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Criminal Justice

Criminal Justice

Freeing A Youthful Offender From His Past


He was 20 years old and a teller in a branch of the East New York Savings Bank, when he was arrested and pled guilty to the crimes of embezzling $730 from the bank and misapplying funds. He qualified for adjudication as a youthful offender, a concept in both federal and state laws intended to give eligible youth a "second chance." He received a suspended sentence and 18 months probation. The court terminated his probation three months early and the judgment of conviction was set aside

But three decades later, the crime still haunted the man known in court records only as John Doe, who is now 53 years old, and has had no further contact with the criminal justice system. The criminal record, he says, has been interfering with his current investment and insurance advisor, and so he filed suit to get rid of it.

In an unusual federal decision, Judge Constance Baker Motley of the United States District Court for the Southern District of New York, has granted the motion to expunge all records in the case of United States of America v. John Doe.

Licensed by the National Association of Securities Dealers (NASD) and working as an independent broker with a subsidiary of Wells Fargo, Doe sought to have all records relating to his arrest and subsequent proceedings, removed from the government's central criminal files, and made unreachable for any purpose other than a bona fide criminal investigation involving him.

According to his motion papers, "a stigma attaches to me as a result of the ability of current and/or potential clients to learn of the fact that I was arrested and charged with embezzlement in 1971, nearly a third of a century ago, will impinge upon my ability to earn a living in my chosen field of endeavor." According to Doe's papers, he is often required to submit applications to insurance companies to function as a broker or salesman, as well as to make periodic filings with the National Association of Securities Dealers, the Securities and Exchange Commission and various other agencies, sometimes more than once a month. Full disclosure in these documents must include the record of arrest, embezzlement of bank funds, prosecution by the federal government and the entire history of his case. In some situations, Doe's attorney alleged, he chose not to file applications rather than provide this history.

The concern of Doe and his attorney was that certain, if not all, of the documentation, is available to the public, some on NASD's website, where members of the public, clients, competitors, co-workers could easily learn of Doe's past. "In an extremely competitive environment," he claimed in an affidavit submitted to the court, "I know that clients utilize this resource to check the qualifications and background of those who propose to represent or advise them in financial matters. I also know that competitors have access to this information, too, and they can and will use any negative information about me to gain an edge as we vie for institutional clients . . . and will continue to be a source of great personal embarrassment; moreover, the nature of the charge obviously raises questions in a current or potential client's mind . . . ."

While the United States Department of Justice must "acquire, collect, classify, and preserve identification, criminal identification, crime and other records," Judge Motley wrote, "No statutory authority exists for the expunction of federal criminal records . . . but lies within the equitable discretion of the court." Such relief, she noted, is "usually granted only in extreme circumstances." The Court adopted the theory of the Youth Corrections Act, that the purpose of Youthful Offender status, is the "rehabilitation of the young persons in this country who have made their first mistake, so to speak." Taken together with the fact that early discharge from probation with an unconditional discharge led to the dismissal of Doe's case, a conclusion, she says that was "compatible with the welfare of society," the Judge wrote that, "The clear purpose for setting aside a youth offender's conviction was to relieve him not only of the unusual disabilities of a criminal conviction, but also to give him a second chance free of a record tainted by such a conviction." Yet, Judge Motley concluded that, "without expunging the record, the decision to set aside the defendant's conviction, would be rendered essentially meaningless."

Finding "sufficient indication of the harm he is exposed to as long as the records in question remain generally accessible," Judge Motley cited a federal appeals case saying that "courts need not wait for substantial damage to occur before taking remedial equitable action," and incorporated the language that, "aside from the ever present possibility that his record will be indiscriminately disseminated, there is the fact that the mere existence of a criminal record looms ominously through one's life."

Judge Motley ordered that John Doe's records "are not to be opened other than in the course of a bona fide criminal investigation by law enforcement authorities and only when necessary for such an investigation. These records may not be used by the government or any of its agents for any other purpose, nor may their contents be disseminated to anyone, public or private, for any other purpose." To further make her point, and without opposition from the U.S. Attorney, Judge Motley ordered the records preserved in a separate storage facility, and not where criminal records are maintained.

Still, Harvey Fishbein, president of the New York Criminal Bar Association says, "This is not expunging; there is no actual expunging. "The records will not be destroyed; they still exist." While Fishbein believes that convicted persons and even lawyers need to be educated about available remedies such as sealing, and certificates of relief from disability, he says, "You can hide it, camouflage it, segregate it, but it is never really expunged." Fishbein, who has been practicing criminal law for 30 years, says, "It's fundamentally unfair. There's a point where it should no longer be part of a person's history because he or she is no longer the same person." It is unreasonable, he says, "to saddle someone with an isolated incident." Calling expunging "a misnomer," Fishbein says, "statutes have to be enacted that find the balance between the occasional need to know, and a person being able to say, 'Finally, I am free of that past.'"

Emily Jane Goodman is a New York State Supreme Court Justice

 

 

 

 

 

 

 

 

 

 

Beyond the Protest March



Poster by: Mike Flugennock

Related Articles:

Summer of Protest

Louie Jones: Why Poor People Will Take to the Streets

Protesters Have A Right To Use The Park
by Leslie Cagen

Th req Rally Threatens The Beautifully Restored Lawn
by Henry Stern


Poster by: William Etundi Jr.

What is it like to be young and envision a different world? In some sense, youth are society's guinea pigs – products, fashions and anything one can make money off are tested on them. If we go by what the mainstream media says, young people are not really "political" -- they are interested only in the latest number one hit, what is cool to wear and how to become a CEO at 16.

NYC Summer/100 Days of Democracy in Action is an attempt to challenge that. A six-week program of workshops, discussions and internships, NYC Summer is meant to be a space where young people who question everything around them can work toward developing a vision of why the world is the way it is and how to change it. NYC Summer hopes to strengthen the leadership of young people within their communities -- particularly in organizations based in those communities.

The reactive protest model where people pour into the streets with banners and slogans to protest and then get beaten by cops and be portrayed as "outside agitators" in the mainstream media has had its day. Much of the protests surrounding the Republican National Convention at the end of the summer will be that/DTDe of demonstration.

We recognize that U.S. adventures abroad are linked to the neoconservative policies of the Bush administration at home. We are therefore interested in making the links between the larger issues of war, empire, militarism and global capital abroad with control of schools, budgets, police brs ality and repression in our communities. And so, we at NYC Summer will no doubt protest the convention but we want to go beyond that.

NYC Summer takes young people's concerns seriously. We believe that youth dissent is not simply petty anger against parents or teachers, or "juvenile deliquency." And we want to create places that help foster an alternative discourse -- spaces that allow youth to feel that they are not mentally disturbed for caring about the world and that they are not alone. And NYC Summer works to strengthen the leadership of young peoples within their communities, particularly within organizations that are based in those communities.

To accomplish that, NYC Summer will create six weeks of liberation schools for youth activists from New York and around the country. We believe that the idea of popular education first developed by radical Brazilian educator Paolo Friere provides the ways and means to help instigate social change. This encourages learning through dialogue rather than set curciculums, working to strengthen community, and basing learning on people's life and experiences.

The young activists will attend one day of workshops each week. Another two or three days a week will be spent interning with community-based social action organizations. These include groups working against police brutality, the NYC Aid Housing Network, WBAI, indymedia, and various groups focusing on immigrant rights and lesbian-gay-transgender issues particularly among working class people. Weekly seminars open to the public will also be offered.

Young people want to make their voices and ideas heard, but frequently they are not taken seriously because they're either not old enough, not "educated" enough or not "qualified" enough. We want to change that.

As a youth, I first heard about NYC Summer as a potential participant, which, in the conventional sense, meant a student who would "learn" knowledge from supposedly all-knowing older teachers. I now realize instead that my role is to help break the boundary between student and teacher, organizer and participant. It is not to construct an alternative school, but rather a space for collective learning, sharing and liberation. The NYC Summer collective members are of diverse backgrounds, ethnicities, ages, gender identities, sexual orientations and even visions. None of us are identical, yet we share a common bond of struggle, resistance and mutual respect for each other and ourselves. We hope to inspire youth to articulate their own visions, not necessarily to digest ours, and get out there in the spirit of the Zapatista slogan: "Everything for everyone, and nothing for ourselves."

Suneel(a) Mubayi is a transgender student, writer, activist poet and member of the NYC Summer Coordinating Committee.

 

Police Whistleblowers


Eleven years ago, Detective Investigator Jeff Baird thought the people in power would protect him.

His testimony exposing misconduct within the Internal Affairs Division was a key part of the Mollen Commission. Baird told city officials how officers within his division would create secret files designed to hide evidence that pointed to corruption and misconduct within the department.

“I was only interested in positive change,” said Baird, 49. “I didn’t think the retaliation would come.”

But the retribution that followed would last the rest of his career—and beyond. Baird was shunned by many of his fellow officers and harassed by others. Transfers to different units quickly stalled a once promising career, according to Baird, who also said there was even a warning that his life was in danger.

Baird was diagnosed with post-traumatic stress disorder by his psychologist and applied to receive a special accident disability pension. The police medical board disputed this, however. The case went to court, with city lawyers arguing that Baird only deserved ordinary benefits.

In April, a Manhattan judge sharply criticized the city for denying Baird’s claim, calling its arguments “pitiful.”

"In short, NYPD subjected [Baird] to an insidious 'death of a thousand cuts' in retaliation for his work on the Mollen Commission, with the Medical Board's refusal to even address the cause of his condition being the last gash. This the court will not condone.,” Judge Louis York reportedlysaid in his ruling in favor of Baird. The city is appealing.

Baird’s story is not unique, as other officers who have sought to expose misconduct within the police department have similar tales. Through the years there has been much talk about how to make police whistleblowers feel safe when coming forward to talk about misconduct and corruption. In a recent inquiry, however, a whistleblower has yet again come forward with claims of being subject to retribution rather than thanks.

The VIPER Division

Sgt. John Marchisotto, a supervisor in a Staten Island unit of the VIPER division, which is in charge of monitoring all surveillance within public housing, has said he began writing memos and letters to department leaders in January outlining how officers routinely watched movies or slept while on duty. During this time he also charged that a female supervisor sexually harassed him.

In April, it was reported that Internal Affairs was investigating how a recording of a March suicide taken by the VIPER division wound up on a website. Later that month, the City Council held hearings to examine VIPER, and Marchisotto spoke out against the division. He also spoke to television reporters and held a press conference outlining his allegations.

In City Council hearings, a housing supervisor admitted that many officers monitoring surveillance cameras in housing developments have pending criminal or administrative charges. Manhattan borough president C. Virginia Fields called for more stringent controls on the VIPER unit. The police department has since pledged to review its staffing policies.

Meanwhile, Marchisotto faces three departmental charges related to a WABC news report.

In that report, Marchisotto said he had already faced some retribution. Marchisotto said a group of officers angrily came to his home late at night, and that the department, claiming that he was mentally disturbed, has taken away his guns and placed him on restricted duty.

 

"You report misconduct, serious misconduct, or anything in the police department they will try to make you look like you're crazy. They will try to discredit you as a complainant and they're pretty good at that," Marchisotto told Channel 7. Police say Marchisotto abused his authority as a supervisor and shouldn’t have videotaped inside his unit. Several stories have cited anonymous and high-ranking police sources that call Marchisotto a chronic malcontent. But in a May press conference, Marchisotto stood with New York State Assemblyman Keith Wright (D-Manhattan), the chairman of the assembly's sub-committee on public housing. Wright said in a press conference that “on the surface of it” the charges against Marchisotto look “quite bogus.”

Also standing by Marchisotto is Lt. Eric Adams, spokesman for 100 Blacks in Law Enforcement Who Care.

“The police department did not bring or file any internal charges on any of the men John mentioned,” noted Adams. “No charges handed out against them—yet the discipline was taken against the whistleblower.”

Marchisotto could not be reached for this story. Police did not respond to a list of faxed questions.

Blue Wall of Silence

“We need to protect whistleblowers as best we can,”said Norman Siegel, a civil rights attorney and former head of the New York Civil Liberties Union. Siegel has offered his services to Marchisotto.

The city has a whistleblower law on the books designed to protect those that expose wrongdoing, but, even if strengthened, such a law will not eliminate retaliation towards whistleblowers, said Siegel. He suggests a unit should be set up within the Public Advocate’s office to protect whistleblowers across all city departments (Siegel has run for the Public Advocate).

And 10 years after the Mollen Commission recommended it, Baird would like to see an independent agency with enough power to oversee the police department. The Commission to Combat Police Corruption was created as a result of the Mollen Commission, but that group has been criticized for being irrelevant. It went for more than a year-and-a-half in the Bloomberg administration without any board members.

Efforts to create a powerful agency with oversight authority failed largely due to staunch opposition from then-Mayor Rudolph Giuliani. Occasionally, the police department has sought to take extra steps to protect whistleblowers and make the department more welcome to criticism. In 1998, then-Commissioner Howard Safir talked publicly about creating ways to reward whistleblowers. But Baird no longer trusts the police to police themselves.

“There’s never going to be any real reform within the police department because they crush people like myself who come forward,” said Baird. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



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