RUDY VERITAS

Beginnings

With apologies to Evelyn Waugh, it is now time to speak of Ray.  The overarching influence in my life has been my father.  He shadows all things.  And while it is true that a more psychologically balanced individual could and should have managed such a domineering force in their life, I could not.  The result was that I allowed him to mold and shape me through anger, guilt, physical abuse and - with a mind much duller than his - powerful, emotionless logic.  He wanted me and my brother to be carbon copies of himself.  No charting your own course in the Harding family. 

Which was strange considering my grandfather, Mane Harding, was such an open man who really just wanted his son and grandsons to be "satisfied" in all that they did.  That was always the word he used.  He never asked me if I liked my teachers or a particular job I had, but was I satisfied.  I loved him for a lot of reasons but a big one was his use of that word and what it represented.   Like me, he approached life as a consumer.  I receive a service and should be pleased with it.  I have a job and should derive some contentment from what I do all day with my time.  It wasn't quite happiness - Hardings, with the exception of me and my mother, never thought of happiness as a goal - but rather being at peace with things; a much greater achievement in fact than happiness.  Mane Harding was a hero to me and a very wise man.  When I went to prison, and all during my incarceration, I said many times how grateful I was that he was no longer alive to see this.  I could not have borne it. 

My parents were very much products of their generation.  They married in 1956 - my father not even 21 and my mother 19 - and had a child, my brother Robert, 11 months later.  They were stone cold broke and going to school.  My mother dropped out to support my father and he worked as well as went to college and then law school.  My brother stayed with my grandparents who lived in the same building.  My parent's long hours of work and school didn't make much time for parenting and my brother would see them mostly on weekends.  My brother slept on a cot in the kitchen as that's where there was available bed space.  Although never openly acknowledged by him, these and other childhood experiences would deeply effect my brother's psyche for the rest of his life.

Why they had me I'll never know.  I suppose my parents did what the times dictated and no one had just one child.  Certainly not young, Jewish parents in Washington Heights.  So they had a second child child six and a half years after their first. 

My father was a stern man in those days. A cross between Raymond Burr (as Perry Mason), Mr. Spock and Jack Webb (as Joe Friday).  I feared him and his punishments.  The slightest act of what he perceived as disrespect or disobedience would result in a sharp, hard, open handed smack across the back of my head.  Often times repeatedly.  He had an accompanying name for the punishment which he would say as he performed it.  It was done in anger mostly and it hurt.  There is no question that the repeated act of doing this would today be considered child abuse.  Back then it was discipline.  He would do this anywhere and everywhere over the smallest thing and usually when he was in a bad mood.  The most memorable incident was at Gov. Hugh Carey's second inauguration.  As we were walking out of the Assembly Chamber my father, in a very bad mood for some reason, decided I had given him a dirty look at something he had just said.  He whacked the hell out of me right there in the Capitol.  Although not present that day, my mother was indifferent to all this, always indifferent, unless it affected her.

Early on she would physically abuse my brother.  Nearly every weekend, from the time I first had consciousness to about the age of 7, I would wake in the room my brother and I shared to her screaming and crying.  This is a special talent of my mother's.  She screams and hysterically cries simultaneously.  That was how I remember waking up most weekends in that bedroom.  My mother would start her screaming at my brother, throw back the covers, drag him out of bed naked and then begin chasing him with a belt with which she would whip him.  I never knew what these episodes were about or what set her off.  I don't think my brother really did anything.  She was, I believe, just an unhappy person with a totally uncommunicative husband.

It finally stopped when one day my brother, who by this point was nearly as tall as my mother, grabbed the belt and said, "This stops today.  One more time and I take this to you."  It was a brazen thing to say and he never would have done it but he sounded like he meant it and she was totally taken aback.  She resumed her crying and screaming at a decibel level so high you could shatter china.  She said to him, "Oh yea?  You're gonna hit me?  You're a big man?  You're gonna hit your mother?"  But it worked, she never touched him again and those weekend morning hysterics ceased.

Other than those episodes, and they generally ended by the time I was 8, it was my father we feared.  And as far as he was concerned, fear was just about the right emotion sons should have in measure for their father.  I don't know where or how he came by his views on parenting, but they were his own and he thought they were 100% on target.  In the earlier part of his life, prior to say age 50, he was sure of all things that he had done and how he had conducted himself.  He didn't believe in a lot of introspection.  Certainly the raising of his children gave him no cause for second thoughts.

From an age too young to remember I began calling my parents by their first names.  I don't know why or whose idea it was.  I didn't then and still don't think it was a sign of disrespect, as my father never would have permitted that.  I guess we're just not a mom and dad kind of family.  There was a girl I knew in college and for some years after who, along with her brother, referred to her parents as mommy and daddy.  That was never gonna happen in our family.  So it was always Liz and Ray.

Ray worked hard in the Liberal Party rising up through the ranks first in the Washington Heights section of Manhattan and then in Bronx County after we moved to Riverdale.  A quick history:  The Liberal Party was formed as a breakaway from the American Labor Party (ALP).  FDR wanted a second line in NY to run on in 1944 and was concerned, as were many, that the ALP had become infiltrated with communists.  He turned to Alex Rose, David Dubinsky, other labor leaders, New Deal coalition partners and asked them to form a progressive third party alternative to the ALP.  They founded the Liberal Party (LP). 

As Ray has told the story on many occasions, he went to a LP meeting in Washington Heights and asked someone who the old man was who never spoke and sat in the back.  He learned that it was Alex Rose who also lived in Washington Heights.  That's how they met and Ray came to Alex's attention.  Ray would become a protege, in the end the protege, of Alex.   First becoming Chair of Bronx County and then when Alex and former mayor Wagner were instrumental in the candidacy of Hugh Carey as Governor - first as a very long shot in the primary against Howard Samuels and then in the general election against Gov. Malcolm Wilson - Ray was chosen to be Alex's guy on the Second Floor.  That term refers to the area of the Capitol Building occupied by the Governor's Office.  Ray was going to be the Liberal Party's man in the Carey Administration.  There was a nice side note to the Carey transition in that it took place in the Commodore Hotel where my grandfather had been head waiter in the banquet rooms for many years and had only recently retired.  The whole thing had a nice Upstairs/Downstairs quality to it.

What this all meant for me was that my cold, emotionally distant father was now going to be geographically distant as well.  He would be spending four days a week living in Albany.  I don't think I much cared, it was more of a relief.  By this point, in my tenth year, I was already pretty messed up in the head.  I was a very nervous kid and had developed irritable bowel syndrome (back then called a Spastic Colon) and had already started bleeding rectally on regular basis.  Everything made me nervous and tense.  Because of the constant shouting and yelling in our house, I have to this day a terrible aversion to loud and sudden noises.  I was not what you would call an easy-going and relaxed kid.

When I was about six years old I developed a bad case of warts on the back of my neck.  Liz made an appointment at a doctor who specialized in this.  He said he could cure this and his method was to burn them off.  With my mother in the office he had me lay down on the exam table and proceeded to employ some device that burned my neck; it was basically a hot poker - this was 1970.  I jumped off the table and began screaming and wouldn't stop.  The doctor kicked us out of the office.  Outside on the street my mother began screaming at me that she was mortified by my behavior; that we had been kicked out; that she had missed a day of work and that she still had to find a doctor.  She then turned and slapped me in the face.

Our pediatrician recommended another doctor.  We went.  When we were in his office my mother explained what had happened with the previous doctor.  The doctor asked for the the other doctor's name.  Upon hearing it he explained that the other doctor was a well known quack and that his method not only wouldn't have worked it would have scarred me for life.  He told me I had done the right thing.  My mother was mortified.  The doctor said my warts were caused by nerves (I told you I was a very nervous kid) and that there was a simple home remedy that would make them go away (ice and milk applied with a towel on the back of the neck - don't laugh, it worked).  Outside his office Liz started crying and begging my forgiveness for how she treated me and for having taken me to that quack doctor.  She said she couldn't believe she had done something that would have caused me to have been burned.  I said I forgave her, but clearly it left a memorable scar.

As I was a latch key kid, since a very early age, I had developed an irrational fear of being left alone in our apartment at night.  It's not an uncommon circumstance.  My parents, due to their jobs, LP work (my mother was also very involved then) and social activities, came home late most evenings.  In my younger days - ages 4 through 8 - I had nannies or babysitters in the afternoons until my mother came home from work. When I was eight we moved up the block to a new apartment and this stopped.  My brother was expected to keep an eye on me if needed.  Our age difference was such that we hardly spoke and when we did it was usually to fight.  A seven year age difference especially when raised in two different economic environments is very difficult.  By the time they had me and I was starting kindergarten we were definitely middle class.  Maybe just, but no longer poor. 

My brother had real issues with how I was raised versus his upbringing.  And those issues would color our relationship and last the rest of our lives.  What he never understood was that while it is totally true that our family was poor when he was a kid, there was a much greater sense of family.  Look for any pictures of my youth. There are almost none.  My brother on the other hand had elaborate birthday parties with many guests, family and thought given to their planning. There are lots of pictures of his early years.  My parents did the whole interested dutiful thing for him since he was first-born and they were still interested.  When my turn came they had no interest, patience or time.  What they had was some more money.  So that was the trade off.  I know my brother wouldn't have wanted to switch places with me but he's resented me my whole life just the same. 

My brother graduated high school early, at 16, in December of his senior year.  I was therefore pretty much home alone after I came home from school.  From a very early age I had developed an irrational fear of burglars breaking into our apartment.  I insisted that my parents keep their bedroom door open at night so they could hear me scream if something happened.  I don't know if I ever explicitly told them that 'something happened' meant burglars breaking in and trying to kill me, but that's what it meant.    We lived on the top floor of a high rise with easy access to our terrace from the roof of the building.  In fact, on a few occasions someone had tried to break into the apartment through the window in my brother's room that looked out onto the terrace.  It was gated so they never succeeded.  Many a night, alone in the apartment, I would be convinced that someone was breaking in.  Either a noise or a feeling would set me off.  I would sneak out quietly and go downstairs and sit with the doorman until my parents returned.  They were not happy to come home and find me in my robe in the lobby.  From about the age of 5 continuing to this day, the only constant/recurring dream I have ever had is of burglars breaking in and trying to kill me.  For at least 30 years it was the exact same dream, taking place in our old apartment and ending with the burglar throwing me over the terrace which was at the top of a very steep incline.  After that it morphed into whatever apartment I happened to be living in.  They continue to this day.

One night, returning late, my mother said, "We feel you're alone too much and we want to do something about it."  Thank God, I thought, no more facing the burglars alone.  I assumed they were going to tell me that they had decided to cut back on their activities and she would come home earlier.  I didn't think he could cut short his 4-day week in Albany this soon after starting.  I also wasn't sure I wanted him to.  "Your father and I have decided that you should get a dog," she told me.  A dog?  Now I know some - perhaps most - kids pine their entire childhood for a dog, I get that.  However, I hadn't.  We were not a pet family and the idea of owning a dog had never been discussed.  It just wasn't something that would have been raised for discussion in our family.  At least prior to that night apparently.  

OK, a dog.  My mind started racing.  I'm immediately thinking cute puppy - very cute puppy.    I knew nothing about dogs and neither did my parents.  What kind do you get?  I didn't even know the right questions to ask.  All I knew was puppy!

"We'll go to the Bid-A-Wee Home and get a rescued dog one day this week," she said.  A rescued dog?  Do they rescue puppies?  So I took the bus downtown after school to meet my mother at her office so we could go to Bid-A-Wee together.  We walked around there for about 5 minutes.  It was all very sad and depressing.  Plus, there were no puppies.  Nothing how I was picturing this moment.  We hadn't read any books on dogs, dog care, or dog training.  We had done absolutely no research for this moment.  Nor had we made a single purchase to prepare for his arrival.  As a dog owner some years later, I can tell you this is absolutely the wrong way to get a pet and a sure-fire formula for it not working out.  I settled on a mixed-breed.  I have no idea why I chose him.  I think it was because he wasn't barking; barking scared me.  They told us he was probably part shepard, labrador and maybe some beagle.  

My mother paid them for shots, food, a leash, a collar and made a donation.  We took the dog home in a cab.  I think it was in the cab I decided to name him Sherlock after Sherlock Holmes.  I somehow pictured this dog wearing the famous deerstalker hat that Holmes always wore.  I was 10 years old and in the fifth grade.  I came home every day at lunch to walk him.  My relationship with the dog lasted less than a week.  By the time my father came back that weekend from Albany I had decided I didn't want this dog.  When I came home at lunch to walk him he would growl and bark at me.  He wasn't house trained and would pee in my bed.  He cried and whimpered much of the time.   No one had prepared me for any of this.  I was expecting a puppy who would lick my face. 

Liz cried and screamed at me.  She had Ray take me to Bid-A-Wee to return the dog.  She wouldn't talk to me for two weeks; she called me heartless, wicked and evil.  I especially remember evil.  In retrospect he was clearly an abused dog.  No one had explained that to me or what it meant.  I didn't know dogs could be emotionally damaged.  I thought they just came cute and lovable fully prepared to love you unconditionally.  I interpreted his insecurity as my own.   I assumed he didn't like me and therefore I didn't want him around.  And if it were possible for a 10 year old to fathom this concept, maybe I also didn't want to assuage their guilt over leaving me alone by keeping the dog.  I know that wasn't a conscious thought at the time, but maybe, on some level, I also resented the easy one-stop Bid-A-Wee dog pick-up service.  No puppy, no thought given to what dog should go in an apartment, what my schedule after school would be and what dog fit best in the city versus the country.  Nothing.  But most importantly I had never expressed any desire for a dog. 

I know lots of people who have sons and are amazed that these boys, coming from the same parents and the same environment can turn out so differently.  My brother and I were alike insofar as Ray was the dominant presence in both our lives.  We did share the same sense of humor and liked the same foods but that was pretty much it.  He was out-going, sports oriented and level headed.  I was dark, moody, and impulsive.  We never got along when we were children.  In fact not until we were adults and then only for a brief time. 

At the reception for his wedding my brother made a comment in response to my toast that he liked or respected what he saw in me the previous summer (we had spent 3 weeks petitioning for Ray and the LP all over upstate NY).  I was already in college and I think this was the first time in his life that he liked me.  I think that dawned on him during that wedding weekend.  He had spent so much of our lives resenting and disliking me that it was noticeable to him that his feelings had changed.  I was a younger brother and wanted - I won't say craved - my brothers attention when we were growing up.  But the age difference was too much and he wasn't interested.  I went to visit him a few times when he was in college.  I took a 9-hour train ride to Plattsburgh.  It was one of many experiences that later on when Bob had kids would have been totally unthinkable for his children.  Bob turned out to be this bizarrely over-protective father.  My parents could never figure out where it came from.  I had a blast visiting him in college.  Bob had a rough start to his college career.  He was originally accepted to and attended SUNY Buffalo.  Within days, maybe hours of being there he called my father sobbing that he didn't want to stay.  The unbelievable irony is that I was the one growing up who had major problems with being away from home.  Every year my parents would send me to sleep away camp and every year I would beg to come home.  It always got so bad that they had to bring me home early.  My brother loved sleep away camp so it had never occurred to Liz and Ray that college would be an issue for him.

Bob always had a very small group of friends growing up.  He was a high school football player and didn't partake in the freedoms of his era, the early 70's.  SUNY Buffalo then - and even when I was applying to college - had a reputation as a big drug school.  Everyone knew that.  I supposed Bob didn't give it that much thought or what it meant to be away from home.  Well he gets there and everyone is smoking pot.  This was deeply upsetting to him.  He said he couldn't handle it.  I remember the night he first called home and asked to speak to Ray. He sounded really troubled.  Ray was working for Gov. Carey at the time and reached out to the Chancellor of SUNY to ask his advice as to where Bob should transfer and could he help.  It was the Chancellor who suggested Plattsburgh and smoothed the way.  Bob switched but still didn't adjust quickly to college life.  Ray would make bi weekly and then monthly trips to meet Bob for dinner at a restaurant half way between Albany and Plattsburgh.  I never understood what it was about college that scarred him so much in the beginning.  I was thrilled to go to college and get away from home.  And yet 4-6 weeks of camp in the summer was unbearable to me.  Go figure. Same parents, same environment and we could not have been more different. 

Remembering 9/11

God, I hate this day every year.

Early every Tuesday and Thursday morning, I would walk around the corner from my apartment to the Equinox gym to meet my trainer.  Tuesday, September 11, 2001 was no different.  Even early in the morning, it was very warm for September.  While on the elliptical machine I watched the morning news shows on the bank of televisions.   I was watching Good Day New York, the local Fox morning show.  Jim Ryan announced that something had struck the World Trade Center.  They quickly had a camera on the Tower.  It was believed to have been a small plane and they were guessing a pilot had gone off course.

I was interested but not fascinated and kept on peddling.  I finished my workout and headed home to shower and get dressed.  Rocky, my driver, was already in front of my house.  He waved me over and told me to call Luke.  From the car I called Luke and he told me not to come to work.  The way things looked it appeared that the building was going to evacuate at some point.  I went upstairs and told Rocky to come with me.  We watched TV.  Luke and I spoke several times about the situation at HDC and with the building.  110 William Street is just a few blocks from the WTC.  Not being a city agency, HDC was not governed by the City's residency requirements.  Many of our employees lived in New Jersey, Long Island and the northern suburbs.  On days I had closed the office early (e.g. Christmas Eve, New Years Eve, etc.) we had a system in place for letting the most distant commuters leave first.  I told Luke to start initiating that plan.  I had a feeling, knowing Rudy, that it was going to be difficult to get out of the city if this was to become as bad as it looked.  As the morning wore on I had a feeling Rudy might shut down Manhattan.  Luke set up a large screen TV in the boardroom for the employees to watch the news.  Luke and our General Counsel, David Boccio, took charge and were superb; calm, organized and reassuring.  I told Luke early on that if people couldn't get home to tell them they were all welcome to come to my house.  I would get air mattresses at the nearby Bed, Bath & Beyond if needed.

Months earlier we had developed and enacted a disaster recovery plan for HDC.  T.J. Mignone and Luke had been pushing this for some time.  Early in 2001 I accepted their proposal and HDC signed a contract with Sunguard, one of the largest disaster recovery companies in the country.  What that entailed was a mirror site at their offices across the river in NJ.  In addition, copies of our computer tapes - with all our financial, investment, mortgage and investment data - were picked up nightly from HDC and stored at their facility.  In the event we activated the service, HDC would have guaranteed office space, using our same equipment, as well as all of our records no more than 12 hours old.  HDC would be up and running within a few hours should we need the service in the event of a crisis. The deterrent to activating the site was that once you pulled the trigger it was very expensive.   

At first, the management at 110 insisted no one leave.  I told Luke to ignore them and start sending people home.  The management was scarred of a panic that would have everyone in the building racing for the exits.  Fair enough, but I wasn't buying into it.  As the Towers started coming down I asked Luke where he was going.  He told me he was headed to Chinatown to find Dennis, his boyfriend, who taught at an elementary school there.  I tried to talk him out of it, but he was resolute.  Rocky meanwhile was growing very alarmed about Sylvia.  Sylvia Santiago was an HDC Vice President and Rocky's girlfriend.  He had not heard from her in awhile and could not get her on his Nextel.  Finally, she bleeped to say that she was in trouble.

Sylvia had somehow sought refuge at 1 Chase Manhattan Plaza near our offices.  But once she got into the building they wouldn't let her leave.  Moreover, security there was forcibly herding anyone left in the building into some basement bunker.  She was scarred.  Sylvia had a young son at school in the Bronx and she wanted to get back home as soon as possible.  I took the phone, told her to get the head of security and put him on the line.  With my most official and officious sounding voice I told the guard who I was.  I told him that Sylvia was a senior member of my staff and needed to be released immediately.  Further, I told him that his instructions were all wrong.  The directive was for people to leave their buildings and head east towards the river and the FDR Drive.  The air was better the further east you went and the FDR Drive was now closed to traffic and opened only for pedestrians to walk north.  The guard apologized and said he had only been following his orders.  He released Sylvia along with everyone else.  I told Sylvia to head to my house.

Rocky and I continued to watch the carnage and the misinformation.  The State Dept was hit, the Capitol was next.  My father called asking if I had heard from or about my brother.  My brother was a Deputy Mayor and had been with Rudy.  My father sounded very worried, unusual for him.  I told Ray I would get Carbonetti and have him track down Bob.   I could not raise Tony on my Nextel and my pages went unanswered.  All sorts of crazy thoughts and scenarios started popping in and out of my head.

My apartment's windows all looked out onto Third Ave.  It was like a scene from Dawn of the Dead.  All these weary, dusty people, in the street, walking north.  The buses were crammed and apparently had stopped charging fares.  At some point Sylvia arrived looking the worse for wear.  She had walked from the financial district to the E. 60's.  I found some of my thin clothes and gave them to her.  Her shoes were ruined.  My mother had left a pair of her sneakers at my apartment and I gave those to her as well.  After she showered and dressed we went out to lunch.  This is when it really started hitting me.  Even though everything was open, the wait times were hours because staff hadn't been able to come to work.  We went to Jackson Hole for burgers and Sylvia recounted her trek north.  When I got home Tony called and told me that he was fine.  He also asked that I call Ray and tell him that Bob was safe.  I will not recount here the harrowing tale that morning of Rudy, Tony, Bob, et al. because it is now part of history.

I told Rocky and Sylvia they were welcome to stay but Sylvia wanted to get to her son.  Rocky was a single father of two, but his mother had arranged to pick up his kids in Brooklyn.  I told Rocky to take the car and use whatever lights and sirens were necessary to get through the barricades now closing off Manhattan from the rest of the city and the outside world. 

I spent the rest of the day with Seabe.  Even a dog knew something wasn't right that day.  Eventually his dogwalker showed up.  I don't know how Ralph got into Manhattan from Brooklyn.  I went with them and we surveyed the neighborhood. 

That night it became clear that in this technologically dependent age, all that has to happen is for a substation to blow up and we we're all back to basics.  None of our beepers or cell phones worked.  Only our Blackberrys still functioned (much would be made of this fact later on and was a major reason why all members of congress were issued them shortly thereafter).  I spoke to Luke and told him to get his staff going on accounting for all our employees.  Also, I wanted instructions given for everyone to leave a contact number and to check in daily.  I had no idea what condition our office was in or if we were going back.

The prosecutor in my case made much of the fact that she possessed a sexual chat I had on the evening of Sept 11th.  I of course don't recall it, but I also don't doubt it.  Everyone in my neighborhood - and most of the city, in fact - were either getting drunk, smoking pot or taking tranquilizers that night.  I escaped by chatting.  It had been an unreal day and I am sure I just wanted to forget it.  Earlier that evening Seabe and I had gone for a walk.  Make-shift memorials started to go up on phone kiosks and just on the ground.  At first, my natural NY cynicism kicked in and I thought how hokey and Midwestern this was.  But as we walked, it all started to overwhelm me.  That night the odor began.  Starting that evening and every day thereafter for many weeks, the smell of the pit at ground zero wafted north.  You wouldn't smell anything in the morning hours but every afternoon the wind would shift and the odor came north.  It was a sensory reminder like no other.  Truly the smell of death, disaster, misery, suffering and loss.

The next morning I awoke as i would for many days thereafter.  Convinced this had all been a dream and that the Twin Towers were still there.  I would immediately put on the TV to see if this were real.  Like many, if not most New Yorkers, I didn't particularly care for the Twin Towers.  It wasn't very good architecture, had been roundly panned by critics for years, and as anyone who had gone there, was a pain in the ass to get around in.  But instantly after they were gone I think we all realized how much they had grown on us and how they had become a genuinely iconic part of NYC.  As much as the deaths, their disappearance was deeply upsetting to me in those early days.

As for the running of HDC, we had no office and there were bank codes that hadn't been taken when the office was evacuated.  HDC gets most of its income from fees charged to developers and its own investments.  Without the bank codes it was difficult to continue our overnight investments.  Moreover, Bank of New York, which cleared our transactions, mindblowingly had absolutely no disaster recovery plan in place and they were totally out of commission (after the crisis was over we reached agreement with Bank of New York to compensate us for the millions we lost - HDC was held financially harmless by their neglect).

We had to go back to the office to get those codes.  So on Thursday, September 13, 2001, I along with about 4 other members of my staff, made our way to the office.  Rocky, who had my car, picked me up at home.  Without my official car there was no way we were getting into that area, it was completely sealed off with armored personal carriers. 

It was as close to a nuclear winter as anyone will ever see without actual nuclear weapons being detonated.   Everything downtown was covered in soot and ash.  There was no movement on the street and everything was just frozen in time.  To say it was eerie would be a massive understatement.  Our office building had no electricity and no phone service.  One of the staff sat in a desk chair in the doorway guarding the building; I think he was packing heat.  Luke had called ahead and they knew we were coming.  They were not happy about it though. We had to climb up ten flights of stairs in the dark.

And climb we did.  We had flashlights and made our way up.  The offices were all locked magnetically with key cards and therefore all our doors were unlocked.  Entering the offices freaked me out.  Either intentionally or by happenstance all the windows had been closed in the office.  There had been reports on the news that many offices had been destroyed downtown not by the blast but by the soot and debris that had entered nearby offices through open windows.  I was very concerned what we would find.  HDC was pristine.  Not a spec of dirt or a file out of place.  I was relieved and shocked at how placid the interior of this building was compared to the lobby and the street outside.  We gathered what we needed and headed back down.  We had promised the management we would be no more than 10 minutes.  They explained to Luke that the building had not been structurally cleared for reoccupancy.  Now that we had what we needed we had to find some place to sit and sort out the documents.  We need a space.  I thought of maybe renting a hotel room but it seemed a waste for only 20 minutes.  I'm not sure why but the backroom of a favorite bar came to mind.  We all piled into my car and headed to McManus's on 7th Ave.  You've all heard stories of how people came together and gave of themselves during those days.  This is not one of them.  We got to McManus and I showed the bartender my badge and explained the situation.  I asked if we could use his backroom for twenty minutes.  The bar was nearly empty.  He said no.  Finally I said we'd order a lot of beer and food while we were there.  He relented.

So we ate and drank and sorted through the material that would keep us going.  Making the situation worse was that the person in charge of our overnight investments was on vacation in Florida and could not get home.  She did, however, manage the accounts and her staff from there.  I said goodbye to those who had come and told them I didn't know when we would be together next.

I had been thinking about the space problem.  Whether to activate the disaster recovery site in NJ at great expense or rent space.  We had no way of knowing how long this would last.  On Friday Luke called and said that the Commissioner of HPD, the ex-officio Chair of HDC, was having a meeting with her staff that weekend and we were invited.  Luke and I went to 100 Gold St. near our offices.  At the meeting Jerrilyn offered us the use of her conference room until we were up and running.  I accepted and had the executive staff of HDC meet there on Sunday.  We ended up using that space only until Wednesday.  We were informed that 110 William had power but no phones.  I had Luke & TJ work out a plan to utilize everyone's cell phone for office use.  On our last day at HPD, Jerrilyn took me aside and told me that many of the HPD employees were in bad shape and needed counseling.  Did I know of anyone who could do it.  More importantly, would HDC pay for it.  I said as a matter of fact one of the management consultants we used had a specialty in exactly this type of grief counseling.  And yes, I would pay for it.  HDC's grief counseling was done in-house and by our insurance company.

Leslie, the consultant, was retained and sent over to HPD.  It turned out to be a much bigger job than she or I expected and she asked for the OK to hire staff to help her.  I agreed.  This went on for weeks and the eventual bill came to over $100,000.  {The prosecutor and judge in my case chose to ignore this fact but there was as much official HDC nexus to HPD as there would be to IBM, Pfizer or any other entity.  Meaning there was none.  They chose to ignore that $100K expenditure because it would have embarrassed the City and Bloomberg who kept Jerrilyn on as HPD Commissioner.  It was as much of an unauthorized expenditure of HDC funds as anything else I was charged with.  You can say it was compassionate but it didn't legally excuse it if the prosecutor's absolute 'give no ground' standard of my other expenses was taken into consideration.  If you overlooked that cost as well as the thousands spent for the plaque outside HPD commemorating their efforts during 9/11 that we also payed for, not to mention the additional thousands to renovate the Commissioner's conference room, then you had no rational consistent basis for many of the things I was charged with.  It was wholly inconsistent.  HDC had absolutely no official or legal relationship to the City or it's housing agency, HPD.  As such, my having authorized those expenditures should have been equally criminal.  But it was covered up. Initially by the City's Department of Investigation, then by the US Attorney and finally Judge Kaplan who scoffed at my mention of it in my elocution at sentencing.  At some point in a criminal case facts have to matter and things have to be consistent if you're sending someone to prison.  That didn't occur in my case.  And I imagine in many others.}

A few days later, Tony asked me to meet him for a late dinner at an Italian restaurant near his house.  It was 11:30 and Rudy was on Saturday Night Live.  There was a TV above us in the restaurant and we watched.  Maybe you saw that show.  At the end of dinner Tony asked me if I wanted to go to ground zero.  I had been back in the area for a few days now but nowhere near the site itself.  You could not get close to it if you worked down there.  Rudy had issued new IDs out of the temporary Office of Emergency Management site at Pier 57.  As you know, OEM was located at 7 World Trade center and disappeared early on 9/11.  You needed these new IDs to get anywhere near the site.

I had thought about that question: did I want to go there, did I want to stare down into that pit?  I was of two minds.  Part of me wanted to see it as a matter of history.  But the other part thought it ghoulish and voyeuristic.  This wasn't a tourist attraction it was an open grave.  But I said yes.  We left the restaurant and headed downtown in Tony's City car, Eddie, his driver, behind the wheel.

We were stopped a number of times along the way to check IDs.  Tony and Eddie had theirs.  Tony being Chief of Staff and vouching for me got me through.  Once we got through the last checkpoint you were free to walk around anywhere.  Masks were required at all times.  It was as unreal as anything you could imagine.  I kept thinking if a Schwarzenegger movie about the end of the world was filmed this is what it would look like.  The Amex building at the Winter Garden had a huge chunk missing out of the building's corner like Godzilla had just bitten it off.  You could see right into the offices and computers were just hanging over the side.  The thing that disturbed me most was standing in the middle of this and having no ability to get my bearings.  I couldn't remember where things had been.  We forget that without landmarks on a terrain its all just empty ground.  And now the landmarks were gone and I felt like such an idiot that I couldn't remember where many of the buildings and streets had been in an area I had traversed regularly.

Then we walked up to the smoldering, smoking pit and I stared down.  I am not wordsmith enough to tell you how I felt looking down into that hole while all around me rescue teams were digging away. I bowed my head, said a prayer and walked away. 

The other major impression I came away from ground zero with was a new found awe and respect for Rudy.  There were times during those eight years when many of us - Giuliani acolytes - would think to ourselves or ponder to each other, what this city would be like had he not been mayor.  Here we were mere days after that catastrophic event and Rudy, Tony, Joe Lhota, Ritchie Schirer, Bernie Kerik and Tom Von Essen had created this mini city.  There were streets created through this mountain of debris, huge wash stations for all vehicles leaving the site, and the whole thing was totally organized and meticulously planned - just days after 9/11.  Can you imagine what Rudy and his team would have done with New Orleans after Katrina?  Can you contemplate what a disheveled, unplanned mess that site would have remained been for weeks, months and years had Mike Bllomberg been in office?  This was leadership writ large and Rudy's finest moment.

Tony had told me that he sat in on Rudy's meetings with elected officials days after the event.  He told me that he and Rudy were most impressed with Hillary.  They were most unimpressed and annoyed with Sen. Schumer.  Tony said that Hillary came without staff, listened intently, asked thoughtful questions and offered unqualified support.  Schumer on the other hand came with staff, spent all the briefing on the phone and immediately held press conferences at the conclusion of each briefing. 

I hate this anniversary more than I can explain.  For four of them I was in prison and grateful to be there.  I could avoid TV and newspapers; just stay in bed.  I don't know why it effects me so much.  It's not just the memory of all the death and smoke and funerals that I attended.  That of course is part of it.  It's also not the memory of Terry Hatton, Beth Petrone's husband and a New York City firefighter who died that day.  I think of Terry more than just on 9/11.  He was a great guy.  No, it's not all that.  I believe I feel terrible guilt for not having been there that day.  Not for a second do I believe my presence would have mattered.  Luke and David Boccio did a tremendous job and I wouldn't change a decsion they made.  I certainly do not miss not having had to walk miles and miles in wingtips from the office back to my home.   But in a leadership position showing up is 50% of the work.  I wasn't there and I should have been. Also, after the Tuesday I know my leadership did matter.  Getting HDC back up and running, holding the staff together, working to stabalize our finances and those of the projects we oversaw, it mattered that I was President.  I guess you could say I also miss making a difference.

Smeared by the New York Times

I was going to write today about the housing crisis.  I have some insights into the matter and a non-traditional view that might surprise some of you given my previous position as President of the NYC Housing Development Corporation (HDC).  But instead, I am forced once again to respond to a scurrilous media accusation.

Since this blog has an international readership, I will have to explain some of the background and players to the New York Times' story yesterday.  To those of you from NY this might seem obvious and elemental.

Hank Morris is a political consultant.  A very successful one.  He is now under a 143 count New York State indictment.  Hank was the political guru to a NY politician named Alan Hevesi.  Hevesi was a long-time NYS Assemblyman and then NYC Comptroller during the Giuliani years.  He ran for Mayor in 2001 and lost badly in the Democratic primary.  After that he ran successfully for NYS Comptroller.  When he ran for re-election, successfully, certain facts came to light regarding fiscal impropriety involving a state driver for his wife.  He eventually resigned. 

NYC and NYS have unusual state pension funds in that the Comptroller is the sole trustee and decision maker regarding investment firms and placements.  After Hevesi left office, investigations commenced into his management of the NYS pension fund and Hank Morris's ties to certain pension activities for which he was allegedly paid millions by firms seeking business with the fund.  I won't go into whether or not what Hank Morris did was legal.  I am not entirely sure myself.  One more thing as background.  My father, Ray Harding, was a long-time Hevesi backer and friend of Hank Morris.  He too is under a criminal complaint regarding third party middlemen and the pension fund.

The New York Times ran a story yesterday by their in-house political scandal monger, Mike McIntire.  Not Michael, by the way, but Mike. I guess it gives him some street cred to use the diminutive. Maybe R.W. Apple should have used Johnny in his byline and that way people would have taken him seriously.

The story had to do with Hank Morris's many business holdings and how they inter-connected with pension placements.  One aspect of the story is that Hank Morris owned a graphic design firm called Curran&Connors.  The story suggests Bear Stearns hired Curran&Connors in order to curry favor through Morris with the then NYC Comptroller, Alan Hevesi.  On page two of the story it says, "Mr. Morris is also credited with getting annual-report contracts with the New York City Housing Development Corporation."  In case you are missing it, McIntire means me.  He's saying that I gave Hank Morris business.  Presumably to help my father or something.  He can only be referring to me since HDC never did business with Curran&Connors until I took over.

The first question I have is 'credited' by whom?  This is one of those cheap journalist tricks.  Throw in a serious, confirming sounding word like 'credited.'   You will gloss over the fact that he provides no detail to back that claim up.  And he in fact provides none.  Let me tell you how nearly a decade ago another more responsible journalist investigated this claim and found it baseless. 

In the late summer of 2001 Alan Hevesi was running for Mayor.  Ray and the Liberal Party had endorsed him.  I was President of HDC.  One day Luke Cusack, my trusted aide and Senior VP, came into my office and told me he had returned a call to me from Bob Hardt of the New York Post.  Hardt called to say he was working on a story for tomorrow regarding HDC having hired and paid tens of thousands to a Hank Morris owned firm.  I asked Luke what the fuck he was talking about.  Luke explained that Hardt was saying that Morris owned Curran&Connors, the graphic design firm that HDC used to do its annual reports, design its website and create its logo.  "You're telling me that Hank Morris owns  Curran&Connors?" I asked Luke.  "I'm not.  Bob Hardt is," Luke responded.  I asked out loud, "Why in the world would Hank Morris own a graphic design firm?  It's crazy.  Hardt must be mistaken."  I got Bob Hardt on the phone and asked him if he was sure about this.  "Yes", he told me, "Hank Morris is listed as chairman."  How did you know we were a client of Curran&Connors?"  I asked him.  "They list you in their annual report," he answered.  I explained to him that I had no idea Hank Morris owned Curran&Connors and we had used them for years.  We did not just recently hire them because of any Hevesi-Liberal Party connection, which was obviously the allegation in all this.

"Do you have any documentation?  Anything that confirms your long-standing relationship with them or any bids you may have done to hire them?"  He asked.  I told him I would check and get back to him.  Fortunately I had a great staff at HDC.  Luke returned with a thick file folder full of our history with Curran&Connors. 

HDC was not a city agency and as such we were not bound by the City's procurement rules that required that everything from bridge repairs to pencil erasers be triple bid.  But in this instance we had triple bid the contract and had all the documentation to back it up.  Including that Curran&Connors had been the low bidder.  Further, Luke had some paperwork from EDC (NYC Economic Development Corp.).  When I became Exec VP of Corporate Communications at EDC Curran&Connors was already doing work for the corporation.  I liked the work they did for us and when I went to HDC I had Luke include them in the mix of companies who were sent our RFP (Request for Proposals). 

I read the file.  It was great.  I told Luke to send him everything.  "Everything," he asked, "there are internal notes in there."  "Yes," I told him, "that's the point."  The staff member who had done the review had taken copious, contemporaneous notes.  Anyone could see that Curran&Connors was clearly the best firm.  And the lowest bidder.

I called Hardt back and told him I was having this walked over to City Hall, where he had a desk in Room 9.  There was some debate as to whether we should formally make him FOIL this, but I said fuck it.  I didn't want him writing this story since it had no foundation in fact and if this would acquit us, just give him what he wants.  So what did Bob Hardt do?  I'll tell you in a minute.

Most NYC reporters upon receiving a file like this would have responded thus: "This is great.  I am writing the story but will print your quote denying any connection and mention all the documentation."  And this fictitious NYC reporter would be absolutely convinced that he was being very fair, maybe even doing me a favor. But of course there was no story there.  Anyone looking at the file knew that.  You'll just have to trust me when I tell you that most - over 90% - of reporters today would write that story.  Figuring there's enough smoke to let the reader see fire and getting another byline in the process.

What did Bob Hardt do?  He called me back and said, "I'm not going to write the story.  This was clearly on the up and up - you didn't know."  That, my friends, is real professional journalism.  He could have written the story, maybe even a sexy story, but it wouldn't have been fair and in the main, not true.

Now what about Mike McIntire.  He could have written, "The Hank Morris owned firm had HDC as a client."  He could have even written, "The firm, owned by Hank Morris, had as one of its clients HDC, then run by Russell Harding, son of Morris's political pal and Hevesi ally Ray Harding."  He could have written that.  I believe it would have been inherently unfair but it would have all been technically true.  But he didn't do that.  Having attended the Tom Robbins School of If It's Not There Make it Up Journalism, McIntire just invented the link between me and Morris and the awarding of the contract.  He is in fact alleging something that at a minimum, I did something  unethical and at most criminal. It is outrageous behavior for a New York Times reporter. 

It is one thing when the Times prints the Andrew Cuomo allegation that Ray Harding needed the money from his alleged illegal activities to pay my legal expenses and doesn't even bother to contact me to see if I have a comment or if the allegation is true, which it is not.  That in my view is bad enough.  But when their reporters now gratuitously, out of the blue, make shit up, that is intolerable from a newspaper like the New York Times.

The reason the Times takes Jason Blair and Judith Miller seriously is that all they have at the end of the day is their credibility.  It is hard for non-New Yorkers to understand the power and prestige of the NYT.  No paper in any city in the world has what the Times has.  You may or may not believe something in any other paper, but if it's in the Times it has to be true.  I was brought up believing that as gospel.  Once they lose that then they're ordinary and no longer The Paper of Record.  So they take fabrications seriously.

I am claiming this putz McIntire is a lazy, unprofessional, dishonest journalist.  That's my opinion, you don't have to share it.  What we can all agree on is that this putz McIntire is unbelievably stupid.

I grant you the man has not been our Senator for a few years.  But he was Senator throughout all the 1980's and most of the 1990's.  He was a Chairman of the Senate Banking Committee.  He was for many years a major player in shaping the state Republican Party and gave us Gov. Pataki.  So you think it would be too much to expect this putz McIntire to know how to spell Alfonse D'Amato's name?  I guess so.  Don't they have editors over at the Times who slap the kid reporters on the head and say, "Hey stupid, that's not how you spell a major player's name."  It's not like he was a Senator in the 1870's.  Although, I would still think the august New York Times would spell Roscoe Conkling's name correctly if it came up in a story.  I suppose this putz McIntire was too busy inventing his facts to take time out to check the spelling of a name even grade-schoolers can spell properly.  And remember, I used to get the man's mail so I know. 

I end where I began.  This putz McIntire claims that Morris is credited with the HDC contract.  I am not asking for an apology or a correction, although I am surely due both.  I am asking his editors to have him prove to them that he has some evidence of this statement and show it to them.  What call did he make or receive to lead him to this 'fact.'  I do not think I am asking too much.  I do not think it is too much to ask as much from the Times,if not more, than I received  from the NY Post.  Even felonious scum deserve better treatment than this at the New York Times.

All in the Family? Not So Fast!

There is a lot to say and I am not really sure where to start.  I am not usually at a loss for words.  I was pretty numb this morning - still am. Until I picked up the newspaper I knew nothing of this investigation or arrest.  But on the other hand, I have been waiting since the Hevesi resignation - and the subsequent investigation into his office's practices - for a Ray connection to appear in the papers.  I just wasn't prepared for it when it came. 

I need to preface my comments and declare that I am not an unbiased observer in this matter.  But not in the way you might think.  I loathe my father.  The hate that I feel for him cannot adequately be described in words, and believe me I have tried.  I won't go on at length as to the reasons, they will be gone into in J'ACCUSE more fully, but if there is an unforgivable sin a father can do unto his son surely it must be having him arrested.  But not just having him arrested - there can be a myriad of reasons why that might make sense or be a compassionate thing to do - but having him arrested and thrown into the MCC in order to prove a point.

I had decided that after the whole fiasco with my first lawyer I would not let my father anywhere near my case.  Further, I warned Gerald Shargel that he was to have no contact with my father without my prior approval.  I cut Ray out of the case completely and he was furious.  When he became aware that I was planning on committing suicide in November 2003, rather than heed the advice of my shrink - to either have me committed to a hospital for observation (which the shrink could have done) or hold an intervention with me, Ray and the shrink, Mark Mills - Ray chose to inform US Probation (I was out on bond) that I was planning on suicide and to have me arrested and my bond revoked.  It was all to make the point that he could reassert control over my life at any time he choose.  That this independence I was asserting existed only at his assent and could be withdrawn whenever he so decided.  His despicable performance the next day at the MCC I will go into at another time.  There was no compassion in this.  It was twisted and sick.  Mills told me himself that he begged Ray not to do this. Ray expected me to revert to type and return seeking his assistance as I had done my whole life when my back was up against the wall.  But had I rotted in prison for the rest of my life I would not have sought his help.  This one time Ray had miscalculated and misjudged me.  There was no going back from what he had done.  No forgiveness - not that he has ever sought any - and no return to normalcy. Once I was arrested suddenly that day, I never saw the outside of a prison again for nearly five years.  My crimes and misdeeds are my own.  My incarceration and its staging, that was all my father.  He went so far as to have my mother watch me the day I was to be arrested to make sure I was at their house at the time prearranged by Ray and the arresting officers.  She - a child of the Holocaust - had gone from being tormented by capos to having become one.

I have thought many times how my father would fare in prison, especially someplace as truly horrific as the MCC, where he sent me.  Further, I wondered seriously if it were something I would wish upon him, a 70+ year old man.  The answer to the first question is no.  I have said before I don't even wish the MCC on Bernie Maddoff.  The answer to the second question wavers depending upon my mood.  I only know Ray should be supremely grateful it is the state that has indicted him and not the feds.

I have not seen or spoken to Ray since that day in November, 2003 at the MCC in Lower Manhattan shortly after he had me arrested.  To me he is dead.  So I feel I can look upon the actions of yesterday as dispassionately as you, with one exception, I know Ray Harding better than anyone, including himself. 

I have read the press release,the criminal complaint from Andrew Cuomo's office and the erroneous claim made by them, regarding me, in today's papers.  The whole thing is bullshit.  It is now criminal to reward lifetime political supporters with jobs or contracts?  Based on what I've read there is no single quid pro quo act mentioned in the indictment regarding Andrew Hevesi's election and the contracts awarded to Ray by the Comptroller's Office.  Ray moved pieces around to get one office holder out and another one in.  He had been doing that for 40 years.  He would have done that for Alan Hevesi's kid even if Hevesi Sr. weren't holding office at the time.  The truly ludicrous aspect of this is that we're all expected to be shocked as babes that back then a sitting Assemblyman quit his job and took a high profile position with HIP; a company everyone knew Ray lobbied for - Newsday and the Daily News had written stories about HIP and its Chairman Tony Watson during the Giuliani years -culminating in the nomination of Hevesi's kid; while all this played out in the open.   Maybe I am an idiot but I'm missing the criminality in this.  It comes down to intent.  Would Ray have done exactly the same thing had Hevesi not been NYS Comptroller but only a retired City Comptroller that he had known and supported for decade?  Of course.  And how exactly can he have done this - for Hevesi Sr. presumably - in exchange for deals from the Comptroller's Office and Alan Hevesi himself not be indicted?  It reminds me of an indictment a decade ago of a Brooklyn politician who was indicted for taking a bribe along with the man who allegedly bribed him.  The man was convicted of giving the bribe but the elected official was acquitted of accepting the bribe, although there was no question he had taken the money from this man. To many it seemed incongruous.  So Ray orchestrated this scheme with Alan Hevesi to get young Hevesi the Assembly seat in order to win contracts from the Comptroller's Office, but the Comptroller isn't indicted?  Cuomo says the investigation is on-going but I guarantee Alan Hevesi will not be indicted in this particular matter.  And if he is not, there can be no quid pro quo at least as far as this Andrew Hevesi business is concerned.  As for the business Ray was doing for the NYS Comptroller's Office, that type of business required the taking and passing of a series of SEC tests and then being licensed by same.  Ray did and was.

The Times and NY Post quotes the Attorney General's Office as saying Ray's motivation for needing this money was to pay my legal bills.  Firstly, this is completely untrue factually.  And unless the AG's Office has some secret documentation, other than the $25,000 I have mentioned in J'ACCUSE, there never were any monies paid to my attorneys by Ray or through me to them from Ray.  Furthermore, the timeline doesn't make any sense.  Hevesi was elected in November 2002.  Ray's secret payment to my first lawyer, for reasons I still do not know, was made nearly a year before Hevesi was elected.  Ray also gave me a loan that turned into a gift of $20,000 in February of 2002.  Also a year before Hevesi took office.  Other than that he never made a single payment for my legal defense. Certainly not in the years Hevesi was in office.  In fact between the period 2002-present Ray did not pay for any legal or personal expense of mine other than the two I have just mentioned.  For my birthdays in 2002 and 2003 I even refused birthday presents - which were usually money - because I felt so guilty about what this publicity was doing to him.  He frequently offered me money for expenses or to help with my legal bills and I always refused.  I paid all my own legal and personal expenses.  And my legal bills wound up costing me well over half a million dollars - everything I had including my home.   If Cuomo has something to back up that charge in the Times I wish he'd lay it out.  It is mentioned nowhere in the press release or the complaint.  But I know why they made it up - it's obvious.  Ray had spent his whole life operating in a very definite way as a political leader.  Money was never a motivating factor for him, that's why my family was always broke.  It would be completely out of character for him to trade political actions for personal financial gain.  As I have said, Bloomberg was going to make him a millionaire many times over had Ray endorsed him in 2001.  But he didn't.  Why would someone sell his soul over a lousy assembly seat for a couple hundred thousand but not the mayoralty for millions?  Doesn't add up.  And by the way, who did Ray turn down Bloomberg in favor of back in 2001?  Yup - Alan Hevesi.  I can assure you he was never ever going to make the kind of money with Mayor Hevesi that he would have with Mayor Bloomberg had he endorsed him.  The AG needs a motivation for this sudden change of character in Ray.  Conveniently, here I am to pawn this off on.

And if the practice of rewarding political supporters with favors is now seriously criminal someone should arrest every New York County Surrogate Court judge for the last hundred years.  Every Surrogate judge awards lucrative conservatorships to attorney supporters.  It's always been done.  Good government?  Perhaps not, but it has never been suggested that it were criminal. And what about this new practice perfected by The Working Families Party.  They endorse you and then you pay through the nose to some corporate offshoot for volunteers and get out the vote activity.  Imagine the GOP having set up a corporate entity called GOTV, Inc.  After they endorsed you, you're expected to pay GOTV, Inc. hundreds of thousands of dollars for politcal support that used to be free and expected.  What The Working Families Party is doing is surely criminal by any measure.  There is no way that if they practice this on federal candidates it does not violate numerous FEC laws.

It is ironic that it's Andrew Cuomo bringing this indictment.  He was the catalyst for the demise of the Liberal Party back in 2002.  Any candidate for office cross-endorsed by the Liberal Party had to take a pledge not to drop out of the race should they lose their party's primary.  That was important in a mayoral or US Senate election.  It was crucial and vital in a gubernatorial election.  Without 50,000 votes in a gubernatorial election a political party in NYS ceases to exist for all intents and purposes on the ballot.  So in 2002 Andrew Cuomo  succumbed to fear, cowardice and announced he was no longer running for governor before the Democratic Primary.  The usual racemongers in New York: Rangel, Dinkins, Sharpton et al. suggested that it was racist and unseemly for Cuomo to be denying the incredibly mediocre Carl McCall the Democratic spot.  So Andrew Cuomo caved and withdrew leaving the Liberal Party without a viable candidate but with Cuomo's name still on the ballot.  Naturally he garnered less than 50,000 votes since he was telling his supporters not to vote for him.  Kieran Mahoney's nightly tracking was telling Ray that Cuomo would get 4% of the vote.  A figure wildly off the mark come election day.

So is this action intended to show Andrew is Mister Clean; Eliot Spitzer incarnate?  Is it somehow intended to attack Rudy because of Ray's long support?  The ties to the Cuomo family go back much further than to Giuliani.  I don't know.  My guess is he is just feeding into the hysteria - albeit not without foundation - of Albany's paralysis.  Why can't anything get done in the state capital?  This is why, seems to be his argument; pandering to the Daily News essentially.  White Knight Cuomo?  Hardly.  My memory of him starts in 1982 and his father's campaign - on which I worked - as a  guy who spent most of the campaign fucking every skirt in sight including the married Marcia Kramer.

Ray is lucky in one respect.  He does not have his father actively working to defeat his defense.  It would be easy for me, given my personal feelings about my father, to do what he did to me and issue some dreary, maudlin, defeatist statement bemoaning his plight.  Basically signaling I believe he's guilty before anything has happened. But I am not going to do that.  My personal feelings aside, this indictment is bullshit and Veritas means I'm gonna say so plainly and upfront.  I am not saying Ray is incapable of an immoral, unethical or criminal act.  There well may be something here.  But it ain't in the indictment.  And I sure as hell am not going to let Andrew Cuomo use me as a motive for a criminal act when the facts are at total variance with the claim. 

Regardless of my intense feelings about my father, it is a kick in the stomach to see any elderly man needlessly handcuffed when self-surrender is of course the logical and humane play.  I will admit it's a double kick when it is your father.  So we'll see what happens.  Andrew Cuomo is trying to move to Eagle Street using this case as a foundation.  I hope Ray doesn't let him succeed.  I sure as hell am not. 

Senate Days - Part II

The 80's were a great time to live in DC.  Ronald Reagan was president and Marion Barry was mayor.  You couldn't have a more interesting study in contrasts.  Crime was rampant, however.  I lived in NW, DC which was over 90% white in a city that was almost 90% black.  Police protection was much greater in NW but in those days crime was everywhere.  I lived on Massachusetts Avenue in the Dupont Circle section . Someone was murdered half a block from my house.  I had visited DC many times over the years, with and without my family.  Once, in HS, I ran away from home and fled to DC of all places.  Being me, I stayed at the Watergate Hotel until I decided to go back home.

I loved visiting DC but didn't like living there.  One's perception of the city was shaped primarily by where you had come from.  I had a friend who was from and worked for a Senator from S. Dakota.  To her this was the big city; Paris, Rome and New York all rolled into one.  If you were from NYC, it seemed like a small town and quickly became dull.  I was lucky to have a close circle of friends from college who had moved to DC, either for work or school, at the same time I did. 

One of the most interesting things I discovered shortly after moving there was the firmly and near universally held belief by black residents in something called "The Plan".  In NYC, we didn't have a widely shared urban legend amongst only one section of the populace.  I never met a white person who believed in "The Plan" and I rarely met a black DC resident who didn't.  "The Plan" was supposed to be a secret scheme by the white power structure in the city to regain control of DC.  After Congress had given DC Home Rule in the 70's, blacks were convinced that a secret cabal existed with a plan to take back power.  There was no evidence of this but blacks were absolutely convinced of it.  It would be startling to me sometimes to be talking to someone, whom I considered thoughtful and intelligent, and asked if they put any validity in "The Plan" they would respond with total certainty that it existed.  To me it was the same as discovering that one of your closest friends actually believed in zombies.  It always took me aback.  Even the mayor of the city, Marion Barry, would speak of "The Plan" and his constituents legitimate concern.

I loved working in the Senate and not a single day did I go to work that I didn't get goosebumps walking into the Capitol or the Hart Senate Office Building.  If you loved the Constitution, regardless of how you felt about who might be sitting in the White House, it was magisterial and never lost its impact on me.  One weekend I had a friend visiting me from out of town.  It was late and we were walking back from a bar.  We passed the Capitol grounds.  The building is just breathtaking at night all lit up.  I said "let's go see the Senate".  I thought my friend would get a kick out of it.  I wasn't sure I could pull it off but back then having a red Senate ID - permanent staff - was pretty much all you needed.  You could enter almost any room in the Capitol complex, kick people off of the elevators or the subway if they were crowded and gain admission to the reserved staff section of the galleries.  We walked right up to the Senate entrance under the portico, I showed my ID and asked the Capitol police officer if it would be OK to take my friend onto the floor for a few minutes.  Sure, he said.  It is completely unimaginable for something like that to happen now.  Not only would I never get onto the floor of the Senate, I would never breeze across the Capitol grounds unchallenged to the Senate entrance.  But it was a different time and I am very glad I worked there then and not now. 

The Hart building is modern architecture constructed with an atrium at its core and all offices looking out into the center.  My cubicle's window looked across to Senator William Armstrong's (R-CO) staff offices.  Sen. Armstrong was a very vocal pro-lifer. In those days I was pro-life as well.  One day his staff put up a giant poster of an aborted fetus on their windows facing out onto the atrium for all to see.  I was basically staring at this giant dead fetus all day.  An office mate called Sen. Armstrong's office and asked if they might take it down.  He explained that we too worked for a pro-life boss and were in agreement with them on the issue, we just didn't want to stare at this giant bloody fetus while we were eating lunch at our desks.  They said they'd call us back.  Sure enough they did and said no way.  So I called the Sergeant at Arms office and complained.  I gave my name and quoted the section of the rules that pertained to window displays. There was no question we were in the right based on the rules.  But Sen. Armstrong  decided he liked what his staff had done, became personally involved and insisted on inspecting it with the Sergeant at Arms once the complaint was registered with his office. The Sergeant at Arms called me himself and asked if I wanted to be there for this inspection of the poster with Sen. Armstrong.  I said that wouldn't be necessary.  I figured that Armstrong might not know that a D'Amato staffer had made the complaint and I didn't want to fuck up the relationship he and Alfonse had.  Armstrong was a zealot of the right's social agenda.  In our office he was referred to as "Wild Bill". 

Sen. Armstrong made a big show of his inspection and a number of us went out to watch.  He said he found nothing wrong or offensive with the poster and that it would stay up.  I told the Sergeant at Arms that I didn't want to pursue the matter.  I could have based on the rules that governed the administration of the Senate.  But there was no point in getting into a pissing match with a US Senator, especially when my boss knew nothing about it.  After a few weeks however they took the giant fetus down on their own.   

The Senate then was filled with old greats like Stennis, Proxmire, Cranston and Metzenbaum as well as where are they now candidates, like Chic Hecht and David Karnes.  I spent many a reception talking to Strom Thurmond.  He was an odd man; loud, funny and friendly.  But always the first one to line up for free food at a reception.  I always thought it must be one of those things from a poor childhood that stays with you throughout your life.

One figure that became fascinating for me to watch was Dan Quayle.  Before August 1988, and George Bush's selection of him as running mate, the view of Dan Quayle by those of us who worked in the Senate was of a serious guy who may have been something of a dilettante.  My recollections comport exactly with the observations of James Mann in his new book, "The Rebellion of Ronald Reagan".  Mann points out what I recall vividly, namely Quayle being in the forefront on arms control issues.  I saw him speak many times on arms control and he knew his throw weights and MIRVs.  It was so interesting to me to see what he allowed himself to become.  Yes, no question the media frenzied on his every mistake and klutzy malapropism but Quayle could have stemmed the deluge of mockery had he handled it better.  I've never seen one man portrayed in such starkly different ways.  I knew members of his staff, and while they said he was not the best boss to work for, he was no dope.  But history will chiefly recall not his fierce opposition to the INF Treaty but Murphy Brown and Potatoes.

The Senate is a completely self-contained world.  You never had to leave.  Restaurants, a travel agency, florists, a barbershop, a bank, woodworking shops, metal shops, and a department that did nothing but fabricate those large blown-up charts you see the members using  as props on the Senate floor.  And then there was the best perk of all - the Senate Stationery store.  The Senate Stationery store is a fairly small space located along a corridor in one of the passageways that connects the Capitol to the office buildings.  In theory all purchases are for official office use.  Rather silly since they sell a vast array of items that could hardly be used in your daily official business.  Further, most real supplies were ordered through a Senate catalog for the real meat and potatoes functioning of the office.  At first hearing the name you might think the store was just office supplies.  And it was.  But it was so much more.  They had luggage, crystal, Mont Blanc and Waterman pens, leather goods, bronze statues, cuff links, clothing and tons more.  You could not even walk into the store without having the stationery card in your hand, and there was only one card per office.  It was like going to an Officer's Club.  No cash or credit cards, you signed for everything.  Back then, at least, every purchase had to be made on the card. 

I along with a few others were favorites of Claudia, the office manager.  As such, we were given the card every so often for shopping sprees.  Usually on a birthday or if someone was leaving.  Initially it started out that only the person being honored got a gift.  But as time went on the group of us would join that person and we'd all wind up getting something on the occasion.  I had certainly benefited from those trips and had accumulated a beautiful Waterford crystal dome that I put jelly beans in, a slew of Mont Blanc pens, leather folders, pewter elephant bookends, cuff links and more.  But the thing I always had my eye on was this butter soft Tumi briefcase.  I had purchased a briefcase from DC's finest leather goods store on Connecticut Avenue when I moved there, but nothing felt or smelled like this Tumi briefcase.  But it was $450 and I could not bring myself to charge it to the office on any of the sprees. 

I knew Claudia wouldn't care, especially after Bill Powers' wife had come down from Albany one afternoon and was rumored to have spent $5,000.  He ran the Senator's Albany office and would later become GOP State Party Chair.  That was apparently the record for use of the Senate stationery card by a single individual in our office.  None-the-less when my day came to depart, the group of us went to the store and as is my nature I let them get what they wanted and I chose to to not get anything for myself.  It was fine, I was happy that my friends were getting what they wanted.  The amount of stuff they selected by the time we hit the register was just too huge and I thought it best to just let it go.  The only thing I really wanted anyway was the briefcase and I wasn't going to get that for myself. 

Everyone was really grateful and thanked me.  Which of course is silly on so many levels.  Thank the Senator, thank Claudia, my God, thank the taxpayers, but I was just the conduit that day.  However, without me leaving - no shopping trip, so I accepted their thanks.

A few hours later the phone rings and Claudia's assistant, Mike, tells me she wants to see me.  I go down and there is a large gift wrapped box.  "This is for you, open it," Claudia tells me.  You should know there is an office in the Senate that does nothing but wrap things, it's called the Wrapping Room.

I unwrapped the box and got a real lump in my throat; the outside of the box said TUMI.  I opened the box and sure enough it was the right briefcase.  "Gia told me everyone got what they wanted but you didn't get the thing you most desired," Claudia said jokingly.  "Wow," I said, "Claudia, this is very touching, thank you."  Neither Claudia nor I liked long emotional moments so I lightened and changed the mood by saying, "we've spent a lot of your money today."  "That's OK," she said, "I'll just fire someone."  Meaning to free up funds.  Claudia was famous for firing staff.  "You can't," I said, "that's a different budget line."  She laughed.  It was a joke, of course.  Claudia was razor sharp and knew everything about the budget and where money could be taken from and moved to.  I left feeling very appreciated and really unsure that going back to NY was the right thing.  People liked me here and I might have a career in the Senate.  I didn't know, I never did, what I wanted for a career or where things would take me.

Incidentally, the briefcase?  I never used it preferring the Camalier & Buckley model I purchased when I first moved to DC.  The Tumi stayed with me, always polished and shiny.  In 2001 Vinny LaPadula, who had been begging me for it for years, offered me a beautiful briefcase Bloomberg had given him, in exchange for the Tumi.  I finally relented.

It was fun working for D'Amato.  Although he never knew my name, it was a very laid back office and I always enjoyed working there.  As for his reputation, I doubt he was the most ethical man you would ever meet but I can't say I saw truly corrupt practices.  Lots of favors for friends and contributors but what's unique about that?  There were always rumors, however, in the office from staff about large cash payments being made in briefcases late at night back in NY and Albany.  One of the Senator's drivers told me he had witnessed an exchange like that personally.  I think in general Alfonse seemed more corrupt than he actually was.  He was just one of those people who looked like he'd take a payoff and his ties to the Nassau County machine never helped.

When Spring of '89' rolled around Ray called me and told me that I needed to leave the office and come back to NY to work on Giuliani's mayoral campaign.  I didn't really want to leave the Senate.  Ray kept telling me about Rudy and that this was an historic moment.  None of that proved to be the convincing factor in my decision to leave, although I did believe all that.  Ray, as is his way, played politics roughly.  Never over the line, but rough.  He had always said publicly that D'Amato was ethically challenged but as D'Amato became the chief Rudy antagonist Ray ratcheted up the rhetoric.  Ray would call him, 'slime' and 'sleaze' and 'a disgrace'.  He would comment on how unimaginable it was that NYS, which had produced Wagner, Javits, Kennedy & Moynihan, should have to suffer the embarrassment of a D'Amato.  Well naturally these comments were printed in the press and distributed in the daily press clips in our office.  D'Amato staffers were fiercely loyal to the Senator and bristled at these mentions of his low intellect or the Senator Pothole implication.  We were very proud of our constituent service. 

Many also took offense at the reference to Moynihan as a great Senator since everyone knew his office did virtually no constituent service at all.  The joke was always, "if you want a lecture on the history of immigration go to Moynihan's office.  If you want help getting a passport, go to D'Amato's."  Other staff started treating me differently and giving me the cold shoulder after Ray's comments started appearing in '89'.  It was that more than anything else that made up my mind.  I knew his comments would only get worse and my loyalty to the Senator was now constantly in question by implication.  But I wanted to leave on as good terms as possible.  So I wrote out a letter of resignation and gave it to Mike Kinsella, the Chief of Staff/AA. 

He was a very low key laconic sort of guy.  He studied the letter and asked me the reason I was leaving.  I told him I just wanted to go back to NY, Washington had lost its appeal.  I did not want to say I had taken a job with the Giuliani campaign.  There was no point.  It would have only made my last few weeks unpleasant for everyone.  But Kinsella would not let me leave until I told him the real reason, he probed and poked for half and hour.  I offered vague reasons but nothing specific.  Finally he said that he thought he knew the reason I was leaving.  If it was to work for Giuliani there were a lot of things about Rudy I didn't know.  His PR wasn't true and Kinsella wanted to set-up time for me to sit with Alfonse so he could explain it to me.  This was not at all what I wanted.  I wanted a very quiet exit.  I said that was extremely gracious but it really wasn't necessary, I was just moving back to NY without any definite plans.  I did not want to sit with the Senator. 

Kinsella kept insisting and told me if I wasn't happy in the office there were other jobs that could be gotten for me in the Bush Administration.  He kept coming back to me sitting with Alfonse who could work all this out and explain to me the things I didn't know.  I finally stood up and ended this which was not usually something a staffer did to his boss.  I told him I really wanted to end on a good note and thanked him for how decent he had been to me and that this had been an extraordinary opportunity. As I left  he told me this matter wasn't settled.  He did try one more time to get me to sit with Alfonse, but again I refused.

It's been twenty years, almost to the day, since I left the Senate. I always wondered what Alfonse would have said.  What revelations did he have in-store that I didn't know or have not learned since?   Ironic I guess that these days it is I enlightening about Rudy rather than being the one informed.

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.

SENATE DAYS - Part I

I'm sitting in the Artists and Writers Cafe in Belgrade sharing Turkish coffee with a senior man from the foreign ministry.  It is 1989, shortly before war will engulf this country.  The smoke from our cigarettes wafts up and mingles with the cloud hanging thick in the air.  Serbia is a land of smokers.  Me and the Man from the Foreign Ministry (MFM) are talking war and nothing else tonight.  War with Croatia and war over Kosovo.  MFM is a friend of my father's.  He was the Consul-General in New York from Yugoslavia and is now back at the foreign ministry.  

While in New York it came up in conversation one night at dinner that he had once been posted to Albania.  I was fascinated by that as Albania - a rigidly communist country and much akin back then to North Korea in its insularity and poverty - was an interest of mine.  What do you remember about that posting, I had asked him.  Expecting some insider take on the repressive Hoxha regime or life in a capitol that had virtually no cars, I was surprised when he said, "the best ice cream I have ever had was in Tirana."

I had amassed a ton of frequent flier miles during a special promotion period using the Pan Am Shuttle flying back and forth from Washington to New York while working for Senator Alfonse D'Amato (R-NY).
The promotion gave me a free ticket to Europe but a short window in which to use it.  I decided to go back to the homeland once again, Yugoslavia.

Back at the cafe, MFM explained to me that the Croats were going to cause this war and that the Serbs were doing everything to prevent it.  He knew I was a Croat and thought for some reason he could persuade me to be understanding of his position.  It seemed so logical to him.  I merely nodded politely.

Earlier that evening at dinner he had gone to great pains to shoo away the strolling violinist at every turn while I was happy to throw the guy a few bucks. "Filthy Gypsy," MFM said.  "I think he plays very well," I said, "let me just give him a few Dinars."  "No, no, then he'll keep playing for us and we'll never be rid of him - filthy Gypsy.  Belgrade is full of them - Gypsies and Albanians, they are the worst."  It was becoming clearer throughout the evening how this country was soon to tear itself apart.

MFM went on to talk of war over Kosovo.  "Of course Serbia," he had already started to speak of himself as a Serb and no longer as a Yugoslav, "was going to protect its rights."  His point about Kosovo I happened to agree with, but his reference to himself as a Serb saddened me.  I had been raised by my father and grandfather to believe in the dream of Yugoslavia.  I thought of myself as of Yugoslav descent rather than Croatian heritage.  This coming civil war therefore troubled me greatly.

The rest of the evening was spent smoking and talking of war.  Heady stuff for a 23 year old junior Senate staffer.  I had toured the foreign ministry earlier that day and met with some very senior people.  My hosts clearly thought I had a much more senior position with the Senator then I in fact did.  It was a little comical but I don't think I got it at the time.  The MFM dropped me off at the Inter-Continental Hotel.  I entered a lobby that only months later would become the meeting ground to some of the greatest war criminals of our time.  I left the next day by train to visit my cousins in Zagreb.  They told me that Serbs would bring this country to civil war.  The only thing both sides seemed to agree on was Kosovo and that Albanians were scum.

Returning back to D.C. and my job with the Senator I feel into the routine I had known for the prior two years.  I didn't know it then but my days in the office were coming to an end too.  I was one of three Legislative Correspondents (LC) for Al D'Amato.  I answered mail, wrote floor statements, occasionally met with constituent groups, supervised interns and drafted form letters.  As a first job out of college on Capitol Hill it was heaven.  I lived in a studio apartment in Dupont Circle.  To make extra money I data processed by inputting names from the back-logged mail in the office.  My base pay was $12,000 a year.  I was told I was very lucky to get that as people were lined up to do this job for free.  Prior LCs had only made $11,000 a year.  I was stunned at how bad the pay was on Capitol Hill and at how many staffers had to have second jobs, usually in catering. 

The office manager, Claudia Breggia - an attractive woman, short, tanned, with blond highlights in her 30's - took care of every facet of the Senator's day to day  life.  She oversaw his Washington office as well as the various district offices back in New York, the office budget and procurement, and additionally, managed all his personal affairs.  She shopped for his groceries, did his dirty laundry and along with his secretary, made sure the Senator's array of girlfriends were always kept happy (Sen. D'Amato by that time had been separated from his wife for a number of years.  However when he went back to Long Island he did sleep on the couch in the living room of the family home according to a number of staffers).  She was a tough cookie and no one in that office screwed with her.  Well, I mean that figuratively because literally a number of people did.  Claudia was the highest paid office manager on the Hill and she took great pride in that.  She was my immediate boss and I would become one of her favorite employees.  That had its benefits as I'll explain later.

I was one of the few political hires in the office.  Contract hires were usually reserved for the district offices or for internships.  Although D'Amato's staff could never have been called stellar, they were 100% loyal to him and that was what he valued most.  I had gotten my job through the recommendation of the New York County Republican Chairman, Roy Goodman, heir to the Ex-Lax fortune and a very patrician man.

The main task of an LC is to answer the huge amount of mail that comes into a senator's office daily; especially one from a state as large as New York.  There is a mailroom within the office that processes the letters and they are sorted by issue; each LC having his own areas of expertise.  People are usually surprised when I explain the process of responding to constituent mail and how little involvement the Senator had.  I know as a fact, because I was friendly with staff from other offices, that his disinterest was the norm, not the exception. 

Part of an LC's job is to create a catalog of form responses to nearly every conceivable issue of the day that might illicit a letter to his boss.  For each issue you need a pro and con response.  If the letter is in agreement with the Senator's position you can go into a great deal of detail about where he stands on the subject, his long leadership championing the matter and thank the writer for their support. 

If the writer opposes the Senator's position, you restate the argument that the writer probably outlined on that issue and thank him for their thoughts.  They can't tell from the letter where the Senator stands or whether he's agreed or not.  You'd be amazed by how many people get con letters and think they're being agreed with.  But in writing the responses this way, the Senator hasn't lost a vote unless they already knew his position.  When a new issue generates enough mail an LC will create a new form letter and get it approved.  Usually the Senator will have very little involvement in this; his Legislative Director or even a Legislative Assistant will approve the final draft.

If the letter happens to be on some obscure topic that isn't covered by the form responses the catalog takes that eventuality into account as well.  The LC uses a special form to create a custom letter.  Sometimes phrases and paragraphs have numbers assigned to them as well as whole letters.  So on this special form there may appear just this:

1309                                                                                                                                

1425   your recent trip to Burma and your husband being eaten by tigers.

2304

1309 might be a paragraph thanking the writer for taking the time to contact the office.  1425 would be a generic paragraph with a space to enter the constituents main point or concern. And 2304 would be a generic closing.  There you have a letter that is not actually responsive nor from what you can tell, computer generated; it has your very specific concern.  I staple the form to the original letter and off it goes.  All this mail is sent to the back of the office where the women of CMS sit and where all mail hits the end of the line.  We had three women whose full time job was to plug in these numbers and type a name and address.  Their CMS (Correspondence Management System) computers were networked into a huge complex in the bowels of the Capitol where mail is generated, auto penned, stuffed and sent out to the post office.  It's a remarkably efficient system.

No mail is ever seen by the Senator.  Now I am sure, in fact I know, that some members of Congress do look at their mail. The exception in our office was when there was a major issue in debate.  The first one for me was the Bork nomination which was happening just as I arrived in the office.  D'Amato wanted the percentages of how the mail was breaking.  But in terms of everyday constituent mail?  Never.  

We worked in the Hart Building, named for Sen. Philip Hart (D-MI), often referred to as the 'Conscience of the Senate.'  You would not believe how many tourists I would hear grousing over the federal government naming this beautiful building for that philanderer Gary Hart.  Most senators in Hart have offices on two floors connected by an internal staircase.  LCs were upstairs, low rent, but also free to come and go as we pleased and we liked it that way.

On my third day my phone rang and the Senator's secretary told me that he wanted to see me in his office.  This seemed natural to me as he would want to welcome me aboard, newest member of the staff, that sort of thing.  The mouths of everyone around me just dropped.  "What is it?" I said.  "He's just welcoming me to his staff."  No one said a word.  I got up and started to walk down the stairs past starring eyes and agape mouths .  "Honestly, what else could it be?  I haven't done anything, it's just my third day.  I haven't had time to screw up yet."  It was obvious from their reactions that D'Amato didn't meet with junior staff and that this was unprecedented.

I knocked on his door and a "Yea!" came back.  He was on the phone and he pointed to a seat in front of his desk.  It was a very large office with a couch/chair set up against a back wall and his desk and some guest chairs on the other.  The usual trophies of photos, plaques, honors and awards were arrayed on the walls.  I sat down and waited for him to finish his call.  "How are things going so far?" He said.  Was he talking to me?  He wasn't looking at me.  I didn't dare answer in case he was talking to his caller.  Finally, he unmistakably  turned towards me and stared.  "Oh, it's great.  The job is great.  I am very grateful, Senator. Thank you for the opportunity," I said. 

"You're getting a lot of mail on Bork," he stated, not asked.  "Yes, we're inundated with it," I said.   "How's it running?"  "It's overwhelmingly negative, Senator."  "Yes, I know," he said. And seemed troubled by this.  The whole conversation seemed strange.  After a long pause he then asked, "how do you think I should vote on this?"   I was shocked by the question.  I responded, "Senator, I wouldn't presume to tell you how to cast a vote on a Supreme Court nomination having been here three days."  "But I am asking you," he said. 

As a matter of fact I had given this a great deal of thought.  The Republican in me wanted very much to support Bork.  But the libertarian side was repulsed.  What cinched it for me was when I heard his views on right to privacy.  "Well, if you're asking," I said, "I couldn't vote to send any man to the Supreme Court who can't find a justification for Griswold. Robert Bork scares me. He's a brilliant guy, no question about that.  But I couldn't vote for him and I couldn't advise you to.  If you're asking me."   He thought for a moment, all the while still on the phone with someone, and then said, "well the old man told me he needs me." 

Right above his head was a picture of himself walking along the colonnade behind the oval office and the Rose Garden with Reagan.  "I understand, Senator," I said.  The guy on the other end of the phone came back to life and D'Amato started talking.  He turned to me and said, "Do a good job, work hard for me and listen to Mike and Claudia."  I responded, "Thank you for your time, Senator." I think I actually walked out backwards like when you're with the Queen.  When I went back upstairs they pumped me for info and I realized how weird this all was.  I should have lied but I did not know this had never happened before. 

He did it because I was Ray Harding's kid and he was trying to be correct. The guys I worked with didn't know I was a political hire; I made sure not to tell them.  This exposed that.  Alfonse didn't even know the names of most of his staff.  If you were a male you were 'Big Guy' and if your were a female, 'Honey', 'Babe' or 'Sweetheart'.

Sometime later I went out to lunch with Mike Kinsella, his AA/Chief of Staff, to whom I relayed the Bork story.  He told me this story in return.  He asked, "did you see that picture of the Senator and Reagan above his desk walking on the colonnade?"  "Yes, I did," I responded.  "That was early on in his Senate career," Kinsella went on,  "when he still dressed in cheap polyester suits and many of his colleagues wouldn't show him a lot of respect because they believed he was just a product of the Hempstead (Long Island), Joe Margiotta machine.  Not to mention he had just beaten Javitz (Jacob Javitz, a liberal Republican revered by his colleagues whom D'Amato had beaten in a very dirty campaign). But Ronald Reagan treated him like a full member of the U.S. Senate from his first day and never treated him like anything else.  Al D'Amato always, always remembered that.  He refers to him as the 'Old Man' and means it with the highest regard.  He can't say no to him."  And he couldn't say no on Bork.

Working in the Senate has a lot of perks, from cheap haircuts in the Senate barbershop to access to the great Credit Union.  But the best perk was having the opportunity to see and meet institutions of the body.  I struck up an odd friendship with one of them.  A dying lion of the Senate, Senator John Stennis (D-MS). 

Besides the famed Senator's Dining Room, where Mike Kinsella had taken me, there are a number of eating choices in the Capitol complex.  On the Senate side, the cafeteria is considered to have good food and a great variety with lots of  different food stations.  On my first day I sought it out and found in the Hart basement what I believed to be it.  It looked like a snack bar with a small counter and a fairly limited menu.  There were a few tables and chairs in addition to some vending machines.  I was very disappointed but got my food and went to find a seat.

Seated at one of the tables, in fact the only one seated at any of the few tables, was Sen. Stennis along with his aide/man servant.  By this time - August 1987 - Stennis was in his twilight, confined to a wheelchair, hard of hearing, halting in speech, with one leg amputated from cancer, but with a very sharp mind still.  He and his aide were alone at one table and I sat at another.  For some reason, he invited me to sit with him.  For the next two and half weeks I ate lunch nearly every day with the Senator.  The aide never said much and never sat.  Choosing instead to stand behind the wheelchair.  He was of another time, in fact they both were.  The aide was a very dark skinned black man, very correct in his manner in an old southern sort of way.  Senator Stennis was always dressed impeccably in a dark blue suit and red tie.  I enjoyed talking with Stennis very much.  I would have loved to talk of really substantive things like segregation or the plan to listen to the Watergate tapes or a hundred other things in a career spanning forty years in the Senate but we talked instead about Senate Navy Bean soup and Ronald Reagan (he liked the Gipper a lot). We talked about New York and Europe, of Defense matters - he had been Chair of Armed Services for many years - and also of some major projects in Mississippi and New York that were before Appropriations of which he was currently Chair.  He seemed to like Alfonse a lot; found him kind of a hoot.

I assumed that since a senior senator like Stennis was eating here daily that this must be the Senate cafeteria.  It never dawned on me to ask my fellow LCs where they were going for lunch every day.  Finally, in my third week of work one of them asked me to go to the cafeteria for breakfast shortly after hitting my desk.  As we walked out of the office I headed to the elevators in Hart that would take us to the place I had been eating lunch every day.  He headed in the opposite direction towards the back elevators, up a flight of stairs, that takes you to the Dirksen basement.  I was smart enough to correct course and tag along.  Upon exiting the elevator I discovered the whole underground world that exists below Dirksen, but especially the cavernous cafeteria.  The cafeteria was indeed large and had distinct areas for breakfast foods, mexican, salads, burgers and pretty much anything else you could want.  Also a smoking section which was awesome.

I never returned to the snack bar and my lunches with Sen. Stennis after that.  In my youthful ignorance I had traded rare time with one of history's greatest segregationists and a Senate institution for made-to-order omelettes and taco salads.

*Next week - Senate Days -Part II or "How Come Dan Rostenkowski Went to Prison for Stuff We Were Doing Every Week?"*

SORA Feelings

Many of you have asked me to write about my case, the prison system and Sex Offender Registration.  I am beginning that process with this post.  I hope it and the ones to follow are informative.

A major study recently published in the Univ. of Arizona College of Law and Univ. of Miami School of Law joint law review publication, Psychology, Public Policy and Law concludes that sex offender registration and notification laws have no effect.  This study was the first to look at the NYS law called SORA (Sex Offender Registration Act).  It traced the antecedents for the 50 state and federal laws.  While you might think the reasons for the passage of these laws was a wave of sex crimes and proliferation of repeat offenders, the exact opposite is true.

I'm no genius but none of this was news to me.  Contrary to public perception fueled by cable news and talk radio, the incidence of sexual crimes and especially those against children are on the wane and have been so for some time.  The study points out correctly that the sensationalism attached and the length of time given to reporting sex crimes is far out of proportion to their occurrence.  In fact, the study says, "the media reports sexual crimes such as rape by a factor of almost 14 times compared with the actual rate of incidence and to present sexual crimes in a manner that inspires fear significantly more than it does when reporting robbery, homicide or assault".  The study goes on to say that this distortion leads the public to perceive that sex offenders are not capable of rehabilitation although no research whatever supports that theory.  That is of course not to mention the ridiculous misapplication of these laws.  In Illinois public urination can cause you to be registered.  USA Today reported a case, I think it was also in Illinois, of a pizza store owner who witnessing one customer threatening a woman patron, grabbed the man by the throat and said, "if you ever do that again, I'll cut your balls off".  He was registered as a sex offender at a high risk level because of the risk he posed to society that he might cut people's nuts off.  Think how many times we hear that phrase in a day. Didn't Jesse Jackson say something similar about Obama?  He's from Illinois.  Should he be registered as a sex offender?  Of course these are ridiculous examples, that's the point.  Once we cross the Rubicon and diminish basic civil liberties then it becomes easier and easier to do.  I cannot imagine an instance where I would support registering anyone for anything.  But if I did it would have to be for the most heinous possible crime or greatest known threat. Think I am exaggerating about the effect?  States now register meth producers.  What possible evidence is there to suggest that someone arrested, convicted, sentenced and incarcerated would leaving prison and resume the production of meth?  The answer, none.  Yet some states now register them.  See how easy that was once we started registering sex offenders?  Where does it stop?  Especially when in both instances -sex offenses and meth production - it is based purely on fear without any supporting data.  As it stands now you can know that I went to prison for possessing 11 images of child pornography but you cannot know that the guy next door to you murdered the previous tenant or is a convicted terrorist.   Make sense?  Again to most of you it makes perfect sense.  Nothing I say will overcome the hysteria and fear.  Anything is logical if you will it to be so.  But there is a more compelling case for my argument.  The state and the federal government now have draconian (especially the feds) sex offender civil commitment laws on the books to keep one in prison after their sentence, should they believe they haven't reformed.  In the federal case they apply the applications so broadly and to so many cases -  without providing any guidelines as to how one can obtain release from commitment - that a federal court in conservative North Carolina ruled it unconstitutional.  What did the Bureau of Prisons do?  They moved all the inmates that they were seeking to civilly commit outside that court's jurisdiction so that they could continue with the commitments and that any appealed case would have to start fresh and take years.  Civil commitment laws now exist to prevent repeat, non-reformable offenders from going free, so the arguments goes.  Why continue the extraordinary practice of registering people?  Does no one understand what a huge diminution this is to our fundamental civil liberties? 

Why am I troubling you with this information?  Because at present I am involved in the process of being registered as a sex offender in NYS.  For the crime of possession of 11 images of child pornography I must be registered with the state - and soon the federal government - for the rest of my life.  That means, depending on the level of risk I represent, that I will have to provide my photo, fingerprints, DNA, home address, work address and have it posted on a website, forever.

Now I realize fully that many, if not most of you, think these laws are great.  They make you feel better and provide some comfort in the belief that "something is being done to this ever growing problem".  The reason registration and notification laws are constitutional is based on Supreme Court and NYS Court of Appeals decisions that these requirements are not punishment. Were they, they would clearly fall under the double jeopardy clause and would be blatantly unconstitutional.   I firmly believe that these court decisions were not premised on legal reasoning.  Rather, they were grounded in the public misconceptions regarding these crimes and fear of public backlash at striking them down.  No sane person can maintain that lifetime registration does not constitute a form of punishment after having served a prison term for the underlying crime.  Even post prison probation - clearly considered and acknowledged to be part of the punishment for the crime - is less intrusive and far, far shorter in duration than registration.

I am the child of Holocaust survivors; both my parents and grandparents.  My mother and grandmother had 'Juif' stamped into their passports by the French and the Nazis. The very notion of registering people, for any reason, makes me shudder.  Are the advocates of these laws seriously going to suggest that my family and the Jews of occupied Europe, who were legally bound to report to the local prefect of police on a daily or weekly basis to register their whereabouts, were not being punished?  That the act of registration is simply ministerial and not punitive?  Again, you cannot make that argument with a straight face.  Instead you make it from pure emotion; never a good indicator of successful legislation. 

All available data indicates that sex crimes, especially those against children, have the lowest recidivism rate of any major crime: robbery, drugs, homicide.  Again, contrary to the belief that unknown predators are lurking everywhere waiting to pounce on unsuspecting children, 93% of all victims of child sex crimes are known to their victims; either relatives or family friends.  You have a greater chance, by a factor of a thousand, that your child will be sold heroin at his/her jr. high school than that they will ever be approached by some sexual predator.

As for the internet and all this hysteria created by NBC and Chris Hanson, there is the simplest solution to the problem of online predators.  Something that could be enacted in a week and would, in all likelihood, resolve 95% of all crimes relating to internet offense directed at children.  Each state - I don't believe in most federal legislation, the 10th Amendment remember - should immediately enact legislation to require any entity that offers e-mail addresses or IM accounts, especially those companies geared towards children, mandate that a clearly visible label be attached to each sent e-mail or message for an account owned or used by anyone under the age of...pick a number.  It could say something like, "the individual you are messaging is a minor and every caution should be taken in your communications under penalty of State Law XXX".  Should it be 18, 17, 16?  It's immaterial. 

There should be penalties attached to the internet provider, the child and his/her parents for non-compliance.  If the advocates of child safety are so rabid that everything must be done to protect the children than surely this is a simple measure that would not cause much clamor.  There is more warning given in watching a videotape or DVD for the criminal penalties of duplication than Instant Messaging, texting or e-mailing with children.  In this way no adult could ever claim that they didn't know the age of the person they were communicating with.  Children could not pose as older teens or adults for the purposes of salacious chat or picture trading. Society in the main accepts that children lack maturity in most things.  Yet they are given free reign over powerful tools like the internet.  For research or learning, who could object with that?  But we've seen the proliferation of so-called 'Slam Books' and gossiping websites.  I am not for prohibiting them per se, but children should not be allowed to wander the internet freely when it comes to person to person communications.  For their own protection, as the child advocates would say.  The present solution, of course, is to go the other way and register sex offender's e-mail addresses.  Why?  Because it's punitive and makes us feel better.  Useful to the task?  Never.  As the study showed almost all registered offenders were first-timers not recidivists.  

Now let's get back to me.  With the exception of accompanying my brother to fight a speeding ticket, I don't know that I have ever been to a county court before.  That is before I was required to appear in one for a SORA hearing.  If you have been convicted of any type of sex crime you become a registered person with the state.  The point of the hearing is not to see if you should be registered, but at what level.  A Sex Offender Board in Albany fills out a form based on information from the courts, probation and your prosecutor.  Naturally, as in almost all aspects of this system the defendant (felon) is given no opportunity to weigh in.  The Board calculates your level based on a points system.  If you fall below a certain score you're a Level 1; between two more scores and you're a Level 2; higher than a certain number and you're a Level 3.  You are given points for various aspects of your crime. (I was assessed a Level 1 by the SORA Board.  You cannot be anything less.)  This score and its tabulations are forwarded to the local court in your home jurisdiction and to the local D.A.  A hearing is then held and a final Level is established.  All pretty cut and dry.  Or at least it should be.

I wound up in the Westchester County Court of the Hon. Jeffrey Cohen.  Judge Cohen does nothing else but hear sex cases, that's his specialty.  Better I assume to assign all these matter from arraignment through trial to one judge.  I'm not sure why it's better, but the county seems to think so.  I have now been summoned to Judge Cohen's court (eight) 8 times; all without having received a hearing.  You see defendant's don't have much rights in Judge Cohen's courtroom; only the prosecution, 'The People', have rights.  It is a surreal atmosphere, like no court I have ever been in.  I grew up in and around courtrooms.  The first job I remember my father having was as law secretary to a Supreme Court Justice in the Bronx (later to become an Appellate Division Justice - 1st Dept.).  I have known Judges from all courts: Family, Civil, Supreme, Appellate, Appeals, as well as Federal Judges from all levels excepting the Supreme Court.  I have served on state and federal juries.  And of course I have been a defendant in a federal criminal case.  But nothing could have prepared me for the goings-on in Judge Cohen's court.

I was brought up with an extreme reverence for the courts at all levels.  I have never been inside a court where I haven't worn a suit (except in my own case where that was not possible).  The first thing you notice when you enter Judge Cohen's court is his constant need to crack jokes.  Everything is a joke.  The sycophantic Assistant District Attorneys, legal aid lawyers and pro-bono counsels all guffaw endlessly at the Judge's jokes.  The next thing you notice is how lax everything is.  No need to stand when the Judge enters.  Cops testify in acid washed, torn jeans and sweatshirts.  The bailiffs - they like to be called court officers these days in the same way stewardesses like to be called flight attendants - conduct themselves like they were at a pub or gym.  They not only chew gum in court, they do so open mouthed and crack the gum regularly.  They perform calisthenics while defendants are being sentenced.  One "female" bailiff was doing lunges and swinging her arms wildly from behind to front culminating in the fist into the palm gesture.  All that was missing was the final snapping of the fingers.  But the worst part of this behavior is what they used to call "cutting up"; joking and laughing.  This is done by the bailiffs, again, standing behind defendants while they are being sentenced or arraigned.  It's not just that it is so wildly disrespectful to the Court, the defendant and to the process; it also, as I have seen first-hand, creates a serious appellate civil rights issue. 

As I was waiting on my fourth or fifth attempt to have Judge Cohen convene a hearing I witnessed a non-English speaking defendant being sentenced for a sex crime.  He had a court appointed interpreter.  Standing inches behind both of them were two bailiffs.  They were laughing and talking and guffawing loudly.  The interpreter was clearly upset and repeatedly shot them dirty looks in an attempt to shut them up.  It was apparent to anyone that she was not able to do her job effectively, thereby depriving the defendant of his right to understand that which was happening to him.  I kept waiting for the Judge to tell them to pipe down or have them remove themselves.  It is simply impossible that Judge Cohen wasn't aware of their behavior.  Remember he sits above all this literally.  This behavior is routine in his courtroom although I had not seen it this bad.  But no, not a word from Judge Cohen even when it was plain to anyone that the interpreter wasn't able to adequately do her job.  But Judge Cohen sentenced the man, he was escorted out and the Judge cracked another joke.

Two court observers have told me that they are unaware of Judge Cohen ever ruling for a defendant in a contested issue with the prosecution.  Yes, he'll split a bail request between the two sides occasionally.  But rule for the defendant in a black and white issue between defense and prosecutor?  I'm told it has never been seen.  Further, there appears to be no amount of delay or delaying tactics by the prosecution that Judge Cohen finds intolerable.  In my own case which began in July, I stated on that day I was ready for my hearing.  The prosecution said they need more time and Judge Cohen gave them 6 more weeks.  We returned to court.  Again, they needed more time; five more weeks.  Each time we objected. This went on and on.  On the third or fourth request for an adjournment the ADA announced that their need for additional time was based on their difficulty in obtaining evidence in my federal case due to a motion I had pending in federal court to prevent them from receiving said evidence.  I was furious.  It was a total fabrication.  I had no such motion in court, wasn't preparing one and had never prevented them from obtaining information.  I said through my attorney that this was 100% false, not a shred of truth.  For a moment Judge Cohen appeared to, perhaps, have had enough of the prosecutions delays.  He asked what proof they had.  The ADA said she wasn't handling the case and the ADA who was, had told her this.  The Judge called for a conference later that day with the appropriate ADA to explain the grounds for this charge.  I didn't stay around.  My lawyer told me that the ADA didn't bother to show up.  No explanation was forthcoming as to what basis they had to make this allegation against me.  And Judge Cohen gave them another 6 week adjournment.  No apology was ever proffered by the ADA for making this charge.  And to my knowledge the Judge lost interest in pursuing it.

Now you may say, I am just peeved at having a pro-prosecution judge.  Fair enough.  But here is why you should care.   As I said,  I personally cannot imagine a situation in which I would support the registration of our citizens but if I did it would have to be under the most extraordinary circumstances and with numerous safeguards built in.  This process I am currently involved in is frightening.  If you are a supporter of the process you should be equally concerned.  Because if it is meant to protect and inform you, it is failing miserably.  Take my own case.  I was accused and plead to possession of 11 images of child pornography.  That is all I was charged with and that is what I plead to.  The charge was 11 images found on a disk in my home.  There is no evidence and no suggestion - and believe me my federal prosecutor, Debbie Landis, turned the world upside down to find anyone, anywhere, who would come forward and make an accusation - of hands-on illegal behavior between me and a minor.  Further she attempted to find some suggestion that I had sought to induce, entrap, ensnare a minor.  Doesn't exist so she couldn't find it. 

Now in these Levels, a Level 3 offender is someone who has not only hands-on contact with a minor (because you can be a Level 2 offender with hands-on contact) but serious vicious and repeated behavior.  Moreover there needs to be evidentary proof to suspect you will behave this way again.  Last month at our latest attempt to have my SORA hearing before Judge Cohen, the District Attorney's office announced at the last second before the hearing was to start that they were seeking a Level 3 for me.  The ADA in the case who had been AWOL all morning came in as the hearing was starting, and hands my attorney a hastily prepared form showing that they calculate I should be a Level 3.  One piece of background.  There is a case recently decided at the Court of Appeals in Albany (Johnson v. NYS) that basically allowed the SORA Board in Albany to double and triple count in order to arrive at your points for a designation.  With the possible exception of a thought crime, you can pretty much never be a Level 1 anymore.  It was a unanimous decision.  I have read a number of U.S. Supreme Court decisions but never one from the NYS Court of Appeals.  I was shocked at how totally lacking in serious legal erudition it was.  I could have written this thing.  And I would certainly never, ever, make that claim about any Supreme Court decision.  If you read it you come away with the clear impression that it was written in total fear of appearing to side with "child molesters" although Johnson was a pornography case as well.  They conceded most all of Johnson's points and basically told judges to feel free to exercise their own discretion an ignore the Board.  But it was still a major loss to Johnson and anyone going through the process. 

The thing about the Board and the form is that it doesn't even recognize possession of child pornography as eligible for calculation.  The examiner has to check "Other" when describing the crime.  Now imagine this:  you get extra points if you possessed pictures of someone you didn't know, "a stranger", which of course is almost 99% of all child porn cases.  If you possessed pictures of someone you do know, no extra points. Although again, the form is written and designed for hands-on crimes.  So it it saying that sex with your niece or next door neighbor's toddler will earn you a lower score than a kid a few miles away you don't know.  I'm not exactly sure how that is supposed to make the nephew, niece or next door neighbor's kid feel any better.  In fact, since over 95% of hands-on crimes happen between relations and known parties you would think the greater deterrent - more points - would be assigned to knowing the victim.  But once you start measuring people's heads and quantifying their features in order to define racial purity, you can design a form and a system that will do anything. And rationalize it's methods.

Now it was obvious in my case that the ADA wanting another adjournment, filled out this form two minutes before walking into the court and essentially forced my lawyer to agree; since what they were asking for was so serious and required much discovery.  Additionally, they said that new evidence from my federal case that my federal prosecutor had promised them would be forthcoming.  They had said this in three prior appearances.  Judge Cohen should have said," Enough. This is clearly a naked attempt by the People to get an adjournment by coming in here at the last minute and announcing you've recalculated his points.  Further after three assertions of new information and seven months, there is no reason to believe this evidence is coming.  Let's start the hearing".  What did Judge Cohen say to the DA?  "How much more time do you need?"  Another adjournment.  Now bear something important in mind.  The "evidence" that my federal prosecutor has apparently promised them cannot be released without the signature of the federal judge in the case.  Yet she has promised it to them without Judge Kaplan's consent.  She even admitted in a motion last year that she could not release these documents without the Judge's consent.  Yet, given how she has behaved over the last 6 years I have no doubt she will ignore her own admission, defy Judge Kaplan, and turn over all material she chooses. 

But I said earlier you, the supporters of this system should care how bad it is.  If I am a Level 3 Offender than can there be no meaning to this registration system.  Is it informing you successfully?  I would have more respect for the system if it just labeled everyone convicted of an eligible crime "bad" and took uniform action.  It is this need to show that this is based on some legal and pseudo-psychological grounding that Levels exist and makes it so disreputable; the ability to predict future behavior based on fear.  If I am living on one side on your apartment with my crime and your other neighbor, also a Level 3, murdered, raped and decapitated 5 sisters all under the age of 12, are you served in having us both classified the same?  According to the DA, the answer is yes.  We present the same risk.  Make sense?  Like I said, to most of you it makes perfect sense.