Gotham Gazette

The Place for New York Policy and politics


Criminal Justice

Suing for Gun Control

Mean Streets
Othniel Askew used a handgun he purchased in North Carolina to kill City Councilmember James Davis inside City Hall. Two months later, during the West Indian American Day Parade, which takes place in the Brooklyn neighborhood where Davis served and which this year was dedicated to his memory, a man named Anthony Bartholomew was shot in the head and killed.

The shootings are just some of the latest, and most publicized, examples of gun violence in New York City. Vincent Rodriguez, an 18-year-old student at Martin Luther King High School, sneaked through a side door with a semi-automatic pistol in January 2002 and opened fire on two fellow students. Both were seriously injured, and one boy, Andrel Napper, still has a bullet lodged near his spine.

On a November afternoon in 2001, five-year-old Romel Jenkins, who was on a walk with his family, and 25-year-old Sergio Camargo were killed by stray bullets, caught in the middle of a Bronx gunfight. They were among the 353 who died from guns in the five boroughs that year, the latest for which statistics are available, according to the city’s Department of Health and Mental Hygiene. "There is no more serious public safety issue for New Yorkers than guns," said John Feinblatt, the city's criminal justice coordinator.

The New York City Council, witness to Davis' shooting in council chambers, is now pushing a series of new gun control laws. But the initiatives don't only seek to tighten New York City's restrictions on gun sales, already some of the toughest in the country. They also would, controversially, provide a way for family members of people killed or injured by guns in New York City to sue the guns' manufacturers for damages.


Ideas about the best way to end gun violence in New York City have been debated for decades. Just last year, the city began a “Cash for Guns” program; over 2400 guns have been turned in so far. Since 1980, judges in New York state have been required to sentence people convicted of possessing a loaded, illegal gun to at least one year in jail. However, the law has a loophole, and judges who find that one year is “unduly harsh,” can give an alternative sentence; in 2001, less than half of those convicted were sentenced to a full year in jail. Some, like Feinblatt, the city’s justice coordinator, believe that the state government should work to close this loophole, which he said is so big “you could drive a Mack truck through it.”

Reading NYC
Geoffrey Canada's memoir, Fist Stick Knife Gun, is Gotham Gazette's Reading NYC Book Club selection for September -- join us at the Borders bookstore at 100 Broadway (across from Trinity Church) at 6 p.m. on Wednesday, September 24 for a discussion of the book.
But many also see keeping guns from getting to the streets in the first place as a crucial way to stop the violence. "I listen with concern as one suggestion after another is proposed as the one cure-all for dealing with violence among the youth of America. One shot gun buy-backs, tougher sentencing for youth caught with guns, so called boot camp programs, quick-fix conflict meditation, metal detectors in schools - the ideas go on and on while the complexity of the issue of violence is ignored and the death toll continues to rise," writes Harlem Children's Zone director Geoffrey Canada in his memoir about growing up in the Bronx, Fist Stick Knife Gun, "Part of the problem is that most current policy makers fail to address the problem of the sheer availability of guns."

Canada's sentiments are not unusual in New York, where the gun industry wins no popularity contests. In 2000, when the National Rifle Association proposed building a theme restaurant, with grilled wild game and a skeet-shooting arcade in Times Square, residents and politicians slammed the plan, and the City Council overwhelmingly passed a resolution condemning it.

That same year, New York state tightened gun laws, raising the minimum age to qualify for a handgun permit to 21, requiring new handguns to have trigger locks and establishing a database that tracks crime guns. The state requires anyone who buys a firearm to undergo a background check.

But despite these tough new laws, guns -- bought from gun dealers in states with looser restrictions -- continue to pour in to New York's streets. Some 80 percent of all guns used in crimes in New York were not purchased here. According to a 2000 report by the United States Bureau of Alcohol, Tobacco and Firearms, most of the guns came from seven states in the South with weak gun laws. Many New York City crime guns are first bought by people called "straw buyers," who buy in bulk in states with looser gun laws and make a profit by selling guns illegally to northern buyers.

While Askew, councilmember Davis' killer, legally bought his own gun in a North Carolina store, he did not have a permit to carry the gun, a .40 caliber pistol, in New York.


Because they cannot change the laws in other states and are doubtful that new federal gun sales restrictions will happen under the Bush administration, New York City gun control advocates and local politicians are now looking to the courts to try to change the way guns are distributed. They are inspired by the successful lawsuits against the tobacco industry and a recent case against the gun industry itself.

In Brooklyn this summer, U.S. District Judge Jack Weinstein threw out a major lawsuit against the gun industry, but at the same time found that gun manufacturers have been careless in how they distribute guns, and have put the public at risk.

In the suit, the National Association for the Advancement of Colored People argued that 45 gun manufacturers and distributors, including Smith & Wesson Corp. and Glock Inc., know that certain gun dealers follow practices that make the guns they sell more likely to end up harming people in black and Latino neighborhoods, but do nothing to stop them. New York City itself has a case pending in federal court that makes a similar argument, saying that the illegal firearms that end up in New York City are a public nuisance.

The NAACP's lawyer, Elisa Barnes, built her case against the gun manufacturers on information from the Bureau of Alcohol, Tobacco and Firearms that showed the sales histories of guns recovered at crime scenes from 1995 to 2000. The information showed that a small percentage of gun dealers sold guns that quickly ended up in criminal hands; only seven percent of more than 200,000 U.S. gun dealers were responsible for selling all of the crime handguns that, within three years after their sale, were recovered throughout the country.

Barnes argued that the gun companies were aware of this information, and could have avoided selling to these dealers. "Small variations among manufacturers' practices could make a big difference," said Lucy Allen, an economist who analyzed the information for the NAACP. The suit did not ask for money in damages but sought a court injunction that would force manufacturers to change their practices and restrict the ways that they distribute guns.

Gun manufacturers and gun advocates say that companies should not be responsible for the illegal use of a legal product. "There are other things you do with a gun besides kill people," said Amy Heath, from the New York State Rifle and Pistol Association. But in the Brooklyn trial, the judge found that the companies indeed were responsible, and threw out the case only because the NAACP had not effectively argued that its members were uniquely harmed.


On the first hearing of the council's public safety committee since the death of James Davis, who was one of the committee members, the council discussed six new gun control bills, including new restrictions on the sales of rifles and shotguns (handguns are controlled by the state legislature). But much of the debate was about turning to the courts to fight for gun control.

Councilmember David Yassky sponsored a bill designed to change how gun manufacturers distribute guns across the country. Intro 197 would make manufacturers whose guns are used to hurt or kill New Yorkers liable, unless they follow a code of conduct. "The gun industry knows exactly what they need to do to prevent these injuries and they ignore it," said Yassky.

The code of conduct includes not selling weapons to dealers whose guns repeatedly end up in criminal hands, and not selling weapons at gun shows where sellers don't use background checks. Yassky has also proposed having the New York Police Department only buy from gun companies that follow a similar code of conduct.

"The cure to the gun violence epidemic lays in making the gun industry liable for its irresponsible, unethical, reckless distribution of guns," said Sara Alcoff, who founded the Brooklyn chapter of the Million Mom March with Johnnymae Robinson, whose son was shot to death in 1999.

At the hearing, Alcoff read a statement from Robinson: "[I am the] mother of three sons, now minus one due to illegal guns running rapid on the streets of NYC... Please help to save a mother the pain of sitting with a person to decide what color coffin or what words need be said to tell the story of one whose life was taken so soon."

A panel of gun advocates said at the hearing that holding gun companies responsible for gun crimes is like saying that a car company is responsible for the deaths caused by a drunk driver. "I can't see how Kahr Arms can be responsible for criminal misuse of its product," said Randall Casseday, a spokesperson for the company, which sells guns to the city's police department.


Saying that in New York "there is no safe way to use a handgun," Councilmember Eva Moscowitz introduced a bill that goes even further than Yassky's. Intro 487 would make gun companies strictly liable for damages caused by a gun in New York City, regardless of how the company distributes its guns.

John Feinblatt, the city's criminal justice coordinator, said that, as Moscowitz' law is now written, if a police officer's gun is stolen and used, the gun industry would be liable, as they would be if a gun is used in a suicide. "The threat [of lawsuits] would effectively prevent the gun industry from selling guns in New York City, even to the New York Police Department," said Feinblatt.


As the city council discusses making it easier to sue gun companies, lawmakers in Washington are pushing to make gun manufacturers immune from the types of lawsuits brought by the NAACP and New York City. The House of Representatives passed a bill this spring that would make companies immune, and a similar bill, with 54 sponsors, is now in the Senate.

Some gun control advocates worry that Moscowitz' bill, because it is so broad, could backfire. It may become something that supporters of immunity could site as an example of why companies should be protected, said Jim Kessler, director of Americans for Gun Safety. “The Moscowitz bill, I think, gives ammunition to the gun lobby, because it says [those suing the manufacturers] aren’t interested in better behavior, they are interested in putting gun manufacturers out of business,” he said.

The same morning that the mayor's criminal justice coordinator, Feinblatt, was giving his arguments against Moscowitz' bill in the City Council, Mayor Michael Bloomberg sent a letter, along with mayors from Chicago and Los Angeles, to the country's senators, calling on them to oppose the federal immunity legislation.

In his weekly radio show, the mayor said, "You should be able to sue [the manufacturers] and prove to a jury that they acted negligently or recklessly... Everybody wants the murder rate to come down. The only way you are going to get the murder rate down is to get the guns off the street."


A Report On Violent Teen Relationships

Children who witness violence between their parents are at the greatest risk for becoming victims of violence themselves in teenage and young adult romantic relationships, according to a 20-year studypublished in the August issue of the Journal of Consulting and Clinical Psychology.

Witnessing violence between parents also increases the chances of a child being a perpetrator of violence in future relationships, and of having serious behavior problems (conduct disorders). And children who have been excessively punished are also significantly at risk for becoming perpetrators of violence against their partners.


According to Dr. Miriam K. Ehrensaft, who authored the study with other researchers at Columbia University College of Physicians and Surgeons and New York State Psychiatric Institute, it is not surprising that witnessing violence shows up as an indicator on both the victim and perpetrator sides. "Being a perpetrator and being a victim are highly related phenomena," said Ehrensaft.


The link between excessive punishment and a tendency toward partner violence later on is a new finding for these researchers. "We knew that punishment was related to kids' aggression in general, and a host of bad outcomes later on," "said Ehrensaft, "but we didn't know the relationship with partner violence."


Another significant finding is the route that child abuse takes to show up in partner abuse statistics. "What we figured out from this study is that child abuse works through conduct disorder," explained Ehrensaft" "If a child is abused, they are more likely to develop conduct disorder, and that then puts them in line to be a violent partner."


In New York City, approximately 10 percent of domestic violence victims treated at New York City public hospitals are under the age of 20, according to Department of Health statisticsreleased by the Mayor's Office to Combat Domestic Violence.


The City's domestic violence hotline received 10,574 calls from teens in 2002, which was up 54 percent from 2001. As of July of this year, they already received 7080 calls, suggesting another spike for 2003.


This spike does not necessarily mean that there is more partner violence among teens in New York City than before. It may just be that more of them know where to call. According to the city's domestic violence commissioner Yolanda Jimenez, "Teen hotline calls increased after the City's 1997, 1998 and 2000 public education campaigns directed towards teens, which suggests that the campaign was successful in reaching our target audience."


Violent behavior by a partner is highly resistant to treatment, the new study reports, but author Ehrensaft recommends prevention programs for children prior to adolescence, before the use of violence and coercion as a means of resolving conflicts become totally ingrained in the child. These programs would target children exposed to various types of damaging environments.


"Most existing dating violence programs aim to change attitudes about violence from men to women," said Ehrensaft. "These are generally successful in changing attitudes but not in reducing actual levels of violence between young dating partners. Also, few programs have followed teens over time to test whether the programs had long term effects."


There are several existing programs provided for adolescents in New York City (see accompanying box) and the trend is to target younger and younger children.


" The Mayor's Office to Combat Domestic Violencebelieves that violence prevention programs should begin as early as possible and progress through high school so that abuse does not become an acceptable norm," commented Commissioner Jimenez. "Early violence prevention can break the cycle of violence that leads to teen dating violence and adult domestic violence."

Domestic violence research is still a young field, according to Ehrensaft. "A lot of interventions have gone on using clinical experience and common sense, but only recently are we bringing science into the picture. And we really need that science to go forward and help people, just like with any medical disorder that needs to be backed by science."

Ehrensaft's next research project will likely build on this work, using science to find out what exactly is the process that puts kids with conduct disorder at risk for partner violence "We figured out that child abuse links up to conduct disorder. But we still need to do more research to find out what that process is so we can help those kids--and prevent bad relationships."

. . . . . . . . . . . . . . . . . . . . . . . . . .


Adopt-A-School Relationship Abuse Prevention Program ("RAPP") (In pdf format)
In 20 city high schools to promote healthy relationships intervene in the cycle of teen relationship abuse, and work to prevent destructive patterns of relationship abuse from extending into adult relationships.

New York City Department of Youth and Community Development (DYCD)
Funds organizations and programs to provide Violence Intervention and Prevention programs targeting youth who are at risk of becoming involved in violence or who have already exhibited violent behavior.

DYCD Youthline 1-800-246-4646
TTY 1-800-246-4699

Youthline is a toll-free 24-hour a day seven days a week confidential and anonymous crisis intervention and resource line for youth, their families and concerned service providers. Youthline has a paid staff of highly trained high school and college students.

The New York City schools have implemented violence prevention programs over the years in various elementary and middle schools. These programs include:

• Second Step developed by Committee for Children based in Seattle, WA

• Resolving Conflict Creatively developed by Educators for Social Responsibility Metro with the New York City Department of Education

• Safe Harbor developed by Safe Horizon

• Speak Your Peace developed by Center Against Domestic Violence (currently in the intermediate School for International Studies)

• Students Advocating Against Violence Initiative (SAAVI)

• Project Charlie

Mt. Sinai Adolescent Health Center
312 East 94th Street
New York, NY 10128

STEPS to End Family Violence
1968 Second Avenue
New York NY 10029
INCLUDES a group for teenage boys who have abused a girlfriend or mother.

Safe Horizon Youth Division
189 Montague Street, 6th Floor
Brooklyn, NY 11201
718-624-2111 ext. 22

Center Against Domestic Violence
25 Chapel Street, 9th Floor
Brooklyn, NY 11201

Children's Aid Society Family Wellness Program
Offers services for victims, perpetrators and children.

The Door
555 Broome Street
New York, NY 10013
Serves domestic violence victims ages 12-21
Services in English, Spanish, Chinese

Maimonides Theater Network for Teens
Maimonides Medical Center
902 48th Street
Brooklyn, NY 11219
718 283 7861
This prevention program has been around for almost 20 years.

Yankee Rep Fork in the Road Players
157 East 3rd Street #D
New York, NY 10009
917 441 4171
This email address is being protected from spambots. You need JavaScript enabled to view it.
This is a theater group that performs a play on dating violence in high schools and teen centers.

The NiteStar Program
St. Luke's-Roosevelt Hospital Center
St. Luke's Division
1111 Amsterdam Avenue, Scrymser 1
New York, NY 10025

Hetrick-Martin Institute
2 Astor Place, 3rd Floor
New York, NY 10003
Services for same sex relationships

Jewish Board of Family and Children's Services
120 West 57th Street
New York, NY 10019
212 582-9100

Family Violence Hotline
NYU Child Study Center
Excellent program that works with parents of children who are at risk for developing behavior problem.

ART Programs

Additionally, there are organizations that do art with children affected by domestic violence who are in DV or homeless shelters:

  • Art Start Simon Fulford is the executive director 212-966-7807 ext. 1
  • Oyster Arts Caleb Jensen is the executive director 212 475-8900
  • Free Arts for Abused Children Corinne Arles is the Program Director 212 974-9092

(Our thanks to Christina Alex, Research Coordinator at the Mayor's Office to Combat Domestic Violencewho provided most of this program information.)

Lynda Crawford wrote the social services topic page for Gotham Gazette, and has written for City Limits, New York Woman, The New York Observer, and The New York Daily News.
































Summertime Unemployment. Also: Kinship Foster Care

For too many New Yorkers, the summer of 2003 has turned out to be the proverbial rainy day. Unemployment remains high, particularly among certain ethnic and age groups. There is a shortage of new jobs, which some unemployed workers blame on public priorities, such as giving federal funds meant for the recovery from 9/11 to residents of luxury housing in Battery Park City, rather using them to create jobs to replace those lost after the disaster.

In the coming year, unskilled job hunters will have fewer resources to help them compete with skilled workers for those vacancies that exist. Low-wage workers will face new hurdles in claiming the Earned Income Tax Credit, one of the few tax breaks targeted to the poor. And grandparents trying to raise grandchildren on Social Security checks or part-time paychecks may be better informed about their right to trade their privacy for government income assistance.


The New York State Comptroller’s Office estimates that New York City has lost nearly half of the jobs gained in the eight years of prosperity ending in December 2000. As of May 2003, the unemployment rate for the city had dropped to 8.1 percent, from its February high of 8.8 percent.

Some groups within the city are experiencing much higher unemployment rates. Among the city’s Hispanics, more than a quarter are unemployed, according to a recent poll by CBS and the New York Times. African-American men have lost the highest percentage of jobs since 2000, according to the Community Service Society. Out of every three city teenagers aged 16 to 19 who want to work, one is unemployed; this is almost double the national average. Of adults who have jobs, men aged 45 to 54 are the most likely to be laid off.


Unemployed workers protested repeatedly in downtown Manhattan during July and August, against the use of federal grants by the Lower Manhattan Development Corporation, which is distributing the funds to residents of lower Manhattan. The workers called for 60,000 new jobs to be created, using $1.2 billion in federal aid. The corporation has helped distribute $17 billion already to businesses, organizations and residents involved in the rebuilding effort, but has not directly funded job creation.

The Lower Manhattan Development Corporation controls about $280 million in federal rent subsidies and grants available to downtown residents in the wake of the attack on the World Trade Center. Low-income Chinatown tenants can apply for grants, but many have been rejected because they lack formal written leases or their landlords have failed to repair building violations. The corporation has $50 million left over from these residential funds, with which it plans to subsidize middle-income housing units within future luxury housing developments in the downtown area.


Last year, the city had a $151 million budget for job training and employment services. This sum included $57 million in federal Workforce Investment Act funds that the Giuliani administration had failed to spend. This year, the city has only $58 million for job training, and will have to sharply scale back its programs.

On July 16, Mayor Bloomberg formally transferred adult workforce programs from the city’s Department of Employment, which has been eliminated, to the Department of Small Business Services. The three programs transferred include the city’s three existing One-Stop job centers, and a fourth which has not yet been developed; these offer job hunting assistance to all New Yorkers, regardless of income. There is also the Individual Training Account program, which gives job hunters vouchers to pay for training at approved private providers; these have been put on hold until September. Third, the city holds contracts with 39 organizations offering job training and employment services to special populations and dislocated workers. Among others, “special populations” include former prison inmates, people with disabilities, and those with limited English language skills. The contractors have been told that their funds will be cut by two-thirds in the coming year.


Low-income working people -- such as childless adults earning less than $10,710 in 2002 -- are eligible for the Earned Income Tax Credit, which reduces their federal income tax obligations. The lowest-paid among them get a small check even though they owe, and pay, no taxes at all. The tax credit has become one of the largest sources of federal aid to the poor, with $32 billion in claims for last year. New York City households received $1.2 billion from the tax credit. Currently, one in 64 people who claims the Earned Income Tax Credit is audited.

The Internal Revenue Service believes that one in every three or four claims is not legitimate, often because children whose parents live in separate homes are claimed by both households. The agency announced in June 2002 that it would begin a pilot enforcement program in August 2003, under which 45,000 people would have to prove that their children lived with them for at least half of the year, before they could file claims for the tax credit. Opposition by advocates for the poor led the Internal Revenue Service to postpone the enforcement pilot until January 2004.

Eventually, anyone who files a claim for the Earned Income Tax Credit will have to provide such proof for each child listed as a dependent, except for married parents and single mothers. The requirement will affect grandparents, foster parents, stepparents, and single fathers.

The current application process requires 53 pages of instructions and worksheets. The New York City Department of Consumer Affairs estimates that 230,000 eligible city residents are not claiming the tax credit each year, for a combined loss of nearly $500 million. Many more spend part of the tax credit on the services of tax preparers who fill out the forms.


When children live with relatives other than two parents or a mother, their adult guardians face extra paperwork whenever they deal with authorities on behalf of the children. The forthcoming Earned Income Tax Credit demand for proof of the child’s residency, described above, is one such requirement.

Census data indicate that nearly one in four of the grandparents raising grandchildren in New York City is living in poverty. Many raise their children’s offspring with no support from the formal foster care system. Often they are not aware that they qualify for welfare, food stamps and services such as home care, day care, and counseling. Another option that grandparents may not know is that they—or any relative—can apply for formal foster parent status.

Child welfare workers will have to tell grandparents that they can become legal foster parents to their grandchildren, if Governor George Pataki signs a bill recently passed by the state legislature. Grandparents who choose this option receive a monthly stipend for each child, and the legal right to make decisions about the children’s schooling and medical care.

However, some grandparents who know about kinship foster care decide not to get involved with it. If they apply to be legal foster parents, the child welfare system will investigate their background and living situation, and gain the right to take the children away from them for breaking rules that natural parents do not have to follow. Once a child is in state custody—which must happen before grandparents can become foster parents—the system will seek to find a permanent home for him or her. The grandparents will be urged to adopt their grandchild, taking away their own children’s parental rights, or face losing the child to an unrelated adoptive family.

Linda Ostreicher, a former budget analyst for the New York City Council, is a freelance writer and consultant to nonprofits. She is currently on the staff of Bronx Independent Living Services.



Also in the series:

The Judges Game
Gotham Gazette's newest interactive game lets you see if you've got what it takes for the Brooklyn bench.

The Courts of New York Explained
An overview by Supreme Court Justice Emily Jane Goodman -- first published here three years ago, but nothing much has changed.
Rival candidates ShawnDya Simpson and Dawn Jimenez spent their summer collecting signatures on the streets of Brooklyn, raising money, passing out flyers at subway stops and getting endorsements from political clubs and elected officials.

The one thing they did not do is let voters know where they stand on any issues -- not on housing, not on crime, not on taxes.

That is because the two women are facing off for Civil Court judge, a job which is supposed to be non-political. "Judicial candidates are not allowed to take positions on issues," said Jacob Walthour, Simpson's campaign manager and her husband. "They must remain independent, objective and fair."

While the office itself is supposed to be removed from politics, getting into such an office in New York City could not be more political.

Simpson and her opponent, Jimenez, who is already a Housing Court judge, have hired political consultants, accused one another of "carpet bagging" since both recently moved to Brooklyn, and attacked each other in the press. (Electing Simpson would give Brooklyn Democratic boss Clarence Norman "a new lease on life," says one side; Jimenez has surrounded herself with "shady characters," charges the other.) In other words, they have acted like politicians.

But tough campaigning is the least of the problems in New York's judicial system.

In the last year, three Brooklyn State Supreme Court Judges have been removed from their seats for bribery and other illegal activity. Brooklyn District Attorney Charles Hynes is currently investigating Brooklyn Democratic Party Chairman Clarence Norman, looking into whether the party is selling judgeships.

Even if there were no scandals, the city's court system is so confusing and complex that it takes a New York State Supreme Court Justice to explain them (see "Guide to the Courts" by Justice Emily Jane Goodman).

Some say the system needs a complete overhaul. Others say that this will never happen, thanks to politics. Indeed, a plan created by the top judges of the state to reform and restructure the court system has been stuck in the state legislature for five years.

Meanwhile, the battles rage on.


"If you want to study how not to pick a judge," a recent editorial in the New York Times began, "the borough of Brooklyn is available."

Last year, former Supreme Court Justice Victor Barron pleaded guilty to taking bribes to fix divorce and child custody cases and is currently serving a sentence of three to nine years in prison. This summer, Supreme Court Justice Gerald Garson was indicted on charges that he fixed a divorce case in return for money and gifts. And Justice Reynold Mason was removed from the State Supreme Court for illegally taking money from an escrow account on a rent-controlled apartment in Flatbush, and using the money to make child support payments and political contributions.

The Brooklyn D.A.'s investigation of Clarence Norman includes a look at allegations that Norman demanded money from candidates for office in return for his endorsement. Candidates have told prosecutors that the party bosses demanded cash payments and required them to hire specific consultants. Anyone who does not go through the process, the candidates allege, is almost assured of defeat.

Beyond the specific charges of illegal activity, many say the entire system of electing and selecting judges is a game of political patronage.

For example, in order to become a State Supreme Court Judge in Brooklyn, a candidate must be selected by Chairman Norman. Those candidates are then referred to a screening panel that is also appointed by Chairman Norman. The 42 Democratic District leaders, who often have strong ties to the party, then screen the candidates. Finally, the judges are selected by a judicial convention, made up of various friends, relatives, business partners and employees of the party overseen by Chairman Norman.

Only after this process, does the voter, who often has no idea who the candidates are or how they were chosen, select a State Supreme Court Judge, who will serve on the bench for 14 years.

"There's a general feeling out there that the party has become a laughingstock of the state," Alan Fleishman, a Brooklyn Democratic district leader, told Newsday.

Brooklyn is not unique. Every borough runs in a similar fashion, which means that the city's judges are often selected more for their loyalty to the party than for their qualifications.


The "Tweed" County Courthouse that sits behind City Hall is a reminder of the historical links between corrupt politics and the courts in the city.

Built between 1862 and 1870, the old county courthouse with its arched windows and sunlit rotunda was supposed to cost $250,000. It ended up $13 million over budget, much of which was stolen by Tammany boss William M. Tweed and used for his Democratic political machine. (The building underwent another $100 million renovation beginning in 1999 and today houses offices for the Department of Education.)

The scandal surrounding the Tweed Courthouse helped spark two efforts for judicial reform in New York.

At the same time, citizens began to think that the system of elected judges, set out in the state's 1846 Constitution, wasn't such a good idea. The introduction of appointed judges became an attempt to keep the political parties out of the judicial system and streamline the system. In 1870, the Association of the Bar of New York City was founded to provide standards for lawyers and judges.

Today in New York City, judges are selected through a mix of elections and appointments. The mayor appoints local judges in Criminal and Family Courts. Elected judges serve on Civil, Surrogate's, and Supreme Courts.

But the fundamental argument is still unresolved. Should judges be appointed or elected by the people?

Advocates of appointment argue that judges cannot be independent if they are worried about raising campaign funds, presenting a public image, and are involved in a political process that is often corrupt. Most voters, they say, have little interest in or knowledge about judges running for seats.

Advocates of elections argue that judges should answer to the law and the people it sets out to protect, not the policymakers who appoint them. They criticize the mayor and the governor for using their political will in selections and say that appointed judges do not reflect the ethnic composition of the city.

And court positions still have plenty of connections to elected politicians, powerful lawyers, and local political parties vying for bragging rights. Although the starting salary of $125,600 a year for a Civil Court judge doesn't compare to what a lawyer can make in private practice, a local judgeship carries the prestige that can launch a career in politics or lead to promotions to higher courts.

With so much at stake, true reform is difficult.


Jonathan Lippman, the Chief Administrator of State Courts, has called the New York City courts "the most complex, arcane court system in the country."

The city's court system, which produces about half of all the cases in the state, is a maze of trial divisions.

One example of how unwieldy the system can be is in how family issues are handled.

Child custody and visitation are handled in Family Court, but divorces can only be addressed in Supreme Court. So a family in a divorce can find itself bouncing back and forth between both courts, spending twice as much time and money than if it went through the same case living in the suburbs. Adoptions can be handled in either Family Court or Surrogate's Court depending on the conditions. If criminal charges such as abuse are involved in a domestic case, then it can spill over into Criminal Court.


In response to the Brooklyn judicial scandals, some changes have been made.

In July, the Brooklyn Democratic Party released the names of the 27 candidates running for State Supreme Court for the first time in the city's history; in the past these names were kept secret. And the party was also looking at new ways to appoint independent lawyers to the judicial screening panel.

But many legal reform groups say the whole system must be overhauled and favor a kind of third way known as merit or nomination systems.

A merit system uses nonpartisan commissions of lawyers and non-lawyers to find applicants for judgeships. The commission then submits the applicants to an appointing authority. For re-appointments, the judges are evaluated by commissions or voted on in an uncontested election.

In New York, judges in the Court of Appeals are selected through what its backers call a merit system, what its critics call a system of political appointment. But even proponents of a merit system concede that they won't be a widespread part of the New York courts anytime soon.

As far as the overall court structure, Chief Administrator of the State Courts, Jonathan Lippman and Chief Judge Judith Kaye first introduced a plan to reform the New York trial courts system in 1997. Numerous good government and judicial reform groups have supported the proposal.

Five years later, the proposal is still sitting in Albany.

"Judgeships are the last bastions of political patronage," said Barbara Reed of the Fund for Modern Courts. "They allow local party leaders to maintain control."


Murder in City Hall

In the short time since Councilmember James Davis was murdered July 23rd in the City Council's chambers on the second floor of City Hall, New Yorkers have struggled to make sense of this homicide, to little avail. Our bafflement is in part due to the historical peculiarity of the crime. Until Wednesday, City Hall was, and always had been, one of the safest places in New York. Davis's murder was unprecedented. Historians have been unable to find any record of any other murder in City Hall itself.

Just as puzzling as Davis's brutal murder is his public persona that combined charm and coercion. He was an affable, charming, conscientious official who had fought powerful establishment organizations--the Brooklyn Democratic machine and the City Council leadership--but maintained friendships with his opponents. Indeed, his two most influential antagonists, City Council president Gifford Miller and Brooklyn Democratic boss Clarence Norman, both praised him lavishly after his death. Even his killer, Othniel Askew, was a political rival whom he had befriended and, he believed, won over. Yet Askew's rage was so great that he emptied his gun into Davis's body, shooting all seven bullets, according to Police Commissioner Ray Kelly. Kelly also said Askew was carrying more bullets in his sock.

The only mayor ever gunned down while in office was William Gaynor, who was shot across the river from City Hall, in Hoboken, New Jersey, in August 1910. James Gallagher, a former city employee who had been laid off during Gaynor's fiscally stringent administration, leapt to the podium where Gaynor was speaking and shot him in the back of his neck, just below his right ear.

Gallagher had repeatedly written the mayor and other officials and shown up at City Hall, asking to be reinstated in his job. After he was wrestled to the ground by a mayoral bodyguard, he was found to be carrying in his pocket a letter from the mayor's secretary: "He can do nothing for you in the matter in which you write."

The city was stunned. A mayoral aide said that "public office is no longer safe." State legislators apparently agreed, and passed the Sullivan lawin 1911, which required that handgun owners apply for permits from the police department. This was the first step in the long process culminating in New York City's having the most stringent gun control procedures in the country--procedures that were not successful, however, in keeping a gun out of the hands of Davis's killer. In fact, Askew had followed the well-worn path of thousands before him by buying a handgun in North Carolina, which has almost no gun regulation, and transporting it to New York, probably by truck. Commissioner Kelly told New York One that "we're plagued by guns bought elsewhere," naming such Southern states as Georgia and Alabama.

Councilmember Davis was himself armed. As a former police officer, he held onto his service weapon and to the permit that came with it. Acquaintances said he was proud of the gun and would sometimes whip open his coat to show it. One of the most sensible recommendations subsequently implemented at City Hall is a ban on all guns other than those carried by police officers on duty. Most New Yorkers are surely amazed to have found out that procedures were ever otherwise. After all, a gun permit does not entitle the holder to carry a gun everywhere.

Mayor Gaynor survived his shooting for three more years, but in great pain, with the bullet permanently lodged beneath his right ear. Councilmember Davis was dead on arrival at the hospital that afternoon. Both were murdered by angry men, perhaps deranged men, in circumstances in which they should have been safe. Gallagher was found to be suffering from paresis and was confined to the New Jersey Hospital for the Insane, where he died, according to Gaynor biographer Lately Thomas. Askew's life is now being investigated by the NYPD, though his family expressed surprise and shock at the killing.

Ironically, during a July 17 interview with Brooklyn-based freelance writer Carla Thompson, the late council member spoke of the importance of psychological testing in the issuance of gun permits. "We are failing across the board in psychological testing. People who have gun permits need to be screened," said Davis. He recommended screening for potential foster parents and cops on the beat. "[Cops] are screened at first, but who's to say he or she doesn't get burned out? They need to be re-screened." He added, "You can't check enough. When you have a wait-and-see attitude, tragedies happen."

And a tragedy did happen, though we do not know yet whether Askew--like his predecessor Gallagher--was mentally unstable. What we do know is that the ancient principle of assassinations still stands--a killer who is willing to die cannot easily be deterred. Add to that the oddity of Davis's having let his murderer bypass the gun-detection machines and we have a new scenario for the future: everyone, including the mayor and visiting dignitaries, will be required to go through security machines.

What are we to conclude from this murder carried out in the very heart of City Hall? First, the NYPD performed flawlessly. A young plain-clothes officer shot and killed the assailant, without wounding any bystander. Second, the NYPD moved into a high terrorism alert, but calmly and methodically. As it uncovered the facts of the homicide, the department reopened the Brooklyn and Manhattan bridges and Lower Manhattan.

This murder did not represent a lapse in police judgment requiring punishment or reform, but rather a lapse in judgment by the promising politician who waved his killer past police barriers.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

When To End A Child's Life Support

Last New Year's Eve, a three-year-old child in Brooklyn suddenly collapsed, had a seizure and was rushed to Kings County Hospital in Brooklyn. The doctors inserted a tube in her throat to breathe, and another tube through to her stomach for nourishment.

The child never regained consciousness.

Thus was the beginning of a case that has resulted in a humane decision by Supreme Court Justice Doris Ling-Cohan, one that would not have been necessary if the New York State Legislature would pass a bill called the Family Health Care Decisions Act.

The Case

The doctors diagnosed the child as having suffered "massive loss of brain functioning" from an abnormal rate of heart muscle contractions. The child, the doctors concluded, would remain permanently unconscious, totally unaware of her environment, without the ability to think or interact - a vegetative state..The child was kept alive by a mechanical ventilator and the feeding tube.

The child's mother visited the unconscious child every day. Unwilling to continue to watch her daughter suffer without hope of recovery, the mother consulted the doctors, the hospital's medical ethics team, her family, and the child's father on whether to terminate life support. All parties agreed that ending life support was in the best interest of the child and the mother was fully capable of making that decision.

But the Health and Hospitals Corporation, the city agency that oversees the hospital, refused the mother's request.

Why The City Refused

In denying the mother's request, the Health and Hospitals Corporation cited its policy that prohibits staff from withdrawing or withholding care without the individual's consent.

The policy is rooted in the legal recognition that competent adults may refuse treatment. Children, however, cannot make this decision because they are not old enough. The question then arises, who can make that determination on behalf of a child in a vegetative state?

Most states, recognizing the care and love of family members, have left this determination to the family. New York, however, has not.

In 1981 the New York State Court of Appeals, the highest court in the State, ruled that the state is responsible for making the determination on behalf of a child and can supersede the wishes of the family. That case, Matter of Storar, found that the state serves as the omniscient parent for the public and may supercede a family's refusal to treat an individual.

Throughout the 1980's and 1990's most states began to recognize a parent's right to refuse unwanted medical care on behalf of their child in consultation with doctors without receiving court approval. In 1993 the first proposal in New York for family decision making to terminate life support was introduced in the Assembly. Every time the bill passed the Assembly it languished in the Senate..

Currently, New York and Missouri stand alone as the only two states that do not recognize that responsible parents, in conjunction with doctors and medical staff, are in the best position to determine whether to end a child's life support.

Justice Ling-Cohan's Decision

Earlier this year the mother filed suit to prohibit the continued languishment of her child. The mother sought to have the Health and Hospitals Corporation's policy declared void.

At trial, several doctors testified that the child had no hope of recovering and that the mother was a caring, devoted and loving parent. In addition, the doctors and a guardian appointed for the child testified that the mother made a fully informed decision.

Then the mother testified. The record is sealed as to what she said.

In May in a strongly worded decision, Justice Ling- Cohan ruled that "[a]bsent extraordinary circumstances such as incapacity, conflict of interest, or disagreement between parents, a parent of a minor child with an established diagnosis of persistent vegetative state should have the right to decide whether to terminate life support in the best interest of the child, without the necessity of judicial intervention."

The decision, Justice Ling-Cohan concluded, "to end the dying process of a minor child is a personal decision for the parents, in consultation with the child's medical providers, as they bear the legal, moral and ethical responsibility for their child. . . . [There is no] State interest great enough to compel [the child] to remain subjected to this extraordinary life-sustaining measure."


While the image of a three-year-old child lying in a persistent vegetative state is horrendous, it is hard to imagine how much pain her mother suffered watching her own child in that state and then being forced to testify about it.

A bill now pending in the Senate, the Family Health Care Decisions Act, would rectify this by making judicial intervention unnecessary when numerous safeguards are met. It would be irresponsible, particularly in light of the existence of these laws in 48 other states, for the Senate not to move on this bill.

Matter of AB, Index No. 401184/03 (Ling-Cohan, J.) (N.Y.Cty.Sup.Ct.) May 20, 2003 (N.Y.Cty.Sup.Ct.) (Attorneys: Elisabeth Benjamin, Samuel Davol, for AB; Salvatore Russo, Stacey Mondschein, Kenneth R. Larywon, Michael Zhu, for HHC).
























Blackface Parodists Win In Court; Cops vs. Firefighters; Still No Dancing Allowed

Controlling the police may be the toughest management job there is. Every patrol study ever done shows that street cops work most effectively when they're given the discretion to respond instantly to trouble. As University of Chicago law professor Kenneth Culp Davis pointed out years ago, the police make far more discretionary determinations in individual cases than any other class of administrators. Culp said there was no close second. Yet police commanders need to know that cops are out there actually working productively and treating community residents fairly. The inevitable tensions are immense and made workable in New York only by the NYPD's evolving structure of carefully selecting, testing, and training recruits - and then supervising them under a chain of command. But in the end, decades of enhanced professionalization and reform mean little without one basic principle: trust. We all have to be able to trust that police officers -- armed and authorized by us to patrol our neighborhoods -- are honorable, decent, sensible people worthy of positions of trust.

The police commissioner's management authority has been undermined by federal Judge John Sprizzo's June 23 ruling, following a non-jury trial, that the city did not have the right to fire a police officer and two firefighters who rode in blackface and wore Afro wigs on a parade float in 1988. Police Officer Joseph Locurto and the two firefighters were punished, wrote Sprizzo, "in retaliation for engaging in protected speech." This "protected speech" involved being part of a float with the banner "Black to the Future: Broad Channel 2098," which the defendants said was a parody of black racial integration into the mainly white Broad Channel neighborhood. They threw watermelon and fried chicken at parade goers and, as the parade was ending, a firefighter grabbed the back of the truck and dangled himself toward the ground, re-enacting the brutal dragging murder of a black man in Texas two months earlier. (You can decide for yourself what you think of the activities on the float by watching the video offered by ABC News/Channel 7's web site.)

This activity constituted protected speech "on a matter of public concern," wrote Sprizzo, because the float sought "to comment on the future racial integration of Broad Channel" and to win the prize for the funniest float, "a prize the group had won in the past with other ethnicity-parodying floats." The group's earlier efforts included "The Gooks of Hazzard," which parodied Asian Americans, and "Hasidic Park" about Jewish Americans. Sprizzo rejected the city's claims about the management consequences of such public behavior going unpunished, writing that this "concern was unreasonable and, in any event, insufficient, as a matter of law, to outweigh plaintiff's constitutionally protected speech rights." The men are all seeking reinstatement in their jobs, back pay, and money damages. A hearing will be scheduled on remedies in the case. Corporation counsel says it will appeal.


Cops and firefighters were also in the news for another unfortunate conjunction of the two agencies. An inept burglar who had lowered himself into a chimney in Luigi's Italian Restaurant in Queens started screaming when he found himself stuck. A passerby called 911, which dispatched regular firefighters and police officers from the local 115th precinct, as well as members of two rescue units, the police Emergency Service United and fire's Rescue 4. Once on the scene, rescuers from the two agencies disagreed on how to extract the burglar from the chimney. Firefighters wanted to pull him out from above, while the police decided to rip out the wood paneling covering the shaft inside the restaurant, hacking through a layer of bricks. During the rescue, the police sealed the restaurant as a crime scene and ordered firefighter John Gaine to leave, resulting in a fight and Gaine's arrest. "Well, it's the kind of thing you simply hope would never happen," said Fire Commissioner Nicholas Scoppetta. Mayor Michael Bloomberg said that the police and fire commissioners are meeting to sort things out.

The daughter of the restaurant's owner had suggested pouring olive oil into the shaft to grease the burglar and pop him right out without smashing walls, according to the New York Times. On reflection, though, she decided the cops were right to ignore the idea: "Virgin olive oil is expensive. My mother would have been annoyed."

Luigi's owners told New York 1 that they had been watching "Stupid Acts Caught on Tape" when the whole caper started. They also said they were left with rubble at their restaurant. "Not I've got a hole, destruction, and a mess," said co-owner Josephine Napolitano.


Supporters of dance in New York -- and who isn't? -- were elated when they heard that the city's Department of Consumer Affairs was going to be holding hearings on New York's repressive 77-year-old cabaret laws on June 24. Representatives of Legalize Dancing jubilantly predicted that the city's days of regulating, and banning, dancing were over.

The hearings proved to be no such thing. Formal and stale in format (all questions from the audience had to be submitted in writing), the hearings mainly provided a forum for a few important nightclub owners and representatives to complain about their main beefs. Thus David Rabin, owner of the humongous but fully licensed Lotus and president of the New York Nightlife Association, took the opportunity to protest the mayor's anti-smoking legislation, which nearly everyone in the industry regards as a lethal, business-killing law. One of these days New York is going to end up looking like Cleveland, he told Newsday's Dennis Duggan.

He also noted that the main problem for most neighborhoods is what he called "outside noise," rather than the noise from music and dancing in the club itself. The outside noise problem has been greatly exacerbated, of course, by the smoking ban, since smokers now congregate in the streets. Rabin said, however, that no nightclub owner calls the cops because that will only produce a "disorderly premise" ticket, which will then be used against the club's license renewal. Does Yankee Stadium get tickets, he asked, for disorderly patrons? Or Madison Square Garden? Not at all. Both of these are patrolled by cops -- some on duty, some as part of the NYPD's paid detailed unit of off-duty cops. Rabin would like nightclubs to be able to hire off-duty cops (preferably in uniform) to patrol outside the clubs, a proposal supported warmly by the police union, the PBA.

Under the state's Alcoholic Beverage Control Act, which forbids cops from being associated with alcohol sales, police officers are now prohibited from doing security work outside bars.

Sean Schwartz, owner of Halcyon, which lacks a cabaret license, argued that dancing should not be part of the equation to begin with. "It was wrong 77 years ago," said Schwartz, and wrong a few years ago for Giuliani to dust off and enforce the cabaret laws. Indeed, so far this year, the city has padlocked 11 places that permitted dancing without a cabaret license. Between 1999 and 2003, the city had closed 20. According to the New York Times, the Giuliani administration tended to remove or threaten places that held licenses as punishment for a range of violations, from inadequate exits to drug use by patrons.

Passed in 1926 to regulate (some historians say to suppress) jazz in Harlem, the cabaret laws targeted the "social mixing" that seemed to accompany jazz, says NYU Professor of Law Paul Chevigny, author of "Gigs: Jazz and the Cabaret Laws in New York City." The cabaret laws restrained jazz by requiring that a hard-to-get cabaret license be held by any restaurant that had live music.

In May 1986, the Musicians Union, represented by Chevigny, sued on First Amendment grounds. After a five-year legal battle, New York Supreme Court Judge David Saxe declared the three-musician rule unconstitutional, ruling that live music had to be allowed in zones permitting bars and restaurants. It was a great triumph, but the suit left alone the regulation of dancing, which remained subject to the cabaret license requirement.

Thus restaurants that allow dancing are still held to more stringent zoning requirements than other restaurants, which are permitted in all commercial and manufacturing zones. With their odious history, the cabaret laws have frequently gone unenforced. The Dinkins administration, for example, ignored them altogether. They were resuscitated, however, by the Giuliani administration, which saw them as a potentially powerful tool for shutting down huge, noisy, drug-infested nightclubs.

Relief from the city is not on the immediate horizon. Gretchen Dykstra, the consumer affairs commissioner, said that unless the laws change, which is doubtful, members of the nightlife task force (called March for Multi-Agency Response to Community Hotspots) will continue to crack down on unlicensed cabarets.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.


Prosecuting The Batterer Without The Victim's Approval

For years, Angela R. (as she is named in court records) had reported being beaten, attacked, dragged up and down staircases by her hair and even burnt by Victor Santiago, the man to whom she says she's married "by love," and with whom she has a child. She called 911 and visited hospital emergency rooms over and over. Police officers have heard him threaten to kill her after smashing all the furniture in their home. But like countless other victims of intimate violence, when the moment of truth had come -- testifying in open court -- Angela had declined to prosecute and the criminal cases against Santiago were dismissed.

Despite three decades' worth of changes in public awareness and policy since violence against women became a priority of the women's movement, victims still fear prosecuting their husband/boyfriend assailants. A daunting, ongoing problem for the criminal justice system and the women themselves is the victim's unwillingness or inability to participate as a complaining witness after she has called the police, and especially when she is needed to testify at trial.

But in the recent case of People v. Santiago, the Manhattan District Attorney and Acting Supreme Court Justice Jeffrey Atlas took a new approach -- the victims' prior statements about her beatings were allowed to be used as court testimony without her approval.

Angela had testified behind the closed doors of the grand jury, after an assistant district attorney assured her that the accused (Santiago) is never present at this stage. But when it came to the trial stage, when Santiago would be present, Angela refused to testify, and went so far as to threaten that, if forced to testify, she would declare that all the complaints had been fabricated by the police and prosecutor and even by herself. She enumerated her reasons -- she was ashamed to tell her story and be judged by other people; if Santiago were in jail, she could not afford to support their daughter; she loved him and no longer wished to press charges. Without Angela's testimony, Santiago could probably not be convicted.

The district attorney asked the judge for permission to read the grand jury minutes to the trial jury, an unusual criminal procedure, normally possible only if the complaining witness -- Angela R. -- has become "unavailable." Some domestic violence cases have been prosecuted through photos and medical records, but relying on the domestic victim's prior statements would be a new development.

At a pretrial hearing, where witnesses included an expert in battered women's syndrome, Angela R. told Justice Atlas that she and Victor Santiago had been together for "ten beautiful years." Santiago blew kisses to her in the courtroom and insisted that she is the one who hits him, but that he is a "forgiving kind of guy." The judge called much of the couple's testimony "patently incredible," and, in a decision that attorney Dorchen Leidholdt, director of Sanctuary for Families' Center for Battered Women's Legal Services, calls "extraordinary," Justice Atlas concluded that Santiago's violence, threats, chicanery or other acts of misconduct caused Angela R. to become "unavailable." The judge ruled that the prosecutor should be allowed to present to the trial jury her prior statements, including those she had made to the grand jury.

According to Leidholdt, "this decision moves (domestic violence) jurisprudence forward in a really important way," recognizing that domestic violence is of a completely different character than stranger-on-stranger crimes in which there can be a variety of reasons for recanting testimony or declining to proceed for reasons which are not based on fear, threats or witness tampering. "He's been abusing her for years, then calls her 100times from Riker's Island where he's being held. He cannot be allowed to benefit from his own outrageous behavior," she adds.

Brooklyn Law School Professor Elizabeth Schneider, author of BatteredWomen And Feminist Lawmaking (Yale) calls the decision very valuable in the specific facts of this case, but notes that "doing anything that is not what the victim wants is a problem." The issue, Professor Schneider says, is "whether you go with the woman's wishes or the evidence that she is recanting only out of fear or threats." Fear and threats are not the only problem. As Dr. Ann Wolbert Burgess, an expert on battered women's syndrome testified, the abusive male can also be seductive, romantic and exploit the victim's fantasies that everything will be fine.

Whatever the reasons for the recantation, Leidholdt applauds the decision for "not forcing Angela R. to face down the man who has repeatedly brutalized her." However, Carlin Meyer, professor of family law at New York Law School, while acknowledging that "hitters don't hit just one woman," and that therefore society -- not just Angela R. -- needs to be protected, adds, "but the state is never going to protect her."

Professor Meyer believes that "No one walks in the victim's shoes and she should be allowed to assess the potential danger to herself, the benefits and burdens, that flow from going forward with a complaint. The state (and the prosecutors who act for it) can't know if she's better off with her batterer working and not in jail. It's paternalistic for the state to force her to testify and act as if it knows better." She points to the possibility of a "slippery slope" where hearings might be skipped, experts disallowed and the rights of both parties might be jeopardized.

Leidholdt disagrees: "This decision," she says "is truly empowering."

Emily Jane Goodman is a New York State Supreme Court Justice



Things Go Seriously Wrong: Police Issue Report On Harlem Raid, Lemrick Nelson Gets Off Lightly, Murder Is Up Again. Also: Police Spying


In a remarkable break from past practice, Police Commissioner Raymond Kelly has issued a 24-page official report assigning blame in the catastrophic May 16 New York Police Department raid on the apartment of a church-going, 57-year-old woman, Alberta Spruill. At a tense 3:00 p.m. press conference on May 29, Kelly said, "Deficiencies were found in procedures and practices of the overall warrant process. Mistakes were made. We all make mistakes. It's a terrible tragedy that Miss Spruill lost her life." (Excerpts on Kelly's comments, including his defense of warrants and his pledge for reform, can be heard on Newsday's web site.)

The raid could hardly have gone more wrong. With no evidence of wrong-doing beyond the word of a drug-using known criminal, the NYPD secured a no-knock warrant to invade Spruill's apartment. At 6:15 a.m. on May 16, they executed the warrant by breaking down Spruill's apartment door as she was dressing to go to her city job, which she had held for 29 years. Incorrectly anticipating both resistance and a pit bull, the police detonated a flash grenade -- also called a concussion grenade -- which is used to blind and stun. The police realized almost immediately after handcuffing Spruill that the tidy apartment did not fit the informant's description of a messy place divided by a dirty curtain. But the damage was done. Spruill went into cardiac arrest and was pronounced dead at 7:50 a.m. at Harlem Hospital. Her death was ruled a homicide by the medical examiner.

The snarl of police errors, arrogance, and incompetence recorded in Kelly's report is stunning. Almost every decision leading up to the raid seems to have been flawed, sometimes inexcusably. Commanding officers did not confer with one another or share crucial information. Supervisors for the Emergency Service Unit, which led the raid, didn't know that NYPD policy required that flash grenades be approved by a top boss. Although several officers had serious doubt about the reliability of the informant, they did not relay this information to others. No one watched or canvassed Spruill's apartment to see if it seemed a likely household to shelter drugs, guns, and attack dogs. The drug dealer whose cache of drugs and weapons was being sought in the raid had in fact been arrested four days earlier on an assault warrant -- but precinct officers kept this information to themselves.

The brass at police headquarters are ignorant of much of what goes on in the field. The NYPD lacks a central database on informants and their reliability, says Kelly, as well as any central way of assessing the success or failure of executed search warrants, even though several such warrants resulted in disastrous raids on innocent families during the Giuliani administration. Kelly promised he would establish a database to track search warrants to uncover patterns of problematic searches.

"What we're doing," said the commissioner, "is seeing to it the best we can that something like this never happens again." Let's certainly hope so. Yet at a minimum this incident calls into question the reality of what journalist Michael Massing once called "The Blue Revolution," the idea that CompStat plus organizational innovations and changes in police culture had transformed the NYPD into an efficient crime-fighting machine.


As if to drive even conservative and/or police-friendly New Yorkers into the arms of the New York Civil Liberties Union on the issue of police spying, the NYPD has been asking political protestors such potent questions as "What kind of political sentiments do you hold?" and "What political organizations do you belong to?" as well as "Don't you think it was necessary for us to get involved in World War II?"

In hearings before federal judge Charles Haight in Manhattan, civil liberties groups are asking that the 3-month-old modification to the Handschu Agreement, which since 1985 had restricted police spying, be modified again to forbid such NYPD questioning. Judge Haight was unhappy with the police, saying, "I find this most recent activity troubling." The NYCLU is hopeful that the NYPD's overstepping will encourage Judge Haight to reconsider his February expansion of NYPD surveillance powers.


What are we to make of the Nelson Lemrick debacle? The familiar details remain chilling. On Aug. 19, 1991, a 7-year-old black child, Gavin Cato, was killed (and another child severely injured) in Crown Heights after being struck by a Jewish driver speeding through a red light. Several hours later and several blocks away, then 16-year-old Lemrick Nelson joined a mob of blacks shouting "There's a Jew! Let's get the Jew! Kill the Jew!" while pursuing a 29-year-old rabbinical student, Yankel Rosenbaum. Nelson stabbed Rosenbaum, who later died of internal bleeding in the Kings County Hospital emergency room, where doctors had failed to notice the deep wound. Before he died, Rosenbaum identified Nelson as the assailant who stabbed him.

Yet the practical outcome of the latest of Nelson's three jury Trials -- two federal, one state, all held in Brooklyn -- is that Nelson will spend no more than an additional year in prison. His 1997 conviction on federal civil rights violations in his second trial had resulted in a prison sentence of 19-1/2 years. But a federal appeals court reversed the conviction after concluding that the trial judge had improperly balanced the number of Jews and blacks on the jury. The federal prosecution followed a state trial in 1992 in which Nelson was acquitted by a jury which concluded that he had been framed by a racist police force. Jurors later notoriously celebrated with Nelson and his lawyers.

You might think that by this time everything has been said, but it hasn't been. For one thing, the historical context of these terrible events has been missing. Rosenbaum's 1991 murder occurred at the very end of what had been a period of unusually violent crime in New York, what UCLA historian Erik Monkkonen has called "a rogue tidal wave of violence in the last quarter of the twentieth century." For most of its history, New York City had a far lower crime rate than the nation as a whole -- until 1958, when violent crime started heading up. What we commonly think of as New York's high crime rate is in fact a historical anomaly. Now that crime has been in a downward spiral for 11 years, New Yorkers need to keep it that way.

But Monkkonen argues that in past cycles, once some "lower level of violence had been achieved, the mechanisms for control and the value of peace get forgotten, and a slow rebirth of violence begins." As Lemrick Nelson begins serving his minimal sentence, will it happen that crime will start back up? In other words, just as his crime occurred at the end of a cycle of high violence, will his punishment signal the beginning of a new cycle of serious violence? Already, rape has been steadily rising for months, and murder has also been up.

Nelson himself is part of a disturbing historic trend, the large increase in killings by youngsters in New York. The proportion of killers younger than 18 quickly rose from about nine percent in 1976 to a peak of nearly 16 percent in 1993. When these killers are released, as Nelson will be after a short stint, they have decades of potential violence ahead of them. Thus an overly mild justice system can fuel an upward spiral of crime.

Despite admitting he had stabbed Rosenbaum, Nelson was found not guilty of any charges by the first state jury and not guilty of the most serious charge by the latest federal jury. This leniency, according to Monkkonen's 19th century data, is typical of the tendency of New York juries to give offenders the benefit of the doubt -- a tendency that has often led to justice but in this instance to grave injustice. "In a city filled with bars, rowdiness, and a good deal of physical violence, the all-important coroner's juries often placed themselves in the offender's situation and found the deaths to be accidental," says Monkkonen.

Indeed, although about half of all 19th century murderers in New York were arrested, less than half of these were tried, and only about half of these were convicted. Of the 10.7 percent convicted, three-fourths were sentenced to fewer than 7 years in prison, and a large proportion of these were pardoned. Leniency was the "central element" of the criminal court system.

There is also a historical link between major riots and personal violence, according to Monkkonen's data. Most of the city's serious riots have occurred during times of high violence. He believes, though his data cannot prove, that while some rioters are rationally motivated, many violent individuals simply use the crowd as a mask, becoming more violent in riots. But the real lesson is that a violent culture produces far greater violence during rioting than a less violent culture does.

What this means for the city's future is that keeping violent crime down is the nonnegotiable base of the city's well-being. If violent crime heads up seriously, it will destroy New York. It almost did in our recent memories. And here is the latest bad news: the NYPD's crime statistics show that 215 people were murdered in the five boroughs between January 1 and May 25. This is up from 202 murders in the same period last year.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

NYC'S Blue Laws


When the Harlem store Palace Liquors opened one particular day this week, it was a moment that some New Yorkers had wanted for more than three centuries. That is because the day it opened was Sunday. New York liquor stores have never before been allowed to open on Sunday.

But at Sanchez Liquors farther uptown, the shutters remained drawn. “Sunday is the day for resting,” said shopkeeper Francisco Calcaño. “Besides, if the store is closed, that means less liquor on the streets on a Sunday, when people are walking with their families.”

The long-standing ban on Sunday liquor sales was lifted as part of the state legislature’s budget package. The lawmakers reasoned that allowing liquor stores to open on Sunday (even though they will have to choose another day to close each week) will mean more alcohol sales, and more taxes and fees for the state’s coffers.

Some may think that this finally means an end to what are called the blue laws, which have regulated Americans’ moral behavior, especially what people can or cannot do on a Sunday, since the 17th century. Things certainly have changed since the time when even a Sunday baseball game was considered immoral -- and outlawed.

Indeed, the people opposed to allowing liquor to be sold on Sundays seldom even mention the word morality. Governor Pataki vetoed the Sunday liquor sales bill, but it was unlikely that he vetoed the law for moral reasons, especially considering his substitute proposal to raise funds for the city -- installing video slot machines in the city’s off track betting parlors. In any case, the legislature overrode Pataki’s veto.

Still, blue laws have not now faded into the quaint past. There are still laws regulating people’s private lives or freedom of choice – and not only ones that are outdated and unenforced. Some would say that there is at least one new one, promoted by our billionaire bachelor mayor – a prohibition on smoking indoors.


New York’s law banning liquor sales on Sunday has its origins in Puritan America and even the Roman Empire. “The earliest indication that I was able to uncover about a specific law prohibiting activity on Sunday comes from the Roman emperor Constantine in the year 321,” said David Laband, author of Blue Laws: The History, Economics, and Politics of Sunday Closing Laws. The law reads in part, Laband said, “Let all judges, and all city people, and all tradesmen, rest upon the venerable day of the sun.”

Regulations against Sunday activities were in place in King Charles the Second’s England, as well as in the seventeenth-century Puritan colonies in America. Many reference books say that the laws were called “blue” because they were printed on blue paper, but historians have said that the term is more likely to be derived from the use of the word “blue” to mean “rigidly moral.”

A 1695 colonial New York blue law read, “Be it therefore enacted that there shall be no traveling, servile laboring and working, shooting, fishing, sporting, playing, horseracing, hunting, or frequenting of tippling houses, or the use of any other unlawful exercises or pastimes, by any of the inhabitants or sojourners within this province, or by any of their slaves or servants, on the Lord’s day.” The punishment for any of these offenses was a fine of six shillings or three hours in the stocks.

Other colonies had even stiffer blue laws. If someone broke Virginia’s Sunday restrictions three times, they faced the death penalty. In colonial Boston, Captain John Kemble was arrested and put in stocks for two hours for kissing his wife on the Sunday that he returned home from three years at sea. In 1789, President George Washington was on his way from Connecticut to attend church in New York when he was charged with a blue law violation for unnecessarily walking or riding on Sunday.

In New York, regulations against Sunday activities continued into the next century, as upstate (largely Protestant) Republican lawmakers supported laws that did not make sense for the Jewish and Catholic residents of New York City. The sale of liquor on Sundays was prohibited, and both professional and amateur baseball games were against the law. By the1890s, “there was a long tradition in the New York legislature of enacting legislation to enforce morality in the city, wrote Christopher Finan in Al Smith: The Happy Warrior, his biography of the1920s governor. “The interference of upstate Republicans in both the administration of New York City and the social life of its citizens was deeply resented.”

In 1907, New York City Democrats unsuccessfully introduced two bills in Albany to change the law prohibiting baseball on Sundays. Then-state Assemblyman Al Smith, according to Finan, spoke out against the Sunday ban on the floor of the state legislature, saying that it was better for young men to be playing baseball than “be driven to places where they play “Waltz Me Around Again, Willie.’”

In 1917, the New York Giants and Cincinnatti Reds played the first Sunday major league baseball game at the Polo Grounds. The managers of both teams were arrested for violating the blue laws. Sunday games became legal in New York two years later, but the bar on Sunday liquor sales became an all out ban during prohibition. A new law banning Sunday sales was drafted at the end of the prohibition era, and survived until this month.


The new law doesn’t do away with the state’s blue laws completely. New York’s liquor stores may be able to open on Sundays, but will have to close one other day a week. Mark Anderson, deputy commissioner of the New York State Liquor Authority, said that in order to enforce the one-day-a-week closing, he expects that each store will need to include the day that they will close each week in their license. The law will sunset in five years, so Sunday sales may be banned again. It also limits the number of state liquor licenses to the ones currently in place. Grocery stores are still not allowed to sell wine, and can only sell beer on Sundays after noon.

Liquor store groups have lobbied on both sides of the issue. The Distilled Spirits Council of the United States, which lobbied hard for a lift of the Sunday ban in New York, sponsored a study finding that Sunday openings could bring in an extra $26.7 million a year in taxes and fees for New York State, because Sunday has become a big shopping day. “This is all about choices,” said Lisa Hawkins from the Distilled Spirits Council, who once told Business Review that she should have the right to “have margaritas with my fajitas on Sunday night.”

Small owner-run liquor stores have often campaigned to keep Sunday closings, saying that they don’t have the staff to open every day, but would be forced to open in order to compete with larger stores.

The new law answers some of their concerns, by mandating that all stores close at least one day a week. Francisco Maracallo, the manager of the Washington Heights store Sandy Liquor, is looking forward to the good sales that he thinks Sunday will bring, and hopes to work out a plan with other liquor stores in the neighborhood, so that each one closes on a different day.

Religious groups have said that not only does banning liquor sales on Sunday limit alcohol abuse, it is a way to preserve the &#14

Litigation Over World Trade Center Clean-Up Payments

Within hours after the collapse of the World Trade Center towers, the New York City Department of Design and Constructionagreed with four main contractors to begin the daunting clean-up. Due to the severity of the situation the department was unable to follow its typical construction contract guidelines. Most importantly, the department did not sign a written contract setting prices for how much money it would pay the contractors and their subcontractors for the work. To date, the department and the four main contractors have not inked a final contract as several issues, including liability insurance, remain in dispute.

When clean-up of the site ended on May 30, 2002, the department began reviewing subcontractors’ invoices and bills for the work they had already done and amounting to over $650 million. Without a written contract setting specific prices for specific jobs, the department is left to determine which bills to pay and at which rates. As the department determines that a particular invoice is excessive and decides not to pay the invoice, there no doubt promises to be subcontractors who will challenge that determination. In what may be the first of many to come, on April 29, 2003 New York County Supreme CourtJustice Diane S. Lebedeff decided that the department has the authority to review and reduce invoices that it deems excessive.

Subcontractor Submitted High Invoice

Tully Construction, Co., one of the four main contractors, had been working on a major State Department of Transportation construction project on lower Route 9A (West Street) on September 11th and was one of the first at the site. Tully, like all of the main contractors, entered into agreements with subcontractors for equipment. One of those agreements was with Massachusetts-based Great Northern Site Corporation for the lease of three (and later four) heavy excavating machines.

Tully and Great Northern agreed that Great Northern would be paid approximately $189 per hour per machine, amounting to approximately $100,000 per machine per month.

Shortly after the machines were delivered to the site, Tully and Great Northern agreed that the rates for the excavating machines would be subject to the Department of Design and Construction’s approval.

By June 2002 the department had issued two memos stating that subcontractors would be paid for their work at a rate of 75 percent of the rate found in the construction industry’s standardized suggested price index, the “Rental Rate Blue Book for Construction Equipment.” The Department would only pay above 75 percent of the Blue Book rate if the subcontractor could provide documentation indicating that the rate was “usual and reasonable pre-September 11, 2001.” The policy, the department stated, was to prevent “’opportunities for unscrupulous individuals to enrich themselves’ in the wake of September 11th.”

Great Northern’s charge for each of its machines at $189 per hour rate came in at approximately $45 per hour higher than the Blue Book rate for similar machines. So the department asked Great Northern for proof that it charged as much per hour before September 11th. When Great Northern failed to submit the documents the city had requested, the department reduced the company’s rate to $108 per hour.

Great Northern sued. It claimed the city agency did not have the authority to change the company’s rates, since the equipment was being put to use on property of the Port Authority, which was created by the States of New York and New Jersey. It said it was entitled to a public hearing, because the city had created a new rule.

Justice Lebedeff dismissed Great Northern’s complaint on April 29, rejecting all its arguments. The city had a right to take reasonable steps to make sure it is not overcharged, the judge ruled, and could so on the site owned by the Port Authority because the September 11th attacks “affected an area far beyond the site.”

Controlling The Floodgates

Justice Lebedeff’s decision has the potential to save the city millions of dollars in overpayment and/or fraud. The city is currently reviewing millions of dollars in unreconciled invoices billed from the World Trade Center clean-up. Pursuant to Justice Lebedeff’s decision the Department has the authority to review these invoices and ensure that the city is not overpaying or paying false claims.

In reviewing the invoices the Department has been working with the Department of Investigations and an auditor, KPMG, who will supplement the auditing staff to reconcile paperwork and then provide it to the Federal Emergency Managementbefore the end of the year. Upon FEMA’s review, the city will be reimbursed for its payments.

As the department makes a determination as to the appropriate rate in each of these invoices, there promises to be litigation, which could prolong the end of the clean-up phase and put off the development.

Great Northern Site Corporation v. Department of Design and Construction, Index No. 122546/02 (Lebedeff, J.) (N.Y.Cty.Sup.Ct.) (Apr. 29, 2002).















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