{"id":9891,"date":"2008-09-06T15:19:05","date_gmt":"2008-09-06T20:19:05","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/ethicalesq\/?p=9891"},"modified":"2011-08-05T14:53:21","modified_gmt":"2011-08-05T18:53:21","slug":"irked-again-by-criminal-defense-lawyers","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/2008\/09\/06\/irked-again-by-criminal-defense-lawyers\/","title":{"rendered":"irked again by criminal defense lawyers (with updates)"},"content":{"rendered":"<p style=\"padding-left: 60px\"><span style=\"font-family: Geneva,Arial,Sans-Serif;font-size: x-small\"> <\/span><span style=\"font-family: Geneva,Arial,Sans-Serif;font-size: x-small\"><img decoding=\"async\" src=\"http:\/\/cyber.law.harvard.edu\/blogs\/static\/ethicalesq\/ooh.gif\" alt=\"ooh\" \/> <\/span><em><strong> I<\/strong><\/em>f you ever wanted to see what happens when the Police <a href=\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/2007\/12\/03\/good-cops-and-the-blue-code-of-silence\/\">Blue Code of Silence<\/a> (&#8220;nobody knows nothing, nobody saw nothing&#8221;) joins forces with the Defenders <a href=\"http:\/\/www.etymonline.com\/index.php?term=red+herring\">Red Herring Credo<\/a> (&#8220;distract &#8217;em with fishy accusations&#8221;), you should have been outside the Schenectady County Courthouse yesterday afternoon.\u00a0 Those who weren&#8217;t there can click this News Channel 13 <a href=\"http:\/\/wnyt.com\/article\/stories\/S568785.shtml?cat=300\">news video<\/a> link for a couple hundred illuminating seconds from the event. For full news coverage see:\u00a0 &#8220;<a href=\"http:\/\/timesunion.com\/AspStories\/story.asp?storyID=718256\">Police case a matter of form<\/a>: Three Schenectady officers involved in alleged beating will face charges of not filing paperwork&#8221; (<em>Albany Times Union<\/em>, September 6, 2008); &#8220;<a href=\"http:\/\/cms.dailygazette.com\/news\/2008\/sep\/06\/0906_schdycops\/\">Three Schenectady police officers face misconduct charges<\/a>&#8221; (Schenectady <em>Daily Gazette<\/em>, September 6, 2008); and &#8220;<a href=\"http:\/\/capitalnews9.com\/content\/top_stories\/123462\/three-schenectady-officers-indicted-for-official-misconduct\/Default.aspx\">Three Schenectady officers indicted for official misconduct<\/a>&#8221; (<em>Capital News 9<\/em>, September 5, 2008).<\/p>\n<p><strong><em>T<\/em><\/strong>hree police offers under investigation for beating up a man they arrested last December where charged yesterday with a mere misdemeanor count of failing to fill out a form (and turn on a camera).\u00a0 They and their lawyers are very unhappy about the indictments.\u00a0 The alleged victim of the beating wanted more. Let me try to summarize the facts:<\/p>\n<ul>\n<li><em>Background<\/em>: The Schenectady Police Department has been under a cloud for many years. (see our <a href=\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/2004\/05\/03\/scandal-ridden-cops-more-popular-than-lawyers\/\">prior post<\/a>) A<span style=\"font-family: Arial;font-size: x-small\"> barrage of complaints, including the frequent use of excessive force, led to a major <a href=\"http:\/\/www.usdoj.gov\/crt\/split\/documents\/schenectady_ta.pdf\">civil rights investigation<\/a> by the Justice Department and the DOJ Report recommended instituting new procedures to better monitor officer conduct during arrests.\u00a0 Schenectady&#8217;s <\/span><span style=\"font-family: Arial;font-size: x-small\">public safety commissioner <\/span><span style=\"font-family: Arial;font-size: x-small\">Wayne Bennett (a former superintendent of State Police) was hired last year to clean things up and has instituted reforms to attack this sort of misconduct &#8212; including the filing of Use of Force forms and the use of in-vehicle cameras to make a record of arrests.<br \/>\n<\/span><\/li>\n<li>This case started in December 2007. As <em>Capital News 9<\/em> said in March: &#8220;Donald Randolph was pulled over in Schenectady on Dec. 7 and arrested for drunk driving, driving without a license and harassment. He claims he was beat up by the officers during the arrest. . . . According to a jail report, he arrived at the Schenectady County Jail hours later with a swollen face and bruised wrist.&#8221;\u00a0 &#8220;<a href=\"http:\/\/capitalnews9.com\/content\/top_stories\/111878\/dwi-suspect-plans-lawsuit-against-schenectady-police--city\/Default.aspx\">DWI suspect plans lawsuit against Schenectady police, city<\/a>&#8221; (March 6, 2008)<\/li>\n<li>Five officers who were present at the arrest were put on Administrative leave with pay pending a full investigation.\u00a0 Our county District Attorney&#8217;s office recused itself, and the matter was then handled by the Office of the New York State Attorney General.<\/li>\n<\/ul>\n<ul>\n<li><img decoding=\"async\" src=\"http:\/\/cyber.law.harvard.edu\/blogs\/static\/ethicalesq\/erasingSF.gif\" alt=\"\" \/> As the <em>Gazette<\/em> notes today: &#8220;[T ]he original charges against Randolph fell apart. [Gregory] Karaskiewicz, the <em>arresting officer, never did sobriety tests and never saw Randolph driving<\/em>, District Attorney Robert Carney said previously. Randolph ultimately pleaded guilty to misdemeanor aggravated unlicensed operation, not felony drunk driving, which was the original charge.&#8221;<\/li>\n<li>At a hearing yesterday before county Judge Karen Drago, no charges were made against two of the officers, and the beating charges were dropped against three decorated officers Eric Reyell, 29, Gregory Hafensteiner, 30, and Andrew Karaskiewicz, 38.\u00a0 However, as the <a href=\"http:\/\/cms.dailygazette.com\/news\/2008\/sep\/06\/0906_schdycops\/\"><em>Gazette<\/em> reports<\/a> today:<\/li>\n<\/ul>\n<p style=\"padding-left: 60px\">&#8220;Reyell, Hafensteiner and Karaskiewicz are accused of failing to complete a &#8216;use of force&#8217; form regarding the arrest of Randolph. Reyell is also accused of failing to have his vehicle camera on during \u201cevents involving Donald Randolph.\u201d<\/p>\n<ul>\n<li><a href=\"http:\/\/www.wten.com\/Global\/story.asp?S=5671283\">Michael McDermott<\/a> is Hafensteiner&#8217;s attorney; <a href=\"http:\/\/www.oalaw.com\/attorneys.html\">Steven P. Coffey<\/a> represents Karaskiewicz; and <a href=\"http:\/\/www.cherylcolemanlaw.com\/\">Cheryl Coleman<\/a> represents Reyell.<\/li>\n<li>John Milgrim, the attorney general&#8217;s office spokesman, explained: &#8220;The internal rules that were allegedly violated and that are the subject of the indictment exist to protect citizens as well as the police themselves. The possible penalties reflect the seriousness of the matter. Each officer faces up to a year in jail and loss of his position if convicted [of the misdemeanor charges].&#8221; Reyell, Hafensteiner and Karaskiewicz have pleaded not guilty.<\/li>\n<\/ul>\n<ul>\n<li>Half the court gallery was filled with plain-clothed officers and family members. After the hearing, Schenectady PBA President Bob Hamilton said (despite the contrary jail report), &#8220;There was no brutality, which, all you had to do is take one look at him. He said five officers beat him several times and he didn&#8217;t have a mark on him.&#8221; As for the new charges, Hamilton added:<\/li>\n<\/ul>\n<p style=\"padding-left: 60px\"><em><\/em>&#8220;I&#8217;ve never seen anything like this before, and quite frankly, it&#8217;s unconscionable. . . . We had three officers charged with a ridiculous crime. There&#8217;s never been a precedent in this state before where an officer has been charged with official misconduct for not filling out a departmental form.&#8221;<\/p>\n<p><img loading=\"lazy\" decoding=\"async\" src=\"http:\/\/blogs.law.harvard.edu\/shlep\/files\/2006\/08\/questionDudeS.gif\" alt=\"questionDude\" width=\"50\" height=\"51\" \/> What&#8217;s going on here?\u00a0 Addressing that question, Rex Smith editor of the Albany <em>Times Union<\/em> <a href=\"http:\/\/timesunion.com\/ASPStories\/Story.asp?StoryID=718176&amp;LinkFrom=RSS\">wrote<\/a> this morning (<a href=\"http:\/\/timesunion.com\/ASPStories\/Story.asp?StoryID=718176&amp;LinkFrom=RSS\">&#8220;Editorial: Indictment targets police corruption<\/a>,&#8221; September 6, 2008):<\/p>\n<p style=\"padding-left: 60px\">&#8220;You may quickly jump to the conclusion that cops who beat up a guy are getting away with a slap on the wrist. Or maybe you figure this is an unfair intrusion by lawyers who don&#8217;t understand the street, where dedicated officers routinely confront jerks who can turn a quiet night into a nightmare.&#8221;<\/p>\n<p>PBA President Hamilton and the lawyers for the indicted officers want you to think the latter option is what this case is now all about, and that the indictments are illogical, vindictive and unwarranted, sending a chilling message to all law enforcement officers in Schenectady.<\/p>\n<p><!--more--><\/p>\n<p>According to the <em><a href=\"http:\/\/cms.dailygazette.com\/news\/2008\/sep\/06\/0906_schdycops\/\"><em>Gazette<\/em><\/a><\/em>, Hamilton complained: \u201cOne department form wasn\u2019t filled out and they\u2019re charged with a crime? Don\u2019t you see a problem with that?\u201d\u00a0 Saying he &#8220;can\u2019t find any logic in this circus they put together,&#8221;<\/p>\n<p style=\"padding-left: 30px\"><span style=\"font-family: Geneva,Arial,Sans-Serif;font-size: x-small\"><img decoding=\"async\" src=\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/files\/2007\/11\/oohf.jpg\" alt=\"\" \/><\/span><span style=\"font-family: Geneva,Arial,Sans-Serif;font-size: x-small\"> <\/span>&#8220;He also noted that for the charges to hold up, the officers would have had to have gained some benefit from their actions. Hamilton said he doesn\u2019t see how they could have benefited.&#8221;<\/p>\n<p>And, the article continued,<\/p>\n<p style=\"padding-left: 30px\">&#8220;Hamilton said the officers were rushed back to the road after the incident and returned later to file paperwork. The use of force form was forgotten&#8221;.<\/p>\n<p>It seems pretty clear <em>to me<\/em> what&#8217;s happening:\u00a0 Those weren&#8217;t just any forms and any camera &#8212; and no police officer need worry that every forgotten form will earn him or her an indictment when there has been no suggestion of wrongdoing. Rex Smith got it right in his <a href=\"http:\/\/timesunion.com\/ASPStories\/storyprint.asp?StoryID=718176\"><em>TU<\/em> editorial<\/a>:<\/p>\n<p style=\"padding-left: 60px\">&#8220;One guard against what cops call &#8216;bad arrests&#8217; is the installation of cameras in squad cars. If the camera is turned on, it will produce evidence that can either convict a brutal cop or clear an unfairly charged officer of baseless allegations. And those forms officers are required to fill out after using force are similarly crucial. Officers lie on those forms at risk of being charged with perjury.<\/p>\n<p style=\"padding-left: 60px\">&#8220;But when officers don&#8217;t turn on the cameras, or &#8220;forget&#8221; to file the forms, they enshroud their arrests in secrecy. Corruption thrives in such darkness.&#8221;<\/p>\n<p style=\"padding-left: 60px\"><a href=\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/files\/2008\/09\/coplight.gif\"><img loading=\"lazy\" decoding=\"async\" class=\"alignnone size-medium wp-image-9892\" src=\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/files\/2008\/09\/coplight.gif\" alt=\"\" width=\"50\" height=\"28\" \/><\/a><span style=\"font-family: Geneva,Arial,Sans-Serif;font-size: x-small\"> <\/span>&#8216;&#8221; . . . . [Attorney General Andrew] Cuomo doesn&#8217;t have the evidence to either charge or clear the officers of the brutality allegation because the officers involved apparently blew off their commissioner&#8217;s rules.&#8221;<\/p>\n<p>For Smith, therefore, the indictment &#8220;goes to the heart of the problem in Schenectady&#8221; and shows the State is serious in backing up the reforms made by Commissioner Bennett.<\/p>\n<p>Just easily forgotten paperwork?\u00a0 Melanie Trimble, executive director of the New York Civil Liberties Union&#8217;s Capital Region chapter, was surely more on the mark when she told the <em>Gazette<\/em>, \u201cThat is not something that a police officer is likely to forget when force is used.\u201d\u00a0 Trimble, whose organization had sued Schenectady over police violence, knows the value of those forms, and applauded the indictments as an indication they are being taken seriously as a tool to root out police misconduct.<\/p>\n<p>Of course, defense counsel had a different take on the importance of the Use of Force form in this case.\u00a0 Per the <em>Times Union<\/em>:<\/p>\n<p style=\"padding-left: 60px\">&#8220;Stephen Coffey, representing Andrew Karaskiewicz, said the use-of-force form &#8216;means nothing within the context of the case&#8217; since department brass already knew the officers were dealing with a violent suspect.&#8221;<\/p>\n<p>Huh? My seven-year old nephew James could tear apart that logic, so I won&#8217;t insult my readers by deconstructing it.<\/p>\n<p><img loading=\"lazy\" decoding=\"async\" src=\"http:\/\/soupytrumpet.com\/uploads\/2008\/03\/lost-red-herring.gif\" alt=\"\" width=\"85\" height=\"60\" \/> Given these circumstances, here&#8217;s how the veteran criminal defense lawyers for the indicted officers reacted as they left the courthouse yesterday.\u00a0\u00a0\u00a0 See if you can spot any red herring or blue <a href=\"http:\/\/www.freedictionary.org\/?Query=strawman\">strawmen<\/a>:<\/p>\n<p><strong><em>Officer Reyell&#8217;s lawyer is <a href=\"http:\/\/www.cherylcolemanlaw.com\/about.html\">Cheryl Coleman<\/a><\/em><\/strong>.\u00a0 She&#8217;s a feisty former judge and was a successful prosecutor for many years.\u00a0 (see our <a href=\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/2005\/06\/11\/bashful-batters-seventh-inning-kvetsch\/\">prior post<\/a>)\u00a0 Her website&#8217;s masthead tells you &#8220;<a href=\"http:\/\/www.cherylcolemanlaw.com\/\">she&#8217;s a fighter<\/a>.&#8221;\u00a0 Here&#8217;s what she had to say to the news media outside the Schenectady County Courthouse yesterday (see Channel 13&#8217;s <a href=\"http:\/\/wnyt.com\/article\/stories\/S568785.shtml?cat=300\">news video<\/a>), besides telling the <em>Times Union<\/em> the indictment was &#8220;vindictive sour grapes.&#8221;:<\/p>\n<ul>\n<li>&#8220;I don&#8217;t know what&#8217;s next, failure to sharpen a pencil? &#8220;<\/li>\n<li>&#8220;God, not everything that you do wrong at your job is a crime.&#8221;<\/li>\n<li>&#8220;I would be embarrassed to put that indictment forth.\u00a0 It&#8217;s pretty clear that they&#8217;re trying to distract everybody with the fact that there is egg all over their face.&#8221;<\/li>\n<\/ul>\n<p><strong>Officer Karaskiewicz&#8217;s lawyer is <a href=\"http:\/\/www.oalaw.com\/attorneys.html\">Steven P. Coffey<\/a><\/strong>.\u00a0 In addition to telling the <em>TU<\/em> that the use-of-force form &#8220;means nothing\u00a0 within the context of the case,&#8221; and &#8220;the charges could set a dangerous precedent for law enforcement officers all across the state,&#8221; the well-known defense counsel and former Albany prosecutor said:<\/p>\n<ul>\n<li><span style=\"font-family: Arial\"><span><span><span style=\"font-family: Arial;font-size: x-small\"><span style=\"font-size: x-small\"><span><span style=\"font-size: x-small\"><span><span style=\"font-family: Arial\"><img decoding=\"async\" src=\"http:\/\/cyber.law.harvard.edu\/blogs\/static\/ethicalesq\/frventalone.gif\" alt=\"fr ventalone\" \/><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span><\/span> &#8220;You&#8217;re going to start telling the police in this community, including the State Police and everybody else that because you don&#8217;t fill out a form that adds nothing to the case, that you&#8217;re going to be indicted?\u00a0 Is this what you&#8217;re telling the police in this community?&#8221;<\/li>\n<\/ul>\n<p>The <a href=\"http:\/\/cms.dailygazette.com\/news\/2008\/sep\/06\/0906_schdycops\/\"><em>Gazette<\/em><\/a> reporter fills out the picture of Coffey&#8217;s spin on the case:<\/p>\n<p style=\"padding-left: 60px\">&#8220;Attorney Steve Coffey, representing Karaskiewicz, said his client didn\u2019t fill out the form because he didn\u2019t think he had to. The police knew Randolph was violent in the car, Coffey said. Coffey questioned how someone could be charged with a misdemeanor for failing to fill out a form.&#8221;<\/p>\n<p><strong>Officer Hafensteiner&#8217;s lawyer is <a href=\"http:\/\/www.wten.com\/Global\/story.asp?S=5671283\">Michael McDermott<\/a><\/strong>, the former Chief Felony Proseuctor for Albany County. Perhaps because he&#8217;s been in private practice less than two years, he was a bit more restrained. McDermott told the <em>Gazette<\/em> that his client \u201cfeels relieved that he\u2019s vindicated that as police officer, he did a good job. And now to be brought into criminal court for failing to file a form, is pretty disappointing.\u201d\u00a0 He did, however, insinuate improper motives on the part of the question the prosecutors, saying:<\/p>\n<ul>\n<li>&#8220;Maybe at the end of the day, they felt they were some under pressure to return some kind of a charge.&#8221;<\/li>\n<\/ul>\n<p><span style=\"font-family: Geneva,Arial,Sans-Serif;font-size: x-small\"><img decoding=\"async\" src=\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/files\/2007\/12\/noyabutstn.jpg\" alt=\"\" \/> Although I just coined the phrase today, I&#8217;ve complained about the Red Herring Credo of criminal counsel before (see, <em>e.g<\/em>., <a href=\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/2004\/02\/26\/boxley-jones-giving-lawyers-a-bad-name-bigtime\/\">here<\/a>), and <a href=\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/2003\/10\/08\/first-thing-lets-quell-all-the-liars\/\">have noted<\/a> that the public&#8217;s distrust of lawyers has something to do with &#8220;<\/span><span style=\"font-family: Arial\">criminal defense lawyers spouting sound bites on courthouse steps, the content of which often strains credulity, blames victims, and has very little to do with the important role of making the government prove its case.<\/span><span style=\"font-family: Geneva,Arial,Sans-Serif;font-size: x-small\">&#8221;\u00a0 Yesterday&#8217;s bit of lawyerly distraction especially irked me, however, when <\/span>contrasted with what the same attorneys would surely have said about those &#8220;forgotten&#8221; forms if they had represented Donald Randolf against the original DWI charges, or in any subsequent civil case against the City of Schenectady.<\/p>\n<p>The cooperative posture of the media with this defense b.s. makes the situation even worse.\u00a0 I&#8217;m often surprised that even our best tv news anchors and reporters give defense attorneys so much uncontested airtime.\u00a0 (As mentioned in <a href=\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/2004\/02\/28\/he-who-pays-the-piper\/\">this post<\/a>, at times I fear it&#8217;s because some of the biggest station advertisers are lawyers who overlap with the small group of prominent private criminal lawyers.\u00a0 They are also a good source of tips and quips, so reporters want to keep the lawyers happy.)\u00a0 In this case, watch the facial expression and tone of voice used by reporter <a href=\"http:\/\/wnyt.com\/article\/stories\/S98103.shtml?cat=10265\">Subrina Dhammi<\/a>, in the <a href=\"http:\/\/wnyt.com\/article\/stories\/S568785.shtml?cat=300\">Channel 13 video clip<\/a> about the indictments.\u00a0 And note the ready acceptance of the lawyers&#8217; spin by the usually-perceptive, award-winning anchor <a href=\"http:\/\/wnyt.com\/article\/stories\/S98030.shtml?cat=10265\">Benita Zahn<\/a>. [She might have asked something like, &#8220;Wouldn&#8217;t those forms have helped the investigation if they had been filled out?&#8221; Or, &#8220;How could all the officers forget this mandatory paperwork?&#8221;] I&#8217;m thankful that our newspapers have a more well-rounded account, but we all know which coverage will reach the broader audience and have the most impact.<\/p>\n<p style=\"padding-left: 60px\"><span style=\"font-size: x-small\"><span style=\"font-family: Arial;font-size: x-small\"><span style=\"font-family: Arial;font-size: x-small\"><span style=\"font-family: Arial;font-size: x-small\"><img decoding=\"async\" src=\"http:\/\/cyber.law.harvard.edu\/blogs\/static\/ethicalesq\/PointerDudeneg.jpg\" alt=\"pointer dude neg\" \/> <\/span><\/span><\/span><\/span>If criminal defense lawyers would let us know how they would have handled this case and whether misleading the public and frivolously bad-mouthing the prosecution from the courthouse steps &#8220;just comes with the job,&#8221; we&#8217;d be very appreciative.\u00a0 Right now, I think justice will be best served with both <em>less silence<\/em> by police officers when accusations are made against their brethren and<em> more silence<\/em> by their defense counsel in the public arena.<\/p>\n<p>As for this matter, I&#8217;m glad that &#8212; in the words of the Schenectady <em>Gazette<\/em> &#8212; &#8220;Mayor Brian U. Stratton and Public Safety Commissioner Wayne Bennett issued a statement Friday afternoon reaffirming their position that the outside investigation was appropriate,&#8221; and noting that an internal investigation will now commence.&#8221;\u00a0 And, I will end with Rex Smith&#8217;s cautionary and cautiously optimistic <a href=\"http:\/\/timesunion.com\/ASPStories\/storyprint.asp?StoryID=718176\">editorial <\/a>conclusion:<\/p>\n<p style=\"padding-left: 60px\">&#8220;Maybe we misunderstand. Perhaps the indictment is misdirected and the officers will be cleared. Maybe. And maybe some Schenectady cops will decide to get it all off their chest and join their commissioner&#8217;s fight to clean up their act.&#8221;<\/p>\n<p><strong><em>p.s. <\/em><\/strong>If you want to share this post, you can use this TinyURL: http:\/\/tinyurl.com\/BlueCodeRedHerring<\/p>\n<p style=\"padding-left: 30px\"><strong><em>update<\/em><\/strong> (9PM): I just watched the <a href=\"http:\/\/link.brightcove.com\/services\/link\/bcpid1137806146\/bclid1143371293\/bctid1776561713\">video Schenectady Cops Indicted<\/a>, from the Albany CBS outlet, <a href=\"http:\/\/www.cbs6albany.com\/\">WRGB<\/a>, Channel 6, with Steve Flamisch reporting. It is one-sided like the Channel 13 report, but makes the added assertion that the grand jury explicitly found the officers had not used excessive force (as opposed to not having enough evidence).\u00a0 If a reader knows the basis for that assertion, please let us know in a Comment.<\/p>\n<p style=\"padding-left: 30px\"><span style=\"font-family: Geneva,Arial,Sans-Serif;font-size: x-small\"><img loading=\"lazy\" decoding=\"async\" src=\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/files\/2007\/12\/noyabutstn.jpg\" alt=\"\" width=\"32\" height=\"41\" \/><\/span><span style=\"font-family: Geneva,Arial,Sans-Serif;font-size: x-small\"> <\/span><strong><em>update<\/em><\/strong> (September 7, 2008): In an email sent last night, I asked <a href=\"http:\/\/www.cbs6albany.com\/articles\/flamisch_1255929___article.html\/steve_cbs.html\">Steve Flamisch<\/a> of WRGB about his statement that \u201cThe grand jury determined whatever force the officers used was justified\u2026 .&#8221; (see the <a href=\"http:\/\/www.cbs6albany.com\/video\/?bcpid=1137806146&amp;bclid=1143371293&amp;bctid=1776561713\">video clip<\/a>)\u00a0 This morning, Steve wrote me a frank and thoughtful response, including:<\/p>\n<p style=\"padding-left: 60px\">&#8220;I thought about this the next day, even before reading your email \u2013 the grand jury might have believed the cops assaulted the suspect, but lacked the proper evidence (including, perhaps, the paperwork and Officer Reyell\u2019s tape) to indict.<\/p>\n<p style=\"padding-left: 60px\">&#8220;It\u2019s an important distinction to make, and . . . I will suggest a follow-up story to my boss.&#8221;<\/p>\n<p style=\"padding-left: 30px\"><strong><em>update<\/em><\/strong> (September 8, 2008):\u00a0 This morning, the WRGB\/Ch.6 reporter called to say they would have a follow-up piece this evening and asked to come over to interview me.\u00a0 Just before the interview was to take place, Steve called again to say his bosses decided the subject was only about &#8220;technical distinctions&#8221; and he was re-assigned to a more urgent matter.\u00a0 They may come back to these issues in November, prior to the next court date.<\/p>\n<p style=\"padding-left: 60px\"><strong><em> <\/em><\/strong><a href=\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/files\/2008\/09\/jailbird-neg.jpg\"><img loading=\"lazy\" decoding=\"async\" class=\"alignnone size-medium wp-image-9901\" src=\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/files\/2008\/09\/jailbird-neg.jpg\" alt=\"\" width=\"51\" height=\"59\" \/><\/a> <strong><em>And see<\/em><\/strong> (Sept. 9, 2008) The (very unscientific) <a href=\"http:\/\/www.dailygazette.com\/polls\/2008\/sep\/0907_force\/\">survey at the <em>Schenectady Gazette<\/em><\/a>, which asks &#8220;Should three Schenectady police officers face criminal charges for allegedly failing to fill out paperwork related to the use of force on a drunken driving suspect in December 2007?&#8221;<\/p>\n<p style=\"padding-left: 30px\"><strong><em>update<\/em><\/strong> (September 9, 2008): This morning, the Connecticut public defender who goes by the pen name Gideon wrote a thought-provoking posting &#8220;<a href=\"http:\/\/apublicdefender.com\/2008\/09\/09\/courthouse-steps-syndrome\/\">Courthouse Steps Syndrome<\/a>&#8221; at his weblog <em><a href=\"http:\/\/apublicdefender.com\/\">a public dender<\/a><\/em> weblog, which is widely read by the criminal defense bar (and others who like insightful writing).\u00a0 The whole post deserves to be read and digested (as do the comments by several other criminal defense lawyers).\u00a0 Here are two of Gideon&#8217;s most important points:<\/p>\n<ul>\n<li>&#8220;Our duty to the client should encourage restraint on the courthouse steps. Just because the clients (or more likely the media) want some outward showing of their &#8216;innocence&#8217;, doesn\u2019t mean we have to give it to them.&#8221;<\/li>\n<li>&#8220;[M]ost importantly in my opinion, today\u2019s 10pm news watchers are tomorrow\u2019s potential jurors. Much has been written in the blawgosphere over the past months about what best convinces a jury. Credibility was oft repeated. A jury will be more inclined to believe your client\u2019s version of the story if they\u2019re more inclined to believe you.&#8221;<\/li>\n<\/ul>\n<p style=\"padding-left: 60px\"><em>Note<\/em>: Gideon has joined me and criminal defense lawyer Scott Greenstein (of the <a href=\"http:\/\/blog.simplejustice.us\/\"><em>Simple Justice<\/em><\/a> weblog) in a <a href=\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/2008\/09\/06\/irked-again-by-criminal-defense-lawyers\/#comment-192114\">debate in our Comment section<\/a> below.\u00a0 I hope this post and Gideon&#8217;s will motivate others to have a thoughtful (and respectful, polite) discussion of these issues.<\/p>\n<p><a href=\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/files\/2008\/09\/dailygazettelogosg.jpg\"><img loading=\"lazy\" decoding=\"async\" class=\"alignnone size-medium wp-image-9907\" src=\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/files\/2008\/09\/dailygazettelogosg.jpg\" alt=\"\" width=\"100\" height=\"19\" \/><\/a><em> <\/em> <em><strong>update<\/strong><\/em> (September 10, 2008): An editorial in today&#8217;s Schenectady <em>Gazette<\/em> explains why the indictments here for &#8220;official misconduct&#8221; were justified.\u00a0 In the &#8220;<a href=\"http:\/\/www.dailygazette.com\/news\/2008\/sep\/10\/0910_edit1\/\">Editorial: Indictment of Sch&#8217;dy cops can be questioned, but is justified<\/a>&#8221; we&#8217;re told:<\/p>\n<p style=\"padding-left: 60px\">&#8220;Why prosecute officers [with charges of &#8220;official misconduct&#8221;] for simple rule violations \u2014 all three for failing to fill out a \u201cUse of Force\u201d form, and one for not turning on a camera in his car during and immediately after an arrest?<\/p>\n<p style=\"padding-left: 60px\">&#8220;The answer is that prosecutors often charge people they suspect of committing a crime, but can\u2019t prove it, with whatever they\u2019ve got them on. And in this case, the rule violations were not minor or incidental, but central to an alleged case of police brutality \u2014 indeed, a possible attempt to hide it.&#8221;<\/p>\n<p style=\"padding-left: 30px\">The <em>Gazette<\/em> editor concludes: &#8220;The police have now heard from outside as well as inside that there will be real consequences for not following the rules, especially ones which go to the heart of their work. That\u2019s good.&#8221;<\/p>\n<p style=\"padding-left: 30px\"><img loading=\"lazy\" decoding=\"async\" src=\"http:\/\/soupytrumpet.com\/uploads\/2008\/03\/lost-red-herring.gif\" alt=\"\" width=\"39\" height=\"27\" \/> <img loading=\"lazy\" decoding=\"async\" src=\"http:\/\/soupytrumpet.com\/uploads\/2008\/03\/lost-red-herring.gif\" alt=\"\" width=\"39\" height=\"27\" \/> <img loading=\"lazy\" decoding=\"async\" src=\"http:\/\/soupytrumpet.com\/uploads\/2008\/03\/lost-red-herring.gif\" alt=\"\" width=\"39\" height=\"27\" \/> <img loading=\"lazy\" decoding=\"async\" src=\"http:\/\/soupytrumpet.com\/uploads\/2008\/03\/lost-red-herring.gif\" alt=\"\" width=\"39\" height=\"27\" \/> (4 P.M. update): If you want to see a lot of Red Herring (distractions to keep you away from the real issue) and Strawmen (distortions of the opponent&#8217;s argument to make it an easy target), go to the comment sections of the <a href=\"http:\/\/www.dailygazette.com\/polls\/2008\/sep\/0907_force\/\"><em>Gazette<\/em> Survey<\/a> and <a href=\"http:\/\/www.dailygazette.com\/news\/2008\/sep\/10\/0910_edit1\/\"><em>Gazette<\/em> Editorial<\/a>.<\/p>\n<p style=\"padding-left: 30px\">For the record (despite how obvious it should be to the unjaundiced eye), I believe that<em> most <\/em>members of the Schenectady Police Department are good, honest cops.\u00a0 If they&#8217;re at all like the honest members of another maligned profession &#8212; lawyers &#8212; I bet they know that you don&#8217;t regain the trust and respect of the public by sweeping accusations against the bad apples under a rug.\u00a0 Instead, you make sure that valid charges are fully investigated with appropriate punishment applied (be it criminal or administrative), and you hope that others tempted to stray will take heed and be deterred from future missteps.<\/p>\n<p><strong><em>update<\/em><\/strong> (September 11, 2008): In the print edition of the Schenectady <em>Gazette<\/em> today, Carl Strock&#8217;s column is titled &#8220;What did the cops do to be indicted?&#8221;\u00a0 Among his statements and questions are:<\/p>\n<ul>\n<li><img loading=\"lazy\" decoding=\"async\" src=\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/files\/2007\/06\/Strock.jpg\" alt=\"StrockCarl\" width=\"70\" height=\"66\" \/> &#8220;Naturally I wondered if more was going on.\u00a0 I wondered if maybe the cops really did beat up the guy . . . and if the evidence wasn&#8217;t solid enough to justify an indictment for that so the grand jury went with the next best thing, sort of like charging Al Capone with tax evasion . . .&#8221;<\/li>\n<li>&#8220;The form that they failed to fill out was a &#8216;use-of-force&#8217; form, which implies that they did indeed muscle the guy . . . &#8220;<\/li>\n<li>&#8220;Even though he suffered no injuries to speak of &#8212; merely a bruise on the cheek &#8212; some kind of evidence was enough to outrage Schenectady Mayor Brian Stratton and to convince the state attorney general&#8217;s office to take the case to a grand jury.&#8221;<\/li>\n<li>&#8220;I still want to know: Was the camera in one patrol car turned off so the cops could rough up the guy out of sight? . . . &#8220;<\/li>\n<li>&#8220;I&#8217;m still waiting.&#8221;<\/li>\n<\/ul>\n<p style=\"padding-left: 60px\"><strong>update<\/strong> (December 8, 2008):\u00a0 Judge Drago dismissed the charges today.\u00a0 See our post &#8220;<a href=\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/2008\/12\/08\/judge-tosses-out-charges-based-on-cops-failure-to-fill-out-excessive-force-forms\/\">judge tosses out charges based on cops\u2019 failure to fill out excessive force forms<\/a>.&#8221;<\/p>\n<p style=\"padding-left: 60px\"><em><strong>follow-up<\/strong><\/em> (May 14, 2010): After an arbitrator recommended  his termination from the police force, Gregory Hafensteiner has resigned  from the Department.\u00a0 See &#8220;<a href=\"http:\/\/giacalonephotos.wordpress.com\/\">Cops career likely over<\/a>&#8221;  (<em>Times Union<\/em>, May 10, 2010).\u00a0 Today&#8217;s Schenectady <em>Gazette<\/em> tells of a police in-car video showing Hafensteiner kicking Donald  Randolph.\u00a0 See&#8221;<a href=\"http:\/\/www.dailygazette.com\/news\/2010\/may\/14\/0514_video\/\">Schenectady  police-abuse video shows kicking incident<\/a>&#8221; (by Kathleen Moore, May  14, 2010, p. A-1; available online by subscription).\u00a0 Last Tuesday, the <em>Gazette<\/em> reported that &#8220;City police Officer Gregory Hafensteiner, who resigned  on Sunday, used  excessive force without provocation in the alleged  beating of DWI  suspect Donald Randolph, the mayor said Monday.&#8221; (&#8220;<a href=\"http:\/\/www.dailygazette.com\/news\/2010\/may\/11\/0511_copkick\/\">Schenectady  city officials: Office kicked suspect<\/a>&#8220;, May 11, 2010)<\/p>\n<p>that croaking at the plum tree<br \/>\nis getting old&#8230;<br \/>\nfrog<\/p>\n<p>&#8230; by <a href=\"http:\/\/haikuguy.com\/issa\/\">Kobayashi Issa<\/a>, translated by David G. Lanoue<\/p>\n<blockquote><p>A clear hot day<br \/>\nthe silence<br \/>\nbehind the butterfly<\/p>\n<p>\u2026\u2026\u2026\u2026\u2026\u2026 by Rebecca Lilly, from <em>Shadwell Hills<\/em> (Birch Prees Press, 2002)<\/p><\/blockquote>\n<blockquote>\n<blockquote><p>in her silence<br \/>\nthe tea kettle<br \/>\nannounces winter<\/p><\/blockquote>\n<p>his headstone<br \/>\nrises with the moon<br \/>\nabove the silence<\/p>\n<blockquote><p>\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.. by Andrew Riutta<br \/>\n\u201chis headstone\u201d &#8211; <em>Full Moon Magazine<\/em> (2005)<\/p><\/blockquote>\n<\/blockquote>\n<p>short summer night&#8211;<br \/>\nthe frogs croaking<br \/>\ntrash talk<\/p>\n<p>&#8230; by Kobayashi Issa, translated by David G. Lanoue<\/p>\n","protected":false},"excerpt":{"rendered":"<p>If you ever wanted to see what happens when the Police Blue Code of Silence (&#8220;nobody knows nothing, nobody saw nothing&#8221;) joins forces with the Defenders Red Herring Credo (&#8220;distract &#8217;em with fishy accusations&#8221;), you should have been outside the Schenectady County Courthouse yesterday afternoon.\u00a0 Those who weren&#8217;t there can click this News Channel 13 [&hellip;]<\/p>\n","protected":false},"author":94,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[3513,2927,900],"tags":[],"class_list":["post-9891","post","type-post","status-publish","format-standard","hentry","category-lawyer-news-or-ethics","category-schenectady-synecdoche","category-viewpoint"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p6kP1R-2zx","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/9891","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/users\/94"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/comments?post=9891"}],"version-history":[{"count":2,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/9891\/revisions"}],"predecessor-version":[{"id":12186,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/9891\/revisions\/12186"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/media?parent=9891"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/categories?post=9891"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/tags?post=9891"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}