Issue 306
October 1, 2004
The following article appeared on thestar.com on
September 29, 2004:
Making
noises about Baltovich's silence
by Rosie
DiManno
There is no
presumption of innocence in appeal court.
If anything,
the entire thrust of our judicial system - innocent until proven guilty beyond
a reasonable doubt - is inverted within this process. One might reasonably assert a presumption of guilt, given that an
individual appealing his or her case has already been convicted of the crime.
This central
fact can sometimes appear lost even on the finest legal minds. As when, for
instance, Madam Justice Eileen Gillese - one of three learned judges sitting on
an Ontario Court of Appeal panel hearing the appeal bid of murderer Robert
Baltovich - expressed confusion the other day over the crown's characterization
of a small but significant component in the prosecution case as mounted at
trial and re-asserted here.
For the
purpose of illuminating my point, the specifics of the befuddlement aren't
important. Broadly speaking, Gillese was wondering - challenging would not be
too strong a word - why Baltovich would have done a certain thing and been at a
certain place at a certain time, or what his motivation could possibly have been
for lying about the scenario, if such he did.
It was
largely an elliptical exchange between the justice and the crown, John Corelli,
a theoretical lunge and parry. But the whole subtext underpinning the challenge
was an assumption of Baltovich's innocence. It was only after dancing around on
the head of this pin for a while that Gillese seemed to realize the potential
flaw at the crux of her quizzing.
Belatedly, as if a procedural pedant had cued the bench from the
wings, Gillese added what I can
only describe as a glancing disclaimer. "Unless he's the killer.''
Yes, well
there is that. There is still that. Although you might not know it,
might not remember it, given the breathless reportage of a press cadre (some,
not all) and hagiographic Baltovich biographers palpably in thrall to the
defence team.
Robert
Baltovich is a convicted killer. Keep your eye on that ball for a minute. A
jury made the determination 12 years ago, after weighing the evidence in a
three-month trial that was essentially circumstantial in nature. Verdicts
predicated on circumstantial evidence are hardly unusual.
No one
should be aghast about that. Sophisticated forensics cannot always tie an
accused irrefutably to a victim.
The woman
Baltovich was convicted of murdering, his girlfriend Elizabeth Bain, can't
speak to coroners and police investigators, not even as a corpse on a morgue
slab. Mortal remains, however decomposed and degraded, might still whisper
dreadful secrets. A corpse can accuse and damn. But Miss Bain's body has never
been found.
Baltovich
comes to this hearing as an appellant by formal definition and a supplicant by
any other measure. For more than a decade, when it counted most, he has allowed
others to speak for him, as they are doing now, with varying effectiveness. He
did speak to police, in long-distant days. He has spoken throughout with
private investigators, labouring on his behalf. He spoke to his own jailhouse
diary and he spoke to a crusading writer. But he never took the stand in his
own defence at trial. Of course, no law could compel him to do so. An accused
has the inalienable right of holding his tongue, from which no inferences
should be drawn. But they are. Inevitably, they are.
"He
didn't have to (testify),'' prosecutor Brian McNeely emphasized yesterday.
"But the fact is, he didn't.''
The
prosecution has repeatedly asserted that Baltovich handcuffed his own lawyers
at trial by refusing to explain, in court, his erratic behaviour at the time of
Miss Bain's disappearance. Baltovich's appeal lawyers have argued that
compelling evidence - including a witness statement supportive of his alibi and
pages from Miss Bain's diary that might have shed light on the disputed status
of their romantic relationship at the time - was never disclosed to the defence
team.
Baltovich,
if by proxy, has steadfastly maintained his innocence. Only once, just prior to
sentencing, did he make any public proclamation: "I would like to say that
I had nothing to do with Liz's disappearance, and I am truly innocent of this
crime that I have been convicted of. That is all.''
There is no
more grotesque a miscarriage of justice than an innocent person wrongfully
committed for murder. The appeal process is a crucial and noble correcting
instrument afforded when sufficient evidence is marshalled to cast significant
doubt on a guilty verdict or the fairness of the trial. Undeniably, there are
contentious issues related to the
Baltovich
trial, most demonstrably in the area of the trial judge's heavy-handed charge -
utterly biased, the defence avows - to the jury, and the prosecution's failure
to disclose evidence that could have helped the defence, even - in their view -
gutted the case against their client.
These
worrisome elements do not automatically render Baltovich one iota less guilty
of murder. But they may be sufficient - as arid points of law, which are
traditionally most persuasive to appeal panels - to deliver unto Baltovich the
right to a new trial. Or even, as his defence team dearly covets, an outright
acquittal.
Yesterday's
submissions, by the prosecution, focused on the trial judge's instructions to
the jury and whether he properly fulfilled his obligations in fairly
encapsulating the evidence. The defence has already argued that this was
palpably not the case. But among McNeely's counter-arguments was an assertion
that the judge was hardly obligated to include in his charge potentially
exculpatory matters that were never explored by Baltovich's lawyers. "Is
the role of the trial judge to invent explanations for suspicious conduct that neither the
appellant nor his counsel has offered at trial?''
These are
intriguing points of law and central to the outcome of this exercise. But
points of law aren't particularly sexy. They don't grip the public's
imagination. And the public often has great difficulty accepting verdicts that
fall apart because of procedural errors or a judicial construct increasingly
perceived as skewed towards the rights of the accused.
Baltovich
would surely take a retrial any way he can get it. But the defence arguments
put forth last week featured heavy larding of the juicy alternate murderer
theory, homing in on Paul Bernardo as the culprit.
There exists
no more compelling, nor convenient, a killer bogeyman than this serial rapist
and multiple murderer.
They were
both from Scarborough, you know.
For all the
exclamatory declarations, the dizzily promoted fresh evidence brief as
previewed by Baltovich's acolytes, the dramatic rhetoric from James Lockyer and
Brian Greenspan, there's really the
crown has countered no there there. The blockbuster goods were not as
advertised, once the defence team shook out its bag of evidentiary loot in
court.
The
prosecution should begin today to pick the gristle off the bones of the
Bernardo-as-real-killer scenario, an issue addressed only peripherally by the
crown counsel thus far. The rebuttal to the defence scenario is outlined in the
prosecution brief that was unsealed last week. It is a forceful point-by-point
attack on defence claims that insert Bernardo into both Miss Bain's life and
her death.
This all
amounts - the crown responds in its factum - to "severe speculation...
conjecture... meaningless coincidence... disconnected and remote acts... six
degrees of speculation thinking... crackpot psychological and revenge
scenarios.''
They'll
undoubtedly have even more to say about it, aloud, in front of the bench.
The
following article appeared on nytimes.com on September 30, 2004:
Jury-Tampering
Claim Halts L.I. Murder Trial
By Patrick
Healy
RIVERHEAD,
N.Y., Sept. 29 - It was a moment three years in the making as the Long Island
electrician accused of killing the Manhattan financier R. Theodore Ammon strode
into court here, winked at his family and sat down with his lawyers, ready to
begin his murder trial.
But in an
incident that may cause a mistrial, the whole process halted. Before a packed
courtroom, the Suffolk County prosecutor, Janet Albertson, stood up and said
that the defendant, Daniel J. Pelosi, had been tape recorded making plans to
intimidate and assault witnesses, tamper with the jury and threaten her
children.
The
accusations come from "hours and hours" of tape recordings of Mr.
Pelosi at the Suffolk County jail, Ms. Albertson said. Mr. Pelosi has been
jailed there since he was charged with murder in March. Mr. Pelosi's lawyer, Gerald Shargel, leapt
to his feet and called the allegations, made before jurors entered the
courtroom, a desperate, last-minute tactic. The judge called the lawyers to his
chambers and later postponed the case until Monday. Mr. Pelosi's mother walked
out of the courtroom in tears. Reporters bolted to the lobby, using their
cellphones.
It was a
startling twist in a Hamptons murder case whose mix of sex, money, class
distinctions and intrigue has drawn interest ever since Mr. Ammon failed to
show up at work one morning in October 2001.
He was found
beaten to death in his ivy-covered East Hampton house, and suspicion quickly
focused on Mr. Pelosi, an electrician from Manorville who had been having an
affair with Mr. Ammon's wife, Generosa. The pair had met when Mr. Pelosi was
doing work on the Ammons' Upper East Side town house. They married three months
after Mr. Ammon's death.
Prosecutors
and lawyers for Mrs. Pelosi, who died last year of breast cancer, have said Mr.
Pelosi spent much of the Ammons' money on alcohol and gambling.
Thomas Spota, the Suffolk district attorney,
said his office had simply followed the law by divulging the tape recordings.
Mr. Pelosi
"put himself and his attorney in this position - not us," Mr. Spota
said. "Shargel is saying that this is a ploy on our part. We didn't create
this. He will hear his own client's words."
The
investigation into intimidation and jury tampering began about a week ago. Mr.
Spota said his office was approached by people inside the jail, and had not
reached out to any inmates to tape Mr. Pelosi secretly.
On the
audiotapes, prosecutors said, Mr. Pelosi admits to killing Mr. Ammon and offers
money to at least one inmate in exchange for harming or intimidating a
prosecution witness they declined to identify. A videotape outside the jail
captures that exchange of cash, prosecutors said, but they declined to
elaborate.
Prosecutors
would not say how the conversations were recorded in the jail. Mr. Spota said the taping operation was
stopped recently, but he would not say why.
Mr. Spota
said that another unit of his office had handled the investigation, and that
Ms. Albertson had not been informed until Tuesday night.
Ms.
Albertson said she had not heard the tapes. But after being told about the
information they contain, she said, she was obligated to tell the defense
because she planned to call two inmates from the Suffolk jail as witnesses to
testify about conversations they say they had with Mr. Pelosi about witness
intimidation and jury tampering.
The inmates
are Clayton Moultrie of Riverhead and Raul Gonzalez of Brentwood. Mr. Moultrie
was arrested in June on a charge of possessing stolen property and was released
yesterday on his own recognizance, jail officials said. Mr. Gonzalez was being
held without bail at the jail on a charge of selling marijuana.
Mr. Shargel
said the men were "jailhouse snitches" looking for a way to be
released. He said the prosecutors should have discussed the allegations in the
judge's chambers, not in a courtroom crowded with reporters, lawyers and
relatives.
"What
we've heard today is simply outrageous," he said in court. "How can I
get a fair trial now when she's spread this on the record before the national
press? This is ridiculous."
Mr. Shargel
said Mr. Pelosi had not threatened anyone, and had not reached out to jurors or
witnesses. When State Supreme Court Justice Robert Doyle asked the jurors if
Mr. Pelosi had contacted them, they shook their heads. And Ms. Albertson said that neither she nor
her children had been threatened.
"I'm
not delighted about it, but it is part of the job," she said outside the
courtroom. "There's a reason I don't talk about my family."
Ms.
Albertson and Mr. Shargel acknowledged that the disclosure could be the first
step toward a mistrial. Mr. Shargel has said repeatedly that his legal team is
ready to try the case, but he declined to say whether he would move for a
mistrial.
As reporters
swarmed around Mr. Shargel and Ms. Albertson, relatives of Mr. Pelosi and Mr.
Ammon slowly filed out of the fourth-floor courtroom and toward the elevators.
"It's
very frustrating," Mr. Pelosi's mother, Janet, said later. "But we'll
just have to wait for the trial. I'll be there for my son."
* * * * *
The
following article appeared on boston.com on September 26, 2004:
A
change in marijuana prosecution eyed
Chicago
considers bid to issue fines in certain cases
By Eric
Ferkenhoff
CHICAGO --
Mayor Richard M. Daley has endorsed a proposal to issue fines for possession of
small amounts of marijuana rather than clog the courts with cases that tend to
be thrown out by judges.
Daley said
the volume of marijuana cases that are tossed out by local courts -- upwards of
90 percent, according to one recent study -- mean minor possession is virtually
decriminalized in Chicago now.
''If 99
percent of the cases are thrown out, when is there a credible arrest for
marijuana?" Daley said last week. ''They throw all the cases out. It
doesn't mean anything."
Much of the
national debate on decriminalizing marijuana has focused on its medicinal use.
But Bruce Mirken, a spokesman for the Marijuana Policy Project based in
Washington, D.C., said a growing number of cities and states are developing
alternatives to prosecuting minor marijuana busts to unclog jammed court
systems and free officers to focus on more serious crimes.
''There's a
growing sense among people who just look at the hard-nosed practicality of the
situation that this is not a sensible use of police and criminal justice system
time and resources," he said.
Mirken said
his group has tracked at least 11 states -- California, Colorado, Maine,
Minnesota, Mississippi, Nebraska, Nevada, New York, North Carolina, Ohio, and
Oregon -- that have fashioned laws relaxing criminal penalities in minor
marijuana cases. In many cases, police are now allowed to issue citations
instead of making arrests.
The
Marijuana Policy Project argues that states should go even further,
decriminalizing marijuana use and possession entirely, since Mirken contends
there are no studies indicating a definitive link between tough laws and lower
marijuana usage.
''If you go
into a store that sells cigarettes, you see yellow and red signs warning buyers
they have to be 18," he said. ''Have you ever seen a drug dealer with a
sign like that? Regulation gives society some control, but prohibition . . .
just turns the market over to gangsters."
Daley
stopped short of calling for state or city laws to legalize marijuana
possession. His comments Tuesday came a day after the release of a report
written by a South Side police sergeant indicating 94 percent of the 6,954
cases filed in Chicago in 2003 involving 2.5 grams or less of marijuana were
either dismissed by the judge or dropped by prosecutors.
The same
report showed that of the 6,945 cases involving 10 grams or less, 81 percent
were dropped, along with 52 percent of the 1,261 cases involving up to 30
grams.
''While
officers are doing everything to keep the streets safe, the offender gets
arrested and is walking the street in just a few hours," wrote Sergeant
Thomas Donegan in the seven-page report sent to police officials. ''To me, this
is a slap in the face to the officers."
Officials in
the Police Department and the Cook County State's Attorneys office said
prosecutions often fail because of weak cases brought by police, officers or
lab technicians don't show up for court, or a lack of interest in such minor
cases among some judges and prosecutors.
Donegan, who
did not return a request for comment, in his report suggested fines of $250 for
10 grams or less, $500 for up to 20 grams, and $1,000 for up to 30 grams. Using
those numbers, Donegan wrote the city could have collected ''well over $5
million" in fines in 2003. Donegan wrote the city could also have saved
millions more by not having the officers process the suspects, do paperwork, and
testify in court.
Daley said
he agreed a smarter approach might be to free officers from wasting a day in
court -- or filling out reams of paperwork -- by slapping offenders instead
with a fine that could raise millions for strapped city coffers.
''It's
always a priority to make sure officers are spending as much time on the street
as possible," said police spokesman David Bayless. ''We need to strike a
balance to make sure the offenders are penalized in some way and making sure
officers on are not taken off the street for cases that aren't going
anywhere."
Bayless said
the department chief of staff and legal advisers to Superintendent Phil Cline
would study Donegan's proposal. But it was too early, he said, to say whether
the department would push for such a change in city ordinances. John Gorman,
spokesman for Cook County State's Attorney Richard Devine, said prosecutors
will soon meet with Police Department officials to consider the proposal.
* * * * *
The
following article appeared on nytimes.com on September 26, 2004:
A Thin Blue
Lie, Admitted at Last
By Benjamin
Weiser
It was the
coldest of cold cases. Twenty years had passed without an arrest in the killing
of Officer Ronald S. Stapleton, who was found shot twice in the stomach with
his own revolver, his right eye gouged out, in the parking lot of a Brooklyn
bar in 1977. The police investigation had stalled; private detectives hired by
his family were stymied, and their $5,000 reward for information went
unclaimed.
Then came a
startling break. A mobster arrested in a Boston drug case told the authorities
that a New Jersey truck driver had bragged to him about killing the officer.
But there
was a problem: the truck driver was white, and the old case files said that
Officer Stapleton, before he died, had described his attackers as black.
Investigators
tracked down Robert R. Race, a lawyer and friend of the officer's who had been
at his hospital bedside, and asked if he could help square the discrepancy. Then
they got another surprise. Mr. Race confessed that he had provided the
description of the killers, and that it had been a lie.
"I'm
not going to let a murderer walk," he told them. And with that, the lawyer
began to try to fix something he had set terribly wrong two decades before. His
cooperation, prosecutors say, was critical in convicting the truck driver.
The story of
Mr. Race's decisions to lie and then come clean, which were culled from records
in the case and interviews with him and others, defies black-and-white
interpretations.
It is a tale
of good intentions marred by a serious breach of professional ethics, of Mafia
secrets and racial stereotypes, and of a disciplinary process that struggled
for three years to weigh the bad Mr. Race had done against the good.
In the end,
he was suspended from practicing law for three months - a punishment that
prosecutors say is far too mild for misleading a murder investigation and
endangering the case.
But Mr.
Race, 64, contends that his lie was harmless - that police detectives on the
case never believed it - and that it was meant to prevent harm to the officer's
family. He feared that Officer Stapleton's pension would be in jeopardy, he
said, if the police brass learned that the off-duty policeman had been inside
the bar, which officers were forbidden to visit because it was frequented by
mobsters.
Mr. Race
knew what could happen when officers broke the rules: he was a former officer
himself, and the son and brother of policemen. And as a fledgling lawyer, he
was torn between competing loyalties.
"I
wasn't thinking like an attorney; I was thinking like a cop," he
testified. "The first thought is to protect your own."
Trouble at
'a Wiseguy Place'
The call
came just before dawn on Dec. 18, 1977, rousing Mr. Race from his bed in
Oceanside, on Long Island: "Ronnie's been shot."
He rushed to
Coney Island Hospital, where he found Officer Stapleton lying on a gurney in
the emergency room; he had been attacked in the parking lot of the Tradewinds
bar on Knapp Street in Sheepshead Bay. Mr. Race said Officer Stapleton knew he
was going to die, telling him, "Take care of my wife and my kids."
Three months
earlier, Mr. Race left the Police Department to work in a private law firm.
Tall and fit, Mr. Race had joined the force 15 years earlier, walking a beat,
then moving to plainclothes investigations of gambling, prostitution and
narcotics. His former partner Thomas Armet recalls that in street situations,
he was "right by your side - or in front of you."
Still, Mr.
Race's dream was to become a lawyer, and after taking night courses at Brooklyn
Law School, he worked in the department's Legal Division. He also organized a
police ice hockey team that included Ronald Stapleton, a gregarious, Canadian-born
officer who occasionally went barhopping after work - a "good-time
guy," Mr. Race recalled.
In the
hospital, struggling to speak, Officer Stapleton said he had stopped at the
Tradewinds on his way home and had been attacked by two men as he left, Mr.
Race recalled. He had seen only one of the men, who was tall and well-built,
with an olive complexion; Officer Stapleton assumed he was a bouncer at the
bar, Mr. Race has said.
There is no
evidence that Officer Stapleton had any ties to the mob. But Mr. Race says he
worried that his dying friend's visit to "a wiseguy place" could
delay or endanger his pension, impoverishing his wife, Lorraine, their
9-year-old son, Ronnie, and an infant daughter who was autistic.
The lawyer
says he quietly raised the matter with members of the family, who concocted a
cover story that Officer Stapleton had noticed two men acting suspiciously at
an amusement park near the bar, then drove to the bar's parking lot to
investigate.
That would
help explain the officer's presence there. And the shooting would more likely
be classified as occurring in the line of duty, making the family eligible for
enhanced benefits.
"They
had come up with a story that would try to disassociate him from the bar, and
that's when the description was changed to black," Mr. Race testified.
"And I agreed to do it."
Several
relatives of Officer Stapleton said in recent interviews that they did not know
of any such fabrication until Mr. Race admitted it years later, and that they
doubted the family had taken part. But Vincent Cestare Jr., the officer's
brother-in-law, said it was possible that his late father, also named Vincent,
had collaborated in the tale.
In any case,
the false account entered the official record.
Four days
after the shooting, Detective Roland Cadieux went to the surgical intensive
care unit. As Officer Stapleton lay beside them, able only to nod his head, Mr.
Race told the made-up story, which Detective Cadieux wrote up in the police
report.
A Mob
Soldier Talks
Officer
Stapleton died two weeks later, on Jan. 3, 1978, and that year his family began
receiving line-of-duty death and pension benefits.
But the
murder investigation went nowhere. Paul Demartini, then a senior prosecutor in
the Brooklyn district attorney's office, recalls that some black men were
considered as possible suspects.
"When I
looked through the file," he said, "there were a number of photos of
black men that they had run record sheets on. Maybe they didn't spend an
extensive amount of time going down that avenue, but some energy and time was
expended."
Mr. Race has
testified that he made it clear to Detective Cadieux that the account he gave
was false; the detective, who has retired, did not respond to requests for an
interview.
Detective
Steve Kaplan, who later investigated the murder for the cold case squad, has
testified that Detective Cadieux told him that "never in my wildest dreams
did I believe there was male blacks - it was always male whites."
"He had
told me that every organized crime figure that he had spoken to, the first
question he would ask is, 'Who killed Ronald Stapleton?' " Detective
Kaplan testified.
The
Stapleton family hired private investigators and put up posters offering the
$5,000 reward. The posters provided no description of the killer or killers.
The
officer's son, Ronnie, said his grandfather, Vincent Cestare, who hung one in
the window of his glass shop in Brooklyn for two decades, was convinced that
the killing involved mobsters because no witnesses had ever stepped forward.
"The
way they're going to get caught," Mr. Cestare once said, "is someday
someone's going to open their mouth."
And that is
what happened 20 years later.
In the
Boston case, Frank Gioia Jr., a soldier in the Luchese crime family, had been
cooperating with the authorities to avoid a stiff prison term. In 1997, he told
F.B.I. agents that a man named Tony Francesehi had once told him that he and an
associate, who was also white and had since died, were preparing to rob a bar
in Sheepshead Bay years earlier when they ran into a police officer who
"didn't want to mind his business."
"He
said, 'So we did a number on him, and tortured him, gouged his eye out, killed
him with his own gun and left him there,' " Mr. Gioia later testified.
The F.B.I.
and the cold case squad traced Mr. Francesehi to Jackson, N.J., where he drove
a garbage truck. But before he could be arrested, the authorities had to
resolve the conflict with the old police report.
"We
won't be able to convict someone who's not black," Mr. Demartini, the
prosecutor, recalled thinking. He said he suggested that investigators find Mr.
Race "and see if they can flush out what really happened when he came into
the hospital and spoke to Stapleton."
The Truth
Comes Out
By then, Mr.
Race was 58, with a solid legal practice in Manhattan and dozens of murder
cases under his belt. He served on the alumni board of Brooklyn Law School,
mentored law students and donated legal services to a child-protection group.
He was in his second marriage and had four children.
On Oct. 8,
1998, he met with Detective Kaplan and two F.B.I. agents in a van near the
criminal court at 100 Centre Street in Manhattan. After the investigators
explained their quandary, Detective Kaplan later testified, Mr. Race took a
deep breath and said, "You know, this could get me in a lot of trouble,
but I'll tell you what happened."
Mr. Race
recalls that he was completely candid. "I never hesitated," he said.
"Mr.
Race stated that the story concerning male blacks assaulting Stapleton was
total fabrication," Detective Kaplan wrote in a summary of the meeting.
Mr.
Demartini says the lawyer later explained that he felt comfortable telling the
truth because the statute of limitations had run out on a prosecution for any
crime he might have committed. But Mr. Race says he knew he could still face
professional discipline.
At Mr.
Francesehi's murder trial in September 1999, Mr. Race took the stand and
admitted he had changed Officer Stapleton's story.
"Did
Ronald Stapleton ever tell you that a black man attacked him?" Mr.
Demartini asked.
"No,"
Mr. Race replied.
In closing
arguments, Mr. Francesehi's lawyer said Mr. Race was still lying. And even the
prosecutor who defended Mr. Race's credibility took a moment to denounce the
way he had labeled the killers as black.
"Is it
ironic that the perpetrator of this fraud is named Race?" asked the
prosecutor, Kenneth Taub. "I can't even begin to imagine what you think of
that scoundrel. It embarrasses me that he is in the same profession that I
am."
The trial
ended with Mr. Francesehi convicted of second-degree murder and sentenced to 25
years to life in prison. But Mr. Race's trials were just beginning.
The office
of the Brooklyn district attorney, Charles J. Hynes, reported Mr. Race to the
lawyer disciplinary agency for Manhattan, an arm of the Appellate Division,
which can impose sanctions as serious as disbarment.
Over the
next three years, his lie was analyzed by investigators, a referee, a review
panel and judges.
In hearings
before the referee, the agency's lawyer, Jeremy S. Garber, said that Mr. Race
should have known that his invented account could hinder the investigation or
the prosecution. The agency asked that he be suspended for a year.
But Mr.
Race's lawyer, Jerome Karp, argued that he should simply receive a private
letter of reprimand. A yearlong suspension, he said, would deter other lawyers
from admitting past mistakes. Had Mr. Race not been truthful when questioned in
1998, Mr. Karp said, prosecutors could never have convicted Mr. Francesehi - a
point that a prosecutor confirmed.
Mr. Karp
said his client "could very easily have said, 'Well, I don't remember
anything more than I said at the time.' He would have had no problem." The
family would have its pension benefits, he said, and a murderer would remain
free. "But he chose not to do that, even at the expense of his own career
as a lawyer."
Mr. Race
defended his fabrication. "Is it wrong? Yes." But he was trying to
"take care of the wife and kids."
"I
mean, who am I to play judge and jury?" he asked, adding, "I felt I -
I owed him something."
The referee,
Marjorie A. Lesch, ruled that lying by a lawyer is inexcusable. But when Mr. Race
lied, she said, he was an inexperienced lawyer moved by his police background
"to come to the aid of a fallen comrade." He did not impede the
investigation, she wrote, because his false account "was condoned and
given with the full knowledge of the
detectives
investigating the case."
She carved
out a compromise on the penalty, recommending a public censure, which would be
filed in court records and published in the city's legal newspaper.
But the
panel that reviewed her findings called for a three-month suspension. Any
penalty less severe, the panel said, "would suggest to the public and the
bar that an attorney who lies to the police during an official investigation
can be excused if the attorney has an arguably benevolent purpose." The Appellate
Division affirmed the suspension in
June 2002.
A Fair and
Painful Penalty
As part of his punishment, Mr. Race had to
destroy his stationery and business cards. He canceled his professional
telephone listing, withdrew from cases and notified his clients of his
suspension.
It was
actually four months before the court lifted the suspension, in November 2002,
and Mr. Race began practicing law again. Two years later, he works from a
second-floor-walkup office on Atlantic Avenue in Brooklyn.
Looking
back, Mr. Race said the punishment was fair, but painful and costly, in legal
fees and lost income. "I got killed," he said.
Mr.
Demartini, the former prosecutor, said the suspension was much too brief, even
though Mr. Race helped convict Mr. Francesehi. "It goes to the heart of
what it means to be a lawyer," he said of the lie. "You're supposed
to be trustworthy in all aspects of your practice."
Mr.
Francesehi, who is serving his sentence at Green Haven, the maximum-security
prison in Stormville, N.Y., said in an interview that he was innocent. He said
that he believed Mr. Race's initial account that the killers were black, and
that the lawyer changed his story to help close the case and make himself look
good. "I was used as a scapegoat," said Mr. Francesehi, who has
unsuccessfully challenged his conviction in state and federal court.
But not
everyone is displeased with Mr. Race. Ronnie Stapleton, the officer's son, who
is now 36, said the pension benefits allowed his mother to stay at home and
care for him and his autistic sister. The money was crucial about eight years
ago, when his mother suffered a brain aneurysm; she has since required
round-the-clock care. Despite the fears voiced by Mr. Race two decades earlier,
the benefits were not stopped even after the
true
circumstances of the case were divulged.
Mr.
Stapleton has not stayed in touch with Mr. Race, but said he believed that he
acted out of compassion - both in telling the lie, then recanting so the killer
could be caught. "He didn't have to step up," he said.
Vincent
Cestare Jr., the officer's brother-in-law and himself a retired New York police
officer, said he understood why Mr. Race risked his career by lying.
"There are some things in life," he said, "you make a decision,
you feel you did the right thing, you worry about the consequences later."
* * * * *
The
following article appeared on boston.com on September 26, 2004:
Mass.
gets tough on jury delinquents
By Jonathan
Saltzman
Massachusetts
has been quietly cracking down on the tens of thousands of people each year who
shirk jury duty, hauling them into courthouses across the state, and charging
the worst scofflaws with criminal offenses. Over the past eight years, the
tougher stance has helped cut by half the percentage of jury duty dodgers, and
state officials are planning new measures to drive down noncompliance even
further.
The hard
line on jury no-shows is part of an effort state officials say will make jury
pools more representative of the community and ensure fair judgments. It is
also part of a campaign to make people understand that jury duty is a civic
obligation everyone must fulfill, not an annoyance that the savvy and
well-to-do can skip.
Unlike other
states, Massachusetts is taking a particularly aggressive approach to tracking
down people who fail to report for jury duty, legal specialists and state
officials say. When a prospective juror fails to show up, the Delinquent Juror
Prosecution Program issues a series of warnings, which, if ignored, culminate
in an order to arrive in court, not
as a juror
but as a defendant in a criminal case. Faced with that choice, all but a few
comply.
Last year,
the state summoned 770,889 people for jury duty at 57 courts, according to the
Office of Jury Commissioner. Of those, 48,439 failed to show up and were
identified as delinquents.
That amounts
to a 6.3 percent delinquency rate for Massachusetts, which is comparatively low, according to G. Thomas
Munsterman, director of the Center for Jury Studies of the National Center for
State Courts, a Virginia-based nonprofit group. In other states, he said,
delinquency rates sometimes run as high as 40 percent.
Massachusetts
began its crackdown in 1996, when the Supreme Judicial Court ordered the Office
of Jury Commissioner to aggressively enforce jury duty laws to make juries
racially diverse and representative of the community. At the time, the state's delinquency rate was 13.3 percent.
A commission
formed by the SJC had found that members of minority groups in civil cases were
likely to get smaller awards from all-white juries than juries that included
minority-group members, and that minority criminal defendants were more likely
to be convicted by all-white juries than by mixed-race juries.
To achieve
the goal of diversity in the jury box, Pamela J. Wood, who became state jury
commissioner in November, said the state is aiming not to punish people who
duck jury duty, but to prod them to serve. On average, she said, about 85
percent of delinquent jurors annually agree to complete their jury duty, rather
than face criminal charges.
Asked
whether she thought using criminal charges as a threat was a heavy-handed way
to persuade citizens to fulfill their civic duty, Wood said: "No, I
don't."
"My
office's obligation is to provide the most diverse and most representative
juries that can be assembled to try cases in the commonwealth," she said.
The case of
the Rev. Ted Maynard provides an example of how the system works. Maynard, 25,
an associate minister at the Charles Street AME Church on Warren Street in
Boston, was summoned for jury duty in 1999, while he was a student at Harvard.
He mistakenly thought college students were not obliged to serve and ignored
several notices, until he received one that told him that the state had
summoned him to a hearing to determine whether he should face criminal charges.
That got his attention.
Last week,
Maynard raised his right hand in a downtown Boston courthouse and admitted his
mistake.
"It was
my fault," he told the clerk-magistrate who heard his case. "I would
love to serve."
The
clerk-magistrate accepted Maynard's promise and ordered him to report for jury
duty in Suffolk County before Oct. 6 to prevent a criminal complaint.
Maynard was
one of five delinquent jurors who showed up at the 11th-floor room overlooking
Post Office Square last Wednesday for a hearing.
Fifty-six
other delinquent jurors who had been ordered to appear for the hearing failed
to arrive in court. The state will now issue summonses for arraignment. If any
of them fails to show up in court for that, the judge can issue an arrest
warrant and fine the delinquent up to $2,000.
Persuading
people to report for jury duty has been a problem since the 1600s, said Jeffrey
B. Abramson, a visiting professor of government at Harvard, a former Middlesex
County prosecutor, and author of "We, the Jury: The Jury System and the
Ideal of Democracy."
"There
was no golden age where jurors showed up," he said.
Some people
go to great lengths to avoid serving.
In 1999, for
example, a Boston investment adviser was charged with being in contempt of
court and fined $2,000 for skipping out on the second day of a three-day civil
trial; the adviser lied to a court official about being home sick, when in fact
he had traveled to New Jersey.
A year
later, a worker at a Wareham gas station was handcuffed after a routine traffic
stop revealed that a warrant had been issued for his arrest for failing to
appear for jury duty.
Abramson
said Massachusetts's aggressive approach to ensuring that juries adequately
reflect the population's diversity sets it apart from other states.
"Most
states, generally speaking, just say, 'If you send out the jury summons notices
to a cross-section of people, you don't have to worry,' " he said.
"But Massachusetts says, 'You've got to take some affirmative action to
make it work.' "
In most
states, individual counties make and enforce the rules defining compliance with
jury duty. Massachusetts is one of the few states that has a unified, statewide
program, Wood said.
Some states
pursue jury duty dodgers randomly, she said, picking out delinquents to pursue,
much as the Internal Revenue Service decides which taxpayers to audit.
Wood said
that as far as she knows, Massachusetts is unique in vowing to track down every
scofflaw. She said she wants to cut the already low delinquency rate further
with a soon-to-be-installed $1 million software system to keep track of
residents' whereabouts by more quickly updating current addresses.
She also
plans to hire a lawyer whose job would include pursuing delinquents. Because of
budget cuts in 2002, the Delinquent Juror Prosecution Program had been
operating with reduced resources. Until Wood's appointment, the legal counsel
in the office, John P. Mulvee, was serving as acting jury commissioner, in
addition to pursuing delinquents.
Even before
the delinquent program was launched, Massachusetts had done a good job ensuring
juror participation by making jury duty as palatable as possible, Munsterman
said. In 1988, it became the first state to adopt a statewide system called
"One Day, One Trial," in which jurors serve for one day or the
duration of one trial. About 98 percent of jurors completed their service
within three days last year, according to court officials.
The state
broadened jury pools by eliminating a host of exemptions. For years, the state
had granted automatic exemptions for lawyers, doctors, clergy, firefighters,
and police officers, among other professions, based on the belief that these
people's jobs were too demanding for them to serve as a juror for several
weeks. As a result, juries often consisted mostly of retirees and homemakers.
Today, the
state has limited the list of people automatically disqualified. Among those
excluded are people age 70 or older who do not want to serve, those who cannot
understand English, people who have physical or mental disabilities, and people
who have responded to a summons for jury duty within the past three years.
These people may still be summoned, but they merely need to notify the court to
be excused.
In addition,
everyone summoned for jury duty is entitled to one postponement of up to a
year. As Munsterman put it, "Everybody loves jury duty, but not this
week."
* * * * *