History > 2006 > USA > State Justice (IV)

Scott Fappiano,

between court officers in Brooklyn, was all smiles upon his release Friday,

as was his mother, Rose, eager to greet him at left.

Robert Stolarik for The New York Times

After 21 Years, DNA Testing Sets Man Free in Rape Case        NYT        7.10.2006
http://www.nytimes.com/2006/10/07/nyregion/07rape.html

Appeals court stays

tobacco racketeering ruling

Tue Oct 31, 2006 10:48 PM ET
Reuters
By Peter Kaplan

WASHINGTON (Reuters) - A U.S. appeals court on Tuesday put on hold sanctions imposed on cigarette makers by a judge who had found they violated racketeering laws in a decades-long conspiracy to hide the dangers of smoking.

A three-judge panel of the Court of Appeals for the District of Columbia granted a request by the tobacco companies to stay the ruling and remedies imposed in August by District Judge Gladys Kessler.

In a 2-1 decision, the appeals court judges said the tobacco companies had "satisfied the stringent standards" required to stay the lower court judgment while it considers the industry's appeal.

Kessler had ordered the companies to make "corrective" public statements about the health effects and addictiveness of smoking starting in December. Her order also imposed a ban on the companies that would have gone into effect on January 1 preventing them from describing cigarettes in ways that convey health claims such as "low tar" and "light."

Philip Morris parent group Altria Group Inc. said it was "pleased" with the appeals court action.

"The company believes the trial court's decision is contrary to the law and facts presented during trial, and looks forward to the opportunity to present its arguments to the appellate court," Altria Associate General Counsel William Ohlemeyer said in a statement.

A Justice Department spokesman declined to comment on the appeals court action.

William Corr, executive director of the anti-smoking group Campaign for Tobacco Free Kids, said the court's decision to grant the stay came as no surprise.

"The stay itself does not suggest that the industry is going to win anything on appeal," Corr said.

Cigarette makers escaped major financial penalties in the August 17 ruling by Kessler, even though she found them liable for a decades-long conspiracy to hide the dangers of smoking.

Kessler said in her 1,653-page opinion that the companies suppressed research, destroyed documents and manipulated nicotine levels to perpetuate addiction, but a ruling by the same appeals court prevented her from slapping the companies with costly remedies.

Targeted in the 1999 lawsuit were Altria and its Philip Morris USA unit; Loews Corp.'s Lorillard Tobacco unit, which has a tracking stock, Carolina Group; Vector Group Ltd.'s Liggett Group; Reynolds American Inc.'s R.J. Reynolds Tobacco unit and British American Tobacco Plc unit British American Tobacco Investments Ltd.

Kessler had ordered each company to post on its Web site all documents it submitted to prosecutors in the case and transcripts of letters and depositions of former employees about the health impacts of cigarette smoking or research.

She said the corrective statements would have to appear on Web sites, in full-page advertisements in major newspapers, on three major television networks, and on cigarette packaging.

She also had ruled that the tobacco companies would have to pay for the government's court costs.

    Appeals court stays tobacco racketeering ruling, R, 1.11.2006, http://today.reuters.com/news/articlenews.aspx?type=newsOne&storyID=2006-11-01T034807Z_01_N31199325_RTRUKOC_0_US-TOBACCO-COURT.xml&WTmodLoc=Home-C2-TopNews-newsOne-6

Surgery death blamed on jealous former classmate

Updated 10/26/2006 4:41 PM ET
AP
USA Today

CHARLOTTE (AP) — For five years, the death of Sandra Baker Joyner after a mini-facelift was attributed to medical error. But last month, investigators proposed a more sinister explanation.

As she lay bandaged in the recovery room, Joyner was poisoned by a nurse anesthetist who believed Joyner had stolen her boyfriend back in high school some 30 years ago, authorities say.

The nurse anesthetist, Sally Jordan Hill, 50, is jailed without bail on first-degree murder charges. On Thursday, prosecutors announced they would not seek the death penalty.

Joyner, 45, had gone to the office of Dr. Peter Tucker in 2001 for a facelift, fat grafts to her lips, and laser therapy on her eyelids and facial scars. But she went into respiratory arrest in the recovery room and was taken to a hospital, where she died several days later after being taken off life support. An autopsy blamed her death on a lack of oxygen to the brain caused by respiratory arrest.

At a court hearing last month, Chuck Henson, a Charlotte-Mecklenburg detective, said he believes Hill poisoned the patient by injecting her with fentanyl, a powerful painkiller. The detective said he also believes Hill turned off an alarm that could have alerted other nurses to the patient's condition.

And he testified that two people — the plastic surgeon and a technician — recall hearing Hill say Joyner stole her high school boyfriend. That comment was said to have been made during Joyner's initial visit to Tucker's plastic surgery practice, in 1999.

In court last month, two weeks after Hill's arrest, defense attorney Jean Lawson disputed the allegations.

"There is no evidence that Miss Hill knowingly, deliberately selected this person and killed her. The suggestion that this is the product of a 30-year grudge is outrageous," Lawson said.

Hill and Joyner were students at Olympic High School in Charlotte in the early 1970s. Baker was a member of the Class of '73; Hill graduated a year later.

During a 2003 deposition given to the state medical board, Hill said she knew Joyner in junior high and high school.

"She was one of the judges of my cheerleading experience when I was in the eighth grade," Hill testified. Asked whether they were friends, Hill said no, but "I would see her and her then-boyfriend ... walk around school together because he was in football and she was a cheerleader or letter girl, something like that."

Joyner later married John Joyner; the two separated before her death. Police said John Joyner is not the boyfriend Hill believed was stolen from her.

The medical board blamed Hill for Joyner's death, calling her "grossly negligent" in administering fentanyl without the plastic surgeon's permission and for taking too long to alert the doctor that Joyner was having problems. The plastic surgeon took responsibility for the death in a 2003 agreement with the board but kept his license. Hill gave hers up.

Joyner's family filed a malpractice lawsuit against the plastic surgeon and Hill; the case was settled in 2003 on confidential terms.

In his 2003 deposition before the medical board, the plastic surgeon blamed Hill for the patient's death, calling her "a rogue nurse on her own wild mustang, riding through the West, you know, shooting whoever she wants."

Tucker described Hill's behavior on the day of Joyner's surgery as out of character: "She's flipped out. She's going nuts. She snapped."

Tucker said he reported his suspicions to the district attorney's office. It is not clear why it took until this year for Hill to be charged; District Attorney Peter Gilchrist has said only that his office asked the police department's cold case squad to take a look at Joyner's death after receiving new information.

    Surgery death blamed on jealous former classmate, UT, 26.10.2006, http://www.usatoday.com/news/nation/2006-10-26-nurse-arrested_x.htm

New Jersey Court Backs Full Rights for Gay Couples

October 26, 2006
The New York Times
By DAVID W. CHEN

TRENTON, Oct. 25 — New Jersey’s highest court ruled on Wednesday that gay couples are entitled to the same legal rights and financial benefits as heterosexual couples, but ordered the Legislature to decide whether their unions must be called marriage or could be known by another name.

In a decision filled with bold and sweeping pronouncements about equality, the New Jersey Supreme Court gave the Democratic-controlled Legislature 180 days to either expand existing laws or come up with new ones to provide gay couples benefits including tuition assistance, survivors’ benefits under workers’ compensation laws, and spousal privilege in criminal trials.

All seven justices agreed that the state’s Constitution demands full legal rights for same-sex partners. But its ruling, 4 to 3, revealed a split in how to proceed. The majority said that lawmakers, not the court, should decide whether to call those arrangements a marriage, a civil union or something else. The three dissenters went further, asserting that gay couples, like their heterosexual counterparts, must be allowed to wed.

The New Jersey court did not go as far as Massachusetts, which in 2003 became the first state to permit gay marriage. Instead, it could be considered the new Vermont, which created civil unions for gay couples in 2000, in the politically, legally and culturally charged world of same-sex marriage.

“Our decision today significantly advances the civil rights of gays and lesbians,” Justice Barry T. Albin wrote for the majority. “We have decided that our State Constitution guarantees that every statutory right and benefit conferred to heterosexual couples through civil marriage must be made available to committed same-sex couples.”

But the ruling passed along the thorniest question, of whether true equality demands the same name, to the Legislature, saying “such change must come from the crucible of the democratic process.”

Within minutes of the court’s 3 p.m. announcement, three Democratic Assemblymen, working with Garden State Equality, a gay rights organization, said they would introduce a bill demanding marriage.

But reaction from their fellow legislators was guarded, with some saying privately that civil unions, not marriage, would be the likely result. In a joint statement, the Assembly speaker, Joseph J. Roberts Jr., and the Senate president, Richard J. Codey, both Democrats, called the 180-day deadline “unreasonable” and said, “The only remaining issues now confronting the Legislature are ones of terminology and clarification.”

For people involved in the legal battle over gay marriage, the decision is an important shift from recent court rulings in New York, Washington state and California that essentially rejected gay couples’ claims on marriage and the benefits it confers. And by issuing a nuanced and complicated 90-page ruling that left observers struggling to declare who won and who lost, the court may have neutralized gay marriage as an issue in the Nov. 7 elections, when eight states will consider ballot measures to ban same-sex marriage.

“The decision certainly minimizes what the radical right thought they might have had as a mobilizing tool in the last days of the election,” said Joe Solmonese, president of the Human Rights Campaign, a gay advocacy organization.

Nathaniel Persily, who teaches law and political science at the University of Pennsylvania and was a co-author of a recent paper titled “Gay Marriage, Public Opinion and the Courts,” praised the justices for “an incredibly smart and politically astute opinion.”

“The court has placed itself exactly where a majority of the American people are,” Professor Persily said. “A majority of Americans are in favor of equal rights for gays tantamount to marriage, but a majority is also against calling that relationship marriage.”

At the same time, he added: “This must be seen as a win for gay rights. They did not get the name they want, but they are getting more rights than could have been imaginable just a few years ago. Who would have thought 50, 20, even 10 years ago that a unanimous state supreme court would have said that gay relationships are entitled to equal rights as heterosexual relationships?”

But conservative groups opposed to same-sex marriage blasted the ruling as an example of the justices essentially trading judicial robes for legislative pens.

“The court is holding a legal gun to the head of the State Legislature, and saying, ‘Listen, there are two bullets, you get to pick the bullet: either gay marriage or civil unions,’ ” said Matt Daniels, president of Alliance for Marriage, an organization based in the Washington area that supports a federal Constitutional amendment banning same-sex marriage. “And that is not democracy. That is court-imposed policy-making that takes this out of the hands of the people.”

Until now, courts in many other states — including the Court of Appeals in New York in July — had rejected similar lawsuits by same-sex couples, with the common rationale being that only the legislative branch can define or redefine marriage. No legislature has yet done that, though several states, including New Jersey, and dozens of cities and towns have enacted domestic partnership laws to grant gay couples some benefits in recent years.

Nineteen states have adopted constitutional amendments banning same-sex marriage. Most others have statutory bans, but New Jersey and four other states do not. In addition to Massachusetts, where more than 8,000 gay couples have married in the past three years, Vermont and Connecticut authorize civil unions, which generally offer the same legal protections, if not the same societal status, as marriage.

Wednesday’s ruling caps a legal journey begun in 2002, when seven couples who had been denied marriage licenses in their towns filed the lawsuit now officially known as Lewis v. Harris. Two lower courts rejected their constitutional claim, with the Appellate Division ruling in June 2005 that marriage between members of the same sex was neither a fundamental right nor one covered by the constitution’s equal-protection clause.

Many gay-marriage advocates thought New Jersey’s high court, which heard the case Feb 15, was their best shot at victory.

It is regarded as one of the most liberal and independent in the country, having been among the first to strike down a ban on sodomy and rule in favor of adoption rights for gay couples.

The 4-3 split on Wednesday did not break along traditional political lines: the majority included all three justices appointed by a Democratic former governor, while the three dissenters, who backed the more far-reaching solution of opening marriage to gays, were named by a Republican.

“We do not have to take that all-or-nothing approach,” Justice Albin wrote of the marriage question in the majority opinion.

“We cannot find a legitimate public need for an unequal legal scheme of benefits and privileges that disadvantages same-sex couples,” he said. “We cannot find that a right to same-sex marriage is so deeply rooted in the traditions, history, and conscience of the people of this state that it ranks as a fundamental right.”

The court also expounded about the importance of equal treatment to protect children, diverging from the rulings of other state courts, which had said protecting procreation was one rationale for limiting marriage to heterosexual couples.

“There is something distinctly unfair about the state recognizing the right of same-sex couples to raise natural and adopted children and placing foster children with those couples,” Justice Albin said, “and yet denying those children the financial and social benefits and privileges available to children in heterosexual households.”

In the dissenting opinion, Chief Justice Deborah T. Poritz argued that the semantic distinction of marriage versus civil unions was itself a meaningful one, arguing that the institution “bestows enormous private and social advantages.”

Agreeing that same-sex couples deserve the same rights and benefits as heterosexual ones, she wrote that she “can find no principled basis, however, on which to distinguish those rights and benefits from the right to the title of marriage.”

As the case now moves from the domain of the courts to that of the legislature, some parties are gearing up for a fight.

Several Republican legislators — including State Senator Thomas H. Kean Jr., who is in a close race to unseat United States Senator Robert Menendez — said on Wednesday that they would like to see an amendment to the State Constitution banning same-sex marriage. But with the Democrats in control of both legislative chambers, and Mr. Codey and Mr. Roberts voicing opposition, such a ban seems unlikely.

At the same time, Garden State Equality, the gay rights group, began its lobbying campaign for marriage immediately after the decision, buying several weeks of television time for a new advertisement that began appearing on cable Wednesday night.

The ad features a cancer-stricken police officer, Lt. Laurel Hester, recalling her fight for death benefits for her female partner. Ms. Hester, bald and struggling to breathe, taped the commercial before she died early this year. The ad concludes with words appearing on the screen that read, “Support marriage equality. Your gay neighbors are depending on you.”

Patrick Healy contributed reporting from New York, and David Kocieniewski and Laura Mansnerus from Trenton.

    New Jersey Court Backs Full Rights for Gay Couples, NYT, 26.10.2006, http://www.nytimes.com/2006/10/26/nyregion/26marriage.html?hp&ex=1161921600&en=179e1fdb5c46876e&ei=5094&partner=homepage

Verdicts in Murder of Times Reporter

October 25, 2006
The New York Times
By DAVID STOUT

WASHINGTON, Oct. 24 — The second of two men accused of killing a retired reporter for The New York Times in January was convicted on Tuesday of murder, robbery and other charges that could put him in prison for the rest of his life.

The defendant, Percey Jordan Jr., 42, was found guilty in the slaying of the reporter, David E. Rosenbaum, 63, who was beaten and robbed near his home in Washington on the night of Jan. 6 and died two days later. An inquiry found that the medical care Mr. Rosenbaum received had been bungled from the beginning.

Mr. Jordan faces at least 30 years in prison and a maximum of life without the possibility of parole when he is sentenced by Judge Erik P. Christian in District of Columbia Superior Court on Jan. 12.

Jurors deliberated for a day before finding Mr. Jordan guilty of first-degree murder or premeditated murder during commission of a felony; second-degree murder; robbery; conspiracy; and credit-card fraud.

The second defendant was Mr. Jordan’s cousin Michael C. Hamlin, 24, who pleaded guilty on Sept. 20 to second-degree murder, robbery and conspiracy to commit robbery and testified against Mr. Jordan. Mr. Hamlin faces up to 60 years in prison when he is sentenced, on Dec. 19.

“This isn’t a happy day, really,” said the victim’s brother, Marcus Rosenbaum of Washington. He described the mood of the Rosenbaum family as one of relief because “justice has been served.”

Mr. Hamlin testified that he stole Mr. Rosenbaum’s wallet but that his cousin struck the victim over the head with a pipe. The pair divided Mr. Rosenbaum’s money and used the credit cards at various stores, where surveillance cameras captured the men’s images.

Mr. Rosenbaum was found lying semiconscious on a sidewalk about 9:20 p.m., having gone for a walk after dinner. Because he had been vomiting and smelled of alcohol, police officers, firefighters and ambulance workers assumed that he was drunk, according to a later inquiry by the office of the district inspector general/

The ambulance was late in reaching Mr. Rosenbaum because the driver became lost. Then, thinking that they were dealing with a drunk instead of a man with a brain trauma, the ambulance crew took Mr. Rosenbaum to Howard University Hospital instead of to a much closer hospital. One reason the Howard hospital was chosen was that it was closer to the driver’s home, the inquiry found.

At Howard, Mr. Rosenbaum lay unattended to on a stretcher because doctors and nurses were slow to realize that he was gravely injured, the inquiry determined. Mr. Rosenbaum’s death was attributed to blunt force trauma to his head, neck and body.

Mr. Hamlin turned himself in after seeing the surveillance-camera images of himself on television. His lawyers said he soon began to cooperate with investigators.

Mayor Anthony A. Williams and Howard University Hospital officials promised to tighten training and discipline at the agencies involved.

    Verdicts in Murder of Times Reporter, NYT, 25.10.2006, http://www.nytimes.com/2006/10/25/us/25slay.html

Calif. Freeway Killings Trial Begins

October 24, 2006
By THE ASSOCIATED PRESS
Filed at 11:03 a.m. ET
The New York Times

LOS ANGELES (AP) -- The voice on the phone taunted police, ''better catch me before I kill again,'' and described the location where officers could find the body.

Jurors listened to the recordings in court Monday as Deputy District Attorney John Monaghan gave his opening statements in serial murder trial of Ivan Hill, who is charged with killing six women in 1993 and 1994 and dumping their bodies along the Pomona Freeway.

Hill, 45, acknowledges placing the calls, and his defense attorney acknowledges that Hill killed the women.

But defense attorney Jennifer Friedman disputes the prosecution's claim that he killed them intentionally, which would make him eligible for the death penalty.

''Compulsive acts are not deliberate acts. ... They're not done after careful thought and weighing,'' Friedman told the jury. ''Look at those killings. Listen to that phone call.''

Prosecutors say one victim was strangled by hand and the other five had ligatures around their necks, which Monaghan said indicated Hill planned the killings.

In the recording of Hill's phone call to police, he was heard telling a 911 dispatcher he ''did it again'' and describing the location where he dumped the body.

''I did, um, what's this, number five or six, I forget, but she's out there,'' Hill said. In a second call, he asked why it was taking so long for officers to reach the scene. ''Y'all better catch me before I kill again,'' he said.

Hill was linked to the victim by DNA testing and charged in November 2003. At the time, he was in prison for robbery, attempted robbery and assault with a deadly weapon, and had been set to be released in three months.

    Calif. Freeway Killings Trial Begins, NYT, 24.10.2006, http://www.nytimes.com/aponline/us/AP-Freeway-Slayer.html

Killer of Va. family sentenced to death

Posted 10/23/2006 10:58 AM ET
AP
USA Today

RICHMOND, Va. (AP) — A judge sentenced the convicted killer of a Richmond family to death Monday for his role in a bloody crime spree that left four other people dead.

Circuit Judge Beverly Snukals followed the jury's recommendation in imposing the ultimate punishment on Ricky Jovan Gray for the random New Year's Day slayings of musician Bryan Harvey, 49, his wife and two young daughters.

The four were found in the basement of their burning home. Authorities said they had been bound, beaten with a hammer, stabbed and their throats had been cut.

"I cannot pretend to understand the loss of your loved ones ... I sincerely apologize," Gray said in court as Harvey family members blinked back tears. "I beg you to forgive me."

Gray, 29, was convicted of capital murder in August. Snukals sentenced him to death for the murders of the two children, Stella, 9, and Ruby, 4, and gave him life sentences for the slayings of Bryan Harvey and the family as a whole.

Gray and his nephew, Ray Joseph Dandridge, both of Arlington, killed the Harveys as part of a violent rampage that included the slaying of a second Richmond family less than one week later, authorities said.

Dandridge, also 29, pleaded guilty last month to three counts of capital murder for the Jan. 6 killings of Percyell Tucker, 55, his wife, Mary Baskerville-Tucker, 47, and her daughter, Ashley Baskerville, 21. The men said Ashley Baskerville was an accomplice in the Harvey slayings.

Gray confessed to the Nov. 5 killing of his 35-year-old wife, Treva Terrell Gray, in Washington, Pa., about 20 miles south of Pittsburgh. In his confession, Gray said he beat his wife to death in their bed with a pipe while Dandridge held her down. The two also are persons of interest in another killing on Dec. 18 in Culpeper.

Bryan Harvey was a guitarist and singer for the rock duo House of Freaks, which released five albums between 1987 and 1995. His wife, Kathryn Harvey, co-owned a quirky toy and novelty store called World of Mirth and was the half-sister of actor Steven Culp, who played Rex Van De Kamp on "Desperate Housewives."

    Killer of Va. family sentenced to death, UT, 23.10.2006, http://www.usatoday.com/news/nation/2006-10-23-richmond-slayings_x.htm

Parents plead not guilty to kidnapping pregnant daughter

Updated 10/23/2006 11:50 AM ET
AP
USA Today

PORTLAND, Maine (AP) — The parents of a pregnant 19-year-old pleaded not guilty Monday to kidnapping, assault and terrorizing in what prosecutors say was an attempt to force her to have an abortion.

Nicholas and Lola Kampf are accused of tying up their daughter Katelyn, forcing her into their car and heading to New York for an abortion.

They were arrested Sept. 15 at a shopping center in Salem, N.H., after Katelyn fled and called police on a cellphone.

The Kampfs could face up to 30 years in prison if convicted of kidnapping. They have been free on $100,000 bail each since being charged in Cumberland County Superior Court.

The defense contends that there was no kidnapping and that the case is far different that the way it has been portrayed.

Thomas Hallett, the parents' lawyer, said the parents learned the day before their arrest that their daughter was pregnant. They had packed their car for a trip to Florida, but their plans changed because of the pregnancy, he said.

What the family needs is therapy, not a criminal prosecution, he said.

District Attorney Stephanie Anderson said it's unrealistic for the Kampfs to believe the criminal charges will be dropped.

    Parents plead not guilty to kidnapping pregnant daughter, UT, 23.10.2006, http://www.usatoday.com/news/nation/2006-10-23-parents-kidnapping_x.htm

Elderly man convicted of manslaughter

Updated 10/21/2006 12:07 AM ET
AP
USA Today

LOS ANGELES (AP) — An old man whose car hurtled through a farmers market, killing 10 people and injuring more than 70, was convicted Friday of vehicular manslaughter with gross negligence — the harshest verdict possible.

George Russell Weller, 89 and in poor health, could spend the rest of his life in prison for the 2003 crash, which set off a national debate over whether elderly people should be barred from driving or required to pass additional tests when renewing their licenses.

He faces a maximum of 18 years in prison, but the judge also could sentence him to probation. Prosecutors declined to say what penalty they would request.

Weller was not in court to hear the verdict, reached by a jury after eight days of deliberation.

His attorneys argued that he mistakenly stepped on the gas pedal instead of the brake and panicked when the vehicle raced into the open-air market. But prosecutors said he was careless to the point of criminal negligence and lacked remorse.

"He looked at what he had done, essentially shrugged his shoulders and said, 'Oops,"' prosecutor Ann Ambrose told the jury.

Weller was 86 when his 1992 Buick Le Sabre traveled about 300 yards, reaching 60 mph or more as it crashed into food stalls. It finally came to a stop after hitting a ditch, with one victim's body tangled underneath and another's draped across the hood. The victims ranged in age from 7 months to 78 years.

Weller did not testify, but jurors heard a taped interview with police immediately after the crash in which he said he tried everything he could think of to stop the car.

"I tried to take the control knob and jam it into park. Everything. Anything that I thought would stop the action of the car," he said.

Prosecutors also called one witness who claimed Weller said: "You saw me coming; why didn't you get out of my way?"

Juror Yolanda Hernandez, 54, of Montebello, said after the verdict that the jury was influenced by that testimony and by Weller's statement to police, which the panel did not believe showed remorse.

She also indicated jurors didn't buy the argument that Weller couldn't figure out how to stop his car.

"He had 240 feet before he came to the barricade for the farmer's market. That's a long way, and he went 1,000 feet before he stopped," she said. "He still had plenty of time to react."

Hernandez said jurors agreed from the first day of deliberations that Weller was guilty of vehicular manslaughter but had trouble deciding whether he had committed gross negligence, a felony, or misdemeanor simple negligence.

Asked Wednesday by the panel to provide the legal definition of gross negligence, Superior Court Judge Michael Johnson wrote that it meant "more than ordinary carelessness, inattention or mistake in judgment."

Ambrose said Weller's age wasn't key to the prosecution's case.

"It has been our position from the beginning that no matter if you're 16 or 86, if you make the decision to get behind the wheel of a car, you have a duty of care," she said.

A survivor who is suing over injuries he suffered in the crash said he didn't want Weller locked up.

"There's nothing pleasing about this whole event," said Mark Miller, adding he had empathy for Weller as well as his fellow victims.

At Weller's Santa Monica home Friday, the blinds were drawn and nobody answered the door. A neighbor, Fran Peskoff, said she was stunned by the verdict, adding there was "no way" Weller could have run over people on purpose.

Since the accident, Peskoff said, Weller has become a recluse.

"He's not the warm, friendly man he used to be before the accident. He's been through an emotional upheaval," she said.

Weller was allowed to remain free on his own recognizance until sentencing; a date for that hearing was to be set late next week. Meanwhile, he is prohibited from driving.

    Elderly man convicted of manslaughter, UT, 21.10.2006, http://www.usatoday.com/news/nation/2006-10-20-manslaughter_x.htm

Ex-Stock Exchange Chief Told to Return Millions

October 20, 2006
The New York Times
By LANDON THOMAS Jr.

A New York judge ruled yesterday that Richard A. Grasso, a former chairman of the New York Stock Exchange, would have to return as much as $100 million he received as part of a fiercely contested $139.5 million payout.

The judge, Justice Charles E. Ramos of State Supreme Court in Manhattan, said that Mr. Grasso did not disclose to his fellow directors on the board of the exchange the extent to which his soaring compensation had caused his pension and savings to balloon in size and that he violated his contract by withdrawing $87 million before his retirement. Interest and money from a separate retirement account would raise the total.

The ruling was not the judge’s final word on the dispute — he did not directly address the central claim in the lawsuit brought by Eliot Spitzer, the New York attorney general, that Mr. Grasso’s compensation was unreasonable under the state’s not-for-profit law. But the ruling bolstered Mr. Spitzer’s main argument in support of that claim — that the exchange directors were not fully informed about Mr. Grasso’s compensation.

Whether his pay was reasonable or not is to be decided at a subsequent trial — one that would likely focus on the $80 million he was paid between 1999 and 2001.

Mr. Grasso said yesterday that he would appeal, which would further delay a nonjury trial that had been scheduled to start last month.

In September 2003, Mr. Grasso was forced to resign as chairman of the New York Stock Exchange, the world’s largest stock market, amid an outcry over the disclosure of his $139.5 million compensation package, all of it tied to accrued pension and retirement savings. John S. Reed, Mr. Grasso’s temporary successor, commissioned an inquiry into Mr. Grasso’s pay. That report was passed on to Mr. Spitzer, who sued in 2004. Since then the two sides have been embroiled in a drawn-out series of legal skirmishes.

The ruling is a major legal setback for Mr. Grasso, who for the last three years has battled to make the case that the exchange’s board was well aware of all aspects of his pay and approved the package accordingly.

Justice Ramos also ruled yesterday against Mr. Grasso’s claim that he was terminated and thus due an additional $95 million in severance pay. And the judge dismissed a countersuit for disparagement that Mr. Grasso had filed against his temporary successor, Mr. Reed.

In his ruling, the judge was responding to several legal motions filed by Mr. Spitzer, claiming that Mr. Grasso violated his contract by withdrawing pension savings before his retirement and failed in his duty as chairman of the board by not keeping his fellow directors informed of his escalating pension.

Mr. Grasso said in a statement: “Today’s ruling is riddled with errors. One month ago, the Appellate Division told Justice Ramos not to try this case himself until the Appellate Division had decided important legal questions before them. Today, Justice Ramos somehow rejected the testimony of dozens of directors that they approved every dime they paid me, and decided that these men and women did not know what they were doing.”

Mr. Grasso said that he had instructed his lawyers to appeal and that he looked “forward to the jury trial that the state constitution promised me.”

For Mr. Spitzer, who leads his Republican opponent in the race for New York governor by a wide margin, the ruling is a welcome riposte to the criticisms he has faced that in place of winning in the courtroom he has bullied companies and executives into reaching settlements.

“I have maintained since the beginning that the principles at stake in this issue were clear and the facts were egregious,” Mr. Spitzer said in an interview yesterday. “At every turn the government perspective has been vindicated. The defendants have done nothing more than scream louder and louder and their arguments are vacuous and wrong.”

In his ruling, Justice Ramos said he wanted to reach a payment solution within the next 30 days.

In the unlikely event that Mr. Grasso follows the court judgment and writes a $100 million check, Mr. Spitzer would be expected to drop the case, as he could claim that he had received the amount he had originally asked Mr. Grasso to return. Mr. Grasso would still be a wealthy man, getting to keep tens of millions of dollars in compensation from his more than three decades at the exchange.

While having to return a significant portion of his pay package carries its own financial punishment, it is the judge’s sweeping rejection of Mr. Grasso’s long-held contention that the exchange board had been aware of his growing pay that represents a more resonant defeat.

Justice Ramos said it was “shocking” that the board could have been “unaware of a liability of over $100 million,” and he said that Mr. Grasso violated his fiduciary duty as a director to keep his board fully apprised of how quickly his pension benefits were accumulating. “Mr. Grasso’s duty is to be fully informed and to see to it that the board was fully informed,” he wrote. “He failed in this duty.”

Between 1999 and 2002, as Mr. Grasso’s annual pay soared to a high of $31 million, his pension plan, a supplemental executive retirement plan, or SERP, grew at an even faster clip, topping out at over $80 million in 2003, when Mr. Grasso made the decision to withdraw his funds.

That decision, which according to the depositions of several directors he made because he was fearful that another board would prevent such a withdrawal, set in motion the events that would lead to the public controversy over his pay and his eventual resignation. In the subsequent years, all the participants have been deposed over the matter, with many directors on the wider board claiming that they had no idea how fast Mr. Grasso’s SERP had grown.

In his decision, Justice Ramos draws the crucial conclusion that Mr. Grasso did not inform members of his board about his escalating SERP. “Mr. Grasso’s failure to disclose the amount of his SERP thwarted the compensation committee from performing its duty,” he wrote. “Year after year, it made decisions to pay him without knowing his true compensation.”

At the crux of the judge’s ruling is his decision that Mr. Grasso must return the $87 million in pension savings that he withdrew from the exchange before he retired. And it also supports a similar argument made by directors like Henry M. Paulson Jr., the former Goldman Sachs chief and current Treasury secretary who led the campaign for Mr. Grasso’s ouster. In his decision, the judge said that the pension withdrawals that he made in 1995 and 1999, totaling $35 million, were unlawful transfers and should be recognized as loans.

Lawyers from Mr. Spitzer’s office calculate that Mr. Grasso would owe interest of about $15 million on that sum. Mr. Grasso will also be required to return money from a separate retirement account that is not yet vested.

That brings the total to close to $100 million, representing a significant portion of the $185 million he was paid as head of the stock exchange from 1995 to 2003.

Gretchen Morgenson contributed reporting.

    Ex-Stock Exchange Chief Told to Return Millions, NYT, 20.10.2006, http://www.nytimes.com/2006/10/20/business/20nyse.html

Probe of body parts sales nets guilty pleas

Updated 10/19/2006 2:50 AM ET
AP
USA Today

NEW YORK (AP) — The investigation of a scheme to plunder corpses for transplantable body parts has been broadened as prosecutors secured plea deals with seven funeral home directors who have agreed to cooperate.

The unidentified directors secretly pleaded guilty to unspecified charges in the probe of what investigators say was a plot to harvest bone and tissue and sell it to biomedical supply companies, Brooklyn District Attorney Charles Hynes said Wednesday.

The seven entered pleas in closed courtrooms; their names were withheld. Defense attorneys said that one of those cooperating was the director of a funeral home that took parts from the body of Masterpiece Theatre host Alistair Cooke, who died in 2004.

In a series of articles in April, USA TODAY reported that trafficking in body parts illegally harvested from the dead is a lucrative, underground business driven by growing demand for human bones and tissue.

Hynes also announced that a grand jury had voted to bring additional charges in the case. A new indictment adds allegations involving 14 looted bodies at funeral homes in Manhattan, the Bronx and Rochester, N.Y.

Prosecutors said more arrests were possible.

"It is clear that many more funeral home directors were involved in this enterprise," Hynes said at a news conference.

The four original defendants in the case pleaded not guilty on Wednesday to enterprise corruption, body stealing and other charges in the new indictment. If convicted, they face up to 25 years in prison. All remain free on bail.

Prosecutors allege Michael Mastromarino, a former oral surgeon, and three other men secretly removed skin, bone and other parts from up to 1,000 bodies from funeral homes, without the permission of families. He allegedly made millions of dollars by selling the stolen tissue to biomedical companies that supply material for common procedures, including dental implants and hip replacements.

Prosecutors said they had unearthed evidence that death certificates and other paperwork were falsified. In Cooke's case, his age was recorded as 85 rather than 95 and the cause of death was listed as heart attack instead of lung cancer that had spread to his bones.

Mastromarino, owner of Biomedical Tissue Services of Fort Lee, N.J., has denied any wrongdoing, claiming funeral parlor directors were responsible for getting consent for body-part donations.

At the news conference, Elizabeth Johnson of Newton, Mass., described her shock when investigators informed her that they believe her 67-year-old cousin's body was secretly carved up for parts in 2003 at a Brooklyn funeral home.

"We thought we had given him a nice ending," she said.

Forged paperwork reduced her cousin's age, omitted any mention of his various ailments and fabricated details about his life.

"They gave him a wife, and he had never been married," she said.

    Probe of body parts sales nets guilty pleas, UT, 19.10.2006, http://www.usatoday.com/money/2006-10-19-body-parts_x.htm

Man Is Convicted of Two Counts of Murder in L.I. Drunken Driving Case

October 18, 2006
The New York Times
By PAUL VITELLO

MINEOLA, N.Y., Oct. 17 — A man who crashed into a wedding limousine last year, killing the driver and a 7-year-old girl while driving drunk in the wrong direction on a Long Island parkway, was convicted on Tuesday of two counts of murder.

The verdict against Martin R. Heidgen, 25, of Valley Stream, which came on the fifth day of deliberation after jurors twice said they were deadlocked, is one of only a few murder convictions won in fatal drunken-driving cases anywhere.

And it was the first in Nassau County, where the high incidence of drunken driving has become a public policy issue that figured heavily in the 2005 election campaign for the office of district attorney.

“We would hope that this verdict sends a message that if you drink and drive and kill someone, you will be prosecuted for murder,” said the district attorney, Kathleen M. Rice, who won that election, at least in part by criticizing her predecessor, Denis Dillon, for purportedly timid use of murder charges in fatal drunken-driving cases.

The family of Katie Flynn, the 7-year-old girl who was killed, had forcefully encouraged the district attorney’s decision to bring a murder charge, and attended every day of the five week trial with a group of rarely less than 50 supporters.

“Murder was the only acceptable verdict,” said Katie’s father, Neil Flynn, of Long Beach, after the jury’s decision, which was rendered while several jurors wept and others held their heads in their hands. “This man murdered my daughter, and we’re glad he’s moving on to prison, where I hope it’s as bad as I’ve heard it is.”

Katie Flynn and her family were returning from a wedding at 2 a.m. on July 2, 2005, when Mr. Heidgen’s pickup truck, traveling north in the southbound lanes of the Meadowbrook Parkway, plowed into their hired limousine. The limousine chauffeur driver, Stanley Rabinowitz, 59, of Farmingdale, was also killed. Katie’s parents, a sister and her grandparents were injured.

From a hospital where she was recovering from her injuries, Katie’s mother, Jennifer Flynn, told reporters several days after the crash that she had held her daughter’s decapitated head in her lap at the scene and had to be physically separated from it by emergency workers.

Mr. Heidgen, an Arkansas native who moved to Long Island in 2004 after his mother married a man from there, had attended a party and was returning home to Valley Stream on unfamiliar roads when he somehow entered the parkway going the wrong way. Prosecutors presented evidence during his trial that he was depressed about a breakup with an Arkansas girlfriend, and had told state police investigators investigating the crash that he had drunk heavily that night in a state they said he described as “destruct-destruct mode.”

Mr. Heidgen’s lawyer, Stephen LaMagna of Garden City, said Mr. Heidgen’s family was “devastated and disappointed” by the verdict. The defendant’s parents and several relatives also attended each day of the trial. Mr. LaMagna said that Mr. Heidgen “has always expressed remorse for what happened,” and promised to appeal the verdict, adding, “when the appeals court reviews the record, I hope they will see it for what it is.” He would not elaborate.

The murder charge brought against Mr. Heidgen, murder in the second degree by depraved indifference, carries the same penalties as intentional murder — a minimum of 15 years and a maximum of 25 years to life — and has been the subject of several appellate court decisions in the last two years. Though the case law is still evolving, the drift of the appellate rulings has been toward increasing the burden of proof for a sustainable conviction.

Whereas “depraved indifference” was previously considered a self-evident set of circumstances, it is now understood as a state of mind that must be established with evidence. In his instructions to the jury in this case, Acting Justice Alan R. Honorof of State Supreme Court described that state of mind as one in which a person “engages in conduct which creates a grave and unjustifiable risk that another person’s death will occur, and when he or she is aware of and consciously disregards that risk.” He said the depraved indifference state of mind “reflects a wicked, evil or inhuman state of mind.”

Jurors who were interviewed said they saw depraved indifference in Mr. Heidgen’s behavior not only because he was very drunk — three times the legal limit — and not only because he was driving the wrong way, but because he passed six cars over a distance of almost three miles before he crashed into the Flynns’ limousine.

“We didn’t think he was trying to avoid the accident,” said the juror Michael Derita, 39, a graphics designer from Levittown. “He didn’t try to get out of the way.”

A majority of the jurors favored a verdict of murder from the beginning. Four held out for a lesser charge of manslaughter, Mr. Derita said. At one point during the five days of deliberations, with only two jurors favoring the lesser charge, one of them withdrew from the discussion altogether and “went to sleep for a couple of hours.”

The jury filed into a hushed courtroom in the ninth hour of their fifth day of deliberations, at 5:10 p.m. Tuesday.

After the jury forewoman uttered the word “guilty” to the first of the two murder charges, the 50 or 60 friends and relatives of the Flynns, and several of Mr. Rabinowitz’s relatives, exploded with a keening cheer that they almost immediately choked back, falling silent to hear the verdicts on the remaining charges.

Mr. Heidgen was also found guilty of drunken driving and aggravated assault in connection with the other family members’ injuries.

Mr. Heidgen, an insurance salesman in Manhattan, stood motionless. His mother, Margot Aponte, of Valley Stream, made no audible sound from her seat in the first row of the courtroom as the verdicts were read. As he was led away in handcuffs, Mr. Heidgen turned toward her and winked once before passing through the courtroom exit. He was scheduled to be sentenced next month.

Bruce Lambert contributed reporting.

    Man Is Convicted of Two Counts of Murder in L.I. Drunken Driving Case, NYT, 18.10.2006, http://www.nytimes.com/2006/10/18/nyregion/18dwi.html

Criminal Records Erased by Courts Live to Tell Tales

October 17, 2006
The New York Times
By ADAM LIPTAK

In 41 states, people accused or convicted of crimes have the legal right to rewrite history. They can have their criminal records expunged, and in theory that means that all traces of their encounters with the justice system will disappear.

But enormous commercial databases are fast undoing the societal bargain of expungement, one that used to give people who had committed minor crimes a clean slate and a fresh start.

Most states seal at least some records of juvenile offenses. Many states also allow adults arrested for or convicted of minor crimes like possessing marijuana, shoplifting or disorderly conduct to ask a judge, sometimes after a certain amount of time has passed without further trouble, to expunge their records. If the judge agrees, the records are destroyed or sealed.

But real expungement is becoming significantly harder to accomplish in the electronic age. Records once held only in paper form by law enforcement agencies, courts and corrections departments are now routinely digitized and sold in bulk to the private sector. Some commercial databases now contain more than 100 million criminal records. They are updated only fitfully, and expunged records now often turn up in criminal background checks ordered by employers and landlords.

Thomas A. Wilder, the district clerk for Tarrant County in Fort Worth, said he had received harsh criticism for refusing, on principle, to sell criminal history records in bulk.

“How the hell do I expunge anything,” Mr. Wilder asked, “if I sell tapes and disks all over the country?”

Private database companies say they are diligent in updating their records to reflect the later expungement of criminal records. But lawyers, judges and experts in criminal justice say it is common for people to lose jobs and housing over information in databases that courts have ordered expunged.

These critics say that even the biggest vendors do not always update their records promptly and thoroughly and that many smaller ones use outdated, incomplete and sometimes inaccurate data.

Lida Rodriguez-Taseff, a lawyer in Miami, tells her clients that expungement is a waste of time. “To tell someone their record is gone is essentially to lie to them,” Ms. Rodriguez-Taseff said. “In an electronic age, people should understand that once they have been convicted or arrested that will never go away.”

Judge Stanford Blake, whose court often enters expungement orders, said his inability to make them effective had left him feeling frustrated and helpless.

“It’s a horrible situation,” said Judge Blake, the administrative judge of the criminal division of the Eleventh Circuit Court in Miami. “It’s the ultimate Big Brother, always watching you.”

The rise in the availability of criminal histories has been accompanied by a surge in demand for them. Since the attacks of Sept. 11, 2001, criminal background checks have become routine in many employment applications.

“Something like 80 percent of large- or medium-sized employers now do background checks,” said Debbie A. Mukamal, the director of the Prisoner Reentry Institute at John Jay College of Criminal Justice in New York. “Employers need to know about job-related convictions to make a nuanced, responsible decision so that they can protect themselves and the public and give people a fair shot at employment.”

But the current system, Ms. Mukamal added, is not working. “It’s unfettered,” she said. “It’s not regulated. There’s misinformation.”

ChoicePoint, one of the larger database companies, performed nine million background checks last year, said Matt Furman, a spokesman. The company’s error rate is very small, Mr. Furman said. “One out of every thousand background checks has led to a consumer contact” disputing or complaining about the information provided, he said, “and one of a thousand contacts results in a change.”

There have been only a few lawsuits taking issue with the information provided to employers in background checks.

In one, filed in June in federal court in Brooklyn, Victor Guevares sued a company that had offered him a job and a database company that he says caused the offer to be withdrawn.

Mr. Guevares, now 33, was convicted of disorderly conduct more than a decade ago. New York considers that a violation like a traffic infraction rather than a crime and bars database companies from reporting such offenses to employers.

But Acxiom, a database company, reported the disorderly conduct charges to the Tyco Healthcare Group, which had offered Mr. Guevares a job in 2004. Tyco promptly withdrew the offer, one that would have doubled Mr. Guevares’s salary, to $46,000. It based its decision, his lawsuit says, on its mistaken understanding that he had committed a misdemeanor and had lied on his application about whether he had ever been “convicted of any crime which was not expunged or sealed by a court.”

Mr. Guevares, a gregarious man with a shaved head and big brown eyes, said that losing the job, which would have propelled his family into the middle class, devastated him. “I’ve never been arrested,” he said. “I’ve never been locked up. I’ve never done jail time.”

In court papers, both companies denied wrongdoing, and Tyco has sued Acxiom for breach of contract.

Catherine H. O’Neill, a lawyer with the Legal Action Center, which represents Mr. Guevares, said Acxiom deserved much of the blame.

“They should not have been vacuuming up this information in the first place,” Ms. O’Neill said.

A lawyer for Acxiom and a spokesman for Tyco declined to comment.

There is often plenty of fault to go around. Even within the government, various agencies often fail to coordinate their records.

“The problem often arises,” said Ms. Rodriguez-Taseff, the Miami lawyer, “because so many agencies have access to criminal records — the department of corrections, the police, the Florida Department of Law Enforcement and the courts. Even though you have an expunged record, oftentimes a policing agency or a corrections facility allows private entities to gain access to it.”

Some state laws place the burden on employers, on the apparent theory that the problem is not the availability of information but the use to which it is put. Illinois, for instance, prohibits prospective employers from asking about or making decisions based on expunged or sealed criminal histories.

A Minnesota man who agreed to talk about his experiences in exchange for anonymity said an expunged 1992 felony conviction — he declined to say for what — and erroneous information about a crime he did not commit have kept him from obtaining work for six months.

He said the database companies he contacted had been responsive if not especially fast in clearing up the problem. Some told him they updated their records annually. “I don’t think the consumer reporting agencies mean to be” reporting inaccurate or sealed information, he said. “They just need to get new CD’s.”

In November 2005, a Florida woman obtained a court order expunging records concerning her arrest in a domestic dispute the previous spring. The judge ordered the state and local police, the county sheriff and the court clerk to “expunge all information concerning indicia of arrest or criminal history.”

But when the woman tried to buy a condominium this summer, the arrest nonetheless popped up in a routine background check. The deal fell through.

“It’s going to haunt her for the rest of her life,” said a relative of the woman, who shared court and Internet search records in exchange for a promise not to identify her or her family. “They’re using public records at a given point in time and they’re not updating them, and they’re ruining people’s lives.”

Margaret Colgate Love, the nation’s pardon attorney for most of the 1990’s and the author of a new book called “Relief from the Collateral Consequences of a Criminal Conviction,” said problems like these were rooted in the nature of expungement.

“It does reveal,” Ms. Love said, “how perilous it is to build a public policy on a lie.”

    Criminal Records Erased by Courts Live to Tell Tales, NYT, 17.10.2006, http://www.nytimes.com/2006/10/17/us/17expunge.html?hp&ex=1161144000&en=b41c734d19a150a1&ei=5094&partner=homepage

In Sex Arrests Hailed by Pirro, Little Jail Time

October 13, 2006
The New York Times
By SERGE F. KOVALESKI

In press releases she issued over six years, Jeanine F. Pirro, the Westchester County district attorney, trumpeted the arrests made in Internet sex stings that her office ran.

By the time she left office at the end of 2005, that undercover pedophile operation had snared 111 men, including a Roman Catholic priest, a private-school headmaster, a New York City detective and a former Brooklyn prosecutor.

Now, as the Republican candidate for attorney general, Ms. Pirro has made her pursuit of these sex predators a central theme. Her campaign Web site says that the sting operation, which she started in the summer of 1999, led to the arrests of “over 100 pedophiles — with a 100 percent conviction rate.”

While Ms. Pirro’s press releases repeatedly pointed out that the crimes were felonies punishable by up to four years in state prison for each count, a review of the cases shows that the overwhelming majority of people received sentences that let them avoid extensive jail time.

In most nearby counties, prosecutors have had a higher rate of felony convictions in similar cases, because Ms. Pirro allowed nearly one in five defendants to plead down from felonies to misdemeanors, according to prosecutors’ statistics.

Only eight of the men prosecuted by Ms. Pirro were given outright prison sentences by judges, according to records from the district attorney’s office. The rest, 93 percent, received some form of probation. “In many cases, we asked for jail time and didn’t get it,” Ms. Pirro said.

According to Lucian Chalfen, a spokesman for the current Westchester district attorney, Janet DiFiore, who has continued the sting program, 54 people indicted in the operation under Ms. Pirro received only probation, generally of five years. Mr. Chalfen said 46 others received so-called shock probation, which called for weekends behind bars.

Two cases went to trial. Both defendants were convicted, but one conviction was overturned on appeal, and the other will be appealed on similar grounds.

Ms. Pirro said that she wanted more prison sentences for those who were arrested in the stings, in which investigators posed as teenagers in chat rooms and in e-mail exchanges. It was generally the judges handling the cases who decided to give the defendants probation instead, she said.

Asked about the felony charges that were dropped to misdemeanors by her office, Ms. Pirro said that the plea offers were decided “on a case-by-case basis.”

Other district attorneys’ offices in counties of comparable size, like Nassau, as well as in larger ones, like Manhattan and Brooklyn, that have prosecuted Internet sex crimes involving the same statute that Ms. Pirro’s office used — attempting to disseminate indecent material to a minor — seem more resistant to bargaining with defendants.

The Nassau County district attorney, Kathleen Rice, said that of the 40 individuals charged by her office since 2001 for trying to sexually entice minors over the Internet, 34 pleaded guilty to the initial felony charge and only one pleaded to a lesser count, harassment. Of the others, one was found guilty, one died and three cases are pending.

“When we have someone arrested on the top count, my general position is, absolutely no pleas,” Ms. Rice said.

Of the 49 people indicted on the felony charge of attempting to disseminate indecent material to a minor in Manhattan between July 1999 and the end of 2005, all but three were convicted on that charge, said Barbara Thompson, a spokeswoman for the Manhattan district attorney, Robert M. Morgenthau.

And Jonah Bruno, a spokesman for Charles J. Hynes, the Brooklyn district attorney, said that his office had used the same statute to indict eight people since the spring of last year, when prosecutors started up a cybersex crimes unit.

Two of the defendants pleaded guilty to the top charges and were required to register as sex offenders, Mr. Bruno said, adding that they received probation. The remaining six cases are still pending, he said.

As for the convictions that resulted in probation under Ms. Pirro, one defendant, who was arrested in a sting in February 2003, and was sentenced to four weekends in jail and five years’ probation, was caught again in December 2004 after engaging in sexually explicit online conversations with an investigator posing as a 14-year-old boy. As a result of the second offense, that man, Spencer Davis, a former sixth-grade science teacher and a wrestling coach, was sentenced to up to three years in prison, according to the district attorney’s office.

Ms. Pirro’s perfect conviction record was broken on July 25 by an appeals court that overturned the conviction in one of the two sting cases that went to trial. In a one-paragraph ruling on the 100th case of the Westchester sting operation, the Appellate Division of State Supreme Court reversed the 2005 conviction of Jeffrey Kozlow, a Manhattan real estate lawyer, because Ms. Pirro’s office had failed to show that his Internet communications with an undercover police officer “depicted sexual conduct,” since they did not contain visual “sexual images.”

The defendant in the other case that went to trial, Paul Wicht, a former earth science teacher at Bronxville High School, intends to appeal his conviction of three counts of attempting to disseminate indecent material to a minor. The appeal is based on the decision in the Kozlow case, his lawyer, Scott L. Fenstermaker, said.

Because 105 people charged during the course of the stings while Ms. Pirro was in office pleaded guilty — either to felonies or misdemeanors — they waived their right to appeal. Four other cases are pending, according to the Westchester prosecutor’s office.

During the first three years of Ms. Pirro’s cyberspace sex operation, people convicted of attempting to disseminate indecent material to a minor — the main charge brought — did not have to register on a sex offender list because state law did not require people convicted of such crimes to do so.

That changed in March 2002, when that felony was added to the list of sex offenses requiring registration. Anyone who had been convicted of that crime and was on probation — generally five years under Ms. Pirro’s stings — or serving a jail sentence at the time of the change had to register.

In a telephone interview, Ms. Pirro expressed alarm at the Kozlow decision. She called it “outrageous and frightening,” adding that it added new urgency to the need to protect children from “these deviants” on the Internet.

Ms. Pirro, who has expressed concern about recidivism among pedophiles, said the judges in the sting cases brought by her office were perhaps reluctant to be tougher because most of the men charged in the operation did not have criminal records. “I cannot be prosecutor and judge at the same time. It is the provenance of judges to make the sentences,” she said.

Defense lawyers said that in cases like the ones Ms. Pirro brought, it was easier to get defendants who did not have criminal records to plead guilty, in part because they wanted to avoid the publicity of a trial. And the pleas to misdemeanor charges kept Ms. Pirro’s conviction rate high.

Bennett L. Gershman, a professor of law at Pace University in Westchester and a former Manhattan assistant district attorney, who is a frequent critic of Ms. Pirro’s tactics, said that the lack of prison sentences in her sting cases also reflected the evidence developed in the operation.

“The responses by judges show that they think these cases are not strong enough, that the defendants are not culpable to the extent that they should receive prison terms,” Mr. Gershman said. “It seems that the court is looking at these cases more as social nuisances than serious criminal acts.”

Among those arrested in Ms. Pirro’s sting operation, conducted by her office’s high-technology crimes bureau, were teachers, lawyers, a lighting technician for a rock band, an actuary, an auto mechanic, a postal worker, a medical student, a fitness trainer and a mathematician.

“People thought predators were guys in movie theaters or in parks wearing raincoats,” Ms. Pirro said. “We showed they are from every economic strata and professional field.”

The vast majority of the cases in Ms. Pirro’s undercover sting operation involved men exchanging written electronic communications with investigators whom they thought were teenage children, but in some instances the offenders also sent explicit sexual images over the Internet or were found to have pornography on their computers.

For the most part, the arrests in the stings were made when the individuals arrived at prearranged locations thinking that they were going to meet the boys or girls they believed they had been communicating with over the Internet.

In a number of cases, these men had condoms and petroleum jelly with them, and, in some instances, showed up with props like handcuffs and rope. Sometimes, the adults even brought stuffed animals to give to the youngsters.

Ernie Allen, president of the National Center for Missing and Exploited Children, lauded Ms. Pirro for pursuing Internet pedophiles and contended that her job had been made harder because state courts tended to impose more lenient sentences in such cases than federal courts do. “I think what she has done is exactly the kind of aggressive prosecution effort that we need for this problem,” Mr. Allen said. “And if you can’t get prison time, you are still creating a record, identifying an offender and providing a conviction, so that next time the sentence will be more substantial.”

One former federal prosecutor, William I. Aronwald, a White Plains criminal defense lawyer who represented two men who were arrested in the stings, praised Ms. Pirro for being one of the first district attorneys in the state to pursue those kinds of sex cases “full bore.”

But he said that she tried to manipulate and overstate the significance of the operation for political gain.

“By constantly harping on the sex sting cases, I think that she was pandering to the bedroom community, hoping people would say that she was a crusader who took all these offenders off the streets,” Mr. Aronwald said.

Ms. Pirro dismissed criticism from Mr. Aronwald and others that she had ignored more-important areas of law enforcement.

“We prosecuted and convicted about 100 made members and associates of organized crime for murder, loan-sharking, assault, organized criminal enterprises and gambling,” she said. “We prosecuted and convicted more than 200 corrupt officials.”

    In Sex Arrests Hailed by Pirro, Little Jail Time, NYT, 13.10.2006, http://www.nytimes.com/2006/10/13/nyregion/13pirro.html?hp&ex=1160798400&en=b87bd4590216ed03&ei=5094&partner=homepage

First-Degree Murder for Actress’s Killer

October 13, 2006
The New York Times
By ANEMONA HARTOCOLLIS

The leader of a band of youthful muggers was convicted yesterday of murdering an actress and playwright after she challenged him during a robbery on the Lower East Side last year.

Rudy Fleming, now 21, was convicted of fatally shooting Nicole duFresne, 28, after she resisted the robbery by defiantly shouting, “What are you going to do, shoot us?”

As the jury in State Supreme Court in Manhattan declared Mr. Fleming guilty on all nine counts against him, including first-degree murder, robbery and criminal possession of a weapon, Ms. duFresne’s mother gasped, and her father covered his face with a handkerchief and cried.

They declined to speak to reporters afterward, but asked the prosecutor, Robert Hettleman, to distribute a written statement in which they defended their daughter’s actions on the night she died.

They noted that she stood up to Mr. Fleming only after he pistol-whipped her fiancé and yanked away her best friend’s purse.

“She confronted the man with the gun, pleading for the confrontation to end,” the statement, signed by Ms. duFresne’s mother, father and brother, said.

“The response to her request was a bullet to her heart. If a man had acted in the same manner, he may have been proclaimed a hero. Nicole died that night defending those she loved. She is our hero.”

The family conceded that they wished she had acted differently, because she might still be alive. “But,” they said, “she was true to who she was — a brave woman in every aspect of life, sometimes afraid but always brave.”

By finding Mr. Fleming guilty of first-degree murder, the jury categorically rejected the defense contention that his .357 Magnum discharged accidentally, perhaps as he slipped in mounds of plowed snow when Ms. duFresne confronted him. His lawyer, Anthony Ricco, provided no corroboration, either through testimony or physical evidence, for this theory. Mr. Fleming faces a minimum of 20 years to life in prison and a maximum of life without parole.

The jurors declined to comment after the verdict, heeding the advice of the trial judge, Justice Daniel P. Fitzgerald, who cautioned them against speaking to reporters, implying that talking about their deliberations could lead to an overturning of the verdict.

The jury never saw Mr. Fleming, who chose not to attend his own trial. His lawyers said provisions had been made for him to monitor the proceedings in another room. In pretrial hearings, Mr. Fleming tried in vain to convince the judge that he was hallucinating about giant marshmallows and was mentally incompetent.

The physical evidence against him was substantial. The police recovered the murder weapon, a wood-handled .357 Magnum with one bullet missing and five still in the chambers, hidden under a bed in the apartment where he had been staying. They also found the scarf and sweatpants he was wearing that night, which witnesses had described.

Videotapes taken by store security cameras showed him and six friends and accomplices walking in the vicinity of Rivington and Clinton Streets, where Ms. duFresne was shot, around the time of the murder.

Friends have described Ms. duFresne, who was from Wayzata, Minn., as a gutsy, ambitious woman who had shown strength and defiance in the face of adversity in the past. She turned her rape in a parking lot while she was at Emerson College in Boston into the inspiration for a play, “Burning Cage,” and a psychological thriller, “Matter.” She produced her play in Seattle before moving in 2002 to New York, where she was volunteering at LAByrinth Theater Company while bartending to pay her bills.

Ms. duFresne, her fiancé, Jeffrey Sparks, and two friends, Mary Jane Gibson and Scott Nath, were on the way home from a night of drinking and playing pinball at Max Fish, a nightclub on Ludlow Street, about 3 a.m. on Jan. 27, 2005, when they were confronted by a group of young people, with Mr. Fleming in the lead, according to testimony at the trial.

Mr. Fleming muttered a slurred demand for money, struck Mr. Sparks in the eye with a gun, leaving him momentarily dazed, then yanked away Ms. Gibson’s purse, throwing it to two accomplices, according to the testimony.

Enraged by the attacks, according to the testimony, Ms. duFresne turned on Mr. Fleming, shouting, “What are you going to do, shoot us?” and he reacted by shooting her once in the chest from a distance of less than an arm’s length.

Mr. Fleming had been convicted of possessing a semiautomatic handgun in 2002, and spent two years in prison, though the judge did not allow the jury to hear about that. He was on parole at the time of the murder.

Colin Moynihan contributed reporting.

    First-Degree Murder for Actress’s Killer, NYT, 13.10.2006, http://www.nytimes.com/2006/10/13/nyregion/13dufresne.html

Jurors Acquit Man Accused of Killing Transit Supervisors

October 12, 2006
The New York Times
By MICHAEL BRICK

An out-of-work train cleaner accused of executing two transit supervisors in a drunken rage walked out of court free yesterday, acquitted of all charges.

When the verdict was read, the man, Darryl Dinkins, 42, sat and held his lawyer’s hand, trembling and crying. He had been in jail since Feb. 28, 2004, the day after the transit supervisors were found shot dead inside a trailer parked behind the fence of a 75-acre railyard in Coney Island.

The police questioned Mr. Dinkins hours after the shooting. He had a history of trouble with the victims, Luigi Sedita, 61, and Clives Patterson, 46, who had caught him playing dominoes on the job, the police have said. He had been disciplined by Mr. Sedita, and months before the shootings, fired by New York City Transit.

Detectives testified that Mr. Dinkins gave them a confession but refused to sign it or repeat it before a video camera. After his arrest, the police have said, he tried to hang himself in his jail cell. He was charged with first-degree murder.

During a two-week trial in State Supreme Court in Brooklyn, prosecutors built a case around the confession and the circumstances of the crime. Defense lawyers called the police detectives liars.

A central witness, Detective James Gaynor, testified that Mr. Dinkins had said he had been fired “because certain supervisors didn’t like him.”

When told of the shooting, Detective Gaynor said, Mr. Dinkins had responded, “I hope you don’t think I did that.”

Detectives testified that Mr. Dinkins had given them a detailed account of his night, a boozy but specific history of gambling clubs, cash machines, liquor stores and drug corners, ending past midnight but before the time the shots were fired, which medical examiners said happened after 4:30 a.m.

Mr. Dinkins, who lived alone, initially said he had gone home to sleep, detectives testified. After hours of questioning, detectives said he changed his account to include shooting the supervisors, but without as much detail. He was unsure of the type of gun, his route to the railyard or his method of evading security, detectives testified, but he remembered pulling the trigger.

“At that point, it just got dark, like the lights went out,” Detective James McCafferty testified Mr. Dinkins had said to him.

Defense lawyers emphasized the lack of details, portraying the confession as false and coerced.

“Their story doesn’t make sense,” argued a defense lawyer, Jerilyn L. Bell. “The only logical conclusion is that they’re being untruthful.”

An assistant district attorney, Mark J. Hale, argued that the police were right to focus on Mr. Dinkins. The victims had their wallets and were shot sitting down. The railyard was vast and imposing, difficult to navigate but so isolated that five gunshots could have gone unnoticed.

“You see what I’m driving at, ladies and gentlemen?” Mr. Hale asked the jurors.

They did not. After a day of deliberations, the jury sent out a note saying they had reached a verdict. Mr. Dinkins entered the courtroom wearing a gray suit and glasses. He turned to look at his family, seated across from relatives of the victims. The forewoman delivered the verdict, and her fellows were polled.

“Any basis for further detention of this defendant, Mr. Hale?” asked Justice James G. Starkey.

Mr. Hale said, “None that I can think of.”

The victims’ families left the courthouse without speaking to reporters. Mr. Dinkins stood up. His eyes were bloodshot. He did not speak. He walked out the door and hugged his mother. Someone sang a gospel refrain, someone chanted, “home sweet home.”

    Jurors Acquit Man Accused of Killing Transit Supervisors, NYT, 12.10.2006, http://www.nytimes.com/2006/10/12/nyregion/12trial.html

Jury awards $11.3M over defamatory Internet posts

Updated 10/11/2006 10:53 AM ET
USA Today
By Laura Parker

A Florida woman has been awarded $11.3 million in a defamation lawsuit against a Louisiana woman who posted messages on the Internet accusing her of being a "crook," a "con artist" and a "fraud."

Legal analysts say the Sept. 19 award by a jury in Broward County, Fla. — first reported Friday by the Daily Business Review — represents the largest such judgment over postings on an Internet blog or message board. Lyrissa Lidsky, a University of Florida law professor who specializes in free-speech issues, calls the award "astonishing."

Lidsky says the case could represent a coming trend in court fights over online messages because the woman who won the damage award, Sue Scheff of Weston, Fla., pursued the case even though she knew the defendant, Carey Bock of Mandeville, La., has no hope of paying such an award. Bock, who had to leave her home for several months because of Hurricane Katrina, couldn't afford an attorney and didn't show up for the trial.

"What's interesting about this case is that (Scheff) was so vested in being vindicated, she was willing to pay court costs," Lidsky says. "They knew before trial that the defendant couldn't pay, so what's the point in going to the jury?"

Scheff says she wanted to make a point to those who unfairly criticize others on the Internet. "I'm sure (Bock) doesn't have $1 million, let alone $11 million, but the message is strong and clear," Scheff says. "People are using the Internet to destroy people they don't like, and you can't do that."

The dispute between the two women arose after Bock asked Scheff for help in withdrawing Bock's twin sons from a boarding school in Costa Rica. Bock had disagreed with her ex-husband over how to deal with the boys' behavior problems. Against Bock's wishes, he had sent the boys to the boarding school.

Scheff, who operates a referral service called Parents Universal Resource Experts, says she referred Bock to a consultant who helped Bock retrieve her sons. Afterward, Bock became critical of Scheff and posted negative messages about her on the Internet site Fornits.com, where parents with children in boarding schools for troubled teens confer with one another.

In 2003, Scheff sued Bock for defamation. Bock hired a lawyer, but he left the case when she no longer could afford to pay him.

When Katrina hit in August 2005, Bock's house was flooded and she moved temporarily to Texas before returning to Louisiana last June. Court papers that Scheff and her attorney David H. Pollack mailed to Bock were returned to Pollack's office in Miami.

After Bock didn't offer a defense, a Broward Circuit Court judge found in favor of Scheff. A jury then heard Scheff's arguments about damages. Pollack did not seek a specific amount for the harm he says Scheff's business suffered.

"Even with no opposing counsel and no defendant there, $11 million is a huge amount," says Pollack, adding that Scheff is considering whether to try to collect any money from Bock. "The jury determined this was a significant enough issue. It's not just somebody's feelings are hurt; it's somebody's reputation is ruined."

Bock says that when she moved back to her repaired house over the summer, she knew the trial was approaching but did not know the date. She says she doesn't have the money to pay the judgment or hire a lawyer to appeal it. She adds that if the goal of Scheff's lawsuit was to stifle what Bock says online, it worked.

"I don't feel like I can express my opinions," Bock says. "Only one side of the story was told in court. Nobody heard my side."

    Jury awards $11.3M over defamatory Internet posts, UT, 11.10.2006, http://www.usatoday.com/news/nation/2006-10-10-internet-defamation-case_x.htm

Nearly 8 Years Later, Guilty Plea in Subway Killing

October 11, 2006
The New York Times
By ANEMONA HARTOCOLLIS

A schizophrenic man pleaded guilty to manslaughter yesterday, admitting for the first time that he knew what he was doing when he pushed a promising young writer to her death in front of a subway train almost eight years ago.

The man, Andrew Goldstein, acknowledged that he knew it was wrong to shove the woman, Kendra Webdale, 32, into the path of an N train at the 23rd Street station in January 1999.

The death of Ms. Webdale, a journalist and photographer who had moved to the city from Buffalo, unnerved New Yorkers who had come to think of their city as the safest it had been in years. The public outcry over her death led to a state law, known as Kendra’s Law, that gives families the right to demand court-ordered outpatient psychiatric treatment for their relatives.

Until his plea yesterday in State Supreme Court in Manhattan, Mr. Goldstein had claimed that he had pushed Ms. Webdale during a psychotic episode and therefore was not responsible for his actions.

“She was leaning against a pole with her back to me near the edge of the platform by the tracks,” Mr. Goldstein said in a written statement submitted yesterday to Justice Carol Berkman. “I looked to see if the train was coming down the tracks. I saw that the subway train was coming into the station. When the train was almost in front of us, I placed my hands on the back of her shoulders and pushed her. My actions caused her to fall onto the tracks.”

Mr. Goldstein, 37, pleaded guilty in a deal negotiated by prosecutors with the consent of Ms. Webdale’s family. He was promised 23 years in prison with five years of postrelease supervision — including psychiatric oversight — at his sentencing, set for next Tuesday.

The plea came as he was about to be tried for the third time. Mr. Goldstein was convicted of second-degree murder in his second trial, in March 2000, after the first ended in a hung jury. He was serving 25 years to life, the maximum, when his conviction was overturned last December by an appeals court that found he had been denied a fair trial.

Ms. Webdale’s sister Kim Emerson said yesterday that her family had agreed to the plea deal because they could not bear the trauma of going through another trial with an uncertain outcome. She said it was both painful and a relief to hear Mr. Goldstein admit his guilt.

“I miss my sister,” Ms. Emerson said after the hearing yesterday, during which she sat silently with the other spectators. “It brings back what happened on the platform, and to hear him say that he did push her and it was intentional was really hard to hear.” At the same time, she added, “to hear him express it was difficult, but satisfying.”

She said the agreement that Mr. Goldstein would be monitored by psychiatrists after his release was important to her family. “The certainty that he won’t do this to anybody else has been our goal all along,” she said.

Prosecutors said Ms. Webdale’s family planned to make a statement to the judge before Mr. Goldstein’s sentencing. Ms. Webdale was the third of six children, and 20 months younger than Ms. Emerson.

Mr. Goldstein’s schizophrenia was diagnosed 10 years before Ms. Webdale was killed. A graduate of the Bronx High School of Science, he was living in Howard Beach, Queens, at the time of his arrest.

His lawyers blamed his failure to take antipsychotic medication for Ms. Webdale’s death, and said the state mental health system had repeatedly sent him back to the streets despite a history of violent behavior and his own requests for treatment. The prosecution contended that he had a history of using his sickness as an excuse for bad behavior.

In Mr. Goldstein’s first trial, the jury deadlocked over whether he should be found not guilty by reason of insanity. The second jury found that he had known what he was doing, and convicted him of second-degree murder.

But the Court of Appeals, the state’s highest court, overturned that conviction, finding that Mr. Goldstein’s constitutional right to confront witnesses against him had been violated. The appeals court said Justice Berkman had erred in allowing a psychiatrist to testify about what other people had said about Mr. Goldstein’s mental condition when those people were not available for cross-examination.

“What I’ve learned from this whole experience is that there’s no certainties with the justice system,” Ms. Emerson said. “It would be very difficult emotionally to sit through another trial and possibly future appeals. I know my mother is definitely ready to have this be finished.”

As part of his plea, Mr. Goldstein had to answer questions meant to determine whether he was pleading guilty of his own free will, and whether he understood the charge.

“On Jan. 3, 1999, did you push a woman you came to know as Kendra Webdale to her death?” Justice Berkman asked him yesterday.

Mr. Goldstein answered, “As much as I can understand, I did that.”

Justice Berkman said she was not sure what he meant, and Mr. Goldstein’s lawyers whispered to him at the defense table. He then changed his answer to a simple “yes.”

The judge asked whether he had intended to cause serious injury.

“Yes,” he said. “But not necessarily death.” After another conference with his lawyers, he added, “Yes, yes.”

In the nearly eight years since Ms. Webdale was thrown to her death, her mother, Patricia Webdale, has become an advocate for the mentally ill. Ms. Emerson said yesterday that her family had received some consolation from the knowledge that Kendra’s Law had helped other people receive treatment. “It’s a wonderful legacy,” Ms. Emerson said.

    Nearly 8 Years Later, Guilty Plea in Subway Killing, NYT, 11.10.2006, http://www.nytimes.com/2006/10/11/nyregion/11kendra.html

Ill Va. Teen: 'I'm Feeling Wonderful'

October 10, 2006
By THE ASSOCIATED PRESS
Filed at 12:34 a.m. ET
The New York Times

NORFOLK, Va. (AP) -- The ill teenager who won a court fight to forgo chemotherapy is coming home to Virginia this week, feeling energetic and hopeful that five weeks of an alternative treatment will help him defeat cancer.

''I'm feeling wonderful,'' said Abraham Cherrix, 16, who has Hodgkin's disease, a cancer of the lymphatic system. ''There's a pretty good chance that I am cancer-free.''

Abraham underwent treatment with low doses of radiation, which he said was bearable but made him queasy, but shrank the tennis-ball-sized tumor in his neck to the circumference of a half dollar. The tumor in his chest similarly has decreased, he said.

He also underwent immunotherapy, which strengthens the immune system through supplements and food, Abraham Monday by phone after completing his course of treatment at North Central Mississippi Regional Cancer Center in Greenwood, Miss.

Abraham said he'll have a CT scan in Virginia in two months to monitor his condition, and he'll return to Mississippi for a checkup with the center's medical director and radiation oncologist, Dr. Arnold Smith, a month after that. Abraham's tumors shrank after chemotherapy at a Norfolk hospital last year but later returned.

''You keep your fingers crossed. He seems to be doing well,'' said Abraham's father, Jay Cherrix, of Chincoteague. He added, ''It's not like having a cold and you take antibiotics for it. This is a formidable enemy that is relentless in its mission to harm you.''

Cherrix said the family has confidence in Smith and that Abraham looks good, feels good and has a good appetite; the tall, skinny teen said he's gained several pounds.

''This little boy has been through an awful lot and he's remarkably resilient,'' Cherrix said. ''I think he's going to have a nice long life, and that makes me very happy.''

Clinic officials did not immediately return a telephone call seeking comment Monday.

Abraham was happy that his treatment under Smith did not include chemotherapy. He had been so sickened by three months of chemotherapy that he declined a second, more intensive round that doctors recommended early this year.

His then-oncologist alerted social services officials when Abraham chose to go on a sugar-free, organic diet and use the Hoxsey tonic, an alternative liquid herbal treatment that is banned from sale in the United States. The American Cancer Society says there is no scientific evidence that Hoxsey is effective in treating cancer.

At an August court hearing, Abraham's attorneys and social services officials reached a resolution to allow the teenager to forgo chemotherapy and let him be treated by an oncologist of his choice who is board-certified in radiation therapy and interested in alternative treatments.

The family must provide the court updates on Abraham's treatment and condition every three months until he's cured, or turns 18, and notify the court immediately if treatment is discontinued.

------

On the Net:

Abraham Cherrix: http://www.abrahamsjourney.com

Dr. Arnold Smith: http://www.cancernet.com/ 

    Ill Va. Teen: 'I'm Feeling Wonderful', NYT, 10.10.2006, http://www.nytimes.com/aponline/us/AP-Sick-Teen.html

School Financing Case Plays Out in Court, and in Classrooms

October 10, 2006
The New York Times
By DAVID M. HERSZENHORN

Jeremy Ayala has grown up in public schools in the South Bronx, all the way to his fifth year at John F. Kennedy High School, where he is still struggling to earn a diploma. For all that time, more than 13 years, a lawsuit accusing New York State of shortchanging New York City’s schools by billions of dollars has wended its way slowly through the courts.

Jeremy has managed to hold on, through mediocre elementary schools and an intermediate school where only 6.9 percent of its current students read at grade level, persevering even as many classmates dropped out. He now attends class at night so he can work during the day, clinging to the hope of graduation.

Today, the legal fight enters its final stage, as lawyers for the schoolchildren and for the state face off in New York’s highest court, the Court of Appeals. But as the case winds down, the experiences of students like Jeremy and the schools they attended illustrate the heavy human cost as the court case has been fought, long enough for baby-faced kindergartners to become old enough to vote.

Since the lawsuit began in 1993, at least 224,000 public students have dropped out, according to city records. And while test scores showed 48.6 percent of city students reading at grade level when the case began, this year’s scores show that number little changed, at 50.7 percent.

“When you look at the cumulative deprivation of resources over time, it’s not surprising that you end up with dropout rates of 40 percent or higher,” said Joseph F. Wayland, the lead lawyer for the plaintiff, a coalition called the Campaign for Fiscal Equity. “What does that tell you about what happened to kids 13 years along the way?”

Lower courts have blamed the state for these failures, saying its financing system denied city students the opportunity to get a sound, basic education. And they have ordered the state to provide at least $4.7 billion more a year for the schools. At arguments today, the plaintiffs will ask the court to force Albany to pay up, while the state will seek to reduce the judgment to $1.93 billion.

Critics of the lawsuit have long argued that many complex problems, like mismanagement, rather than a lack of money are at the root of the school system’s failings. “We have no reason to believe that just putting in more money is going to lead to any change,” said Eric A. Hanushek, a senior fellow at the Hoover Institution and the editor of a new book, “Courting Failure: How School Financing Lawsuits Exploit Judges’ Good Intentions and Harm Our Children.”

Geri D. Palast, the director of the fiscal equity group, said it had asked the court to impose strict controls to make sure the money was spent wisely. “Accountability is at the core of this,” she said.

An end to the dispute may be in sight. While Gov. George E. Pataki has fought the lawsuit relentlessly, the state this year partly complied with the lower court rulings by authorizing more than $11.2 billion in school construction for the city. And Attorney General Eliot Spitzer, who has been the state’s top lawyer in the case for eight years, has promised a quick resolution if he is elected governor. He leads widely in polls.

Deputy Mayor Dennis M. Walcott, who oversees education issues at City Hall, said the additional billions in aid were “extremely crucial” to carrying out Mayor Michael R. Bloomberg’s education agenda, including prekindergarten for all 3- and 4-year-olds and reduced class sizes for all students.

Mr. Walcott, who was on the old city Board of Education when the lawsuit was filed, said the inequity in financing had caused incalculable damage. “There are a number of children who have fallen by the wayside, who have been lost as a result,” he said. “It’s a price tag to the lives of children. That’s a price tag you can’t cost out at all.”

Jeremy Ayala had just turned 5 when the Campaign for Fiscal Equity filed suit in the spring of 1993.

Although he was born in New York and his native language is English, Jeremy was lumped with other Latino children in an English as a Second Language class when he reached second grade.

“I could speak fluent English; as a matter of fact my second language is Spanish,” he said during an interview in the Kennedy High School library. “Because of my last name, I was put in E.S.L, which made me take easier classes.”

What he needed but never received, he said, was extra help in math. “I was never a math person,” he said.

And while Jeremy said he never felt that his schools lacked supplies, he recalled that textbooks were often outdated in the late 1990’s. The clue could be found in graffiti tags scrawled by previous students inside the front covers. “It was like ‘Holler, 1982,’ ” he said.

After attending Public School 25 on East 149th Street in the Bronx and a second elementary school, P.S. 161 on Tinton Avenue, Jeremy headed to Intermediate School 184 on Forest Avenue, long a failing school that will close after this year. The building will house three small schools.

The school’s principal, Alejandro M. Soto, arrived in September 2003, three months after Jeremy left.

“This building, to start with, had not been painted in 20 plus years,” he said. Many classrooms were in disrepair, including huge, ghastly rooms for metal and woodworking shops and home economics classes. “They had been abandoned for a long time,” Mr. Soto said.

The floors in the gym and a dance room were ruined. “The library was totally, totally destroyed,” he said. “The books were from the 60’s and 50’s and 40’s, whatever was left.”

“And that was just the infrastructure, never mind the kids,” he continued. “It was like being on another planet, no education, no reading, no writing, no math.”

Slowly, the building has been restored. The old shops are now classrooms with teacher offices tucked behind partitions. The library has been repaired and restocked. Walls have been painted; the gym and dance floors refinished.

But signs of neglect remain. In the huge playground, only one of four dented backboards hanging along the fence has a rim.

With the support of the regional superintendent, Peter Heaney, Mr. Soto said he believed he could turn around the school if he had more time and more money. But he has neither.

His first step, he said, would be to seize on the students’ love of technology. “The first thing I would do is revamp the entire multimedia lab,” he said. “I would put in state-of-the-art, just like the rich people’s schools in New Jersey, computers, LCD projectors, where kids could come in and do their presentations, where we could talk to classrooms around the world.”

Kendra Brown, the school’s art teacher, said she would add an extra adult to each classroom, making it more like Saint Ann’s, the Brooklyn private school, where a friend teaches. “They have two teachers for 20 kids; there’s a teacher and an associate,” Ms. Brown said. “One teacher to every 10 kids fixes so many problems.”

In 2002, only 22 of 238 eighth graders in Jeremy’s class at the school, just 9.3 percent, scored at grade level on the state English test. One quarter scored at the lowest level, indicating that they were mostly illiterate.

Ms. Brown said that many of her adolescent students were too immature to understand their situation fully, but that occasionally reality set in. “One boy actually started to cry,” she said last week, “because he realized how far behind he was and started worrying about his future.”

When Jeremy arrived at Kennedy, on Terrace View Avenue, he said educators once again assumed that his Spanish was better than his English. He was assigned to an advanced placement Spanish course, and asked to write an autobiography. “I said, ‘Listen to me, you are speaking to me in Spanish, and I don’t know what you are saying,” Jeremy said. “I don’t know how to write the accent marks.”

Four years later, Jeremy, now 18, is still hoping to graduate. But many of Kennedy’s 3,000 students do not. Only 44.5 percent graduate in four years, and just 63 percent graduate before aging out of the school system at 21, according to the most recent statistics.

City officials say they have made the most progress in elementary grades. But at P.S. 25, where Jeremy began school, only 28.1 percent of students today read at grade level. At P.S. 161, which he also attended, the figure is only 38.9 percent.

Mr. Wayland, the lead lawyer for the coalition, said he would argue to the judges today that they, like Jeremy, and the city school system, have unfinished business. “We don’t want the court to stop,” Mr. Wayland said. “We’re at the very end, and it would be a shame to watch us go backwards if the court won’t take the final step.”

    School Financing Case Plays Out in Court, and in Classrooms, NYT, 10.10.2006, http://www.nytimes.com/2006/10/10/nyregion/10equity.html

Bronx Odyssey: From Rebel to Executive to Felon

October 10, 2006
The New York Times
By SEWELL CHAN

Charles Rosen has had the kind of life story that could be found only in New York City.

The son of Eastern European immigrants with strong Communist sympathies, he dropped out of college, worked as a night-shift newspaper typographer in the mid-1970’s and emerged as leader of a 13-month rent strike at Co-op City that roiled state leaders and fueled the political careers of a future governor and a future state attorney general.

But now, this former champion of the working class has admitted to having enriched himself through a city-subsidized charity set up to help children, teenagers and the elderly.

On Thursday, Mr. Rosen, 63, pleaded guilty in State Supreme Court to felony charges of grand larceny and forgery and to a misdemeanor charge of obstruction of government administration. The crimes were part of what city investigators describe as a widespread pattern of fraud and mismanagement at the charity, the Gloria Wise Boys and Girls Club, which Mr. Rosen led from 1993 to 2005.

Hillel J. Valentine, a member of the charity’s board of directors from its founding until this spring, said the two-year investigation was emotionally devastating. “I was so close to Charlie and the family — and his wife and his three daughters and his brother,” said Mr. Valentine, a retired police officer. “Because I was so close to him and know the good that he did, and know the good he could have done, I’m more than mad — I’m disappointed.”

Mr. Rosen declined to comment for this article, but in an e-mail message that he sent on Sept. 14 to some close friends and associates, he expressed regret and contrition.

“There’s no crying over spilled milk,” he wrote. “I did some dumb things. I trusted some people who many told me to get rid of.”

Mr. Rosen has agreed to pay a fine of $5,000 and make restitution of $38,575, a fraction of the $69,000 the city’s Department of Investigation said he stole. The agreement does not provide for jail time. A sentencing hearing is scheduled for Dec. 6.

Jeffrey Aulenbach, deputy director for operations at Gloria Wise from 1999 to 2005, also pleaded guilty to larceny and obstruction.

Mr. Rosen’s plea marks an ignominious turn in a remarkable life.

His father emigrated from Poland, his mother from Ukraine, according to a June article on Co-op City in The New Yorker.

Both parents worked in the garment industry and, like many other Jews from Eastern Europe, had an affinity for left-wing politics. Mr. Rosen’s father, a former anarchist, was kicked out of the Communist Party after he set up a small garment shop here, and Mr. Rosen’s mother was a Socialist, a Zionist and then a Stalinist. They raised Charles and his brother, Jacob, speaking Yiddish and loathing Leon Trotsky.

Charles Rosen, who attended public schools and left college without a degree, was a night-shift typographer on the production floor at The New York Post, when it was a left-leaning newspaper. He and his wife, Lynn, moved from the Upper West Side to Co-op City in the Bronx on Dec. 31, 1970.

Co-op City had opened in 1968. It was the brainchild of Abraham Kazan, a Russian immigrant and union activist who recognized a pressing need for decent housing for garment workers crammed into slum housing on the Lower East Side, according to Joshua B. Freeman, a historian at the City University of New York Graduate Center.

The development, with 15,372 units, became a quagmire. “Poor planning, shoddy construction, inadequate supervision and widespread reports of corruption plagued Co-op City,” Dr. Freeman wrote in “Working-Class New York: Life and Labor Since World II” (New Press, 2000).

The project was built under the state-aided Mitchell-Lama program, which financed moderate-income housing using low-interest mortgages and tax abatements.

Facing the refusal of tenants to pay a 25 percent increase in their monthly maintenance fees in 1975, the state — which became caretaker of Co-op City after the board of Mr. Kazan’s organization resigned — moved to foreclose on the property. That could have led to the loss of residents’ equity and could have exposed them to eviction.

“We’ll defend our homes,” Mr. Rosen declared, calling the state’s bluff. “What will they do, bring in a platoon of police or the National Guard?”

Judges fined Mr. Rosen and the strike leaders, to no avail. Robert Abrams, then the Bronx borough president and, from 1979 to 1993, the state attorney general, tried to mediate, as did Mario M. Cuomo, then the secretary of state and, from 1983 to 1995, the governor.

Finally, the strike ended in 1976 with a compromise. The tenants would pay $20 million in withheld fees, take over management of the complex and set their own fees, but they agreed not to increase the sizable debt they owed the state.

“He was an outspoken, charismatic leader at the time, selected by the people,” Mr. Cuomo said yesterday of Mr. Rosen. “There had been various political skirmishes within their group, but in the end Charles was their spokesman.”

Representative Eliot L. Engel, a Bronx Democrat who lived in Co-op City during the strike, recalled Mr. Rosen as being “very bright, very smart,” but also “very ruthless” and dismissive of his opponents.

“Everybody knew he was very out of the mainstream in his political beliefs,” Mr. Engel said. “He didn’t make any bones about it. We all knew he was sympathetic to the Chinese and the Soviets, and maybe that was part of his allure to some people.”

The strike made Mr. Rosen one of the most powerful figures in the Bronx, and it led to the downfall of an assemblyman, Alan Hochberg. In 1976, Mr. Hochberg, a Democrat, was convicted of offering Mr. Rosen a $20,000-a-year do-nothing job with the Assembly, a promise of a $5,000 contribution for a future political campaign and a $3,000-a-year job for Mr. Rosen’s brother-in-law, if Mr. Rosen agreed not to run against Mr. Hochberg.

For several years, Mr. Rosen was chairman of the RiverBay Corporation, the company created to manage Co-op City. In 1977, he recruited Gloria E. Wise, a civil-rights activist and social work administrator, to form and lead an after-school program that became known as the Youth Activities Committee.

In 1992, as Ms. Wise was dying of brain cancer, she turned over the organization to Mr. Rosen, who became executive director in 1993. According to the city, he started to draw a salary in 1994, the same year the committee became a member of the Boys and Girls Clubs of America.

Under Mr. Rosen, the organization — renamed in 1996 for Ms. Wise, who died in 1993 — grew rapidly. In 1995, it allied with Goose Bay, an early-childhood group that grew from one center with four classrooms to four centers with 17 classrooms. In 2000, it took over two senior centers within Co-op City. In 2004, it absorbed another charity, Pathways for Youth.

“The combined entities had over 700 employees and annual budgets totaling approximately $20 million,” the Department of Investigation said in a report released on Thursday.

Mr. Rosen’s salary also grew. From $109,477 in wages and bonuses in 2000, his pay rose to $249,611 in 2004, according to federal tax records.

The Department of Investigation concluded that he and four other executives “stole or improperly obtained” $244,616 from the charity. Mr. Rosen took $69,000, from 2001 to 2004: $14,000 used to buy a Volvo convertible, $21,000 for home furnishings and the renovation of a waterfront apartment in the Rockaways, and $34,000 drawn from off-the-books bank accounts that he opened under the pretext of supporting youth athletic programs.

Mr. Rosen told investigators that the charity’s board had granted him a $400 monthly car allowance toward a Volvo convertible he bought in August 2002, and that he continued to pay for the Volvo through payroll deductions. But according to the investigators’ report, he still owed the charity more than $14,000 for the car — which he kept after resigning in June 2005.

According to the city, four bank accounts set up by Mr. Rosen and Mr. Valentine were used to pay bonuses for the five executives at the charity, including a $33,850 payment to Mr. Rosen in 2002. (Mr. Valentine was not implicated in any wrongdoing.)

In his plea on Thursday, Mr. Rosen admitted to falsifying reimbursements for expenses submitted to the city and state “for sports programs that the nonprofit never conducted.” He also admitted to falsifying business records submitted to investigators who were looking into $875,000 that the charity improperly lent Air America Radio, a fledgling liberal network, in 2003 and 2004.

Mr. Rosen’s lawyer, Frederick H. Cohn, said, “The report by D.O.I. is grossly inaccurate and, were he not a convicted criminal, borders on libel.” Mr. Cohn did not offer evidence.

In his e-mail message, Mr. Rosen invoked the memory of Ms. Wise and said he had raised $7.3 million to build a community center, as well as $7.5 million for the New York State Alliance of Boys and Girls Clubs.

He concluded: “I don’t know what my future will bring; I can’t think that far ahead. I am on autopilot. I am here. After 15 months’ unemployment I have to consider earning a living, establishing a place for myself in a world I never thought I would have to face from this vantage point.”

    Bronx Odyssey: From Rebel to Executive to Felon, NYT, 10.10.2006, http://www.nytimes.com/2006/10/10/nyregion/10rosen.html

For Grisham, a new turn into non-fiction

Updated 10/8/2006 11:22 PM ET
USA Today
By Carol Memmott

CHARLOTTESVILLE, Va. — John Grisham's downtown office in this quaint college town is packed with 12-inch-high stacks of court documents, box after box of medical records and hundreds of photographs.

They are part of the paper trail that tells the story of Ron Williamson, a once promising ballplayer who spent 11 years on Oklahoma's death row for a rape and murder he did not commit. It might have been the whole story of Williamson's life — until Grisham read his obituary in December 2004.

Grisham found Williamson's real life just as compelling as the stories he has told in his hugely successful legal thrillers. "It just had everything," Grisham says. "A wrongful conviction, the near execution, the exoneration, the mental illness, the insanity, the baseball."

Grisham, 51, was so taken by the Ada, Okla., native's story that it has changed the course of his career. The author of 18 best-selling novels has now written his first non-fiction book, The Innocent Man: Murder and Injustice in a Small Town (Doubleday, $28.95), on sale Tuesday.

"Every time there's an exoneration and people walk out of prison after 10 or 15 years, people say, 'How could this happen?' Well, I want this book to show people how it can happen," Grisham says. "It was sloppy police work, or worse, cops who didn't want to find the real killer, vindictive police work and a prosecutor who became convinced he knew who the real killer was."

And because Williamson was often in trouble, Grisham says, the Ada police didn't like him.

"The cops knew him well. They just became convinced he was the killer," he says.

In 1971, fresh from a stellar high school baseball career in Asher,Okla., Williamson was selected as a potential catcher by the Oakland A's in the second round of the draft. He was, Grisham writes, the 41st player chosen out of 800. Like his baseball hero, fellow Oklahoman Mickey Mantle, Williamson, then 18, had dreams of playing in the big leagues. But recurring arm injuries and a life-long battle with alcohol that began in his teens brought his career in the minor leagues to a close in 1976.

It was a personal defeat from which he would never recover.

Williamson moved back home to Ada, lugging with him all his bad habits — drinking, barhopping and womanizing. But something else was going on as well: His family noted dire changes in his personality, the first signals of the bipolar disease he would struggle with the rest of his life.

The drinking and mental illness made it difficult for him to hold down a job. He racked up numerous arrests, including charges for two rapes. In both cases, he said the sex was consensual. The juries for both trials found him innocent. He did spend time in jail for public drunkenness, DUI and check forgery. He didn't have a reputation for violence.

The cocky and notorious one-time hometown hero was certainly no angel. But in 1982, he began his transformation into Ada's most reviled citizen when Debra Sue Carter, a 21-year-old cocktail waitress, was raped and murdered.

The beginnings of injustice

Carter's badly bruised body was found on the floor in her apartment. An autopsy would show that she died of asphyxiation caused by strangulation with a cord or belt and choking on a washcloth stuffed in her mouth.

With no solid evidence, the police and the district attorney decided Williamson and an acquaintance, Dennis Fritz, were the murderers, Grisham writes.

There was no proof the two men knew Carter, their fingerprints were not found at the scene, and there were no eyewitnesses. Grisham writes in the book that the case against Williamson consisted of "two 'inconclusive' polygraph exams, a bad reputation, a residence not far from that of the victim's, and the delayed, half-baked eyewitness identification" from the man who would turn out to be the real murderer.

In 1988, Williamson and Fritz were convicted of first-degree murder. Fritz received a life sentence. Williamson was sent to death row. It's where he would stay for 11 years until DNA evidence exonerated him — just five days before he was to be executed.

DNA testing proved that hairs and semen found at the Carter murder scene did not match either man. They were later shown to match those of Glen Gore, the last man to see Carter alive and someone to whom the police had paid little attention. Gore actually testified against Williamson at his trial. He was eventually convicted of murdering Carter and is in prison.

Despite his exoneration, Williamson's story had no happy ending. The mental illness and drinking problems he had struggled with all his life continued to haunt him. He died of cirrhosis of the liver five years after he left prison in 1999. He was 51.

So how could two men be tried and convicted on non-existent evidence, the false testimony of jailhouse snitches, faulty forensics work and suppressed evidence?

"I don't know how it got that far," Grisham says. "Bad police work is not unusual, bad defense work and incompetent defense lawyers are not unusual, and rough, mean prosecutors are not unusual, but that's why you have a judge. The judge has got to guarantee that when you come into the courtroom, there's got to be a fair trial, and that was the great tragedy here. The judge was asleep at the switch."

A hard look at the system

In 2002, a federal judge ruled that the circumstantial evidence used against the men "indicates a concerted pattern" that deprived them of their constitutional rights. The judge cited "repeated omission of exculpatory evidence ... inclusion of debatably fabricated evidence, failure to follow obvious and apparent leads which implicated other individuals, and the use of questionable forensic conclusions."

For Grisham, the Williamson story was a wake-up call.

"I was a lawyer for 10 years and I represented a lot of criminal defendants. I had two murder cases with tough trials, rough trials, but I can't remember spending any time thinking or worrying about wrongful convictions. I knew that cops cut corners. I knew the prosecutors cut corners. I knew that there were a lot of bad defense lawyers. I knew all that but just never slowed down long enough to think about wrongful convictions."

Asked whether his book is a kind of social activism, he says: "When I researched and wrote the book, it was impossible not to become indignant and infuriated. And that becomes an activism in itself."

One of Grisham's greatest amazements is that a man diagnosed with severe mental problems, who had been prescribed lithium, thorazine and other psychotropic drugs, could have been found competent to stand trial.

"How about a mental competency examination? Any lawyer would go nuts with that issue. When you have a client facing capital murder — my gosh, you do anything you can." Williamson's lawyer never asked for a competency hearing, and neither did the judge.

Fueled by his anger and fascination with the case, Grisham threw himself into researching Williamson's story. He interviewed more than 100 people, including Williamson's sisters, Annette and Renee, plus Fritz and several other local men who had been wrongfully convicted of terrible crimes. He spoke with judges, lawyers and baseball coaches. He made numerous trips to Ada and visited Williamson's home for 11 years: death row at the Oklahoma state prison at McAlester. Of visiting prisons, he says, "afterward you just want to go somewhere and take a shower and have a drink. It just sticks with you."

Learning about Williamson's life, Grisham was struck by the similarities between his own formative years and Williamson's.

"I grew up in a small town like Ada. I was born in Arkansas three hours from where Ron grew up. I lived in small towns in Arkansas and Mississippi where life revolved around Little League. We played ball all summer long. Nights, weekends, that's what we did. We both grew up in really strict homes, memorized Scripture, and you never missed church for anything." And it was in church that the young Grisham heard sermons about "eye for an eye" justice.

But while he was writing his 1994 novel, The Chamber, about a young lawyer who rescues an innocent man from death row, he began to see things — the death penalty in particular — differently.

"I really flipped with The Chamber," Grisham says. "That's when it happened." Grisham visited death row in Mississippi while researching that book and spoke with the death row chaplain. "He asked me if I was a Christian and I said yes. I asked him, 'Do you think Jesus would approve of what they do here?' He smiled and said 'No, there's no way.'

"I've come to believe that," Grisham says. "As heinous and horrible as some of the crimes are, if killing is so wrong, then we shouldn't be allowed to kill."

'How could this happen?'

He shakes his head when he talks about how close Williamson came to being put to death for a crime he didn't commit and recalls his final visit to Ada and Williamson's grave.

"It's on a hill outside town, a couple of miles from downtown, and I sat there for a long time thinking about Ron and his tragic life, and I kept thinking, 'How could a friendly little town like Ada — small-town America — how could this happen? How could they screw up so badly? How could they devour one of their own? One of their own heroes.' It seemed so impossible that it could happen, but there it was."

The Innocent Man lays out what happened in Ada. Grisham says he's proud of the book.

"I have never been this excited about publication except for maybe the first two books. A Time to Kill was the thrill of a first novel. The Firm was the first big book, and I was very excited about that and very anxious to see if it was going to sell. But I'm pretty psyched up about the publication of this one."

Grisham's agent, David Gernert, says Grisham had a greater sense of pride with this book because, as non-fiction, it was a more difficult story to tell.

"The novels come to him not easily but naturally, and so he had a greater sense of accomplishment with this one," Gernert says.

A call to action

The effect of Williamson's story on Grisham has been significant. He describes himself as "not much of a joiner," but he recently joined the board of The Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University, a non-profit legal clinic that helped exonerate Williamson. Founded in 1992, the project handles cases in which post-conviction DNA testing of evidence can yield proof of innocence. So far, the project has helped clear 183 people who had been wrongfully convicted.

"They're doing God's work, getting these people out of prison," Grisham says. "But they are also trying to lobby legislatures around the country to provide for ways to stop some of these bad convictions and get compensation for people when they are released. After 15 years in prison, they don't even get a pat on the back. They don't get counseling. They don't get a dime. They don't get anything.

"They are all disasters and they are not prepared to deal with life. That's the cruel part."

Grisham is not sure how the die-hard fans of his legal thrillers will respond to The Innocent Man.

"I'm very nervous about it. I'm nervous because there are X number of people who love the legal thrillers and can't wait till the next one comes out, and I love those people. The issue is: Are they going to be happy with a non-fiction book, although it reads like a legal thriller? And then the other question is: Will it appeal to people who like to read non-fiction books? That's the big question mark."

The first printing is 2.8 million, the same as for his legal thrillers.

Fans of Grisham may be disappointed to know he won't publish a thriller — or any book — in 2007, the first year in 16 he won't have a book. His next legal thriller is scheduled for February 2008.

Would he ever tackle another non-fiction book?

"It's going to have to be something good," Grisham says. "But I have learned over the years you never know where a story's going to come from, and it could easily happen again, real soon or 20 years from now."

    For Grisham, a new turn into non-fiction, UT, 8.10.2006, http://www.usatoday.com/life/books/news/2006-10-08-grisham_x.htm

In New York Immigration Court, Asylum Roulette

October 8, 2006
The New York Times
By NINA BERNSTEIN

Tears streaked Meizi Liu’s face in 2003 as she told an immigration judge in New York of being forcibly sterilized in China. The judge, Jeffrey S. Chase, had won awards as a human rights advocate before his appointment to the bench in 1995. But now he had 1,000 pending cases, and he had heard it all before.

He insisted that she was lying, ridiculed her story and, when she would not recant, denied her petition for asylum.

The tables turned after appeals by Ms. Liu and others reached federal court this year. In scathing decisions, the court rebuked Judge Chase for “pervasive bias and hostility,” “combative and insulting language” and remarks “implying that any asylum claim based on China’s coercive family planning policies would be presumed incredible.”

It is always judgment day in the windowless courtrooms where immigrants plead to stay in the United States. But these days, as never before, the nation’s 218 immigration judges are also being judged, even as they struggle to complete 350,000 cases a year amid an immigration debate that promises to send them many more.

Appeals courts criticize some judges by name, citing abusive behavior and bad decisions. Studies highlight stark disparities in judgment, like 90 percent of asylum cases granted by one judge and 9 percent down the hall. Faced with mounting criticism, Attorney General Alberto R. Gonzales vowed to introduce yearly performance evaluations of the judges, who are Justice Department employees. The Harvard Law Review urged a campaign to turn the five worst judges into “media villains” to motivate reform.

Yet a more complicated picture emerges in the federal building in Lower Manhattan. There, Judge Chase, who colleagues say is chastened since being rebuked, is one of 27 immigration judges searching for ways to handle 20,000 cases a year, driven as much by scarce resources and escalating demands as by quirks of personality and power.

In asylum cases, the wrong decision can be a death sentence. In others, banishment hangs in the balance, with the prospect of families split up or swept into harm’s way. But before they can consider the merits of a case, judges must cope with an intricate web of laws, changing conditions in distant lands, and a mix of false and truthful testimony in 227 tongues vulnerable to an interpreter’s mistake as small as pronouncing “rebels” like “robbers.”

As the caseload has grown, spurred in part by stepped-up enforcement, so has the pace demanded by “case completion goals” set in Washington.

To stay afloat, New York judges schedule 30 to 70 cases at a time, hold 4 contested hearings a day and decide more than 15 cases a week, all without law clerks, bailiffs, stenographers or enough competent lawyers.

“The court is a stepchild of the whole immigration system,” said Sandra Coleman, who spent years on the immigration bench in Miami. “They want to make the judges the villains, and there are judges who are villains, I don’t deny that. But the problem is the system.”

Many federal judges agree. “I fail to see how immigration judges can be expected to make thorough and competent findings of fact and conclusions of law under these circumstances,” John M. Walker Jr., chief judge of the United States Court of Appeals for the Second Circuit, told the Senate Judiciary Committee in April, urging that the number of immigration judges be doubled.

With one of the largest caseloads among the nation’s 53 immigration courts, and with nearly half its cases concerning asylum, New York illustrates the crunch that judges face in many big cities where complicated matters crowd the docket.

Caseloads exploded in the 1990’s. In 2000, an unpublished report by a Justice Department evaluation team warned that New York judges were “reaching the point of exhaustion and burnout.”

The report urged a slower pace and an increase in the staff-judge ratio to three to one from two to one. Instead, an evaluation last year found that the ratio had slipped even lower.

Justice Department rules do not allow immigration judges to speak to reporters. But weeks of observation, court records and interviews with lawyers, clerks, interpreters and immigrants show that the judges are coping in very different ways, with far-reaching consequences.

Patricia Rohan, who keeps a twinkling Statue of Liberty lamp in her chambers, is recognized after 24 years on the bench as a model of soft-spoken fairness and efficiency.

On a recent weekday, with 575 cases pending, she patiently took notes as a man who shells fish explained why deportation to Gambia would put his Bronx-born daughters at risk of genital mutilation. She gently questioned an Ecuadorean cleaning woman of 55 who avowed that love, not a green card, had prompted her marriage to an American 15 years after she immigrated illegally. Teasing out supporting evidence in both cases, Judge Rohan dictated favorable decisions into an aging tape recorder.

Other judges have a different approach. Sandy K. Hom, appointed in 1993, is also invariably polite, but so quick and predictable in his denials of asylum — 91 percent in recent years, compared with Judge Rohan’s 25 percent — that lawyers regularly advise people assigned to him to move to another state.

Given his speed, he has the fewest pending cases, about 345. But many of his decisions have been rejected on appeal, including one in which he denied asylum to a widowed Armenian Christian and her children and ordered them deported to Iraq, arguing that since Saddam Hussein’s ouster, they had no reason to fear religious persecution.

In another case, records show, he mixed up the medical documents presented by Janeta Kutina, a 69-year-old Latvian woman of Jewish heritage, confusing the deaths of her father and her husband, both victims of anti-Semitic violence. Then, the appeals court found, he cited his own mistake as evidence that her account was inconsistent.

Down the hall and at the other end of the spectrum, Margaret McManus grants asylum at the highest rate in the country — 90 percent — but at the price of what Kevin Kerr, president of the clerks’ and interpreters’ union local, complains is a chaotic calendar with 931 pending cases. She typically reschedules cases until petitioners can secure supporting documents, pursue other avenues or find lawyers.

A judge’s fact-finding is much harder without a lawyer to speak for those facing deportation, who are not entitled to court-appointed counsel. Many get what the 2000 Justice Department report called “the high-volume, low-margin, piecework approach” practiced by “an unsavory subculture” of “travel agency” lawyers. Nor do government lawyers know each case.

Judge Chase’s trajectory illustrates why those judges unable to come to terms with the system’s deficiencies may risk losing their judicial bearings.

As a young immigration lawyer, he joined rallies on behalf of Chinese asylum-seekers and gave other lawyers videotaped lessons on asylum.

“Some of the judges will have their minds made up before they enter the courtroom, depending on the country an immigrant is from,” Mr. Chase, whose wife immigrated from Iran, told a Newsday reporter in 1995. “A judge needs to start each case with a clean slate and listen to the lawyer and the applicant. Rather than have that look on his face of ‘Why are you wasting my time?’ ”

But before long, incredulous tirades became his trademark in many Chinese asylum cases, according to court records and interviews with a dozen lawyers. Openly frustrated with a pattern of boilerplate claims that he suspected had been concocted by smugglers, he applied his own tests of honesty.

In September 1999, at the first court appearance of Guo-Le Huang, who said his wife had been forced to have an abortion in her last month of pregnancy, Judge Chase rejected the man’s assertion that he was not working because he lacked papers.

“That is the most ridiculous thing I have ever heard,” Judge Chase said, setting the tone he would take with Mr. Huang over two years. “I’m not going to waste my court time on this case.” He questioned why Mr. Huang lived in a Hispanic neighborhood, interrupted an account of persecution with sarcasm and berated him for giving up his firstborn for adoption because she was a girl, calling the act “sexist” and “inhumane.”

In the harried world of immigration court, many lawyers seemed to accept his tactics as an idiosyncratic tool, not unlike the long wooden claw that another judge, lacking a clerk, uses to hand down documents. And, statistics show, Judge Chase granted 42 percent of the 2,729 asylum requests he heard through 2004, including 250 of 943 from China.

“He’s trying very hard to get to the truth,” said one lawyer, Robert Murtha. “A lot of these people, if you look behind the foolish lies they’re telling, they really do have a case. But the lawyer that they go to adapts their story to conform with the pattern, and it does drive him crazy.”

Another lawyer, Peter Lobel, described Judge Chase as a “deeply caring man,” whose approach was “ ‘I don’t care what your claim is, just be honest with me.’ ” But he added, “He got so it was like an interrogation.”

Several lawyers credited Judge Chase with unusual generosity to petitioners who admitted to falsehoods — no help to those who maintained they were telling the truth. Ms. Liu, now 39, the asylum-seeker who told of being forcibly sterilized, testified that family-planning cadres in China subjected her to painful uterine surgery when her second child was a baby. She fled in 2000, leaving her children in hopes of reunion in America.

“The judge said, ‘You have been lying all day, but if you admit to lying, I will grant your case,’ ” Ms. Liu recalled through an interpreter. “I was very angry, because everything I said was true.”

In 2003, she appealed his denial to the Board of Immigration Appeals, the internal review body. But a year earlier, its reviews had been sharply curtailed when John Ashcroft, then attorney general, cut board membership to 11 from 23 and set tight deadlines to reduce a large backlog. Single board members issued 50 decisions a day, typically one-sentence rulings affirming denials.

Like Ms. Liu, many of those who received such decisions turned to federal court. Second Circuit filings jumped 53 percent; it is finding merit in 20 percent of the immigration appeals, returning them for revision.

Ms. Liu’s case was remanded in February, and lawyers say Judge Chase tried to change. But in July, the 2001 Huang case caught up with him, in a blistering Second Circuit decision prominently published in The New York Law Journal.

Mr. Lobel described the judge as devastated and braced for more: “He said, ‘I learned my lesson, but some of these cases are still in the pipeline.’ ”

Ms. Liu is still waiting, too, and worrying about which judge will decide her family’s fate.

    In New York Immigration Court, Asylum Roulette, NYT, 8.10.2006, http://www.nytimes.com/2006/10/08/nyregion/08immigration.html?hp&ex=1160366400&en=c7e37797967e85fc&ei=5094&partner=homepage

After 21 Years, DNA Testing Sets Man Free in Rape Case

October 7, 2006
The New York Times
By NICHOLAS CONFESSORE

If not for a chance inventory of DNA samples gathering dust in a Connecticut warehouse, Scott Fappiano might still be lifting weights in prison.

But after the samples were discovered by his lawyers last year, Mr. Fappiano finally had the evidence he had sought for half of his life. Yesterday, a State Supreme Court judge vacated his conviction for the 1983 rape of a Brooklyn woman, after the tests showed he had not committed the crime for which he spent more than two decades in prison.

Several hours after the judge’s ruling, Mr. Fappiano shuffled out a steel door into the hallway of a Brooklyn courthouse, clutching a brown paper bag of personal items in one hand along with every relative within arm’s length with the other.

“I just kept waiting,” said Mr. Fappiano, 44, stuffing his hands into the pockets of his gray sweat pants as his mother, a brother and several cousins looked on. “I’m just happy that it’s over.”

His family and lawyers were less forgiving, their elation warring with anger and frustration as they mulled the long path that Mr. Fappiano traveled between conviction and redemption, with 21 years of it in prison.

“The only thing I feel is that my son was kidnapped,” said Rose Fappiano, his 69-year-old mother. “I couldn’t believe this day had come.”

Mr. Fappiano was represented by lawyers from the Innocence Project, a nonprofit legal clinic that works to exonerate the wrongfully convicted through DNA testing. He was the fourth person in the last year in New York State to be exonerated by testing arranged by the project’s lawyers, who yesterday called for a full-scale reform of the city’s procedures for storing evidence.

“It is no small miracle that Scott is here today,” said Nina Morrison, his Innocence Project lawyer. “Had Scott’s case depended on the evidence storage and collection inventory procedures of the New York City Police Department, he would still be in prison today.”

In a statement, Paul J. Browne, the Police Department’s deputy commissioner for public information, said that the department had requested proposals for a more advanced evidence tracking system to replace the current one. “The advanced system will be used, in part, to improve retrieval of old evidence, which has sometimes proven difficult considering the extraordinary volume and the lack of an automated system in the 1980’s and 1990’s,” he said.

In a separate statement, the Brooklyn district attorney, Charles J. Hynes, called Mr. Fappiano’s imprisonment a “tragedy.” Mr. Hynes also said that while Mr. Fappiano was convicted long before his tenure as district attorney, his office “conducted extensive investigations into this case and moved immediately to have him released” once the new DNA tests were performed.

The Brooklyn woman, who was not named in court documents, was raped several times in different rooms of her and her husband’s house in December 1983. Her husband, a police officer, had been tied up by the rapist in the couple’s bedroom with a telephone cord. The rapist had broken into the house and carried a gun, court documents said.

The woman identified Mr. Fappiano as her rapist while flipping through police photographs of men who matched the general description of her assailant, and later picked him out of a lineup, though he was five inches shorter than the man she said had attacked her and had shorter hair.

But the woman’s husband did not identify Mr. Fappiano out of the lineup. Though investigators retrieved nearly a dozen pieces of physical evidence of the crime — including cigarettes the rapist had smoked, vaginal swabs from a rape kit and semen stains on a towel and on a pair of sweat pants the victim put on after the attack — blood tests failed to link any of it to Mr. Fappiano.

A jury deadlocked in his first trial, before a second jury convicted him in 1985, with a sentence of up to 50 years in prison.

“Going to jail for rape is hard,” Mr. Fappiano said yesterday, recalling a prison pecking order in which only pedophiles rated less respect than rapists. “Going to jail for rape when a police officer’s wife is involved is really hard.”

He spent four years in prison before he first requested DNA testing of the physical evidence in the case, after reading about the process in a newspaper in 1989. A judge agreed to send the victim’s sweat pants to Lifecodes, a DNA laboratory, now defunct, for testing. But the technology at the time was not sophisticated enough to produce a DNA profile from the sample, and Mr. Fappiano remained in prison.

In 2002, the Innocence Project agreed to represent Mr. Fappiano, who hoped that more advanced DNA testing would exonerate him. The Brooklyn district attorney’s office agreed to help.

But after a yearlong search that covered the city agencies that had had custody of the original physical evidence, the officials could not find any of it. The district attorney’s office did not have it. It was not in police storage at Pearson Place in Queens. The sweat pants, the cigarette butts, the rape kit — all the evidence seemed to have disappeared. Worse for Mr. Fappiano, the paper trail appeared to end in 1985.

“No one could find the evidence,” Ms. Morrison said, “but more troublingly, no one knows what happened to it.”

So Mr. Fappiano waited. When the parole board offered to consider reducing his sentence in exchange for an admission of guilt, he declined.

“I never gave up hope that I would come home,” he said yesterday. “But I didn’t want to come home until I could prove I was innocent.”

Lifecodes was later acquired by a Orchid Cellmark, a testing laboratory based in Maryland and Texas, which also inherited the Lifecodes testing materials from the 1980’s and 90’s. The materials were stored in a warehouse in Connecticut until last summer.

In August, an official at Orchid Cellmark contacted Ms. Morrison to tell her that an inventory of those materials had turned up the two test tubes with Mr. Fappiano’s case number on it. They contained DNA material drawn from the sweat pants, which was retested by the city medical examiner this summer, along with a new DNA sample from Mr. Fappiano. Last month, prosecutors informed Mr. Fappiano that he had been conclusively ruled out as the source of the samples.

He appeared briefly in court yesterday, near lunchtime, standing before Justice L. Priscilla Hall as she considered a motion for his release. When it was granted, his mother stood and wept.

“Scott, we made it!” she cried.

But not quite. The wheels of justice turned no quicker for Mr. Fappiano after his innocence was confirmed than they had when his innocence was in doubt. It took four hours for the requisite state and city officials to sign off on his release, and it was not until late in the afternoon that he emerged from custody, in good spirits and itching for Italian food.

“It’s the easiest thing in the world to get into jail,” he said, “and the hardest thing in the world to get out.”

    After 21 Years, DNA Testing Sets Man Free in Rape Case, NYT, 7.10.2006, http://www.nytimes.com/2006/10/07/nyregion/07rape.html

Parents charged with abducting bride

Posted 10/3/2006 8:59 PM ET
AP
USA Today

SALT LAKE CITY (AP) — The parents of a bride-to-be told their daughter they were taking her on a shopping trip, but then drove to Colorado and kept her there until she missed the nuptials, officials said.

Lemuel and Julia Redd have been charged with second-degree felony kidnapping. Utah County Attorney Kay Bryson said Tuesday he met with the couple's daughter, Julianna, and her now-husband Perry Myers before charging the parents.

"I've never had a case quite like this," Bryson said. "It is strange that parents would go to that extent to keep an adult daughter from marrying the man that she had chosen to marry."

The Redds told their 21-year-old daughter they were taking her on a shopping trip Aug. 4 and then drove 240 miles from Provo to Grand Junction, Colo., according to Provo police Capt. Rick Healey. Myers, 23, called police when his bride didn't attend a pre-wedding dinner with his parents that night.

The Redds spent the night in Colorado and drove back to Provo, about 40 miles south of Salt Lake City, the next day, Healey said. They arrived after the young couple was supposed to have been married in a ceremony that day at The Church of Jesus Christ of Latter-day Saints Temple in Salt Lake City.

The couple, both students at Brigham Young University, were married in the temple on Aug. 8, Myers said. They are expecting their first child in May.

The Redds didn't want their daughter to get married, but the bride has been reluctant to say what happened on the drive. Myers said he and his wife were not discussing details of the car ride but said her parents' objections were not about him.

"It really has nothing to do a lot with me. It really is some issues with the family," he said.

Bryson said after reviewing the police investigation it was clear a crime was committed. Charges were filed Friday.

Lemuel, 59, and Julia Redd, 56, are scheduled to make an initial court appearance Oct. 26. If convicted, the Redds could face one to 15 years in prison.

A call made to a listing for Lemuel Redd at the address in Monticello, Utah, listed in court documents went unanswered Tuesday. No attorney for the Redds is listed in court documents and it couldn't immediately be determined if they had legal representation.

    Parents charged with abducting bride, NYT, 5.10.2006, http://www.usatoday.com/news/nation/2006-10-03-kidnapped-bride_x.htm

Grand Jury Opens Big Dig Death Probe

October 5, 2006
By THE ASSOCIATED PRESS
Filed at 12:04 a.m. ET
The New York Times

BOSTON (AP) -- A special grand jury has begun hearing evidence in a criminal investigation into the death of a woman who was crushed by falling ceiling panels in one of Boston's Big Dig tunnels.

Massachusetts Attorney General Tom Reilly has said his investigation would determine whether anyone who worked on the $14.6 billion highway project should be charged with a crime in the July 10 accident that killed Milena Del Valle, 39.

A spokesman for Reilly said the grand jury began hearing evidence Tuesday.

Reilly has subpoenaed thousands of documents from the Massachusetts Turnpike Authority and several companies involved in the design and construction of the project.

    Grand Jury Opens Big Dig Death Probe, UT, 3.10.2006, http://www.nytimes.com/aponline/us/AP-BRF-Big-Dig-Death.html

Woman’s Defiance Led Mugger to Kill Her, Accomplice Testifies

October 5, 2006
The New York Times
By ANEMONA HARTOCOLLIS

A teenage mugger took the witness stand yesterday and laid out for a jury the rules of the street that dictated why an actress and playwright on the verge of making it in New York was shot dead, while other mugging victims that night were allowed to live.

It wasn’t the color of her skin, or the amount of money in her purse, the mugger said, but the victim’s attitude — her insouciance, defiance and disdain that made the mugger’s accomplice shoot the actress, 28-year-old Nicole duFresne, once in the chest, killing her.

“What are you going to do, you going to shoot us? Is that what you wanted?” Ms. duFresne demanded, according to Tatiana McDonald, one of the muggers, who testified yesterday in State Supreme Court in Manhattan.

As Ms. duFresne shouted those words, she walked up to Rudy Fleming, whom Miss McDonald described as the 19-year-old leader of the pack, and looked him in the eye, Miss McDonald said. Mr. Fleming reacted by pushing Ms. duFresne in the chest with his left hand.

Ms. duFresne stumbled backward, then bounced back and shouted her question again: “What are you going to do, shoot us?”

Mr. Fleming pushed Ms. duFresne a second time, and when she came at him again, he lifted his right arm and fired one bullet, Miss McDonald said.

“He was so mad, he just lift up the gun and shot at her,” Miss McDonald said. “After I saw her grab her chest, I just ran.”

The prosecutor, Eugene Hurley, asked the witness how close Mr. Fleming was to Ms. duFresne when he shot at her.

About two feet away, Miss McDonald replied. “It was pretty close, because he couldn’t even hold up his hand,” she said, noting that Mr. Fleming did not have room to stretch out his arm. “She was blocking the gun.”

Testifying on the fourth day of Mr. Fleming’s murder trial, Miss McDonald admitted that she was part of a group of seven youths that went out after midnight on Jan. 27, 2005, spoiling for a fight and looking for victims.

She was the youngest of the group, at 14.

Now 16 and still in the sixth grade, she said she agreed to cooperate with prosecutors in return for a promise that if her testimony is truthful, they would recommend that a judge clear her criminal record and consider sentencing her to the 10 months she has already served in jail.

The night of the shooting, the seven smoked marijuana in the apartment where two of them lived in the Baruch Houses on the Lower East Side, then went out after midnight to roam the streets, she said. The five young men in the group wanted Miss McDonald and the other girl, Ashley Evans, Mr. Fleming’s girlfriend, “to fight whatever girls we see,” she said.

They spotted a young man wearing a white leather jacket, and Mr. Fleming announced, “I like that jacket; I’m going to get that jacket,” Miss McDonald testified.

Miss McDonald’s boyfriend, Kashawn Boyd, hit the young man so hard that Mr. Boyd’s hand became swollen, but the young man refused to give up his leather jacket and escaped by running into the street and threatening to call the police, she said. That victim, Adam Chavez, testified on Tuesday.

The group then rode the subway to Brooklyn, where they menaced a girl at the Broadway Junction station and a man who scared them away by reaching into his jacket as if he were carrying a gun.

Returning to the Lower East Side about 3 a.m., they spotted Ms. duFresne walking with her fiancé, Jeffrey Sparks, and two friends, Scott Nath and Mary Jane Gibson.

“I’d like to bang on these people right here,” Miss McDonald quoted Mr. Fleming as saying when he spotted the two couples walking on Clinton Street, south of Rivington Street.

Mr. Fleming hit Mr. Sparks in the eye with his gun, then yanked away Ms. Gibson’s purse, tossing it to the two girls, who rifled through it, Miss McDonald said.

Concerned about her fiancé, Ms. duFresne approached Mr. Sparks and said, “Let me see your eye,” while lifting his hand, which was covering his injured eye, Miss McDonald said.

Then she confronted Mr. Fleming, yelling her challenge, and he shot her, the witness said.

“Did you see Rudy slip at all?” Mr. Hurley, the prosecutor, asked, apparently trying to counter suggestions by Mr. Fleming’s defense lawyer, Anthony Ricco, earlier in the trial that the gun went off accidentally.

“No,” Miss McDonald said.

“Did you see her pushing him at all?” Mr. Hurley asked.

“No,” Miss McDonald said.

    Woman’s Defiance Led Mugger to Kill Her, Accomplice Testifies, NYT, 5.10.2006, http://www.nytimes.com/2006/10/05/nyregion/05kill.html

Ex-chairwoman Among 5 Charged in Hewlett Case

October 5, 2006
The New York Times
By DAMON DARLIN

SAN FRANCISCO, Oct. 4 — Hewlett-Packard’s former chairwoman was among five people charged Wednesday with illegally gathering phone records of board members, journalists and others in an effort to find the source of news leaks.

The felony charges, filed by the California attorney general’s office, are the first stemming from a spying operation that ended last spring but came to light a month ago in disclosures by a disgruntled former director.

The case has rocked the company, forcing out the chairwoman, Patricia C. Dunn, along with the general counsel, a second director and two other senior officers. A House subcommittee held hearings on the case last week, and federal prosecutors have also been considering charges.

It was Ms. Dunn who authorized the operation, aimed at tracing leaks from the board, and put it into the hands of outside investigators. Those charged with her Wednesday included the company lawyer who supervised one phase of the operation and three detectives.

The charges stem from the use of pretexting, a form of deception, to obtain private calling records from phone company employees.

“We plan to aggressively prosecute this case,” Bill Lockyer, the state’s attorney general, said at a news conference in Sacramento. “However, the investigation into this matter remains active and still incomplete.”

The company’s general counsel, Ann O. Baskins, who resigned hours before the House hearing last week, was not among those charged. Nor was Mark V. Hurd, the chief executive, who has overseen a resurgence in Hewlett-Packard’s business that has buoyed its stock even in the face of the recent upheaval.

“There currently is no evidence that Mark Hurd engaged in criminal conduct,” Mr. Lockyer said.

Concerns over leaks from the board predated the ouster of Carleton S. Fiorina as chairwoman and chief executive in early 2005. In a memoir to be published next week, Ms. Fiorina says that she ordered an initial leak investigation shortly before her departure. [Page C1.]

The charges against Ms. Dunn, who is expected to appear in court within 24 hours, come as she battles ovarian cancer. “I truly hope Ms. Dunn wins her fight against this disease,” Mr. Lockyer said. “However, her illness has no impact on her culpability.”

A criminal complaint filed in San Jose, Calif., accuses all the defendants of four charges: using false pretenses to obtain confidential information from a public utility, unauthorized access of computer data, identity theft and conspiracy to commit each of those crimes.

Mr. Lockyer said the first three charges each carried a maxiumm penalty of three years in prison and a fine of $10,000.

A conspiracy conviction can bring a $25,000 fine and one year in prison.

Arrest warrants were issued for the five, who include Kevin T. Hunsaker, a former senior lawyer at Hewlett-Packard; Ronald R. DeLia, a Boston-area private detective; Joseph DePante, owner of Action Research Group, an information broker in Melbourne, Fla.; and Bryan Wagner of Littleton, Colo., who is said to have obtained private phone records while working for Mr. DePante.

An investigation was begun by Ms. Dunn in 2005 — involving leaks that were apparent in news articles just before and after Ms. Fiorina’s ouster — but it ended inconclusively. A second phase began in January 2006, after news reports about a management meeting indicated further leaks, and the effort was turned over to Mr. Hunsaker for supervision.

Ms. Dunn resigned from the board last month under pressure because of the methods used. Mr. Hunsaker, a senior counsel and director of ethics, was fired after he refused to resign, his lawyer said.

Robert M. Morgester, deputy attorney general for the state’s special crimes unit, wrote in a supporting document to the charges filed Wednesday that “both Dunn and Hunsaker were aware that the records were to be obtained by fraud or deceit.” He said Mr. Hunsaker provided continuous guidance to Mr. DeLia on which records to obtain.

The criminal complaint notes that the pretexting in the case involved the home, office, cellphone and fax numbers of 24 people. Mr. Morgester wrote that Mr. DePante’s firm, Action Research, analyzed 33 months of calls and retrieved information on 590 numbers that figured in those individuals’ phone records.

The complaint states that in April 2005, Ms. Dunn gave Mr. DeLia the home, office and cellphone numbers for company directors. In June 2005, Mr. DeLia told Ms. Dunn and Ms. Baskins, the general counsel, that phone records were obtained “by ruse” from a telecommunications carrier.

In addition to getting phone records directly from customer service representatives, the operation also involved access to records kept online. State investigators said they were able to find Mr. Wagner by tracking a cookie left on his computer when he used it to gain access to online records at AT&T. A cookie is a piece of computer code that identifies what computer has visited a particular Web site.

Although the operation for gathering of phone records stretched across the country and back again, California claims jurisdiction in the case because the detectives were paid by Hewlett-Packard, which is based in Palo Alto, Calif., and the planning was done there as well.

Of the charges against Ms. Dunn, Mr. Lockyer, the attorney general, said, “The person who orchestrated these illegal practices should be held accountable, not just those who carried them out.”

Ms. Dunn’s lawyer, James J. Brosnahan of Morrison & Foerster in San Francisco, said in a statement: “These charges are being brought against the wrong person at the wrong time and for the wrong reasons. They are the culmination of a well-financed and highly orchestrated disinformation campaign.”

The charges are yet another blow for Ms. Dunn. On Tuesday, a representative said Ms. Dunn was to begin six months of chemotherapy on Friday for recurrent advanced ovarian cancer. A friend said that she had Stage 4 ovarian cancer. She has survived breast cancer and melanoma, a skin cancer.

Stage 4, in which the cancer has spread beyond the abdomen to other parts of the body, is the most advanced, and only 29 percent of women with that stage are still alive after five years. The disease is so dangerous because it often has no symptoms until it has become advanced and has started spreading inside the abdomen.

Alison Davis, a managing partner at Belvedere Capital Partners, a private equity firm in San Francisco, called the charges against Ms. Dunn unbelievable.

“She stands for integrity and doing the right thing more than anyone else I can think of,” said Ms. Davis, who was chief financial officer of Barclays Global Investors, where Ms. Dunn served as chief executive.

Ms. Baskins, who as general counsel was Mr. Hunsaker’s boss and was involved in both the 2005 and 2006 phases of the investigation, may have escaped charges because she never passed on any phone numbers to a pretexter.

Her lawyer, Cristina C. Arguedas, with the firm of Arguedas, Cassman & Headley of Berkeley, Calif., said, “Ann Baskins did nothing that could possibly warrant a charge being filed against her.”

Other criminal defense lawyers said prosecutors might have a difficult time proving intent. To do so, they would have to show that the defendants had some appreciation of the wrongfulness of their actions.

“It can be a squishy concept,” said Matthew J. Jacobs, a former federal prosecutor and a partner in the Silicon Valley law firm of McDermott Will & Emery.

Getting a legal opinion and taking steps to establish the legality of an action can show a lack of criminal intent. Ms. Baskins repeatedly asked for verification that the methods the investigators used were legal.

The question of intent could also be raised for those charged, Mr. Hunsaker and Ms. Dunn in particular, several defense lawyers said. Ms. Dunn, who is not a lawyer, relied on the lawyers’ advice. The documents provided by the company show Mr. Hunsaker asked for legal opinions and did his own research to verify that what was done was considered legal.

In one set of e-mail exchanges between Mr. Hunsaker and Anthony R. Gentilucci, the company’s manager of global investigations, Mr. Hunsaker raises the question of legality. Mr. Gentilucci replied, “I think it is on the edge, but above board.” Mr. Hunsaker’s response was, “I shouldn’t have asked.”

Mr. Hunsaker’s lawyer, Michael Pancer, said in a recent interview that his client meant that he should not have asked because he knew that Mr. Gentilucci would have checked on the legality of the method.

Lawyers for Ms. Dunn and Mr. DeLia did not respond to requests for comment.

Mr. Wagner said he had been advised not to comment on the charges against him. He said, however, “If I would have known it was this high-profile, I wouldn’t have done it.”

Mr. DePante’s lawyer, Richard J. Preira of Miami Beach, Fla., said that “his conduct is not illegal” and that his client was a scapegoat. He also said, “the prosecutors are trying to fit a square peg in a round hole.”

Indeed, other defense lawyers and legal scholars not involved in the case said it would not be an easy one for the attorney general despite the mountain of documents provided by the company. The problem is that California had no law against the specific act of pretexting. So the prosecutors have to stitch together a set of laws to charge the defendants.

Defense lawyers are likely to try to exploit the weak seams. Take, for instance, the law that makes it a crime to use electronic media to take information owned by a public utility. The first problem, said Robert Weisberg, a Stanford University law professor, is whether a phone company can be considered a public utility anymore. The identity theft law makes it a crime to steal something of value — credit, goods, services, or medical information — Mr. Weisberg notes, but a defense lawyer could argue that phone records have no monetary value.

California made pretexting a crime, but the law, signed on Saturday by Gov. Arnold Schwarzenegger, does not go into effect until Jan. 1. It would not apply to any of the pretexting in the Hewlett-Packard case. Under that law, the penalty for a violation would be $2,500 and up to a year in county jail. Repeated violations would result in a $10,000 fine and a year in jail.

Reporting was contributed by Matt Richtel in San Jose, Calif.; Jonathan D. Glater in Sacramento; and Denise Grady and Miguel Helft in New York.

    Ex-chairwoman Among 5 Charged in Hewlett Case, NYT, 5.10.2006, http://www.nytimes.com/2006/10/05/technology/05hewlett.html?hp&ex=1160107200&en=21c8b8c9df58eba3&ei=5094&partner=homepage

Man charged with killing wife, 4 kids

Updated 10/2/2006 5:55 AM ET
AP
USA Today

NORTH CHARLESTON, S.C. (AP) — A man was charged Sunday with murdering his wife and her four children in a domestic dispute at their home, authorities said.

Michael Simmons, 41, appeared at a bond hearing via video link from the Charleston County jail on Sunday and was ordered held without bond on five counts of murder.

Officers discovered the bodies, including that of a 6-year-old, on Saturday after a witness saw the bodies in the home and called police, according to a police affidavit. Simmons was captured as he tried to drive from the scene.

The victims had been shot with a handgun sometime between 3 a.m. and 5:45 a.m., the affidavit said. Simmons was not the children's father, Charleston County Coroner Rae Wooten said.

Simmons and Detra Rainey Simmons had been married for more than a year, authorities and her relatives said.

"This appears to have been a domestic situation that turned deadly," said Spencer Pryor, a North Charleston police spokesman.

Melba Rainey Thompson said her sister worked at a hospital, was attending nursing school and was undergoing the second phase of chemotherapy for colon cancer.

"Her children were always there for her to comfort her when she went through the pain," Thompson said.

The coroner had earlier identified the victims as Detra Rainey, 39, and her children William Rainey, 16, Hakiem Rainey, 13, Malachia Robinson, 8, and Samenia Robinson, 6. Rainey Simmons had a fifth child, 21-year-old Christan, who attends Southern University in Louisiana, relatives said.

The family belonged to St. Andrews Episcopal Mission, where the children attended vacation Bible school and sang in the choir, relatives said.

"Words can't express the impact this has had on our family," relative Gene Fanning said at the bond hearing. "It's a devastating loss. We want him held fully accountable for his actions."

Fanning said later that Simmons was disabled and unemployed.

The jail did not have any attorney information for Simmons.

Monique Singleton, who lives across the street in the subdivision of about two dozen mobile homes, said that four children lived in the home and that her children occasionally played with them.

"They were nice people; they seemed fine," she said.

    Man charged with killing wife, 4 kids, UT, 2.10.2006, http://www.usatoday.com/news/nation/2006-09-30-sc-shootings_x.htm

Campaign Cash Mirrors a High Court’s Rulings

October 1, 2006
The New York Times
By ADAM LIPTAK and JANET ROBERTS

COLUMBUS, Ohio — In the fall of 2004, Terrence O’Donnell, an affable judge with the placid good looks of a small-market news anchor, was running hard to keep his seat on the Ohio Supreme Court. He was also considering two important class-action lawsuits that had been argued many months before.

In the weeks before the election, Justice O’Donnell’s campaign accepted thousands of dollars from the political action committees of three companies that were defendants in the suits. Two of the cases dealt with defective cars, and one involved a toxic substance. Weeks after winning his race, Justice O’Donnell joined majorities that handed the three companies significant victories.

Justice O’Donnell’s conduct was unexceptional. In one of the cases, every justice in the 4-to-3 majority had taken money from affiliates of the companies. None of the dissenters had done so, but they had accepted contributions from lawyers for the plaintiffs.

Thirty-nine states elect judges, and 30 states are holding elections for seats on their highest courts this year. Spending in these races is skyrocketing, with some judges raising $2 million or more for a single campaign. As the amounts rise, questions about whether money is polluting the independence of the judiciary are being fiercely debated across the nation. And nowhere is the battle for judicial seats more ferocious than in Ohio.

An examination of the Ohio Supreme Court by The New York Times found that its justices routinely sat on cases after receiving campaign contributions from the parties involved or from groups that filed supporting briefs. On average, they voted in favor of contributors 70 percent of the time. Justice O’Donnell voted for his contributors 91 percent of the time, the highest rate of any justice on the court.

In the 12 years that were studied, the justices almost never disqualified themselves from hearing their contributors’ cases. In the 215 cases with the most direct potential conflicts of interest, justices recused themselves just 9 times.

Even sitting justices have started to question the current system. “I never felt so much like a hooker down by the bus station in any race I’ve ever been in as I did in a judicial race,” said Justice Paul E. Pfeifer, a Republican member of the Ohio Supreme Court. “Everyone interested in contributing has very specific interests.”

“They mean to be buying a vote,” Justice Pfeifer added. “Whether they succeed or not, it’s hard to say.”

Three recent cases, two in Illinois and one in West Virginia, have put the complaints in sharp focus. Elected justices there recently refused to disqualify themselves from hearing suits in which tens or hundreds of millions of dollars were at stake. The defendants were insurance, tobacco and coal companies whose supporters had spent millions of dollars to help elect the justices.

After a series of big-money judicial contests around the nation, the balance of power in several state high courts has tipped in recent years in favor of corporations and insurance companies.

In the 2002 Ohio judicial election, for example, two candidates won seats that year on the seven-member court after each raised more money than one of the candidates for governor that year.

Corporate Giving Increases

Judges are required by codes of judicial ethics to disqualify themselves whenever their impartiality might reasonably be questioned over financial or other conflicts. Even owning a few shares of stock in a defendant’s company or seeing a relative’s name on a brief generally requires automatic disqualification.

But there is an exception to this strict rule: campaign contributions. Very few judges in the states that elect the members of their highest court view contributions as a reason for disqualification when those contributors appear before them.

Many judges said contributions were so common that recusal would wreak havoc on the system. The standard in the Ohio Supreme Court, its chief justice, Thomas J. Moyer, said, is to recuse only if “sitting on the case is going to be perceived as just totally unfair.”

Duane J. Adams, a plaintiff in one of the class-action suits heard by Justice O’Donnell, concerning defective cars, said he questioned the impartiality of the justices who ruled against him. Mr. Adams had sued DaimlerChrysler under the state’s lemon law, and he grew angry when told that the company’s political action committee had given money to justices in the majority.

“At the very least, it’s a conflict of interest,” Mr. Adams said. “These gentlemen, they should be prosecuted for what I consider is taking a bribe.” He and the other plaintiffs did not contribute, but their lawyers gave to the campaigns of five of the justices.

Precisely what contributors want or get for their money is unclear. Some contributors say they have no agenda beyond ensuring that able and independent judges are elected. Others surely hope to influence the justices’ votes in particular cases.

The middle ground, advanced by groups representing business, labor and plaintiffs’ lawyers, is to support justices who hold views similar to their own. “Various interests see voting patterns,” Chief Justice Moyer said. The alignment between contributions and votes, he said, is a matter of shared judicial philosophy.

If that is right, contributors are not trying to buy votes in particular cases. But they are trying to buy seats on the court.

And they are succeeding. Not long ago, the Ohio Supreme Court was controlled by liberal justices whose campaigns had been financed in large part by plaintiffs’ lawyers and unions. Now that business groups are outspending their adversaries, the court has become dominated by more conservative justices. And the court’s decisions are no longer markedly sympathetic to people claiming injuries.

Justice O’Donnell, a Republican, won his seat with the help of big contributions from the insurance, finance and medical industries. He is running for re-election this year, and his opponent, Judge William O’Neill, is making contributions an issue.

“We have to stop selling seats on the Ohio Supreme Court like we sell seats on the New York Stock Exchange,” said Judge O’Neill, a Democrat on the 11th District Court of Appeals in Warren, in northeast Ohio. He says he will not accept contributions.

Justice O’Donnell, who has raised more than $3 million since 2000, refused to be interviewed for this article despite more than a half-dozen requests to his campaign, his chambers and the court. In a statement, he said, “Any effort to link judicial campaign contributions received by a judicial campaign committee for major media advertising to case outcomes is misleading and erodes public confidence in the judiciary.”

“A judge,” the statement said, “may fairly and impartially consider matters despite receipt of the campaign contribution by the campaign committee.”

Interest groups play a powerful and generally accepted role in races for legislative and executive positions. But their increasing role in identifying and supporting judicial candidates is at odds with the traditional concept of what judges do.

“The role of the judge and the role of the legislator are completely different,” said William K. Weisenberg, an Ohio State Bar Association official. “You want a legislator to vote the way you would vote. When you go into court, you want someone to listen to the facts and decide the case on the facts and the law. We don’t want the umpire calling balls and strikes before the game has begun.”

Influencing the Bench

Many judges concede that sitting on their contributors’ cases creates the perception that their votes can be bought. But in public, at least, most insist the perception is wrong.

“All the surveys I’ve seen indicate that generally 75 percent of the people believe that contributions influence decisions,” said Chief Justice Moyer, a Republican. But when asked if contributions played a role in courts’ decisions, he said: “I don’t believe they do. I know they don’t for me.”

That view is not universally held.

“It’s pretty hard in big-money races not to take care of your friends,” said Richard Neely, a retired chief justice of the West Virginia Supreme Court of Appeals. “It’s very hard not to dance with the one who brung you.”

Indeed, according to a survey of 2,428 state court judges conducted in 2002 by Justice at Stake, a judicial reform organization, almost half said campaign contributions influenced decisions. And more than half agreed that “judges should be prohibited from presiding over and ruling in cases where one of the sides has given money to their campaign.”

The Times study explored the influence of money on judicial decision-making by asking two basic questions about the Ohio Supreme Court. How often did it hear cases involving major contributors? And how did justices vote in those cases?

The study considered only cases that were both significant and difficult. It excluded procedural decisions, including whether to hear or reconsider a case. And only divided cases — those in which there was at least one dissent — were considered, because those presented the most contentious legal issues. In the 12 years ended this spring, there were about 1,500 such decisions.

The study looked at contributors who gave $1,000 or more in the six years preceding the decision, the term length for justices.

It also considered, for the most part, only the contributors most directly affected by a ruling: the parties themselves and groups that filed supporting briefs urging the court to rule a certain way.

Contributions from lawyers were excluded from the study’s main findings. Lawyers are far more likely than other contributors to give to judges across the ideological spectrum, and — because their firms often handle a wide variety of cases — they generally do not have the intensely focused interest in the outcome of a particular case that their clients do. More than 200 times, moreover, justices sat on cases after receiving contributions from lawyers on both sides.

The court’s decisions, the study found, were rife with potential conflicts. In more than 200 of the 1,500 cases, at least one justice cast a vote after receiving a significant campaign contribution. On scores of occasions, the justices’ campaigns took contributions after a case involving the contributor was argued and before it was decided — just when conflicts are most visible and pointed.

Contributors did well with those whose campaigns they had financed. Of the 10 justices in the Times study, 6 sided with contributors more than 70 percent of the time. Justice O’Donnell, who has been on the court for only three years and has participated in fewer decisions than most of the justices studied, had the highest rate — 91 percent.

Lawyers who gave money were not nearly as successful. Five justices voted for the positions represented by these contributors half of the time, and the average rate was 55 percent. Recusals in cases involving contributors were all but unheard of.

Six of the seven sitting justices — all except Justice O’Donnell — agreed to interviews for this article, and all said contributions had not affected their decisions.

“There is a lot more to the story than the cold numbers suggest,” said Justice Maureen O’Connor, a Republican who voted for her contributors 74 percent of the time. Some cases are more significant than others, she said. Similarly, she and other justices criticized the decision to omit from the study the court’s terse rulings on whether to hear a case at all. Many of these decisions are routine or trivial, however, and the rulings themselves do not contain sufficient information to be readily categorized.

In his statement, Justice O’Donnell said that “selectively screening a limited number of case decisions results in a skewed outcome.” He did not elaborate.

But Justice Pfeifer, who voted for his contributors 69 percent of the time, backed the study’s methodology. “I quite frankly can’t think of another way,” he said. “You’re using the only yardstick that I’d know of that you can use.”

Several justices said they found Ohio’s money-fueled judicial elections distasteful and troubling. They pointed out, though, that Ohio law has mechanisms to limit contributions and to insulate justices from contributors, including a ban on personal solicitations by the justices. Some said they tried to avoid learning the identities of their many contributors, though they conceded it could sometimes be unavoidable. Justice Evelyn Lundberg Stratton, for instance, said she had attended 50 fund-raisers during her last campaign.

None of the justices interviewed suggested that more frequent recusals from contributors’ cases would be a positive step rather than a recipe for havoc. Last year, though, five justices did recuse themselves from a case involving a Republican fund-raiser, Thomas W. Noe. They had taken $23,510 from Mr. Noe and his wife. Appeals court judges filled in for the justices.

“It is not necessary for a judge to recuse himself just because an attorney or party has contributed to his campaign,” Chief Justice Moyer said in a statement at the time. “However, this is a high-profile case with political implications and with potential personal consequences for the campaign contributor in question.”

Some legal experts say that recusal should be the rule and not the exception. Indeed, in 1999, the American Bar Association revised its Model Code of Judicial Conduct to require judges to disqualify themselves if they received campaign contributions of a certain amount from a party or its lawyer. But the bar association did not name an amount, leaving it to the states should they adopt the code. No state has adopted it.

Unlike campaign contributions, direct gifts to judges, even relatively small ones, almost always require disqualification.

In 2002, for instance, the Ohio Supreme Court reprimanded a lower-court judge for accepting football tickets from Stuart Banks, a lawyer who had appeared before the judge. Yet three of the justices who issued the reprimand had accepted at least $1,000 each in contributions from Mr. Banks in the previous 10 years. Those same justices also sat on several cases in which Mr. Banks appeared before them.

Ruling on a Lemon Law

From the day he leased it in 1996, when it leaked transmission fluid all over the garage, Duane J. Adams’s Dodge Caravan was nothing but trouble.

“My wife went to start it at the grocery store, and the battery blew up,” Mr. Adams said. “We didn’t feel safe in it.”

Mr. Adams invoked Ohio’s tough lemon law, which calls for a refund for defective cars. DaimlerChrysler took the car back after an arbitration found the car defective but deducted a $6,000 “mileage fee.”

Mr. Adams and other Ohio car buyers filed a class-action lawsuit against three car companies that routinely imposed such mileage fees in settlements and arbitrations. Drawing on a 1996 appeals court decision that banned the fees and the fact that the Ohio Legislature had rejected such fees when it enacted the law, an appeals court allowed the case to go forward in 2003.

In the first week of November 2004, while the case was pending in the Ohio Supreme Court, the political action committee of DaimlerChrysler, a defendant, gave $1,000 each to the election campaigns of Chief Justice Moyer and Justice O’Donnell. Two months earlier, the committee of a second defendant, Ford, gave those same justices $500 apiece. From 2000, when the suit was filed, to 2004, when it was decided, the affiliates of the three companies gave $15,000 to four of the justices on the case.

Still, all four of the justices continued to sit on the case, and all of them were in the majority in the 4-to-3 decision issued on Nov. 10, 2004, just days after the last set of DaimlerChrysler contributions.

The justices ruled that the plaintiffs had voluntarily accepted settlement offers or arbitration awards with the mileage fee deducted. The ban on the fees applied only to lawsuits filed in court and not disputes resolved less formally, the majority said.

The three dissenting justices said the majority’s ruling gave the plaintiffs an impossible choice: to pursue a lawsuit that could cost more than the car itself or to accept the reduced sum.

Elaine Lutz, a spokeswoman for DaimlerChrysler, defended the company’s actions. “The contributions that companies’ PAC’s make are driven by the campaign calendar, not the judicial calendar,” Ms. Lutz said. Candidates for the court may accept contributions for about a year before an election and four months afterward.

Lawyers for Ford also said it complied with Ohio law. “By definition,” said one of the lawyers, John Beisner, “if you have an elective system, the judges are going to go to those with the greatest interest in the system to get their contributions.”

Car company lawyers said the contributions were merely an effort to level the field against big-spending plaintiffs’ firms. In the lemon-law case, though, the overall contributions were tilted heavily in favor of the companies and their own lawyers.

Mr. Adams and the other named plaintiffs gave no money to the justices. While the case proceeded, their lawyers contributed about $12,000 to five of the seven justices in the case, dividing their money roughly evenly between a justice who voted for them and several who voted against them. The law firms representing the companies gave only to the justices in the majority, for a total of more than $115,000.

That was consistent with national trends. “The current wars are epic battles between businesses and trial lawyers,” said Bert Brandenburg, the executive director of Justice at Stake. “Over the past half-decade, business groups are outraising and outspending trial lawyers.”

A week after the lemon-law case was decided, the court announced another ruling in favor of a business. This one halted a class action to support the medical monitoring of workers who had been exposed to beryllium, a potentially toxic substance. The vote was 5 to 2. Employees and the political action committee of the parent company of the defendant, Brush Wellman, gave a total of $5,700 to four justices, more than $2,600 of it after the case was argued and before it was decided. All four were in the majority.

Patrick Carpenter, a spokesman for Brush Wellman, said its political action committee “contributes to deserving candidates in the interest of advancing good government” and noted that the workers’ lawyers had also given to the justices. The lawyers gave about $20,000 to several justices, though most voted against the workers. Mr. Carpenter also said the company had lost a 2002 decision by a 4-to-3 vote, before the court’s conservative wing took over.

Michael Fincher, a 48-year-old roofer who was a plaintiff in the beryllium suit, said the contributions meant he had not received impartial justice. “I don’t think it’s appropriate, period,” Mr. Fincher said.

Screening the Candidates

Business groups have turned picking potential justices into an art.

“They study very carefully the field of potential candidates, really studying their backgrounds and what makes them tick, and picking a person who is liable to be leaning their way,” said Justice Pfeifer, who has shown an independent streak in his 14 years on the court. He did not name names.

Justice O’Donnell’s campaign materials say he is “rooted in law enforcement” as the son a Cleveland police officer. They also note that he served as a law clerk and taught elementary school students and paralegals. In 20 years on lower courts before his appointment to the Supreme Court in May 2003, he created a long paper trail of conservative decisions. On the Supreme Court, he has helped consolidate its transformation from a court that routinely ruled against corporations and insurance companies to one quite friendly to business interests.

In 2004, running to complete the six-year term to which he had been appointed, Justice O’Donnell had a million-dollar advantage over his opponent that led to an Election Day rout.

Now that same opponent, Judge O’Neill, is back for a rematch. His campaign slogan: “No money from nobody.”

Contributing to candidates for states’ highest courts can be money well spent in at least one sense: the courts are very powerful. They have the last word on most of the issues that come before them. The United States Supreme Court has no jurisdiction over cases that present pure questions of state law, and in any event it hears only about 80 cases a year.

The states use various methods to choose their judges. The approaches are often some combination of nominating commissions, governors’ and legislative action, and popular voting, including partisan contests and retention elections. Political machines still play a role in some states. In the federal system, by contrast, judges are appointed by the president, confirmed by the Senate and awarded lifelong tenure.

“Although there may be no good method of selecting and retaining judges, there is a worst method, and Ohio is among the states to have found it,” Paul D. Carrington and Adam R. Long wrote in a 2002 study of the Ohio Supreme Court in the law review of Capital University here in Columbus. “That worst method is one in which judges qualify for their jobs by raising very large sums of money from lawyers, litigants and special interest groups, and retain their offices only by continuing to raise such funds.” The problem, the authors found, is not a new one, but one that grows with the sums involved.

Ohio started electing judges in 1851, and the system seems unlikely to change. Voters overwhelmingly rejected a proposed return to an appointive system in 1987. In the 1980’s, a campaign for a seat on the Ohio Supreme Court cost $100,000, compared with the $2 million a candidate may raise and spend these days.

Much of the recent spending came from business groups furious with what they called a liberal “Gang of Four” on the court after a pair of 1999 decisions. One of the decisions struck down a law revising the treatment of injury cases. The other interpreted employers’ insurance policies broadly to cover some off-the-job injuries.

In 2000, business groups mounted a multimillion-dollar campaign to unseat Justice Alice Robie Resnick, a Democrat who wrote the first decision and joined the second. One advertisement showed a female judge switching her vote after someone dropped a bag of money on her desk.

Her opponent was Judge O’Donnell. He refused to denounce the attack advertisements, which seemed to backfire with voters. Justice Resnick won the election with 57 percent of the vote.

From that election on, “Ohio became a poster child for everything that was wrong with judicial elections,” said Mr. Weisenberg, the Ohio State Bar Association official.

Money poured in, from political parties, from trial lawyers and especially from business interests. Contributions from people and entities affiliated with the finance and insurance industries totaled more than $800,000 in 2004. Doctors and the health care industry contributed more than $440,000.

The Balance of Power Shifts

Interest groups on the other side give, too, and the justices they support overwhelmingly vote their way. But Justice Pfeifer says the balance of financial power has shifted to business groups.

“I don’t care how well a trial lawyer does or how big a pot a labor union has,” he said, “they can’t begin to match the business corporations. It’s not a fair fight.”

Justice Stratton, a Republican, said the recent contributions from business groups were a predictable consequence of a series of rulings “very strongly in favor of trial lawyers.”

“You only have the big money coming out,” she said, “when the court has swung too much to the left or to the right.”

In 2002, Lt. Gov. Maureen O’Connor, a Republican, won a seat on the court, replacing a more liberal Republican justice and altering the balance. Her campaign took more than $330,000 from affiliates of insurance companies and medical groups. Not long after she joined the court, Justice O’Connor wrote the opinion that overruled the 1999 insurance decision. Only four years after the court ruled that employers’ insurance policies covered many off-the-job injuries, it reversed course. “It serves no valid purpose to allow incorrect opinions to remain in the body of our law,” Justice O’Connor wrote for the majority. The vote was 4 to 3.

The shift in personnel had a prompt impact on other cases, too. Since then, law firms that work mostly for plaintiffs have fared poorly in the court. A look at a sample of 14 big plaintiffs’ firms showed that they won 64 percent of the cases in the study before 2003. In the next three years, after the rise of the court’s conservative wing, their success rate dropped to 17 percent. Since 1995, Ohio has imposed campaign contribution limits. They are $3,000 from individuals and $5,500 from organizations for each judicial election. Primary and general elections are counted separately.

A Critic Takes On the System

But, depending on how donations from individuals and political action committees are counted, the limits do not stop some businesses from making very large aggregate contributions. Affiliates, employees, officers and directors of the Cincinnati Insurance Company, for instance, gave more than $200,000 to Ohio Supreme Court candidates from 1998 through 2004.

Joan Shevchik, a spokeswoman for the parent company of Cincinnati Insurance, Cincinnati Financial Corporation, cited the effort to overturn the 1999 decision as a reason for the contributions, but emphasized that the corporation itself gave nothing. “As insurance professionals,” she said, “each of us sees up close the immediate impact that the Ohio Supreme Court has on the industry, our company and our policyholders.”

There is a small printing press in the garage of Judge O’Neill. In the evenings, he and his children produce fliers for a long-shot no-money campaign for Justice O’Donnell’s seat on the Ohio Supreme Court.

“We’re going to do a million pieces for $4,000 from my pocket,” Judge O’Neill said, explaining that he will not accept a penny in contributions. Even some of his supporters view his effort as quixotic, notwithstanding the higher ratings Judge O’Neill gets from many Ohio bar associations.

“They’re out soliciting the next million dollars to beat me,” he said. “The insurance industry, the manufacturers and now the doctors treat the Ohio Supreme Court as a personal piece of property.”

Justice Resnick, the last Democrat on the court, is retiring this year, and her seat is also open, making an all-Republican court next year a distinct possibility.

Marc Dann, a Democratic state senator running for attorney general, said Judge O’Neill’s strategy might have been driven by necessity as well as principle.

“Best case,” Mr. Dann said, “maybe he goes to the plaintiff’s bar and labor unions, and maybe he raises $300,000. To do a good week of TV in Ohio is $750,000.”

Judge O’Neill’s assertion that seats on the Supreme Court are for sale infuriates many in the legal establishment in Ohio, and in July 2004 the Disciplinary Counsel of the Ohio Supreme Court began an investigation into whether Judge O’Neill had violated judicial ethics by making similar statements in the last campaign.

Judge O’Neill laughed when asked if the investigation worried him.

“I am a Vietnam veteran, and I lost my wife 10 years ago,” he said. “I raised four kids by myself. When you talk about fear, I fear big things in life. Being hauled before a disciplinary counsel does not qualify.”

For the time being, a federal judge has suspended the investigation on First Amendment grounds. If the Ohio Legislature is troubled by Judge O’Neill’s conduct, the federal judge, Ann Aldrich wrote, “the proper solution is to stop electing judges and make state judgeships appointed offices.”

Judge O’Neill disagreed. He likes elections, he said.

“We have more authority over people’s lives than anyone else in elected office,” he said. “We decide who goes to jail and who gets out of jail. We decide what happens to your life savings after you die. We decide whether or not you will be permitted to finish raising your child. I can’t think of any other industry that has a more profound impact on people’s lives. And it is arrogant at best that some committee should make this appointment.”

But Chief Justice Moyer said the flaws in Ohio’s approach were the product of elections.

“In a perfect world,” he said, “you would have justices being selected not based on the amount of money their campaign committees can raise from various interests, but on their character and record — and somewhat on judicial philosophy, certainly, but in a more abstract way.”

Adam Liptak reported from Columbus, Ohio, and New York, and Janet Roberts reported from New York. Mona Houck contributed reporting from New York.

    Campaign Cash Mirrors a High Court’s Rulings, NYT, 1.10.2006, http://www.nytimes.com/2006/10/01/us/01judges.html?hp&ex=1159761600&en=eb4c4da418c95a09&ei=5094&partner=homepage

Small-Town Courts: A Pattern of Justice Denied (9 Letters)

October 1, 2006
The New York Times

To the Editor:

Re “In Tiny Courts of New York, Abuses of Law and Power” (“Broken Bench” series, front page, Sept. 25):

As a former village justice in Dobbs Ferry, I commend your article about the problems and shortcomings of the town and village court system of New York State.

Although in some areas — Westchester County, for example — the standards and quality of the local courts are generally very good, the systemic problems are severe indeed.

These local courts are important. People need to be able to have resolution of relatively minor disputes, including traffic offenses, without the expense of hiring a lawyer. But that puts an extra burden on the judge.

Without a lawyer to guide the party before him, the judge must be both knowledgeable and sensitive. That these qualities are often missing, because of the methods in which local judges are chosen, is the most upsetting revelation of your article.

There is a solution, if the Legislature is willing to move. That solution requires that all local judges must be lawyers; that local judicial elections be abolished and that local judges be appointed, preferably by the county executive rather than by local officials; that an appointment be from a group recommended by an independent judicial screening committee; and that there be a uniform and fair system of compensation for these judges.

Herbert Rosenberg
Dobbs Ferry, N.Y., Sept. 25, 2006

To the Editor:

Re “Delivering Small-Town Justice, With a Mix of Trial and Error” (“Broken Bench” series, front page, Sept. 26):

Although I applaud efforts to provide more money and training to our local judges and recognize the seriousness of the particular incidents you identify, this is not the whole picture.

Before I became a lawyer in New York City, I served five years as a police officer in upstate New York. I appeared in numerous village and town courts, mainly in Tompkins and Cayuga Counties, and was struck by the dedication of these judges, their desire to do the right thing and their competence in protecting due process rights.

Indeed, judges who were retired law enforcement officers seemed to have a better grasp of the procedural protections afforded by the Constitution than many lawyers.

I never witnessed any abuse of power like those described in your series, yet you make it sound as if such incidents are commonplace. In my experience, they are not.

We should thank these judges, who work for little pay and are often on call 24 hours a day, seven days a week in the service of poor rural communities. It is a mistake to equate the fancy courtrooms familiar to many Manhattan residents with due process.

David M. Fine
New York, Sept. 26, 2006

To the Editor:

You offer a vivid but one-sided account of how town and village courts work in New York State.

This underfinanced, underappreciated sector of the state’s judicial system deserves journalistic attention, but it should focus on the scandal of state underfinancing for judicial education, on the inefficiency of having so many small courts, and on the inadequate resources for oversight of local justice.

Instead, your article links each abuse it describes to the working-class background of the judge, implying that lawyer-judges are the answer to injustice in the courts. Yet law school provides education in advocacy, not justice.

New York needs to invest in judicial education, particularly at the local level with all its complex challenges.

Doris Marie Provine
Tempe, Ariz., Sept. 25, 2006
The writer, a professor in the School of Justice and Social Inquiry at Arizona State University, is a lawyer and former town justice (Virgil, N.Y., 1978-82).

To the Editor:

Re “How a Reviled Court System Has Outlasted Many Critics” (“Broken Bench” series, front page, Sept. 27):

The best and surest way to correct the abuses of small-town justices is to sue for violation of civil and judicial rights. A few bankrupt towns, and word will get out to clean house.

Local governments and residents will do quickly and efficiently what the state is unable or unwilling to do.

Recalls work very well when higher taxes are in play.

Don Bruhnke
Palm Springs, Calif., Sept. 27, 2006

To the Editor:

Your series uncovers the “dirty little secret” of New York State’s “justice” court system.

It flies in the face of our Constitution and our Bill of Rights that in this day and age, human beings are tried, convicted and sentenced in justice courts by non-lawyer judges who have no legal training with no qualifications other than the backing of the local political party.

Thousands of New Yorkers have been and continue to be subjected to the abuses outlined in your exposé on village and town “justice” courts.

A day of reckoning is on the horizon. Our next governor and the Legislature must put in place a statewide justice system that finally addresses the inequities that the current “justice” system visits upon all New Yorkers.

There has never been a system; let’s implement one now!

Ray Kelly
President
New York State Association of Criminal Defense Lawyers
New York, Sept. 25, 2006

To the Editor:

The pernicious effect of untrained “judges” extends beyond that of the immediate cases.

Potential litigants, instead of finding sympathy and counseling in cases of domestic violence, are discouraged from trying to work within the system, fearing scorn. This erodes faith in justice over all.

Sophia Sedlis
New York, Sept. 25, 2006

To the Editor:

These so-called courts process all the traffic tickets. How many of those traffic tickets reflect actual violations?

A local police officer or county sheriff issues a speeding ticket to a hapless traveler who lives hundreds of miles away from the court of jurisdiction. It is useless to contest the ticket; the judge will accept the police officer’s or sheriff’s word without any substantiating evidence.

Those fines are a bonanza to the towns and the state that receive the surcharge added to the fine.

Joseph Tobin
New Hartford, N.Y., Sept. 25, 2006

To the Editor:

Illinois had a justice of the peace system when I began practicing law in 1951. Like New York, these judges had varying amounts of training and preparation. The vast majority were ill prepared.

I recall handling a preliminary hearing in a murder case at 9 p.m. in a barbershop in Robbins, Ill. It was a joke. Many of the justices of the peace were corrupt. Racism was rife.

The examples in your series are tame in terms of the abuses I witnessed. It took a constitutional convention and a public that was fed up to put an end to our legal morass.

Adam Bourgeois
Chicago, Sept. 25, 2006

To the Editor:

Sometimes small things show greatness as well as big things.

Your diligence in exposing abuses by quaint justice courts in New York State (“Broken Bench” series, front page, Sept. 25-27) shows the press at its best as a protector of freedom.

It also provides a textbook example of the difference between a government of men and a government of laws.

William L. Clovis
Philadelphia, Sept. 25, 2006

    Small-Town Courts: A Pattern of Justice Denied (9 Letters), NYT, 1.10.2006, http://www.nytimes.com/2006/10/01/opinion/l01court.html