For
possessing 11 illegal images, I am now assigned to the most dangerous,
predatory category of criminals in all of NYS. Without a finding that
I had done more than that, planned to do more than that, or have
attempted to do even that since my release from prison 20 months ago, I
am now the most dangerous man in NYS.
I have written numerous times that no justice can be expected in Judge Jeffrey C. Cohen's courtroom. Unless of course either the prosecution or his law secretary chooses to offer some. I have said that Judge Cohen is a smart man. I admit when I am wrong. Not because he assigned me a Level 3 status. I expected nothing less from him, it was what the prosecution wanted. I am just constantly amazed at how openly inept he has become. Maybe I just never noticed the full extent.
Yesterday
began as it always does in Judge Cohen's court, jokes. There was a
group of visiting Canadians who want to establish sex courts in
Canada. Judge Cohen welcomed them by saying "We have here today
visitors from our neighbors (sic) to the North." He then went on to
warn them that they wouldn't find his court or the process illuminating
and then mocked the process in-whole. Nice, when people's liberties
are at stake, make jokes. I was first up. He announced his decision.
Now step back here one moment. He's saying - by assigning me a Level 3 - that I am the most out-of-control, predatory, type of individual out there walking around. If that's the case, why did he wait eight months to announce that? My hearing was eight months ago. In the interim - according to the law - I have to be considered a Level 1. You would think that immediately after the hearing, having seen the evidence and reached the determination that I am this menace, that to protect the community from me - something he said yesterday he clearly wants to do - that he would announce his decision, rather than letting me walk around posing this extraordinary threat to the public. Eight months to announce this; putting the public at risk the entire time? Hard to comprehend how I pose this serious threat to the community when it took him eight months to announce it. You'd think with the public's safety in jeopardy that he'd want people to know right away. God only knows what I might do in the interim.
At the moment after he announced his decision my lawyer asked for a stay. At this point, at this serious moment in my life, I almost started laughing. Why? Because Judge Cohen couldn't articulate his stay order. He started, then stopped, then tried again. But that wasn't the funny part. Like most judges he has a law secretary. In his case a very, skinny middle-aged woman. What you realize is that even more than with most judges, he is completely lost without her. It is she who rules that courtroom, not him. He is constantly looking to her for her approval to his rulings and she revels in it. What was so funny to me was that I was facing her head-on and while he's stumbling around to announce the stay order she is rolling her eyes and making the most exasperated expression. If there were a cartoon bubble over her head it would have said, "what an idiot!" Moreover, while waiting for my lawyer after the decision, I found out from someone who had been there a few weeks ago that he had issued the exact same stay order then and simply couldn't explain it. Further, all that was required was for him to check a box on a form that said 1, 2 or 3 and he simply could not do it without his law secretary's assistance. This guy told me that Cohen was pathetic.
Now what was his
reasoning for giving me this extraordinary classification? What did
his decision say? It said two astounding things.
The
controlling case in these matters is a NYS Court of Appeals case, People v. Johnson. First, Judge Cohen acknowledged that Johnson applied
to my case (it could not be more directly on-point). The Johnson case
recognizes that the state law creating a sex offender registry and
process is flawed in matters of child pornography. The law was written
poorly and in a hurry back in 2007. The court said in Johnson that
there were anomalies between the law, the levels, and the crime of
possessing child porn. But rather than throw the law out, the court
counted on the common sense and good judgment of judges to address
these obvious anomalies. What are these anomalies? The most glaring
of them is this: You are assigned extra points if the victim is a
stranger. Had I somehow had pictures of children I knew that would
have been OK, and I would not have been assigned extra points. The law
is clearly intended to relate to the crime of molestation and not child
porn. The legislature mad a total mishmash of the statute in writing
it.
Judge Cohen clearly acknowledges this in his decision but goes on to say, "Johnson permits, indeed may even suggest, that a court consider a downward departure in such cases, but it does not mandate the court to so depart because it is a child pornography case." He thumbed his nose at the NYS Court of Appeals. It was the clear intent of the Johnson decision, as it related to child porn, for lower courts to realize and take into consideration the anomalies between the system created to determine levels and the crime of child porn possession. They did not mandate it because to do so would have, in all likelihood, invalidated the law or at least made it open to much greater challenge. They did not want to invalidate the law and further, did not want judges putting them in the necessary position to do so. So they stated rather clearly that the drafter's legislative intent and their final product may not be consistent with the crime for which I was charged. What the court was saying was, "use your good judgment to fix these cases and don't force us to throw out the whole thing."
But
Judge Cohen yesterday flipped off the NYS Court of Appeals. He told
them, "not gonna do it and you can't make me." But that was not the
truly outlandish part of his decision. Nope. He determined I was a
Level 2. He then disposed of our motion for a downward departure to a
Level 1 - for the reasons stated above. He then accepted the
prosecution's motion for an upward departure to a Level 3. Why?
Because I had defrauded HDC. That act made me more of a danger to the
children of Westchester County and New York State. See the
correlation? No? Neither do I. Neither would anyone. But that
wasn't what blew me away regarding the HDC statement. Right after my
appearance Judge Cohen accepted a plea bargain in which he agreed to
sentence a priest - who stole over $400,000 from his church - not to
the prescribed four years in state prison - nope - but to six months in
county jail. I am excoriated by him in his decision for HDC, but this priest gets maximum leniency.
Now Judge Cohen could have said no - he could have
rejected the plea, like Judge Rakoff did in Federal Court in the BOA
case. It is every judge's prerogative. No, he accepted it because his
law secretary and the prosecutor were for it. There is no evidence
that in a serious matter of sentencing Judge Cohen ever departs from
the prosecutor's "request." It's hard to see what neutral, buffering
point he serves in all this.
The
evil, perniciousness inherent in depriving people of their civil
liberties is the ease with which people can become accustomed to doing
it. What HDC has to do with the safety of child is beyond anyone's
ken. But once you start labeling, registering and tagging people it's
a very slippery slope to throwing out wild add-ons like the HDC
example.
The worst of the worst make up a very
small percentage of those who ever get registered. Prosecutors view
these hearings as easy ways to up their win-loss stats. Most judges -
Cohen in particular - are deathly afraid of taking the criticism that
comes with making a tough call. As I have said before the one's who
suffer - besides those being registered - are the police and the
community who think this registration business makes them safer. The
police now have to treat me like a Level 3 Offender. No one but the
prosecutor and Judge Cohen believes I am a Level 3 offender. But all
the police know is that's my designation. I guarantee you that there
is some guy out there with a Level 1 or 2 who poses a far, far greater
risk but the police - whose resources are naturally limited, not
limitless - will focus less attention on him because the Westchester
D.A's office and Judge Jeffrey Cohen thought it would be fun to tag me
with a Level 3 designation.
There are consequences to society for this reckless
behavior. When you lose sight - as they clearly have done in my case
and so many others - of the extreme seriousness of what's taking place
here, then you demean the very position of trust you hold. The public
is not better informed. They are barraged with meaningless and useless
information that can only confuse and frighten them. And in case
you're missing it, that's the point. The Sex Offender industry,
whether special courts, prosecutors, treatment clinics, graduate
courses, books and videotapes, reference material, prisons, expert
witnesses is now huge money. federal money, state money, private
money. This is major business being plied all at the expense - in most
cases - of people who may have committed a crime, did their time and
simply want to get on with their life. I have told you before that
contrary to talk radio, 'sex offenses' have the lowest recidivism rate
of any major crime.
I was in prison with numerous members of the notorious gang, MS-13. They originated in El Salvador and are now considered one of the largest and most dangerous gangs in the United States. One of the features of gang life - and life in MS-13 most especially - is recruitment. They are always seeking out young, poor, disaffected Hispanic kids. Regardless of their sentence, they all told me that as soon as they were released they were going right back to MS-13. Now imagine for a moment you're a poor, single, Hispanic mother, raising your son in the bad part of town. Now, would you rather know that an MS-13 gang member recently released from prison has moved in next door to you or that some guy who looked at illegal pictures on the internet moved in? The white middle class amongst you are all answering wrong. The answer, I assure you, that she'd much prefer to know that this kid, intent on recruiting her son, just moved in. But we don't register that kid just leaving prison. His recidivism rate - gang membership - is nearly 100%. But no one is doing anything to inform that mother that her son is in real danger of his life spiraling out of control. Now I am not endorsing registration for that kid just released from prison because I don't believe in registration. But if the goal here, as espoused by its advocates, is to keep parents informed of threatening dangers to their children, then I can guarantee you that Pedro or Raul next door poses a far greater risk than do I. And yet the mother is ignorant of her surroundings. How do we explain this?
What saddens me most about Judge
Cohen - and I do not expect most of you reading this to understand my
point - is that he's Jewish. I try not to throw around the Holocaust
card too much, but I am in fact a first-generation American; both my
parents are Holocaust survivors. I've studied that period intently,
read all the books, been to Yad Vashem and the U.S. Holocaust Museum.
No one can make a case to me that we were willing participants in the
destruction of six million of our own, but it also cannot be denied
that all Jews bear some shame for acts of complicity in aiding the
Nazis.
The Jewish Councils in most ghettos compiled the lists which the Nazis used to determine transport. It is our way to follow the rules, keep calm and try and maintain a semblance of order even if the final outcome is our destruction. The diaspora made us keenly aware not to rock any boats and to 'go along to get along' in a foreign land, even one we may have lived in for a century. Part of, 'Never Again' is that sense that we won't go quietly into any good night. Israel's existence and the constant struggle against its neighbors; it's willingness to fight first, if necessary, is all a testament to that.
Accordingly, there are certain things
Jews simply don't do - or shouldn't. This business of sex offender
registration is a modern day tattoo, like those put on the forearms of
Jews in camps. It's an electronic tattoo so it seems less personal,
but it's a tattoo all the same. Jews don't help in registering
people. I've seen my grandmother's papers with a Star of David and the
word, Juif (Jew) on them. Once you've seen that you don't forget and
could never partake in doing it to someone else.
Before
you get all outraged about me comparing the victims of the Final
Solution with child molesters, let me finish. If this business of
registering sex offenders were a perfect system I would still oppose
it. I just do not accept in this country the idea of registering our
citizens. It is dangerous and "unamerican." But if it were a perfect
system where only the worst of the worst were registered; people who
were completely incorrigible, where every protection was afforded them
before they were registered to make sure no mistakes were made, then
maybe it could be justified. But the system we have in place is the
exact opposite; Judge Cohen is all the proof you need to see that.
Under the law, Sex Offender
Registration hearings do not guard defendants rights stringently, to
make sure they are protected in order to ensure a scrupulously fair and
just outcome before their greatest liberties are removed. It is the
exact opposite. In those hearings every piece of evidence is
admissible: hearsay, feelings, uncorroborated statements and written
evidence. Practically anything you can think of to say or submit is
admissible. In death penalty cases every possible protection is
afforded to make sure this grave sentence is being handed down
correctly. With Sex Offender hearings no protections are afforded
before we label and tattoo for life.
For a Jew to make it his living to
register people is a travesty. I think if Judge Cohen's mother - who I
am sure is proud of her son - knew the full and reckless extent of what
it is that he does, she'd be ashamed. Jews in the ghettos used to
rationalize their participation in Jewish Councils by saying, "Someone
has to do it." But most Jews said, "Maybe so, but not me." For a Jew
to do this as a living - to earn income from electronically tattooing
people, it is a shandeh un a charpeh - A shame and a disgrace. Judge Cohen tried to make me into the worst of the worst - I reject the label totally.
When asked to do this job - and for all I know he volunterred, believing it would advance his career - what Judge Jeffrey Cohen should have said was, "Maybe somebody has to do this, but not me." That he does this job willingly, and so recklessly, makes him judicially and as a Jew, the worst of the worst.
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