RUDY VERITAS

OLD MUSINGS

HARD WINTERS

While heading home last night on the 4 train who should be standing a few feet away from me in the car but Rep. Vito Fossella.  Clearly his troubles have not taken a toll on him, at least physically.  He looked trim, tanned, healthy, and dapperly dressed.  He, like the friend he was traveling with, had very slicked back hair.  You don't see many members of congress on the subway.  He still is, for now, a member of congress.  I thought he made a mistake in not running.  I can speak from personal experience that the worst time to make serious judgment calls is when you are smack in the eye of the hurricane.  Very few of us have the cold, steely nerve to ignore the maelstrom and focus.  He may not have won but I believe only because the Obama tsunami turned everything blue.  There was no way of knowing about that back in June.  I always liked Vito, although we didn't have a great relationship.  I am a very loyal friend.  Any enemy of a friend becomes mine.  Vinnie LaPadula hated Vito - mostly jealously.  So I always viewed Vito askance.  Stupid, I know.  Vinny was constantly spreading rumors that Vito was secretly gay.  I think we all know now that's probably far from the truth.  I'll be writing at a later point my view as to Vinny's motivation for casting aspersions on other's sexuality.  A view shared, I might add, by his then roommate, Tony Carbonetti. But why am I writing about Vito Fossella?  I'm not. 

While on the subway last night with Vito, I saw an ad from the NYC Dept. of Health.  It told me the calorie count of some muffin.  I recalled then that in the morning one of the free papers, AM Metro, was sponsored by the NYC Dept. of Health.  It was an anti-smoking ad.  Now those ads are not free.  Even the subway ads aren't free.  It got me thinking and steaming.  Here we are in perilous budget times.  Mayor-for-life Mike is bringing us to a constitutional crisis regarding his unwillingness to expend approved funds and the NYC Dept of Health has the funds and license to wag its finger at me about trans-fat and nicotine.  This is an example of how a government should not be run.  You cannot claim that we are in the midst of a crisis and then not have your agencies reviewing all their outlays.

I recall vividly being at a budget meeting at the height of the budget crisis in '94' when the mayor specifically asked the question about public service ads.  It made no sense to him having the agencies spending money on PSAs when he was wrestling with serious cuts.  They, for the most part, were removed.  It was a sign that Rudy wanted everything - minus cops and fire - on the table.  Nothing was too frivolous.  Why?  Because messages get sent when the public sees these ads and is being told their subway fare has to go up.  Or as in the case of the Dept. of Health, we read today that DOH will be closing free dental clinics for lack of funds.  Now I am not suggesting that removing Dr. Frieden's war against fat and smokes is going to close that gap.  I am not.  I am saying that it matters as to its perception.  I am tempted at this point to quote Evertt Dirksen, but everyone these days does that.  But you get my meaning.  It all adds up. If the point is made that those DOH funds are already in this year's budget, there is a very simple process by which the Mayor, through his legislative office, requests a change for existing funds to be used for another purpose.  It's done routinely.

But this administration is not the one for hard winters.  Mayor-for-life-Mike and Co. aren't up to the task.  They haven't had to and frankly he's assembled a team that isn't capable of weathering difficult times.  Gov. Patterson was smart enough to see his own holes and rightly hired Marc Shaw recently (someone the Mayor should have re-hired).  He knew he had to beef up his team to have any hope of getting  through this.  But no such awareness exists in the silly bullpen located in the Public Hearing Chamber at City Hall.  Who is this administration's Abe Lackman, Marc Shaw, Peter Powers or even Carol O'Cleireacain?  Who is riding herd on the agencies and challenging them when they present ridiculous budget cuts.  Ed Skyler?  Patti Harris? Mark Page?

The longevity of the NYC Budget Director is counter-intuitive to how we think in usual management terms.  A top rate budget director cannot be so and hold his job for too long.  He either gets worn out by the constant never-ending struggle to make the agencies toe-the-line or he is so successful that the withering abuse heaped on him cannot be sustained for long.   Mark Page has held that job, and will continue to do so, for at least eight years, a modern record.  Mark is an OMB lifer, a tron.  He's a smart guy, no question.  But he's not the guy you want cracking the whip.  He's not an innovator.  He's a functionary.  When the time comes - and it's here - for hard choices; for figuring out how to do more with less, you don't want Mark Page leading that effort.

I was shocked - like Claude Rains was shocked - to discover that Mayor-for-life-Mike has no regard for the role of the legislative body.  Were they shocked?  Sure he throws them bucks from the City or his checkbook.  He makes nice when he wants to succeed himself in office.  But when he doesn't want to issue checks approved of in the budget, screw em.  He knows best. That's why they up-ended the public will to keep him, right?  He's our savior.  Richard Nixon tried this and congress had to enact impoundment legislation to prevent any president from diverting or withholding approved spending.  And here we are thirty-plus years later fighting the same battle.  Surely, the City Council can pass similar legislation; overriding an expected veto in the process.  But no guts.  Mayor-for-life-Mike has them bought lock, stock and member item.  These are the 'leaders' you all want to keep around for another term.  This is the best we can do.  It's pitiful.

 

REVELATIONS

One of the newspapers I was reading this morning noted that crime in the city was on the rise and listed a series of charts and stats to demonstrate the point.  I had promised you this piece last week and today seemed to be the perfect day to publish it given that news.

On two separate occasions in April of 2001, (read Postscripts for how I recall the date) Tony Carbonetti revealed an extraordinary secret to me.  We were at his home for both conversations.   What precipitated this discussion I no longer recall.  But we were in his living room and in regard to something I had just said, Tony was trying to counter by making the point that any absolute can be fixed or fudged.  "It's like the murder stats," he said.  "What can you possibly mean?"  I responded.  He gave me a half cocked smile as if to say, "Come on, be real."  "Those numbers aren't real," he told me.  I was totally stunned.  It wasn't that I didn't think we were capable of playing with numbers.  I had just always assumed that the bedrock of Rudy's legacy, the extreme drop in crime, was real.  We had made a fundamental difference based on our policies and practices.  "Wait a minute, hold on," I said, "what are you saying?  You can't fudge dead bodies.  They either are or they aren't.  You count em up and come up with a total.  How in the world do you massage that?"

He gave me a look.  The kind of look you give an idiot child, but one you care about; exasperated and patient all at the same time.  "Happy Land," he said.  "What, the fire?" I asked. 

Happy Land was a low-rent social club in the Bronx that had a devastating fire that killed a lot of people during the Dinkins Administration. It was arson so the deaths all counted in the murder statistics that year.  It wasn't really fair, statistically.  It took what was already a bad annual number and made it much worse. For Dinkins, I mean. 

"What if instead of counting all 40, or whatever the number was, you only counted it as one.  Counted the incident instead of the bodies." 

"Jesus," I said, "they did that?  "No, Dinkins didn't miscount the numbers.  Besides they couldn't do that with Happy Land, the number was too public,"  Tony explained.  "But you're saying we do that," I asked,  "count incidents instead of bodies when there are multiple murders?"  "Yea, sometimes," Tony admitted.   But I got the impression that because of my stunned reaction he was softening his answer.  I got the sense from him that we were doing this more than just 'sometimes."

I was really floored.  I was as stunned by that as by anything I had learned up till that point during those seven years.  If you told me we played with the welfare stats and that the number hadn't come down from 1.5 million to half a million, I could have easily accepted that we played with those numbers.  But the murder stat?  That was the indicator that we and everyone else used to herald the amazing change that had taken place in NYC. People all over the world knew about that number.  Trust me, I met with lots of foreign delegations and they all knew that year's murder stat and our cumulative crime reduction percentage.

When I left his office I felt a little sick and a little sad.  I also wondered who at PD was responsible, actually responsible, for fixing these numbers.  And who else at at City Hall besides Tony knew about this.

A few weeks later I was hanging out at Tony's apartment.  I don't know where Vinny was but he wasn't around.  We were watching TV and something came on the news about the police.  The reference was negative.  Tony got kind of sullen and lowered the sound on the TV.  "I was in Rudy's office the other day and you're never going to believe what he said to me."  Rudy had been extremely moody and I could imagine Tony telling me just about anything.  "God, what now?"  I asked.

"We were in his office, just him and me.  We had just finished a meeting with Kerik and some guys from PD.  The meeting hadn't gone well.  After they left he says, sort of to nobody, although I was the only one there, "They're out of control."  Who is? I asked him.  "The cops.  I've lost control.  It's too far gone for me to do anything about it.  There's nothing I can do at this point."

"Holy shit," I said to Tony, "have you ever heard him say anything like that before?"  "Never," Tony said, "he's never even hinted before that he feels that way."  "Where did it come from then?"  I asked.  "I don't know," Tony said, "it must be how he really feels."

That admission by Rudy was startling to me for a few reasons.  First, I wasn't aware that he had acknowledged to himself what we all knew; that the cops had become uncontrollable in the city.  Rudy was always the first to defend any PD action as history documents so well.  Everyone else around him knew there was a serious problem but no one had ever heard him acknowledge it before.  Second, it sent a chill through me to think that if he, Rudy, the mayor and chief police booster felt that the problem was so bad that even he couldn't control it, then we were in some serious trouble.  I also knew that Rudy and Tony knew things regarding police actions that I was certainly not aware of and that statement by him made me think that there must be a lot more bad shit going on then I ever could have imagined.

POSTSCRIPTS:

Just for the record and since I do remember the date I thought I would recall why.  I had just returned from a conference in Tampa immediately before my first conversation with Tony and I know the second conversation happened a few weeks after the first.  Since I know that the conference was in April of 2001 I can place these events in that period.

NO MY YOB

For those of you too young to remember, before cute Freddie Prinze, Jr. of 'Scream' fame, there was his father, Freddie Prinze, Sr.  He, his character, had a catchphrase back then that he used whenever he was asked to do some work.  It was, "No my job."  Except he said it in a thick Hispanic accent and the J was pronounced like a Y.  I think Mayor for Life Mike is channeling the late Prinze, Sr. these days.  In today's papers it is reported that when asked about the horrible condition that the MTA is in financially, and the possibility of a major fare hike on the public, Mayor for Life Mike said, "It's a state agency."  I guess it is lost on him that there is a reason that the Mayor has a substantial minority of appointments to the MTA Board.  It is to affect the process and the decisions that come out of that board.  They are his voice and represent his views.  Moreover, with an activist mayor, like Giuliani, a vocal and aggressive minority can be used to create a majority.  The mayor can shape policy and direct the agenda of the MTA.  The suburban counties are each represented on the board and have, unlike the city and the state, 1/4 of a vote each.  Seth Kaye always used to refer to them as the 'Quarter Pounders."  With their voice and collective vote the mayor can challenge the Governor should he choose to. 

The problem for us in New York City is that we don't know what we want.  I don't mean the mayor, he knows that he will shrink from any tough choice or difficult task.  Make no mistake that is the hallmark of his mayoralty.  I mean we as citizens of the great city don't know what we want from this man.  We seem to like his aloofness and passivity on most matters.  We claim relief that he's so non-confrontational unlike Rudy.   The problem arises at moments like this one.  History and human nature tells us that you can't turn on and off forceful leadership.  You either are that person or you're not.  Mayor for Life Mike is not a forceful leader.  He is not a leader at all.  But the scary part is that he says so very plainly.  It's one thing to try and lead and be terrible at it - David Dinkins - it is almost unprecedented to say matter of factly and routinely that you have no desire to lead.  What is even more astounding to me is that the populace seems to find this a praiseworthy trait and wishes, if the polls are to be believed, to reward this man with four more years of non-leadership.

I work near a great hole in the ground.  That hole has been there for seven years.  It is a monument to Mayor for Life Mike's non-leadership that it is still empty.  Again, he says - up until very recently and only because the newspapers were finally on his case - that he has no interest in the future of Ground Zero.  It's a state problem because they control the Port Authority.  Just like he says transit is a state problem because they control the MTA.  We accept his passivity and are all the worse for it.

It is often said that the public has disdain for elected officials.  I have news for you; having worked for a few they disdain you right back.  The public gets what it deserves and almost always does.  Mayor for Life Mike is openly contemptuous of the little people who work for a living.  He can't relate to the average New Yorker, and to his credit, makes very little artifice to try and pretend otherwise.  It's so apparent that he couldn't.  And yet people eat his contempt for them up. They seem to say, "He thinks I'm scum and gosh, I admire his candor."  He has poll numbers in the 60+% range.

It can't be his stewardship of the city.  No one can reasonably say he is leaving NY in a better place than when he found it with the exception of a huge amount of new luxury housing.  If that is to be considered bettering the city.  On the budget, this Independent, behaves like a classic liberal democrat.  In good times balloon the budget, give the unions everything (including costly legislative initiatives in Albany), and swell the headcount.  In bad times, slash the budget and raise taxes.  He has nearly doubled the budget since taking office. He has demonstrated no ability or interest to create lasting structural change in the way the City does business.   And what have we to show for it?  Has a single major initiative come to fruition?  Hunter's Point, Willet's Point, the West Side expansion, the Olympics, Atlantic Yards, Coney Island, Moynihan Station, New MSG, Ground Zero, and on and on and on.  Now incredibly the man behind each of these failed or failing initiatives is Dan Doctoroff.  This time channeling Ike, Mayor for Life Mike said, as Ike did of Sherman Adams, "I can't live without him," and had the Conflicts of Interest Board waive serious protections so that we could all continue to benefit from Doctoroff's failure of leadership.  Some pair these two make.  But again, it is clearly what the public wants. 

Moynihan Station (Farley) should have been completed by now.  But Mayor for Life Mike says he wants no part of the responsibility because it's messy; there's state, federal and city overlaps.  So because the state can't get its act together, the city does nothing.  And yet he has decided to serve in office in perpetuity and to succeed himself all without any referendum.  Even dictators in banana republics at least go through the farce of a public referendum on their continued tenure.  Saddam Hussein realized he need the cover of a public vote.  That periodic 99% yea vote he received counted for something at least from a PR perspective.  But Mayor for Life Mike cannot be bothered with even the simplest trappings of democratic government.  He makes Baby and Papa Doc Duvalier look like John and Samuel Adams.

But this is what we want and so this is what we shall have.  Four more years of non-leadership and stagnation. The great city moves not forward but sideways.  There will always be a reason for a non-leader to decline action.  The question I cannot get my head around is why we so desperately want this.  But just remember - when you're paying $3.00 to ride the subway don't blame Mayor for Life Mike.  That's how he wants it.  And apparently so do we.

THE SAVIOR?

Today's New York Post says that key state Republican party leaders are seeking to replace Joe Mondello with Rudy Giuliani.  They say he is the savior of the Party.  Hmmmm.  Anyone happen to see Newsweek naming Rudy one of the ten losers coming out of the 2008 campaign?  Or on their chutzpah scale rating him highly for cravenly pandering to New Hampshire voters by saying that this life-long, die-hard Yankee fan would root for the Red Sox in a World Series?  I think the state party is conveniently missing the message from all this.  John Faso could not have stated the problem more clearly than in his piece in last week's Post.  The state senate Republicans are what's wrong with the state party, not Joe Mondello.  Yes, Joe Mondello was/is a poor chairman.  He was a pick from a former era.  But the reason the public turned so blue on Tuesday was because for years now the senate leadership has offered no alternative to the Democrats.  Faso hit the nail on the head when he said that it would have been unthinkable under Ralph Marino to even consider congestion pricing let alone endorsing it.  But the state party has sold their soul to Mike Bloomberg.  Without his annual $500K they would have no functioning outreach apparatus.  He's not a Republican, never was.  Yet they take his money and endorse his left-wing agenda.  I suppose it is more honorable than taking his money and opposing his agenda, but all the same they've sold out.

As for Rudy "coming home" and saving the day.  Which Rudy is it exactly who will be riding that white stead?  The pro-immigration Rudy who saved but one outreach liaison office when he took over in 1994, that being the Mayor's Office of Immigration Affairs, or the Rudy who now believes we need to beef up the borders and re-examine amnesty?  The unflaggingly pro-choice Rudy or the one who believes we need more pro-life Supreme Court appointments?  The virulently anti-gun Rudy or the one who thinks we need a second look?  I could go on and on.  He sums up the problem in Albany and across the state party.  We don't have any firm convictions so why would anyone vote for us?  His or Tony Carbonetti's appointment as State Chair would only underscore the problem.  Their is no quick fix to this problem - people don't trust us.  Trust has to be won back over time.  Trust me, I know.

Set out a clear moderate-libertarian program -pro-choice, lower taxes, smaller more efficient government, new investment in infrastructure and high-speed rail, opposition to any Bloomberg efforts to tax bridges or entry-points, a true bi-partisan plan (not ESDC corporate boondoggles) to solve the systemic economic troubles of the upstate economy, decriminalize marijuana possession and drastically reduce the prison population and wasted law enforcement resources.  These are just a few ideas, I'm open to many more and a discussion of what our state party is and where it is going.  More of the same will get you more of the same.  Namely, a lot more counties turning blue.  This 1980's experiment of turning the state Republican party into the state Conservative party failed.  We've now tried turning it into the state Democratic party which the results of last Tuesday show us worked no better.  Is Rudy the savior?  I've written here repeatedly that old Rudy could have been.  I've seen no evidence that new Rudy gets it.

THE TRAP

Barack and Michelle Obama are to visit the White House today for a sit-down with George & Laura Bush.  This is a trap.  Forget the fact that Obama should have refused because, to my knowledge, no president-elect has visited the White House before inauguration day - that is usually left up to the first ladies.  The real reason to have refused is not precedent, but because Bush is laying a trap.  Bush knows, somewhere in his rational consciousness, that he is now the worst president since James Buchanan, notwithstanding all these allusions to Truman and Washington.  Therefore, the charm offensive is on. Bush is convinced that his winning, one-on-one personality is going to charm Obama today and make it harder for the new president to say the kinds of things about Bush and his Administration that need saying during the next 6-12 months.  Of course it won't effect the parachute teams landing at federal agencies over the next few weeks.  They will do their work and make their recommendations.  But what Bush is after is the rhetoric.  Tone down the anti-Bush language and the public perception that will now be firmly set will be tamped down.  Obama will come away thinking Bush is really an OK guy.  Yes, a disastrous president, but a charming an affable man who probably meant well.  "It was all Cheney's doing", he'll think.

It is important, for the record, the nation, and the hard Obama supporters to hear the truth about the man and his record over the last eight years.  I fault Obama for not saying this in much starker language than he did since the convention.  Ronald Reagan made Jimmy Carter a pariah for the next 20 years by the tone he set regarding his predecessor during his first years in the White House.  It wasn't permissible to have Carter for dinner in polite society.  What exactly do the Obama people think is motivating Bush in this invitation and the outstretched hand to offer "all possible assistance"?  Because after shredding the Constitution for eight years he now is feeling presidential?  Nonsense.  This is all an effort to blunt what he knows should be coming.  This cozy little group of ex-presidents and their fraternity is supposed to be admirable.  They call each other for advice and attend each other's functions.  This can't happen with Bush.  If Obama treats him as just some well-meaning but failed ex-president, history will not forgive him and I suspect neither will his base.

UPDATE 11/7

Sorry I have been remiss in keeping the content fresh.  I will do a better job starting next week.  Things to be on the lookout for in the coming days:

1. There seems to be a lot of talk about the deal that EDC/IDA cut for the Yankee Stadium project.  I can't shed any light on that, although I'll have some thoughts, but I can tell you in detail about how Randy Levine cost the city millions of dollars and abused his office as Deputy Mayor for another sweetheart deal that the IDA did during my tenure at EDC and how I tried, unsuccessfully, to stop it.

2. I'll be posting a piece called 'FAVORS' that will give you some small idea of the power that Tony Carbonetti wielded over city agencies and again, how the taxpayers were shut out of millions of dollars.

3. In another piece called 'REVELATIONS' I will tell you of two extraordinary pieces of information  I learned of from Tony in April of 2001.

4. And lastly, I will begin the process of chronicling my legal case.  I can promise you it won't be as dry as it sounds.

Please bear in mind that the biggest piece I have written I am saving for the end.  That may be weeks or months from now.  It details how, unbeknownst to an entire city, the government of New York City came to a halt and ceased to function for two weeks.  You'll never guess why.  Look out for that piece in the weeks ahead.

The Day After

I am reminded this morning of September, 1939.  On the 3rd of September, France and England had finally called Adolf Hitler's bluff and were declaring war after years of appeasement.  Hitler, not having expected to be met with real resistance, turned to Von Ribbentrop and said, "What now?"

My guess is that both the Obama transition and the country as a whole, are waking up this morning asking a similar question.  A columnist for the NY Times this morning defended Obama's lack of specificity during the campaign by saying that the New Deal wasn't the New Deal until after FDR took office, the nation had no idea what he would do and that the first referendum on it in wasn't until the 1936 election.  That of course isn't true.  The Roosevelt campaign of 1932 outlined a number of proposals and concepts that would eventually make up many of the alphabet agencies.  Most came from his years as Governor of New York.  People could look at his record, to paraphrase another NY governor.  Obama never did that.  I haven't the faintest idea of what an Obama legislative agenda looks like for the first 100 days.  I can not remember that happening in my lifetime, that on the day after a presidential election I would not know what the major proposals were going to be for the new administration.  That is where all this hope talk comes in.  Hope in better days but also hope in what is going to happen.  No one really knows.  I jumped in.  I voted Democratic for the first time in a national election.

On election night 1994, Peter Jennings, a liberal Canadian, famously, condescendingly, and derisively said that, "the nation was having a temper tantrum", as he saw the sea of red wash over the map behind him.  He misunderstood the mood of the country and the real yearning for a different path that night.  Last night, I believe the nation needed and took a shower.   The results show two intents at play here amongst the electorate.  First, the shower.  The country needed to vigorously cleanse itself of George W. Bush and the last eight years.  It needed to scrub away the sick feeling most of us feel deep in our gut about where our nation is and what we've become.  Many of us believe we are no longer a real force for good in the world.  At least it is not our intent to be.  Whatever role we played in electing and re-electing George Bush or supporting him when his numbers were high, we now need to rid ourselves of the guilt and the shame.  People are looking for self-redemption and the only way was through the pulling of a lever in that booth.  Closing that curtain and pulling the lever for Obama was something akin to a civic confessional. 

A President who spent his days in the Oval Office approving and analyzing different methods to torture people is someone we all should be disavowing and that is what last night was about.  It is hard to comprehend the 180 degree turn that occurred yesterday.  We have gone from the most conservative - and I don't like using that word in describing George Bush - to perhaps the most liberal president ever.  Not over a generation but in a single night.

The other intent in electing Obama yesterday was this over-used word hope.  I have seen that word used in every presidential election:  Clinton used it to death, Carter after Watergate, Reagan after Carter.  But I have never really seen the country vote while crossing its fingers and hoping for better times.  You would really have to go back to '32' to see that kind of blind faith in the outcome.  It is almost religious. 

The big question for me this morning is where does my party go from here.  A lot of talk last night was expended about the dismal prospects for the GOP and who will lead us back.  The real problem is that I am convinced that no national leader gets how bad things are.  They'll be hand wringing for sure, but what we need are a Tony Blair and Gordon Brown who can find a new way to win elections with a revamped party.  The creation of New Labor was an acknowledgment that the old Labor Party had lost its way, got out of touch with the majority of Britons and could not win a national election as it was then constituted.   Many, especially the Tories, viewed it cynically and with some justification.  But it was a desperate time losing four national elections in a row.  They had to find a way back.  I don't believe the Republican party has a Tony Blair.  I don't think the party wants to fling off the Family Resource Council or Rush Limbaugh.  I, naturally, wish the party would go back to a very hard libertarian agenda.  Newt Gingrich is derided by many but he was on the proper path back in 1994.  Yes, we are going to have to concede the issue of some type of national health care.  The nation cannot go on having so many of its citizen with little or no health coverage.  It cannot go on like that.  But once that battle is over we should go back to many of the ideas discussed in 94.  Reducing the size and scope of the federal government is key, if presented right.  The Republican Leadership should start by being out foursquare against renewing 'No Child Left Behind.'  It won't because it is Bush's domestic legislative legacy.  But it is against everything we stand and stood for.  Who will lead us back?  It is hard to imagine.  My guess is he may not be a major player yet.  He might be someone who emerges, perhaps from the back benches in the House.  The first real test will come when House Republicans elect their leader.  John Boehner has announced he'll seek re-election as Minority Leader.  He is part of the same old crowd that went along with the Bush Administration.  He should have rejected the bail-out totally instead of massaging it. This will be the first test as to how seriously Republicans acknowledge the depths they're in.  If they re-elect him, expect no substantive change in party direction.

I may not know much about Barack Obama but I do know about Rudy Giuliani.  And these last few months have been even more disastrous for him then was his own campaign.  He used to be able to absorb lessons from mistakes.  Now he seems only able to compound them.  That is partly hubris and partly the result of surrounding yourself with sycophants.  When no one will tell you the truth your left to your own bad judgment.  In this case, his has been breathtaking.  Can he possibly be proud that he is now the man who blasted Pres. Obama harder than anyone else on behalf of John McCain.  As I said on this blog back in August he would rue the day that he made that speech mocking "community organizers."  I winced when he did it that night and now that the community organizer in question is President it only diminishes the attacker.  It's hard to see where Rudy goes from here politically.  He is clearly part of the problem with the party.  I do not believe he can win a statewide election in New York unless he does what he did in 1989.  He lost that election.  He then had what Churchill called his "Wilderness Years."  Rudy used his to great effect.  He met with and listened to all sorts of people candidate Giuliani never would have back in '89'.  He thought about the great issues facing New York City and looked for answers.  Some created consensus, some did not.  But he was genuine.  No one believes he is a sincere, genuine person anymore.  Jesus Christ, his kids didn't even vote for him.  Money has corrupted him philosophically so that I doubt he is capable of that same self-reflection he showed back then.  Also he is not the young man he was.  Time is not on his side.  But if he truly seeks to serve - to make a difference in people's lives in a way that he sincerely believes will matter for the good - then he needs to wander; wander and reach out.  He has to do something however.  His behavior has been so bad that it has begun to damage people's recollections of his legacy and that is all he has left.  That is of course what translates into the millions of dollars that Giuliani Partners brings in every year.  Without the myth, the legacy, the legend, he's just another losing pol.

J'ACCUSE - Part V - The Search

DISCLAIMER:  I had planned to state this at the beginning of Part V even before my hearing in Westchester, but afterward it seems even more imperative.  I pleaded guilty to the charge of possession of child pornography.  I did, do and will maintain that acceptance of responsibility inherent in my plea.  My plea agreement prohibits me from denying my guilt, and I do not and have not denied it.  I have in various forums raised questions about the evidence used against me.  I freely admit to that.

But I made myself a promise in prison.  I swore that when I got out I would at some point relay the factual series of events that surrounded that possession.  I did not know back then that this opportunity would be that venue, but so be it.  Every word here, as with all on this site, is 100% truthful and almost all can be verified by the individuals involved or the records that exists.  You have to take my word alone for very little of what appears below.  It is of no concern to me whether you believe the following.  The important thing is that the truth finally exist.

When we ended Part IV I was in DC after discovering that the Village Voice had not run the chats with Fred but rather a Richard Roberts story.  I had just left my dog in S.C. with friends believing that the story would appear and I would move to take my own life.

I headed home from D.C.  I thought a bullet had been dodged and the Voice wouldn't run the chats.  I believed that the chats they had were genuine chats I had engaged in with Fred.  I had, at that time, no way of knowing what they were planning to run instead were chats fabricated by Fred and Tom Robbins.  My fear in their appearing in print was not criminality, since nothing I had said or done with Fred on line was criminal, but rather the unendurable embarrassment of their salacious content.

So I went back to NY and made a conscious decision to leave my dog in S.C. for the time being.  Why did I do that?  Why not just turn around and retrieve him?  You should know then as now the most important thing in my life was Seabright, my dog.  Nothing came in at a close second.  Why leave him?

My attorney, Irwin Rochman, and I had discussed numerous times the likelihood of a search warrant being executed on my home.  We knew Fred was alleging child porn and that the NYC Department of Investigations and, we believed, the Manhattan District Attorney would come looking soon.  Irwin asked me many times, "Is there anything we should worry about?  Is there anything in the apartment or on your computer?"  I assured him repeatedly that there was nothing there.  But I was concerned.  It had become apparent at this point that Fred Sawyers was a total psycho out for revenge for what he perceived as my having abandoned him.  I did have in my home a few zip disks and floppy disks that contained pictures of adult men I had chatted with over some time.  Since Fred was alleging child porn and I knew full well that we had never exchanged any was there something here I was missing?  Irwin put me in touch with a computer expert and I asked him about this.  He mentioned the possibility of something being embedded that I might not be aware of.  Fred had indeed sent me dozens of nude pictures of himself.  Was it possible that something had been in one of those e-mail attachments to which I wasn't aware?   It didn't seem likely but I wasn't going to take any chances, especially after it became clear that Fred had weaved these elaborate lies about himself over years.  He was capable of anything.

My computer resided in a small second bedroom/office in my home.  It was a very small space.  So on more than one occasion in the weeks that followed I cleaned out that room.  I made absolutely sure that there were no disks.  The only thing that remained of external storage were one or two shrink wrapped bundles of unopened zip disks.  Seemed no point in throwing them away. 

The reason I left Seabright in S.C. for the time being was based on the belief that a search was coming.  I did not want Seabright there when my place was swarmed with cops.  Seabright is a Labrador and like most Labs unbelievably friendly.  We used to joke that if a burglar ever broke in Seabe would grab one of his toys and nag the burglar until he threw it for him to fetch.  He was also something of a jumper.  He liked attention and sometimes jumped on people.  He was over 90lbs.  I worried for Seabe's safety should armed cops enter my apartment and mistake Seabe's friendliness for aggression.  So I left him in S.C. and waited for things to play out.

Meanwhile Irwin was in touch with DOI.  DOI wanted very much for me to come in and speak with them.  Basically undergo interrogation.  This was mid April, 2002.  Finally, DOI gave Irwin a deadline: Come in by Thursday or were not interested anymore.  The implied threat being that some legal action would ensue.  We debated the merits of talking to them and decided that because DOI was a joke as an investigatory agency there would be no benefit.  We would wait for the Manhattan DA.  Moreover, as the drip, drip of DOI's investigation went on, I started to become more unhinged.  I couldn't take the daily revelations of some new thing I was accused of doing at HDC.  As I said previously, the 9-5 torture of waiting for the phone to ring was absolutely getting to me.  I begged Irwin to go to the Manhattan DA now and see about cooperating.  "Make this end," I pleaded with him on many occasions.  But he said no, there was no benefit, we should wait.  That would prove to be one in a series of fateful mistakes.

So the Thursday deadline from DOI passed.  In hindsight it was always a phony offer because what happened the next day had been planned for some time and DOI was just seeking to impress their masters by hopefully getting something from me before the anvil fell.  It would make them look like leaders in the investigation instead of lackeys.

Friday morning at around 7AM the doorbell rings and the visitors announce themselves as U.S. Customs Service.  DOI was also there.  They brought a battering ram, the whole 9 yards.  It was, as with all these Federal things, just over the top and ridiculous.  They had a search warrant.  I asked to see it.  They began by treating me as though I was in custody.  Telling me what I could and couldn't do.  I told them I was going to call my attorney.  They said no, that I couldn't  make any calls as a search was also underway at Luke Cusack's home and they didn't want me tipping him off.  Fine I said, you watch me dial.  No, I couldn't make any calls.  Well, I told them, I have a right to speak to my attorney and I am going to pick up the phone and call him.  Are you telling me you are going to physically prevent me from speaking to my attorney?  They looked at each other for a minute and finally said no.  I couldn't find Irwin's home number at that moment and instead called my father to ask him for it.  He gave it to me and I called Irwin. 

Neither of us was surprised by the search but the inclusion of the Feds was a big surprise.  If you've never been witness to a search, it's an interesting process.  They take paper and put letters on them: a,b,c,d, etc and place one in each room.  Two guys went into the small room and started working on my computer looking for child porn.  One guy saw that I had a lot of blank videotapes.  I had gotten one of the first available VHS VCRs back in the late 70's for a birthday present and had tapes of TV shows for over 25 years.  He proceeded to use my VCR and put in tape after tape after tape for hours.  Three other people went through my bedroom and one my kitchen.  There must have been about nine people in total for a small one 1/2 bedroom apartment.  One guy said he was going out to get coffee for everyone.  I asked if he would buy me cigarettes.  I had just run out and was very much in need of smoking.  He thought about it.  He reluctantly agreed and I gave him money.  They stayed for many hours and still did a very poor job.  I'll detail later how, as an observer, not even the target, I was able to see areas they missed. 

I sat in a chair in my bathrobe and watched.  They found out from the super that all tenants had a storage space in the basement.  They asked if I consented to them searching it.  I said sure.  They discovered in my living room a contract for the storage space HDC rented for me that apparently after weeks and weeks of digging DOI hadn't uncovered at HDC.  They took this as a major "a-ha" moment.  This is the thing big busts are made from.  I told them the storage space was completely empty.  I offered them the key and gave my consent for them to search it.  It was only three blocks away.  No, they said.  They were getting a search warrant.  OK, I said, suit yourself, it's empty.  Later on in the afternoon they came back with the revelation that it was empty.

Then towards the very end of the search it happened.  One of the agents walked out of my study into the living room where I was sitting with a zip disk held aloft.  He held it high in the air and had a big smile.  I got very nervous.  Why?  Two reasons.  One, there was no loose zip disk in that room.  I had cleaned that room 3 times in the previous month.  The room measured 10'x8'.  I missed nothing.  Second, the way he emerged holding that disk high in the air and smiling was creepy and staged.  Bear in mind an extremely key fact in my case, disputed by no one: when they left my home that day they had discovered no child porn on the premises.  The U.S. Attorney does not deny that fact. 

They had spent hours on my computer looking but had turned up nothing so they took the computer and tons of other stuff away to search deeper.  Pure common sense and the law tells you that had they found any I would have been immediately arrested.  So why was he walking out with that smile and the disk held aloft?  For whose benefit?  And where the hell did that disk come from?  Had he known at that moment there was something on the disk I would have been arrested.  And since he didn't know, why was he parading it around as though it had some significance?  All that remained were one or two sealed bundles of blank zip disks.  There was no loose disk on the premises.  I told the agent-in-charge I was going out into the hallway to call my attorney again.  I went out by the elevator and called Irwin.  I explained to him about the disk and how I know it wasn't there before they came.  He asked if I was sure.  Absolutely, I said.  OK, we'll just have to wait and see, he said. 

So they took my stuff away.  As they were leaving one of the agents started to take the pictures off my wall.  Some were artwork. Others were scenes of City Hall and Rudy's inaugural.  I stopped him and asked where in the search warrant those pictures are mentioned or covered.  His response sums up better than I ever could the belief that most federal agents, of any agency, have regarding individual rights.  He said, " we'll take them and if they're not covered by the warrant we will return them later."  I explained to him that I was getting my lawyer on the phone and he could discuss it with him.  He dropped the issue and left the pictures.  The search warrant meant nothing.  The reason they exists is to state very clearly what is covered and what isn't.  Remember the 4th Amendment?  But his view of the constitution was: we'll take it now and if we can use it to prosecute you we'll justify its removal later; If not we'll return it.  This is very dangerous stuff and happens every day.

I am going to depart from the narrative and chronology for the remainder of Part V.  I will resume at this point in Part VI.

So we waited for the analysis of my computer equipment to come back.  Weeks turned into months.  At the end of over three months I received a phone call from my attorney, Gerald Shargel.  I was at my parents house, upstate.  I remember that day very well.  My father handed me the phone and I went outside to talk to Jerry.  He had never called me on a weekend and I knew this was either really good  or really bad news.  He told me that Debbie (Deborah Landis, the Assist. US Attorney) had called and told him that they had found one (1) picture of child pornography on a disk and that they were continuing to examine the disk for more.  The old law on this matter basically protected you up till three (3) pictures. After that you were culpable of a crime.  The newer law made possession of any images a crime.  I was devastated.  I was sure they would find nothing.  But here it was - they found nothing on my computer but on a disk.  Jerry even mentioned it being a zip disk.  It was that disk. 

Debbie would later say (her story changed many times in court and in the papers on this point) that the disk contained child porn and a few hundred other images of porn.  By that she meant pictures of adult men.  Here's my first question.  Let's say there were 500 pictures of nude adult men.  I am liberally interpreting "a few hundred".  So in total there were 510 pictures and as it would turn out a 30 second video clip that was also child porn.  How long would it take the average person to scroll through 510 pictures on their computer when you were not only looking for something very specific, but what you were looking for was so vastly different than the rest.  Imagine if I gave you a disk of 510 pictures and told you that most were of a skiing trip - snow and mountains.  But a few were of my trip to the desert.  Meaning, they would be in stark contrast to the many.  How long would it take you to find the 10 desert pictures?  My guess is less than an hour, maybe 90 minutes.  You would scroll through on a computer very, very quickly.  Would it take over three months?  And at the end of the three months would you say: I've only found one desert picture but I'm still not done looking.  It doesn't seem plausible.

Bear something else in mind.  When that call came from Debbie Landis she said they had found a single picture (I will switch now to the legal term which is 'image').  Debbie would eventually claim that on the disk were found a few hundred pictures plus 10 images of child porn and one (1) video clip.  Any of you who are computer literate knows that the little Microsoft icon for a video clip is different and distinct from the icon for pictures.  According to Debbie there was only one video on that disk.  Wouldn't a competent computer expert - and that's whom they claimed was doing this work, not some putzy lawyer - check the icon that was unique and distinct from all the rest, first?  Especially when it was a video and the only video and they were looking for child porn. But according to Debbie the first thing they found was an image, not a video.  Further, if you're looking for holes in what I am saying, there never was a claim that anything was encrypted.  It was all just there, plain to see.  

After that call came from Debbie about the one image found, Jerry never heard another word on the subject.  He told me that he asked Debbie many times if anything else had been found.  Her answer was always the same, "we're still looking'.  We never found out the answer until the day I was indicted, March 17, 2003, nearly a year after the search.  When the indictment was unsealed we learned that the number was 11; 10 images and 1 video clip, all found on a zip disk, nothing found on my computer.  Moreover they had seized either 2 or 3 other computers from HDC that had once belonged to me.  No images were found on any of those computers either.  

Many people have said to me that they found the number 11 not only a very low number for such a case, but odd.  Who would have only 11 images if this was their predilection?  The number 11 isn't odd.  It is highly, highly significant.  Before I get to that let me make one more fact perfectly clear.  In the vast majority of child porn cases there are three categories of images discovered.  First, legal images of pornography.  Second, obviously and unquestionably illegal child porn; think a two year old toddler.  No question there.  Third, are what's called grey images.  Is the person depicted 18 or 16?  In many cases the government will bring in a forensic expert to examine the images and state the person couldn't be 18 for various reasons: bone structure, facial development, hair growth, etc.  But the key point is that in almost every case there are grey images found.  In my case there was not a single one.  A few hundred pictures, presumably of men I spoke to on-line and the 11 images.  The point being that the 11 were not chosen as the most obvious out of a pool of potentially hundreds of illegal and grey images.  It was black and white.  Legal and then the 11.  No grey.

The law at the time of my arrest on this subject, as in most federal crimes, had various steps.  More drugs, more time.  More money embezzled, more time.  You get the point.  As it related to child porn the law at the time had increases in points for possession over certain numbers (all federal prison time is calculated using the Sentencing Guidelines which assigns points to various aspects of a crime and enhances the crime for various reasons, i.e bank robbery 30 points, gun used 20 extra points, look up 50 points on the chart and you see how long you have to serve).  Guess where the first big increase in Guidelines points comes in?  Possession of over 10 images.  For those of you who aren't math whizzes, that means 11.

By the time the indictment was unsealed Debbie knew that the porn aspect of her case was on shaky ground.  Debbie had gone, along with Special Agent Castro of the U.S. Customs Service, to Judge Fox in Manhattan to obtain the search warrant for my home. Debbie used four pieces of evidence - all from Fred - in order to get Judge Fox to sign that warrant.  The first seemed dubious - the Fred/Tom Robbins chats themselves. Second, was a fact that Fred provided Debbie that I had told him I was in Chicago on a certain date on business.  They checked with HDC and I was indeed in Chicago.  (I have no doubt that during my on-line relationship with Fred I told him that.)  Third, was a single e-mail Fred provided them purportedly from me to him.  In it I reference an attachment which I suggest is child porn.  Fred also provided a single image of child porn to Debbie that he claimed was that attachment.  It was later shown that the e-mail like the chats was fabricated.  (I have no knowledge that Robbins helped Fred create the e-mail, but I assume he did.  Why would their conspiracy to forge documents only extend to the chats?)  Moreover, Debbie's interest in not verifying Fred's accounts extended to the fact that she never brought him to meet her in NY.  To my knowledge, this key informant was never seen by Debbie, my understanding is he did this all by fax and e-mail.  More damning, in the only case of this I have been able to find anywhere in a federal prosecution, someone came forward, claimed to have child porn (Fred, claimed it was from me, but none-the-less, he had possession) and their computer was never seized.  No search was conducted on his home.  It is simply unheard of for an individual to come forward claim to have child porn and the FBI does not do a search of at least their computer if not their home.  Unheard of!   Debbie clearly wanted nothing to interfere with Fred's story.   

Lastly, Fred gave Debbie 2 pictures he claimed were me and that I had sent to him at some point in our relationship.  This, like the Chicago trip, was intended to establish our relationship that would presumably buttress the validity of the other exhibits he was providing.  One problem.  One of the two pictures wasn't me.  It was simply some other guy.  The second picture was me sitting behind a desk with a tie in shirtsleeves.  Had Debbie done her job, as she was duty bound to do before presenting a federal magistrate  with a search warrant request, in even the smallest way, she would have discovered that that very picture had been on HDC's website for 3 years.  Moreover, because I liked the picture, it was used in 3 HDC annual reports.  I never, ever sent Fred a picture of myself.  At the least, Debbie knew that the one was just simply not me.  But she lied and told Judge Fox that Fred had provided two pictures of me to support his bona fides.  Mentioning neither that one was phony and the other highly, highly dubious to say the least.  

Further, Special Agent Castro of the U.S. Customs Service provided Judge Fox with a totally over-the-top affidavit stating that based on his expertise in these matters and long record he was sure to find troves of child porn in every nook and cranny of my home, including in the air ducts.  He assured Judge Fox that there would be pictures, magazines, videos stashed everywhere.  During the search, since they had come up with nothing, Agent Castro did indeed open the ceiling air duct in my kitchen that plainly had not been opened in many years.  All he got was a face full of dust that poured down on him.

I said earlier that the US Customs agents who searched my apartment did a very poor job.  Here's why:  I thought of this in prison, you have a lot of time to think in prison.  In my living room was a wall of CDs.  I had a few hundred at least.  The computer they seized was the latest model.  It had at least a CD burner, maybe even a DVD burner.  Not a single one of those CDs was examined.  Special Agent Castro would claim that he expected to find child porn everywhere.  Wouldn't a good hiding place be those CD cases?  Couldn't I have burned hundreds, if not hundreds of thousands of images onto CDs and disguised them as commercial CDs and put them in the commercial jewel cases in plain sight?  In retrospect if that were my intention it doesn't seem very hard to do.  But Agents Castro and his men never looked at a single one.  They went through every book on my bookshelf, but never touched a single compact disc.  Once I thought of this in prison, it seemed like such an incredible oversight and such sloppy work.  Easier to steal the pictures off my wall than think cleverly.  If I can still find it, I will post Agent Castro's afadavit.  You have to read this thing to believe it.  The bravado and macho arrogance that comes through is astounding.  In the end, his expertise amounted to air ducts but not compact discs.  You judge if you feel better knowing these guys are searching international cargo and for potential terrorists on your behalf.
 

Now, Debbie was promising her bosses a big payoff here.  She was a Senior Assistant U.S. Attorney.  For those of you who don't know, Senior AUSAs handle only one case at a time and a case of their own choosing.  They make well in excess of $100,000 a year.  Further, unlike an Assistant District Attorney in some county who may have to juggle 50 cases by herself, Debbie had a full staff to assist her in this one case.  I was her only case for almost three years.  Debbie would eventually spend millions of dollars, thousands of hours of her office and other federal agencies' time on this.  She had a very bad search warrant having used fabricated chats and withholding evidence that cast doubt on the veracity of their only informant from Judge Fox.  After all this do you think it's likely she would have said to her bosses she produced nothing on Issue II? 

But Debbie's lying and disrespect for the truth and the office she held went further.  Other than in the original indictment, Debbie never again mentioned the number 11.  She always spoke in court or in documents vaguely as though the number were much greater.  The effort was to make me out to be a crazed psycho deviant.  On the day of my sentencing I wanted to make sure that the assembled reporters in the court knew the number was 11.   I was tired of Debbie's repeated attempts to suggest through innuendo and speculation that the number was greater.  So I stated very clearly to what I plead.  The next day in the New York Times'  story of the sentencing, it is stated that the Government had found 5,000 images of porn in my home.  That number, 5,000, exists nowhere in my case.  It was never mentioned in any document, referred to in court or in any other manner you can imagine.  It simply never existed. 

Henry Mazurek, an attorney of mine at the time, told me Debbie was pissed that I had mentioned the number 11.  It deflated the grand case she was trying to make.  Most of the reporters had no idea before I said it in open court that I was being prosecuted for 11 images.  They were all under the impression it was far, far greater than that.  A source at the Times confirmed that number, 5,000, came from the US Attorneys Office.  Debbie wanted to undermine the number 11 so she created the number 5,000.  The New York Times would later go on to use that fabricated number in a Gail Collins anti-Rudy editorial during his presidential campaign.  The big lie that spreads.

The really low and underhanded aspect of what Debbie did, other then lying to the NYT, is that she did it intentionally knowing that since the matter was now resolved there would be no opportunity to rebut it.  She would never have dared use that number in court or in any document.  In fact, I have made many motions since that date and she has never used that number again.  It was the worst kind of smear because the case was effectively over and I would not have a chance to defend myself or confront her in court about it.  It is the lowest thing a prosecutor can do.  Not only lie, but make up seemingly damning facts.  As the case proceeds, you'll see it is just one in a series of lies Deborah Landis would tell.  She lies routinely by omission and co-mission.  The irony, as I'll show you in the coming weeks, is that for all her outrage and indignation at my crimes, she committed, as I have said, a serious Federal crime herself, having nothing to do with my case.  Based on evidence provided to me in 2005 by Messrs. Shargel and Mazurek, I think you'll find it appalling that I was prosecuted, and for what I was prosecuted for, by someone like this.  The lies and hypocrisy of former Senior Assistant United States Attorney Deborah Landis are just starting.

And what of the zip disk and the 11 images?  What became of this crucial evidence?  Debbie Landis says that it is unaccounted for.  Notwithstanding that the US Attorney's Office is required to keep it because of the SORA process I faced after prison, at some point between 2003 - 2007 the disk mysteriously disappeared.  That's pretty sloppy, unless it isn't.

Playing Ball 2 - Double Jeapardy

When I was younger my father used to take me to court to keep him company.  The majority of the cases, as the years went by, were election law matters.  I never minded going because as anyone who has seen Ray Harding litigate knows, it is a treat.  He is a master in a courtroom and always has total command.  Clerks would come from all over the courthouse to watch him, he was that good.  What I remember most from those years and found highly instructive were the times he had to appear in Brooklyn Supreme Court. 

During election season, The Board of Elections does its business and then you wind up in Supreme Court seeking to validate your petitions or invalidate your opponents.  The unique part of going to Brooklyn Supreme, at least in those days, was that you always knew the outcome before you stepped foot in court.  If there were 6 possible judges who might be sitting that day you prayed not to get five of them and instead hoped for the sixth.  The vast majority of judges in Brooklyn then were Democratic machine candidates and payed back the organization partly by upholding the petitions of the machine's candidates and throwing out those of the insurgents.   Everyone knew the judges who did that and the few judges who didn't.  So you prayed for the few as opposed to the many.  When you found out who was hearing election law matters that day you instantly knew the outcome of your case.

If you get one of the five: Machine lawyer? Win.  Insurgent lawyer?  Lose.  It didn't matter what the evidence or testimony, the outcome was preordained.  But it was OK because you went in structuring your arguments for the record and preserving the appeal.  You knew that you were getting fucked and would take it up with the Appellate Division, 2nd Dept.  Back then even the 2nd Dept wasn't free of influence and you still weren't sure of obtaining a hearing free of prejudice.  But again, it was OK because from there you absolutely knew you'd get as fair a hearing as possible at the Court of Appeals in Albany.  There were hostile judges too on the COA but in the main you were never going to get outright fucked as you were in Brooklyn Supreme.  The one redeeming feature of all this is everyone knew the rules and understood where the remedies lay.  And you knew at the end of the day, so to speak, there was justice to be had it just required a lot of work.

I thought of those days while waiting to start my hearing in Judge Jeffrey Cohen's courtroom.  Having been forced to sit in there for 11 days only to have my matter adjourned again and again, I was able to learn what I was up against.  I learned, as I have said, that Judge Cohen was selected after his predecessor was removed for appearing too even handed to 'sex offenders'.  I also witnessed hours and hours of rulings by Judge Cohen.  In not a single instance did he rule against the prosecution.  Moreover, no matter how sloppy or misleading the prosecutor was, they were never penalized either in chastisement or in his rulings.  You came away with the clear understanding that in Judge Cohen's courtroom the prosecution can do no wrong.  I started to wonder after awhile how bad a prosecutor would have to be for Judge Cohen to take notice.  I'm still wondering because I saw a prosecutor as bad as you can hope for and still not a peep from Judge Cohen.

Now again, I knew going into my hearing that we were going to get fucked.  It's true I didn't know how blatantly or that Judge Cohen truly doesn't care that everyone know he's so nakedly fucking over the defendant.  He's clearly a smart man and I honestly didn't think his ego would permit him to suffer prosecutorial incompetence at this level and by extension allow them to make him a party to it.  But his agenda is clear and as I said earlier, is redeemed by the fact that we all knew it.  The sorrow here is that the vast majority of men who come before him for a SORA hearing don't know that.  They actually believe, most of them, that they are going to get something approaching a fair hearing.  That the judge presiding is going to ensure that no defendant is abused by the system.  My heart aches for those guys. I speak from experience.  There is no worse feeling than lining your ducks up in a row, preparing for legal battle only to discover that you've lost before you started; there is no way to win.  It is a truly indescribable feeling.  You can't imagine being more crestfallen.

The assistant DA in my case is Michelle Lopez.  SORA hearings and continually appearing before a court you can never lose in have made her skills weak and her ability to practice law intelligently poor.  Why be sharply honed when no matter what you say, you can't go wrong.  That of course results in laziness and sloppy lawyering.  The more she screwed up in court, the more frustrated she became, the angrier her demeanor.  But of course it didn't matter.  Judge Cohen didn't ruled against her once.  Like Brooklyn Supreme where witnesses could give the most damning testimony possible and still not affect the outcome, here too it didn't matter how bad Ms. Lopez was, she had an ally from the start.

Here are a few examples.  And bear in mind constitutionally I am not allowed to be retried for the same crime as part of this process.  The SORA process is made up of a series of categories.  Meet the criteria - or don't meet it - in each category and you get a set number of points.  Add up those points at the end and you have your Level.  As in a real judicial proceeding the burden is on the state to prove what they are saying or offering.  It is not on me to disprove it, as ended up happening.  The standard here is 'clear and convincing'.  In some places it is also referred to as 'clear and compelling'.  In a child porn case the most damning evidence is the images themselves.  The form containing the categories to be scored was not designed with child porn in mind.  The NYS Court of Appeals in its Johnson decision acknowledges that.  Although fearful of giving "child molesters" a victory in its court and sending it back to the legislature for a rewrite as it does repeatedly in other matters, the court offered instead a solution that I will get to later.  But just remember for now that this form is clearly not intended to be used in my case.  It was just haste to draft the legislation in a week after Eliot Spitzer took office that lead to this anomaly.

So the question on the forms is victims.  Age and number of victims.  How to determine this?  Either look at the images in court or find a document to introduce which describes the images in detail.  Fair enough.  So Ms. Lopez introduces one and only one piece of evidence - an exhibit - a document dated May 28, 2008 from my probation officer.  It is a cover letter to the SORA Board in Albany and refers to an attached document.  The attached document is 10 or 12 pages describing various aspects of my case.  In the attachment is a very detailed description of the 11 images.  The attachment is unsigned and undated.  It seemed obvious to me just looking at it that it was written by someone else at some point and the probation officer was merely attaching it.  He did not appear to be the writer.  But looking at it it was also possible he was.  Ms. Lopez represented to the court that the probation officer wrote the attachment.  She stated that affirmatively and on the record.  Now, I know he didn't write that document, he couldn't have.  Had Ms. Lopez done the slightest research into my case she would have known it too.  Essentially she made up her affirmation that he was the author.  She didn't know, so she made something up.  That's a very bad thing for a lawyer, but especially a lawyer in a criminal case to do - make shit up and present it as fact to a judge. 

While in prison I had sent a request to retrieve my property that was taken in the search of my home.  Much of it had nothing to do with the case and I wanted it back.  I'll save the whole story of this for another time but the short of it is that Judge Kaplan ordered the Government to account for my property.  That accounting was sent to me on October 27, 2007.  In it the Government states that the disk containing the illegal images was "unaccounted for".  Why they admitted this is still a mystery.  I wasn't, I couldn't, be asking for that back and surely Judge Kaplan didn't ask for them to account for it.  But for whatever reason they told me the disk no longer existed.  Now one more piece of background.  I was in prison in October 2007.  I didn't get to the halfway house until December.  My probation officer never heard my name officially until the end of my stay there, probably in April 2008.   He couldn't have written that attachment describing the images because by the time he came on the scene the images no longer existed.  For all we know they haven't existed since 2004, 2005, or 2006.  But we know absolutely that they didn't exist at anytime in 2008.  Nor did Ms. Lopez present anything to the court suggesting that he wrote it other than her word.  And since there was a week between the start of the hearing and the conclusion she could have easily gotten an affidavit from the officer stating he wrote it and under what circumstances since the images didn't exist.  But she didn't.  We introduced the US Attorney's document stating that the images were unaccounted for.  No one had to take my word for it. 

We proved, as Humphrey Bogart would say, with geometric logic that the author of that attachment was not who the prosecution claimed it was.  The only thing 'clear and compelling' was that it was actually paper and had ink on it.  Beyond that you could be sure of nothing else regarding that document.  Once you eliminate the probation officer as the author it is an unsigned, undated document.  Not to mention that we have established that there is officially a minimum date that the evidence described no longer existed.  Would you find that document, under these circumstances, 'clear and convincing'?  Would you say the prosecution has met its burden to prove the authenticity of the document?   Judge Cohen did, absolutely and gave me the maximum number of points. 

Ms. Lopez had been in contact recently with my federal prosecutor.  You'd have thought the guy might have said to her, "Hey, Michelle, I'm sure the images are gonna come up in your hearing since its the basis for the reason you're there.  Just so you know, they no longer exist and worse yet Harding knows they don't exist."  You would have thought out of a sense of collegiality he might have clued her in on this seemingly important piece of trivia.  Nope.  You would also think that a competent lawyer, or one concerned about the outcome might have called the US Attorney's office and said - do you know who wrote this document?  Nope.  Why was Ms. Lopez so unconcerned about having her evidence torn to shreds?  You know the answer to that.  She's in Jeffrey Cohen's courtroom at a SORA hearing.  She can't lose.

As for the infamous chats.  When asked by my attorney from where they came, Ms. Lopez once again made up the answer.  'From the seized computer," she said.  I proved that wasn't the case.  Even the US Attorney has never maintained that this explains the provenance of those chats.  Did she have any evidence to present to the court as to the bona fides of those chats or their provenance?  Nope.  She didn't seem particularly concerned that she needed any.  Bear in mind it was the same federal prosecutorial team who presented the fabricated chats to Judge Fox to obtain the search warrant in 2002.  You would think that another judge - Cohen - might have wanted something more from those same people presenting more chats than just their word.  But we know better.  Judge Cohen wanted no such proof.  He accepted the chats.

Here are a few particulars from this SORA process.  One category scores you if your victim was a stranger.  As the Court of Appeals noted in Johnson this again surely wasn't intended for child porn cases.  And yet it applies.  The way that category reads and is applied, if they had found pictures of a child who lived next door or a young nephew - if i had one - I would have been given no points.  Even if in the pictures the child is being sodomized.  That crazy statute actually rewards incest and neighborly child molestation.  As the court recognized in Johnson, pictures in a child porn case are invariably of a stranger since you've never met the child, they might live in Estonia for all you know.   None the less you're getting the points.

Judge Kaplan in my federal case invited me back to  amend my conditions for release after I left prison.  He did this on the day of my sentencing in 2005.  Don't believe me?  The New York Times story of the following day mentions it.  So I did that.  I went back and asked for my conditions to be changed.  In Westchester County Court as part of the SORA process I am being labeled more dangerous because I am asking to have some of the conditions lifted which I am doing at the invitation of a federal judge.  Crazy?  Not double jeopardy? 

I essentially sued the Bureau of Prisons and the treatment facility I was attending while I was in the halfway house.  The issue was polygraphs.  The BOP has a strict policy that you cannot force an inmate to undergo a polygraph or punish him for refusing.  As everyone knows, while in a halfway house you are still considered an inmate and under BOP jurisdiction.  They tell you this constantly.  I argued, in part, that they were violating their own rules.  Seeing that Judge Kaplan was going to rule against them and thereby set precedent, the BOP agreed to withdraw the polygraph request in my case.  There was also the suggestion at the end of that hearing that I might return to have a polygraph prohibition inserted in my post-release conditions, which I did.  That request was also used against me in Westchester to demonstrate how dangerous and unrepentant I am.  

My lawyer in the polygraph matter was a prescient guy.  The BOP had maintained that I was kicked out of the program at the treatment facility for refusing to sign the contract with the polygraph provision in it.  We extracted an agreement in court that my refusal to sign the contract would not be considered a discharge from the program.  He said clearly on the record that this was an important matter as the SORA process would punish me if I had been kicked out, which the SORA rules clearly state.  So it was agreed by all sides that I was not.   And at that polygraph hearing I volunteered to return to the program for the remainder of my halfway house stay.  Naturally, it was said by Ms. Lopez in Westchester that I had been kicked out of the program and thus I should be labeled a more serious risk.  We even gave Cohen the transcript of the hearing in federal court so it could be plainly read.  No matter. 

Is it apparent to you yet how inherently unfair it is to take a 7 year case in one court, condense it into 3 hours and in essence and in substance retry me in a different venue with different rules and standards?  Many of you will say no, I am getting just what i deserve.  Fine.  Even if you believe that, be assured that this diminution, this chipping away at civil liberties and basic constitutional protections will not stop with me or those who go through a similar process.  It never does.  The Founders knew how abusive an unchecked King could be.  That is the reason for such an explicit bill of rights.

I said earlier that the NYS Court of Appeals in the Johnson case wouldn't throw out sections of the law but instead provided what they deemed a safeguard.  They said that rather than discard those sections that obviously made no sense we should rely on the "common sense" of the court to address "anomalous findings".  Meaning, in those instances when the points add up to a Level 2 or 3 and the underlying offense clearly doesn't warrant it we should look to the judge in the case to provide sound reason and "common sense".  In this case, Judge Jeffrey Cohen. 

I read today about Stephen Donahue.  A former official with a state bowling association who was convicted of grand larceny for stealing $271,000 from the association.  He just received a sentence of 3 1/2 to 9 years in NY state prison.  Remember I told you about the man who repeatedly and over a period of time sodomized a little girl?  Do you remember Judge Cohen's sentence?  Answer: 3 1/2 - 4 in state prison.  I'll let you decide.  Do you think my fate rests securely in the hands of a man who believes that a sexually tortured girl's pain is worth a third to that of an embezzling bowler?  Do you see the "common sense"?  Fortunately, like in Brooklyn Supreme Court, there's always the Appellate Division.

Playing Ball

While waiting for the 12th day for my hearing in Judge Jeffrey Cohen's courtroom I overheard a half hour conversation between a man named Kevin and a woman named Barbara.  Kevin was clearly going to run for some office in Westchester County, presumably a judicial post.  Barbara, by her own comments and the deference shown her by Kevin, was clearly supposed to be some big macher (yiddish meaning big shot or 'player') in Westchester Democratic politics.  They talked about what events Kevin should be going to and to what people he should be contributing money.  Barbara said she was on the Board of Alumni at Pace and could be helpful there.  Kevin told her that he had hired Robin Swanson to do the scheduling for his campaign.  I mention all this as background for something Barbara told Kevin.  She discussed several people - I'm guessing judges - as potential candidates.  She said of Judge Cohen, "Jeff Cohen is a known quantity, he knows how to play ball".  I wondered with whom she meant.  Play ball with his superiors in court to give them the results they desired?  Play ball with local democratic machine operatives to give them the judicial decisions they desired in order to make him an attractive future candidate?  Play ball with whom and about what?

It is a well known fact in that courthouse that Judge Cohen is a very ambitious man.  He seeks higher judicial office than mere County Court Judge.  And he is a smart man.  It is also well known that his predecessor, the judge who sat and heard sex offender cases all day, was removed because of the perception by court higher-ups that he was too fair to the defendants; he actually required proof from prosecutors to back up their claims.  It was also said he gave out too many Level 1s and not enough Level 3s.  So he was removed and replaced with Jeffrey Cohen, a man "who knows how to play ball".  Of the many things you can say about Judge Cohen you cannot say he isn't smart and you cannot say he doesn't get what is expected of him.  He gets it. 

So when beginning what would turn out to be a 2-day hearing in my case, I knew that the odds of receiving anything approaching a fair hearing were virtually nil.  But I had some hope.  As part of the nearly 2 weeks of having to appear in his court only to have matters adjourned, I witnessed him accept the plea and sentence a man for a most heinous crime.  After talking to people in that courthouse I discovered that this plea deal and that sentence were considered shocking even by the most jaded and hardened observer.  Ordinarily I chastise people for commenting on cases that they may have seen only 5 minutes of on Court TV.  It is inherently unfair to comment on a case without knowing all the facts.  But after chatting with people in the courthouse, I think I can say there is no mitigating what Judge Cohen did.  Here are the facts as presented by the Assistant District Attorney and to which the man plead guilty: the defendant penetrated a girl under the age of 10, orally, anally, vaginally, over a period of time.  Long and short of it he repeatedly raped this little girl for quite some time from the sound of it.  Pretty horrible, right?  So what did Judge Jeffrey Cohen sentence this man to in state prison?  10 years?  20 years?  Life?  Nope - 3/1/2 to 4 years in prison.  In California sentences for passing bad checks are routinely handed down that are longer than that.  And remember, unlike federal prison where you end up doing most of the time you are sentenced to, in state prison this man will do far less.  And we know there can't be any mitigation here.  The man cannot use as an excuse that it was consensual or they loved each other.  No judge in a child rape case is going to accept that.  So it is unfathomable to me what was in Judge Cohen's mind to hand down a sentence like that?

I bring all this up for a few reasons.  First, how is it possible that that sentence did not raise any questions or newspaper reaction?  Where was the outrage?  I'm a felon and I was outraged.  But I bring it up to make a much larger and broader point.  We in this state have taken it upon ourselves to remove some of the most basic civil liberties we can bestow and in turn register human beings.  Technology now makes this an easy thing to do.  It is apparently legal because the Supreme Court says it is not punishment which would make it unconstitutional and it is not double jeopardy which would also prohibit its application.  Now lets accept for the sake of argument that when this man I mentioned leaves state prison in 2 years or so, he receives a Level 3 at his SORA hearing.  That is the worst rating you can receive.  It means you pose the highest risk to re offend.  Your danger to the community is severe.  And it is for life.  Now here's my question: How can it be that a crime that only garners 3 1/2 - 4 years in prison on the one hand makes you the most dangerous category of human being alive in the State of New York on the other?  If the underlying crime - the repeated rape of this little girl - is not worthy of 'serious' time, then how can we reconcile the incongruity of a lifetime of registration? 

The short answer is you can't.  Nothing about sex offender registration is based on fact, logic or scientific evidence.  It is 100% pure hysterical emotion.  Nor can I provide a specific answer in that case because Judge Cohen's action is simply inexplicable.  It's frankly outrageous.  But the general answer is clear.  We have become lazy about the protection of our fundamental liberties.  Whether it's the crimes of the Bush years or this registration business. The correct application of punishment is to get the sentence right the first time and not rely on this extra-constitutional measure of registration.  The theory seems to be that if we go lenient on the front end, don't worry it's made up for on the back end by lifetime registration.  Society has a right to punish people who have run afoul of its laws.  And in doing so should apply those punishments where they are meant to be applied - at sentencing.  People have the right to a second chance.  And if society deems they are unworthy the place for that decision is at sentencing for a specific crime.  It is not, as you leave prison, when the Government seeks to civilly commit you, not for a new crime or anything you have done fresh, but just to extend your sentence indefinitely or to register you so that you may be monitored for the rest of your life.  You do your time and you're out.  Commit another crime and the court has an absolute right to factor in your record to sentence you to a longer term.  What it cannot do is decide after your sentence is up that it doesn't think you've served long enough.  The foundation of our criminal justice system is based on the notion that you are judged for each crime you commit.   There is nothing anyone can do with any reasonable certainty to prevent you from committing another crime if you are determined to do so.  The question is what is the balance between trying to protect society and not moving towards the Minority Report world we are almost in. 

It's the Bush argument.  You can never, ever stop people from committing terrorist acts.  Given that, how far are you willing to go to try and make sure as few happen as possible.  How much of ourselves are we willing to lose as a civil society to keep those numbers down?  Bush/Cheney argue a lot.  Civil libertarians argue not so much because the gains are so few and the cost so enormous.  Even if there was any evidence, let alone a lot, that registration and GPS and commitment worked to prevent crime, I would still oppose it.  But my job is made easy by the fact that there is zero evidence that any of this works.  And since that is true how can we justify these abuses of people's basic rights?

I recently saw the film, 'Milk' about SF Supervisor Harvey Milk.  In the film they recount the effort to pass Ballot Prop. 6.  That initiative would have terminated any teacher in the state who was homosexual.  Additionally, it would have fired any non-gay teacher who supported gay educators.  Worse yet, you didn't have to self identify yourself as gay in order to be fired.  The legislation had tests to determine if you were gay. The premise for the bill was that homosexuals are predatory pedophiles and by definition seek to recruit children to become homosexual.  This must of course be prevented.  Frightening?  Outlandish?  Sitting here in 2009 it seems just ludicrous.  But when it was announced it had 70% statewide support in the public opinion polls.  Why was Prop. 6 defeated?  One reason - there was a public debate.  Brave leaders from the President of the U.S. to the Governor of the state and former Gov. Reagan all opposed the measure.  Spirited debate was held all over the state to educate people on what that law would have meant.  The reason these insane registration laws continue to exist is that public debate is prohibited.  I don't mean legislatively.  But try being on the opposing end of a registration debate and see how fast the labels 'pedophile' or 'child molester' are hurled.  Debate stops instantly.  In the same way that for most of the Bush Administration opposing the extra-constitutional measures meant you supported "The Terrorists". 

But courageous men and women fought these measures in the courts.  It certainly wasn't any member of congress.  It was JAG lawyers and legal aid groups.  They fought them for people who may have indeed been terrorists but who had an absolute right in our country to be charged and tried.  It was the fundamental rule of law and not the individual in the case that were being fought for.  Until good people step forward to fight against the burgeoning sex offender industry things will get darker for everyone.  And be clear, that's what it has become.  From treatment clinics to academics to prisons to prosecutors, a huge number of people now make their living from the fear and hysteria associated with so-called sex offenders.  These laws will get worse before they get better because the industry has now found a way to monetize it with all these jobs.  It is one of the few growth industries we have in the economy.

Depriving people of basic rights out of fear is what lead to Plessy, Dred Scott, the Attorney Generals list of subversive organizations, the Alien & Sedition Acts and Japanese internees.  Fear and ignorance have proven over and over again to be the worst possible motivators for crafting good legislation or court opinions.  Sex Offender registration laws one day - some day - will be added to that list of shameful blights on our history.

American Abu Ghraib

Bernie Madoff will spend his first night in prison this evening at the Metropolitan Correction Center (MCC) in Lower Manhattan.  It will be the start of many months spent at the MCC.  I was going to write about my stay at the MCC when it was time appropriate in my series, J'ACCUSE.  But Mr. Madoff's incarceration compels me to say a few words.  If there is an American version of ABU Ghraib, the MCC is it.  I was in 8 prisons in the first two years of my sentence including the notorious Atlanta USP.  Nothing, absolutely nothing in my entire prison experience compared with the month I spent at the MCC.  Make no mistake, those people who think - maybe even Mr. Madoff thinks - that what awaits him in prison when he is finally sentenced will be worse than his time in holding at the MCC are kidding themselves.  The MCC is a place filled with horrors.  The most sadistic and brutal guards - and I repeat I was at a United States Penitentiary - are working at the MCC.  It was the start of my prison experience and I had no way of knowing that this was going to be the worst of it.  I saw inmates brutally beaten by guards for no reason.  Health care routinely denied.  The living conditions were the worst I experienced.  Mr. Madoff will spend an indeterminate amount of time starting tonight in the Special Housing Unit, the SHU .  That's what many lay people call 'the Hole'.  It is as filthy and squalid a place as you might dream in your worst nightmares.  Bugs in your bed, on the wall and in the food.  The food, at least in 2003, was totally inedible.  I don't say that as someone who is finicky.  I have now had food from various prisons and nothing could compare with that.  The smell of the food - the rancid, putrid smell - caused me to be unable to eat and I lost 25 lbs in a month and contracted a form of dysentery.  Conrad Veidt said in 'Casablanca' that "...human life is cheap".  That was never more true during my years in prison than at the MCC .  The staff there is so poorly trained, so ignorant and so consumed with hatred for the inmates, that your life - your very life - is always in jeopardy.  Far less from your fellow inmates than from the staff.  I have never seen brutality and sadism as I did from the guards at the MCC.  No inmate in my experience was as twisted, cruel and indifferent to human suffering as was the staff at the MCC.  Nothing I write here, I'm simply not gifted enough, can covey the level of human depravity as existed in the staff of the MCC.   

As some point early in my case - when the idea of prison still seemed unfathomable - I purchased  book for white collar criminals facing prison written by a man who had done a year in a low security federal camp.  Much of what he said would have no bearing on my later experience but he said one thing early on in the book that struck me and stayed with me throughout.  He said that when you enter prison as a middle or upper class white male you are instinctively going to self identify with the guards not the inmates.  You'll see yourself in their mold, not the scum - as you perceive them - that you are forced to cohabitate with.  The author's biggest shock and mine too was discovering how wrong that perception was.  The guards are not there to help you and they sure as hell don't identify themselves with you.  Bernie Madoff will be looking to the COs (corrections officers) at the MCC tonight for assistance in making this transition.  He will be sadly mistaken.  He is the highest of high profile inmates and high profile inmates are always treated somewhat differently by the Bureau of Prisons (BOP).  The BOP hates, really, really hates when it is revealed publicly how horrible conditions are at federal prisons.  They want nothing bad to happen to Mr. Madoff lest it be revealed in court for all the world's press to hear.  They count on the public's lingering misconceptions about federal prisons as country clubs or cushy compared to state prisons.  With the exception of Texas and California , I never met an inmate who had done both state and federal time who wouldn't much rather be in a state prison.  And it was never even close.  Federal prison in general is a much harsher place to be incarcerated than are state prisons these days.

I know what Bernie Madoff did was terrible.  I can't argue, although part of me wants to, with his getting life.  But I cant wish the MCC on even the worst person.  There are many experiences in life that you can possibly fathom without having lived them.  Prison to a small extent can be imagined although not in the main.  But time served at the MCC is unimaginable.  Many of you will say: good, he's getting what he deserves.  But I can't wish that place on any 70 year old man.  Even Bernie Madoff.

J'ACCUSE - Part IV

It's now March 2002.  The Village Voice runs its first story on my expense account at HDC.  While the stories are written with the venomous quill of Tom Robbins the facts themselves are basically true.  He lists my expenses from records provided to him by Chuck Brass, President of HDC.  I hate that this is happening.  Hate to have to read about myself and hate that my friends and family have to as well.  In the story Robbins will make his only mention of my aptitude as HDC president.  He says that by all accounts I did an 'adequate job.'  You need to realize that 'adequate' in this context is like saying I was Lincoln, Reagan, FDR and Washington, and jack Welch all rolled into one.  For Robbins to have to admit that would prove what I would later claim; namely that I had done a pretty good job running the corporation.

During this period, my attorney, Irwin Rochman, attempts to convince me to see a forensic psychiatrist.  He says he knows a top guy and that my spending might have irrationality attached to it that should be looked at by a shrink.  Part of the reason he says this is that I had never made an attempt to cover anything up within HDC.  All of my records were there for the Board, the audit committee, the internal auditor and Ernst & Young to see.  E&Y came once a year with a team of accountants and stayed for two months.  I had never even hinted that anything should be hidden from them.  It had never for a second occurred to me that I was doing anything wrong, let alone illegal.

I resisted Irwin's suggestion strongly.  I told him that I was sick and tired of reading about people who got into legal trouble and immediately claimed some mental condition.  I suffered from depression but there was nothing seriously wrong with me and I had done nothing wrong.  I would not see his shrink.

Also around this time it became apparent to me that Robbins was going to write about the fact I was gay.  Either in a Fred context or merely to 'out me' out of vindictiveness.  It's weird to be 'outed' by the Village Voice, the great champion of gay rights.  Irwin suggested that I had to discuss this with Ray.  He knew that I had never told my father I was gay and lived in death fear of him finding out.  Why?  I cannot give you a sensible reason and looking back it all seems rather silly.  All I can say is I was totally terrified that he would ever find out.

Did he already know I was gay?  He had to, of course.  I hadn't had a girlfriend since I was 13 years old.  As I have written before, there was no question of him throwing me out of the house or disowning me.  As a teenager I can't say I knew that to be 100% true but certainly as an adult I did, especially when I had stopped living at home.  So where did this fear come from?  I just don't know.  All I know is that it was real.  And now I knew that I had to have the conversation before it was actually printed.  I had to act like a man and say the words out loud to him.  I owed him that.

So after leaving Irwin's office one day I took the bus up Third Avenue to my father's office.  I am sure in retrospect that Irwin had told him everything.  He was my lawyer in name only.  He kept none of my confidences as in a usual attorney-client relationship. I had told Ray I needed to talk to him about something important.  I sat at the far end of his office in a chair.  Far away from his desk and from him.  I beat around the bush but finally said the words.  The entire time I kept my head averted.

During the time I was in his office, from the moment I walked in till the moment I left, I did not look at him.  I turned my head away as I told him and then when it was over and he wanted to give me a hug I told him not to get up - still not looking in his direction.  I was slowly becoming an emotional basket case and that day wasn't much different.  I cried softly as I thanked him for being so decent about this.  The shame of that confession still haunts me and I can't understand anymore why I felt it so deeply, although at the time it was searing.  He told me in a jocular way that he still intended to use the word 'fag' which he had always done.  He never directed it at me and used it in a non-hostile way that people of a certain generation do.  I took no offense.  He wasn't a homophobe.  My brother, on the other hand, I knew very well was deeply homophobic and I was grateful that he and I had stopped speaking years before.  I will write another time regarding my realization of how scared my brother was of gay men.  It had to do with him disowning a friend, I believe, he discovered to be gay.

At some point after repeated requests I finally acquiesced to see Irwin's forensic psychiatrist.  The meeting was at Irwin's office.  His name was Mark Mills and he had a forensic practice in D.C.  We had a brief meeting alone in a conference room where he told me that we would meet in a few days for him to do some testing.  He used offices in NYC of a colleague.  During this brief introductory meeting he said at least 5 times that I had to FEDEX him a check for $11,000 that day.  He said it over and over.  It started to piss me off.  I would come to learn that this was Mills' M.O.  His assistant would call me out of the blue, frantically, that Mills needed me to FEDEX him $5,000 or $9,000.  I never once saw an accounting of hours spent on this matter. 

But a few days later I met Mills and he did hours and hours of testing.  He told me afterward that he was going back to Irwin's office and I should go too.  When we got there I waited for Irwin while he consulted privately with Mills.  When I went into Irwin's office his law partner was there and they both looked very somber.  Irwin came at me hard.  He explained that he had found out from Artz that Robbins was going to run Fred chats.  He claimed Fred had given him these chats and they included lurid discussions about kids and sex.  I was stunned.  Irwin was behaving like a total asshole to me at that point.  Very hostile and accusatory.  I said nothing.  He said finally, "So what do you want to do?"  I responded, "I want to talk to Mark Mills, alone."  Irwin and his partner looked surprised and told me he was in another office. 

I went in and asked Mills if he already knew about this.  He said he did.  Irwin had told him earlier in the day but he didn't tell me so as not to ruin the testing.  He asked me what I was thinking.  I told him I wanted to pose a hypothetical question.  "OK," he said.  "What would you do if a patient told you that....ummm..well lets put it this way, if a patient had made a calm decision that he had no alternatives and choose to do something about it...ummm...what would you feel compelled to do?  I mean, if he had no options and chose, lets call it Option 1.  Would you feel you had to do something.  Does choosing Option 1 by definition mean you're crazy?"  Mills answered back calmly,"choosing Option 1, as you call it, doesn't necessarily mean you're crazy.  There are a lot of situations where that would be a logical choice of last resort."  "So you wouldn't feel compelled to intervene in every case?" I asked.  "In most cases I would and have. But not in every, no."  "There going to print a story that I am basically a pedophile.  That can't happen, Mark.  I couldn't live with that," I told him.  I explained to him that to be 'outted' and labeled a pedophile, however untrue, on the same day was more than I could bear.

I was an intensely private person.  My friends know that, my parents knew that.  I still couldn't understand, even amidst all the anguish I was feeling, how Fred was going to release these chats.  He came off way worse than I did in them.  What would all this say about him?  It hadn't dawned on me, even then, even after finding out from Decision Strategies that they turned up no suicide attempts and no institutionalization, that Fred was going to fabricate these chats.  Even after discovering that most of what he had said to me on-line to keep me hooked to him was all a lie.  The thought simply didn't occur to me.  Newspapers, even a rag like the Voice, don't run fabricated AOL chats with no verification and checking.   

I told Mills that I had no choice and I needed to go home and make some preparations.  He asked one thing. That I wait until the morning to do anything and that I call him then.  I told him I couldn't promise that but I had things to do that wouldn't be finished by 10AM so I didn't see a problem.  I came out of the office and Irwin asked what I wanted to do?  "Nothing," I told him, "I'm going home."  He was dumbfounded.  I asked him if Ray then about this.  Yes, Artz had told Ray earlier in the day.  Great, I thought.  OK, I said, I have one request.  Tell Ray that he shouldn't try to contact me for 24 hrs.  I want to be left alone.  Irwin said he would tell him.

I walked home trying to come to grips with the reality that my life was over.  This was it.  I cried as I walked.  I just never saw my life ending this way. I just kept staring at all the people on the sidewalks going about their business and all with futures.  I had none.  I was extremely sad, but I realized there was no other choice and I had better get on with doing what I needed to do.  I made two phone calls.  First to a friend in South Carolina and asked him if he would take Seabright, my dog.  He said yes and I told him I would drive there on Sunday.  This was Friday evening.  I next called my dogwalker and asked that he help me clean out a storage space I had.  He agreed to do it the next morning. 

When I left HDC I had the Corporation rent me a space to store all of my possessions until I had decided what my next job would be.  It was mostly books and papers from 8 years in government.  Also a lot of framed news stories from HDC ribboncuttings and groundbreakings.  I had also brought my winter clothes there to store until next year.  I decided my mother would have to clean out my apartment but I should at least clean out this space.  Since I knew I was throwing out almost everything in it, it wouldn't take me and Ralph long.

So I met Ralph the next morning and we cleaned out the space. We threw away most everything and I took back the clothes and a few boxes of things back to my apartment.  I spoke to Mills and told him of my plans.  I would drive south, drop Seabe off and then leave on Tuesday for South Dakota.  I had always wanted to see Mount Rushmore before I died and I decided I would do that since it was doable and then take my life in a hotel in Keystone.  Mills asked that I stop by D.C. after I left South Carolina before I want to S.D.  I agreed to see him on Tuesday.  I spent the rest of the day cleaning my apartment and prepared for the 11 hour drive to South Carolina the next morning.  We left early Sunday, before dawn.  While In North Carolina a huge 18 wheeler tried to drive me off the road and I wound up in a ditch with a flat tire in 100 degree heat.  Because of the angle of the car we had to wait for a tow truck.  Back on the road I finally reached Charleston.  I spent the next day making sure Seabe was acclimated and set off early Tuesday for D.C.  The story was supposed to come out on the web that day and hit the newsstands the following day.

When I reached Mills' office there was no story yet.  We went out for lunch.  It was funny because at one time I had lived just a few blocks from his office when I first moved to D.C.  When we returned Robbins' latest story was up but it wasn't about me.  It was about Richard Roberts and his use of the HDC credit card for strip clubs.  I don't think I had ever been more relieved in my life.  Robbins couldn't pull the trigger.  They couldn't publish the chat because Fred would look as bad as me, or so I believed. After that I decided to head back to NYC.  I had a reprieve.  I didn't know for how long, but I knew it felt good to live again. { I left Seabe in S.C. and I will explain why next time. }

Irwin had been having conversations with the General Counsel for the Voice, Victor Kovner.  Kovner and his wife were old left-wing activists and he served for a time as Dinkins' Corporation Counsel.  For those not from NYC, he was the City's chief lawyer.  Irwin had been trying to convince and warn Kovner that Fred was unstable and he was not to be believed.  Kovner told Irwin that he would not run any chats involving Fred unless there was an HDC connection.  It was all a snooker.  I knew, as did Irwin, that I had purchased something for Fred, a VCR, with an HDC credit card.  This excuse of Kovner's was going to, in his view, give the Voice free reign to run anything Fred would say.

I've promised you to reveal how Fred and Tom Robbins manufactured those chats.  Let me do that now  (How and when I found about this is explained in the POSTSCRIPT at the end of this post).  Here's how it worked.  At first Fred had chats already created.  The idea for the fabrication of Internet chats was his.  But Fred is no genius, although he is clever and also deeply psychotic. The chats were somewhat ham-handed and didn't contain enough useful non-sexual information for Robbins.  So Robbins told him the topics that he needed chats on and what key words and phrases Fred was to have me say and questions Fred would need to ask in the chats in order to elicit the appropriately incriminating response from me.  These had to appear to be natural conversations. 

Robbins also provided Fred with Internet links and newspaper stories that had been written about me and Ray. The goal was to take real events and turn them into chats that had some criminal component to them.  Let me give you an example.  In one chat, that resulted in a major Village Voice story, I tell Fred about a bribe I supposedly took.  According to me, in the chat, at a ribboncutting ceremony for an HDC project I took a paper bag full of money from the developer.  I think it was $10,000 I don't remember the amount the story claimed.  Now the weird thing when I first read this was that there was a ribboncutting for that project around the time claimed.  The correct developer of the project was named.  How could Fred have known that?  He was in Indiana.  How did he know of my schedule and HDC projects.

As Fred would tell me, Robbins sent him a copy of a Daily News story that ran the day after the ribboncutting announcing the new project.  Sure enough that story had the date, the developer, the project.  But if I took this bribe, where was the money?  Fred told me Robbins identified that problem but Fred came up with the solution.  In the chat/story I tell Fred that same evening I drove to Atlantic City and lost all the money at a casino.  When I first read that story I thought, "doesn't any one else see how incredibly convenient this all is?"  Money leaves a trace, usually.  Had I taken this money there would be a deposit or a large purchase or something.  So Fred and Robbins disposed of the question by having me be an inveterate gambler.  In the series of fabricated chats I routinely tell Fred I am stealing HDC funds to support a gambling habit.  As anyone who has ever known me knows I spend most of my time in casinos sitting or standing behind Tony Carbonetti watching him play blackjack.  I lose my $200 and then watch him play.

In another major Voice story I tell Fred about a conversation Ray had with Rudy.  Ray is attempting to enlist Rudy's help for a client of Ray's law firm.  I remember the day vividly when my attorney, Gerald Shargel, called to tell me there was a new story and Ray was mentioned this time.  I was completely bewildered.  I had never known anything about the things I was supposedly telling Fred.  Not to mention the most obvious point that I had never, ever mentioned Rudy Giuliani or my association with him to Fred.  That part I got.  It was obvious to me that Fred had written these chats after reaching out to Robbins so he now knew all about my RWG connection.  But how could he know this stuff about Ray?  I had never heard of this client and knew nothing about any meeting Ray had ever had regarding his legal work and Rudy.  It turned out the client was real.  But how could Fred have know that?  It plagued me. 

Fred would later explain that Robbins had sent him an old Newsday story regarding questions about Ray's client and possible Rudy assistance.  The story alleged a conversation between Ray and Rudy on this matter.  Once you read the chat it's an almost verbatim transcript of the Newsday story.  It was so obvious that the thing had just been lifted.  But no newspaper or media outlet bothered to check, certainly not the Voice.  These allegations - more than allegations, because I am supposedly saying them - were reprinted over and over. 

Fred told me that Robbins, like a good editor,  would frequently mark-up his chats.  Telling him where to expand on something or delete something else.  Fred said that the majority of the ideas for the non-sex chats came from Robbins. Especially those chats that were used to support the expense documents that Robbins had gotten from HDC.  He, Robbins,  very much wanted to tie my expenses with an overt acknowledgment by me that I was committing criminal acts and knew it.  Fred said that most of the expense chats were written by Robbins since he didn't have the documents and we, Fred and I, had never in reality discussed  anything to do with HDC or my expenses.  Fred also said that the idea of claiming I was using HDC funds to procure prostitutes came from Robbins.  He said Robbins suspected that some of my charges were for that but he hadn't been able to secure any proof.  Having me actually tell Fred that I was, in his mind, was good enough.  Of course, I never hired hookers using HDC funds. But that didn't seem to matter.

Fred said, in fact, that the most famous chat - the one that would prove Fred and Robbins undoing - was Robbins idea.  Robbins apparently was determined to have a story showing me to be a racist.  Fred said he wasn't sure why but Robbins was obsessed with showing that I hated blacks.  And in fact there is a Voice story alleging that.  The chat - that would prove the lead-in and backbone of that story - revolved around me saying racist things about blacks in Harlem as prompted by the occasion of Bill Clinton's office being located there.  Fred and I in this chat are just shooting the breeze when this subject comes up topically.  According to the the story and the chat this conversation happened in November of 2000.  The chat is apparently time stamped with the date as all chats would be. 

Well the problem with that is we knew historically that Bill Clinton not only didn't mention his office being in Harlem until after he left office, it came after a fruitless attempt to locate to Carnegie Tower in Midtown.  There was no way I could have been talking about that since it wouldn't happen for months.  It would be like me discussing the aftereffects of 9/11 and what a great job Rudy did in June of 2001.  It simply couldn't have happened.  The first time I read the story I didn't catch it.  But readers of the Village Voice did and wrote letters to the Editor asking how this could be and stating that they didn't believe these chats.  The next week Robbins responded by giving Fred a platform to explain how this could have happened, at the very end of another story.  Fred came up with the nuttiest possible excuse.  He said that some chats had become intermingled in his computer while downloading.  This was akin to saying that two books fall off a bookshelf at the same time and not only do some pages neatly swap with the covers but that full coherent text manages to insert itself in the different pages.  Were these chats real what he was saying was patently ridiculous. 

Fred told me that Robbins was furious and very nervous when this was uncovered.  Fred believed too that this was going to expose the whole thing.  But the NY press corps, deciding that I was a sleaze and Robbins a hero for exposing me, ignored it.  I've even read that Robbins won awards for this coverage.  It boggles the mind to think in this day and age that someone could perpetrate a fraud this massive and for so long - these Voice stories ran for months - and never be called to account even after it was revealed the chats were phony.

That the press corps in NY is so lazy as to not raise the issue is deeply troubling.  It is not a matter of liking or defending Russell Harding.  It comes down to the fraternity of journalists and the rules about policing yourselves.  If people begin to routinely question everything they read in a newspaper - not that the Voice is a real newspaper - then the Fourth Estate would crumble.  Is the world materially affected because Jason Blair called in some stories he wasn't actually at?  No, not really.  But if the world believes that the NY Times doesn't care enough about the stories it prints to verify that they are in fact true, then the paper disappears.  That's why the Times took the matter so seriously as did its readers. And that's why a rag like the Voice undertook no internal inquiry after it was revealed that the chats were fabricated or that they had been warned by Rochman.  A rag like the Voice has no integrity or journalistic ethics.

These articles went on for months.  Almost every one predicated on a Fred chat of some kind.  It was of little consolation that I knew they were phony or that my close friends did.  Tony Carbonetti said he knew immediately that they were fake when in one chat Fred has me calling Ray, 'Dad' or 'Daddy'.  Anyone who has ever known me or Ray and especially those  who've known us both know I only call him Ray.  I have been calling him Ray since I was a young child.  And if I am referencing him for the first time to someone who doesn't know him, I always say, 'my father'.  But such is the age we live in - scandal now, facts later.  I will expose how that same ethos played out in my prosecution in J'ACCUSE - Part V.  Look for it in the days ahead.

POSTSCRIPT:

At some point in early 2005 I was at Federal Medical Center Butner in North Carolina.  I was still pre-trial.  I did most of my sentence pre-trial.  One day at mail call I received a card with a Virginia return address.  I got very little mail in prison so I was intrigued.  The card was from Fred.  He struck this nauseatingly sympathetic tone about how badly he felt for me and how sorry he was.  I ignored it.  A few weeks later comes another card.  I was now furious.  Here was this true, genuine sexual predator, roaming free thanks to Debbie Landis, my prosecutor, sending me mocking cards in prison.  I called my attorney, Henry Mazurek, and told him to tell Debbie to make this stop.  Fred was her creation and she had to put a stop to these cards.  A few weeks later Henry told me that he spoke to Debbie about this and she said she would do nothing.  Fred wasn't her witness anymore and she intended to do nothing. 

That's when I got the idea.  I wrote Fred back and said I accepted his apology but that I couldn't resume a friendship with him unless he came clean and told me everything that had happened.  His first letter didn't say much and I responded back that I needed everything in order to move on and forgive.  In his second and third letters that's when he laid out how this all worked in detail.  Some of it confirmed hunches and suspicions I had, but other things just blew me away.  Even knowing what a lowlife Robbins was I still didn't think him capable of all this.  But Fred didn't know most of the stuff he had me saying in the chats, he couldn't have.  It all fit together once he explained.  Naturally, I was using Fred.  He's a demented psycho and I would have rather had nothing to do with him.  If Debbie had leashed her creation then I would have been happy never to have written to him or heard from him again.  But after the third letter, I had gotten what I wanted and I never wrote back.