Photo (cc) mwalshhme

What happens when a man says he's guilty of murder, but state-of-the-art-science says he's not?

That is the question the New York Court of Appeals, the state's highest court, will soon answer in the case of Douglas Warney v. State of New York, which began in 1996 as People of the State of New York v. Douglas Warney.

Warney, while in police custody in Rochester, signed a detailed two-page confession and was convicted, after trial, of first-degree murder. He was sentenced to 25 years to life in prison and served nine years before he was exonerated by DNA testing -- testing that prosecutors had vigorously opposed. Douglas Warney was innocent.

Once released from prison, Warney sued for compensation under New York's wrongful conviction statute. But at the earliest possible stage of litigation, the Court of Claims, where lawsuits against the state are filed, dismissed his case. The judge cited the statutory exemption of state liability and said the claimant, Warney, "through his own conduct, brought about his own conviction."

Police Pressure?

Warney's case is not an isolated instance. Studies have found that many individuals falsely confess to a crime, often because of police trickery or their own vulnerability. A number of these people have later been exonerated by DNA tests. Peter Neufeld, co-founder and co-director of the Innocence Project of Benjamin Cardozo School of Law who now represents Warney, says Warney is of below average intellect (IQ 68) and at the time of his interrogation and "confession," also was suffering from dementia.

Photo: the Innocence Project

Douglas Warney

A study by the New York State Bar Association found that wrongful convictions are often the result of false confessions. The Innocence Project put the number at approximately 25 percent.

That police misconduct may have elicited Warney's confession has not helped him despite the universal acknowledgment of his innocence. (The DNA at the scene matched that of another man who is already serving a life sentence for another murder, has now confessed to the murder.) According to the decision of Judge Renee Forgensi Minarik of the Court of Claims, the fact that Warney confessed overrides why he confessed.

It is standard police procedure to withhold certain details about a crime. If someone then reveals he or she has knowledge of those details, the police reason that person must be the perpetrator, and the confession is deemed reliable. In Warney's case, said Neufeld, who was not involved in Warney's original trial, "The police and prosecutor kept emphasizing that because there were 11 details that only the police -- and Warney -- knew," Warney had to be the killer. The problem, Neufeld said is "the police broke a cardinal rule," by telling Warney the details that he then provided them.

At the February argument before the Court of Appeals in Albany, Judge Robert Smith, characterized this type of police conduct as "manipulation" more than coercion, describing the actions of a suspect such as Warney, as "tell me what you want me to say and I'll say it."

For and Against Compensation

Arguing for the state, attorney Alison Natnah told New York's highest court that Warney had "no entitlement to compensation" for his years spent in prison since he should have been able to foresee that his own admission and self-incrimination, which she called "voluntary," would lead to his conviction. In other words, it was Warney and not the government who was responsible for his conviction and the years of incarceration. That it is wrongful and unjust -- not just a mistake -- is insufficient to allow the claim to proceed argued Natnah, who has recently been recommended by Sen. Charles Schumer for a federal judgeship.

Given that he has been ruled out as the perpetrator, "How could Warney have known that the weapon was a 13-inch serrated knife, and that a victim was stabbed 15 times?" Smith wanted to know. He prodded the prosecutor to tell the court how Warney could have had these facts -- unless the police told him. Natnah was unable to provide an explanation that seemed to satisfy Smith. Meantime, Chief Judge Jonathan Lippman asked how Warney's "confession" could be considered credible if "90 percent of what he knew was planted in his mind by the police," especially when one week earlier the police had taken Warney to a psychiatric hospital.

Neufeld asked the bench to reinstate Warney's claims and define "misconduct," in accord with the legislature’s intention that an unjust conviction should lead to compensation. Warney's repeating what police fed to him cannot be the misconduct the legislature referred to in carving out an exception to the wrongful conviction statute, Neufeld argued.

In what he described as "a really important case," Neufeld also asked the court to clarify that the confession itself would have to have been the "proximate" cause of the conviction, or the very thing that caused the wrongful conviction. Pressed as to whether there could ever be a false confession that would constitute misconduct, Neufeld hypothesized "perhaps a man who intentionally, falsely confessed in order to take the blame for his wife's crime."

While it may seem illogical if not incredible that an innocent person would admit committing a serious violent crime, false confessions -- admissions of guilt made despite innocence -- occur when suspects are fed the answers. They may believe, or police may suggest, that they don't need a lawyer if they are innocent and have nothing to conceal, and that asking for a lawyer will make them look guilty. The issue of wrongful convictions, including those based on false confessions has led Lippman to form a task force to analyze and identify ways to reduce the incidence of innocent people spending years behind bars.

Warney was originally convicted of murder in the first degree at a time when he could have been subject to capital punishment. He would have been unjustly convicted and also could have been executed. The DNA testing led to the true perpetrator who has since stated that he acted alone and did not know Douglas Warney.

Emily Jane Goodman is a New York State Supreme Court Justice

Photo (cc) Edward Reed

This time he means business.

Mayor Michael Bloomberg unveiled a $65.6 billion budget Thursday, the 10th of his tenure, which reduces spending by 0.4 percent and threatens for the third year in a row to lay off thousands of teachers. Bloomberg said the city was slammed by cuts from Albany and the federal government, leaving the administration with little choice but to cut back in classrooms. As a result, the administration proposed to reduce the teacher headcount by 6,166 -- 4,666 through layoffs.

"I don't see either Washington or Albany approaching fiscal realities the way we do in our city," said Bloomberg just before delivering his semi-annual budget presentation via PowerPoint. "Government's job is not to employ as many people as possible or spend as much of the taxpayers' money as possible."

With state and federal cuts, the city faces a $4.6 billion deficit. The mayor did say he sympathized with the state's dire fiscal straits, but asked for fairness from Albany.

The mayor's budget proposal does not offer many more spending slashes than the fiscal plan the mayor unveiled in November. Some of the more severe proposed cuts, including the closure of at least 100 senior centers, come from proposals in Gov. Andrew Cuomo's budget and from funding reductions in Washington, Bloomberg said. A federal cut could slash the number of day care slots for lower income families by more than 16,600, officials said, 16 percent of the total available.

According to the Office of Management and Budget, the mayor's preliminary proposal would reduce the city workforce by 8,300 positions -- more than 5,000 of them through layoffs.

The mayor has proposed massive layoffs before, but few have actually materialized -- none have occurred in the classroom. Advocates questioned what made this year any different.

“Given the city’s growing revenues, along with the governor's clear statement that the state budget should not require local layoffs, the mayor’s insistence on teacher layoffs becomes more and more bizarre," said Michael Mulgrew, the head of the teachers union, in an e-mailed statement.

As the mayor painted a gloomy fiscal portrait from City Hall's blue room, some on the sidelines, like Mulgrew, looked on with skepticism. After the mayor announced layoffs, he also said the city had received $2 billion in unexpected revenue, which would soften the blow from state and federal cuts.

"We are in a much stronger position than most," Bloomberg explained.

But officials in the Bloomberg administration and at the City Council, who will negotiate the fiscal year 2012 budget with the mayor over the next four months, said, whatever has happened in previous years, this time it is serious.

Tackling Teacher Cuts

This fiscal year the city will receive nearly $8.2 billion in federal aid. For fiscal year 2012, which starts in July, the city will see a 27.6 percent cut, down to $5.9 billion.

On top of that, the governor's budget proposal would affect $2.1 billion worth of city services.

The mayor's preliminary proposal assumes the city will be able to successfully negotiate in Albany for an additional $600 million. Some of that will come from an infusion of education and local aid funding, while part will come from rescinding part of uniformed workers' so-called "holiday bonuses." Reducing the $12,000 a year salary supplement would require the state legislature's approval.

Should the city fail to get this funding, Bloomberg said, the administration would have to go through another round of cuts. Since the recession, the administration has gone through nine rounds of slashes and cut a total of $5.2 billion in city services.

The administration, along with Council Speaker Christine Quinn, refuses to raise taxes.

All of this combined makes these cuts, particularly to teachers, more real this year, officials said.

"I think it's real based on the numbers," said Councilmember Robert Jackson, the chair of the council's Education Committee. "I don't blame him," he said of the mayor.

Others agree.

"He's right," said Citizens Budget Commission President Carol Kellermann. "The numbers are what they are. We've been using federal aid for education. We probably should have made some of these cuts sooner. Now we're kind of at a cliff."

Should the cuts to education occur, it's unclear how devastating they would be. The Bloomberg administration has been pushing Albany to repeal a state rule that requires the city to lay off teachers based on seniority. Getting rid of the restriction has been a key element of Bloomberg's agenda this year, and education officials say it is even more necessary since the city faces state education aid slashes.

"How it impacts the size of the classroom I don’t know for a fact," said Schools Chancellor Cathie Black at City Hall Thursday on the budget cut. "But it certainly has the possibility of raising class size."

Black said there are groups of teachers the administration would try to cut first, including teachers in a reserve pool who are awaiting a classroom assignment. Black said the education department would also look into laying off teachers who are deemed "unsatisfactory."

"I still think we will be dealing with teacher layoffs," Black said.

Cuts Beyond the Classroom

Outside of the schoolhouse wall, officials and advocates fear cuts that have reemerged from the mayor's fiscal plan in November.

Once again, the mayor has proposed to cut 20 fire companies. For the past two years, the City Council has come to the rescue of the Fire Department, restoring funds for companies the mayor plans to slash. This year, with so many teachers on the line, they may not be able to do that.

"It would impact our operations severely," said Fire Commissioner Salvatore Cassano of the proposed company closures. "Our response times would increase. I would be concerned if we had to do it."

In a prepared statement, Council Speaker Christine Quinn said she had "serious concerns" about teacher layoffs, the reduction of childcare slots and the fire company closures. The speaker also identified a $27 million state cut to senior centers as a council concern.

Department for the Aging Commissioner Lilliam Barrios-Paoli said that cut would close nearly half of the city's 256 senior centers.

"It's brutal," said the Barrios-Paoli. "To think [seniors] are going to walk 20 more blocks to go to another senior center, it's not going to happen. They are going to go hungry."

With state cuts, the city will also see a reduction in funding to its adult homeless shelters. The state also plans to eliminate rental support funding for former shelter residents.

Additional Revenue

The governor, mayor and the speaker of the City Council have said they would not raise taxes.

On Thursday some council members and advocates said the city should lobby Albany to extend the millionaire's tax, a personal income tax surcharge on the state's wealthiest, which is set to expire in December. Officials said that could bring in an additional $4 billion in Albany.

"At a minimum, we must continue the existing New York State [personal income tax] surcharge on high-income households," read a statement from the council's Progressive Caucus. "The surcharge is already in place, generating over $4 billion annually, with no evidence that it has driven wealthy New Yorkers to leave the state. In a time of crisis, it would be unconscionable to cut lifelines for our schools, our seniors, and our most vulnerable while waving bon voyage to billions of dollars in revenue that we are already collecting."

Earlier this year, Cuomo said he would let the tax surcharge die. Bloomberg has been extremely vocal against the millionaire's tax, contending it would result in affluent taxpayers fleeing the city.

Human Rights Watch, known internationally for fighting degradation and institutional suffering among the people of Africa, Indonesia, Latin America and other developing areas of the world, has turned its sights to New York City. The organization has issued a report -- to be made public today -- on bail and arraignment practices in our Criminal Courts. Following a two-year study, the report concludes that bail results in the incarceration of poor people, almost all of whom are black or Hispanic and are charged with non-violent crimes.

Human Rights Watch has found that every year the bail system in New York City penalizes thousands of poor people with pre-trial detention when they are arrested and charged with minor crimes. In these instances, the judges often require a fairly small amount of bail money. But that often is still more than the individuals and families involved can afford. (Bail is intended to insure that defendants return to court for trial after their arrest or risk losing the money they have posted.)

The Price of Freedom

"The Price of Freedom: Bail and Pretrial Detention of Low-Income Non-felony Defendants in New York City," reports that 87 percent of defendants whose bail was set at $1,000 or less were jailed following their first court appearance for arraignment and remained incarcerated for an average of almost 16 days. Their crimes: shoplifting, prostitution, turnstile jumping, marijuana, possession of small quantities of drugs, trespassing. None were violent, and none involved weapons. In effect, these people served their sentences before ever been tried, much less convicted, since in many of the cases, the sentences eventually imposed would likely have been less than the time they spent at Rikers Island. These non-felony defendants awaiting trial constitute approximately one quarter of the population on Rikers.

The Human Rights Watch analysis found that the city could have saved $42 million in 2008 if the 16,649 non-felony defendants arrested that year who were unable to make bail of $1,000 or less had been released on their own recognizance or under some other alternative to incarceration. The report urges the city to create such an alternative. The cost of keeping a person confined in a city jail is approximately $73,000 a year.

According to Jamie Fellner, senior counsel at the U.S. Program at Human Watch who conducted the study and wrote the report, "Bail punishes the poor because they cannot afford to buy their pretrial freedom." Fellner found that judges sitting in Criminal Court tend to set bail at amounts that are unaffordable for indigent defendants.

"The pretrial incarceration of persons presumed innocent of minor crimes is a disproportionate and needless curtailment of liberty that is difficult to square with fundamental notions of fairness," Fellner's report concludes.

While the report did not provide a breakdown for the races of people affected by the bail policy it noted, "Although blacks and Hispanics combined constitute only 51 percent of New York City's population population, aggressive law enforcement in minority neighborhoods has led to them comprising 82.4 percent of all arrestees and a similar percentage of all criminal defendants."

It also cites city Department of Correction figures that 88 percent of people held on bail of $1,000 or less are black and Hispanic.

Plead Guilty and Walk

The only way a defendant charged with a misdemeanor or violation such as disorderly conduct can get out of jail quickly when a judge sets bail he or she cannot raise, is to plead guilty. Pleading guilty can mean walking out of the courthouse -- particularly if this is the first person's first arrest -- since many of the minor offenses do not carry any jail time, and the defendant has already served 24 hours by the time he or she appears in court. Others pleading guilty may get an Adjournment in Contemplation of Dismissal, meaning if they don't get arrested again within the next six months their case is automatically dismissed and sealed or they may receive a conditional or unconditional discharge.

Meanwhile, the defendant who asserts the presumption of innocence remains behind bars. Of the 19,137 non-felony defendants arrested in 2008 whose bail was $1,000 or less, 87 percent were not able to post that and had no one else who could. This helps explain why 99.6 percent of the convictions for misdemeanors are by guilty plea.

Fixing the System

The report posits, "Judges may intentionally set bail at a level beyond a defendant's means when they believe the defendant will not return to court if released. Human Rights Watch found, however, that "failure to appear is not a widespread problem."

To some extent, the report is critical of judges for failing to use alternative means of assuring that an individual will return. The statutory alternative most readily available -- and which the report encourages -- is unsecured appearance bonds. These require that the defendant or someone else, such as a parent, signs a promise to pay a certain sum of money in the event that the defendant does abscond. This, often used in federal courts, avoids the need for money upfront. Many judges are unfamiliar with the possibilities and also are overwhelmed with the number of cases during an arraignment session. The unsecured bond does entail some extra paperwork for the clerical staff, but is till one of the recommendations in the report.

The second recommendation is for the city to develop pretrial supervised release programs that presumably would monitor defendants or require them to report in. The cost of such programs would, Human Rights Watch concludes, be far less than the cost of incarceration. And they would not infringe on the constitutional presumption of innocence by permitting pretrial detention based on poverty.

Human Rights Watch also recommends that judges set bail in accord with defendant's actual financial circumstances.

Emily Jane Goodman is a New York State Supreme Court justice. She was interviewed for the Human Right Watch report and read it before its publication.

Gov. Mario Cuomo oversaw the largest expansion of the prison system in the state’s history. It is a legacy that Cuomo has said that he regrets. Now prison beds sit empty, as New York State, which faces a $9 billion budget deficit, continues to spend millions of dollars a year to staff and operate half-vacant human warehouses.

Enter the son, Andrew Cuomo. One of his first acts after winning election was to tour Sing Sing Prison, the site of his father’s first crisis as governor. Shortly after he was elected, Mario Cuomo faced a riot during which 17 guards were held hostage.

 

The elder Cuomo was deeply involved in the negotiations, and the hostages were eventually released unharmed. Robert Gangi, head of the Correctional Association of New York, a progressive group that advocates criminal justice reform, said he thinks Sing Sing may turn out to be the site of Andrew Cuomo’s defining moments, too, and could offer the son a chance to redeem his father.

At Sing Sing earlier this month, the governor-elect delivered a statement that was measured but firm.

"We are locking up fewer people. But then you need fewer facilities. And the shrinkage of that system is going to be something that has to be thought through and managed," Cuomo said.

Gangi found Cuomo's message encouraging "For better or worse, that part of Mario Cuomo’s legacy is that more prisons opened under him than any other governor. He has spoken out since and said that it is something he regrets. Perhaps Andrew can roll back the prisons and atone for his father's mistakes," said Gangi.

Cuomo’s stance on prison closures, as well as statements in policy books prepared during the campaign and his record of opposing the state's strict Rockefeller drug laws, give hope to progressive advocates who want to see Cuomo improve the physical and mental health care provided to prisoners, increase alternative sentencing and provide treatment centers for subtance abusers. But they have also been given pause by the makeup of the new governor’s public safety transition team with its heavy representation of prosecutors and people in law enforcement.

Managing the Transition

Cuomo has appointed former Mayor Rudy Giuliani, Police Commissioner Ray Kelly, former Manhattan District Attorney Robert Morgenthau, Republican U.S. Rep. Peter King and former deputy secretary for public safety Michael Balboni, a Republican who served in the Spitzer and Paterson administrations, to his team. (The rest of the members can be found here.)

Some say transition teams are fairly symbolic -- they offer newly elected officials an opportunity to appear to give voices to their detractors as well as supporters, while their inner circles make the real policy decisions. But transition teams do have tremendous power in recommending staffers to work in important agencies. Those staffers can set the tone for an agency.

Terry O’Neill, the head of the Constantine Institute, an Albany-based organization that studies public safety issues, said he is concerned that Cuomo has tapped people from the old guard who advocate the same old strategies.

"When I look at the top of the list, I see people who have a very uninspired public safety philosophy," said O’Neill. O’Neill says the committee lacks anyone who represents “community policing, community crime prevention, correctional alternatives and inmate re-entry programs. All of these things are important to people who live in high-crime communities," said O’Neill.

O’Neill sees Giuliani and Kelly as advocates of old ideas. "They are both stuck on the statistics-driven enforcement CompStat tactic that began as a simple management and accountability tool under Bill Bratton, Rudy's first police commissioner," O'Neill said. "This concept has become entrenched and rigid in the NYPD and has begun to result in serious pressure on precinct commanders to do what they have to do to maintain the illusion of ever downward-trending crime statistics. Neither of them would be likely to promote people who would give us the kind of state-of-the-art strategies that Bratton went on to pioneer with the LAPD."

Cuomo has been praised for including detractors and critics on his transition teams. Former state comptroller Carl McCall, the man who he ran against for governor before withdrawing in 2002, is a co-chair of the team. Giuliani has criticized Cuomo in the past and is seen as a political rival. Elinor Tatum, publisher and editor-in-chief of the Amsterdam News, who has been very critical of Cuomo’s relationship with the minority community, was named to his committee on economic development and labor. In fact, her paper differed sharply with the Giuliani appointment.

It recently ran an article titled "Giulani and Cuomo: Diversity With Lack of Respect" that questioned Cuomo’s commitment to diversity, given his choice of Giuliani to co-chair the public safety committee. Giuliani, the paper wrote, "was infamous for his lack of diversity in his administration and for failing to meet with black leadership."

Gangi said that he is unsure how to take the makeup of Cuomo’s public safety transition team, adding, "It could be that part of the group could focus on terrorism issues, not on prisons and law enforcement."

Policy Statements

Greg Berman of the Center for Court Innovation said he isn’t concerned by the transition team. "I would focus less on who is on the team and more on what he has written in his policy books," said Berman. In those volumes, Cuomo has said that he is committed to investing in programs for recently released prisoners, combating gun violence across New York and reorganizing the juvenile justice system.

A part of his "Plan to Revitalize Cities Across New York" focuses on reentry programs for offenders.

It would require state agencies to establish a unified set of goals and tools to assess progress toward training prison inmates for jobs and on matching inmates with stable housing prior to release. The state, the plan continues, should have programs to ensure inmates have all the tools they need to make a successful transition into regular life.

Cuomo has also promised to combat gun violence across the state by "making microstamping mandatory." Microstamping is a technology that can be installed on handguns that leaves individual markings on each bullet fired to make it easier to trace shells back to the gun that fired them. Gun rights advocates say the technology is unproven and the cost would be prohibitive for gun owners.

Cuomo also backs the "Ceasefire" initiative a program that has law enforcement officials, community representatives and social service providers work directly with gangs to reduce violence.

Beyond that, Gangi said, Cuomo's stop at Sing Sing sent a powerful message that he is considering how to transform the prison system. “He spoke about downsizing the prison system, closing institutions that no longer serve a function, and he sent a message to unions that have pressed so hard against governors who have tried to close prisons in the past,” Gangi said.

On top of that, Gangi points out that Cuomo was integral in advocating the reform of the Rockefeller drug laws.

"He took a very progressive position and displayed a nuanced view of the justice system and the particular injustices caused by these mandatory sentences," said Gangi.

The Cuomo administration also will have its hands full sorting out the state’s juvenile justice system. A federal report found New York’s juvenile justice system to be violent and dysfunctional. Studies have found that guards routinely use violence to punish and control youth and that detainees do not receive adequate therapy.

The head of the Office of Children and Family Services, Gladys Carrion, has been working on alternative sentencing for juveniles and keeping youthful offenders in their own communities.Advocates for young offenders support her efforts. Carrion’s work has reduced the number of juveniles detained in the state system and has closed 13 facilities.

Cuomo will have to decide whether to continue to support Carrion’s strategy without her when her term ends in December. Meanwhile, public employee unions have pushed back against the changes -- saying that it is unsafe to keep some of the more violent offenders in their communities and that upstate communities rely on jobs provided by the centers.

Steve Madarasz of the Civil Service Employees Unions says he and his union can’t wait for Cuomo to replace Carrion. "This situation is just a mess," said Madarasz. "Carrion has burned all her bridges. She has just gone about dismantling this system and is sending these youth back to their communities with no protections. In our opinion she can’t be replaced fast enough."

One particularly notorious facility, the Tryon Residential Center in Johnstown, is empty, and yet about 60 of the staff still report to work because of the law that requires one-year notification before closure.

Gangi said he would like to see that requirement reduced from 12 months to 3 months so prisons and detention facilities can be closed more quickly, thereby allowing the state to benefit from the savings much sooner.

Cuomo’s "Plan to Revitalize Cities Across New York" calls for the state to "establish an Innovation Accountability Board to oversee the state’s juvenile system and look for alternatives to detention, imprison only those juveniles who are a risk to public safety, improve the conditions of confinement, and look to merge and reorganize juvenile justice detention centers."

When asked what he expected from Cuomo, who has vowed to battle unions on cuts and has expressed interest in trimming understaffed prisons, Madarasz was uncertain. "We have no idea what to expect until he is actually in office," he said.

The legislature and governor also will confront the question of whether to expand the New York's DNA database. Outgoing Gov. David Paterson has pressed to expand the scope of the database to include all penal code violations -- not just felonies and more serious misdemeanors. There have been concerns about the reliability of DNA evidence and how it is used in solving crimes. Republican attorney general candidate Dan Donovan and Cuomo’s purported favorite Democratic attorney general hopeful, Kathleen Rice, both supported Paterson’s bill.

When asked earlier this year which legislation he supported a spokesman for attorney general-elect Eric Schneiderman said, "The senator supports both pieces of the puzzle."

Photo by Ken Lu

Correction: This article originally overstated the effects on budget cuts on treatment and prevention programs. The article now has been corrected.

It took Harriet Lessel a over a decade of lecturing high school students about sexual violence to realize that, while her work was important, it was "barely a drop in the bucket."

"We have been raising awareness about sexual violence this way since the 1970s and sexual violence rates have remained pretty much the same," said Lessel, the executive director of the New York City Alliance Against Sexual Assault. "It was clear that a new approach was needed. ... We needed something deeper than these one- or three-off lectures at high schools."

Indeed, while crime rates have fallen over the past two decades in New York City, sexual violence remains such a pervasive public health issue in the city that advocates have begun to call it a "silent epidemic."

Despite this, in June the New York City Council unexpectedly voted to cut all funding -- over $300,000 annually -- for city programs that help victims of sexual assault, forcing rape crisis centers to scale back programs they consider vital. For example, St. Luke's-Roosevelt Hospital Center had to cut back its program giving free treatment to male victims of sexual assault, the only such program in New York, and the Kingsbridge Heights Community Center in the Bronx was forced to downsize its free and long-term child sexual abuse treatment and prevention program.

The Mother of Invention

The funding problems and the persistence of sexual violence have caused the city's rape crisis centers to try a new approach. They are banding together to launch Project Envision, an unprecedented citywide intititive that seeks to prevent sexual violence before it happens by attacking its root causes. Spearheaded by the NYC Alliance Against Sexual Assault, the effort is the first in the U.S. in which a city's rape crisis centers join forces to focus not only on treatment, but grassroots activism to affect social change.

The project approaches sexual assault as a public health issue with clear causes that can be isolated and controlled.

"We often use the analogy of rescuing people from drowning in a river. Up until now, we just stood on the banks and threw lines to people who were already in trouble," said Cathleen Cogswell, an employee at the alliance. "Now we are walking upriver to find and deal with what is causing this in the first place."

The Level of Violence

A 2008 study by Columbia University and the NYC Alliance Against Sexual Assault found that 16 percent of New York high school students have experienced sexual violence at some point in their lives. For female adolescents in the city, the rate rises to 25 percent. Youth in neighborhoods such as Central Harlem and Brownsville, Brooklyn experience even higher rates, with 60 of 98 participants in a study of severely distressed households in these areas having experienced forced sexual contact by the age of 13.

The cost to victims of sexual violence is tremendous. Most suffer depression and post-traumatic stress disorder directly resulting from an encounter. Although law enforcement could vastly improve its handling of sexual assault, it is one of the most difficult crimes to crack down on, as the vast majority of sexual assaults are never reported to authorities, and only a tiny fraction of rapists are ever charged for their crimes. Contrary to common belief, most victims of sexual assault are in some way acquainted with their assailant.

Starting the Conversation

Borrowing strategies from prevention efforts like the anti-smoking campaign and clean-drinking water initiatives, Project Envision seeks to correct social norms that enable rape and other forms of sexual violence by influencing discourse on the community level.

"The idea that rape is inevitable, the continued blaming of victims and the fact that people are afraid to talk about it -- this all needs to change before we can make real headway here," Billye Jones-Mulraine, a member of Project Envision’s South Bronx community effort, said. "It is an issue that still remains very much in the shadows. The fact that it’s not talked about really seems to keep it alive as a problem."

Rape crisis centers have not ignored prevention. Essentially, though, their strategy has been to send experts into communities, hold forums and lectures with young people and move on to the next community hoping to have made an impact. Project Envision hopes to fundamentally shift this approach by making the community members the experts, who can in turn, train fellow community members, thereby solidly entrenching the issue in the local conversation.

The NYC Alliance Against Sexual Assault began work on Project Envision in 2007. Since then, it, has since launched three pilot projects in the South Bronx, Williamsburg and the Lower East Side. The project is in the early stages. So far, it has focused largely on t how change the discourse at a community level, and how to design and implement such a broad effort.

"Parts of this are very abstract," said Deesha Narichania, a rape crisis worker in Bushwick and member of the Williamsburg pilot program. "People don't really know how to wrap their heads around it because it's less concrete than intervening with victims, which is what we’re used to."

The project has spent much of its time trying to assess awareness of and attitudes about sexual violence in various communities. The project's members have taken to the streets to talk with pedestrians about their knowledge of sexual violence. Focus groups gathered more detailed information from longer conversations and exercises.

Making It Local

"This is very important that our plans are being shaped around these perceptions -- the community's perceptions," said Laura Fidler, employee at the Alliance and member of the Williamsburg pilot program. "It is what makes this community driven -- that this is by the community and for the community."

Envision members used this information to design action plans that reflect the specific community’s strengths and weaknesses. For example, researchers in the South Bronx found cycles of abuse that are passed from generation to generation are a commonly perceived cause of sexual violence in that community. Thus the South Bronx project will include an effort to reinforce healthy relationships between parents and children.

The Williamsburg coalition identified verbal sexual harassment as a major problem, so it will focus on educating young men and boys on the negative effects of such behavior -- that the mindset that enables verbal harassment also leads to rape and other forms of sexual violence.

The research unexpectedly turned out to have the extra benefit of garnering local support and recruiting members. "We found that it was also this effective community mobilizing tool. People that participated in our focus groups turned into important members of our project and in some cases leaders," said Fidler. "It was definitely challenging getting people who were rushing to catch a bus or subway to talk to us, but we did have a number of people stop and thank us for starting the conversation in Williamsburg. And that's what this is about -- starting the conversation."

Each pilot project is currently building partnerships with community organizations that they believe can have a deep and lasting impact on the area's residents. Like in the anti-smoking campaign, Envision’s strategy plans to work with existing organizations. Schools and afterschool programs are one component of this, but Envision seeks to cast a wider net that includes religious, cultural and neighborhood organizations. Each of these organizations has leaders who already hold sway in their communities. Envision hopes to make these leaders experts on sexual violence.

"We will figure out how to support and train the community leaders in this work until they will not have to rely on us at all," Narichania said. "We want this to stay in the community, not just with us."

In 2011 Envision plans to begin turning its work into concrete community programs in the three pilot neighborhoods. Members recognize that implementation too will be long process involving much trial and error.

"This has just never been done before," Harriet Lessel said. "We are not only continuing to treat victims of sexual violence as best we can, but we are now recapturing that activism that started the women's movement in the first place. We have arrived at a point where rape crisis programs are pretty expert at treating victims, but wouldn't it be better if there were fewer of them?"

Photo by Meg McCarron

A brutal rape and murder this spring has prompted some Flushing residents to wonder about the safety of their neighborhood.

Susan Ma does not like to go out at night in Flushing. In fact, she always tries to get home before dark or asks her husband or friends to drive or to walk with her.

She grew even more concerned after she saw the news about the recent rape and murder of Yu Yao, a 23-year-old Chinese woman, on 41st Road, just blocks away from her house on Main Street and Franklin Avenue.

"There are too many people here, too many different kinds of people," said Ma, a native of China who moved to Flushing two years ago. "Every woman has to be aware when they go out at night."

When Ma read about a free self-defense class in the Chinese-language Sing Tao Daily, a popular Chinese-language newspaper, she immediately signed up. The class was prompted by the brutal attack on Yao. The suspect is 28-year-old Carlos Salazar Cruz, a fish market worker who is charged with second-degree murder.

Many people in this primarily immigrant community were shocked by the violent attack because Flushing is generally considered a safe area. According to police statistics, there were three murders, 13 rapes and 276 robberies in areas covered by the 109th Precinct in 2009, while nearby Elmhurst and Corona had six murders, 32 rapes and 332 robberies. In the 115th Precinct, which covers East Elmhurst, North Corona and Jackson Heights, there were four murders, 24 rapes, and 435 robberies.

Although many saw Yao's murder as an isolated incident, the community has not taken it lightly. Several local martial artists and community groups have started offering free self-defense classes. A volunteer neighborhood watch group has been patrolling downtown Flushing and giving out whistles in the hopes of raising safety awareness and fostering a community spirit where residents will look out for one another -- and speak up.

A Good Defense

The self-defense classes, which began in late May, are taught by Simon Li of the Asian Cultural Federation and Wing Yu of the Wing Chun Ip Chun Academy. Each class meets for one hour per week and lasts four weeks. So far more than 30 people have signed up and two classes are in session.

"People were not so interested in learning self-defense before the murder," said Li, a martial artist and a native of Hong Kong who has been teaching martial arts in Flushing for 15 years. "After the newspapers did a report on us, our phone has been ringing off the hook."

The primary goal of the class, Li said, is to teach the students how to handle attacks s and escape. He said more classes will be offered by his fellow martial artists in other boroughs.

Many students in the class find it helpful.

"Since we women have no strength, we learned how to twist their arm and borrow their strength to push them away," said Annie Fung, a housewife in her 50s and a native of Hong Kong.

Jane Wu, 65, a native of Hong Kong and a longtime New York resident, travels from midtown Manhattan to attend the class. She remembers being robbed on the Lower East Side many years ago and was saddened by Yao’s death.

"If she had learned how to defend herself, maybe her life could have been spared,” said Wu.

On Patrol

The volunteer group, led by Michael Chu of the Council of Chinese-American Associations, officially kicked off the patrol on May 24. Every evening five or six members of the group are dispatched to patrol the residential neighborhood between Main Street and College Point Boulevard from 8 to 10 p.m.

Chu sees certain residents of the area as being particularly vulnerable. "Immigrants tend to be easy targets," he said. "They don't speak English well. They don't report to the police. They carry cash more often, and they are less resistant."

The 109th Precinct runs an auxiliary police program, but it requires fluency in reading and written English and permanent residency or citizenship, preventing many people in Flushing from joining.

"Many people in the community wanted to join the auxiliary police but they have language issues," said Chu, who hopes to work alongside the 109th Precinct.

Interest in community safety appears high. "So far we already have about 140 volunteers," said Chu, who has given out more than 500 whistles and is ordering additional 5,000 from China. "We are hoping to get at least 300 to 500 volunteers so this patrol will continue far beyond this tragedy."

Speaking Out

While Yao's murder might have been an isolated incident, her death raised the question of whether Asian immigrants don't speak up when they see something amiss. Local Chinese newspapers reported she was spotted wrestling with her killer before she was dragged into a back alley but no one helped her. The 109th Precinct said they received only one phone call about the attack, and so far only one witness has come forward to identify the killer.

(For a report in Chinese on the response, go here.)

Ki-soo Kim, the 109th Precinct's community affairs officer, said immigrants should not be afraid to contact the police. "We are not part of the federal government, we don't enforce immigration law," he said. Kim added that Mayor Michael Bloomberg's Executive Order 41, which requires that police keep the immigration status of victims and witnesses of crimes confidential, would bar police from reporting an undocumented immigrant who told them of a crime.

Elected officials also urged the public to report to the police when they see something unusual.

"If you see something, say something," said Peter Koo, Flushing's City Council member, borrowing the popular Metropolitan Transportation Authority slogan.

Grace Meng, Flushing's state Assembly member who helped Yao's mother obtain a visa to come to New York and accompanied her to court hearings, urged the public to report crimes to the police.

"When we are asked as representatives why we don't have more police presence, if you don't report it, the NYPD doesn't have the statistics, then we can't ask for more police on the street," Meng said.

She also attributed the lack of action from bystanders to the transient mentality common in immigrant communities.

"Our culture needs to improve. … If you community is not safe and the streets around you are not clean, then it does directly affect you," said Meng. "Some people might not see this as their home. They see it as a place to make money and send home. It is disappointing. … America is our new home, and we have to treat it as such."

As the community delves into soul-searching, people fend for their own safety by being alert and stay out of harm's way.

"In this tough economy, some people might turn to criminal acts out of desperation," said Fung, the housewife. "When you see strange people around you, go to a place where there are more lights and more people."

Larry Tung is a Brooklyn-based journalist and media artist.

Photo byludwg

The purpose of bail in criminal cases was made clear last month at the United States courthouse in Brooklyn. The proceedings there also underscored what can happen when a defendant decides to abscond and forfeit bail.

In 2009, Ilya Pevzner was out on bail following a 2008 arrest on federal charges of impersonating an FBI agent and a Secret Service officer. His parents wanted to do everything they could to keep their son out of jail, if only temporarily. That meant posting bail as security to guarantee his return to court. But when Pevzner failed to appear before Judge Raymond Dearie on Oct. 16, 2009, his absence caused his parents to lose their home.

The System for Release

Soon after arrest, a criminal suspect is brought before a judge for arraignment and is formally advised of the charges. In most cases, the judge sets bail. The purpose of bail, as established by the United States Constitution, is to insure that the accused will return to court for trial and any other proceedings. The guarantee is backed by the defendant or defendant's family or friends, or by a professional bondsman who post money, property or a bond. If the defendant does not return, the money or property is forfeited.

In setting bail, the judge considers such factors as the defendant's criminal record, the seriousness of the crime and whether the arrested person has the ability, resources and motive to flee. But these points are to be considered in the context of one question: Will this person return to court? In theory, at least, the amount of bail is not based upon the gravity of the crime or the accused's record. Instead, the judge tries to predict the likelihood, considering all the factors, that the individual will return to court to face the charges, or whether he or she might abscond.

Bail is not meant to be punitive or to be set at an amount the defendant cannot possibly raise, making pre-trial detention inevitable. While there are some crimes, such as homicide, where judges usually do not grant bail, in many other instances the judge requires no bail and the individual is released and given a date to return. When bail is required it is usually high enough so that, if the defendant fails to appear, the cost to the defendant or others will not be inconsequential. Indeed, the loss can be enormous, as it was for the Pevzners.

Supporting Their Son

At an Aug. 12, 2008, arraignment, Inna Pevzner, the defendant's mother, voluntarily signed a bond guaranteeing her son's return to court. It was a type of IOU, meaning she would owe the government $50,000 if Ilya, then 29, did not return to court as directed, or if he failed to comply with certain other conditions, including attending a mental health clinic.

Even though he had returned to the federal court, he was arrested twice by New York City police between August and October, 2008, for identity theft and grand larceny. The judge therefore concluded that the additional charges made Pevzner a "flight risk," and remanded him. In other words, he was locked up.

At the next federal court appearance, five months later, defense counsel informed the court that his client's parents, Inna and Mikhail, would be willing to post even greater security, if it meant that the judge would release Ilya pending trial. Dearie granted that request and increased bail from $50,000 to $250,000, secured by the family's home.

The judge warned parents and son, "The last thing in the world I want to do is to see two hard-working people lose the family home. But that's exactly what happens if defendant doesn't abide by the terms."

Since the equity in their home was only $200,000, the Pevzners signed another security bond for the balance, $50,000. A lien was placed on their New Jersey home, and the parents were advised that the government could seize their bank accounts, future wages and any other assets if their son failed to appear. They spoke and understood English and signed the documents.

In June 2009, a jury found Pevzner guilty of the federal charges. He was allowed to remain out on bail and he was scheduled to return to court in October to be sentenced and probably incarcerated. Once he was sentenced, bail would be canceled and the lien against his parents' home would be removed.

The Consequence of Flight

Ilya Pevzner, however, did not return to court for sentencing. Not only did he fail to appear, he sent the judge a letter saying that he had left the United States and had gone to Russia, his family's country of origin. At the end of 2009, bail was declared forfeited, but the judge postponed seizure and sale of the house to give the defendant an opportunity to return to this country and to Dearie's courtroom before his parents lost their only real asset: their home.

The parents, arguing that their son was mentally ill and "erratic," then sought to have their bail liability reduced. Dearie denied their application.

"The Pevzners' decision to sign the bond and put their home up as collateral was motivated by their love for their son, and it must have been very difficult for them to objectively consider the risks involved, " Dearie said "[But] . . . it is important to the credibility of the bail system that courts do not relent just because of any hardship visited on caring and concerned parents. Here, the Pevzners were repeatedly warned that if their son violated the conditions of the bond, they would owe the entire bond. . . . To now allow remission while defendant is at large would undermine the integrity of those proceedings."

The judge's final words in the case of USA v Pevzner were, "Without question, the court is presented with an unpleasant task. Having waited inordinately long for the defendant to return to prevent the hardships of forfeiture, the court is restrained to act to ensure the effectiveness and credibility of the bail system. Pretrial release serves the interests of all concerned and can only be implemented if the conditions of release are enforced. I hoped, and waited, for a different resolution to this matter. But I have waited in vain."

In the meantime, on an average day, there are 13,362 inmates in New York City jails, most of whom are awaiting trial or other disposition of their cases. They remain in custody unable to make bail.

Emily Jane Goodman is a New York State Supreme Court Justice

Photo by ironmanixs

A rendition of DNA on display at the Naturalis Museum in Leyden, The Netherlands.

Tyrone Williams raped, sodomized, sexually assaulted and robbed more than seven women across three boroughs over a span of five months, starting in 2003. Williams was eventually captured and sentenced to 35 years in jail, but his spree probably would not have been stopped so quickly had it not been for a previous 2000 conviction for attempted burglary. New York law required that on his burglary conviction, Williams' DNA be made part of the state's data banks. DNA found at the scene of the later crimes matched that DNA on record. Williams was arrested the very day the DNA match was made.

DNA from 356,054 people is stored as part of New York's data bank; all those samples com from a person convicted of any one of a number of qualifying crimes, including violent felonies and sexual assault. Now, if Gov. David Paterson has his way, that number will greatly increase, because the state would store data on anyone convicted of any penal code crime.

New York started its database in 1996 and has slowly but surely added to the number of crimes that require DNA data banking, starting with all felonies and now including 18 specified misdemeanors. Sixteen other states require those convicted of misdemeanors, as well as more severe crimes to submit DNA samples. New York would become the first state to have an all-inclusive mandate. All felonies and misdemeanors would now be covered -- that means over 200 new crimes would be subject to the DNA requirement.

Law enforcement officials from police to district attorneys say that increasing the DNA databanks only makes sense. "DNA is the fingerprint of the 21st century. It not only convicts the guilty, but frees the innocent," said Sen. Jeffrey Klein. He said it is imperative to expand the DNA database because the 30,000 unsolved crimes in New York represent about 10 percent of all unsolved crimes in the United States. Meanwhile, Klein said, New York's DNA database currently represents only about 4.5 percent of all DNA profiles in the United States.

But opponents say there need to be more safeguards to ensure the system is not abused and to all people who say they are wrongly convicted to access the data banks to clear their names.

Other interested parties, like the New York Civil Liberties Union, say that identifying people through DNA is not as foolproof as many in law enforcement say. They argue that police and court should not rely upon it as much as they do. "Samples are often degraded, they're often mixed, and it can be quite a complex understanding when looking at a sample," Bob Perry, the legislative director for the New York Civil Liberties Union told the Journal Register, "That can significantly compromise the DNA database."

John Caher, a spokesman for the State Division of Criminal Justice Services, said that concerns about the database are unwarranted. "I can cite 15 times DNA has exonerated someone in New York. Ask the Civil Liberties Union for an example where someone has been wrongly convicted by it in New York. This will prevent crimes," he said.

Moves for Expansion

Paterson's bill is expected to add around 48,000 new samples to the state data base per year. Currently 46 percent of crimes in the state are subject to DNA collection -- the legislation would likely create a massive influx of new DNA data. Officials hope that will help solve some of New York's 30,000 or so unsolved crimes. It would take effect starting next year and would cost around $1.57 million a year to maintain. Currently though, the bill has no sponsor in either house.

Paterson's measure would simply expand the database -- nothing more. A bill sponsored by Assemblyman Joseph Lentoland passed by the Assembly would expand the DNA database but institute various safeguards, such as creating guidelines for DNA sampling, requiring the videotaping of police interrogations and setting up a board to review the cases of those who say they have been wrongly convicted.

Lentol said that a number of people in New York who were later cleared by DNA evidence were convicted because of confessions. "What is wrong with that picture?" asked Lentol.

In the Senate, Lentol said his bill is being shepherded by Sen. Eric Schneiderman.

But Schneiderman does not seem exactly committed to pushing it through. "The senator supports both pieces of the puzzle,” said Schneiderman spokesman James Freedland. Freedland said Schneiderman would be happy to see Paterson's bill become law, and would also be happy to see the protections that Lentol wants put in place.

"We welcome the governor's effort to expand the DNA database as a critical law enforcement tool to solve crimes, protect the innocent and bring criminals to justice," Freedland said in a statement responding to Paterson's legislation. "Sen. Schneiderman has been a longtime sponsor of several bills that expand DNA testing and create safeguards for the wrongfully convicted. Let's not waste this opportunity to make our criminal justice system more fair, reliable and just."

Lentol, though, does not want to wait for more protections. "The Republicans kept pushing for extensions to the database: first it was violent felonies, then non-violent felonies, and each time they would say, 'Wait, we will get to the protections,’" said Lentol

But a some advocates of expanding the database say law enforcement would not support the safeguards in Lentol's bill, ensuring that the bill fails when it comes to a vote in the Senate.

Increasing the number of sample "has been on the agenda for years but always failed, in part because of a poison pill," Caher said. On the other hand, Paterson's proposal, he said, "is a very clean bill because it does one thing -- expands the database."

"DNA testing is one of the most reliable and cost-effective tools that we have in law enforcement. An expanded database will help convict the guilty, exonerate the innocent, and bring closure to thousands of victims from unsolved cases," said Manhattan District Attorney Cyrus Vance of Paterson's bill in a statement.

Klein, though, would go further than Paterson. He has proposed legislation called "DNA Upon Arrest," which would require DNA samples of anyone arrested on a felony charge. Their DNA would be expunged later if they were found not guilty. Twenty-one other states have laws mandating DNA collection on arrest.

With a number of proposals to expand the DNA database under consideration, those involved said they would welcome a chance to sit down and try to reach an agreement. So far that hasn't happened.

Some sources say all this could be sorted out in budget negotiations. The expansion of the database may very well be pushed through as part of the budget package, as the Rockefeller drug reforms were last year, if and when a budget agreement is actually reached.

Squibs of California

In New York State -- and in New York only -- a contested divorce requires proof of fault. One party must allege and prove that the other spouse's conduct violated one of the grounds for divorce, such as adultery, cruelty, abandonment, formal separation for a year.

The question of who is at fault, though, and how serious the conduct, however, is almost never a factor in the distribution of marital property and assets and will not defeat equitable distribution, the system which guides the division of marital property in New York. (New York is not a 50-50 state.) This was made clear last month by the state's highest court, the Court of Appeals in Howard S. v. Lillian S. (no further identification is provided).

[For more on New York's divorce laws and efforts to change it, see No Fault Divorce Creates Strange Bedfellows.]

Adultery or Fraud?

Through a DNA test, Howard learned that the youngest child of the marriage, a 3-year-old girl the couple had raised together, along with their other children, was actually the child of Lillian and another man. Howard was not the girl's father. He sued Lillian for divorce based on cruelty, adultery and fraud, the fraud being her insistence that she had been a "faithful" wife. She countersued charging abandonment.

But fraud is not one of the causes of action for divorce so that became a separate case in which Howard wanted "discovery," or pre-trial examination of Lillian and perhaps other witnesses. He was seeking information on Lillian's other relationships, the fault that he would try to use to block equitable distribution of the couple's assets and prevent her from getting what she might otherwise be entitled to.

He could not have gotten this information within the direct divorce proceedings. Since even the adultery charge would not lead to discovery on his wife's "misconduct" or have the desired effect on distribution of assets, his approach had two prongs -- to use the allegation of fraud to gain disclosure about Lillian's other relationships and then gain the assets by establishing her fault.

In the meantime, Howard demanded the return of money spent on "collaborative" justice, such as mediation, as well as his support of another man's biological child.

Dividing Property

The statute in the Domestic Relations Law concerning the distribution of marital assets, says that in addition to the basic issues such as age, health, duration of marriage and contributions to marriage, a judge may consider "any factor which the court finds to be just and proper."

In the opinion, Chief Judge Jonathan Lippman clarified any confusion on the connection between fault and equitable distribution. The opinion, from which only one of the seven Court of Appeals judges dissented, clearly stated, "We have rejected the notion that marital fault is a 'just and proper' consideration, [e]xcept in egregious cases which shock the conscience of the court."

Not Bad Enough

Before reaching the highest court, two lower courts had found that Lillian's acts did not rise to the level of "egregious fault," which might affect her financial entitlements. In other words, having a child outside the marriage and failing to disclose that to the other spouse for three years, does not figure into the calculus of equitable distribution of marital property.

Ruling this scenario did not constitute egregious conduct, the chief judge, in his opinion, gave examples of those few cases that have held conduct to be egregious. They all involved extreme violence, and in one case, attempting to bribe a judge.

In the 2002 case of Theresa Havell v. Aftab Islam, a Manhattan judge considered the usual factors in determining what would be an equitable distribution of the couple's assets. In that case, the court also considered the defendant husband's fault -- verbal and physical abuse of wife and children, including the husband's attempt to kill his wife and almost succeeding. His violent attacks did cause severe and permanent injuries to his wife, and occurred in the presence of their children.

After trial, Havell was awarded more than 95 percent of the estimated $17 million in marital assets, most of which she had contributed), with the judge calling her husband's actions so egregious as to shock the conscience.

An irony here is that the same judge, Jacqueline W. Silbermann, who found Aftab Islam's actions egregious, has since retired from the bench and is a matrimonial lawyer in private practice. It was she who represented Howard S. in his appeal where the claim of egregious conduct was rejected.

Emily Jane Goodman is a New York State Supreme Court Justice