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.
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