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Criminal Justice

Criminal Justice

The Case Of The 17-Year-Old Anti-War Protester


"Dismissed in the interest of justice," are words rarely uttered in our legal system. But in the case of People v. Gragert, New York City Criminal Court Judge Matthew Cooper ordered exactly that.

Alisa Gragert, a 17-year old senior at Friends Seminary was arrested during an April 7, 2003 demonstration against the war in Iraq. She was accused of blocking the "normal flow of pedestrian traffic," by laying down in front of 712 Fifth Avenue in Manhattan. The building houses the offices of the Carlyle Group, a major international investment firm, which antiwar protesters contended would profit from the war. According to the police, Gragert ignored an order to stand up when informed she was under arrest. She was charged with obstructing government administration, a class A misdemeanor, punishable by up to a year in jail and two counts of disorderly conduct, each punishable by a maximum of fifteen days. About a dozen other protestors were arrested for the same conduct, but the prosecutions were separated and Judge Cooper's decision deals only with Gragert.

Following her arraignment, the defendant was released on her own recognizance and ordered to return to court on June 11. When she appeared on that day with counsel she was told to return a month later, on July 25. The court entry, however, mistakenly read July 23, and when Gragert failed to appear on the 23rd, a warrant was issued for her arrest. When she and her mother walked into Criminal Court at 100 Centre Street on the correct day, she was considered a fugitive, taken into custody handcuffed and chained to a bench in open court. Once the error in the date was acknowledged Gragert was again released.

Prior to preparing for trial, Gragert's pro bono attorney, David M. Stern, of the firm of Rothman, Schneider, Soloway & Stern, submitted a 31 page motion asking Judge Cooper to dismiss the charges in the interest of justice without reaching the question of whether she was guilty or not. This procedure known as a Clayton motion based on a 30-year old New York case, People v. Clayton, is infrequently submitted to courts and even less often granted. However, according to the Criminal Procedure Law, a court may consider terminating a criminal case if the prosecution and possible conviction of the accused would "result in injustice."

Judge Cooper would have to consider the offense, the seriousness and circumstances, the extent of harm, evidence of guilt, the defendant's background, any police or prosecutorial misconduct, the purpose of punishing the defendant, how society would be affected by a dismissal and how dismissal would affect public confidence in the criminal justice system, input of any victim and "any other relevant fact indicating that...conviction would have no useful purpose."

He also had to distinguish Alisa Gragert's case from a 1996 case involving the arrest of 90 members of Irish Lesbian and Gay Organization (ILGO) protesting the annual St. Patrick's Day parade. In that case, a criminal court judge had dismissed disorderly conduct charges in the interests of justice but was reversed by the Appellate Term which hears appeals from Criminal Court and which ordered the charges reinstated. " Sincere beliefs are not an excuse for lawless conduct," the appellate court said. expressing concern that the conduct was "likely to keep recurring."

Still, Judge Cooper found that Gragert's case was one of those "rare" and "unusual" cases that "cries out for fundamental justice beyond the confines of conventional considerations." The judge cited the defendant's age, her lack of a criminal record and the fact that she was bound for college. (She now attends Oberlin College in Ohio.) Letters supporting dismissal were submitted by her high school principal and teachers, the coordinator of her volunteer work at the American Museum of Natural History, friends and neighbors. A United Nations advisor wrote "We have the deepest respect and admiration for the gifted students who exhibit a caring attitude toward their community and dare to dissent from its mainstream views when their concern for common good compels them to do so. Alisa is such a student and we need to encourage her to follow the dictates of her conscience." While the decision did not address the large number of teenagers in the criminal justice system in general, in pointing out Gragert's age, the judge emphasized that, "She is too young to vote in an election, drink alcoholic beverages, enlist in the armed forces, buy a laser pointer or a can of spray paint, marry without both parental and judicial consent, or enter into a legally binding contract."

Although according to Judge Cooper, Gragert's actions did constitute disorderly conduct, he found the harm of causing pedestrians to walk around her "decidedly minor," in contrast to the ILGO demonstration at Fifth Avenue and 42nd Street "which snarled traffic for an hour and a half."

"It is difficult to envision New Yorkers, renown for their ability to cope in the face of adversity, being particularly disturbed by encountering the defendant lying on the sidewalk and having to sidestep her," he wrote. "Impediments to the free flow of pedestrian traffic are a hallmark of city life. What with street vendors, people distributing leaflets, newspaper vending machines, food carts, coffee wagons, sidewalk eating, scaffolding, construction barriers, pavement excavations and groups of smokers in front of smoke-free buildings, one hardly expects to walk along a busy midtown street with an uninterrupted stride. In this instance, people may very well have been inconvenienced by the defendant's actions, but it could not have been that much more than the routine inconvenience we endure in this city on a regular basis."

In granting the motion, the judge concluded, "Unlike many nations, we pride ourselves on our willingness to hear the voices of dissent. Protest, in its many forms, has a hallowed place in our democracy and is very much a part of our American spirit. It is one of the great strengths of our society. And certainly our society is strong enough to recognize the mitigating circumstances present here and forego the prosecution of this young woman."

According to Barbara A. Thompson, spokeswoman for the Manhattan District Attorney, there will be no appeal.

Emily Jane Goodman is a New York State Supreme Court Justice.

 

Fear of Terrorism


 
Leaving New York
While some New Yorkers are leaving the city, citing bad schools, high housing costs or the daily stresses of urban life, analysts debate whether the exodus is anything alarming or unusual, and what to do about it.

Why New Yorkers Are Leaving:

The City Is Too Expensive
by E.J. McMahon

City Schools and Housing Are Inadequate
by David Kallick

New Yorkers Who Left:

Rondrae Hunter
A Frustrating Apartment Search

Allison Woods
Struggling with Strollers and Schools

Stefan Kochi
Bad for Business


About a month after 9/11, I decided that, after having lived in New York for 12 years, I wanted to move. Even though my wife recognized that my fear was somewhat legitimate, she thought we ought to just stick it out for a while and see what happened. And she was very attached to Park Slope, where we lived, and to our friends in the neighborhood. I was attached too, but more than that I was frightened by the risk to our children.

With two kids, I just did not want to be in New York. We were in the middle of the anthrax scare, and I was opening my mail with gloves and a mask on. I was nervous about taking my kids on the subway. I didn't want to put them at risk. Then we had the scare about a dirty bomb and radioactive material in Manhattan. My wife started coming over to my side.

To decide where we would move, we drew a circle with the radius of a one and a half hour drive from Manhattan. Anywhere within the circle was a prospect. Then we visited a friend in Connecticut. I took a drive to the Long Island Sound and fell in love with the shore. It was a beautiful place. We moved to Milford in July 2002.

Though 9/11 was the main reason we moved, it wasn't the only one. Another reason was the financial situation; the rent in our apartment had just increased 15 percent. In the nine years we had lived there, the rent had climbed a total of 70 percent. It was just too expensive.

Our nine-year-old sons were soon going to leave their elementary school, PS 321, and would have to enroll in a middle school. I wasn't worried that they wouldn't get into a good school, but I was worried about how far away it would be. They were going to have to take subways and buses to get to school rather than walk down the street as they used to. I didn't like the idea of them doing that, and we couldn't afford to send them to a private school.

It took my sons awhile -- six months or eight months -- to adjust to the move. My wife had trouble as well. We came back to Brooklyn occasionally, and walked around, and the kids hung out with their old friends. It helped them with the separation. My wife still visits women friends down there, and she's in a book club that meets once a month.

I try to stay away from the city. I am a painter and so I go down and met with my artist friends sometimes. We visit museums and galleries. But I am a little scared. I really don't want to be in the city at all.

I see myself being comfortable again in New York only if we solve the terrorist threat. If Al-Qaeda, and Saddam Hussein were brought to justice and there were no attacks for a year or two, then I would feel much better. But I will never move back to New York. For me, the move is irreversible.

David Bassine, a painter, left New York and moved to Connecticut.

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.

NEW YORK CITY AND GUNS

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.

SUING THE SOURCE

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.

MAKING COMPANIES ACCOUNTABLE IN NYC

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.

STRICT LIABILITY

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.

FEDERAL IMMUNITY

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."

 



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