly was informed by Stone that Wood-Smith had circulated an e-mail to members of the Stone family saying Connolly's "ongoing advice on copyright 'was incorrect' and 'had cost the Trust hundreds of thousands of dollars.'" In her amended complaint, Connolly charged Wood-Smith was motivated by "malice and spite," when she made the statements. Connolly also said Wood-Smith retaliated against her because her position on copyright undermined Wood-Smith, who was trying to hang on to her position as independent trustee—a position that was the subject of litigation in Westchester County Surrogate's Court. On Nov. 3, Wood-Smith's attorney, Laurie Berke-Weiss, sent an e-mail to Connolly saying the gallery wanted to work out an agreement on the matter and pay her fee plus interest. But on Dec. 1, Berke-Weiss informed Connolly the gallery was going to charge her with malpractice.
In addition to defamation, Connolly asserted a claim under the Stored Communications Act, because Wood-Smith persuaded the administrator of the gallery's e-mail system to provide Wood-Smith with the passwords to all gallery e-mail accounts, enabling her to read all e-mails, which Connolly claimed was a violation of the attorney-client privilege. Magistrate Judge Francis recommended the Stored Communications Act claim be dismissed. But the claim in defamation should go forward, he said in his 35-page report, as Connolly has adequately pleaded that the e-mail was defamatory in that Wood-Smith's comments "disparaged" Connolly in her profession and "impugned" her competence. "Furthermore, because the statements qualify as defamation per se, the plaintiff need not prove special damages to prevail on her claim," he said. Wood-Smith had claimed the "single instance" defense to the defamation claim, which holds that where a publication charges that a professional person committed a "single error in judgment," the law presumes that their reputation is not damaged. Francis, however, noted the doctrine has been read narrowly in recent years and has been applied in cases of errors, mistakes or lapses in judgment. Here, he said, it was "inaccurate" for Wood-Smith to claim, in a memo to the court, that Connolly "merely accuses [her] of saying that [plaintiff] gave incorrect advice on a particular matter." "The Amended Complaint alleges that the defendant characterized the plaintiff's 'ongoing legal advice' as incorrect, which, by its terms, implies more than a 'single dereliction,'" Francis said. "Moreover, the pleadings refer to three occasions on which Ms. Connolly provided the advice that purportedly 'cost the Trust hundreds of thousands of dollars.'" Francis then knocked down Wood-Smith's argument that her statements were protected as expressions of opinion. "The statements at issue in this case are unaccompanied by a recitation of the facts on which they are based, and as alleged, 'imply the existence of undisclosed underlying facts,'" he said, quoting the New York Court of Appeals in Gross v. New York Times, 82 N.Y.2d 146 (1993). "A reasonable reader would infer that Ms. Wood-Smith 'knows certain facts[] unknown to the audience'—specifically, why the plaintiff's legal advice was incorrect and how it cost the Trust hundreds of thousands of dollars—which support her statements and are detrimental to Ms. Connolly." Accepting Connolly's assertions to be true for purposes of the motion, he said "the statements were not protected expressions of 'pure opinion.'" Finally, the court rejected Wood-Smith's assertion of qualified privilege due to her role as independent trustee. Connolly, he said, "has pled sufficient facts from which it may be inferred that Ms. Wood-Smith published the alleged statements with actual malice, including that: the plaintiff proffered 'legal advice [that] directly questioned and challenged a fraudulent plan [to assert copyright over paintings] that [the defendant] proposed to implement.'" Berke-Weiss and Jessica Tischler of Berke-Weiss & Pechman represent Wood-Smith. Hung Ta represents Connolly. Mark Hamblett can be contacted at mhamblett@alm.com.
Saturday, May 19, 2012
'Extreme and Perilous Judicial Overreaching'
Class-action suit on stop-and-frisk is bad news for New York
The New York Daily News - OPINION - May 18, 2012
A big step backward toward the bad old days of crime
Judge Shira Scheindlin sounded as if she had already convicted the NYPD in her ruling on Stop, Question and Frisk lawsuit. There was a time — not so long ago — when the New York Police Department deployed officers to patrol in cars or on foot, waiting to be summoned after someone had been murdered, raped, robbed or otherwise victimized. As the city suffered more than 2,000 killings a year, the cops became known as blue flowerpots for their determined lack of aggression in trying to prevent crime instead of merely cleaning up the blood afterward. Today, New Yorkers are dangerously close to seeing the police replanted, with a terrible impact on public safety. Virtually the city’s entire Democratic political hierarchy is recklessly on board a campaign to force the NYPD to, in effect, abandon its program of stopping, questioning and sometimes frisking individuals suspected of criminality. Among those who would return the police to the status of ineffectually observing the disintegration of the social compact are the city’s would-be mayors: Christine Quinn, Bill de Blasio, John Liu and Scott Stringer. They will cry that this is a harsh and unwarranted judgment, and they will do so honestly because they have no sense of the horrendous damage their policy prescriptions would wreak. You think rising cell phone thefts are bad? Wait till car thefts soar back over 100,000 a year. Wait till you start hearing about mushrooms and learn that the word refers to children who have been struck by stray bullets.
Still more frightening than Quinn, de Blasio, Liu and Stringer is Manhattan Federal Judge Shira Scheindlin, who this week okayed a class-action lawsuit over the NYPD’s perfectly legal, perfectly constitutional program of asking people to produce identification and explain their business when cops have a reasonable suspicion that a crime has been or is about to be committed. Scheindlin convicted the Police Department of violating the constitutional rights of black and Hispanic New Yorkers based on statistical extrapolations of who gets stopped where, plus a professor’s opinion that the cops’ stated reasons for making inquiries fall short of the legal standards for reasonable suspicion. Making much of the fact that the NYPD has an organized stop and inquire program — as opposed to a haphazard one — the judge ruled that charges of wrongful stops by just four New Yorkers can serve as proxies for rights violations supposedly inflicted on hundreds of thousands of people. This is extreme and perilous judicial overreaching. Based on nothing more, really, than numbers and an academic opinion that suited her beliefs, Scheindlin has moved menacingly toward restricting the NYPD’s tactics. Under political and legal onslaught, Commissioner Ray Kelly told Quinn yesterday that precinct commanders would give an extra level of scrutiny to encounters where police stop people. She and Stringer dismissed Kelly’s move as inadequate and, no doubt, Scheindlin will too. Until the body count starts rising. Which it will.
RELATED STORY:
Just stop! Frisking saves lives: Bloomy
The New York Post by David Seifman - May 19, 2012
There’s not going to be any retreat on the NYPD’s “stop-and-frisk” strategy because the program is saving lives, a defiant Mayor Bloomberg declared yesterday. “We’re not going to walk away from tactics that work, and we’re not going to walk away from bringing down crime,” the mayor said, less than 24 hours after Police Commissioner Ray Kelly told the City Council he’s made changes to increase training and heighten supervision of the controversial program. Kelly’s announcement appeared designed to mollify critics who charge that stop-and-frisk unfairly targets young blacks and Latinos. But Bloomberg was giving no ground yesterday on his weekly radio show. “This is a program that’s effective,” he insisted. “People say there’s a divide between the public and the police. There may be a divide between some of the public and the police, but the divide that is no longer there is that you used to not be able to walk the streets of this city, and today you can walk every neighborhood during the day and most neighborhoods at night.” The mayor rejected the idea the NYPD was acting only after a federal judge this week granted class-action status to a 2008 lawsuit against the city involving stop-and-frisk. “This is something if you look and go back six weeks ago, Kelly began a process really of making local precinct commanders responsible for the stop-and-frisk and reporting, checking the quality,” he said. Bloomberg pointed out that the murder rate has dropped sharply since he took office. With more than seven months before the year ends, he predicted the number of murders reported this year would set another record low. Without mentioning Chicago by name, Bloomberg also noted that crime is “off the charts” in that city — up a startling 60 percent this year. He didn’t have to say anything more to deliver the message of what would happen if stop-and-frisk was curtailed here. “Once you start to convince people they can get away with carrying guns, then you lose control of them,” the mayor said. “We cannot do that.” Five hours after the mayor delivered his impassioned defense, critics were hammering him and the NYPD at an Assembly hearing across the street from City Hall. Donna Lieberman, director of the New York Civil Liberties Union, dismissed Kelly’s plan as a p.r. stunt. “We can’t let the commissioner off the hook with this garbage, this substitute for meaningful reform, “ she said. “The police commissioner’s response is not about acknowledging that the system of policing in New York City is fundamentally flawed and needs a fundamental overhaul. It’s about winning the battle in the media. They’re making a couple of baby steps.” David Jones, president of the Community Service Society, held out no hope that Bloomberg or Kelly would make significant modifications. “This administration is not going to change,” Jones said. david.seifman@nypost.com
The New York Daily News - OPINION - May 18, 2012
A big step backward toward the bad old days of crime
Judge Shira Scheindlin sounded as if she had already convicted the NYPD in her ruling on Stop, Question and Frisk lawsuit. There was a time — not so long ago — when the New York Police Department deployed officers to patrol in cars or on foot, waiting to be summoned after someone had been murdered, raped, robbed or otherwise victimized. As the city suffered more than 2,000 killings a year, the cops became known as blue flowerpots for their determined lack of aggression in trying to prevent crime instead of merely cleaning up the blood afterward. Today, New Yorkers are dangerously close to seeing the police replanted, with a terrible impact on public safety. Virtually the city’s entire Democratic political hierarchy is recklessly on board a campaign to force the NYPD to, in effect, abandon its program of stopping, questioning and sometimes frisking individuals suspected of criminality. Among those who would return the police to the status of ineffectually observing the disintegration of the social compact are the city’s would-be mayors: Christine Quinn, Bill de Blasio, John Liu and Scott Stringer. They will cry that this is a harsh and unwarranted judgment, and they will do so honestly because they have no sense of the horrendous damage their policy prescriptions would wreak. You think rising cell phone thefts are bad? Wait till car thefts soar back over 100,000 a year. Wait till you start hearing about mushrooms and learn that the word refers to children who have been struck by stray bullets.
Still more frightening than Quinn, de Blasio, Liu and Stringer is Manhattan Federal Judge Shira Scheindlin, who this week okayed a class-action lawsuit over the NYPD’s perfectly legal, perfectly constitutional program of asking people to produce identification and explain their business when cops have a reasonable suspicion that a crime has been or is about to be committed. Scheindlin convicted the Police Department of violating the constitutional rights of black and Hispanic New Yorkers based on statistical extrapolations of who gets stopped where, plus a professor’s opinion that the cops’ stated reasons for making inquiries fall short of the legal standards for reasonable suspicion. Making much of the fact that the NYPD has an organized stop and inquire program — as opposed to a haphazard one — the judge ruled that charges of wrongful stops by just four New Yorkers can serve as proxies for rights violations supposedly inflicted on hundreds of thousands of people. This is extreme and perilous judicial overreaching. Based on nothing more, really, than numbers and an academic opinion that suited her beliefs, Scheindlin has moved menacingly toward restricting the NYPD’s tactics. Under political and legal onslaught, Commissioner Ray Kelly told Quinn yesterday that precinct commanders would give an extra level of scrutiny to encounters where police stop people. She and Stringer dismissed Kelly’s move as inadequate and, no doubt, Scheindlin will too. Until the body count starts rising. Which it will.
RELATED STORY:
Just stop! Frisking saves lives: Bloomy
The New York Post by David Seifman - May 19, 2012
There’s not going to be any retreat on the NYPD’s “stop-and-frisk” strategy because the program is saving lives, a defiant Mayor Bloomberg declared yesterday. “We’re not going to walk away from tactics that work, and we’re not going to walk away from bringing down crime,” the mayor said, less than 24 hours after Police Commissioner Ray Kelly told the City Council he’s made changes to increase training and heighten supervision of the controversial program. Kelly’s announcement appeared designed to mollify critics who charge that stop-and-frisk unfairly targets young blacks and Latinos. But Bloomberg was giving no ground yesterday on his weekly radio show. “This is a program that’s effective,” he insisted. “People say there’s a divide between the public and the police. There may be a divide between some of the public and the police, but the divide that is no longer there is that you used to not be able to walk the streets of this city, and today you can walk every neighborhood during the day and most neighborhoods at night.” The mayor rejected the idea the NYPD was acting only after a federal judge this week granted class-action status to a 2008 lawsuit against the city involving stop-and-frisk. “This is something if you look and go back six weeks ago, Kelly began a process really of making local precinct commanders responsible for the stop-and-frisk and reporting, checking the quality,” he said. Bloomberg pointed out that the murder rate has dropped sharply since he took office. With more than seven months before the year ends, he predicted the number of murders reported this year would set another record low. Without mentioning Chicago by name, Bloomberg also noted that crime is “off the charts” in that city — up a startling 60 percent this year. He didn’t have to say anything more to deliver the message of what would happen if stop-and-frisk was curtailed here. “Once you start to convince people they can get away with carrying guns, then you lose control of them,” the mayor said. “We cannot do that.” Five hours after the mayor delivered his impassioned defense, critics were hammering him and the NYPD at an Assembly hearing across the street from City Hall. Donna Lieberman, director of the New York Civil Liberties Union, dismissed Kelly’s plan as a p.r. stunt. “We can’t let the commissioner off the hook with this garbage, this substitute for meaningful reform, “ she said. “The police commissioner’s response is not about acknowledging that the system of policing in New York City is fundamentally flawed and needs a fundamental overhaul. It’s about winning the battle in the media. They’re making a couple of baby steps.” David Jones, president of the Community Service Society, held out no hope that Bloomberg or Kelly would make significant modifications. “This administration is not going to change,” Jones said. david.seifman@nypost.com
Corrupt Ethics Cover-Up King Tembeckjian Weighs In on Pot Judge
Justice's Disclosure Highlights Medical Marijuana Debate
The New York Law Journal by John Caher - May 21, 2012
Brooklyn Supreme Court Justice Gustin Reichbach has written scores of decisions in his long career on the bench, but the opinion that may have especially broad impact is the op-ed column in which he admitted smoking marijuana to cope with the debilitating effects of cancer. Lawmakers in both houses of the state Legislature who are engaged in an intense, uphill battle to legalize the medicinal use of cannabis, say that Reichbach's May 16 revelation in The New York Times of his illegal consumption of the drug gives added credibility to their cause and significantly moves the issue forward. "It is amazing that he showed the courage to put his personal story out there in light of the fact that he is a judge," said Senator Diane Savino, D-Staten Island, who is sponsoring the medical marijuana bill, S2774. "He is a respected jurist and to hear somebody talk about the benefits in this way moves people who are sitting on the fence. I think it will have an effect." Assemblyman Richard Gottfried, who is sponsoring the bill in the lower chamber, A7347, agreed. "It is one of the most compelling expressions of the need for medical marijuana legislation that I have ever read," said Gottfried, a Manhattan Democrat. "It is even stronger because of Justice Reichbach's stature and the courage it takes for someone in his position to write his story." Gottfried and Savino both said they were caught off-guard by Reichbach's piece and had no idea it was coming. But court officials were alerted before the column was published, according to David Bookstaver, a spokesman for the Office of Court Administration. "Judge Reichbach felt it was important that no one be surprised by his piece in the Times and made the appropriate people aware it was coming," Bookstaver said. "The reaction was respectful and compassionate." Bookstaver refused further comment, and he declined to say whether the fact that marijuana possession is illegal raised any concerns with Chief Judge Jonathan Lippman and Chief Administrative Judge A. Gail Prudenti. Possession of marijuana in New York remains illegal, but if the quantity is less than 25 grams, or slightly less than one ounce, it is not a crime but a violation under Penal Law Section 221.05, punishable by fine. Possession in public view of more than 25 grams, but less than two ounces, is a Class B misdemeanor. Reichbach acknowledged in his column that "given my position as a sitting judge still hearing cases, well-meaning friends question the wisdom of my coming out on this issue." But he wrote, "This is not a law-and-order issue; it is a medical and a human rights issue." And he "implored the governor and the Legislature to back the bill that would authorize the use of marijuana for medical purposes. "Because criminalizing an effective medical technique affects the fair administration of justice, I feel obliged to speak out as both a judge and a cancer patient suffering with a fatal disease," he observed. In his article, Reichbach, 65, disclosed that he has Stage 3 pancreatic cancer and is enduring the agony of chemotherapy. When he was diagnosed 3 1/2 years ago, doctors told him he had only four to six months to live. "My survival has demanded an enormous price, including months of chemotherapy, radiation hell and brutal surgery," he writes. He wrote that his illness and the combination of prescribed drugs leave him in a constant state of nausea and pain that makes it nearly impossible to get the nutrition and sleep he needs.
"Inhaled marijuana is the only medicine that gives me some relief from nausea, stimulates my appetite, and makes it easier to fall asleep," Reichbach wrote. "The oral synthetic substitute, Marinol, prescribed by my doctors, was useless. Rather than watch the agony of my suffering, friends have chosen, at some personal risk, to provide the substance." Reichbach wrote that a few puffs of marijuana before dinner "gives me ammunition in the battle to eat," and a few more at bedtime "permits desperately needed sleep." Legislators are attempting to make New York the 17th state to allow medical uses of marijuana. The Democratic Assembly is viewed as supportive. In fact, that chamber previously passed a medical marijuana bill. However, the Republican-controlled Senate has never taken up the bill. Its leaders and Governor Andrew Cuomo have yet to be convinced the benefits outweigh the drawbacks. There remains concern that marijuana is a "gateway" drug that leads to stronger and more addictive drugs. "My position has been that there are tremendous risks here, also," Cuomo told reporters last month. "I understand the benefits, but there are also risks and I think the risks outweigh the benefits at this point. I understand there's more research and there's more evidence and it can always be re-evaluated. I don't think there's going to be time this legislative session to analyze that issue." Savino said it is ironic that opponents are concerned about marijuana when many patients—quite probably Reichbach—are being prescribed legal drugs that are far more dangerous and addictive. "The opponents of medical marijuana always use the terminology that it is a 'gateway drug,'" Savino said. "Assuming we believe that, it would be the gateway to the drugs that are currently legal, highly addictive and dangerous that doctors can prescribe right now." Reichbach, in a brief interview on May 18, said his physicians are aware of his marijuana use. He declined further comment. Gottfried said it is just a matter of time before medicinal marijuana is legalized—and that day may be a bit closer due to Reichbach. Reichbach's Times piece is getting considerable attention in Albany and has been reported statewide and even nationwide. "I think thousands of New Yorkers who are suffering and could benefit from medical use of marijuana owe him enormous thanks," Gottfried said. "He has been enormously helpful."
Ethical Issues
However, Reichbach's act of civil disobedience raises both legal and ethical issues since his action could be construed as disrespect for the law he is pledged to support. In the past, the Commission on Judicial Conduct has disciplined judges for various legal transgressions—for instance, a drunken driving conviction often results in public censure—and on at least one occasion has sanctioned a judge for civil disobedience, according to the commission's annual reports. The commission in 2005 censured a town justice in Ulster County who publicly announced that he would dismiss any speeding tickets issued on a certain section of highway because he disagreed with the speed limit (see Matter of Vincent Barringer). Robert Tembeckjian, administrator and counsel to the commission, refused to discuss Reichbach, but said he and his staff regularly scour newspapers for articles that may indicate a judge has violated the Code of Judicial Conduct, and bring those articles to the attention of the panel. "We routinely bring to the commission's attention materials or stories that involve judges and judicial conduct that appear in newspapers, even if there is not a complaint," Tembeckjian said. The commission is next slated to meet June 14, but Tembeckjian would not say whether Reichbach will be discussed. Stephen Coffey, a former member of the commission, said Reichbach "has a problem." "I understand this is a very human problem," said Coffey, a partner at O'Connell & Aronowitz in Albany. "On the one hand, he is using marijuana to alleviate what is probably an awful and terribly painful thing. On the other hand, he is bound by the rule of law. Unfortunately, what he is doing is illegal and he shouldn't be doing it." Ethics expert Stephen Gillers of the New York University School of Law said Reichbach's decision to go public was courageous and does not warrant any sanction. "He did not need to do it for himself," Gillers said. "As a judge, he was uniquely positioned to give voice to the suffering of others whose pleas would not get the same attention. The Legislature should now be bold in its response and make medical marijuana available to all cancer victims undergoing chemotherapy." Gillers noted that possessing a small amount of marijuana for personal use is no longer a crime. "I can't imagine that anyone would be heartless and cruel enough to seek to sanction Reichbach for wishing to mitigate unimaginable pain," Gillers said. Another issue raised by Reichbach's disclosure is how or if he will handle drug cases that come to his court. Reichbach carries a criminal caseload, but generally does not preside over narcotics matters, officials said. Reichbach declined to discuss whether he will recuse himself from marijuana cases. There was no immediate reaction from Brooklyn District Attorney Charles J. Hynes. A judge since the early 1990s, Reichbach began his judicial career as a New York City Civil Court judge and was elected to Supreme Court in 1998. He has sometimes been criticized by police and prosecutors for what they regard as leniency to criminals. In 2009, he joined a letter to the Law Journal by 17 judges calling for reform of the Rockefeller drug laws. Reichbach's 14-year-term concludes at the end of this year. John Caher can be contacted at jcaher@alm.com.
SEE RELATED STORY, "A Judge's Plea for Pot"
The New York Law Journal by John Caher - May 21, 2012
Brooklyn Supreme Court Justice Gustin Reichbach has written scores of decisions in his long career on the bench, but the opinion that may have especially broad impact is the op-ed column in which he admitted smoking marijuana to cope with the debilitating effects of cancer. Lawmakers in both houses of the state Legislature who are engaged in an intense, uphill battle to legalize the medicinal use of cannabis, say that Reichbach's May 16 revelation in The New York Times of his illegal consumption of the drug gives added credibility to their cause and significantly moves the issue forward. "It is amazing that he showed the courage to put his personal story out there in light of the fact that he is a judge," said Senator Diane Savino, D-Staten Island, who is sponsoring the medical marijuana bill, S2774. "He is a respected jurist and to hear somebody talk about the benefits in this way moves people who are sitting on the fence. I think it will have an effect." Assemblyman Richard Gottfried, who is sponsoring the bill in the lower chamber, A7347, agreed. "It is one of the most compelling expressions of the need for medical marijuana legislation that I have ever read," said Gottfried, a Manhattan Democrat. "It is even stronger because of Justice Reichbach's stature and the courage it takes for someone in his position to write his story." Gottfried and Savino both said they were caught off-guard by Reichbach's piece and had no idea it was coming. But court officials were alerted before the column was published, according to David Bookstaver, a spokesman for the Office of Court Administration. "Judge Reichbach felt it was important that no one be surprised by his piece in the Times and made the appropriate people aware it was coming," Bookstaver said. "The reaction was respectful and compassionate." Bookstaver refused further comment, and he declined to say whether the fact that marijuana possession is illegal raised any concerns with Chief Judge Jonathan Lippman and Chief Administrative Judge A. Gail Prudenti. Possession of marijuana in New York remains illegal, but if the quantity is less than 25 grams, or slightly less than one ounce, it is not a crime but a violation under Penal Law Section 221.05, punishable by fine. Possession in public view of more than 25 grams, but less than two ounces, is a Class B misdemeanor. Reichbach acknowledged in his column that "given my position as a sitting judge still hearing cases, well-meaning friends question the wisdom of my coming out on this issue." But he wrote, "This is not a law-and-order issue; it is a medical and a human rights issue." And he "implored the governor and the Legislature to back the bill that would authorize the use of marijuana for medical purposes. "Because criminalizing an effective medical technique affects the fair administration of justice, I feel obliged to speak out as both a judge and a cancer patient suffering with a fatal disease," he observed. In his article, Reichbach, 65, disclosed that he has Stage 3 pancreatic cancer and is enduring the agony of chemotherapy. When he was diagnosed 3 1/2 years ago, doctors told him he had only four to six months to live. "My survival has demanded an enormous price, including months of chemotherapy, radiation hell and brutal surgery," he writes. He wrote that his illness and the combination of prescribed drugs leave him in a constant state of nausea and pain that makes it nearly impossible to get the nutrition and sleep he needs.
"Inhaled marijuana is the only medicine that gives me some relief from nausea, stimulates my appetite, and makes it easier to fall asleep," Reichbach wrote. "The oral synthetic substitute, Marinol, prescribed by my doctors, was useless. Rather than watch the agony of my suffering, friends have chosen, at some personal risk, to provide the substance." Reichbach wrote that a few puffs of marijuana before dinner "gives me ammunition in the battle to eat," and a few more at bedtime "permits desperately needed sleep." Legislators are attempting to make New York the 17th state to allow medical uses of marijuana. The Democratic Assembly is viewed as supportive. In fact, that chamber previously passed a medical marijuana bill. However, the Republican-controlled Senate has never taken up the bill. Its leaders and Governor Andrew Cuomo have yet to be convinced the benefits outweigh the drawbacks. There remains concern that marijuana is a "gateway" drug that leads to stronger and more addictive drugs. "My position has been that there are tremendous risks here, also," Cuomo told reporters last month. "I understand the benefits, but there are also risks and I think the risks outweigh the benefits at this point. I understand there's more research and there's more evidence and it can always be re-evaluated. I don't think there's going to be time this legislative session to analyze that issue." Savino said it is ironic that opponents are concerned about marijuana when many patients—quite probably Reichbach—are being prescribed legal drugs that are far more dangerous and addictive. "The opponents of medical marijuana always use the terminology that it is a 'gateway drug,'" Savino said. "Assuming we believe that, it would be the gateway to the drugs that are currently legal, highly addictive and dangerous that doctors can prescribe right now." Reichbach, in a brief interview on May 18, said his physicians are aware of his marijuana use. He declined further comment. Gottfried said it is just a matter of time before medicinal marijuana is legalized—and that day may be a bit closer due to Reichbach. Reichbach's Times piece is getting considerable attention in Albany and has been reported statewide and even nationwide. "I think thousands of New Yorkers who are suffering and could benefit from medical use of marijuana owe him enormous thanks," Gottfried said. "He has been enormously helpful."
Ethical Issues
However, Reichbach's act of civil disobedience raises both legal and ethical issues since his action could be construed as disrespect for the law he is pledged to support. In the past, the Commission on Judicial Conduct has disciplined judges for various legal transgressions—for instance, a drunken driving conviction often results in public censure—and on at least one occasion has sanctioned a judge for civil disobedience, according to the commission's annual reports. The commission in 2005 censured a town justice in Ulster County who publicly announced that he would dismiss any speeding tickets issued on a certain section of highway because he disagreed with the speed limit (see Matter of Vincent Barringer). Robert Tembeckjian, administrator and counsel to the commission, refused to discuss Reichbach, but said he and his staff regularly scour newspapers for articles that may indicate a judge has violated the Code of Judicial Conduct, and bring those articles to the attention of the panel. "We routinely bring to the commission's attention materials or stories that involve judges and judicial conduct that appear in newspapers, even if there is not a complaint," Tembeckjian said. The commission is next slated to meet June 14, but Tembeckjian would not say whether Reichbach will be discussed. Stephen Coffey, a former member of the commission, said Reichbach "has a problem." "I understand this is a very human problem," said Coffey, a partner at O'Connell & Aronowitz in Albany. "On the one hand, he is using marijuana to alleviate what is probably an awful and terribly painful thing. On the other hand, he is bound by the rule of law. Unfortunately, what he is doing is illegal and he shouldn't be doing it." Ethics expert Stephen Gillers of the New York University School of Law said Reichbach's decision to go public was courageous and does not warrant any sanction. "He did not need to do it for himself," Gillers said. "As a judge, he was uniquely positioned to give voice to the suffering of others whose pleas would not get the same attention. The Legislature should now be bold in its response and make medical marijuana available to all cancer victims undergoing chemotherapy." Gillers noted that possessing a small amount of marijuana for personal use is no longer a crime. "I can't imagine that anyone would be heartless and cruel enough to seek to sanction Reichbach for wishing to mitigate unimaginable pain," Gillers said. Another issue raised by Reichbach's disclosure is how or if he will handle drug cases that come to his court. Reichbach carries a criminal caseload, but generally does not preside over narcotics matters, officials said. Reichbach declined to discuss whether he will recuse himself from marijuana cases. There was no immediate reaction from Brooklyn District Attorney Charles J. Hynes. A judge since the early 1990s, Reichbach began his judicial career as a New York City Civil Court judge and was elected to Supreme Court in 1998. He has sometimes been criticized by police and prosecutors for what they regard as leniency to criminals. In 2009, he joined a letter to the Law Journal by 17 judges calling for reform of the Rockefeller drug laws. Reichbach's 14-year-term concludes at the end of this year. John Caher can be contacted at jcaher@alm.com.
SEE RELATED STORY, "A Judge's Plea for Pot"
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