Clarence and Thomas

Subject: Clarence and Thomas
Date: 9/29/2005 11:40:31 PM Eastern Daylight Time
From: starquest@nycivic.org
To: reysmontj@aol.com
Sent from the Internet (Details)


Clarence and Thomas


The Mills of the Gods Grind Slow,But They Grind Exceeding Fine.



By Henry J. Stern
September 29, 2005

It was the very day (Tuesday) that we sent you "Crime Without Punishment", an article whose point was that some prominent people are widely and accurately believed to have committed crimes, but because of difficulties of proof, indifference and ineptitude of prosecutors, and political influences and pressures, they have escaped punishment.

It was also the very day that Clarence Norman, Democratic leader of Kings County and leader of the Brooklyn machine, was convicted by a jury on three felony counts of making false statements to avoid limits on campaign contributions, in a case brought by District Attorney Charles (Joe) Hynes.

It was the very next day (Wednesday) that Thomas DeLay, majority leader of the House of Representatives, was indicted by a grand jury in Travis County (which includes Austin, the state capital) in a case brought by District Attorney Ronnie Earle. DeLay allegedly conspired to violate a century-old Texas law banning the use of corporate funds by state political candidates, by channeling the funds through the Republican National Committee.

The Norman and DeLay prosecutions are in the genre of the trial and conviction of Al (Scarface) Capone for income tax evasion in 1931, seventy-four years ago. Capone was responsible for many murders, including the St. Valentine's Day massacre in 1929, an event he orchestrated. He escaped prosecution because many of the witnesses were dead, or soon would be if they testified. Capone was released from prison in 1939 for good behavior, and retired to his Palm Island estate in Florida, where he died in 1947.

Hynes was elected Kings County District Attorney in 1989, when Elizabeth Holtzman left the job on her election as New York City Comptroller. In his first three terms, he took little interest in the notorious Brooklyn Democratic machine, saying that he did not have sufficient evidence to prosecute its members. In recent years, Hynes became the target of reformers, newspapers, particularly the Daily News, and court watchers for his failure to prosecute corrupt judges and political bosses. In 1975 Governor Hugh Carey appointed Hynes as Special State Prosecutor to investigate nursing home fraud. Over the years, Hynes was also friendly with Governor Mario Cuomo, who appointed him to prosecute the Howard Beach violence in 1987.

In 2001, a Brooklyn lawyer, Gary Bergenholtz, who claimed to be the victim of a judicial shakedown by Judge Victor Barron, came to Hynes' office. The DA's staff gave the lawyer a wire to wear when he met Barron, in order to tape the judge's demands. On the basis of the evidence so secured, Judge Barron was indicted in January 2002. He later took a plea bargain and, in October 2002, was sentenced to three to nine years in jail, but allowed to keep his $97,000 annual pension. Since his expenses in jail are presumably minimal, the money will either be used to support his family or be invested so it can accumulate for the judge when he is released.

It is widely believed, but not proven, that Barron was not the only crooked judge in Brooklyn. Other names, including a trio of relatives, have been frequently mentioned and subjected to scrutiny. Two of the three were accused of bilking a relative's estate, and one of the duo of receiving inappropriate gifts. Horrible stories have been told by women about men paying off judges for favorable dispositions in divorce and custody cases.

Judicial corruption begins with the judge paying a six-figure sum to purchase the Democratic nomination for the court, under the mantra of paying for the expenses to be incurred in the campaign. If this were true, the practice although regrettable and possibly deplorable, would still be legal. The widespread suspicion is that much of this money finds its way into the pocket of the political leader who chose the nominee. Such transactions are extremely difficult to prove, since bribery is a crime of consent, and neither the political leader nor the judge has any interest in publicizing their crass dealings.

Once elected, the judge may try to amortize his investment in purchasing his office by receiving illegal payments or favors of various sorts from litigants and attorneys. These arrangements are customarily consensual. The reason the Barron case blew up is that the lawyer regarded the judge's demands as extortionate, since all Barron had to do was give his consent to a $4.9 million civil settlement, which had already been worked out. For this essentially ministerial function, he demanded a down payment of $18,000 and an additional $115,000 after the money was paid. The sum extorted in this one cases would have been larger than the judge's annual salary, which was $113,000 at the time.

Hynes, who in previous terms had been passive on corruption issues, paying more attention to prosecuting people who dared to run against him, changed significantly after the Barron case and began to study the transactions of Clarence Norman, who had supported him. In this year's election, Norman's candidate, State Senator John Sampson, came within five points of unseating Hynes, who was also challenged by two able candidates, Mark Peters and Arnie Kriss.

The case against Norman was thought to be relatively weak, and susceptible to dismissal. Norman chose to be represented by Edward Rappaport, a former State Supreme Court justice from Brooklyn. Judge Rappaport is no Justice Roberts. The criminal case was tried before a Queens judge, since every judge in Brooklyn was suspect, even though we assume that many, or most of them, are honest. Norman made the serious error, as Dennis Kozlowski did in the Tyco case, of taking the stand himself, and the jury judged him by his performance before them. Even though his alleged sins were relatively trivial for a politician, his plea of ignorance of the law was not credible. He was considered too smart not to have known what he was doing, the jury felt that his testimony was not credible. Essentially, he was convicted for personally lying to them, which made the case a contest between his intelligence and theirs. There are phrases which describe certain misstatements: bold faced lies, (3.7 million hits), bald faced lies, (1.28 million), lying through his teeth, (4.39 million) and lying in their faces (19 million). Judgments made by people who believe they have been lied to are often harsher than the circumstances of the case would ordinarily require.

The conclusion we draw is that, in many criminal cases, justice is likely to be done, but there is a tortuous trail between the allegation of an offense and conviction by a jury, and it usually requires a series of errors by the defendant or his counsel to reach the result in the Norman case. Now the DA will seek to get the former county leader's co-operation in other cases in order to avoid a prison sentence. Our own sense is that Hynes is unlikely to succeed in this effort, but on the other hand most observers believed that Norman was unlikely to be convicted.

Another aspect of both the Norman and DeLay cases is the criminalizing of misstatements and evasions with regard to campaign financing. Although we believe that, with Norman, the misstatements were intentional (he knew the rules), did the crime he committed merit conviction on three felony counts, forfeiture of office, disbarment and imprisonment? The issue remains: would Al Capone have been prosecuted and received the long sentence he did for income tax evasion if he were not a notorious gangster? But even if the answer to that question is No, did he not ultimately receive the sentence he deserved?

Justice works in mysterious and sometimes unpredictable ways, and sometimes it doesn't work. Every unconvicted criminal on the streets today represents a weakness in the system or in its application. But many more are convicted than escape judgment, even in Brooklyn. Like the rest of us, justice has its good days and its bad days. Tuesday was a good day, and, topping that, Wednesday brought the indictment of another legislator, House Majority Leader Tom DeLay.

We are well aware, and you should be too, that "an indictment is merely an accusation" and "a district attorney can indict a ham sandwich", a phrase coined by former Chief Judge Sol Wachtler of the New York State Court of Appeals, himself a victim of overzealous prosecution. Nonetheless, we must say that the DeLay indictment, although the case is arcane, does not stir us to the highest level of outrage. Even if he did not commit the crime of which he is accused, even if what he did is, or should not be, a crime, and although we know that even the guilty are entitled to the presumption of innocence, we are not shocked by his indictment as we were not shocked by the prosecution of Clarence Norman. DeLay's other wrongdoing (and we don't mean his political views) may or may not rise to the level of high crimes and misdemeanors, but his actions warrant more condign punishment than "The Hammer" has yet received.


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Henry J. Stern
starquest@nycivic.org
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